§712-1214 - Promoting pornography.

§712-1214 Promoting pornography. (1)
A person commits the offense of promoting pornography if, knowing its content
and character, the person:

(a) Disseminates for monetary consideration any
pornographic material; or

(b) Produces, presents, or directs pornographic
performances for monetary consideration; or

(2) Promoting pornography is a misdemeanor. [L
1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §712-1214

Section 712-1214 imposes a general penalty upon the
commercial dissemination of pornography, regardless of the form of the
"material" [§712-1210] or "performance" [§712-1210].

The definition of "pornographic" [§712-1210] is
derived from a series of United States Supreme Court cases,[1] other proposed
or enacted codifications,[2] and the Model Penal Code.[3] The usual reference
with respect to "predominant appeal" test and the "limits of
candor" test is to the "ordinary adult"; however, the definition
is flexible to the extent that, on the first test, where the material or
performance in question is addressed to a particular, clearly defined audience,
such as homosexuals and sexual sadists, the reference is to the "special
interest group."[4] Special problems relating to minors are handled
separately in §712-1215.

References in United States Supreme Court opinions to
"contemporary community standards" have proven troublesome for the
Court and for lower courts that have tried to follow its decisions. In Roth
the Court applied "contemporary community standards" to the
predominant appeal test.[5] In Memoirs, the Court applied "contemporary
community standards" to the limits of candor test,[6] but not to the
predominant appeal test.[7] In Ginzburg the Court applied the concept of
community standards in determining whether the material had social value for
the audience (general public) to which it was directed.[8] It should, however,
be noted that the Court in Ginzburg was sharply divided and that in most
decisions the applications of "contemporary community standards" has
been only to the predominant appeal and limits of candor tests.

The most serious problem in the application of
"contemporary community standards" is the uncertain nature and size
of the "community" referred to. On this too, the Court is divided.
Mr. Justice Harlan has said:

There must
first be decided the relevant "community" in terms of whose standards
of decency the issue must be judged. We think that the proper test under this
federal statute, reaching as it does to all parts of the United States whose
population reflects many different ethnic and cultural backgrounds, is a
national standard of decency. We need not decide whether Congress could
constitutionally prescribe a lesser geographical framework for judging this
issue which would not have the intolerable consequence of denying some sections
of the country access to material, there deemed acceptable, which in others
might be considered offensive to prevailing community standards of decency.
Cf. Butler v. Michigan, 352 U.S. 380.[9]

This "national community" standard has been echoed by
Mr. Justice Brennan:

We do not see
how any "local" definition of the "community" could
properly be employed in delineating the area of expression that is protected by
the Federal Constitution. ...It is true that Manual Enterprises dealt with the
federal statute banning obscenity from the mails. But the mails are not the
only means by which works of expression cross local community lines in this
country. It can hardly be assumed that all the patrons of a particular
library, bookstand, or motion picture theater are residents of the smallest
local "community" that can be drawn around that establishment.
Furthermore, to sustain the suppression of a particular book or film in one
locality would deter its dissemination in other localities where it might be
held not obscene, since sellers and exhibitors would be reluctant to risk
criminal conviction in testing the variation between the two places....

It is true
that local communities throughout the land are in fact diverse, and that in
cases such as this one the Court is confronted with the task of reconciling the
rights of such communities with the rights of individuals. Communities vary,
however, in many respects other than their toleration of alleged obscenity, and
such variances have never been considered to require or justify a varying
standard for application of the Federal Constitution. The Court has regularly
been compelled, in reviewing the criminal convictions challenged under the Due
Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights
of the local community which brought the prosecution and of the individual
defendant. Such a task is admittedly difficult and delicate, but it is
inherent in the Court's duty of determining whether a particular conviction
worked a deprivation of rights guaranteed by the Federal Constitution. The
Court has not shrunk from discharging that duty in other areas, and we see no
reason why it should do so here. The Court has explicitly refused to tolerate
a result whereby "the constitutional limits of free expression in the
Nation would vary with state lines," Pennekamp v. Florida, supra, 328
U.S., at 335; we see even less justification for allowing such limits to vary
with town or county lines. We thus reaffirm the position taken in Roth to the
effect that the constitutional status of an allegedly obscene work must be
determined on the basis of a national standard. It is, after all, a national
Constitution we are expounding.[10]

On the other hand, former Chief Justice Warren, dissenting in
Jacobellis, thought the standard should be the "local" community:

It is my
belief that when the Court said in Roth that obscenity is to be defined by
reference to "community standards," it meant community standards not
a national standard, as is sometimes argued. I believe that there is no
provable "national standard," and perhaps there should be none. At
all events, this Court has not been able to enunciate one, and it would be
unreasonable to expect local courts to divine one. It is said that such a
"community" approach may well result in material being proscribed as
obscene in one community but not in another, and, in all probability, that is
true. But communities throughout the Nation are in fact diverse, and it must
be remembered that, in cases such as this one, the Court is confronted with the
task of reconciling conflicting rights of the diverse communities within our society
and of individuals.[11]

The disagreement within the Court is all the more difficult
to understand because the standard provided in Roth, Manual Enterprises,
Jacobellis, Memoirs, Mishkin, and other cases, was derived from the Model Penal
Code,[12] which clearly intended that a national standard be applied.[13]

In the wake of the Supreme Court's failure to provide a clear
rule, the state and lower federal courts have split three ways: applying either
a "local,"[14] "state,"[15] or "national"[16] standard.

It appears to us that there is little to be gained by using
the phrase "contemporary community standards"--which the Code
deliberately does not employ. The reference will have to be made to
contemporary standards of ordinary adults--but the use of the word
"community" in this context has posed more problems than it has
solved. It seems that the reference is at least statewide and probably
national--but to use the word "community" at either level adds little
or nothing. In any event, the Code's definition of "pornographic"
will not prejudice further case development on this issue.

The Code limits the offense of promoting pornography to
activity carried on for monetary consideration. It is commercial exploitation
and not private tastes that are the gravamen of the offense. As the drafters
of the Michigan proposed revision have pointed out:

... [T]he
emphasis in this area should be on commercial distribution of pornographic
material. We should not open up to prosecution, police investigation, search,
etc. every person who in the privacy of his home exhibits pornographic
materials to a few friends [cf. Redmond v. United States, 384 U.S. 264, 86
S.Ct. 1415, 16 L.Ed. 2d 521 (1966)].[17]

Moreover, making criminal private possession of materials, and
possibly private expressions through performances, albeit pornographic in
nature, appears to be unconstitutional.[18]

It should be pointed out that the definition of the offense
provides that the accused must act knowingly with respect to the pornographic
context and character of the material the accused disseminates or the
performance the accused presents, directs, or in which the accused
participates. This meets the constitutionally imposed requirement of mens rea
in this type of case[19] and is in accord with the general principles set forth
in Chapter 702 of this Code.

The previous Hawaii law relating to pornographic and other
condemned publications was set forth in HRS §727-8. No extended discussion is
required to demonstrate that this section of the Code is to be preferred to
previous law. In line with the Code's limitation to commercial exploitation,
the available penalty has been increased.[20]

Law Journals and Reviews

State v. Kam: The Constitutional Status of Obscenity in
Hawaii. 11 UH L. Rev. 253.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

Privacy Outside of the Penumbra: A Discussion of Hawai'i's
Right to Privacy After State v. Mallan. 21 UH L. Rev. 273.

Case Notes

Subsection (1)(a) is not unconstitutional for overbreadth or
void for vagueness. 58 H. 440, 573 P.2d 945.

Jury must find that community standard exists and defendant
violated it. 68 H. 631, 726 P.2d 263.

Section unconstitutional as applied to sale of pornographic
materials to person intending to use items in privacy of own home, but was not
unconstitutionally vague or overbroad. 69 H. 483, 748 P.2d 372.

__________

§712-1214 Commentary:

1. Roth v. United States, 354 U.S. 476 (1957); Manual
Enterprises v. Day, 370 U.S. 478 (1962); Jacobellis v. Ohio, 378 U.S. 184
(1964); A Book Named "John Cleland's Memoirs of a Woman of Pleasure"
v. Massachusetts, 383 U.S. 413 (1966); Mishkin v. New York, 383 U.S. 502
(1966); Ginzburg v. United States, 383 U.S. 463 (1966); and Redrup v. New York,
386 U.S. 767 (1967). Insofar as Ginzburg can be read to render pornographic
materials which would not otherwise be so but for defendant's salesmanship
("pandering"), the Code chooses not to incorporate this aspect into
the standard definition provided.

2. Prop. Mich. Rev. Cr. Code §6301(f) and N.Y.R.P.L. §235.00.

3. M.P.C. §251.4.

4. Cf. Mishkin v. New York, supra.

5. Roth v. United States, supra at 489: "...whether to
the average person, applying contemporary community standards, the dominant
theme of the material taken as a whole appeals to prurient interest."

6. Memoirs v. Massachusetts, supra at 418: "...the
material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters."

7. Id.

8. Ginzburg v. United States, supra at 472: "The
Government does not seriously contest the claim that the book has worth in such
a controlled, or even neutral environment [members of medical associations].
Petitioners, however, did not sell the book to such a limited audience, or
focus their claims for it on its supposed therapeutic or educational value;
rather, they deliberately emphasized the sexually provocative aspects of the
work, in order to catch the salaciously disposed."

9. Manual Enterprises v. Day, supra at 488.

10. Jacobellis v. Ohio, supra at 193-195.

11. Id. at 200-201.

12. See Manual Enterprises v. Day, supra at 485 and Jacobellis
v. Ohio, supra at 191.

13. M.P.C. §251.4(4): "In any prosecution under this
Section evidence shall be admissible to show...the degree of public acceptance
of the material in the United States."

14. City of Newark v. Humphres, 94 N.J. Super. 395, 228 A.2d
550 (1967); Nessinoff v. Harper, 212 So. 2d 666 (Fla. Dist. Ct. App. 1968).

15. In re Giannini, 69 Cal. 2d 563, 446 P.2d 535, 72 Cal. Rptr.
655 (1968), cert. denied, sub nom. California v. Giannini, 395 U.S. 910
(1969); McCanley v. Tropic of Cancer, 20 Wisc. 2d 134, 121 N.W. 2d 545 (1963).

16. Hudson v. State, 234 A.2d 903 (D.C. Mun. Ct. App. 1967);
State v. Lewitt, 3 Conn. Cir. Ct. 605, 222 A.2d 579 (1966); State v. Smith, 422
S.W.2d 50 (Mo. 1967), cert. denied, 393 U.S. 895 (1968).

17. Prop. Mich. Rev. Cr. Code, comments at 483.

18. Stanley v. Georgia, 394 U.S. 557 (1969).

19. Smith v. California, 361 U.S. 147 (1959).

20. Cf. HRS §727-10.