United States District Court, Northern District of Illinois, E. D
July 7, 1971
MOVIES, INC., AN ILLINOIS CORPORATION, ET AL., PLAINTIFFS,
JAMES CONLISK, INDIVIDUALLY AND AS SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, ET AL., DEFENDANTS. LEO WEINTRAUB AND RENE NAWODYLO, PLAINTIFFS, V. WILLIAM J. SCOTT, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS.
Before Pell, Circuit Judge, Marovitz and Lynch, District
The opinion of the court was delivered by: Lynch, District Judge.
MEMORANDUM OF DECISION
The plaintiffs, Rene Nawodylo and Leo Weintraub, filed the
complaint in No. 70 C 1235 seeking declaratory and injunctive
relief from this Court. The relief requested contemplated an
attack on constitutional grounds of a statute of statewide
application. Accordingly, pursuant to 28 U.S.C. § 2281 and
28 U.S.C. § 2284, a three-judge Court was requested and
subsequently convened. The plaintiffs, Movies, Inc., et al.
filed the complaint in No. 70 C 2051 seeking both injunctive
and declaratory relief from the same state law attacked in No.
70 C 1235. The matters were consolidated for argument because
of the similarity of the causes.
The central thread of both complaints is a challenge to 38
Ill.Rev.Stat. § 11-20 (Appendix 1), the Illinois law defining
and regulating obscenity. All plaintiffs contend that the law
is vague and over-broad; they contend that it permits a
conviction without a proper showing of scienter; lastly they
contend that it is inimical to rights secured by the first
amendment of the United States Constitution because it does not
require a prior adversary hearing. Additionally, plaintiffs in
No. 70 C 1235 challenge Chicago's obscenity ordinance, § 192.9,
Municipal Code of Chicago (Appendix 2).
In both matters action was begun in this court after the
State of Illinois had commenced several criminal proceedings
for violation of Ill.Rev.Stat., Ch. 38, § 11-20 against each of
the plaintiffs in No. 70 C 1235. Similar charges are pending
against some of the plaintiffs in No. 70 C 2051.
Recent decisions of the United States Supreme Court have
circumscribed the jurisdiction of a three-judge court to
entertain constitutional challenges to state criminal statutes
where criminal proceedings pursuant to those statutes are
pending at the time of filing the complaint in federal court.
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669;
Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701;
Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688;
Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781;
Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d
792. This Court believes these rulings compel different
treatment of the pending matters. Accordingly, it will be
necessary to discuss them separately.
The complaint in Movies, Inc., et al. is brought by certain
individuals who were arrested for showing a film that was
judged obscene after a hearing held by a state court
magistrate. The plaintiffs exhibited the film after it was
adjudged obscene. Subsequently warrants were issued for their
arrest and at the time of their arrest certain of the
defendants seized the film, Pornography-Copenhagen '70. The
arrests and seizure are currently on appeal to the Supreme
Court of the State of Illinois. During the pendency of that
appeal those individuals who were arrested brought this action.
They were joined by certain corporate plaintiffs who own the
theatres at which the film was shown. The proceedings here also
seek to protect the rights of one Janice Mooney who purports to
represent a class of individuals who would view
Pornography-Copenhagen '70 were it available.
As noted above the Supreme Court recently decided a series
of cases that redrew the perimeters of a federal court's
jurisdiction when a court is asked to interfere with pending
state court criminal matters. Younger v. Harris, supra, Perez
v. Ledesma, supra.
[A] federal court must not, save in exceptional
and extremely limited circumstances, intervene by
way of either injunction or declaration in an
existing state criminal prosecution. Such
circumstances exist only when there is a threat
of irreparable injury "both great and immediate."
A threat of this nature might be shown if the
state criminal statute in question were patently
and flagrantly unconstitutional on its face,
Younger v. Harris [ante] [401 U.S.], at 53 [91
S.Ct., at 755]; cf. Evers v. Dwyer, 358 U.S. 202
[79 S.Ct. 178, 3 L.Ed.2d 222], or if there has
been bad faith and harassment — official
lawlessness — in a statute's enforcement, Younger
v. Harris [ante, 401 U.S.], at 47-49 [91 S.Ct. at
752-753]. In such circumstances the reasons of
policy for deferring to state adjudication are
outweighed by the injury flowing from the very
bringing of the state proceedings, by the
perversion of the very process which is supposed to
provide vindication, and by the need for speedy and
effective action to protect federal rights. Cf.
George v. Rachel, 384 U.S. 780 [86 S.Ct. 1783, 16
L.Ed.2d 925]. Younger v. Harris, supra, 401 U.S.,
at 56, 91 S.Ct. at 757 (Stewart, J., concurring).
In Perez v. Ledesma, supra, the Supreme Court articulated the
standard that controls this court's intervention with a pending
state court prosecution. "Only in case of proven harassment or
prosecutions undertaken by state officials in bad faith without
hope of obtaining a valid conviction and perhaps in other
extraordinary circumstances where irreparable injury can be
shown is federal injunctive relief against pending state
prosecutions appropriate." 401 U.S. 82, 84, 91 S.Ct. 674, 677.
In Movies, Inc., there is no allegation of harassment or bad
faith prosecution. Nor does there appear to be any other
extraordinary circumstances justifying federal injunctive
relief. Indeed the situation
here appears closely analogous to that which existed in
Perez v. Ledesma, supra.
In Perez the Supreme Court reviewed the holding of a
three-judge court that declared a Louisiana statute permitting
the seizure of allegedly obscene material, without a prior
adversary hearing on the issue of obscenity, violative of
rights secured by the first amendment. Delta Book Distributors,
Inc. v. Cronvich, 304 F. Supp. 662 (E.D.La. 1969), rev'd, sub
nom. Perez v. Ledesma, supra. The lower court was asked to
enjoin pending state criminal proceedings for alleged
violations of the Louisiana obscenity law. The lower court did
not enjoin the state criminal proceedings but did suppress
certain material seized pursuant to the arrest of those
individuals being prosecuted. The result of the order to
suppress was a termination of the state court proceedings. The
Supreme Court reversed the lower court and held that it was
improper for the federal court to interfere with the state
court proceedings. Further, the Supreme Court noted that any
alleged constitutional deficiency in the state court
proceedings could properly be raised and disposed of in the
Applying the holding of Perez to the matters raised in
Movies, Inc., it is apparent that the complaint must be
dismissed. The thrust of the complaint and the relief requested
would require this court to interject itself into matters
currently before the courts of Illinois. It was precisely this
type of interference that was proscribed in Perez, supra.
Further, the complaint in Movies, Inc., contains no allegation
of bad faith, enforcement or harassment upon which this court
might predicate its jurisdiction. Accordingly, the cause in No.
70 C 2051 is dismissed.
Turning next to the complaint in No. 70 C 1235 the court is
faced with a somewhat different situation. Both Weintraub and
Nawodylo have been the subjects of frequent arrests by various
state and local enforcement officials for sale of allegedly
obscene material. Further, the plaintiffs in this matter
assert that the enforcement officials are acting in bad faith
with an intention to harass. Indeed, the single district judge
to whom this matter was originally assigned found that the
pattern of arrests constituted an attempt to harass and
accordingly entered a temporary injunction that subsequently
was dissolved. Thus, in No. 70 C 1235 the allegations of the
complaint appear to assert sufficient facts to permit this
court to entertain jurisdiction of the matter without
contravening the directions contained in Younger, and its
companion cases, supra. We note in passing that we are not
determining that harassment or bad faith prosecution in fact
exists in this matter. We hold only that the allegations of
harassment coupled with the showing of frequent arrests of both
plaintiffs is sufficient to bridge the gap in this court's
jurisdiction created by Younger. Thus, assuming that we enjoy
the rights to interfere with state criminal proceedings where
there are allegations of harassment coupled with some factual
data to support those allegations we turn to the constitutional
challenge of the Illinois obscenity laws.
The plaintiffs' challenge to the constitutionality of
Ill.Rev.Stat., Ch. 38, § 11-20 proceeds along several avenues.
Plaintiff's most ambitious contention strikes at the right of
the state to regulate obscene material, a right long
recognized. Roth v. United States; Alberts v. California,
354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The predicate for
plaintiff's assertion is found in the holding of Stanley v.
Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 wherein
the Supreme Court determined that the first and fourteenth
amendments prohibit making mere private possession of obscene
material a crime. The plaintiffs argue that since the state
cannot prohibit private possession of obscene material, a
fortiori the state cannot prohibit the sale that placed the
individual in possession of that material. The plaintiffs'
assertion is contrary to language in
Stanley itself. In deciding Stanley the Supreme Court clearly
reaffirmed the right of the state to regulate obscene material.
394 U.S. 557, 578, 89 S.Ct. 1243. Additionally, the merit of
plaintiffs' argument is foreclosed by United States v. Reidel,
402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Reidel was
indicted for using the mails for distribution of obscene
material. 18 U.S.C. § 1461. The District Court, relying on
Stanley, declared the statute unconstitutional and dismissed
the indictment. The Supreme Court reversed noting:
The District Court gave Stanley too wide a sweep.
To extrapolate from Stanley's right to have and
peruse obscene material in the privacy of his own
home a First Amendment right in Reidel to sell it
to him would effectively scuttle Roth, the
precise result that the Stanley opinion abjured.
Whatever the scope of the "right to receive"
referred to in Stanley, it is not so broad as to
immunize the dealings in obscenity in which
Reidel engaged here — dealings which Roth held
unprotected by the First Amendment. 402 U.S. 351,
355, 91 S.Ct. 1410, 1412.
Since the rights of a state to regulate obscenity within its
borders are no less narrow than the right of the federal
government, Roth-Alberts, supra, we determine that Stanley does
not effect the right of the state to regulate the sale of
allegedly obscene material.
Plaintiffs also contend that Ill.Rev.Stat., Ch. 38 § 11-20
does not properly define obscenity. Plaintiffs assert that the
definition is vague and overbroad. In Roth-Alberts, supra, the
Supreme Court defined obscene material as those things that "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. 476, 489, 77 S.Ct. 1304, 1311.
Further, the court noted that obscene material is not protected
by the first amendment because "implicit in the history of the
First Amendment is the rejection of obscenity as utterly
without redeeming social importance." 354 U.S. 476, 484, 77
S.Ct. 1304, 1309.
The three elements of obscenity suggested in
Roth-Alberts were codified in A Book Named John Cleland's
Memoirs of a Woman of Pleasure, et al. v. Attorney General of
Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. In
Memoirs it was established that proscription of material as
obscene was permissible only when three elements coalesced.
(a) the dominant theme of the material taken as a
whole appeals to 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. 413,
418, 86 S.Ct. 975, 977.
Each of these three tests is mandatory and must be applied
with equal weight.
Illinois has incorporated into its law regulating obscenity
a statutory definition that adequately treats the first two
tests noted in Memoirs, supra, but has not included in that
definition a statement that obscenity must be utterly without
redeeming social value. (See Appendix 1) The plaintiffs assert
that this omission is fatal to the definition and accordingly
so infects the statute with invalidity that the entire
statutory scheme must fall.
While the language of the Illinois statute does not
incorporate the redeeming social value test, that test is
added to the statute by judicial gloss. In City of Chicago v.
Kimmel, 31 Ill.2d 202, 201 N.E.2d 386 (1964) the Illinois
Supreme Court reviewed the same ordinance of the City of
Chicago challenged here. The City ordinance does not contain
an utterly without redeeming social value test.
Notwithstanding the Supreme Court of Illinois held the
ordinance valid. However, while so holding
the court reversed a conviction for violation of the ordinance
[W]e are unimpressed with the literary merit of
the works before us, we cannot say that they "go
substantially beyond customary limits of candor
in descriptions or representation of such
matters," or that they are "utterly without
redeeming social importance." We accordingly hold
that the jury improperly found the books to be
obscene. 201 N.E.2d 386, 390.
Thus, the Illinois Supreme Court both acknowledges and applies
the tripartite test contained in Memoirs, supra. See City of
Blue Island v. DeVilbiss, 41 Ill.2d 135, 242 N.E.2d 761
(1969). City of Chicago v. Geraci, 46 Ill.2d 576,
264 N.E.2d 153 (1970).
In People of State of Illinois v. Sikora, 32 Ill.2d 270,
204 N.E.2d 768 (1965) the Illinois Supreme Court reviewed the
conviction of a defendant charged under a predecessor of the
current Illinois obscenity law, which defined obscenity as it
is currently defined in Illinois law. In passing upon an
evidentiary standard in the statute that permitted evidence
showing the literary, scientific, artistic, educational or
other merit of the material, the Illinois Supreme Court
Not only is evidence admissible as to the social
importance of the alleged obscene materials, a
determination as to the presence or absence of
social importance is essential to a judgment. And
if, as in this case, no evidence bearing upon
that issue is offered, the determination must be
made from an examination of the material in
question. 204 N.E.2d 768, 770-771.
It is apparent to this court that a conviction for obscenity
in the courts of Illinois will necessarily require a
determination that the offending material is utterly without
redeeming social value. The statute has been authoritatively
construed by the highest court in this State as requiring such
a determination. The question remains as to whether that
construction will save the provisions.
Several three-judge courts have reviewed state statutes
similar to Illinois; each was challenged on the grounds that
the definition of obscenity contained therein was
impermissibly vague. Those courts, with one exception have
found that the challenged statutes pass constitutional muster.
In Delta Book Distributors, supra, a three-judge district court
determined that a Louisiana statute, similar to Illinois', was
constitutional if judicially interpreted and applied in light
of the constitutional requirements set forth in Memoirs, supra.
Other three-judge courts have upheld statutory definitions that
did not contain all the elements of the tripartite test.
Entertainment Ventures, Inc. v. Brewer, 306 F. Supp. 802
(M.D.Ala. 1969); Cambist Films, Inc. v. Tribell, 293 F. Supp. 407
(E.D.Ky. 1968). In Great Speckled Bird v. Stynchcombe,
298 F. Supp. 1291 (N.D.Georgia 1969), a three-judge court held that
the supremacy of the United States Constitution grafted these
three elements to Georgia law, and sustained Georgia's
obscenity law on that ground. However, Stein v. Batchelor,
300 F. Supp. 602 (D.C.N.D. Tex. 1969), rev'd on other grounds Dyson
v. Stein, supra, overturned a state statute that did not define
obscenity as being material utterly without redeeming social
value. The Stein court placed significant emphasis on the fact
that no Texas court had rendered an authoritative limiting
construction of the challenged statute.
There is no novelty in relying on authoritative construction
to save deficient statutory provisions. In Mishkin v. New
York, 383 U.S. 502
, 86 S.Ct. 958, 16 L.Ed.2d 56, the Supreme
Court relied upon authoritative state court construction to
save a New York statute lacking a proper scienter element. In
Friedman v. Maryland, 380 U.S. 51
, 85 S.Ct. 734, 13 L.Ed.2d
649 the Supreme Court struck down Maryland's censorship
provisions. However, in doing so the court noted:
The teaching of our cases is that, because only a
judicial determination in
an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a
procedure requiring a judicial determination
suffices to impose a valid final restraint.
(cites omitted) To this end, the exhibitor must
be assured, by statute or authoritative judicial
construction, that the censor will, within a
specified brief period, either issue a license or
go to court to restrain showing the film.
380 U.S. 51, 58-59, 85 S.Ct. 734, 739.
Similarly the Supreme Court itself has remedied federal
statutory provisions through authoritative construction.
United States v. Thirty Seven  Photographs, 402 U.S. 363
91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). In light of the
foregoing we hold that Ill.Rev.Stat. Ch. 38, § 11-20 is
constitutional as construed by the Illinois courts.
We intimate no decision on the constitutionality of § 192.9,
Municipal Code of Chicago. The challenge to that ordinance is
not properly before this court. Accordingly, that matter is
returned to the single district court judge. See Perez v.
Plaintiffs second challenge attacks the Illinois statute on
the ground that it does not contain the requisite element of
scienter. The plaintiffs attack only that portion of the
statute that permits a conviction when a person recklessly
fails to exercise reasonable inspection which would disclose
the content of the allegedly obscene material (See Appendix
The leading decision on the required element of knowledge in
a criminal conviction for obscenity is Smith v. California,
361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In reviewing the
relationship of scienter to first amendment freedoms the court
By dispensing with any requirement of knowledge
of the contents of the book on the part of the
seller, the ordinance tends to impose a severe
limitation on the public's access to
constitutionally protected matter. For if the
bookseller is criminally liable without knowledge
of the contents, and the ordinance fulfills its
purpose, he will tend to restrict the books he
sells to those he has inspected; and thus the
State will have imposed a restriction upon the
distribution of constitutionally protected as
well as obscene literature. 361 U.S. 147, 153, 80
S.Ct. 215, 218.
But the statute here under review does not dispense with any
requirement of knowledge, nor does it mandate inspection. The
question is whether any proof less than that of actual
knowledge, whether proved directly or constructively, as
obviously required by the first clause of the scienter portion
of the Illinois statute, will suffice.
To determine whether the alternative "recklessly failing to
exercise reasonable inspection which would have disclosed the
nature or content" is sufficient, we return to Smith, supra.
While the Court refrained from laying down precise
guidelines, the Court's language nevertheless reflects to us,
as it no doubt did to the Illinois legislature, that statutory
standards of the requisite mental element are conceivably less
than actual knowledge, which would not impose a restriction
upon the distribution of constitutionally protected as well as
"We need not and most definitely do not pass
today on what sort of mental element is requisite
to a constitutionally permissible prosecution of
a bookseller for carrying an obscene book in
stock . . . whether there might be circumstances
under which the State constitutionally might
require that a bookseller investigate further, or
might put on him the burden of explaining why he
did not . . ." Smith v. California, supra, at p.
154, 80 S.Ct. at p. 219.
Our reading of the Court's language is fortified by the
concurring opinion of Mr. Justice Frankfurter wherein he
"No less obviously, the Court does not hold that
a bookseller who insulates himself against
knowledge about an
offending book is thereby free to maintain an
emporium for smut." Id., p. 161, 80 S.Ct. p. 223.
We know from Webster, as would a bookseller, the "reckless"
connotation of "utterly heedless". We find no inhibiting
effect on first amendment principles in the alternative
scienter provision of the Illinois statute, for it is
applicable only to him with knowledge or in the alternative to
him who is heedless of the obvious. In either event, there
must be proof beyond a reasonable doubt of this important
Lastly we are asked to declare the statute unconstitutional
because it does not require an adversary hearing in order to
determine obscenity prior to an arrest for a violation of
Ill.Rev.Stat. Ch. 38, § 11-20. There is no requirement in the
statute that such a hearing be held.
There is a little doubt that as a matter of both law and
fact there is a thin separation between material that is
obscene and that which enjoys first amendment protection.
See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631,
9 L.Ed.2d 584. Because of this thin line the courts must be
certain that the process employed to restrict obscene material
does not sweep protected material into the ash heap along with
its repugnant unprotected counterpart. In order to insure
adequate protection of non-obscene material, a standard has
evolved requiring that prior to any seizure of publications or
other communicative material there must be a judicial
determination of the materials' obscenity. Lee Art Theatre,
Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313;
A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205,
84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrants,
367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Metzger v. Pearcy,
393 F.2d 202 (7th Cir. 1968).
Plaintiffs here have been arrested approximately fourteen to
twenty times in a time space of approximately one year. Each
of the arrests was made with the benefit of a warrant. It
appears that the warrant issued on the strength of testimony
of the officer who entered plaintiff's store and purchased one
or more copies of the plaintiff's material. Presumably the
warrant also issued on the strength of an independent judicial
review of the purchased material. In Books v. Kansas, supra, a
procedure similar to the one now before us was found to be
"constitutionally insufficient." 378 U.S. 205, 208, 84 S.Ct.
1723. There, a judge was given representative copies of certain
books. He perused the books and subsequently issued an order
for seizure of those books and those of their ilk. The Supreme
Court reviewed the seizure and held:
"It is our view that since the warrant here
authorized the sheriff to seize all copies of the
specified titles, and since P-K was not afforded
a hearing on the question of the obscenity
even of the seven novels before the warrant issued,
the procedure was likewise constitutionally
deficient. 378 U.S. 205, 208, 84 S.Ct. 1723, 1725.
The essential predicate relied upon by the Court in reaching
this conclusion was an unwillingness to inhibit the
circulation of material that was constitutionally protected.
Since the seizure would remove from circulation all copies of
the designated books prior to a proper determination of
obscenity the Court found the seizures improper.
It requires no extrapolation to conclude that prior to the
gross removal of any communicative material from the
mercantile main stream an adversary hearing on the issue of
obscenity must be held and the material judicially determined
obscene. See Metzger v. Pearcy, supra.
Plaintiffs argue that the holdings referred to above require
that prior to any state action in any way interfering with the
sale of their material, a judicial determination of obscenity
must be made. We do not agree. Those cases which mandate a
prior hearing are cases factually distinct from that before us
now. It is true that no movies may be seized
without benefit of prior hearing. Lee Art, supra. Neither may
books be seized without a hearing. Books, supra. But here we
are not presented with seizures.
The arrests here do not circumscribe the right of the seller
to continue to sell the allegedly offending material during
the pendency of the state criminal proceedings. He may
continue to do so. Admittedly continued sale of material that
has once precipitated arrest requires a certain temerity. And
to the extent that a bookseller fears further prosecution for
continued sale of that same book there is a prior restraint on
his conduct. But as Mr. Justice Frankfurter noted:
The phrase "prior restraint" is not a
self-wielding sword. Nor can it serve as a
talismantic test . . . "What is needed," writes
Professor Paul A. Fruend, "is a pragmatic
assessment of its operation in the particular
circumstances. The generalization that prior
restraint is particularly obnoxious in civil
liberties cases must yield to more
particularistic analysis." (cite omitted).
Kingsley Books v. Brown, 354 U.S. 436, 441-442,
77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469.
It is our opinion that the prior restraint placed upon an
individual who has been subject to one arrest for the sale of
one publication is not offensive to rights secured by the
first amendment. In Roth-Alberts the United States Supreme
Court approved a state statutory scheme that imposed criminal
penalties for disseminating obscene material. The United States
Supreme Court upheld the state statute with no mention of a
need for a prior adversary hearing. See Kingsley Books, supra.
Accordingly, we hold that in the limited situation presented
here there is no reason for prior hearing as required by Books
v. Kansas and its progeny, and the Illinois statute has not
been unconstitutionally applied to these plaintiffs.
Further, for reasons mentioned above we find no
constitutional defect in the statute on its face traceable to
the absence of a prior adversary hearing in those
circumstances where it is required. Accordingly, we hold 38
Ill.Rev.Stat. § 11-20 is constitutionally valid, and the
complaint in No. 70 C 1235 will be dismissed. An order will
enter consistent with the foregoing.
§ 11-20. Obscenity
(a) Elements of the Offense.
A person commits obscenity when, with knowledge of the
nature or content thereof, or recklessly failing to exercise
reasonable inspection which would have disclosed the nature or
content thereof, he:
(1) Sells, delivers or provides, or offers or agrees to
sell, deliver or provide any obscene writing, picture, record
or other representation or embodiment of the obscene: or
(2) Presents or directs an obscene play, dance or other
performance or participates directly in that portion thereof
which makes it obscene: or
(3) Publishes, exhibits or otherwise makes available
anything obscene: or
(4) Performs an obscene act or otherwise presents an obscene
exhibition of his body for gain: or
(5) Creates, buys, procures or possesses obscene matter or
material with intent to disseminate it in violation of this
Section, or of the penal laws or regulations of any other
(6) Advertises or otherwise promotes the sale of material
represented or held out by him to be obscene, whether or not
it is obscene.
(b) Obscene Defined.
A thing is obscene if, considered as a whole its predominate
appeal is to prurient interest, that is, 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. A thing is obscene even
though the obscenity
is latent as in the case of undeveloped photographs.
(c) Interpretation of Evidence.
Obscenity shall be judged with reference to ordinary adults,
except that it shall be judged with reference to children or
other specially susceptible audiences if it appears from the
character of the material or the circumstances of its
dissemination to be specially designed for or directed to such
Where circumstances of production, presentation, sale,
dissemination, distribution, or publicity indicate that
material is being commercially exploited for the sake of its
prurient appeal, such evidence is probative with respect to
the nature of the matter and can justify the conclusion that
the matter is utterly without redeeming social importance.
In any prosecution for an offense under this Section
evidence shall be admissible to show:
(1) The character of the audience for which the material was
designed or to which it was directed;
(2) What the predominant appeal of the material would be for
ordinary adults or a special audience, and what effect, if
any, it would probably have on the behavior of such people;
(3) The artistic, literary, scientific, educational or other
merits of the material, or absence thereof;
(4) The degree, if any, of public acceptance of the material
in this State;
(5) Appeal to prurient interest, or absence thereof, in
advertising or other promotion of the material;
(6) Purpose of the author, creator, publisher or
A person convicted of obscenity shall for the first offense
be fined not to exceed $1,000.00 or imprisoned in a penal
institution other than the penitentiary not to exceed one
year, or both, and for a second or subsequent offense shall be
confined in the penitentiary for not less than one year nor
more than 3 years, or be fined not less than $1,000.00 nor
more than $5,000.00, or both.
(e) Prima Facie Evidence.
The creation, purchase, procurement or possession of a mold,
engraved plate or other embodiment of obscenity specially
adapted for reproducing multiple copies, or the possession of
more than 3 copies of obscene material shall be prima facie
evidence of an intent to disseminate.
(f) Affirmative Defenses.
It shall be an affirmative defense to obscenity that the
(1) Was not for gain and was made to personal associates
other than children under 18 years of age:
(2) Was to institutions or individuals having scientific or
other special justification for possession of such material.
Illinois Revised Statute — Chapter 38-§ 11-20.
192.9. It shall be unlawful for any person knowingly to
exhibit, sell, print, offer to sell, give away, circulate,
publish, distribute, or attempt to distribute any obscene
book, magazine, pamphlet, paper, writing, card, advertisement,
circular, print, picture, photograph, motion picture film,
play, image, instrument, statue, drawing, or other article
which is obscene. Any person violating any provision of this
section shall be fined not less than $20.00 nor more than
$200.00 for each offense.
Obscene for the purpose of this section is defined as
follows: Whether to the average person, applying contemporary
community standards, the dominant theme of the material taken
as a whole appeals to prurient interests.
Municipal Code of Chicago § 192.9 (1969).
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