The petitioners, defendants in criminal proceedings presently pending in Pima county superior court, have asked this court to issue a writ of prohibition, directed to the respondent court, to halt the respective criminal prosecutions.
The petitioners were charged with violations of our obscenity statute, A.R.S. § 13-532, as amended, and subsequently filed motions to quash challenging the constitutionality of the statute. The motions were denied and these extra-ordinary writ proceedings were commenced, an appropriate vehicle for testing the constitutionality issue. Loftus v. Russell, 69 Ariz. 245, 212 P.2d 91 (1949); Canon v. Justice Court for Lake Valley Judicial District of El Dorado County, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964).
A.R.S. § 13-532, as amended, provides:
The term "obscene" is defined in A.R.S. § 13-531.01:
The petitioners' claim of unconstitutionality is directed to the sufficiency of the statutory definition of "obscene." Since the definition, they argue, does not include the "average man" test and the "utterly without redeeming social importance" test, as articulated in recent U.S. Supreme Court decisions, it suffers a constitutional infirmity. These same contentions were advanced in the case of City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966), and our Phoenix counterpart found no constitutional defect in the statutory definition of obscene, holding that neither test is a part of the definition of the word itself. Although under certain circumstances we would not consider ourselves bound by a prior decision of Division One of this court, Streenz v. Streenz, 11 Ariz.App. 10, 461 P.2d 186 (filed November 18, 1969), we find ourselves in accord with the City of Phoenix holding.
The petitioners argue, however, that the City of Phoenix decision is not in accord with the principles enunciated by our Arizona Supreme Court in State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964), wherein the court struck down, on the grounds of vagueness, the predecessor counterpart of A.R.S. § 13-532. (No legislative definition of "obscene" was set forth.) The court therein stated:
While the judiciary is duty bound to construe a statute so as to sustain its constitutionality, Shenfield v. City Court, 8 Ariz.App. 81, 443 P.2d 443 (1968); State v. Scofield, 7 Ariz.App. 307, 438 P.2d 776 (1968); Arizona Corporation Commission v. Continental Security Guards, 103 Ariz. 410, 443 P.2d 406 (1968), penal statutes which restrict the exercise of particular constitutional rights are subject to closer scrutiny as to the requisite specificity. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965). Courts, however, require only that a statute give fair warning of the proscribed conduct, i.e., the language does not have to achieve that degree of exactness which inheres in a mathematical theorem, but is sufficient if it informs a person of ordinary or average intelligence of the prohibited conduct. State v. Horn, 4 Ariz.App. 541, 422 P.2d 172 (1966); Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992 (1959), cert. den., 361 U.S. 913, 80 S.Ct. 258, 4 L.Ed.2d 184.
The problem of defining obscenity has been discussed in numerous articles and books. See, e.g., R. Fox, The Concept of Obscenity (1967); Ernst & Schwartz, Censorship: The Search for the Obscene (1964); "Obscenity: An Analysis and Statutory Proposal," Wis.L.Rev. 421 (1969); "Candor or Shame? Defining Obscenity by Statute," 38 Okl.B.A.J. 1333 (1967); M. Paulsen, The Problem of Drafting an Obscenity Statute (1961). The Oklahoma Bar Journal article points out the varying techniques of defining obscenity in the various states: (1) No definition; (2) Use of multiple synonyms; (3) As a tendency to corrupt youth; (4) As a tendency to corrupt public morals; and (5) Including Arizona, defining it in terms of the Roth rule. (Roth v. U.S., infra)
One law review article points out that the task of giving content to the term "obscene" has fallen largely to the courts:
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the U.S. Supreme Court rejected the prior standard of obscenity which allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. (Regina v. Hicklin, L.R. 3 Q.B. 360 ) In Roth, obscene material was defined as "material which deals with sex in a manner appealing to prurient interest." The court, in a footnote, stated:
As we read Roth, we note that the court distinguishes between the standards for judging obscenity and the definition of obscenity. In rejecting the Hicklin standard, the Roth-enunciated standard requires that the effect of the entire material upon the average person, applying contemporary community standards, be the criterion.
The Roth decision has been interpreted as laying down only two constitutional requirements — that the material must be judged as a whole rather than by its part and that it must be judged by its impact on average persons rather than upon the weak and susceptible. Lockhart & McClure, "Censorship of Obscenity: The Developing Constitutional Standard," 45 Minn.L.Rev. 5 (1960).
In 1966, the U.S. Supreme Court decided the trilogy of Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56; and A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (Fanny Hill case.)
In Mishkin, supra, the court discarded a contention that the term "obscene" in the New York penal statute was impermissibly vague, stating:
It went on to say:
In the Fanny Hill case, supra, Mr. Justice Brennan, with Justices Warren and Fortas concurring, stated:
It is apparent that our legislature in the wake of the Locks decision, supra, defined "obscene" in accordance with the Roth-approved definition set forth in the Model Penal Code, Tent. Draft No. 6. We have found no U.S. Supreme Court decision subsequent to Roth which has retracted, modified or overruled its approved definition of obscenity.
We are of the opinion that our statutory definition satisfies the requirements of Locks, supra, and that reference to the "average man" and "utterly without redeeming social importance" tests are not requisite to a definition of the word "obscene." City of Phoenix v. Fine, supra. Albeit we agree with petitioners that the "average man" test is not abolished by Mishkin, supra, we do not agree that it is a requisite part of the definition. The "average man" standard is the U.S. Supreme Court's answer to the question — Who is to decide what is the dominant theme of a particular book or picture or play? See Chief Judge Desmond's concurring opinion in People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681 (1961).
As to the "utterly without redeeming social value" test, we agree with the Kentucky Court of Appeals which, when the
See also Fort v. City of Miami, 389 U.S. 918, 88 S.Ct. 231, 19 L.Ed.2d 263 (1967). The U.S. Supreme Court denied a petition for certiorari to review the constitutionality of a Florida obscenity ordinance which did not include "redeeming social value" in its definition of obscenity. Justices Stewart, Black and Douglas
We are cognizant of the recent federal court decision in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Texas 1969), which struck down the Texas obscenity statute as unconstitutional for lack of inclusion of the "redeeming social value" test in its definition. See also dicta in Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.2d 152, 31 Cal.Rptr. 800; Phelper v. Decker, 401 F.2d 232 (5th Cir.1968). We do not, however, agree with its conclusion that the Roth progeny have altered the Roth-approved definition of obscenity.
In determining the degree of certainty required by due process, courts should take into account the legislature's difficulty in expressing particular concepts. State v. Scofield, supra. As stated in Roth v. United States, supra:
We believe, therefore, that our statutory definition of "obscene," applied according to the standards enunciated by the U.S. Supreme Court for judging obscenity, gives adequate warning of the proscribed conduct and affords sufficient guidelines for fair administration of the anti-obscenity statute. Henley v. Wise, 303 F.Supp. 62 (N.D.Ind. 1969); See also State v. Locks, 91 Ariz. 394, 372 P.2d 724 (1962).
KRUCKER, C.J., and HATHAWAY, J., concur.