Bennett v. State
Powers, J., dissenting: Appellant was convicted of having obscene matter in his possession with intent to distribute it. The possession 251 and intent are not questioned. The newspapers he had are within the statutory definition of “matter,” in Code Art. 27, § 417. He contends they are not obscene.
The free speech and free press guaranties of the First Amendment do not protect obscenity, Roth v. United States, 354 U. S. 476 , 77 S. Ct. 1304 (1957). The ever recurring question is, what is obscenity? There have been countless judicial opinions and other writings on the subject. I think that most deal with it as an academic exercise, in intellectual isolation from reality.
It has been well said that a trial is a search for the truth. I take it as equally true that an appeal is a search for the law. The Supreme Court has expressed various (and varying) perimeters of the answer. In its per curiam opinion in Redrup v. New York, 386 U. S. 767 , 87 S. Ct. 1414 (1967) and in a series of per curiam orders following Redrup , that Court set aside State obscenity convictions on the ground that the material was constitutionally protected, regardless of which of the views of the members of the Court might be applied.
Until the Supreme Court is prepared to come to grips with the issue, I think the search still goes on. When, in reversing the judgment below in this case, the majority opinion says, referring to portions of the offending matter: “Gross and repulsive though they be, we conclude, under the present state of federal constitutional law, that the publication, considered as a whole, is not hard-core pornography or otherwise legally obscene,” I perceive that my brothers take the position they do because of a combined sense of compulsion and frustration. I share the frustration, but I do not feel the compulsion. When a person convicted of a crime raises a constitutional issue on appeal, it is our duty, in order to determine the applicability of the law, to make an independent, reflective constitutional judgment on the facts.
My 252 independent, reflective constitutional judgment is that the offending matter is hard-core pornography, and is obscene, in violation of the statute under which appellant was charged and convicted. I would affirm the judgment.