Rabe v. Washington
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''Rabe v. Washington'', 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on
obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be use ...
charges for showing the film ''
Carmen, Baby ''Carmen, Baby'' is a 1967 American-German-Yugoslav romantic drama film directed by Radley Metzger, based on the novella ''Carmen'' by Prosper Mérimée (which also inspired Bizet popular opera, ''Carmen''). Plot A liberated woman tempts a loc ...
''. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington State had no notice under the Sixth Amendment that the place where a film was shown was an
element of the offense Under United States law, an element of a crime (or element of an offense) is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must pres ...
.


Obscenity law

The First Amendment puts protection for expressive content in terms that are both sweeping and absolute: "Congress shall make no law... abridging the freedom of speech, or of the press" Despite this broad protection, the roots of U.S. attempts to legally suppress obscenity extend back to the English common law offense of obscene libel and censorship of stage plays by the Master of the Revels. American definitions of obscene material were variable and sporadic until 1879, when the test adopted in the English case Regina v. Hicklin (1868) was used in the prosecution of
D. M. Bennett DeRobigne Mortimer Bennett (December 23, 1818 – December 6, 1882), best known as D. M. Bennett, was the founder and publisher of ''Truth Seeker'', a radical freethought and reform American periodical. Biography Shaker Life Derobigne M. Ben ...
. This test regarded all material tending "to deprave and corrupt those whose minds are open to such immoral influences" as obscene, regardless of its artistic or literary merit. This same test was adopted by the United States Supreme Court in ''
Rosen v. United States ''Rosen v. United States'', 161 U.S. 29 (1896), was a case decided by the United States Supreme Court dealing with the concept of obscenity. In a decision written by Justice Harlan, the Court upheld the conviction of the defendant to 13 months h ...
'', 161 U.S. 29 (1896). Under this test, works such as Honoré de Balzac's ''Contes Drolatiques'', Gustave Flaubert's '' Madame Bovary'', James Joyce's ''
Ulysses Ulysses is one form of the Roman name for Odysseus, a hero in ancient Greek literature. Ulysses may also refer to: People * Ulysses (given name), including a list of people with this name Places in the United States * Ulysses, Kansas * Ulysse ...
'', and
D. H. Lawrence David Herbert Lawrence (11 September 1885 – 2 March 1930) was an English writer, novelist, poet and essayist. His works reflect on modernity, industrialization, sexuality, emotional health, vitality, spontaneity and instinct. His best-k ...
's ''
Lady Chatterley's Lover ''Lady Chatterley's Lover'' is the last novel by English author D. H. Lawrence, which was first published privately in 1928, in Italy, and in 1929, in France. An unexpurgated edition was not published openly in the United Kingdom until 1960, w ...
'' had all been subject to suppression under the federal Comstock Laws. In the 1957 case '' Roth v. United States'' 354 U.S. 476 the Supreme Court created a new, stricter definition of obscene material as media where "...to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." This definition repudiated the former practice of finding the most shocking passages and presenting them out of context. The new definition led to much confusion, however, over what terms such as "contemporary community standards" meant in practice. In 1966, a trio of cases (''
Memoirs v. Massachusetts ''Memoirs v. Massachusetts'', 383 U.S. 413 (1966), was the United States Supreme Court decision that attempted to clarify a holding regarding obscenity made a decade earlier in ''Roth v. United States'' (1957). Since the ''Roth'' ruling, to ...
'' 383 U.S. 413, ''
Ginzburg v. United States ''Ginzburg v. United States'', 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases (with ''Memoirs v. Massachusetts'' and ''Mishk ...
'' , and ''
Mishkin v. New York Mishkin (Russian: Мишкин) is a Russian masculine surname, its feminine counterpart is Mishkina. It is derived from the masculine given name Mishka, a diminutive form of Michael (given name), Mikhail. It may refer to the following people: * Law ...
'' ) provided the Court with an opportunity to create more clarity on these points. These three cases resulted in no less than fourteen separate opinions so that lower courts were left in even greater confusion on what constituted obscenity. Justice Harlan even wrote in dissent that: "...no person, not even the most learned judge, much less a layman, is capable of knowing in advance... whether certain material comes within the area of "obscenity" as that term is confused by the Court today."


Prior history

The movie ''
Carmen, Baby ''Carmen, Baby'' is a 1967 American-German-Yugoslav romantic drama film directed by Radley Metzger, based on the novella ''Carmen'' by Prosper Mérimée (which also inspired Bizet popular opera, ''Carmen''). Plot A liberated woman tempts a loc ...
'' was an American-German-Yugoslav romantic drama based on Prosper Mérimée's novella ''
Carmen ''Carmen'' () is an opera in four acts by the French composer Georges Bizet. The libretto was written by Henri Meilhac and Ludovic Halévy, based on the Carmen (novella), novella of the same title by Prosper Mérimée. The opera was first perfo ...
''. The film's director Radley Metzger had begun his film career importing titillating films from Europe. Metzger's new film "...walk da fine line by keeping his films suggestive but not descending fully into explicit hard-core content." The Supreme Court would later note it contained: "sexually frank scenes but no instances of sexual consummation are explicitly portrayed." ''Carmen, Baby'' was playing at the Park Y Drive-In on 28 August 1968 while a city police officer watched from outside the fence. The following night, the officer returned to watch "almost the entire film" in company with the city attorney. Rabe was arrested and two reels of the film were seized as evidence. In Richland District Justice Court he was convicted of "wrongfully and unlawfully caus ngto be exhibited an obscene, indecent and immoral show." He appealed to the Benton County Superior Court and a second trial was held. Rabe argued that under Roth, he could only be convicted if the film as a whole was devoid of artistic merit. The Superior Court did not find the picture was obscene in its entirety but instead that, "Individual portions or scenes of the movie ... are obscene and to passing motorists or persons and residents outside the theatre those individual scenes become a movie by themselves." The statute Rabe was convicted of violating made it a
gross misdemeanor In United States law, a gross misdemeanor is a crime which is more serious than a regular misdemeanor, but is still classified as a minor crime, as opposed to serious crimes. Such crimes may include petty theft, simple assault or driving under th ...
to distribute "any...motion picture film...which is obscene" but made no mention of the time or place being a factor in the offense. Rabe appealed his conviction, eventually to the Washington Supreme Court. He argued that the trial courts had used an incorrect definition of obscenity. Rabe argued that Roth required the courts to consider the movie as a whole and that the lower courts should not have ruled that scenes taken out of context were obscene to those outside the theater. The Washington Supreme Court began by saying that they were as confused about what constituted obscenity as anyone else: "...our resolution of the challenge must necessarily be guided by the United States Supreme Court's troubled and often confusing explication of what expression constitutes obscenity and what expression is entitled to the protective liberties of the federal constitution's First Amendment. Unfortunately, that court's attempt in Roth to define obscenity ''vel non'' has continued to disappoint and confuse the courts, commentators and community alike." They then concluded that, if the film had been seen only by consenting adults in a regular theater it was not wholly devoid of redeeming value and would probably not be obscene. Since the Park Y Drive-In Theater's screen had twelve to fifteen homes and a major street within viewing distance, however, the Court found that it was obscene for those who had "lurid images" inflicted into the normal course of their daily lives. Rabe's conviction was therefore affirmed.


Decision

The Supreme Court's opinion was delivered as a ''per curiam'' one; meaning that it was the opinion of the Court acting as a collective body and not one Justice's opinion. Chief Justice Warren Burger authored a concurrence opinion, joined by Justice William Rehnquist. The majority opinion avoided the obscenity issue, instead accepting the Washington Supreme Court's determination that the film did not meet the Roth definition of obscene. The Court noted that neither context nor location were part of the crime Rabe supposedly committed: " abe'sconviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating." Rabe had no notice that showing the same film in an indoor theater was permissible but that showing it in a drive-in was not. Burger's concurrence agreed on this question but indicated that such outdoor showings might be considered public nuisances. The Court therefore reversed his conviction.


Effects of decision

This judgment became part of the common law doctrine that the Sixth Amendment applies to the states. It extended the holding of ''
In re Oliver ''In re Oliver'', 333 U.S. 257 (1948), was a decision by the United States Supreme Court involving the application of the right of due process in state court proceedings. The Sixth Amendment in the Bill of Rights states that criminal prosecuti ...
'', 333 U.S. 257 (1948) that the right to notice in the Sixth Amendment of accusations protected defendants in state criminal courts. Burger's point on public nuisances was later an issue in '' Erznoznik v. City of Jacksonville'' 422 U.S. 205 (1975). The Court's decision avoided the obscenity issues that had been briefed by the parties. Enforcement of obscenity laws therefore continued to be erratic or abandoned completely. Attempts to clarify the Roth standard would have to wait until ''
Miller v. California ''Miller v. California'', 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, politi ...
'' 413 U.S. 15 (1973) and '' Paris Adult Theatre I v. Slaton'' 413 U.S. 49 (1973). The laws of Washington State were later revised to define "erotic material" instead of obscene media and to generally limit penalties to persons who distributed that type of material to minors.


See also

* List of United States Supreme Court cases, volume 405 * List of United States Supreme Court cases


Notes


References


External links

*
State v. Rabe Washington Supreme Court opinion
{{US6thAmendment United States Supreme Court cases 1972 in United States case law United States Supreme Court cases of the Burger Court Incorporation case law