Supreme Court of Wisconsin.June 3, 198096 Wis.2d 646292 N.W.2d 8076 Media L. Rep. 1458 (Approx. 13 pages)
96 Wis.2d 646
Supreme Court of Wisconsin.
STATE of Wisconsin, Plaintiff-Respondent,
v.
PRINCESS CINEMA OF MILWAUKEE, INC., Defendant-Appellant-Petitioner.
No. 78-472-CR, 78-473-CR
Argued May 6, 1980.Decided June 3, 1980.
Attorneys and Law Firms
**808*647 John H. Weston (argued), Beverly Hills, Cal., for appellant-petitioner; Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., Stephen M. Glynn and Shellow & Shellow, Milwaukee, on brief.
James H. Schaefer, Asst. Dist. Atty., argued, with whom on briefs was E. Michael McCann, Dist. Atty., Milwaukee County, on brief, for plaintiff-respondent.
Opinion
DAY, Justice.
The principal question presented for review is whether the criminal obscenity statute is unconstitutionally vague and overbroad. Sec. 944.21(1)(a), Stats. (1977). We conclude that it is overbroad and we decline to further judicially modify the statute to bring it within the strictures of the First Amendment as interpreted by the United States Supreme Court.
Between April and August 1977, twenty motion pictures were seized as evidence by the officers of the Milwaukee Police Department from the Princess Cinema, a motion picture theatre operated by the defendant Princess Cinema of Milwaukee, Inc. Search warrants authorizing seizure of the films were issued after hearings were held before a trial judge for the purpose of determining whether there existed probable cause that the films exhibited at the theatre were obscene.1
A motion to suppress the films as evidence at trial, and a motion to dismiss the prosecution, were filed by the defendant. In the motion to suppress it was asserted that the obscenity statute, sec. 944.21(1)(a), Stats. (1977) was unconstitutional on its face and as construed by this *648 Court. The trial judge in ruling on the motion, concluded that this Court's decision in State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973) adopted the constitutional standards for defining obscenity which were enumerated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and engrafted those standards onto the obscenity statute. The trial judge recognized that in formulating the standards to be applied to define obscenity, this Court in State ex rel. Chobot v. Circuit Court, supra, deviated from the Miller v. California standards. He concluded, however, that any misstatement by the Court was unintentional and refused to construe State ex rel. Chobot as intending to differ in any constitutionally significant manner from Miller v. California. The trial court concluded that the obscenity statute as interpreted by this Court was constitutional, and on that basis, denied the motion to suppress.
The defendant thereupon entered a plea of no contest to each of the twenty counts. A notice of appeal was filed from the judgment **809 of conviction and the order denying the motion to suppress. Review of an order denying a motion to suppress may be had pursuant to sec. 971.31(10), Stats. (1977) which provides:
“971.31. Motions Before Trial. . . . (10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.”
An issue addressed by the defendant only briefly in his petition to appeal is whether the unconstitutionality of the obscenity statute automatically renders the search and seizure unlawful and therefore subject to a motion to suppress. The defendant merely assumes that if the obscenity statute is unconstitutional, the materials seized under a search warrant executed according to the proper procedural standards, should be suppressed. We do not agree. In Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 2633, 61 L.Ed.2d 343 (1979) the United States Supreme Court held that the subsequent determination that an ordinance forming the basis for an arrest was unconstitutional, did not render the initial arrest and the search incident to that arrest unlawful under the Fourth Amendment. Probable cause is to be determined on the basis of information known to the officer or magistrate at the time of the arrest or search. “The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found . . ., was the product of a . . . lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule.” Michigan v. DeFillippo, 443 U.S. at 38, 99 S.Ct. at 2633 (n.3). Generally speaking, the later found unconstitutionality of the underlying substantive statute is not relevant on a motion to suppress.2 W.R. LaFave, Search *650 And Seizure, A Treatise On The Fourth Amendment, vol. l, s 3.2 (1978). The Supreme Court in Michigan v. DeFillippo, supra, drew a distinction between statutes which by their own terms authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment,3 and the statute involved in that case where its only relevance to the validity of the arrest and subsequent search was as it pertained to the “facts and circumstances” constituting probable cause. Michigan v. DeFillippo, 443 U.S. at 39-40, 99 S.Ct. at 2633.
This is not to say that the constitutionality of the substantive statute under which the defendant was arrested cannot be challenged. **810 It is simply that the motion to suppress, as a general rule, is not the proper vehicle for doing so. However, because we determine that the issue presented here can be reviewed by this Court via another route, it is not necessary for us to determine whether the interplay between the First and Fourth Amendment freedoms in this case constitutes an exception from the holding of Michigan v. DeFillippo, or whether there exist other factors which would materially distinguish the two cases. We are also mindful of the possibility, which exists in every case involving the chance that protected expression may be suppressed, that prior restraint may be implicated.
The court of appeals in an opinion published at 90 Wis.2d 543, 280 N.W.2d 323 (Ct.App.1979), held that it was not clear until the United States Supreme Court's decision in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) that an objective standard was to be applied to the determination of serious literary, artistic, political, or scientific value under Miller v. California. The court of appeals concluded that this Court retained discretion to apply community standards to the third part of the Miller test until Smith v. United States was handed down. The court of appeals then construed sec. 944.21(1)(a), Stats. to incorporate an objective standard to determine the serious literary, artistic, political, or scientific value of the work. The judgment of conviction on three counts consisting of movies shown prior to the date of decision in Smith v. United States was vacated and remanded for additional proceedings because “the defendant may have been prejudiced by the trial court's incorrect interpretation of Miller and Chobot.” 90 Wis.2d at 553, 280 N.W.2d at 328. The remaining seventeen counts were based on movies shown *652 after the decision in Smith v. United States. As to these counts the conviction was affirmed based on the court of appeals' new construction of the obscenity statute.
The defendant contends that sec. 944.21(1)(a), Stats. is unconstitutionally vague and overbroad on its face and as construed by this Court; that application of a “corrected” interpretation of the statute cannot be retroactively applied; and that in any case, the statute should not be given another judicial interpretation, but rather the obligation of redrafting a constitutionally acceptable obscenity statute should be left to the legislature. We agree that the statute is unconstitutionally overbroad and we decline to construe the statute to bring it within constitutional limits.
“944.21. Lewd, Obscene Or Indecent Matter, Pictures And Performances. (1) Whoever intentionally does any of the following is guilty of a Class D. felony:
“(a) Imports, prints, advertises, sells, has in his possession for sale, or publishes, exhibits, or transfers commercially any lewd, obscene or indecent written matter, picture, sound recording, or film; or . . .”
This statute is facially vague and overbroad and has survived constitutional scrutiny only through repeated saving judicial interpretations. **8115 As it turns out, one of our attempts to save the statute by judicial interpretation *653 is itself constitutionally deficient. Thus, we begin by acknowledging the constitutional error present in our interpretation of sec. 944.21(1)(a), Stats., in State ex rel. Chobot v. Circuit Court, supra. There is little to be gained from an attempt to rationalize or to construe that decision in a manner which would obviate the constitutional deficiency present in that case.6 The constitutional standards for assessing whether a particular item is obscene and therefore may be subject to criminal sanctions were set out in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). This three part test requires a determination:
“. . . (a) whether ‘the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. at 230, 92 S.Ct. 2245 at 2246, quoting Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. 1304, at 1311; (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.”
The third component of this test is the primary subject of controversy in the present case. In State ex rel. Chobot v. Circuit Court, this Court instructed that when assessing whether the work lacks serious literary, artistic, political, or scientific value the trier of fact was to apply contemporary community standards.7 This was clear *654 error. “Literary, artistic, political, or scientific value . . . is not discussed in Miller in terms of contemporary community standards.” Smith v. United States, 431 U.S. 291, 301, 97 S.Ct. 1756, 1764, 52 L.Ed.2d 324 (1977). The standard for assessing the third part of the Miller test is an objective one. The individual cannot be expected to anticipate whether a particular community will consider an allegedly obscene item to have serious merit under the categories enumerated in Miller. Although there was no explicit statement in Miller that the third part of the test was to be an objective one, neither was there any indication **812 that the Court intended to superimpose contemporary community standards onto this part of the test.8 “Nowhere does the opinion (in Miller ) suggest that the . . . value of sexually oriented expression is to be judged on such a parochial basis.” United States v. Heyman, 562 F.2d 316, 318 (4th Cir. 1977).
During the 1960's extending into the early 1970's, obscenity prosecutions were the source of a myriad of troubling issues touching First Amendment freedoms leading Justice Harlan to comment that “(t)he subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704-705, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225 (1968). (Harlan, J., dissenting).
But with the advent of Miller v. California, in 1973 the Supreme Court announced new standards along with a requirement of greater specificity in state obscenity statutes as written or construed, before they could withstand challenges on vagueness and overbreadth. The incorporation of contemporary community standards into the third part of the Miller obscenity formulation by this Court in State ex rel. Chobot v. Circuit Court, supra, has resulted in a construction of sec. 944.21(1)(a), Stats. in a manner which violates the overbreadth doctrine.
By assessing the serious literary, artistic, political, or scientific value of an allegedly obscene work by contemporary community standards, the obscenity statute may include within its compass, works which when viewed objectively have serious literary, artistic, political, or scientific value and are therefore not obscene under Miller. The statute as interpreted by this Court sweeps too *658 broadly, and absent another saving construction, is unconstitutional.11
Because we find the State ex rel. Chobot formulation to be overbroad we need not address the issue of vagueness in detail. The defendant does not seriously challenge the statute on vagueness grounds. It is not argued that the defendant was not on notice of what was prohibited under the statute as construed by this Court. Because we do not have the films which were the subject of this prosecution before us, and have only the summaries afforded by the criminal complaint and the hearing transcripts to determine probable cause for the seizure of the films we make no determination whether the statute was unconstitutionally vague as applied to this defendant. See, Ward v. Illinois, supra.
The contours of permissible state regulation after Miller have become clear and well established through time. The job of drafting of penal legislation is primarily one for the legislature. This Court is once again being asked to judicially amend the obscenity statute to bring it into compliance with the presently perceived standards emanating from the United States Supreme Court. See, **814United States v. 12 200-Ft. Reels Of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Ward v. Illinois, 431 U.S. 767, 97 S.Ct. 2085, 52 L.Ed.2d 738 (1977); Miller v. California, supra. We conclude, at this time, that this is a determination for the legislature.
Almost from the time of its inception as a state, Wisconsin has had a criminal obscenity statute. Chapter 139, section 11 of the Revised Statutes of 1849 provided that any printed matter, pictures, figures, or descriptions *659 containing obscene material “manifestly tending to the corruption of the morals of youth” was punishable by a fine or imprisonment in the county jail not to exceed six months. After a number of modifications, a major addition directed toward “obscene or indecent” graffiti and the public display of pictures “representing the human form in a nude or semi-nude condition” became law in 1899. Ch. 128, Laws of 1899. Again, a number of changes took place before the present statute was enacted by Chapter 696, Laws of 1955 when the entire criminal code underwent a major redrafting effort. See, Platz, The Criminal Code, 1956 Wis.L.R. 350, 377. Minor changes were again made in Chapter 173, secs. 94-97, Laws of 1977 to provide a uniform sentencing structure and to repeal the criminal provisions for mere possession of “lewd, obscene or indecent” sound recordings or motion picture films.
Our general obscenity statute provides little or no guidance as to what people can and cannot do. Although it is true that State ex rel. Chobot specifically defined the types of sexual conduct depicted which can be regulated as those which the Supreme Court set as guidelines for state regulatory schemes in Miller, there is no indication except perhaps legislative silence in the face of this construction, that this is what the legislature intended to prohibit in drafting the obscenity statute. Indeed, in face of the legislative silence over twenty-five years, and the judicial evolution of obscenity standards, it is doubtful that the original legislative intent has ever been met.
“People are entitled to know what they may or may not do under the threat of imprisonment or fine. Our *660 general obscenity statute does not furnish any guidance. . . . Thus, if there is to be regulation . . . in the area of the sale or showing of pornographic works to adults, it must be achieved by explicit new legislation.”
The course that we take today is not without precedent in our prior holdings in the obscenity area. Despite the fact that we have attempted to construe the criminal obscenity statute in a manner consistent with the constitution, we have declined to exercise this power when the regulation of obscenity was attempted through the use of declaratory judgment actions.12 In State v. I, A Woman-Part II, 53 Wis.2d 102, 119-120, 191 N.W.2d 897, 906 (1971) this Court stated:
“The statute has the laudable objective of determining obscenity without the necessity of placing a defendant in jeopardy of a criminal conviction. It attempts to prevent the dissemination of unprotected material before a crime has been committed. This court cannot, however, rewrite the statute to assure that this purpose will in all cases be attained within the constitutional limitations of due process and certainty. There is no doubt that carefully drafted legislation will accomplish this purpose, but this requires fact finding and public-policy determinations that only the legislature can furnish. The present statute presents a grave question whether the judicial interpretations of the statute can preserve its effectiveness from a public-policy viewpoint and yet conform to the constitutions of the state and nation. We invite the legislature's consideration . . ..”
As a matter of policy, we decline to further act to rectify the deficiencies in this statute. The problems of public policy and the regulation of criminal conduct are for the legislature. With the advent of Miller v. California, the outlines for specific legislation have crystalized. But the court in Miller intended merely to propose guidelines, not entire regulatory schemes for the states. The explicit recognition of this fact is found in Miller where it was stated: “We emphasize that it is not our function to propose regulatory schemes for the states. That must await their concrete legislative efforts.” Miller v. California, 413 U.S. at 25, 93 S.Ct. at 2615. We have come to realize, therefore, that when this Court decided State ex rel. Chobot, it established a regulatory scheme through a process of judicial construction. In this case, we merely decline to right our own previous efforts at construction and remand that determination to the appropriate branch of government.
*662 We emphasize that we are not simply “giving up” on the establishment of a constitutionally permissible scheme for regulating obscenity. We are recognizing that our job is one of interpreting statutes, not redrafting them. During the period of rapid change in the constitutional regulation of obscenity, statutes which were correct one year, were facially obsolete from a constitutional standpoint in the next. Our obscenity statute has been, by its very generality, subject to far ranging interpretation. The Miller standards have been in effect for over seven years and the Supreme Court in Miller set the guidelines for state and federal regulation of obscenity. This statute has been subjected to this Court's perception that the legislature and the people want an obscenity statute with these standards imposed. We feel that it is no longer our function to make this judgment. We likewise do not consider the legislative silence in this area to evince approval of this Court's prior construction, and in any case, this silence does not reflect on the legislative approval or lack thereof of a policy toward continuing to save the statute from otherwise fatal constitutional error.
We hold that because the obscenity statute as construed is constitutionally infirm under the United States Constitution, the judgment of conviction based on the obscenity statute cannot stand.
The decision of the court of appeals affirming the judgment of conviction on the seventeen counts is reversed, and that part of the decision vacating the judgment on the remaining three counts and remanding to the circuit court is vacated and the complaints are dismissed.
All Citations
96 Wis.2d 646, 292 N.W.2d 807, 6 Media L. Rep. 1458
“If . . . probable cause is to be determined on the basis of the information known . . . at the time of the . . . search, and if, as the Supreme Court has held, probable cause involves ‘the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians act,‘ then as a general matter the later-determined unconstitutionality of the statute is simply not relevant.” W. R. LaFave, Search And Seizure, A Treatise On The Fourth Amendment, vol. 1, s 3.2 (1978); see also, United States v. Bush, 582 F.2d 1016, 1019-20 (5th Cir.1978).
“We . . . construe the word ‘obscene’ in sec. 944.21(1)(a), Stats., to mean works which depict or describe sexual conduct, and (1) which taken as a whole appeal to the prurient interest in sex, (2) which taken as a whole portray sexual conduct in a patently offensive way and (3) which taken as a whole do not have serious literary, artistic, political or scientific value. Whether a work appeals to the prurient interest and whether it depicts or describes sexual conduct in a patently offensive way and whether it has serious literary, artistic, political or scientific value here to be determined by its effect upon the average person applying contemporary community standards.” State ex rel. Chobot v. Circuit Court, 61 Wis.2d at 369-370, 212 N.W.2d at 698.
“s 3. Freedom Of Speech And Press; Responsibility For Abuse; Criminal Libel. Section 3. Every person may freely speak, write and punish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.”
The First Amendment to the United States Constitution provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Fourteenth Amendment provides:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The United States Supreme Court continues to adhere to the view that obscenity is not speech, and thus is not within the protection of the First Amendment. See, Miller v. California, 413 U.S. at 23, 93 S.Ct. at 2614. This characterization has been criticized. L. Tribe, American Constitutional Law, 661-662 (1978).
We do not believe that the requirement that there be independent appellate review of the “serious value” aspect of the Miller standards as announced in Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 (1974) obviates the defect. The appellate court even when engaging in an “exercise of judgment” would still be free to apply its perception of community standards in determining whether a work has serious value.