COMMONWEALTH vs. GEORGE C. HORTON (and a companion case [Note 1]).

WILKINS, J. The defendant Horton, an employee in a Quincy bookstore, was indicted for the sale in August, 1971, of "certain obscene and impure magazines entitled `Love Theme' and `Young Stuff.'" The defendant O'Brien, the owner of the bookstore, was indicted on the same day for possession of "certain obscene, indecent, or impure magazines . . . [the same magazines] with intent to sell [them]." The cases were tried together in May, 1972, and the defendants were found guilty. Each defendant was placed on probation for one year; O'Brien was fined $1,000.

The defendants claimed various exceptions at trial but have argued before us, in connection with their motion for directed verdicts, only that G. L. c. 272, Section 28A, [Note 2] is unconstitutionally vague and overbroad and that it would be unconstitutional for this court now to construe Section 28A so as to be applicable to acts committed by them in 1971. Basically the defendants argue that Section 28A does not satisfy the First Amendment standards prescribed in Miller v. California, 413 U.S. 15 (1973), decided on June 21, 1973; that our decisions have not interpreted Section 28A so as to meet

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the constitutional requirements set forth in the Miller case; and that it would be improper for this court now to interpret Section 28A retroactively so as to import into Section 28A that specificity which under the Miller case must exist either in the words of the statute or in authoritative judicial construction of the statute. Miller v. California, supra, 24.

The defendants were tried under the so called Roth-Memoirs standard. Roth v. United States, 354 U.S. 476 (1957). "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass. 383 U.S. 413 (1966). That standard required three elements to be established in order to obtain a constitutionally justified obscenity conviction. The prosecution had to establish that "(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass., supra, 418.

No Justice of the United States Supreme Court now endorses the Roth-Memoirs test as the measure of First Amendment protection in obscenity cases. See Miller v. California, supra, 23; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (Brennan, J., dissenting). A bare majority of those Justices have arrived at a new set of basic guidelines. Those guidelines are intended to define the permissible scope of State statutes designed to regulate works which depict or describe sexual conduct. Miller v. California, supra, 24. [Note 3] The applicable state law, "as written or authoritatively construed," must specifically define the sexual conduct whose depiction or description is interdicted. Miller v. California, supra, 24. The new basic guidelines, which also set forth a three-pronged test, call for

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the trier of fact to determine "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Emphasizing that it is not its function to propose regulatory schemes for the States, the court gave "a few plain examples" of what a State statute could define for regulation under part (b) of the new guidelines. [Note 4]

Applying the Miller standards to G. L. c. 272, Section 28A, it is manifest that Section 28A does not define the sexual conduct whose display or description is intended to be prohibited. The Miller opinion, however, recognizes that authoritative judicial construction of an obscenity statute may fulfil the constitutional requirement that the State law specify that sexual conduct which is prohibited. Some State courts in post-Miller decisions have been able to sustain obscenity statutes by concluding that previous judicial construction of the applicable statute has already provided the specificity required by the Miller case. [Note 5] Other decisions have read into the applicable obscenity statute those definitions of

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specific sexual conduct which appear in the Miller opinion (see fn. 4 above). [Note 6] Some of the decisions upholding State obscenity statutes have been made in the face of forceful dissents. [Note 7] Other courts, fewer in number, have declined to provide a judicial rescue for statutes which by their terms failed to meet the Miller requirement of specificity. [Note 8] The basic question here is what course this court should now follow.

In the absence of any legislative redefinition of obscenity, persons concerned about the application to them of Massachusetts obscenity statutes have been obliged in recent

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years to gauge the legality of their intended conduct by First Amendment standards expressed by, or anticipated from, the Supreme Court of the United States. [Note 9] During a time when First Amendment rights were expanding so as to reduce the scope of what might constitutionally be regulated as obscene, the application of new standards was not unfair to those affected by obscenity laws and no serious constitutional problems of "vagueness" were raised. We believe, however, that with the Miller decision the situation has changed.

In at least one material respect the Miller case reduces the area of First Amendment protection from that existing under the Roth-Memoirs test. [Note 10] Under the Roth-Memoirs standard there had to be an affirmative showing that the materials were "utterly without redeeming social value." See Jacobellis v. Ohio, 378 U.S. 184 (1964); "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass. 383 U.S. 413 (1966). Under the Miller test the work must lack "serious literary, artistic, political, or scientific value." Today a work not utterly without social value but of less than serious literary, artistic, political, or

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scientific value may be prohibited as obscene, whereas before it could not. [Note 11]

A review of our decisions indicates that we have not authoritatively construed Section 28A in a way which has "specifically defined" the sexual conduct whose portrayal is barred by statute. Certainly our decisions fall far short of the degree of definitiveness appearing in statutes in Oregon and Hawaii, whose definition of prohibited conduct was at least qualifiedly endorsed in the Miller opinion (supra, 24, fn. 6). Our decisions also fall far short of the "plain examples" given in the Miller opinion (see fn. 4 above). The most we have ever said was said in a negative way in a rescript opinion complying with what we viewed as the requirements of the Supreme Court of the United States. See Commonwealth v. Donahue, 358 Mass. 803 (1970) ("[n]one of the pictures, however, explicitly portrayed copulation or other sexual congress"). See also Commonwealth v. Palladino, 358 Mass. 28, 32 (1970), and Commonwealth v. Bitsocos, 361 Mass. 859 (1972), for even more general characterizations in the same vein. [Note 12] The opinion in the Donahue case was not designed as an authoritative construction of our statute (G. L. c. 272, Section 28A) so as to provide a definition of proscribed sexual conduct. The Court of Appeals for the First Circuit was correct in indicating in Literature, Inc. v. Quinn, 482 F. 2d 372, 375 (1973), that this court has not "specifically defined" (see Miller v. California, supra, at 24) those

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activities which under Section 28A may not be depicted or described. It is therefore clear that the opportunity is not fairly available to us, as it was in certain other States (see fn. 5 above), to conclude that the constitutional requirements of specificity have been met by our decisions previous to the Miller decision. [Note 13]

We decline to undertake now to furnish, even on a prospective basis, a judicial interpretation of that sexual conduct which Section 28A provides should not be portrayed. To do so would require us to engage in a function which we, perhaps more than many courts, have been traditionally reluctant to perform. It is true that, despite traditional reluctance, this court has for many years undertaken to protect such vestiges of our obscenity statutes as it could from the erosion of waves of constitutional onslaught. In doing so we have suggested that our obscenity statutes apply as far as the Federal Constitution may permit. That itself has been a standard of some uncertainty, subject to abrupt change, as the Miller case so clearly shows. It may seem strange that we appear to have abandoned the struggle just as the tide may have turned. It is, however, for that very reason that we decline further to engage in the function of saving judicially a statute which is of great ambiguity on its face. The abandonment of the Roth Memoirs test has removed the basis upon which this court has attempted to save Section 28A by judicial construction.

People are entitled to know what they may or may not do under the threat of imprisonment or fine. Our general obscenity statute does not furnish any guidance. As previously indicated, we decline to undertake the task of trying to list the specific sexual conduct whose display or description Section 28A proscribes. To do so would constitute a judicial rewriting of that statute. Thus if there is to be regulation in

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the Commonwealth in the area of the sale or showing of pornographic works to adults, it must be achieved by explicit new legislation. [Note 14]

We do not see any rational basis for treating violations allegedly committed (or a case tried) before the Miller decision, as is the situation here, differently from those taking place after that decision. In each instance Section 28A is constitutionally inadequate. Thus, although the defendants may well have had an error-free trial under the law as it existed at the time of trial, we must apply Federal constitutional principles as established by the Supreme Court of the United States at the time a case is decided by us. See Attorney Gen. v. "Tropic of Cancer," 345 Mass. 11, 18 (1962); Linkletter v. Walker, 381 U.S. 618, 622, 627 (1965).

One cautionary note should be given concerning what we have not decided. Speaking generally, G. L. c. 272, Section 28, deals with actual or intended sales, exhibitions, or distributions of certain material harmful to minors. The words "harmful to minors" have an explicit statutory definition, expressed somewhat along the pattern of the Roth-Memoirs test. Such an explicit description of prohibited conduct obviously does not suffer from the same lack of specificity found in G. L. c. 272, Section 28A, when tested by the standards of the Miller decision. Our decision should not, therefore, be construed as expressly or impliedly rendering unenforceable

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the statute concerned with the furnishing of obscene material to minors. [Note 15]

From what we have said it is apparent that the defendants are the fortuitous beneficiaries of the consequences in this Commonwealth of the decision of the Supreme Court of the United States in the Miller case.

Exceptions sustained.

Note: Chief Justice Tauro and Justices Hennessey and Kaplan join in the preceding majority opinion, and in the majority opinion in the cases Commonwealth v. Capri Enterprises, Inc., and Essex Theatre Corporation v. Police Commissioner of Boston, decided April 23, 1974.

HENNESSEY, J. (concurring). I concur as to both result and reasoning with the opinion of the court as expressed by Justice Wilkins. The United States Supreme Court, in the Miller case, ruled that the Constitution requires specificity in an obscenity statute. More particularly, the relevant sexual conduct must be specifically defined either in the wording of the statute or by authoritative judicial construction of the statute. Clearly G. L. c. 272, Section 28A, contains no such specifics in its wording. Nor have we authoritatively construed the statute. The few Supreme Judicial Court cases relied on in the dissent in Commonwealth v. Capri Enterprises, Inc., post, 179, contain only cursory, and at best ambiguous, reference to proof under the statute. Just as important, until the Miller case established a rule of community standards, everything that we said about our

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statute had to be read in the context of national standards of First Amendment protection. These national standards in turn have been so vaguely defined as to foreclose any authoritative construction of a local obscenity statute.

Every appeal deserves our most careful consideration, but there is an added and special importance in our reaching the correct results in this decision, the Capri case, supra, and Essex Theatre Corp. v. Police Commr. of Boston, post, 183. For about seventeen years confusion has reigned as to the validity and effectiveness of obscenity statutes. Decisions of the United States Supreme Court virtually halted prosecutions under such statutes. Upholding the statute here through what could only be impermissible and excessive straining on our part might add months or years of unnecessary uncertainty and confusion to the long hiatus that has already occurred. Eventually and almost certainly, in my opinion, review of these cases or other relevant cases in the Federal courts would result in a determination of unconstitutionality of the statute. See Literature, Inc. v. Quinn, 482 F. 2d 372 (1st Cir. 1973).

By our ruling today, the Legislature is made aware that the statute, G. L. c. 272, Section 28A, is no longer viable. Simultaneously, the Legislature is apprised that, in the Miller case, for the first time since the free speech-obscenity dialogue began in earnest, guidelines for a constitutionally acceptable objective standard for obscenity statutes have been established by the United States Supreme Court. Moreover, such statutes may now be construed by community, rather than national, standards.

Thus the Legislature may now at its option, without further delay or confusion, determine whether the Commonwealth should or should not have a new obscenity statute or statutes. If it decides that question affirmatively, it alone has the privilege of defining, within constitutional limits, the conduct which shall be proscribed. It is not for this court to make those decisions.

Nevertheless, if the reasoning of the three dissenting Justices of this court in the Capri case, supra, were to prevail, it would in effect require that we should make those

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legislative determinations. I respectfully suggest that these Justices are applying the same type of subjective individual judgments that some or all of the Justices of the United States Supreme Court have applied in the last two decades of judicial confusion in this area of the law. Bickel, The Supreme Court and the Idea of Progress, 50-58 (1970). The fact that an "exhibitor" or "any competent adult," as referred to in the dissenting opinion in the Capri case, may conclude that the subject matter is obscene, in the sense that it is tasteless or degrading, does not necessarily support a conclusion that those persons are or should be aware that the same matter is legally obscene within the meaning of any statute. The legal concept has been complicated by a series of United States Supreme Court decisions. These raised a mythical and mystifying national standard of First Amendment protection. They also provided First Amendment protection on the basis of social worth that was all but imperceptible in some cases. For example, in "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass. 383 U.S. 413 (1966), the court held that "Memoirs" was protected by the First Amendment, although Mr. Justice Clark summarized its total vulgarity (383 U.S. at 445-446) in a list that, for length and strength, is at least a match for the similar synopsis on which the dissent relies in the Capri case, supra.

In a long series of cases the Supreme Court has invariably, with two inexplicable exceptions, [Note Concur-1] reversed all judgments based on findings of obscenity in cases which apparently involved all types of alleged pornography. [Note Concur-2] The

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phrase "hard-core pornography," upon which the dissenters apparently rely in their reasoning, is little more than a cliche which has not been defined in any case, nor has it apparently been a premise for the affirmation of even one judgment of guilt. Even the three decisions of the Supreme Judicial Court which are relied on in the dissent in the Capri case, supra, as authoritative constructions of the statute, were all reversals of convictions. Commonwealth v. Palladino, 358 Mass. 28 (1970). Commonwealth v. Donahue, 358 Mass. 803 (1970). Commonwealth v. Bitsocos, 361 Mass. 859 (1972).

We should take notice of abundant empirical evidence that the community has tolerated increasingly permissive displays of pornographic literature and X-rated movies. Ultimate sexual acts have been depicted in scores of moving pictures and regularly shown in theatres in all of the urban communities, and many of the suburbs and rural areas, in the Commonwealth. From one such motion picture the male star received an Academy Award nomination for a performance which included repeated and explicit scenes of coitus with the female costar. Photographs of these actors, in sexual congress, also appeared in our national news magazines of widest distribution. It is not surprising if, in all these circumstances, some police and prosecutors, or the defendants in these cases before us, concluded that the national standard superimposed on our local law had reached a state of almost unlimited permissiveness. These developments of the most recent several years have not been refuted by any firm language of this court or the United States Supreme Court. Thus I cannot conclude that we have authoritatively construed our statute in the manner demanded by the Miller case.

Finally, I offer one collateral thought. Justice Kaplan's concurring opinion expresses the idea that the holdings of the Miller case and related recent cases are "probably transient." I share his suspicion. In a very few years the Supreme Court has gone from the Roth-Memoirs standard all the way to the Miller standard. In between there was a temporary reversal of direction in the Ginzburg and Mishkin

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cases, supra. Similarly, certain crucial rules relating to the right to counsel as established in United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), were all but vacated by the severe limitations of Kirby v. Illinois, 406 U.S. 682 (1972), just years later. [Note Concur-3] Likewise, the relative certainty concerning search and seizures related to automobiles, as established by Chambers v. Maroney, 399 U.S. 42 (1970), was cast into confusion by Coolidge v. New Hampshire, 403 U.S. 443 (1971), the very next year. See Commonwealth v. Haefeli, 361 Mass. 271 (1972). Certainly constitutional interpretation must respond to social change, but this duty does not explain speedy overruling of new doctrines. These turnarounds are followed by serious consequences to many people in every community. Especially in the area of constitutional-criminal law all concerned are entitled to a substantial measure of stability and predictability.

KAPLAN, J. (concurring). The latest, but probably transient, view of a majority of the Supreme Court of the United States seems to demand of a State statute on criminal "obscenity" that it should comprise specifics, thus reverting to the style of the motion picture production code sponsored by the late Will H. Hays. [Note Kaplan-1] I agree that the tired words of our statute do not have the magical property of instantly conforming their meaning to the hypothesized statute, and therefore I join in the court's opinion.

Persons with a reflective or experimental turn of mind might welcome an opportunity to observe how New England communities would carry on over a period of time without the assistance of suppressive law. The prospect is remote. The court's opinion is likely to be understood as an urgent invitation to our legislators to draft and pass the indicated statute. Therefore I think I should say that such

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an enactment would present for independent consideration a question of constitutionality. For the time being the doubt would not arise from the Constitution of the United States, for in that respect all are bound by the latest decisions of the Supreme Court; rather it would arise from the Massachusetts Declaration of Rights. In applying that fundamental document, one would have to consider whether to align oneself with those dissenting Justices of the Supreme Court who believe a State is without power to intrude on the choice of an adult who knowingly and willingly seeks out a pornographic work. According to their conception, a pornographic communication is still a communication which the free press guaranty protects at least to the extent mentioned; in that regard it does not differ from other messages that many would consider profoundly anti-social, for example, the writings of Henry George on the single tax.

If this view should prevail, our courts would be relieved of the anomalous duty of serving as literary and artistic constables, and the Commonwealth would be spared the phenomenon of judges (very few of them women) trying as official censors to assess the incitive or emetic qualities of movies or books that a considerable fraction of the population, pursuing their own tastes, desire to see or read. The reallocation of judicial resources to tasks that judges are better schooled to handle might be thought to be in itself a distinct gain.

BRAUCHER, J. (dissenting, with whom Reardon and Quirico, JJ., join). For the reasons stated in our dissenting opinion in Commonwealth v. Capri Enterprises, Inc., post, 179, we do not agree that G. L. c. 272, Section 28A, is unconstitutionally vague under the standard of Miller v. California, 413 U.S. 15 (1973). We should proceed to decide these cases, applying the Miller standard. Since the court does not consider any issues relating to the application of the Miller standard to the facts of these cases, we forbear further discussion.