The principal question presented for review is whether the criminal obscenity statute is unconstitutionally vague and overbroad. Sec. 944.21(1) (a), Stats. 1977. We conclude that it is overbroad and we decline to further judicially modify the statute to bring it within the strictures of the First Amendment as interpreted by the United States Supreme Court.
Between April and August 1977, twenty motion pictures were seized as evidence by the officers of the Milwaukee Police Department from the Princess Cinema, a motion picture theatre operated by the defendant Princess Cinema of Milwaukee, Inc. Search warrants authorizing seizure of the films were issued after hearings were held before a trial judge for the purpose of determining whether there existed probable cause that the films exhibited at the theatre were obscene.
A motion to suppress the films as evidence at trial, and a motion to dismiss the prosecution, were filed by the defendant. In the motion to suppress it was asserted that the obscenity statute, sec. 944.21(1) (a), Stats. 1977, was unconstitutional on its face and as construed by this
The defendant thereupon entered a plea of no contest to each of the twenty counts. A notice of appeal was filed from the judgment of conviction and the order denying the motion to suppress. Review of an order denying a motion to suppress may be had pursuant to sec. 971.31 (10), Stats. 1977, which provides:
Although the statute does not expressly refer to pleas of no contest, this court has stated that except as to collateral effects, a plea of no contest is equivalent to a plea of guilty, see, Cross v. State, 45 Wis.2d 593, 599, 173 N.W.2d 589 (1970), and we have reviewed an order denying a motion to suppress pursuant to sec. 971.31 (10), Stats., even when the defendant has entered a plea
An issue addressed by the defendant only briefly in his petition to appeal is whether the unconstitutionality of the obscenity statute automatically renders the search and seizure unlawful and therefore subject to a motion to suppress. The defendant merely assumes that if the obscenity statute is unconstitutional, the materials seized under a search warrant executed according to the proper procedural standards, should be suppressed. We do not agree. In Michigan v. DeFillippo, 443 U.S. 31, 40 (1979), the United States Supreme Court held that the subsequent determination that an ordinance forming the basis for an arrest was unconstitutional, did not render the initial arrest and the search incident to that arrest unlawful under the Fourth Amendment. Probable cause is to be determined on the basis of information known to the officer or magistrate at the time of the arrest or search. "The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found. . ., was the product of a . . . lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule." Michigan v. DeFillippo, 443 U.S. at 38 (n. 3). Generally speaking, the later found unconstitutionality of the underlaying substantive statute is not relevant on a motion to suppress.
This is not to say that the constitutionality of the substantive statute under which the defendant was arrested cannot be challenged. It is simply that the motion to suppress, as a general rule, is not the proper vehicle for doing so. However, because we determine that the issue presented here can be reviewed by this court via another route, it is not necessary for us to determine whether the interplay between the First and Fourth Amendment freedoms in this case constitutes an exception from the holding of Michigan v. DeFillippo, or whether there exist other factors which would materially distinguish the two cases. We are also mindful of the possibility, which exists in every case involving the chance that protected expression may be suppressed, that prior restraint may be implicated.
The court of appeals in an opinion published at 90 Wis.2d 543, 280 N.W.2d 323 (Ct. App. 1979), held that it was not clear until the United States Supreme Court's decision in Smith v. United States, 431 U.S. 291 (1977), that an objective standard was to be applied to the determination of serious literary, artistic, political, or scientific value under Miller v. California. The court of appeals concluded that this court retained discretion to apply community standards to the third part of the Miller test until Smith v. United States was handed down. The court of appeals then construed sec. 944.21(1) (a), Stats., to incorporate an objective standard to determine the serious literary, artistic, political, or scientific value of the work. The judgment of conviction on three counts consisting of movies shown prior to the date of decision in Smith v. United States was vacated and remanded for additional proceedings because "the defendant may have been prejudiced by the trial court's incorrect interpretation of Miller and Chobot." 90 Wis.2d at 553. The remaining seventeen counts were based on movies shown
The defendant contends that sec. 944.21(1) (a), Stats., is unconstitutionally vague and overbroad on its face and as construed by this court; that application of a "corrected" interpretation of the statute cannot be retroactively applied; and that in any case, the statute should not be given another judicial interpretation, but rather the obligation of redrafting a constitutionally acceptable obscenity statute should be left to the legislature. We agree that the statute is unconstitutionally overbroad and we decline to construe the statute to bring it within constitutional limits.
Sec. 944.21(1) (a), Stats. provides:
"(a) Imports, prints, advertises, sells, has in his possession for sale, or publishes, exhibits, or transfers commercially any lewd, obscene or indecent written matter, picture, sound recording, or film; or . . ."
This statute is facially vague and overbroad and has survived constitutional scrutiny only through repeated saving judicial interpretations.
". . . (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
The third component of this test is the primary subject of controversy in the present case. In State ex rel. Chobot v. Circuit Court, this court instructed that when assessing whether the work lacks serious literary, artistic, political, or scientific value the trier of fact was to apply contemporary community standards.
We must next address the effect of this erroneous interpretation on the constitutional efficacy
A vague statute, by comparison, is one which operates to hinder free speech through the use of language which is so vague as to allow the inclusion of protected speech in the prohibition or to leave the individual with no clear guidance as to the nature of the acts which are subject to punishment. Nowak, Rotunda, Young, Constitutional Law, 726 (1978). The problems of vagueness and overbreadth in statutes, although raising separate problems,
During the 1960's extending into the early 1970's, obscenity prosecutions were the source of a myriad of troubling issues touching First Amendment freedoms leading Justice Harlan to comment that "[t]he subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. City Of Dallas, 390 U.S. 676, 704-705 (1968). (Harlan, J., dissenting).
But with the advent of Miller v. California, in 1973 the supreme court announced new standards along with a requirement of greater specificity in state obscenity statutes as written or construed, before they could withstand challenges on vagueness and overbreadth. The incorporation of contemporary community standards into the third part of the Miller obscenity formulation by this court in State ex rel. Chobot v. Circuit Court, supra, has resulted in a construction of sec. 944.21(1)(a), Stats., in a manner which violates the overbreadth doctrine.
By assessing the serious literary, artistic, political, or scientific value of an allegedly obscene work by contemporary community standards, the obscenity statute may include within its compass, works which when viewed objectively have serious literary, artistic, political, or scientific value and are therefore not obscene under Miller. The statute as interpreted by this court sweeps too
Because we find the State ex rel. Chobot formulation to be overbroad we need not address the issue of vagueness in detail. The defendant does not seriously challenge the statute on vagueness grounds. It is not argued that the defendant was not on notice of what was prohibited under the statute as construed by this court. Because we do not have the films which were the subject of this prosecution before us, and have only the summaries afforded by the criminal complaint and the hearing transcripts to determine probable cause for the seizure of the films we make no determination whether the statute was unconstitutionally vague as applied to this defendant. See, Ward v. Illinois, supra.
The contours of permissible state regulation after Miller have become clear and well established through time. The job of drafting of penal legislation is primarily one for the legislature. This court is once again being asked to judicially amend the obscenity statute to bring it into compliance with the presently perceived standards emanating from the United States Supreme Court. See, United States v. 12 200-Ft. Reels Of Film, 413 U.S. 123 (1973); Ward v. Illinois, 431 U.S. 767 (1977); Miller v. California, supra. We conclude, at this time, that this is a determination for the legislature.
Almost from the time of its inception as a state, Wisconsin has had a criminal obscenity statute. Chapter 139, section 11 of the Revised Statutes of 1849 provided that any printed matter, pictures, figures, or descriptions
Our general obscenity statute provides little or no guidance as to what people can and cannot do. Although it is true that State ex rel. Chobot specifically defined the types of sexual conduct depicted which can be regulated as those which the supreme court set as guidelines for state regulatory schemes in Miller, there is no indication except perhaps legislative silence in the face of this construction, that this is what the legislature intended to prohibit in drafting the obscenity statute. Indeed, in face of the legislative silence over twenty-five years, and the judicial evolution of obscenity standards, it is doubtful that the original legislative intent has ever been met.
"People are entitled to know what they may or may not do under the threat of imprisonment or fine. Our
The course that we take today is not without precedent in our prior holdings in the obscenity area. Despite the fact that we have attempted to construe the criminal obscenity statute in a manner consistent with the constitution, we have declined to exercise this power when the regulation of obscenity was attempted through the use of declaratory judgment actions.
"The statute has the laudable objective of determining obscenity without the necessity of placing a defendant in jeopardy of a criminal conviction. It attempts to prevent the dissemination of unprotected material before a crime has been committed. This court cannot, however, rewrite the statute to assure that this purpose will in all cases be attained within the constitutional limitations of due process and certainty. There is no doubt that carefully drafted legislation will accomplish this purpose, but this requires fact finding and public policy determinations that only the legislature can furnish. The present statute presents a grave question whether judicial interpretations of the statute can preserve its effectiveness from a public policy viewpoint and yet conform to the constitutions of the state and nation. We invite the legislature's consideration. . . ."
Other states have likewise refused to judicially modify their obscenity statutes, to bring vague and overbroad statutes within the constitutional guidelines announced by Miller. See, e.g., State v. Wedelstedt, 213 N.W.2d 652 (Ia. 1973); Stroud v. State, 261 Ind. 58, 300 N.E.2d 100 (1973); Mohney v. State, 261 Ind. 56, 300 N.E.2d 66 (1973); Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290
As a matter of policy, we decline to further act to rectify the deficiencies in this statute. The problems of public policy and the regulation of criminal conduct are for the legislature. With the advent of Miller v. California, the outlines for specific legislation have crystallized. But the court in Miller intended merely to propose guidelines, not entire regulatory schemes for the states. The explicit recognition of this fact is found in Miller where it was stated: "We emphasize that it is not our function to propose regulatory schemes for the states. That must await their concrete legislative efforts." Miller v. California, 413 U.S. at 25. We have come to realize, therefore, that when this court decided State ex rel. Chobot, it established a regulatory scheme through a process of judicial construction. In this case, we merely decline to right our own previous efforts at construction and remand that determination to the appropriate branch of government.
We hold that because the obscenity statute as construed is constitutionally infirm under the United States Constitution, the judgment of conviction based on the obscenity statute cannot stand.
By the Court. — The decision of the court of appeals affirming the judgment of conviction on the seventeen counts is reversed, and that part of the decision vacating the judgment on the remaining three counts and remanding to the circuit court is vacated and the complaints are dismissed.
"We . . . construe the word `obscene' in sec. 944.21(1) (a), Stats., to mean works which depict or describe sexual conduct, and (1) which taken as a whole appeal to the prurient interest in sex, (2) which taken as a whole portray sexual conduct in a patently offensive way and (3) which taken as a whole do not have serious literary, artistic, political or scientific value. Whether a work appeals to the prurient interest and whether it depicts or describes sexual conduct in a patently offensive way and whether it has serious literary, artistic, political or scientific value are to be determined by its effect upon the average person applying contemporary community standards." State ex rel. Chobot v. Circuit Court, 61 Wis.2d at 369-370.
The First Amendment to the United States Constitution provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Fourteenth Amendment provides:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."