For reversal -- Chief Justice Hughes, and Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
[65 NJ Page 463] The defendants in these consolidated appeals were convicted in 1971 on charges that they possessed and sold obscene publications in violation of N.J.S.A. 2A:115-2. Their convictions were sustained in the Appellate Division and we denied certification. State v. De Santis, 62 N.J. 77 (1972); State v. Roth, 62 N.J. 431 (1973). In due course they petitioned the United States Supreme Court for certiorari. Their petitions were granted and by orders dated June 25, 1973 in De Santis (413 U.S. 913, 93 S. Ct. 3057, 37 L. Ed. 2 d 1034) and October 23, 1973 in Roth (414 U.S. 962, 94 S. Ct. 271, 38 L. Ed. 2 d 210) the Supreme Court vacated the judgments and remanded the cases to the Appellate Division for further consideration in light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2 d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2 d 446 (1973); Kaplan v. California, 413, U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2 d 492 (1973); United States v. 12 200 Ft. Reels of Super. 8 mm
Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2 d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S. Ct. 2674, 37 L. Ed. 2 d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2 d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2 d 993 (1973). We certified the cases while they were pending in the Appellate Division so that we could determine (1) whether the principles newly announced by the Supreme Court in Miller and the related cases may properly be incorporated into our obscenity statutes so as to sustain their constitutionality and (2) whether they may fairly be incorporated retroactively so as to sustain the convictions of the defendants here.
New Jersey has long had statutory provisions aimed at obscene publications. See 8 e.g., Revision of the Statutes of New Jersey (1709-1877) § 44, p. 234; L. 1898, c. 235, p. 808; R.S. 2:140-2. However, there were no early statutory efforts to define obscenity and though our courts were fully aware of the difficulties and the dangers they supplied general definitions and thereby sought to avoid constitutional infirmities. See State v. Weitershausen, 11 N.J. Super. 487 (App. Div.), certif. denied, 7 N.J. 79 (1951); State v. Kohler, 40 N.J. Super. 600 (App. Div. 1956); cf. Adams Theatre Co. v. Keenan, 12 N.J. 267 (1953). In Adams, Justice Brennan, speaking for this Court, described the statutory language he was dealing with as amorphous and he referred to the ever present danger of censorship. He pointed out that the mere fact that sexual life was the theme of a presentation did not make it obscene and that the question was whether its dominant note was erotic allurement tending to excite lecherous desire, "dirt for dirt's sake only." 12 N.J. at 272. Several years later, speaking for the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), he held that obscenity was not within the area of constitutionally protected freedom of
speech; and in defining obscenity he stated that the test was "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 489, 77 S. Ct. at 1311, 1 L. Ed. 2 d at 1509; see State v. Hudson County News Co., 41 N.J. 247, 255 (1963). In 1962 our Legislature defined obscenity in substantially the language used by Justice Brennan in Roth. L. 1962, c. 165; N.J.S.A. 2A:115-1.1. See also L. 1962, c. 166; N.J.S.A. 2A:115-3.3
In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of The Commonwealth of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2 d 1 (1966), Justice Brennan wrote the plurality opinion of the Court; he noted that under the Roth definition of obscenity, as elaborated in subsequent cases, the following three elements must coalesce: "It must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." 383 U.S. at 418, 86 S. Ct. at 977, 16 L. Ed. 2 d at 5-6. Within a few months after this decision was handed down, our Legislature amended its L. 1962, c. 165 definition of obscenity so as to embody the three-pronged test set forth by Justice Brennan in the Memoirs case. L. 1966, c. 199; N.J.S.A. 2A:115-1.1. In G. P. Putnam's Sons v. Calissi, 50 N.J. 397 (1967), we reversed a lower court holding that the book dealt with in Memoirs was obscene; in our per curiam we simply stated that under the aforementioned three-pronged test the book was protected from governmental suppression by the First and Fourteenth Amendments. 50 N.J. at 398.
In 1969 our Legislature established a "Commission to Study Obscenity and Depravity in Public Media." The Commission conducted hearings and rendered its report in
1970. In 1971 the Legislature passed L. 1971, c. 449 (N.J.S.A. 2A:115-1.1) which in effect abandoned the three-pronged test set forth in L. 1966, c. 199 and reverted to the definition in L. 1962, c. 166. The statement attached to the bill indicated that there had been local dissatisfaction with the three-pronged test, particularly its requirement that the material be "utterly without redeeming social value," and that the legislative desire was to restrict the distribution of obscene materials to the full extent permitted by the Constitution as expounded by the Supreme Court. In Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D.N.J. 1972), a three-judge court, sitting in the United States District Court for the District of New Jersey, declared L. 1971, c. 449 to be unconstitutional in that it failed to satisfy the three-pronged test of Memoirs. But cf. State v. Shapiro, 122 N.J. Super. 409 (Law Div. 1973); Coleman v. Wilson, 123 N.J. Super. 310 (Ch. Div. 1973). In Hamar Theatres, Inc. v. Cryan, 365 F. Supp. 1312 (D.N.J. 1973), cert. granted, 416 U.S. 954, 94 S. Ct. 1967, 40 L. Ed. 2 d 304 (1974), two of the three judges who sat in Cine-Com again held L. 1971, c. 449 to be unconstitutional as failing to meet not only the three-pronged test of Memoirs but also the new obscenity test of Miller v. California, supra, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2 d 419.
In Miller, supra, the defendant was convicted under the California obscenity statute for mailing brochures which consisted mainly of pictures and drawings "very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed." 413 U.S. at 18, 93 S. Ct. at 2611, 37 L. Ed. 2 d at 427. In vacating the judgment and remanding for further proceedings, the Supreme Court rejected the three-pronged test of Memoirs and announced a reformulated test of obscenity in which five members of the Court concurred. Under the reformulated test, in order to find obscenity the trier of fact must determine (1) that the average person applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest, (2) that it depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Illustrating what may satisfy the second requirement, the Court gave the following nonexclusive examples: "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, (b) Patently offensive representations ...