State v. Reece

¶1(concurring with majority) — I agree with much of what Justice Utter writes in his dissent concerning the breadth of the state constitution's protection of free speech and press. As the majority opinion explains, however, obscenity has never been protected by either the state or the federal constitutions.

¶2(dissenting) — The constitutional protection of free speech is one of the noblest and most courageous foundations of our nation and our state. It is sadly ironic that this protection is being used by those who would degrade our society. However, it is in the context of determining to protect speech that we find to be demeaning and repugnant that our true commitment to the doctrine is tested.

¶3The gist of the majority's analysis is that, despite the explicit language of Const, art. 1, § 5, it does not protect expression that was the subject of a statute near the time of the ratification of our constitution. I find, in spite of my *785personal repulsion with the subject matter, that nonetheless I am mandated to follow the explicit language of our constitution to afford protection to speech on "all subjects," whether or not this provides broader protection than the United States Constitution. Therefore, I dissent.

¶4As an initial matter, we must define the issue before us. The relevant statute does not limit itself to "the interests of unwilling viewers, captive audiences, minors and beleaguered neighbors", State v. Henry, 302 Or. 510, 525, 732 P.2d 9 (1987), but instead absolutely forbids access by consenting adults to the offending material. Even a finding that RCW 9.68.140 is unconstitutional would not, as the Oregon Supreme Court stated in Henry, "rule out regulation, enforced by criminal prosecution, directed against conduct of producers or participants in the production of sexually explicit material, nor reasonable time, place and manner regulations of the nuisance aspect of such material or laws to protect the unwilling viewer or children." Henry, at 525. The issue is not whether regulation is possible, but how such materials will be regulated.

¶5Citizen action can be highly effective in curtailing the unwelcome spread of pornography. In his book, Kingdoms in Conflict (1987), Charles Colson relates a story of a successful citizen effort, at pages 262-63:

When Jack Eckerd, founder of the Eckerd Drug chain, became a Christian in 1983, he called the company president and urged him to take Playboy and Penthouse magazines out of the Eckerd stores. The executive protested, telling him the magazines amounted to several million dollars a year in business. Jack Eckerd persisted. Eventually all 1,700 Eckerd drugstores stopped carrying Playboy and Penthouse. Eckerd then wrote to the directors of other retail stores and encouraged them to do the same. When his letters went unanswered, he wrote again. [Footnote: This story is told in more detail in Jack Eckerd, Finding the Right Prescription (Old Tappan, N.J.: Revell, 1987).]

Meanwhile, the National Coalition Against Pornography was picketing and boycotting stores selling "adult" magazines. The pressure began to pay off. One by one *786Reveo, People's, Rite Aid, Dart Drug, Gray Drug, and High's Dairy Stores pulled pornography from their shelves. And finally 7-11 removed these magazines from its 4,500 stores and recommended that its 3,600 franchises do the same.

Thus, without one debate before Congress or one case entangled in the courts, the shelves of nearly 12,000 retail stores were cleared of pornography!

Playboy's lawyers, shocked at their declining circulation, charged that a letter from the Meese Commission had put coercive pressure on the stores. Maybe so. But the real impetus came from the little platoons — thousands of individuals and one courageous man who put his faith into practice in his own business.

¶6The sole question presented for this court to decide is the constitutionality of a statute that forbids at any time or place the sale to consenting adults of literature that does not comport with "a uniform vision of how human sexuality should be regarded and portrayed." L. Tribe, American Constitutional Law § 12-16, at 662 (1977).

¶7The majority purports to apply the six nonexclusive criteria of State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986) as interpretive guides to determine Const, art. 1, § 5 does not protect obscenity. A closer examination reveals that the majority's Gunwallanalysis is incorrect and reaches the wrong result.

¶8Language

¶9The majority does not even grant the express language of Const, art. 1, § 5 the dignity of a discussion, other than to state that the language is the beginning of state constitutional analysis. Instead of attempting to determine what the language of the provision means, the majority states that concentration on the language of the constitutional provision would make the other Gunwallcriteria superfluous. Majority, at 778. However, if the text of a constitutional provision is unambiguous, further construction can be unwarranted. State ex rel. Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229 (1975).

¶10Const, art. 1, § 5 provides:

*787Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.

¶11Because we are asked in this case to consider the constitutionality of a ban on certain obscene materials, the relevant inquiry is whether such speech falls within the constitutional provisions allowing persons to "freely speak" on "all subjects".1

¶12The majority correctly notes that in interpreting the words of the constitution, we should consider their common meaning. State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826, 157 A.L.R. 1049 (1945); see also State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969). Instead of doing so, however, the majority looks to the statutory context. Majority, at 778.

¶13The language of Const, art. 1, § 5 unambiguously protects speech on all subjects, which must include the subjects listed in RCW 7.48A.010. Const, art. 1, § 5 allows the citizens of this state to "freely speak" on those subjects. The relevant dictionary definitions of the terms "free" and "freely" contain the concept of being "unrestrained" or "without hindrance." Webster's Third New International Dictionary 904, 906 (1981); 4 Century Dictionary and Cyclopedia 2366, 2369 (1913). The adjective "free" modifying "speech" means "[characterized by liberty in the expression of sentiments or opinions; uttered or expressed without reserve; frank, plain-spoken." 4 Oxford English Dictionary 522 (25) (1933). In literature written shortly before the ratification of our constitution, "free" as a modifier of "speech" took the meaning "[n]ot observing due bounds, 'loose', licentious." 4 Oxford English Dictionary 522 (25)(b) (1933) (citing Thackeray and Tennyson). Because the language of Const, art. 1, § 5 is unambiguous in protecting speech, even the offensive speech listed in RCW *7887.48A.010, we need look no further in our constitutional interpretation. State ex rel. Anderson, at 191.

¶14Differences in Language

¶15The majority does not address the second Gunwallcriterion, other than to note that the language of Const, art. 1, § 5 and the first amendment to the United States Constitution differ. Majority, at 778. In fact, this court has consistently held in the most recent cases addressing this issue that the very different languages of the two constitutions require giving our constitution a broader interpretation. Bering v. Share, 106 Wn.2d 212, 245, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 93 L. Ed. 2d 990, 107 S. Ct. 940 (1987); State v. Coe, 101 Wn.2d 364, 374, 679 P.2d 353 (1984); Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981).

¶16The United States Supreme Court has determined that obscenity does not fall under the free speech protection of the First Amendment. E.g., Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Thus, under the United States Constitution, there is such a thing as "unprotected speech." The Washington Constitution, on the other hand, leaves no room for "unprotected speech" to exist. It protects speech on "all subjects". It is hard to imagine how the language of our constitution could be less unambiguous in its absolute protections of speech.

¶17Constitutional and Common Law History

¶18"The history of the adoption of a particular state constitutional provision may reveal an intention that will support reading the provision independently of federal law." Gun-wall, at 61. Before the Preamble and Bill of Rights Committee adopted the language that was to become Const, art. 1, § 7, it considered several proposals for the language and produced two formal drafts. See Utter, The Right To Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment, 8 U. Puget Sound L. Rev. 157 (1985). The language finally adopted is the *789most protective of rights to free speech of the drafts considered. State v. Rinaldo, 36 Wn. App. 86, 93, 673 P.2d 614 (1983), aff'd, 102 Wn.2d 749, 689 P.2d 392 (1984) (some of the reasoning of the Court of Appeals was questioned by the plurality).

Those hardy frontier lawyers, newspaper people and their colleagues at the 1889 constitutional convention said it as clearly as they possibly could — the right to free speech and press in the State of Washington is a privilege guaranteed to all, and so long as it is not abused is absolute. Then to insure that this right would not be tampered with by future legislatures or courts, they wrote the privilege into our state constitution.

¶19Rinaldo, at 93-94. The history behind the adoption of Const, art. 1, § 5 supports giving this provision the most liberal interpretation possible.

¶20Preexisting Law

¶21In State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), we recognized "preexisting state law" as one of the noninclusive factors that may be of benefit in determining the coverage of the Washington Constitution:

Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights. State law may be responsive to concerns of its citizens long before they are addressed by analogous constitutional claims. Preexisting law can thus help to define the scope of a constitutional right later established.

¶22Gunwall, at 61-62. The majority relies on the fact that there were statutes penalizing the distribution of obscene material before and after the ratification of the Washington Constitution (Laws of 1885, p. 122-23; Laws of 1891, ch. 69, § 24) to conclude that obscenity is not protected. This analysis is misguided.

¶23The true focus of this Gunwallfactor should be on whether the constitution responds to a concern already addressed by legislation. An example of how this analysis should apply is found in Gunwallitself. This court found the fact that this state has a long history of extending *790strong protections to telephonic communications lends strong support to extending broader protections under the state constitution than the United States Constitution for such communications. Gunwall, at 66.

¶24The majority's approach is to limit the scope of a constitutional provision through statutes that violate its explicit terms. This is surely unintended. If anything is clear it is that the constitution overrides statutes. Const, art. 27, § 2 (only laws that are not repugnant to the constitution remain in force). The fundamental strength of the constitution is that it forces us, having declared basic principles, to apply those principles uniformly, even if such a result may not be popular in some instances and even where we must nullify a statute. See Const, art. 1, § 32 (fundamental principles).

¶25The majority's analysis would seem to diminish the dignity and courage of our constitution, which was designed to protect speech even where it is repugnant to the majority of citizens. Moreover, the majority has not considered how its analysis would require us to find constitutional restrictions of free speech simply because such restrictions were part of the statutory scheme around the time of the ratification of the constitution. In fact, the logical extension of the majority's analysis, which in essence relies exclusively on the existence of statutes at the time of the ratification of the constitution as defining the scope of a constitutional protection, is that statutes enacted in the late 19th century have special immunity from constitutional challenges and can in fact control now in situations far from the intent of drafters of those statutes.

¶26As discussed above, a finding that RCW 9.68.140 is unconstitutional does not prevent regulation of the pornography industry and reasonable time, place and manner restrictions. A successful struggle against pornography can be waged without the passage of laws that effectively totally ban offensive expression.

¶27*791Vagueness as Prior Restraint

¶28The majority does not address appellants' challenge that RCW 9.68.140 and RCW 7.48A.010 are vague and thus act as an unconstitutional prior restraint against speech. A law is unconstitutional "when it forbids conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application." Burien Bark Supply v. King Cy., 106 Wn.2d 868, 871, 725 P.2d 994 (1986). Where a statute involves speech, vagueness is not tolerable. "[Standards of permissible statutory vagueness are strict in the area of free expression." NAACP v. Button, 371 U.S. 415, 432, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). The roots of the vagueness doctrine are in constitutional protections of due process. See Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967).

¶29In State v. Henry, 302 Or. 510, 732 P.2d 9 (1987), the Oregon Supreme Court considered the constitutionality of an obscenity statute under the Oregon Constitution. Although it resolved the case by determining that "all subjects" in its constitution encompasses obscenity, it also approved of the holding of the Oregon Court of Appeals that statutes defining obscenity by contemporary community standards are inherently vague:

The indeterminacy of the crime created by [the obscenity statute defined by the Millertest] . . . lies in tying the criminality of a publication to "contemporary state standards." Even in ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards.” In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishes or distributes arguably "obscene" words or pictures does so at the peril of punishment for making a wrong guess about a future jury's estimate of "contemporary state standards" of prurience.

¶30(Footnotes omitted.) State v. Henry, supra at 513. I find this analysis compelling. Equally compelling is Justice Brennan's dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 87-88, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973):

*792[E]ven the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute. The resulting level of uncertainty is utterly intolerable, not alone because it makes "[bjookselling ... a hazardous profession," but as well because it invites arbitrary and erratic enforcement of the law.

¶31(Citation omitted.)

¶32Although the United States Supreme Court has not been convinced that its obscenity definition is vague under the United States Constitution, this definition, and the definition of RCW 7.48A.010 violate the Washington Constitution, even without invoking principles of due process. Vague restraints on the freedom of speech act as prior restraints of speech. In State v. Coe, 101 Wn.2d 364, 374, 679 P.2d 353 (1984), we stated that the plain language of Const, art. 1, § 5 precludes prior restraints, leaving the State with only post-publication sanctions to punish abuse of free speech rights. One type of prior restraint is an order prohibiting publication, such as this court held unconstitutional in Coe. Even less tolerable is a prior restraint in the form of a vague statute, which necessarily results in heavy self-censorship to avoid criminal prosecution. The reason this is even less tolerable is that the materials restrained are not clearly and narrowly defined, and so there will be a broad range of materials suppressed as the publisher attempts what can only be a guess at what speech will offend community standards.

¶33I would hold that Const, art. 1, § 5 protects speech on all subjects, including the subjects listed in RCW 9.68.140 and RCW 7.48A.010. The Legislature and citizens of this state have many legitimate means to combat pornography, but a total ban on the publication or sale of materials that offend community standards is not one of them. Moreover, the *793vague definitions in RCW 7.48A.010 act as an unconstitutional prior restraint on the freedom of speech. I would reverse the convictions.

¶34Pearson, C.J., and Brachtenbach, J., concur with Utter, J.

¶35Callow, J. — I concur in Justice Utter's comments on the unconstitutionality of RCW 7.48A.010 and 9.68.140 in light of Const, art. 1, § 5. I cannot embrace the suggestion that economic coercion is acceptable as a method for suppressing the dissemination of ideas.

¶36Reconsideration denied March 23, 1989.