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City of Moline v. Walker

OPINION FILED SEPTEMBER 30, 1971.

THE CITY OF MOLINE, APPELLANT,

v.

LARRY WALKER, APPELLEE.



APPEAL from the Circuit Court of Rock Island County; the Hon. WALTER E. CLARK, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The defendant, Larry Walker, was arrested and charged on three different occasions in April, 1970, with selling books in violation of the obscenity ordinance of the City of Moline. Counsel for the defendant filed an identical motion to dismiss each of three complaints.

Apparently, the cases were consolidated for the purpose of hearing the motions, and initially, all three motions were denied. Upon rehearing, the court entered identical orders dismissing all of the complaints, wherein it found and ordered:

"1. That the City of Moline is unlawfully trying to limit the matters that citizens may read.

2. That the sale of obscenity to an adult is now within the protection of the First Amendment. IT IS THEREFORE ORDERED, that the Complaints of the City of Moline, Illinois be dismissed, and that the defendant be discharged and his bail be returned."

The City has appealed the dismissal of the complaints, which are consolidated here in one appeal.

Threshold questions emerge in that the defendant's counsel denies that the court ruled the ordinance in question unconstitutional, and asserts that the orders of dismissal appealed from were not final and appealable. While the orders did not specifically find the ordinance unconstitutional, nevertheless, the intent and meaning of the findings can be construed in no other way, and they were final and appealable. (Village of Niles v. Szczesny, 13 Ill.2d 45, 47, 48.) Consequently, the jurisdiction of this court was properly invoked.

The defendant attacks the constitutionality of that section of the ordinance which defines obscenity. It provides:

"Section 2. A thing is obscene for purposes of this Ordinance when to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests; that is,

a) That the dominant theme of the material taken as a whole appeals to a prurient interest in sex, and

b) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of the sexual nature, and

c) The material is utterly without redeeming social value."

He asserts that this definition is faulty because it omits three additional criteria enunciated in Redrup v. New York, 386 U.S. 767, 769, 18 L.Ed.2d 515, 517, 87 S.Ct. 1414, to-wit: "In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed. 645, 64 S.Ct. 438; cf. Butler v. Michigan, 352 U.S. 380, 1 L.Ed.2d 412, 77 S.Ct. 524. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obstrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 622, 95 L.Ed. 1233, 71 S.Ct. 920, 35 A.L.R.2d 335; Public Utilities Comm'n v. Pollak, 343 U.S. 451, 96 L.Ed. 1068, 72 S.Ct. 813. And in none was there evidence of the sort of `pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 16 L.Ed.2d 31, 86 S.Ct. 942."

In United States v. Reidel, 402 U.S. 351, 28 L.Ed.2d 813, 91 S.Ct. 1410, the Supreme Court rejected the very restrictions which the defendant insists must be incorporated in statutory definitions of obscenity. There the defendant had been indicted under section 1461 of Title 18, U.S.C. which prohibits the knowing use of the mails for delivery of obscene matter. The defendant challenged the constitutionality of the statute on the grounds that it failed to protect distribution of obscene materials to willing recipients, who state they are adults. In upholding this statute, the United States Supreme Court distinguished its earlier decisions of Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304, and Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243, which the defendant herein has cited and which are relevant to our determination of the issue at bar. The court, in Reidel, stated at 402 U.S. 351, 355: "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 ...


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