APPEAL from the Circuit Court of Vermilion County; the Hon.
HENRY I. HANNAH, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 29, 1971.
On April 16, 1970, a jury in the circuit court of Vermilion County found the defendants, Jack A. Butler and Jack A. Butler Enterprises, guilty of the offense of obscenity for exhibiting the motion picture "Vixen." Jack A. Butler Enterprises was fined $1000; Jack A. Butler was fined $500 and sentenced to one year's probation. Of the numerous issues, some constitutional and some procedural, that have been raised by the defendants on this direct appeal, we find it necessary to consider only one.
The jury viewed the film, and numerous witnesses expressed their opinions as to whether or not it is obscene. There was testimony that the film had been exhibited in cities and towns throughout the State including Chicago, Peoria, Rockford, Kankakee, Aurora, Waukegan, Elgin, Danville, Champaign, Decatur, Bloomington, Lincoln, Galesburg, Havana, Rochelle, North Chicago, LaSalle, Streator, Villa Grove, Macomb, Earlville, Pekin, Tuscola, Canton, Pontiac, Chicago Heights, Freeport, DeKalb, Savanna, Alton, and Chicago suburbs. The business records of defense witnesses showed that since February of 1969, the film had been exhibited in 42 towns and cities throughout the State in 62 different theatres for a total of 336 weeks. The showings at individual theatres varied from one to 43 weeks. Both the distributor of the film and the defendants' manager testified that there had been no problems in connection with the exhibition of the film.
The jury was instructed that "in determining whether or not a movie is obscene, the jury must consider whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." No specific instruction was given to the jury as to the scope or breadth of the "community" by whose contemporary standards the alleged obscenity of the film was to be judged. During the course of the trial, however, both the State's Attorney and the trial judge indicated, in the presence of the jury, that the film could be found obscene if it offended the contemporary community standards of Vermilion County. That position was reiterated by the trial judge when he denied the defendants' post-trial motion for judgment notwithstanding the verdict, on the ground that the evidence could support the jury's determination that the film "did not comply with the contemporary community standards of Vermilion County."
In Roth v. United States (1957), 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304, the United States Supreme Court held that the test for determining 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 489, 1 L.Ed.2d at 1509.) The opinion in this case, however, did not identify the exact community whose standards are to be applied in determining whether the dominant theme of the material appeals to prurient interest. In the subsequent case of Jacobellis v. Ohio (1964), 378 U.S. 184, 12 L.Ed.2d 793, 84 S.Ct. 1676, some of the justices stated that a national standard was constitutionally required; others favored local standards; and still others found it unnecessary to confront the issue, because, in their opinion, the first amendment prohibits all laws regulating what may be depicted in motion pictures. A similar difference of opinion exists among the legal commentators. Compare, e.g., Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards (1960), 45 Minn. L. Rev. 1, 108-114; with Note, Constitutional Law Deprivation of Personal Rights Possessing and Exhibiting Film Evolution of an Obscenity Standard (1965), 16 W. Res.L.Rev. 780, 782-84; with O'Meara & Shaffer, Obscenity in the Supreme Court: A Note on Jacobellis v. Ohio (1964), 40 N.D. Law. 1.
It is unnecessary for us to decide, however, whether a national standard is constitutionally required. Subsection (c)(4) of our statute regulating obscenity relates to the admissibility of evidence and speaks of the "degree, if any, of public acceptance of the material in this State * * *." (Ill. Rev.Stat. 1969, ch. 38, par 11-20(c)(4) (emphasis supplied); cf. Model Penal Code (1962), Proposed Official Draft, p. 239.) In our opinion, the statute contemplates the application of a statewide standard, and not a standard that varies from county to county. (Cf. People v. Sikora (1965), 32 Ill.2d 260, 264-5.) Accordingly, the cause must be remanded for a new trial.
The judgment of the circuit court of Vermilion County is reversed, and the cause is remanded for a new trial.
Mr. JUSTICE RYAN, dissenting:
The majority opinion seems to indicate that the jury was in some manner erroneously instructed that the film could be judged obscene if it offended contemporary community standards of Vermilion County. The opinion assumes that the jury judged the film on a county by county standard and not on a state wide standard.
The jury certainly was not limited in its consideration of evidence to that which pertained to matters acceptable only in Vermilion County. The court granted the defendants broad latitude in the introduction of evidence concerning the degree of acceptance that the film in question had received, not only state wide in Illinois but throughout the country. Reviews of motion picture critics from New York, Los Angeles, Washington and Chicago, all concerning this film, were introduced as evidence of its general acceptance. Witnesses from the academic world testified concerning the general acceptance of films of this type and the number of such films being produced. They testified about the gradual lessening of restrictions on the subject of sex in films from 1895 to date and they expressed their opinions of this film as compared with others being produced and others that had been shown in Vermilion County.
As to the instructions to the jury on the law, the instruction concerning "contemporary community standards" referred to in the majority opinion is in the language of the opinion of the court in Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498 at 1509, 77 S.Ct. 1304. This instruction was not a People's instruction. It was defendant's instruction number 5. The defendants did not tender an instruction which defined the scope and breadth of the community to which their instruction referred.
The majority opinion refers to section 11-20(c)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 11-20(c)(4) as indicating that the statute contemplates the application of a state wide standard. If that is a proper interpretation of that section of the statute then the jury was properly instructed that they were to apply a state wide standard because defendants' instruction number 8 which was given is substantially in the language of this section of the statute. It instructed the jury ...