United States Court of Appeals, Tenth Circuit.November 16, 1983721 F.2d 1281 (Approx. 23 pages)
721 F.2d 1281
United States Court of Appeals, Tenth Circuit.
M.S. NEWS COMPANY a Kansas corporation, Plaintiff-Appellant,
v.
Antonio CASADO, Mayor of the City of Wichita, Kansas; Robert C. Brown, Robert Knight, Gary Porter, and Connie Peters, members of the Board of Commissioners of the City of Wichita, Kansas, Richard LaMunyon, Chief of Police of the City of Wichita, Kansas, and John Dekker, City Attorney for the City of Wichita, Kansas, Defendants-Appellees.
No. 80–2093
Nov. 16, 1983.Rehearing and Rehearing En Banc Denied Dec. 23, 1983.
Attorneys and Law Firms
*1284 Robert C. Brown of Smith, Shay, Farmer & Wetta, Wichita, Kan. (Jack Focht, Wichita, Kan., was also on brief), for plaintiff-appellant.
Stanley A. Issinghoff, Wichita, Kan. (Thomas R. Powell, Wichita, Kan., was also on brief), for defendants-appellees.
Robert T. Stephan, Atty. Gen. of Kan., and Thomas D. Haney, Deputy Atty. Gen. of Kan., Topeka, Kan., filed a brief for the State of Kan. as amicus curiae in support of defendants-appellees.
Before SETH, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
Opinion
HOLLOWAY, Circuit Judge.
Plaintiff M.S. News Company (News), is a wholesale and retail distributor of periodicals and publications in Wichita, Kansas.1 It appeals from dismissal of its action for injunctive and declaratory relief against enforcement of a portion of a Wichita ordinance. The ordinance, Number 36–172, amended sections 5.68.150 and 5.68.155 of the Code of the City of Wichita and created 5.68.156. This section prohibits the promotion of sexually oriented materials to minors. It is the sole portion of the ordinance *1285 at issue in this action, and it is reproduced as an appendix to this opinion.
The Wichita ordinance is designed to prevent minors from being exposed to sexually oriented materials that are harmful to them. The ordinance defines “harmful to minors” and makes it an offense to display such material to minors if, as a part of the invited general public, they will be exposed to it. It further proscribes, inter alia, selling, furnishing or presenting to minors any material or performance that is harmful to them.
The controlling facts are not in dispute. By early August 1979, plaintiff News became aware of the impending passage of the subject ordinance. On August 20, News brought this action against all members of the Board of Commissioners, the Chief of Police, and the City Attorney of Wichita. It sought a declaratory judgment that Section 5.68.156 “is unconstitutional on its face and as applied,” and injunctive relief restraining the defendants from enforcing the section. The district judge promptly issued a temporary restraining order.
Defendants filed a motion to dismiss with a supporting brief claiming, inter alia, that the complaint failed to state a cause of action. News then filed a reply brief contesting the motion. The district court held a hearing to consider plaintiff's request for a permanent injunction and the defendants' motion to dismiss, heard argument, and took the matter under advisement. The judge shortly thereafter dissolved the temporary restraining order, denied the request for preliminary and permanent injunctive relief and granted defendant's motion to dismiss. Plaintiff appeals.
Plaintiff makes four main arguments on appeal, contending that the ordinance: (1) goes beyond the permissible scope of Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and is overbroad and vague both on its face and as applied;2 (2) violates the Equal Protection Clause of the Fourteenth Amendment; (3) creates a prior restraint in violation of the First Amendment; and (4) deprives defendants of their Sixth Amendment right to a jury trial. We will consider each of these contentions in turn.3
I
FACIAL OVERBREADTH AND VAGUENESS
Plaintiff News challenges the ordinance for overbreadth and vagueness. It essentially says that the realistic effect of the ordinance will be to limit, by its overbroad application, the access of adults, and minors approaching adulthood, to constitutionally permissible material. News further argues that the ordinance is vague in that it neither affords fair warning to those within its reach, nor provides explicit standards for those who enforce it. Brief of Appellant at 17.
Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), rejected a vagueness challenge to a New York statute similar to the Wichita ordinance. The Supreme Court there held that it is constitutional to proscribe the sale of “girlie magazines” to minors, where the magazines contained defined forms of sexually oriented material, even though such material was not obscene for adults. The Wichita ordinance at issue is almost identical to the *1286 statute upheld in Ginsberg. Ginsberg, supra, 390 U.S. at 645–47, 88 S.Ct. at 1283–84. Plaintiff attempts to distinguish Ginsberg by pointing out differences between the two laws.
There are two principal differences between the Wichita ordinance and the statute in Ginsberg that are relevant to the constitutionality of the Wichita ordinance on its face. First, the Wichita ordinance uses the Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity test,4 and second, it proscribes not just the dissemination of material harmful to minors, as Ginsberg did, but also the display of such material.5 We find no constitutional infirmity in the ordinance resulting from either of these changes, or in any of the prohibitions of display, sale or presentation of proscribed materials to minors.
A. Application of the Miller test
We are unable to discern any substance to plaintiff's argument that replacing the Memoirs test with the Miller test creates either an overbreadth or vagueness problem. The ordinance in Ginsberg prohibited distribution to minors of material that was “harmful to minors.” In defining “harmful to minors,” the Memoirs obscenity test was adapted so that material could not be distributed to minors if it: (1) appealed to the prurient interest of minors; (2) was patently offensive to what the adult community believed was suitable for minors; and (3) was utterly without social importance for minors. Ginsberg, supra, 390 U.S. at 646, 88 S.Ct. at 1284. The Wichita ordinance is virtually identical to that upheld in Ginsberg except that the Miller obscenity test is used rather than the Memoirs test. Although the ordinance alters the Miller test so that it can be used for determining what material is harmful to minors, this is precisely what the ordinance in Ginsberg did with the old Memoirs test. We reject the argument that the use of the Miller test *1287 rendered the ordinance overbroad or vague.6
B. The prohibitions of the ordinance protecting minors
The Wichita ordinance prohibits (a) displaying material “harmful to minors,” (b) selling, furnishing or presenting such material to minors; and (c) presenting to a minor any “performance” harmful to him. We feel that Ginsberg has already upheld all such prohibitions except that of display. We therefore focus on the overbreadth and vagueness challenges to the display prohibition.
The ordinance prohibits displaying materials harmful to minors when minors “as a part of the invited general public, will be exposed to view such material.” The ordinance provides that such material is not displayed if it is “kept behind devices commonly known as ‘blinder racks' so that the lower two-thirds of the material is not exposed to view.” We believe this provision is neither vague nor overbroad.
As noted, plaintiff News argues that the Wichita ordinance is overbroad, restricting the access of adults and minors approaching adulthood to constitutionally permissible publications. Brief of Appellant at 17. News says that as commercial enterprises seek to avoid violating the ordinance, the natural tendency will be to limit materials available for view by anyone. Id. at 13.
We disagree. First, as noted, with respect to the sale or distribution of materials “harmful to minors,” the ordinance has a clear and acceptable standard that will permit sale or distribution to adults of such materials. Second, the portion of the ordinance dealing with display of material “harmful to minors” is reasonably structured. It is true that compliance with the ordinance will to some degree restrict the viewing by adults of materials which are, as to adults, constitutionally protected. However, the restriction is reasonable and does not offend the First Amendment.
Reasonable time, place and manner regulations are permissible where the regulations are necessary to further significant governmental interests, Young v. American Mini Theatres, 427 U.S. 50, 63 & n. 18, 96 S.Ct. 2440, 2448 & n. 18, 49 L.Ed.2d 310 (1976) (plurality), and are narrowly tailored to further the State's legitimate interest. Grayned v. City of Rockford, supra, 408 U.S. at 116–17, 92 S.Ct. at 2303–04.10 We find Young, supra, instructive. In Young the plurality held that Detroit zoning ordinances providing that an adult theatre may not be located within 1000 feet of any two other adult theatres (or other “regulated uses”) or within 500 feet of a residential area, was consistent with the First and Fourteenth Amendments. The plurality recognized that this was content-based regulation but upheld it because the city had a sufficient interest in preserving the quality of urban life and the ordinance did not suppress or greatly restrict access to lawful speech. Young, supra, 427 U.S. at 63–72 & n. 35, 96 S.Ct. at 2448–53 & n. 35 (plurality). Similarly the display provision of the Wichita ordinance is a regulation based on content. We believe that it is likewise justified by the substantial governmental interest in protecting minors from exposure to harmful adult material.11See supra note 5.
Moreover, the proscription on display of material harmful to minors does not unreasonably restrict adults' access to material which is not obscene as to them.12 The *1289 ordinance permits the “display” of material harmful to minors if it is in blinder racks which conceal the lower two-thirds of the material. Thus, adults may still have some access to materials not obscene as to them, and they may purchase such material.
The portion of the Wichita ordinance proscribing display to minors is conduct plus speech because it regulates the manner in which material with a particular content can be disseminated; it does not regulate pure speech itself. Thus, there must be substantial overbreadth for the ordinance to be held overbroad on its face. We find no such infirmity. As noted, the display portion of the ordinance does not restrict minors' access to materials which they have a constitutional right to obtain. See Ginsberg, supra, 390 U.S. at 634–43, 88 S.Ct. at 1277–82. The ordinance only prohibits displaying material “harmful to minors,” and this term is defined to include only material that is obscene as to minors under the Miller test as adapted to evaluate whether material is harmful to minors. Although minors are entitled to a significant measure of First Amendment protection, Erznoznik v. City of Jacksonville, supra, 422 U.S. at 212–13, 95 S.Ct. at 2274–75;Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a narrowly drawn ordinance restricting their access to sexually oriented material does not abridge their First Amendment rights. See Ginsberg, supra, 390 U.S. at 634–43, 88 S.Ct. at 1277–82.
We therefore hold that the display provision of the ordinance is not overbroad on its face.
Furthermore, whatever imprecision is present is mitigated by the ordinance's scienter provision. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, 455 U.S. at 499, 102 S.Ct. at 1193 (“[S]cienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.”) (footnote omitted). The ordinance defines knowingly in terms almost identical to the definition approved in Ginsberg. See Ginsberg, supra, 390 U.S. at 646, 88 S.Ct. at 1284. In addition to the degree of scienter that the Constitution requires be shown to obtain a conviction for violating obscenity laws,16 the Wichita ordinance, as Ginsberg did, makes it an excuse from liability if one makes an honest mistake as to a minor's age.17
*1291 Second, we do not perceive any real danger of arbitrary enforcement. To violate the ordinance, one must display material which, taken as a whole, must fail the Miller test as applied to minors. This sufficiently constrains the discretion of the authorities. The ordinance adopts the correct standard for evaluating whether material is harmful to minors and we will not assume that the authorities will act in bad faith.
Third, we are not persuaded that the ordinance will lead citizens to forsake activity protected by the First Amendment. The ordinance is narrowly drawn within the confines of the Miller and Ginsberg standards. It provides fair warning of what is prohibited, and sufficiently constrains the discretion of the authorities. In such circumstances we do not believe it chills the exercise of First Amendment rights.
In sum, we are not persuaded to hold the Wichita ordinance invalid for vagueness.
II
EQUAL PROTECTION
The Wichita ordinance provides that it is an affirmative defense if the material or performance was “displayed, presented or disseminated to a minor at a recognized and established school, church, museum, medical clinic, hospital, public library, governmental agency, quasi-governmental agency and [if this was done] for a bona fide governmental, educational or scientific purpose.” Plaintiff News argues that the ordinance is violative of the Equal Protection Clause of the Fourteenth Amendment because only commercial establishments are subject to its sanctions.
We rejected a similar argument in Piepenburg v. Cutler, 649 F.2d 783 (10th Cir.1981). In Piepenberg a state statute prohibited exhibiting pornographic films and created an affirmative defense if their distribution “was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.” Id. at 785. We rejected the argument that this violated the Equal Protection Clause, reasoning that it was possible to conceive of justifications for the classification.
We likewise believe that the Wichita ordinance's classification must be upheld. Distinguishing between commercial and non-commercial institutions bears a rational relationship to a legitimate state interest. The Supreme Court has recognized that there are “legitimate state interests at stake in stemming the tide of commercialized obscenity....” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57, 93 S.Ct. 2628, 2635, 37 L.Ed.2d 446 (1973); see also Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (upholding zoning ordinances applicable to adult theatres or similar establishments). Commercial *1292 enterprises have the economic incentive to make sales and are therefore more likely to press the display and dissemination of material harmful to minors. Hence, making a distinction between commercial and non-commercial enterprises is sufficiently grounded in a legitimate state interest.
We conclude that the ordinance does not violate the Equal Protection Clause.
III
PRIOR RESTRAINT
Plaintiff argues that the ordinance creates an impermissible prior restraint. It contends that the threat of criminal prosecution, the substantial penalties available to a prosecutor, and the almost indefinable standards combine to create an unconstitutional prior restraint on the right to distribute their materials. Brief of Appellant at 34. We disagree.
We are mindful that the Supreme Court has held that a system of prior administrative notice of a determination of obscenity as to particular publications, with subsequent criminal prosecution for distribution possible, violated constitutional rights protected by the Fourteenth Amendment. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70–71, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963).19 Such a conclusion is not justified here, however, because there is no such prior administrative determination, nor any significant risk that one may be prosecuted for engaging in protected conduct. We cannot say that on its face the Wichita ordinance has the infirmities of a prior restraint. The standard by which materials are to be judged is neither overbroad nor vague and there have been no threats of bad faith enforcement.
*1293 We conclude that the ordinance imposes no unlawful prior restraint.
IV
TRIAL BY JURY
News also contends that the ordinance is unconstitutional because it violates the Sixth Amendment right to trial by jury. More specifically, it argues that prosecutions under the ordinance take place before the Municipal Court for the City of Wichita where trial is to the court,20 and the trial occurs without any determination on obscenity by a jury, which is essential since contemporary community standards must be applied.
The defendants respond to the jury trial argument, inter alia, by pointing to the right to a jury trial de novo on appeal in such cases. Kansas, like numerous states, has a two-tier system for adjudicating specific cases. In Kansas, “[t]he municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city.” Kan.Stat.Ann. § 12–4104 (1982). Some states provide a jury trial in each tier; others provide a jury only in the second tier but allow an accused to by-pass the first; and still others do not allow an accused to avoid a trial of some sort at the first tier before he obtains a trial by jury at the second. See Ludwig v. Massachusetts, 427 U.S. 618, 620, 96 S.Ct. 2781, 2783, 49 L.Ed.2d 732 (1976).
Under the Kansas procedure, on a plea of no contest a finding of guilty may be adjudged. Kan.Stat.Ann. § 12–4406(b) (1982). If an accused pleads guilty, the municipal judge may hear evidence touching on the nature of the case, otherwise ascertain the facts, and then may refuse or accept the plea, assess punishment and enter the proper judgment. Kan.Stat.Ann. § 12–4407. All trials in the municipal court are to the municipal judge or the municipal judge pro tem. Kan.Stat.Ann. § 12–4502. However, the accused has the right to appeal and then the case is tried de novo in the district court where trial by jury may be requested.22
*1294 The Supreme Court has said that such a procedure affords an accused “the absolute right to have his guilt determined by a jury composed and operating in accordance with the Constitution.” Ludwig v. Massachusetts, supra, 427 U.S. at 625, 96 S.Ct. at 2785. Moreover, it provides him a clean slate. Colten v. Kentucky, 407 U.S. 104, 112–19, 92 S.Ct. 1953, 1958–61, 32 L.Ed.2d 584 (1972).23 Hence we cannot agree that the decisions of the Supreme Court, considered together, call for a holding that this Kansas procedure for obscenity prosecutions is invalid. The Court's decisions in Ludwig and Colten have upheld the two-tier systems and the earlier Callan decision is distinguishable, as we have explained. See note 23 supra.
We find no violation of plaintiff News's constitutional rights under the First or Sixth Amendments in the procedure laid out for prosecution of violations of the ordinance.
V
In sum, we are not convinced that there is any substantive or procedural infirmity demonstrated in the Wichita ordinance. Accordingly the judgment is
AFFIRMED.
APPENDIX
Section 5.68.156 to ordinance number 36–172 of the Code of the City of Wichita, Kansas, provides as follows:
Displaying material harmful to minors.
(1) Definitions. Minor means any unmarried person under the age of eighteen (18) years.
*1296 ‘Harmful to Minors' means that quality of any description, exhibition, presentation or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse when the material or performance, taken as a whole, has the following characteristics:
(a) The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors; and
(b) The average adult person applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement or sado-masochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and
(c) The material or performance lacks serious literary, scientific, educational, artistic, or political value for minors.
‘Nudity’ means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering; the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state.
‘Sexual conduct’ means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person be a female, breast.
‘Sexual excitement’ means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
‘Sado-masochistic abuse’ means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
‘Material’ means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, or recording tape, video tape.
‘Performance’ means any motion picture, film, video tape, played record, phonograph or tape, preview, trailer, play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, with or without consideration.
‘Knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:
(a) The character and content of any material or performance which is reasonably susceptible of examination by the defendant, and
(b) The age of the minor; however, an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.
‘Person’ means any individual, partnership, association, corporation, or other legal entity of any kind.
‘A reasonable bona fide attempt’ means an attempt to ascertain the true age of the minor by requiring production of a driver's license, marriage license, birth certificate or other governmental or educational identification card or paper and not relying solely on the oral allegations or apparent age of the minor.
(2) Offenses. No person having custody, control or supervision of any commercial establishment shall knowingly:
(a) display material which is harmful to minors in such a way that minors, as a part of the invited general public, will be exposed to view such material provided, however, a person shall be deemed not to have “displayed” material harmful to minors if the material is kept behind devices commonly known as “blinder racks” so *1297 that the lower two-thirds of the material is not exposed to view.
(b) Sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors; or
(c) Present to a minor or participate in presenting to a minor, with or without consideration, any performance which is harmful to a minor.
(3) Defenses. It shall be an affirmative defense to any prosecution under this ordinance that:
The material or performance involved was displayed, presented or disseminated to a minor at a recognized and established school, church, museum, medical clinic, hospital, public library, governmental agency, quasi-governmental agency and persons acting in their capacity as employees or agents of such persons or organizations, and which institution displays, presents or disseminates such material or performance for a bona fide governmental, educational or scientific purpose.
(4) Penalties. Any person who shall be convicted of violating any provision of this section is guilty of a misdemeanor and shall be fined a sum not exceeding Five Hundred Dollars ($500.00) and may be confined in jail for a definite term which shall be fixed by the court and shall not exceed one (1) month. Each day that any violation of this section occurs or continues shall constitute a separate offense and shall be punishable as a separate violation. Every act, thing, or transaction prohibited by this section shall constitute a separate offense as to each item, issue or title involved and shall be punishable as such. For the purpose of this section, multiple copies of the same identical title, monthly issue, volume and number issue or other such identical material shall constitute a single offense.
At the time of the filing of this action before the district court, News was a wholesale distributor of various periodicals and publications in Wichita while a co-plaintiff, Town Crier of Wichita, Inc., was a retailer of such goods. News has since acquired the assets of Town Crier of Wichita, Inc., and is a wholesale and retail distributor of periodicals and publications. Thus, News is the only plaintiff-appellant. See Brief of Appellant at 3–4.
By dismissing plaintiff's action, the district court refused to enjoin enforcement of the newly enacted ordinance. The court held that on its face the ordinance was constitutional; the district court did not decide whether the ordinance is constitutional as applied. I R. 119. In such circumstances, we consider only whether the ordinance is constitutional on its face.
If the district court considers matters outside the pleadings, Rule 12(b) requires the court “to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56 [Fed.R.Civ.P. 56].” Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972) (per curiam); see Owens v. Rush, 654 F.2d 1370, 1377 n. 9 (10th Cir.1981); 6 J. Moore & J. Wicker, Moore's Federal Practice (Part 2), ¶ 56.11[2] (1982). Here the district court had before it matters outside the pleadings, including two affidavits in support of News' request for a temporary restraining order and a preliminary injunction. SeeII R. 1–45. We therefore review the dismissal as an order granting summary judgment.
(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.
Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted). The Wichita ordinance and the statute approved in Ginsberg both adapted the current obscenity test so it could be used to determine whether material is harmful to minors.
Plaintiff also argues that the ordinance “exceeds the rights conferred on the Government by Ginsberg v. New York.” Brief of Appellant at 10. Plaintiff argues it is inconsistent with Ginsberg to create an affirmative defense for displays that have a bona fide governmental, educational or scientific purpose. We disagree and address the equal protection issues stemming from this later. See infra Part II.
Plaintiff's contention that the ordinance is inconsistent with Ginsberg because it proscribes distribution and display of material that is not “suitable” for minors is without merit. The ordinance approved in Ginsberg and Wichita's ordinance both use this term in the same context.
We similarly reject plaintiffs' contention that the Wichita ordinance unconstitutionally expands the definition of obscenity to include “within its proscriptions ... definitions which are also incongruous with the ‘patently offensive’ element of Miller and which encompass depictions of sexual conduct which are clearly legitimate and not ‘hard core.’ ” Brief of Appellant at 13. Although the ordinance does proscribe dissemination of some material protected as to adults, the proscription applies only to dissemination or display to juveniles, not adults. Plaintiff's argument implicitly rejects the rule from Ginsberg that it is constitutional to proscribe dissemination of generally protected materials to juveniles when such materials are harmful to them. Later cases recognize that the state has a legitimate interest in preventing juveniles from being exposed to sexually oriented materials even when they are not obscene as to adults. See, e.g., New York v. Ferber, 458 U.S. 747, ––––, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 748–50, 98 S.Ct. 3026, 3039–41, 57 L.Ed.2d 1073 (1978) (plurality); Miller v. California, supra, 413 U.S. at 19, 93 S.Ct. at 2612.
One member of the plurality in Young v. American Mini Theatres, supra, would require that the regulation be no more intrusive than necessary to achieve the governmental purpose. Young, supra, 427 U.S. at 79–80, 96 S.Ct. at 2456–57 (Powell, J., concurring). The other four members of the plurality implied that the zoning ordinances might not be upheld but for the district court's finding that there were myriad locations where such theatres could be opened. Young, supra, 427 U.S. at 71–72 n. 35, 96 S.Ct. at 2452–53 n. 35 (“The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to lawful speech.”).
It is not clear if plaintiff argues that the ordinance is overbroad merely because it regulates the distribution of materials that are constitutionally protected as to adults, or whether the display provision itself is overbroad. See Brief of Appellant at 17, 20. We have already rejected the former argument, and we address the latter because we believe plaintiff raises the argument at least implicitly.
As Grayned noted, this third value is related to the first two. Grayned, supra, 408 U.S. at 109, 92 S.Ct. at 2299. Concern for this third value is unique to laws which seek to regulate First Amendment rights. The first two values are offended by any vague law. See, e.g., United States v. Salazar, 720 F.2d 1482 (10th Cir.1983) (considering the first two values from Grayned and holding that law prohibiting illegal possession of food stamps is not unconstitutionally vague).
Plaintiff also argues that the term minors is vague. We reject this contention. The Wichita ordinance defines minor to mean “any unmarried person under the age of eighteen (18) years.” The Ginsberg Court upheld a statute defining minor to be “any person under the age of seventeen years.” Ginsberg, supra, 390 U.S. at 645, 88 S.Ct. at 1283. We see no difference of constitutional magnitude between these two definitions.
Moreover, the Wichita ordinance makes it a defense to a prosecution if an honest mistake was made as to the age of the minor. This sufficiently protects commercial enterprises from whatever vagueness inheres in the definition of minor.
We note that in Ginsberg, supra, 390 U.S. at 641, 88 S.Ct. at 1281, the Court said that “[t]o sustain state power to exclude material defined as obscenity by § 484–h requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.” (emphasis added).
We do not rely on any First Amendment aspect of this case in holding the five-person jury unconstitutional. Nevertheless, the nature of the substance of the misdemeanor charges against petitioner supports the refusal to distinguish between felonies and misdemeanors. The application of the community's standards and common sense is important in obscenity trials where juries must define and apply local standards. See Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973). The opportunity for harassment and overreaching by an overzealous prosecutor or a biased judge is at least as significant in an obscenity trial as in one concerning an armed robbery. This fact does not change merely because the obscenity charge may be labeled a misdemeanor and the robbery a felony.
22–3610. Hearing on appeal. When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.
Furthermore, Ludwig also noted that to the extent that Callan may have rested on a determination that the right to a second tier jury trial was unduly burdened by a requirement that an accused be “fully tried” without a jury at the first tier, Callan was not controlling in a Massachusetts case like Ludwig because the defendant was able to circumvent trial in the Massachusetts first tier by “admitting to sufficient findings of fact.” 427 U.S. at 630, 96 S.Ct. at 2788.
We believe that the instant Kansas case is distinguishable from Callan, as was the Massachusetts case in Ludwig. The Kansas two-tier system also permits a defendant to avoid being “fully tried” at the first tier. In a Kansas municipal court a defendant can plead guilty or no contest, Kan.Stat.Ann. § 12–4406 (1982), and sentence must be imposed without unreasonable delay. Id. § 12–4507. The defendant then can appeal to the district court where he “has an absolute right to a trial de novo ...,” State v. Parker, 213 Kan. 229, 516 P.2d 153, 158 (1973), and the appeal stays “all further proceedings upon the judgment appealed from.” Kan.Stat.Ann. § 22–3609(1) (1981); see also Id.§ 12–4601 (1982). The defendant is entitled to “a trial de novo ... regardless of lack of error or the nature of his plea in the lower court.” State v. Parker, supra, 516 P.2d at 157 (emphasis added). “The defendant's right to a new trial is unrestricted in that all he is required to do to obtain it is to appeal.” Id., 516 P.2d at 158.
We feel that both grounds used in Ludwig to distinguish Callan apply here and that the Kansas procedure is supported by Ludwig.
The ordinance is uniquely subject to repetitive violation, creating the threat of substantial penalties. Under the ordinance, “[e]ach day that any violation of [the ordinance] occurs or continues shall constitute a separate offense [, and] [e]very act, thing, or transaction prohibited by [the ordinance] shall constitute a separate offense as to each item, issue or title involved....” In such circumstances, we are not inclined to rely on the “ill-defined, if not ambulatory” boundaries of the petty offense category. Duncan v. Louisiana, supra, 391 U.S. at 160, 88 S.Ct. at 1453. It is on the other grounds discussed that we uphold the ordinance.