Dillingham v. State

¶1concurring:

¶2I concur in the judgment of the Court because I agree that the evidence was not sufficient to sustain the conviction. Although it is clear that appellant sold the newspaper containing the offending cartoon, the evidence did not establish the corpus delicti — that the cartoon was obscene. The case is confounding because in the usual concept of the word the cartoon is obscene. An impartial jury of appellant’s peers did in fact find it obscene and I have little doubt but that a reasonable man, so often called upon in the criminal law, even though cautious and prudent as he is, would so consider it. Left to his own devices he would be inclined to apply the dictionary definition of obscene. Certainly a crude drawing of a judge, sitting on the bench, his judicial robes askew, the fly of his pants open, his genitalia exposed, his large penis in *701full erection grasped in his hand in the act of masturbation, with the double-entendre caption “HE’ COMM D’ JUDJE” (sic)1 is offensive to accepted standards of decency or modesty, is indecent, is repulsive to the senses, is lewd, is loathsome,2 and especially so when hawked to the general public on the public street. But what may be obscene by application of a dictionary meaning of obscene is not necessarily what is obscene by application of the constitutional interpretation of the word. The Supreme Court has established that a State may not constitutionally inhibit the distribution of material as obscene unless 1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; 2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and 3) the material is utterly without redeeming social value, emphasizing that the three elements must coalesce, and that no such material can be proscribed unless it is found to be utterly without redeeming social value. This test of obscenity arose from the definition in Roth v. United, States, 354 U. S. 476, as reiterated in Jacobellis v. Ohio, 378 U. S. 184, elaborated in Ginzburg v. United States, 383 U. S. 463, adjusted in Mishkin v. New York, 383 U. S. 502 and summarized in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” (Fanny Hill), 383 U. S. 413. The opinions in those cases were rendered with no real unanimity among the members of the Court and have left the law of obscenity in a deplorable state. Jaeobellis is illustrative. The judgment of the Court — that the material was not obscene — was announced by Mr. Justice Brennan. He delivered an opinion in which only Mr. Justice Goldberg joined. He reiterated the Rothtest. Mr. Justice White merely concurred in the judgment. Mr. Justice Black, joined by Mr. Justice Douglas, concurred in the judgment and for reason restated his view, shared *702by Mr. Justice Douglas, that freedom of the press and speech safeguarded by the First Amendment and made obligatory on the States by the Fourteenth Amendment preclude censorship in whatever form. Mr. Justice Stewart concurred in the judgment. But he had come to believe that “under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.” He did not attempt to define further the kinds of material he understood to be embraced within that shorthand description, stating, “[A]nd perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” 378 U. S. at 197. I observe that it would be rather difficult for any court on this basis to determine whether material was hard-core pornography; such determination would have to be based on whether Mr. Justice Stewart would know the material to be hardcore pornography when he saw it. And Chief Justice Warren in his opinion asked, “But who can define ‘hardcore pornography’ with any greater clarity than ‘obscenity’?” 378 U. S. at 201. The Chief Justice joined by Mr. Justice Clark, dissented. Because he felt that “no government — be it federal, state, or local — should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile”, there must be a rule of reason. The Court in Rothattempted to provide such a rule. 378 U. S. at 200. But the Chief Justice would commit the enforcement of this rule to the appropriate state and federal courts, and he would accept their judgments made pursuant to the Rothrule. He would supply “a sufficient evidence” standard of review —“requiring something more than merely any evidence but something less than ‘substantial on the record [including the allegedly obscene material] as a whole.’ … This is the only reasonable way I can see to obviate the necessity of this Court’s sitting as the Super Censor of all the obscenity throughout the Nation.” 378 U. S. at 202-203. Mr. Justice Harlan also dissented. He would dis*703tinguish between the Federal Government and the States. As to the former, he would apply the Rothstandards as amplified in his opinion in Manual Enterprises, Inc. v. Day, 370 U. S. 478. As to the latter he would make the federal test one of rationality. “I would not prohibit them from banning any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material.” 378 U. S. at 204. On that basis he felt that the State acted within permissible limits in condemning the film. What we have discussed with regard to the opinions in Jacobellisis with respect only to the various notions of the Justices as to the basic meaning of the First Amendment guarantee of free speech and press. As shall be pointed out, there were also differences expressed in the opinions as to the meaning of terms used in the Rothtest itself. It is not surprising that Mr. Justice Black observed: “No one, including this Court, can know what is and what is not constitutionally obscene … under this Court’s rulings.” 3 In any event it is the Rothtest, as set out according to our understanding of it in Donnenberg v. State, 1 Md. App. 591, 598, which must be applied in determining whether or not material is obscene. Except for hardcore pornography, which is such that no other proof, other than the viewing of it is required to determine that it is obscene since it speaks for itself and screams aloud for all to hear that it is obscene, see Levin v. State, 1 Md. App. 139 and Donnenberg v. State, supra, at 600, I am constrained to conclude that it is practically impossible for the State to meet the burden of proof required of it to show that material is obscene. This is because of the nature of the three elements which must coalesce for material to be obscene, the manner of proving them,, and the scope of appellate review with regard to them.

¶3The first element is that the dominant theme of the *704material taken as a whole appeals to a prurient interest in sex. The key word is “prurient”. This adjective is defined in The American Heritage Dictionary of the English Language (1969) as “1. Obsessively interested in improper matters, especially of a sexual nature. 2. Characterized by such an interest; prurient thoughts. 3. Arousing or appealing to such an interest; prurient literature.” Thus that the material involves sex is not enough. It must .arouse an obsessive interest in improper matters of a sexr ual nature. “Prurient” derives from the Latin pruriens, present participle of prurire, to itch, yearn for, be lascivious. So in Roth v. United States, supra, note 20 at 487, material which deals with sex in a manner appealing to prurient interest is characterized as “material having a tendency to excite lustful thoughts.” The pertinent part ■of the definition in Webster’s New International Dictionary (Unabridged, 2d ed. 1949) is given: “… Itching; longing; uneasy with desire or longing; of persons, having itching, morbid or lascivious longings; of desire, ■curiosity, or propensity, lewd …

¶4The second element is that the material is patently offensive because it affronts contemporary community ■standards relating to the description or representation of sexual matters. It is patent that the community standards must.be ascertained before it can be determined whether ■or not the material affronts them. But there is no majority of the Supreme Court, disclosed by the opinions to this time, who are in agreement as to whether “community” means national, local or some other geographical designation. Mr. Justice Brennan in his opinion in Jacobellisdid not see how any “local” definition of “community” ■could properly be employed in delineating the area of expression that is protected by the Federal Constitution. 378 U. S. at 193. Expressly rejecting that the constitutional question of obscenity is to be determined in each ■case by the standards of the particular local community from which the case arises, he said: “[T]he constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is after all *705a national Constitution we are expounding.” 378 U. S. at 195. Three justices, in Jacobellis, including Chief Justice Warren, indicated that it should be a local community. Four justices remained silent on the issue. The Chief Justice in his opinion stated that he believed that “there is no provable ‘national standard’ ” and said that “perhaps there should be none.” He observed: “At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to define one.” He felt that when the Court in Roth v. United States, 354 U. S. 476, said that obscenity is to be defined by reference to “community standards”, it meant community standards, not a national standard. I also feel that there is no provable national standard. Communities throughout the Nation are diverse and I can see no sound reason why a standard adopted by one community must be forced on another community even though, as the Chief Justice recognized and accepted, “such a ‘community’ approach may well result in material being proscribed as obscene in one community but not in another.” 378 U. S. at 200. The designation of certain acts as crimes has never been uniform throughout the States. But is the local community to be the State? Or should “community” for the purpose of a standard for obscenity be further broken down so as to consist of separate areas within the State? Conceivably what affronts the standards of a rural community in a State may not affront the standards of one of its big city communities. The mores and morals of the one community may be substantially different than those of the other. I simply point out that we are in the position of not only lacking an answer to the question as to what the Supreme Court means by “community” but that there are directly conflicting opinions among the justices as to what “community” means. How can the element be proved when the terms in which it is stated are not defined?

¶5I have further difficulty with “community standard”, be it national or local. I am in accord with Judge Learned Hand’s thoughts in United States v. Kennerley, 209 F. *706119, 121 (D.C.S.D.N.Y. 1913) as quoted in the Brennan opinion in Jaeobellis, 378 U. S. at 192-193. A community-standard is “the average conscience of the time.” “Obscene” indicates “the present critical point in the compromise between candor and shame at which the community may have arrived here and now.” Thus the precise morals of an age and place are not embalmed; “while they presuppose that some things will always be shocking to the public taste, the vague subject matter is left to gradual development of general notions about what is decent.” But the Rothtest does not allow a gradual development of general notions about what is decent. It prescribes what is obscene and by so doing it establishes the community standard. It permits no compromise between candor and shame arrived at freely by the community but foists a standard on the community by telling it what it cannot prohibit. I know of no way to determine a community standard than by ascertaining what the community permits. “[T]he community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates.” Opinion of Mr. Justice Harlan, concurring in part and dissenting in part, Smith v. California, 361 U. S. 147, 171. Now the community must tolerate what the Rothtest says it cannot prohibit and this sets the standard. I am persuaded that much of the pornography so apparent today in movies, legitimate theatre, literature and the personal conduct of individuals appears to be accepted by the community, not because it is decent to the average conscience of the time, but because the constitutional definition of obscenity obliges the community to accept it. In short, the standard is established by the test and the test can be applied only with relation to the standard.

¶6The third element is that the material is utterly without redeeming social value. “Utterly” permits of no degree; it means “completely; absolutely; entirely” 4 and *707“to an absolute or extreme degree: to the full extent: … altogether, … fully, thoroughly, totally.” 5 One is hard pressed to find material that can be said to be utterly without redeeming social value. But see Levin v. State, supra, and Lancaster v. State, 7 Md. App. 602. And it may have some redeeming social value even though it in fact offends contemporary community standards relating to the description or representation of sexual matters and even though, or perhaps, because, it appeals to a prurient interest in sex. Obscenity is excluded from the constitutional protection only because it is “utterly without redeeming social importance”, and “[t]he portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.” Roth v. United States, supra, at 484. Mr. Justice Brennan said in Jaeobellis: “It follows that material dealing with sex in a manner that advocates ideas, … or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.” 378 U. S. at 191 (citations omitted; emphasis supplied).

¶7With regard to the manner of proving the three elements which must coalesce before a State may prohibit material as obscene, the Court of Appeals has stated that ordinarily neither the judge who may sit on the circuit court nor the judges of the appellate court would be qualified to determine whether the elements or any of them are absent as to given material without enlightening testimony, for judges are not literary experts or historians or philosophers. Sanza v. Board of Censors, 245 Md. 319, 330; Dunn v. Board of Censors, 240 Md. 249, 255. This enlightening testimony must come from expert witnesses.

*708“The average person, however, is certainly not qualified to give expert testimony in this area. The fact that he might have a degree in education, sociology or theology does not, per se, make him qualified; nor does the mere fact that he is a social worker, a probation officer, a teacher, a priest, minister or rabbi. Something more is required. He need not, of course, be an authority but there must be an affirmative showing [and an opportunity to cross-examine thereon] that he is possessed of some special and sufficient knowledge and information, however acquired, which would elevate his opinion above the realm of conjecture, speculation or personal reaction, in respect of any one of the three elements of the test promulgated in Rothand expanded most recently in Fanny Hill. His knowledge and information may have been acquired in his business or in his profession or it might be the by-product of an avocation, sport or hobby. He may have sought it assiduously or he may have absorbed it casually. … The term ‘expert’ has many lights and shadows. It can denote a man who is recognized authority and, perhaps as accurately, a fellow who once went to the city. At what point between those-two extremes he will be allowed to express an opinion on the witness stand will be for the trial judge to decide in the first instance. But whatever his status in life may be, his qualifications can not be assumed; they must be established by evidence. The quality or quantity of that evidence occasionally may require some adjustment, depending upon the exigencies of the moment, and in such circumstances the trial judge will need to exercise the full measure of his judgment, skill and discretion.” Hewitt v. Board of Censors, 243 Md. 574, 585-586.

¶8Ordinarily whether a witness is qualified to express an *709opinion on the subject as to which he is called to testify, is a matter for the trial court to pass upon in the first instance and the court’s ruling will not be reversed unless it is shown to have been based upon an error of law or to have been the result of an abuse of judicial discretion. Yudkin v. State, 229 Md. 223. “In obscenity litigation, however, this Court will be required to scrutinize more closely the rulings of the trial judge with respect of the qualifications and competency of witnesses offered as experts. … The trial judge must be mindful, therefore, of our obligation to assess his rulings in this regard in light of their objective correctness instead, merely, of determining whether he has, or has not, abused his discretion or that he is in error as to the law.” Hewitt v. Board of Censors, supra, at 582-583. That persons who qualify as experts under Hewittare hard to come by is shown by the detailed discussion in the Hewittopinion of the witnesses offered as experts who testified in that case. Eight were found by the Court as not qualified to express an opinion as an expert. The Court felt that four others “might in appropriate circumstances, be able to qualify as expert witnesses in the area of obscenity.” But it found it unnecessary to decide whether they, or any of them, were so qualified, because their testimony did not support the position that the material was obscene. In Sanza v. Board of Censors, supra, the Board adduced a number of witnesses. The Court of Appeals found that only two were qualified as experts in their particular field under the requirements set forth in Hewitt.6

¶9*710In Williams v. State, 5 Md. App. 450, we traced the history of appellate review in this jurisdiction of the sufficiency of the evidence in criminal cases. We noted how the question comes before us in jury and non-jury cases and we set out the test to be applied in determining whether or not the evidence was sufficient to sustain the conviction. In Jacobellis, however, the Brennan opinion expressly rejected the contention that the determination whether material was obscene “can be treated as a purely factual judgment on which a jury’s verdict is all but conclusive, or that in any event the decision can be' left essentially to state or lower federal courts, with [the Supreme Court] exercising only a limited review such as that needéd to determine whether the ruling below is supported by ‘sufficient evidence’. … Since it is only ‘obscenity’ that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law. … Our duty admits of no ‘substitute for facing up to the tough individual problems- of constitutional judgment involved in every obscenity case.’ ” 378 U. S. at 187-188. The opinion reaffirmed the principle that in obscenity casés the Court had to make an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected. Id. at 190. The Court of Appeals and this Court have recognized the obligation to make an independent constitutional judgment on the facts of such cases. Sanza v. Board of Censors, supra; Donnenberg v. State, supra. What is meant when we say baldly, as is said in the opinion of the Court in the instant case, that “the reviewing *711court has the obligation to make an independent, reflective constitutional judgment on the facts?” The Supreme Court recognizes the obligation whenever a claim of a constitutionally protected right is involved. See Bachellar v. State of Maryland, 90 S. Ct. 1312, 1313. It said in Fiske v. State of Kansas, 274 U. S. 380 (1927) at 385: “And this Court will review the finding of facts by a State court where a Federal right has been denied as a result of a finding shown by the record to be without evidence to support it; or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.” In Pennekamp v. State of Florida, 328 U. S. 331, 335, the Court said:

“The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibilty, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. When the highest court of a state has reached a determination upon such an issue, we give most respectful attention to its reasoning and conclusion but its authority is not final. Were it otherwise the constitutional limits of free expression in the Nation would vary with state lines.”

¶10In Stein v. People of the State of New York, 346 U. S. 156, the Court said, at 181-182:

“Of course, this Court cannot allow itself to be completely bound by state court determina*712tion of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals. Mr. Justice Brandéis, for this Court, long ago warned that the Fourteenth Amendment does not, in guaranteeing due process, assure immunity from judicial error. … It is only miscarriages of such gravity and magnitude that they cannot be expected to happen in an enlightened system of justice, or be tolerated by it if they do, that cause us to intervene to review, in the name of the Federal Constitution, the weight of conflicting evidence to support a decision by a state court. …

A jury and the trial judge — knowing local conditions, close to the scene of events, hearing and observing the witnesses and parties — have the same undeniable advantages over any appellate tribunal in determining the charge of coercion of a confession as in determining the main charge of guilt of the crime. When the issue has been fairly tried and reviewed, and there is no indication that constitutional standards of judgment have been disregarded, we will accord to the state’s own decision great and, in the absence of impeachment by conceded facts, decisive respect.”

¶11In Blackburn v. State of Alabama, 361 U. S. 199, it noted, note 5 at 205: “It is well established, of course, that although this Court will accord respect to the conclusions of the state courts in cases of this nature [involving the voluntariness of a confession], we cannot escape the responsibility of scrutinizing the record ourselves.” It held: “After according all the deference to the trial judge’s de*713cisión which is compatible with our duty to determine constitutional questions, we are unable to escape the conclusion that Blackburn’s confession can fairly be characterized only as involuntary.” At 205. In Edwards v. South Carolina, 372 U. S. 229, the state courts held that the petitioners’ conduct constituted breach of the peace under State law. The Supreme Court said: “[W]e may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record.” It found clear that “in arresting, convicting and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.” At 235. In Haynes v. State of Washington, 373 U. S. 503 the Court found it well settled that the duty of constitutional adjudication resting upon it requires that the matter of a federal right be the subject of an independent determination by it. It said, at 515-516:

“While, for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness, we cannot avoid our responsibilities by permitting ourselves to be ‘completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding.’ … As state courts are, in instances such as this, charged with the primary responsibility of protecting basic and essential rights, we accord an appropriate and substantial effect to their resolutions of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings. This is particularly apposite because the trial judge and jury are clos*714est to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony. But … we cannot be precluded by the verdiet of a jury from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process.”

¶12And see Cox v. State of Louisiana, 379 U. S. 536, note 8 at 545. I think that the effect of the opinions of the Supreme Court is that when a violation of a constitutional right is asserted and properly before us on appeal the clearly erroneous rule as to the lower court’s judgment on the evidence, in a non-jury case, and, the rule that the trial court did not err in permitting the case to go to the jury if there was any evidence or rational inferences therefrom on which the jury could find the accused guilty beyond a reasonable doubt, in a jury case, are not appropriate with regard to the constitutional question. Rather we must resolve the matter by our own independent appraisal of the entire record, including the alleged obscene material, and in so doing we must of necessity weigh the evidence and judge the credibility of the witnesses. And when the question is whether material is obscene, we must make our judgment in the light of testimony of witnesses we are satisfied are qualified as experts on the subject of their testimony.

¶13Making my independent judgment from an examination of the whole record here, I have no difficulty in concluding that the dominant theme of the material taken as a whole does not appeal to a prurient interest in sex. The material was not designed for and primarily disseminated to a clearly defined deviant sexual group but to the public at large. I think it clear that the cartoon and the text accompanying it were not such as to arouse an obsessive interest in improper matters of a sexual nature,, or to produce in the average person an itching or a longing or to make him uneasy with a sexual desire or longing. The evidence was simply not sufficient to estab*715lish that the material had even a tendency to excite lustful thoughts. I have serious doubt that the witnesses produced by the State were shown on the record to be qualified as experts as to the elements of obscenity but even if they were, their testimony was not sufficient to show that the dominant theme of the material appealed to a prurient interest in sex. This determination alone would be good reason to reverse the conviction; one of the elements necessary to establish constitutional obscenity has not been proved.

¶14I cannot determine from the record whether or not the material affronts contemporary community standards relating to the description or representation of sexual matters. The State, as the opinion of the Court points out, did not prove what the contemporary community standards are, either national or local. Appellant adduced some evidence that particular material was permitted in the local community and other parts of the country but I do not feel that this evidence was sufficient to prove contemporary community standards. It is not possible to determine that the material here affronted contemporary community standards when the standards themselves are not delineated. Thus the second element was not proved and this alone would be good reason to reverse the conviction.

¶15It may be that any criticism of a public official cannot be said to be utterly without social importance. I point out, however, that although the shield of free speech and press protects false as well as true statements critical of public officials, if the false statements are malicious lies the shield is removed. See The A. S. Abell Company v. Barnes, 258 Md. 56 (1970). The opinion of the Court “cannot overlook the important fact the Free Press was making criticisms which, at least on their face, are protected by the constitutional right of free speech.” It is true that the State did not prove or even attempt to prove that the dominant theme of the material — that the judge abused his powers, particularly in cases relating to sexual matters due to his own sexual preoccupation and *716therefore was unfit for office — was a malicious lie, but I think that the opinion of the Court places entirely too much emphasis on the redeeming social value of the material. I strongly feel that the material should be considered for what it is — a vile and malicious personal attack on Pugh, J. Even though, from the record, it may not be said to be utterly without social importance, to dignify it even by referring to the ideas expressed by such men as Copernicus, Galileo and Darwin is to me utterly absurd.

¶16I observe that this Court could not consider its inquiry foreclosed by the verdict of the jury even if no claim of the violation of a constitutional right were involved. I agree that not the cartoon alone, but the cartoon in conjunction with the entire newspaper and other relevant outside considerations were to be considered in determining whether or not the cartoon was obscene. That being so the evidence went to the jury on instructions that were patently incorrect. The court charged:

“When we get to the question of considering the cartoon, it has been argued in the case that the cartoon can be considered in and of itself without reference to the printed material on page 9 which surrounds the cartoon. It has also been argued and contended that the cartoon must be considered in relationship to or in context with the printed material on page 9. I advise you that it is up to you, as members of the jury, to decide whether or not the cartoon can be considered separate and apart from the printed text material surrounding it, or whether or not it has to be considered in context with the material. It is a question for you, the jury, to decide. You may consider the cartoon in and of itself, you may consider it in context with the material.”

¶17■This allowed the jury to determine the obscenity vel non of the cartoon without regard to the text, the newspaper *717as a whole or “other relevant outside considerations” even if the jury found that the cartoon and the text were related. This clear error in the charge was material to appellant’s rights and compels reversal in any event.

¶18As the Supreme Court was composed in the recent past, as has been indicated herein, two members “have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their obscenity. A third has held to the opinion that a State’s power in this area is narrowly limited to a distinct and clearly identifiable class of material [hard-core pornography]. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless [the three elements herein discussed are proved]. … Another Justice has not viewed the ‘social value’ element as an independent factor in the judgment of obscenity.” Redrup v. State of New York, 386 U. S. 767 (per curiam, 1967). Nevertheless, it appears that a majority of the members of the Court then and, from all indications a majority of the members of the Court as it is now constituted, agree that obscenity is not within the area of constitutionally protected speech or press,7 except that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Stanley v. State of Georgia, 394 U. S. 557, 568. Since the dissemination of obscene material may be constitutionally inhibited, I feel that the States desiring to do so should have a fair opportunity within reasonable rules to suppress such material in actions criminal or civil, in personam or in rem. The present rules of the Supreme Court do not afford this opportunity and the Court does not seem inclined to come to grips with the matter. Redrup v. New York, Austin v. Kentucky and Gent v. Arkansas were decided in one opinion, 386 U. S. 767, and *718judgments in each were reversed. In Redrupthe defendant was convicted of selling obscene books; in Austin the conviction was for offering obscene literature for sale, in Gentthe State court declared certain magazines obscene, enjoined their distribution and ordered their surrender and destruction. With no factual description of the content of the material given in the opinion, but noting that in none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles; that in none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it; and that in none was there evidence of the sort of “pandering” the Court found significant in Ginzburg v. United States, supra, the Court held that whichever of the various constitutional views of its members “is brought to bear upon the cases before us, it is clear that the judgments cannot stand.” 386 U. S. at 771. Mr. Justice Harlan, joined by Mr. Justice Clark, dissented, remarking that by ruling that the materials could not constitutionally be adjudged obscene by the States, the Court was disposing of them on the issue that was deliberately excluded from review. He thought the dispositions did not reflect well on the processes of the Court. 386 U. S. at 772. Of late a majority of the Court have relied on Redrup in summarily setting aside state findings that material was constitutionally obscene. In each of Cain v. Kentucky, 90 S. Ct. 1110, 23 March 1970, Walker v. Ohio, 7 CrL 4064, 15 June 1970 and Hoyt v. Minnesota, 7 CrL 4075, 29 June 1970, the per curiam opinion of the majority simply said, “The judgment is reversed. Redrup v. New York, 386 U. S. 676, 87 S. Ct. 1414, 18 L.Ed. 2d 515.” In CainMr. Chief Justice Burger and Mr. Justice Harlan dissented. The Chief Justice’s view was that “we should not inflexibly deny to each of the States the power to adopt and enforce its own standards as to obscenity and pornographic materials; States ought to be free to deal with varying conditions and problems in this *719area.” Mr. Justice Harlan reaffirmed his position set out in his opinions in Rothand Jaeobellis. In Walker the same Justices dissented for substantially the same reasons. The Chief Justice pointed out that the trial court, endeavoring to apply the standards articulated by the Supreme Court, held that the materials were obscene, resting its conclusion on a finding that the three elements of Rothhad been proved. The Ohio appellate court refused to disturb that judgment. “Yet today the Court reverses, citing only Redrup.” He dissented from such a summary disposition not only because of the reasons expressed in Cain, “but also because I find no justification, constitutional or otherwise, for this Court’s assuming the role of a supreme and unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal. That is not one of the purposes for which this Court was established.” In Hoyt Mr. Justice Blackmun, with whom the Chief Justice and Mr. Justice Harlan joined, dissented. He pointed out, as did the Chief Justice in Walker, that the trial court endeavored to apply the standards articulated by the Supreme Court and reached a conclusion that the materials were obscene and that six of the seven Justices on the State appellate court held the materials obscene as a matter of law, citing Redrup and other decisions of the Supreme Court. He could not agree that the State trial court and the State appellate court were “so obviously misguided in their holding that they are to be summarily reversed on the authority of Redrup.” For him the development of the state law of obscenity in the constitutional sense was still in the unsettled stage. He found himself generally in accord with the views of Mr. Justice Harlan as expressed in Roth, Jaeobellis and Fanny Hill and with those of the Chief Justice in Cainand Walker.

¶19I would urge the Supreme Court to come to grips with the obscenity issue and make some order out of the chaos it has created. The State law of obscenity in the constitutional sense should be settled. It is high time the Supreme Court did so for the common good.