District Attorney for the Northern District v. Three Way Theatres Corp.
District Attorney for the Northern District v. Three Way Theatres Corp.
Opinion of the Court
Three civil cases commenced pursuant to G. L. c. 272, § 30, in different counties, were consolidated and tried before a judge in the Superior Court, Middlesex County. The plaintiffs, district attorneys, each alleged that a corporate defendant was exhibiting obscene motion pictures and requested injunctive relief. The trial judge viewed the films alleged to be obscene and heard expert testimony offered by the plaintiffs and the defendants. In response to the defendants’ claims for a jury trial, he ruled that injunctive proceedings under G. L. c. 272, S 30, did not entitle either party to a jury trial as matter of right. The judge then applied the Miller test, Miller v. California, 413 U.S. 15, 24 (1973), as incorporated into G. L. c. 272, § 31, see Commonwealth v. 707 Main Corp., ante, 374, 376 n.1 (1976), decided today, and found that the films lacked any serious literary, artistic, political or scientific value and that they appealed to prurient interest. However, he found that the plaintiffs had failed to show by a preponderance of credible evidence that the films depicted sexual conduct in a patently offensive way and ruled the films not “obscene” within the definition set forth by G. L. c. 272, § 31. In reaching this conclusion he ruled that expert testimony is required concerning the type of matter that would offend the average person in Massachusetts.
We conclude that the judge erred in requiring expert testimony on the issue of “patently offensive” depictions of sexual conduct. We further conclude that G. L. c. 272, §§ 28C-31, do not violate the equal protection or due process provisions of the United States or Massachusetts Constitutions facially or as applied to these cases. Commonwealth v. 707 Main Corp., supra, 374, and Commonwealth v. Thureson, ante, 387 (1976), decided today.
1. The parties to these cases do not contest the judge’s finding that the motion pictures alleged to be obscene contain depictions of “sexual conduct” within the definition of G. L. c. 272, § 31. We hold today that this statutory definition includes only “hard core” sexual conduct as described in Miller v. California, 413 U.S. 15, 25 (1973), and Jenkins v. Georgia, 418 U.S. 153, 160 (1974). Thus, the trier of fact could constitutionally find the films to be “patently offensive,” Jenkins, supra at 161, and, once the films themselves were placed in evidence, the plaintiffs had presented a prima facie case on this issue. Kaplan v. California, 413 U.S. 115, 121 (1973). Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973).
The judge nevertheless found that the plaintiffs failed to meet their burden of proof on the issue of patent offen
Because the judge below incorrectly required expert testimony on the subject of community standards for proof of obscenity, the complaints were dismissed improperly. The judgment therefore must be reversed and the cases remanded for further proceedings consistent with this opinion.
2. We decided today that G. L. c. 272, 28C-31, are facially constitutional. Commonwealth v. 707 Main Corp., supra. The definitions of “obscene” matter and “knowledge” are neither vague nor overbroad and give adequate notice of proscribed conduct to potential defendants and law enforcement officials. The disparity of procedural protection afforded books and other matter through 28C-281 may be rationally justified and is therefore constitutionally permissible.
For the above reasons, the judgment in these cases is reversed and the cases are remanded to the Superior Court for proceedings not inconsistent with this opinion.
So ordered.
After reviewing the statutes’ definitions and procedural protections to ensure that the statutory scheme adequately protects First Amendment values, we examine the classification óf matter into books and all other matter for a rational basis only.
Dissenting Opinion
dissenting, refers to his dissenting opinion in Commonwealth v. 707 Main Corp., ante, 374, 386 (1976), decided this day.
Reference
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- District Attorney for the Northern District vs. Three Way Theatres Corp. & Others (And Two Companion Cases)
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- 17 cases
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- Published