State v. Todd 296 So. 2d 296

BARHAM, Justice.

Relator, Darrel Eugene Todd, has been found guilty and sentenced under a charge of possession, sale and exhibition of obscene material, in violation of R.S. MilOó.1 We granted writs of certiorari, prohibition and mandamus.2 On December 3, *2971973, under the mandate of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419 (1973), and companion cases, this Court held R.S. 14:106(A) (2) and (3) to be unconstitutional in State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973). This holding has been repeated in the following cases: State v. McNutt, 287 So.2d 478 (La.1973), and State v. Gay Times, Inc., La., 294 So.2d 496, decided April 29, 1974.

The argument is made in the instant case that this defendant was informed, in answer to a bill of particulars, that the prosecution was proceeding under R.S. 14:106(A) (7), as well as under R.S. 14:106 (A)(2) and (3). The contention is then made that R.S. 14:106(A)(7) is constitutional and that the conviction and sentence can stand.

For the reasons stated by the United States Supreme Court in Miller v. California, supra, and by this Court in previous decisions, we are mandated to declare R. S. 14:106 (A) (7) unconstitutional. We adhere to the previous holdings in regard to R.S. 14:106(A) (2) and (3).

Since R.S. 14:106(A) (2) (3) and (7) are unconstitutional under the United States Supreme Court pronouncement in Miller v. California, supra, the conviction and sentence are annulled.

SANDERS, C. J., dissents with written reasons.

SUMMER, J., dissents for the reasons assigned.

MARCUS, J., recused.

DIXON, J., concurs with reasons.

SANDERS, Chief Justice

(dissenting).

I dissent for the reasons assigned in my dissenting opinion in State v. Shreveport News Agency, Inc., La., 287 So.2d 464 (1973).

As I noted in that dissent, no mandate of the United States Supreme Court requires us to strike down our state obscenity statute. To the contrary, in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419 (1973), the United States Supreme Court pointed out that a state court could construe its statute so as to effectuate the less stringent standards announced in that decision. Such a construction is an approved judicial practice in this and other courts. See United States v. 12 200-Ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Wainwright v. Stone & Huffman, 414 U. S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); State v. Eros Cinema, Inc., 262 La. 706, 264 So.2d 615 (1972); Levy v. State, Char. Hosp. of La., N. Orleans Bd. of Ad., 253 La. 73, 216 So.2d 818 (1968); State v. Rasheed, 248 La. 309, 178 So.2d 261, cert. den. 384 U.S. 1012, 86 S.Ct. 1962, 16 L.Ed. 2d 1031 (1965); State v. Davidson, 248 La. 161, 177 So.2d 273 (1965); State v. Rideau, 246 La. 451, 165 So.2d 282 (1964); 16 Am.Jur.2d, Constitutional Law § 144, p. 345.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973), did not mandate the invalidity of our obscenity laws. La.R.S. 14:106. To the contrary, by that decision the United States Supreme Court' prescribed broad guidelines which would permit this Court to interpret Louisiana’s obscenity statutes in such a manner that they would meet constitutional standards. The Miller Case made it quite clear that that court was prepared to accept any reasonable interpretation which the State’s highest Court would place on its *298obscenity laws. But this Court’s majority did not interpret our laws in that spirit. Instead it decided that the language of our obscenity statute was vague and over-broad. In doing so the Court imposed upon the legislature an obligation of strict specificity which is in fact unattainable in any statute seeking to proscribe obscenity. By the very nature of this offense a common sense view of the statute is required. The offender knows when he crosses the line between patently obscene and non-obscene displays or publications, and it is unrealistic to quibble about whether the accused received adequate notice of the proscribed conduct. No one would contend the material here was not obscene.

In placing the task of interpretation on this Court, the United States Supreme Court also placed the responsibility on this Court for upholding or invalidating Louisiana’s obscenity laws. It will not do to say that the United States Supreme Court decision in Miller v. California was responsible for striking down Louisiana’s obscenity laws. That responsibility was from the moment of the decision in State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973), and its companion cases, the responsibility of the four-man majority of this Court. That responsibility continues to reside there.

In refusing to review this Court’s decisions in these cases the United States Supreme Court confirmed its determination in Miller v. California to leave the interpretation of state obscenity laws to the state’s highest court.

DIXON, Justice

(concurring).

I subscribe to the opinion authored by Justice Barham, and in addition believe it important to notice another constitutional infirmity in R.S. 14:106A(7). It is viola-tive of substantive due process.

A police regulation must have a reasonable relationship to a legitimate legislative purpose; the measure must tend toward promoting the legitimate ends of such legislation, or toward preventing some evil. Our State is prohibited by the Fourteenth Amendment of the United States Constitution and Article I, § 2 of the Louisiana Constitution of 1921 from depriving any person of life, liberty or property except by “due process of law.”

This court, through the years, has consistently held that one element of “due process” is reason — that life, liberty and property are protected from legislative enactments which bear no reasonable relationship to a legitimate legislative purpose. State v. Birdsell, 235 La. 396, 104 So.2d 148 (1958), held that prohibition against the possession of a hypodermic syringe was unreasonable and an improper exercise of the police power in violation of the due process clause. City of Lake Charles v. Hasha, 238 La. 636, 116 So.2d 277 (1959) and City of Lafayette v. Justus, 245 La. 867, 161 So.2d 747 (1964), struck down, for the same reason, ordinances regulating gasoline price signs. See Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So. 2d 248 (1949).

It is a legitimate legislative function to protect the population from unwarranted intrusion of certain sexual materials. It does not follow, however, that the prohibition against the display of “nude pictures” bears any reasonable relationship toward that end. An innocent photograph of a child on the beach could incriminate the manager of a camera shop, or a newspaper publisher or vendor. Anatomical charts in the physical therapist’s waiting room could not be displayed. Librarians and teachers would be fearful of prosecution, and so on and on. Legislation designed to suppress pornography cannot escape the test of the reasonable relationship between its prohibition and its object.