Smith v. State

¶1William F. Smith was convicted of distributing obscene matter, a Class D felony.1 We reverse, concluding the statute in question, Ind.Code 35-30-10.1-1 et seq., was unconstitutionally applied in that the photograph 2 in question-involving a depiction of mere nudity-is not obscene under the appropriate constitutional standard.

¶2In essence, the State contends that offending matter, consisting of a black and white 3" X 5” photo of a naked and apparently young girl, depicts obscene “sexual conduct” in light of the following statutory definition of obscenity set out in IC 35-30-10.1-1:

“(c) A matter or performance is ‘obscene’ if:

(1) The average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;

*653(2) The matter or performance depicts or describes in a patently offensive way, sexual conduct; and

(3) The matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

¶3The State further relies on IC 35-30-10.1-l(d)(iii), which broadly defines “sexual conduct” as including “exhibition of the uncovered genitals of a person under sixteen [16] years of age.”

¶4Without considering, as Smith contends, whether such statute is void for “overbreadth” because it effectively bans nudity as obscene contrary to the holding of the United States Supreme Court in Erznoznik v. City of Jacksonville, (1975) 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, we conclude that in the instant case, at least, the conviction was unlawful because the statute was applied so as to encompass mere nudity.

¶5In this regard, we observe that where, as here, a fundamental right of expression is arguably being threatened, it is the duty of this Court to consider the threshold question of whether the allegedly offensive matter is in fact obscene under an appropriate constitutional test. As was stated by the United States Supreme Court in its opinion in Jenkins v. Georgia, (1974) 418 U.S. 153, 160, 94 S.Ct. 2750, 2754, 41 L.Ed.2d 642, discussing Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419:

“Not only did we there say [in Miller] that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of Constitutional claims when necessary,’ 413 U.S., at 25 [93 S.Ct., at 2615], but we made it plain that under that holding ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct....’ Id., at 27 [93 S.Ct., at 2616].” (Emphasis added.)

¶6Whatever may in general be considered pornography or “hard core” obscenity under the test thus established by the United States Supreme Court, it does seem clear, pursuant to that Court’s guidelines, that “nudity alone is not enough to make material legally obscene.” Jenkins v. Georgia, supra, 418 U.S. at 161, 94 S.Ct. at 2755. And see, e. g., nudist magazine cases such as Sunshine Book Co. v. Summerfield, (1958) 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (per curiam), in which the Court held nudist magazines available to the general public were not obscene for purposes of federal postal legislation, despite the appearance therein (as noted by the lower court) of “photographs of naked men, women, and children,” and, further, despite a determination by the Post Office Department fact — finder that such magazines could not be legally distributed. Sunshine Book Co. v. Summerfield, (D.C.Cir.1957) 249 F.2d 114.

¶7As noted above, the photograph in the instant case involves nothing more than nudity, in that it depicts neither sexually provocative gestures, nor any close-up of the genital region. In light of such fact, we believe the photograph fails even to fall within the standard defined by IC 35-30-10.1-1(c), supra, since such nudity by itself does not appeal to the “prurient interest in sex” or depict sexual conduct in a patently offensive way, even when one takes into account the broad definition of “sexual conduct” which the statute purports to impose pursuant to IC 35 — 30—10.1—l(d)(iii), supra.

¶8In so holding, we believe that without doubt, anyone who abuses a child to obtain a photograph such as that here at issue should be vigorously prosecuted for the despicable crime which he commits.3 We simply hold that individuals may not constitutionally be sanctioned merely for the distribution of a photo depicting such nudity. Whether the statute is impermissibly vague, as well, is a question which need not be here *654decided. See generally, Ford v. State, (1979) Ind.App., 394 N.E.2d 250, 256 (Garrard, P. J., dissenting). Similarly, in light of our conclusion the photograph itself may not be considered obscene as a matter of First Amendment law, we do not believe this Court need address, in the instant case, the applicability of Article 1, § 9 of our Indiana Constitution, where it is stated “[n]o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”4 (Emphasis added.)

¶9We reverse and order a judgment of not guilty.