COMMONWEALTH vs. 707 MAIN CORP.

HENNESSEY, C.J. A judge of the District Court of Fitchburg, in August, 1974, found the defendant guilty on two complaints charging violations of G. L. c. 272, Section 29, the criminal obscenity statute. The complaints were issued for violations which allegedly occurred on July 5, 1974, and on July 11, 1974. They involved the same subject matter, the motion picture film entitled "Deep Throat." The defendant appealed the convictions to the Superior Court.

On December 17, 1974, a jury trial on both complaints commenced in the Superior Court. The defendant filed as to both complaints motions to dismiss which were denied and exceptions were duly noted.

At the close of the Commonwealth's case, which included a showing of the motion picture before the jury, the defendant moved for directed verdicts on both complaints. The motions were denied and exceptions duly noted. The defendant presented no evidence and rested at the conclusion of the Commonwealth's case. On December 18, 1974, the jury returned a verdict of guilty on each complaint.

The defendant makes no contention that the jury were not warranted in concluding that the motion picture "Deep Throat" was obscene, and the uncontroverted summary in the record as to the content of the motion picture confirms the correctness of this approach. However, the defendant contends that its motions for dismissal and for directed verdicts were improperly denied for three reasons. First, a prior civil proceeding against this defendant under G. L. c. 272, Section 30, collaterally estopped the Commonwealth from proceeding criminally under G. L. c. 272, Section 29. Second, G. L. c. 272, Sections 28C-31, are facially unconstitutional because the disparity in procedural protections afforded books and other materials violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Third, G. L. c. 272, Sections 28-31, are facially unconstitutional

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because the overbroad and vague statutory definitions of obscenity and knowledge violate the First Amendment to the United States Constitution and the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution.

We conclude that the Massachusetts obscenity statutes, G. L. c. 272, Sections 28C-31, as appearing in St. 1974, c. 430, are constitutional facially and as applied to this case. [Note 1] We

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further conclude that there was no error in the denial of the defendant's motion to dismiss and motions for directed verdicts. The judgments therefore must be affirmed.

1. Estoppel.

We turn first to the defendant's contention that the judgment of the Superior Court in a proceeding against it pursuant to G. L. c. 272, Section 30, collaterally estopped the criminal proceedings below. After a trial on the merits in October, 1974, the judge refused to enjoin this defendant and two other defendants from showing "Deep Throat" in their movie theatres because the plaintiff district attorneys had failed to prove that the matter was obscene. The plaintiffs appealed from the judgment and in an opinion decided today we reverse the judgment. District Attorney for the N. Dist. v. Three Way Theatres Corp., post, 391 (1976). The criminal trial and conviction occurred while the appeal of the civil proceeding was pending.

The United States Supreme Court has suggested that State law determines the collateral effect of prior findings of nonobscenity in subsequent proceedings. Miller v. California, 413 U.S. 15, 34 n.14 (1973). As a general rule, Massachusetts has subscribed to the doctrine of res judicata for the same cause of action between the same parties or those in privity with them and to the doctrine of collateral estoppel for separate causes of action. Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148 (1920). It can be argued that the mere taking of an appeal from the prior judgment, as occurred in this instance, has no effect on the operation of these principles. [Note 2] However, that reasoning

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is not apposite here, because we conclude that the obscenity statutes themselves are controlling as to this issue.

By specifically providing that the Section 30 proceeding is in addition to and not a condition precedent to a Section 29 criminal proceeding, the Legislature indicated its desire to leave as many procedural and remedial options open to prosecutors as possible. It established a civil proceeding which would provide notice of potential criminal liability to disseminators of matter alleged to be obscene, while reserving for law enforcement officials the right to use criminal proceedings as a primary enforcement tool when necessary. In addition, it provided for concurrent use of civil and criminal proceedings so that courts could enjoin further acts in possible or proven violation of c. 272, Section 29.

In this case public officials used the two types of enforcement proceedings concurrently. The same acts, commercial showings of "Deep Throat" in early July, 1974, formed the bases for both proceedings. Thus, the defendant's reliance on the civil judgment in its favor played no role in its allegedly criminal conduct. [Note 3] Nor did public officials

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harass the defendant, successful in one forum, with a succession of suits which involved lengthy, expensive, and repetitive litigation. Both trials were completed within six months of the allegedly illegal acts. Rather, these public officials proceeded both to prosecute the theatres for showing a movie they thought clearly violated Section 29 and to enjoin the movie's further public availability.

Thus the Legislature, making enforcement through concurrent use of civil and criminal proceedings available to prosecutors, did not intend that the first proceeding to reach judgment would estop further action in the second proceeding. Such an estoppel effect would make concurrent proceedings meaningless. In addition, we note that common sense indicates that we should give no estoppel effect to a judgment we reverse today against these criminal proceedings which resulted in error-free judgments.

2. Equal Protection.

Next we turn to the defendant's contention that G. L. c. 272, Sections 28C-31, violate the equal protection clause of the United States Constitution and so are unconstitutional facially and as applied in this case. The statutory scheme requires a prior civil proceeding under Sections 28C-28I to determine whether a book is obscene as a condition precedent to the criminal prosecution of a person for the dissemination of an obscene book. Decrees under Section 28 constitute conclusive evidence on the issue of criminal knowledge. Disseminators of other matter can be prosecuted criminally without a prior civil hearing to determine if the matter in question is obscene. As a result, books and their disseminators receive greater procedural protection than other materials and their disseminators. The defendant maintains that this mode of regulation bears no relationship

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to the compelling object of the statute, is not the least restrictive means of attaining its object and, therefore, violates the equal protection provisions of the Federal and State Constitutions. This argument assumes that strict scrutiny is the appropriate standard by which to review this statutory scheme. We disagree.

This court affords statutes a presumption of constitutionality, upholding a statutory classification if any rational argument supports it, unless the statute affects a fundamental right. Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974). The standards applicable to statutes affecting fundamental rights are those used by the defendant. See Commonwealth v. O'Neal, 367 Mass. 440, 444 (1975); Roe v. Wade, 410 U.S. 113, 155 (1973). However, since obscenity does not constitute constitutionally protected speech, Roth v. United States, 354 U.S. 476, 485 (1957), statutes regulating obscenity do not purport to affect the fundamental rights of speech and expression. Nevertheless, because a fine line separates obscenity from constitutionally protected expression, statutes regulating obscenity must be limited in their scope, Miller v. California, 413 U.S. 15, 23-24 (1973), and "appellate courts [should] conduct an independent review of constitutional claims when necessary" to protect First Amendment values. Id. at 25. [Note 4]

The equal protection claims asserted by the defendant in this case do not involve First Amendment values. The classifications distinguish between species of materials, not

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between protected and unprotected expression. As discussed below, the procedural protections afforded disseminators of "other matter" are constitutionally adequate. Contrast McKinney v. Alabama, 424 U.S. 669, 673 (1976). Thus, the ability to litigate the line drawn between obscenity and protected speech is retained. In addition, the statutory definition of obscenity (unprotected expression) meets the definitional requirements of Miller v. California, 413 U.S. 15, 23-26 (1973), as clarified in Jenkins v. Georgia, 418 U.S. 153, 160-161 (1974). The statutes apply only to depictions of sexual conduct described therein. See G. L. c. 272, Section 31.

Having decided that the obscenity definition and procedures are adequate to protect constitutional values, we apply our traditional rational basis test, see Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 544-545 (1974), to decide whether the disparity of procedural protection afforded books and other materials violates equal protection ideas. Many arguments related to the time and expense involved in Section 28 proceedings could explain the disparity of procedural routes established. For example, since in rem proceedings do not allow speedy removal from the public domain of obscene matter, it is possible that the Legislature decided against their use where obscene movies are involved because movies can be made quickly available to large segments of the public. Hence the statutory distinction between books and other matter may have a rational basis and is therefore constitutional.

3. Due Process: Overbreadth; Vagueness.

Finally, we turn to the defendant's contentions that G. L. c. 272, Sections 28C-31, facially and as applied to this defendant, violated the due process provisions of the United States and Massachusetts Constitutions. We hold that this statutory scheme meets the minimum constitutional requirements for procedural protection of First Amendment values, that the statute, on its face and as applied here, is not overbroad in its definition of obscene matter or of criminal knowledge, and that the statutory

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definition of obscenity is sufficiently specific to provide adequate notice as to proscribed conduct.

The proceedings, or combinations thereof, available under G. L. c. 272, Section 29 and Section 30, afford defendants therein constitutionally adequate procedural protections. [Note 5] A judicial determination in an adversary proceeding on all issues is available in these proceedings. Thus, the necessary sensitivity to freedom of expression is assured. McKinney v. Alabama, 424 U.S. 669, 674 (1976). Freedman v. Maryland, 380 U.S. 51, 58 (1965). Furthermore, G. L. c. 272, Section 30, mandates extraordinary speed in trial and decision making where injunctive restraints are involved, minimizing any deterrent effects from potentially erroneous preliminary injunctions. See Freedman at 58-59.

This statutory scheme is not overbroad in its proscription of dissemination of "obscene matter" or its definition of "knowledge." See G. L. c. 272, Section 31, and note 1, supra. Obscene matters must depict "sexual conduct" which G. L. c. 272, Section 31, defines in words which encompass only "hard core" sexual conduct as specifically described in Miller v. California, 413 U.S. 15, 25 (1973), and Jenkins v. Georgia, 418 U.S. 153, 160 (1974). Such a depiction to be found obscene in addition must meet a three-pronged test set out in G. L. c. 272, Section 31, which parallels almost precisely the test established as constitutionally adequate in Miller, supra at 24. Because the statutory proscription applies only to depictions of sexual conduct which lie outside the area entitled to First Amendment protection it is not overbroad.

The statutory definition of the "knowledge" required for a criminal conviction under G. L. c. 272, Section 29, includes a knowledge of the contents of the matter disseminated. As thus construed it is not overbroad. The Legislature has made a conscientious and diligent effort to draft a statute which conforms to the constitutional requirements as defined

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in recent Supreme Court decisions. As early as 1959 that Court required knowledge of contents for criminal liability. Smith v. California, 361 U.S. 147, 153 (1959). In Hamling v. United States, 418 U.S. 87 (1974), decided as our present statute was under consideration, the Supreme Court elaborated on the scienter requirement of Smith, explaining that a defendant need not know that the matter disseminated was legally obscene as long as he had knowledge of its contents and its general character. Id. at 123. [Note 6] The Massachusetts definition of "knowledge" in G. L. c. 272, Section 31, see supra note 1, emphasizes that knowledge of legal obscenity is not required. It does not dispense, however, with the constitutional requirement that a defendant have knowledge of the matter's contents and general character before a criminal conviction for its dissemination may be obtained. Without evidence of such knowledge a criminal case will not pass the directed verdict stage.

The statutory scheme of G. L. c. 272, Sections 28C-31, is not unconstitutionally vague in its proscription of dissemination of obscene matter, because its definitions of "obscene" matter and "sexual conduct" (see supra note 1) provide reasonably ascertainable standards of guilt. In order to meet due process standards, statutory language must convey a sufficiently definite warning to potential defendants through standards which establish boundaries which will guide judges and juries adequately in most cases. Roth v. United States, 354 U.S. 476, 491-492 (1957), cited with approval in Hamling v. United States, 418 U.S. 87, 111 (1974). The requirement that matter disseminated depict such hard core sexual conduct as specifically defined in Section 31 and the delineation of constitutionally required standards by which the triers of fact must determine whether said hard core sexual conduct is obscene provide adequate notice of potential liability to the matter's disseminators

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and law enforcement officials. See Miller v. California, 413 U.S. 15, 24-27 (1973).

Furthermore, the standards which guide the triers of fact in the determination of obscenity protect the First Amendment rights of potential and actual defendants by minimizing any chilling effects inherent in obscenity regulation. See Miller, supra at 24. Because First Amendment rights carry especially high value in our society, we now elaborate the standards set forth in the Section 31 definition of "obscene" (noting their essential conformity to those required by Miller, supra at 24) in order that triers of fact and the public generally may know what expression is constitutionally protected and what expression is obscene.

First, matter is not obscene unless "taken as a whole it . . . appeals to prurient interest of the average person, applying the contemporary standards of the commonwealth." G. L. c. 272, Section 31. This phraseology varies slightly, but not significantly, from the Miller requirement that "`the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest." Id. at 24. To decide this question of fact, the triers of fact must look at the matter depicting hard core sexual conduct as a whole and see whether its dominant theme is one which goes substantially beyond customary limits of candor in appealing to a shameful or morbid interest in sex. See Miller, supra at 30-31; Model Penal Code Section 207.10(2) (Tent. Draft No. 6, 1957), cited in Roth v. United States, at 487 n.20.

The triers of fact must use an average citizen of Massachusetts today, not a particularly susceptible or particularly insensitive one, as a norm for this determination, as long as the matter at issue is not directed specifically to a deviant sexual group. See Miller, supra at 33. See also Mishkin v. New York, 383 U.S. 502, 508-509 (1966). Triers of fact may not use their own views as appropriate Commonwealth norms, but may use their knowledge of the views of average people in their own community as an appropriate norm for deciding if matter "appeals to prurient interest." See Hamling, supra at 104, 105. They may consider

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expert testimony on the subject of Statewide standards, if any is offered in evidence, but also may disregard such evidence because the matter at issue may be per se sufficient evidence for a finding of prurience in most cases. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973).

Second, even though a matter depicts hard core sexual conduct which appeals to prurient interest, it is not obscene unless "taken as a whole it . . . depicts or describes sexual conduct in a patently offensive way." Although G. L. c. 272, Section 31, expressly applies the Statewide standard only to questions of prurience, the Legislature clearly intended that the Commonwealth standard should apply also to questions of patent offensiveness. Indeed this question can be answered only with reference to contemporary Commonwealth norms. See "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass., 383 U.S. 413, 418 (1966). Consequently, triers of fact must decide whether a Massachusetts citizen of average susceptibilities would be repelled by depictions in the matter at issue. No expert affirmative evidence is necessary on this subject, Paris, supra at 56, although such evidence, if offered, may be considered.

Third, even though material appeals to prurient interest and is patently offensive, it cannot be obscene constitutionally if "taken as a whole it . . . [has] serious literary, artistic, political or scientific value." G. L. c. 272, Section 31. Miller, supra at 34. Material dealing with sexual conduct in a manner which advocates ideas, which contributes to or illustrates scientific discussion, or which adds to the general body of art and literature in our culture is protected by the First and Fourteenth Amendments to the United States Constitution. See Miller, supra at 34; "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass., supra at 419 n.7. [Note 7] Therefore, appellate courts examine decisions on this subject more closely in order to

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ensure that First Amendment protection of ideas, however unpopular, is maintained. In addition, although no evidence beyond the material itself is necessary to prove obscenity, expert testimony has more relevance to this prong of the standard than to the other two prongs, because cultural, ideological and scientific values, unlike community norms, are not necessarily within the understanding of triers of fact. In deciding whether material is constitutionally protected, the triers of fact should look to the work as a whole to see whether it adds significantly to our aids in learning, whether it shows imagination and skill in its execution, whether it exercises the right to influence public policies and affairs of State, or whether it assists in the exploration for or discussion of scientific knowledge.

The application of this obscenity standard as to depictions of sexual conduct as defined in Section 31 neither infringes nor chills the exercise of First Amendment rights. The statutory scheme, therefore, meets the requirements of the Fourteenth Amendment to the United States Constitution.

Judgments affirmed.

KAPLAN, J. (dissenting). Concurring in Commonwealth v. Horton, 365 Mass. 164, 177-178 (1974), and dissenting in part (with Tauro, C.J.) in Revere v. Aucella, 369 Mass. 138, 148, 149-150 (1975), I intimated my views on the constitutionality of legislation like that at bar. If it be assumed that a majority of the Supreme Court of the United States could be assembled to support the validity of the present statute under the Federal Constitution, I would hold nevertheless that it was void under the Massachusetts Declaration of Rights. I need not repeat the considerations brought forth in dissents in the Supreme Court cases which seem to me to apply as well under our own fundamental document. [Note Kaplan-1]