Opinion
Theodore L. Sendak, Atty.Gen., Mark Peden, Deputy Atty.Gen., for appellee.
SHARP, Judge.
My concurrence in the opinion written by Judge Staton in this case, 289 N.E.2d 545, was premised primarily on Stroud v. State, Ind., 273 N.E.2d 842 (1971), as a binding precedent at this juncture in our judicial history. In considering the petition for rehearing I think that it might be helpful to examine some of the antecedents of the Stroud case.
The continuing controversy over local versus national community standards in obscenity cases began in 1957 when the Supreme Court of the United States in Rothv. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), used the words "contemporaneous community standards" as the test to be applied in determining if material appealed to the "prurient interest". However, Roth did not indicate or dictate the scope of the concept of community. It was not until 1964 in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), that Justice Brennan, joined only by Justice Goldberg, declared the scope to be "national" rather than "local" in setting the scope of "community". Justice Brennan based his reasoning on dicta by Judge Learned Hand in United States v. Kennerley, 209 F. 119 (D.C.S.D.N.Y.1913). The majority in Jacobellis was obtained only by Justices Black and Stewart concurring in separate written opinions by Justice Douglas joining Justice Black's opinion, and with Justice White concurring in the result without opinion.
When in 1966 a still divided Supreme Court of the United States coalesced the now three familiar elements of Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the language used was that of Roth's "community standard" but without reference to the "national" standard of Jacobellis. The Supreme Court of the United States has not in any subsequent decision expressly stated whether it is "national" or "local" standard or what would be the scope of either term in regard to the size of the community. Inferences pointing in both directions can be made from the decisions rendered since the Memoirs case in 1966.
The inference that the Supreme Court of the United States intends for the scope to be "national" begins with the per curiam decision in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). The unknown author of Redrup, after referring to the Memoirs test went on to note that at no time had a majority of the justices agreed on what those tests meant in measuring obscenity. The significance of Redrup as pointing to a national scope is that the Supreme Court has cited it in over thirty cases of per curiam reversal of state convictions. One such case, Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970), was one in which the Court of Appeals of Kentucky had taken the position that Redrup was not controlling since no clear majority of the Supreme Court of the United States had ever supported the principles enumerated in Memoirs. Another inference which could spring from the per curiam reversals based on Redrup is the apparent desire by the Supreme Court of the United States to limit its position as a chief censor. These reversals by the Supreme Court of the United States may also reflect an unwillingness to determine and define precisely what constitutes "community standards".
It is certainly arguable that the Supreme Court of the United States may not have meant the term "community" to be "national". The term "national" has not been used since Jacobellis and then only by Justice Brennan. Further, in no obscenity case, including Roth, has a majority joined in a decision determining what constitutes the scope of the terms used. And finally, the changed composition of the Supreme Court of the United States since Roth renders uncertain any conclusion that the scope is to be "national". Both Chief Justice Burger and Justice Blackmun indicated in dissents in Cain and in Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970), that they are in favor of a local rather than a national standard.
In Stroud, the Supreme Court of Indiana, through Chief Justice Arterburn, apparently adopted the language of Memoirs and Jacobellis at least figuratively, if not literally. However, the use of the term "national" by our Supreme Court in Stroud was not essential to its holding that by any standards or by either standard the defendant was guilty of selling obscene material. If the Supreme Court of the United States cannot be said to have definitely adopted the so-called national standard it ought not to be implied that our Indiana Supreme Court intended to go further and categorically adopt a national standard. This writer would harbor serious doubts that Chief Justice Arterburn in Stroud intended to set a more rigorous standard for the conviction in a criminal obscenity case than the required and mandated by the Supreme Court of the United States. I do not read Stroud as categorically adopting a "national standard" and freezing Indiana into such a position. If the Supreme Court of the United States should, at a future time, more clearly define the concept of "community standards" and in doing so permit a greater leeway for the states, within the federal system, to interpret it more flexibly in terms of local conditions, I do not read Stroud as an impairment on the Indiana court to do so.
For me there is much wisdom in the statement of Justice Harlan dissenting in Memoirs v. Massachusetts when he stated:
"My premise is that in the area of obscenity the Constitution does not bind the States and the Federal Government in precisely the same fashion. This approach is plainly consistent with the language of the First and Fourteenth Amendments and, in my opinion, more responsive to the proper functioning of a federal system of government in this area. See my opinion in Roth, 354 U.S. , at 505-506, 77 S.Ct. [1304], at 1319-1320. I believe it is also consistent with past decisions of this Court. Although some 40 years have passed since the Court first indicated that the Fourteenth Amendment protects 'free speech,' see Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108, the decisions have never declared that every utterance the Federal Government may not reach or every regulatory scheme it may not enact is also beyond the power of the State. The very criteria used in opinions to delimit the protection of free speech--the gravity of the evil being regulated, see Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; how 'clear and present' is the danger, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (Holmes, J.,); the magnitude of 'such invasion of free speech as is necessary to avoid the danger,' United States v. Dennis, 2 Cir., 183 F.2d 201, 212 (L. Hand, J.)--may and do depend on the particular context in which power is exercised. When, for example, the Court in Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919, upheld a criminal group-libel law because of the 'social interest in order and morality,' 343 U.S., at 257, 72 S.Ct. 725, it was acknowledging the responsibility and capacity of the States in such public-welfare matters and not committing itself to uphold any similar federal statute applying to such communications as Congress might otherwise regulate under the commerce power. See also Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513."
This federalistic thought of Justice Harlan would still appear to be a viable alternative for our nation's highest court in its consideration of this area of the law which constantly troubles our society and its judiciary.
With this comment and explanation I vote to deny the Appellee's Petition for Rehearing in this case.