For reversal -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J. Jacobs, J. (concurring). Jacobs, J., concurs in result.
[41 NJ Page 252] The defendants, Hudson County News Company and Hudson County News Dealers Supply Co., affiliated corporations, are engaged in the business of distributing to retailers newspapers and magazines of all types over a large area in northern New Jersey. They were charged with violating N.J.S. 2A:115-2*fn1 in five indictments, each of which contained several counts. Four of the indictments charged the defendants with specific sales of obscene magazines and the fifth charged them with possession with intent to sell obscene magazines. The indictments involved 23 different "girlie-type" magazines. The case was tried before a jury and defendants were found guilty on counts involving six of
the magazines.*fn2 The Appellate Division affirmed the convictions. State v. Hudson County News Co., 78 N.J. Super. 327 (1963). Defendants appeal to this court under Rule 1:2-1(a).
Defendants first contend that they were entitled to a judgment of acquittal at the end of the State's case on the ground that the magazines involved could not constitutionally be found to be obscene. In Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), the United States Supreme Court held that obscenity is not within the area of constitutionally protected speech or press. Defendants argue that obscenity, in the constitutional sense, means "hard-core pornography," which they define in their brief as:
"[C]ommercially and clandestinely produced material having no literary or artistic merit in which sexual activities and orgies of men and women, normal and perverted, are portrayed, devoid of disguise, through explicit and crude or coarse illustration * * * 'hard core' pornography is instantly recognizable by all. It constitutes absolute filth in the rawest and starkest sense." (Emphasis in the original)
We are certain that the First Amendment as interpreted by the United States Supreme Court does not limit this State to the suppression of material which reaches the nadir of degradation described by the defendants. Certainly the cases and commentators do not adopt or confirm the defendants' suggested definition. Although several states have limited the meaning of obscenity under their statutes to "hard-core" pornography,*fn3 we have found no concurrence of opinion regarding
the meaning of that term. Dean Lockhart and Professor McClure, in their authoritative article, "Censorship of Obscenity: The Developing Constitutional Standards," 45 Minn. L. Rev. 5, 60-61 (1960), state that "a satisfactory definition of the term is not easy to come by." Other commentators have expressed varying ideas on the meaning of the term, e.g., Kalven, "The Metaphysics of the Law of Obscenity," 1 Sup. Ct. Rev. 1, 13, 44 (1960); Mulroy, "Obscenity, Pornography and Censorship," 49 A.B.A.J. 869, 874 (1963); Green, "The Treatment of Obscenity," 51 Ky. L.J. 667, 677 (1963).
We have also considered the arguments advanced in the cases and in the literature that obscenity is, or may be constitutionally limited to, "hard-core" pornography, but we have concluded that in the absence of any substantial concurrence as to the meaning of this term, its adoption by us at this time would not increase clarity or certainty in the law of obscenity, and accordingly we decline to do so. We note that two states which have adopted the "hard-core" test have reached opposite results in determining the constitutionality of the suppression of the same book. Compare People v. Fritch, 13 N.Y. 2 d 119, 234 N.Y.S. 2 d 1, 192 N.E. 2 d 713 (Ct. App. 1963), with Attorney General v. Tropic of Cancer, 345 Mass. 11, 184 N.E. 2 d 328 (Mass. Sup. Jud. Ct. 1962). In short, the label "hard-core" pornography is too vague to be helpful to a court or a jury in determining whether particular material is obscene.
We recognize that under any definition of obscenity certain materials will lie in a gray area, and that "constitutionally protected expression * * * is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S. Ct. 631, 637, 9 L. Ed. 2 d 584, 590 (1963). However, we are of the opinion
that the guidelines established initially in Roth and clarified in Manual Enterprises v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2 d 639 (1962), are the best determinants available to a court in reaching its decision whether particular material is obscene by constitutional standards.
In Roth, Mr. Justice Brennan for the majority of the Court stated that the test of obscenity is:
"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S., at p. 489, 77 S. Ct., at p. 1311, 1 L. Ed. 2 d, at p. 1509.
And in discussing the test, he quoted with approval the definition of the A.L.I. Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz.:
"* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters * * *" 354 U.S., at p. 486, 77 S. Ct., at p. 1310, 1 L. Ed. 2 d, at p. 1508.
This A.L.I. definition was revised in minor part in the 1962 Proposed Official Draft of the Model Penal Code.
Subsequently, in Manual Enterprises, supra, Mr. Justice Harlan stated, "obscenity * * * requires proof of two distinct elements: (1) patent offensiveness; and (2) 'prurient interest' appeal." 370 U.S., at p. 485, 82 S. Ct., at p. 1436, 8 L. Ed. 2 d, at p. 646. The term "patent offensiveness," or "indecency," describes material which can be deemed so offensive on its face as to affront current community standards of decency. Id., 370 U.S., at p. 481, 82 S. Ct., at p. 1434, 8 L. Ed. 2 d, at p. 644. He also quoted the Model Penal Code definitions and commented that "the thoughtful studies of the American Law Institute reflect the same twofold concept of obscenity." Id., 370 U.S., at p. 485, 82 S. Ct., at p. 1436, 8 L. Ed. 2 d, at p. 646. Although the opinion of Mr. Justice Harlan (announcing the judgment of the Court) was
joined only by Mr. Justice Stewart,*fn4 we believe that the requirement of patent offensiveness articulated in that opinion was nevertheless inherent in the Roth opinion which approved the twofold concept expressed in the A.L.I. proposal. Indeed, it is the characteristic of indecency which is the basis of society's objection to obscene material, and if the test did not include both elements, many worthwhile works in literature, science, or art would fall under the sole test of "prurient-interest" appeal.*fn5 In most cases, however, the two elements will tend to coalesce, "for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal." Id., 370 U.S., at p. 486, 82 S. Ct., at p. 1436, 8 L. Ed. 2 d, at p. 646.
Defendants moved at the end of the State's case for a judgment of acquittal. They argue that the judge was required to make an independent determination of the material in evidence, applying the proper constitutional standards, before submitting the issue of obscenity to the jury. We agree. The trial judge must apply the constitutional standards to the specific material, in the light of any factual findings supported by the evidence, for if in his judgment the material cannot constitutionally be suppressed, then nothing remains for the jury's consideration. See Model Penal Code, Proposed Official Draft 1962 § 251.4(4), where it is said, "The Court shall dismiss a prosecution for obscenity if it is satisfied
that the material is not obscene." Of course, if the trial judge determines that the material is not constitutionally protected and should be submitted to the jury, he should avoid expressing to them his opinion on the issue of obscenity. Compare State v. Smith, 32 N.J. 501, 549 (1960), regarding the trial court's function in determining the admissibility of a defendant's confession. Further, on appeal each appellate court must likewise make an independent determination of whether the attacked material is suppressible within constitutional standards, for the question is not merely one of fact "but a question of constitutional judgment of the most sensitive and delicate kind." Mr. Justice Harlan concurring in Roth, supra, 354 U.S., at p. 498, 77 S. Ct., at p. 1316, 1 L. Ed. 2 d, at p. 1514. See also Manual Enterprises v. Day, supra, 370 U.S., at p. 487, 82 S. Ct., at p. 1437, 8 L. Ed. 2 d, at p. 647; Lockhart and McClure, op. cit. supra, at pp. 114-116 and cases there cited.
We have examined the six magazines involved in the defendants' convictions, and we are of the opinion that under the Roth-Manual test a trial court could properly submit the issue of their obscenity to the jury.*fn6 There was accordingly no error in the trial court's denial of defendants' motion for acquittal on this ground.
The defendants further contend that they were entitled to a judgment of acquittal at the end of the State's case on the ground that the State had failed to prove beyond a reasonable doubt that the defendants had knowledge of the contents of the magazines involved. In State v. Hudson County News Co., 35 N.J. 284, 294 (1961), we held that N.J.S. 2A:115-2 must be construed as though it expressly embodied the word "knowingly," i.e., that scienter is an ...