Defendant Hudson County News Company, a corporation of this State, was charged in two indictments returned by the grand jurors of Essex County that it did, without just cause, sell and distribute certain obscene and indecent books and publications in violation of N.J.S. 2A:115-2. The charges contained in the indictments were tried before me without a jury at the request of the corporate defendant and with the consent of the State. A companion indictment, involving one Milton Medwin, which charged that he did, without just cause, possess with intent to utter and expose to view of others, certain obscene and indecent books in violation of N.J.S. 2A:115-2, was not moved for trial with the consent of that defendant and the State.
Defendant is a wholesale distributor of magazines and paper covered books. In the course of its operations, it services a large portion of the northern part of the State, including Essex County. Among the many publications [75 NJSuper Page 366] handled by defendant in the course of its business are some 48 magazines,*fn1 the distribution of which constitutes the basis for the charges contained in the indictments presently under consideration. Defendant does not dispute that it handled and distributed the magazines in question. It contends that its distribution of the publications which it concedes it has effected, does not violate the provisions of N.J.S. 2A:115-2, since none of the publications in question is obscene within the meaning of that statute. In the alternative, it is defendant's contention, should this
court determine all or any of the publications to be obscene, the State has failed to establish beyond a reasonable doubt that it distributed any of such publications with the knowledge that the contents thereof were obscene within the meaning of N.J.S. 2A:115-2.
Prior to trial, defendant moved to dismiss the present indictments on constitutional grounds. A determination by the trial court that the indictments should proceed to trial was affirmed by the Supreme Court in State v. Hudson County News Co. , 35 N.J. 284 (1961). In its opinion, the court upheld the validity of N.J.S. 2A:115-2 with respect to the challenges made by defendant, on appeal, concerning the constitutionality of that statute. It was the determination of the Supreme Court that N.J.S. 2A:115-2 required the State to show that a defendant charged with a violation of its provisions acted with knowledge of the character or content of the materials claimed to be obscene. The court also determined that the phrase "without just cause" as contained in the statute was not violative of due process requirements in that it was too vague.
In its appeal to the Supreme Court, defendant did not deal, in any manner, with the definitions of obscenity nor the standards to be applied in determining whether materials challenged come within the statutory prohibition. The question has been raised here for the first time. Defendant did not question nor does it question here in anywise the constitutional sufficiency under our State Constitution or under the Federal Constitution of the statutory provisions here involved that it shall be criminal to knowingly sell (or possess with intent to sell) obscene material.
Defendant argues that the concept of obscenity as embraced by our statute must conform to the holding of the Supreme Court of the United States in Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957). Under the holding of the Roth case, defendant contends that the materials upon which the charges in the
instant indictments are based cannot be regarded as being obscene.
In Roth the Supreme Court of the United States decided that obscenity is not within the area of constitutionally protected speech or press. This holding was based upon the conclusion that obscenity is no essential part of any exposition of ideas, and is of such slight social value as a step to truth that any benefit that might be derived from it is clearly outweighed by the social interest in order and morality. (354 U.S. , at p. 485, 77 S. Ct. 1309.) The Supreme Court in its majority opinion defined obscenity, such as is unprotected by the Constitution, as material which deals with sex in a manner appealing to prurient interest (354 U.S. , at p. 487, 77 S. Ct. , at p. 1310), and further, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." In a footnote "prurient interest" was defined as: "Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *" (354 U.S. , at p. 487, note 20, 77 S. Ct. , at p. 1310). The court stated that it could perceive no significant difference between the meaning of obscenity developed in the case law and the definition contained in the A.L.I. Model Penal Code § 207.10 (2) (Tent. Draft No. 6, 1957). While this observation of the court has been questioned by writers in the field, see, e.g. , Lockhart & McClure, "Censorship of Obscenity: The Developing Constitutional Standards," 45 Minn. L. Rev. 5, 56 (Nov. 1960), it is clear that the court intended to cite the A.L.I. definition with approval.
The decision in Roth also involved a decision in the case of Alberts v. State of California. Roth involved the application of the federal obscenity statute, 18 U.S.C.A. , § 1461, and Alberts involved the California obscenity law, West's Penal Code Ann. 1955, § 311. The opinion which upheld convictions in the respective courts below embraced
both decisions. The court took the opportunity, under these circumstances, to dispel any doubt as to whether the constitutional standards applicable to the several states with regard to their power to punish speech and press offensive to decency and morality, differed in any degree from those imposed upon the Federal Government. In this connection it rejected the argument of the appellant Roth that the federal obscenity statute unconstitutionally encroached upon the power reserved by the Ninth and Tenth Amendments to the states and to the people to punish speech and press offensive to decency and morality, and similarly rejected the argument of the State of California in Alberts that there is greater latitude for state action under the Fourteenth Amendment than is allowed to Congress by the language of the First Amendment to punish such speech and press; the basis for rejecting both arguments was the holding of the court that obscenity is not an expression protected by the First Amendment (354 U.S. 492, 77 S. Ct. 1313).
While it may seem that the definition of constitutionally unprotected obscenity as set forth in the Roth-Alberts opinion has broad boundaries, a careful reading of the opinion at once indicates that such is not the case; the warning by the court concerning the freedoms of speech and press guaranteed under the Constitution indicates quite clearly how narrow the boundaries of that definition are:
"The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." (354 U.S. , at p. 488, 77 S. Ct. , at p. 1311)
Of equal significance is the observation of the court that sex and obscenity are not synonymous:
"However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. , in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it ...