Dissent in PEOPLE
v. BRUCE
(Criminal Trial Court of the City of New York,
Nov. 4,
1964)
The following column, written by Judge J. Randall Creel,
ran in the
New York Bar Journal on November 24, 1964. Creel's column is
largely
a statement of the views that led him to
dissent in People v Bruce..
By J. Randall Creel
Judge of the Criminal Court of the City of New York
Throughout the recent Lenny Bruce trial a court of which
I was
a member heard much testimony from many sources in an effort to
ascertain
the "contemporary community standards" as to obscenity as indeed the
directives
of higher courts required (People v. Finklestein, 1961, 11 N. Y. 2d
300:
People v. Roth, 354 U.S. 4761. But in a total absence of any
guideposts
or other directives from such higher courts I fear we proceeded not
unlike
an explorer plunged into a vast uncharted virgin area in pursuit of a
mirage
or some fabled lost golden city. In this quest the time honored
rules
of evidence proved to be something of a highly unsuitable incumbrance,
and the judicial process revealed itself as a most limited and
inadequate,
if not improper, tool for this task.
Is the mandate to find the "community standards" as to
obscenity
just a judicial snipe hunt? The most current judge-made-law as to
obscenity has been established without: any relation to and indeed in
controversion
of "community standards" of obscenity, in a judicial absolutist
application
of a judicially declared doctrine of absolute freedom of expression,
which
has overridden and negated all obscenity laws which may in any way
impinge
upon the summum bonum of unrestrained freedom of all
expression.
This state of the law warrants raising questions as to the suitability
and propriety of attempting to set obscenity standards by the judicial
process and by judges. It should be clearly understood that which
follows are questions I put for myself and myself alone and should
there
be any judicial indignation from higher sources it should not be
directed
at my fellow judges in the Bruce case.
I would suggest that it is most doubtful that there is
in fact
such a thing as a single overall "community standard" as to obscenity,
in such a diverse and varied national community, unless it exists in
the
predilections of such jurists as have laid down such predilection as
such
precep: A very large measure of judicial subjectivity is inherent
in the determination of obscenity by the judicial process and by judges
and it is suggested that this phase "community standard" is most
probably
but another robe to cloak the extent to which the judiciary which has
been
forced to reshape and mold the law as to obscenity, exercise the powers
of super-legislators or indeed of absolute monarchs.
I suggest that Bench and Bar should not be unmindful
that there
are grave limitations in the two-sided judicial process (and in the
judiciary
who can properly function only through that process) in dealing with
such
many and multiple-sided social problems, of which obscenity is but of
very
minor stature among those grave social-policy problems with which
the judiciary of today is required to deal. The limitations of
the
judicial process do not permit the judiciary to call and examine all
witnesses
who are best informed as to the particular problem presented nor make
any
provisions for adequate notice nor an opportunity for those effected to
be heard on what is only a private litigation thought the decisions and
opinion of that private litigation may profoundly effect hundreds of
thousands
of persons, and indeed even alter or amend the basis law of the
constitution.
Periodic constitutional conventions provided for in
Article V
of the Constitution of the United States afford a much more appropriate
adequate and articulate means of solving all such social policy
problems
of our ever changing society than does the judicial process.
The failure of our society to make any use of the
Article V constitutional
convention means of meeting change during an era of rapidly developing
problems coupled with the failure or refusal of all branches of
government,
other than the judiciary, to move to meet the need for change have
placed
upon the limited judicial process not only gravely inappropriate
strains,
but have brought about a most ironic evolution in the Federal
Constitution.
That constitution started as the end product of a revolution against
the
tyrant George III. But it has not developed so as to place the
judiciary
in much the same position of ultimate power once held by the hereditary
magistrate in colonial times or not unlike that held by the Delphic
oracle
in the ancient Greek world. And most ironically, the voice of the
sovereign people is muted into inarticulate impotence once the
judiciary
has rendered an opinion declaring the matter before it of
constitutional
import, whether it is obscenity or other vastly more vital social
policy
problems. This solution has forced the judiciary out of the realm
of pure law, where it is strong, into the arena of policy and politics,
where it is weak, but yet where its decisions have tremendous force on
politics. While the judicial process is a very finely finished
instrument
of the solution of purely legal controversies, for which it was
fashioned,
it is suggested it may be a dangerous or at best a most clumsy tool
when
used to solve problems of policy or politics. Can there be
rational
doubt that there is a better method of finding a community standard as
to obscenity (or solving other graver social problems) than this
limited
judicial process, and judges who are subjected to an almost endless
stream
of gaseous hot air and some smoke from counsel's arguments, briefs, and
records, which swirl around judicial benches not unlike those gaseous
volcanic
emissions which developed the Delphic oracle of old? Has not
human
knowledge, science and art of self-government made more substantial
progress?
The currently prevailing and controlling law as to
obscenity has
been laid down in two very recent decisions of he Court of Appeals, and
in an equally recent series of United States Supreme Court
decisions.
These decisions are clearly interrelated and collectively they have
materially
changed and lowered the legal standards as to obscenity which
heretofore
were recognized by the law. The Court of Appeals decisions are
People
v. Bookcase, Inc. (N.Y.); Leo Larkin Corporation Counsel, et. al. v.
Putnams'
sons (N.Y.). The decisions of the United States Supreme Court are
Grove Press, Inc., v. Gerstein (U.S. June 22, 1964): Tralins v.
Gerstein
(U.S., June 22, 1964) Jacobellis v. Ohio (U.S. June, 1964).
It is noted that to the majority holdings of the Court
of Appeals
there were strong cogent dissents by Chief Judge Desmond and Associate
Judges Burke and Scileppi. The stinging, scalding and caustic
dissenting
opinion of Chief Judge Desmond (Larkin v. Putnams Sons) the effect that
"into the law itself there has come from nowhere a new constitutional
theory
which licenses the most unrelieved sexual filth" did not deter the
majority
of his court from holding that "we are bound," "must respect," "must
follow"
the decisions of the Supreme Court of the United States.
In Larkin v. Putnams' Sons that court held that because
"some
cities" writers and teachers of stature testified at the trial: that
the
alleged obscene matter "has merit and the testimony as a whole showed
differences
of opinion as to its value-it does not warrant suppression" and
apparently
it was not obscene as a matter of law. By this standard the
performances
which are the subject matter of this trial cannot be held to be obscene
since indeed a number of critics, writers, and publishers did testify
that these performances did have critical merit, though there was the
greatest
diversity of opinion as to its critical values or indeed as to its
comprehensiibility
aside from its vulgarity.
In the second very recent decision of the Court of
Appeals, People
v. Bookcase, Inc. it was held that a very recent statutory
enactment designed
to protect minors under eighteen years from the purveyors of
pornography
for profit of that "which exploits" is devoted to or is principally
made
up of descriptions of illicit sex or sexual immorality" namely Penal
law
484B was unconstitutional as too vague for enforcement, the majority
opinion
used the words "so broad and so obscene in its coverage as to abridge
the
constitutionally protected freedom." That statute thus stricken
down,
was the result of a very long most intensive and careful legislative
study
by the legislature of New York State, and it was a far more precise and
definite statute in its terms and provisions than the older broader
termed
and less explicit statute on which the prosecution in the Bruce case
was
based. It that most precisely drafted statute is thus
unconstitutional
it must follow that the far less precise provisions of Penal Law 1140A
are likewise unconstitutional.
These most current high judicial pronouncements of the
law as
to obscenity have reduced legal obscenity to a negative nothingness and
have rendered impotent the sovereign people, their duty elected
representatives,
prosecuting attorneys, law enforcement officials, trial courts and
judges
from taking any constructive action to protect the people or their
children
(and have in fact licensed) the purveyors of the vilest pornography for
profit. The monumental mountainous labor of the judiciary who
have
heard and written of obscenity in a vast articulation into a verbosity
of millions of words has indeed produced a mouse-a nothingness which I
dare to suggest cogently demonstrates the grave limitations of the
judicial
process and of judges in solving social policy problems outside their
domain
of pure law.
It this nihilistic state of judge-made-law as to
obscenity is
found unsuited to the needs of the citizenry in their efforts to
establish
a more perfect society: that citizenry should not be unmindful of the
fact
that under the Constitution of the United States it is the citizenry
who
are the ultimate and final sovereign, not the Judiciary and that under
the procedure provided in Article V of the Constitution by the never
yet
used federal constitutional convention, the citizenry constitutionally
have the right and the power and the duty to find a more perfect
expression
of the law, and not only as to obscenity.
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