Fate of obscenity prosecutions in hands of Wisconsin high court

Thursday, April 9, 1998

The Wisconsin Supreme Court could soon determine the fate of all obscenity prosecutions in the state, if it agrees to review the conviction of an adult bookstore under a county obscenity ordinance.

C & S Management, which operates a Kenosha County adult bookstore called Crossroads, is appealing its January 1997 conviction for selling certain sexually explicit videotapes to undercover officers.

The bookstore argues that the conviction should be set aside because: (1) the obscenity laws–both county and state–are vague and overbroad under both federal and state constitutions; (2) the trial judge wrongfully refused to allow the bookstore to present expert evidence on “community standards”–an important facet in any obscenity case; (3) the trial judge's jury instructions on obscenity law failed to comply with federal case law; and (4) the prosecution of the bookstore was discriminatory, because only “adult bookstores” were charged while other mainstream video stores avoided charges, even though they sold or rented similar videotapes.

After the jury's finding, the bookstore appealed to the Wisconsin Court of Appeals. Instead of ruling, however, the appeals court sought the advice of the state's highest court.

In a procedure known as certification, the Wisconsin Court of Appeals presented three issues for the Wisconsin Supreme Court to review and consider:

  • Are the county and state obscenity laws vague and overbroad in violation of the federal and Wisconsin constitutions?
  • Were jury instructions that expanded the federal obscenity standard erroneous?
  • What hurdles must an obscenity defendant overcome in order to obtain a hearing on a “selective prosecution” claim?

The appeals court certified these issues to the state supreme court on March 18, but the state's highest court has yet to rule whether it will accept the case. If it does not and offers no guidance, the court of appeals must hear the case itself.

Kenosha County assistant district attorney Angelina Gabriele said that the county obscenity ordinance is constitutional “because it is identical to the standard articulated by the U.S. Supreme Court in Miller v. California.”

In Miller, the U.S. Supreme Court established a three-part test for obscenity. In order to be legally obscene, material must appeal predominantly to the prurient interest, depict sexual conduct in a patently offensive way and have no serious literary, artistic, political or scientific value.

Rob Henak, the attorney representing the adult bookstore, disagrees. He said that his client is challenging both the obscenity law itself, as well as the way the case was tried.

Henak admits he faces an uphill battle in petitioning the appellate courts to strike down state and local obscenity laws. “We are definitely pushing the ball upward,” he said.

“I do believe that the state has no business censoring what consenting adults see, hear or read. As long as the material is not being forced on people or distributed to juveniles, it should be protected,” he said.

One option available to the Wisconsin Supreme Court, should it agree to decide the issues, would be to find that the state constitution protects even obscene material.

The Oregon Supreme Court ruled in 1987 that its state constitution prohibited an obscenity exception to the First Amendment, writing that “the very fact that 'obscenity' originally was pursued and repressed for its 'anti-establishment' irreverence rather than for its bawdiness … and only to protect the morals of youth in this state leads us to conclude that no broad or all-encompassing historical exception from the guarantees of free expression was ever intended.”

However, at least one constitutional law expert believes the Wisconsin Supreme Court will not follow the path of the Oregon court. Gordon Baldwin, a law professor at the University of Wisconsin-Madison, said: “The Wisconsin Supreme Court is not likely to grant more protection under the state constitution than under the Miller [federal] test. You have to remember this is an elected court.”

Baldwin did predict that there would be “some disagreement” on the court. “There are definite liberal and conservative blocs,” he said.

Baldwin said the court is more likely to rule in favor of the bookstore on the faulty-jury instructions or exclusion-of-expert-evidence arguments. Henak agreed that “the trial issues are extremely strong.”

However, Gabriele says the trial claims are without merit. “The claim that the conviction should be set aside because the jury instructions were faulty is without substance. The purpose of jury instructions is to inform and educate jurors about these issues. The judge simply took archaic language, such as 'prurient interest,' and tried to define them in a way that 1990 citizens could understand,” she said.

The Wisconsin Supreme Court has no timetable for deciding whether to hear the case of County of Kenosha v. C & S Management, Inc.