A Washington statute declares to be a "moral nuisance" any place
"where lewd films are publicly exhibited as a regular course of
business" or "in which lewd publications constitute a principal
part of the stock in trade." The statute provides that "lewd
matter" is synonymous with "obscene matter" and defines these terms
to mean,
inter alia, any matter which the average person,
applying contemporary community standards, would find, when
considered as a whole, "appeals to the prurient interest."
"Prurient" is defined to mean "that which incites lasciviousness or
lust." Appellees -- various individuals and corporations who purvey
sexually oriented books and movies -- challenged the statute on
First Amendment grounds in Federal District Court, seeking
injunctive and declaratory relief. The District Court rejected
appellees' constitutional challenges. The Court of Appeals
reversed, invalidating the statute in its entirety on its face on
the ground that the definition of "prurient" as including "lust"
was unconstitutionally overbroad in that it reached
constitutionally protected material that merely stimulated normal
sexual responses.
Held:
The Court of Appeals erred in facially invalidating the statute
in its entirety. Pp.
472 U. S.
496-507.
(a) These cases are governed by the normal rule that partial,
rather than facial, invalidation is the required course. Unless
there are countervailing considerations, the Washington statute
should have been invalidated only insofar as the word "lust" is to
be understood as reaching protected materials. Pp.
472 U. S.
501-504.
(b) Since prurience may be constitutionally defined for the
purposes of identifying obscenity as that which appeals to a
shameful or morbid interest in sex,
Roth v. United States,
354 U. S. 476, if
the Washington statute were invalidated only insofar as the word
"lust" is taken to include normal interest in sex, the statute
would pass constitutional muster and would validly reach a whole
range of obscene publications. Moreover, if the Court of Appeals
thought that "lust" refers
only to normal
Page 472 U. S. 492
sexual appetites, it could have excised the word from the
statute, since the definition also refers to "lasciviousness." Pp.
472 U. S.
504-505.
(c) Even if the statute had not defined prurience at all, there
would have been no satisfactory ground for striking it down in its
entirety. The statute itself contains a severability clause, and it
is evident that, if the statute were invalidated insofar as it
proscribes materials that appeal to normal sexual appetites, the
remainder of the statute would retain its effectiveness as a
regulation of obscenity. In these circumstances, the issue of
severability is no obstacle to partial invalidation. Pp.
472 U. S.
506-507.
725 F.2d 482,
reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
O'CONNOR, J., filed a concurring opinion, in which BURGER, C.J.,
and REHNQUIST, J., joined,
post, p.
472 U. S. 507.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
472 U. S. 510.
POWELL, J., took no part in the decision of the cases.
Page 472 U. S. 493
JUSTICE WHITE delivered the opinion of the Court.
The question in these cases is whether the Court of Appeals for
the Ninth Circuit erred in invalidating in its entirety a
Washington statute aimed at preventing and punishing the
publication of obscene materials.
I
On April 1, 1982, the Washington state moral nuisance law became
effective. Wash.Rev.Code §§ 7.48 A. 010-7.48 A. 900 (1983).
[
Footnote 1] It sets forth a
comprehensive scheme establishing criminal and civil penalties for
those who deal in obscenity or prostitution. The statute declares
to be a "moral nuisance" any place "where lewd films are publicly
exhibited as a regular course of business" and any place of
business "in which lewd publications constitute a principal part of
the stock in trade." §§ 7.48A.020(1), (3). Subsection (2) of the
"Definitions" section of the statute provides that "lewd matter" is
synonymous with "obscene matter," and defines these terms to mean
any matter:
"(a) Which the average person, applying contemporary community
standards, would find, when considered as a whole, appeals to the
prurient interest; and"
"(b) Which explicitly depicts or describes patently offensive
representations or descriptions of:"
"(i) Ultimate sexual acts, normal or perverted, actual or
simulated; or"
"(ii) Masturbation, fellatio, cunnilingus, bestiality, excretory
functions, or lewd exhibition of the genitals or genital area; or
"
Page 472 U. S. 494
"(iii) Violent or destructive sexual acts, including but not
limited to human or animal mutilation, dismemberment, rape or
torture; and"
"(c) Which, when considered as a whole, and in the context in
which it is used, lacks serious literary, artistic, political, or
scientific value."
§ 7.48A.010(2). The word "prurient," as used in subsection
(2)(a), is defined in subsection (8) to mean "that which incites
lasciviousness or lust." § 7.48A.010(8).
On April 5, four days after the effective date of the statute,
appellees -- various individuals and corporations who purvey
sexually oriented books and movies to the adult public [
Footnote 2] -- challenged the
constitutionality of the statute in Federal District Court, seeking
injunctive and declaratory relief. One of their assertions was that
the statute's definition of "prurient" to include "that which
incites . . . lust" was unconstitutionally overbroad because it
reached material that aroused only a normal, healthy interest in
sex, and that the statute was therefore to be declared invalid on
its face. [
Footnote 3]
Appellees alleged that the sexually oriented films and books they
sold were protected by the First Amendment, and that the state
authorities would enforce the new legislation against them unless
restrained by the Court. App. 33. On April 13, the District Court
for the Eastern District of Washington issued a preliminary
injunction against enforcement of the statute.
Id. at
35.
After trial, the District Court rejected all of appellees'
constitutional challenges to the validity of the statute. 544
F.Supp.
Page 472 U. S. 495
1034 (1982). [
Footnote 4] A
divided panel of the Court of Appeals for the Ninth Circuit
reversed. 725 F.2d 482 (1984). It first held that a facial
challenge to the allegedly overbroad statute was appropriate
despite the fact that the law had not yet been authoritatively
interpreted or enforced. This was necessary when First Amendment
rights were at stake lest the very existence of the statute have a
chilling effect on protected expression. The Court of Appeals
acknowledged that facial invalidation required "substantial
overbreadth,"
Broadrick v. Oklahoma, 413 U.
S. 601 (1973), but concluded that the requirement
applies only when the challenged statute regulates conduct, as
opposed to "pure speech." 725 F.2d at 487. Nor did the court find
this to be an appropriate case for abstention.
See Railroad
Comm'n v. Pullman Co., 312 U. S. 496
(1941).
Reaching the merits, the Court of Appeals held that by including
"lust" in its definition of "prurient," the Washington state
legislature had intended the statute to reach material that merely
stimulated normal sexual responses, material that it considered to
be constitutionally protected. Because, in its view, the statute
did not lend itself to a saving construction by a state court, and
any application of the statute would depend on a determination of
obscenity by reference to the "unconstitutionally overbroad"
definition, the Court of Appeals declared the statute as a whole to
be null and void. [
Footnote
5]
Page 472 U. S. 496
The defendant state and county officials separately appealed to
this Court. We noted probable jurisdiction in both cases, 469 U.S.
813 (1984). [
Footnote 6]
II
The Court of Appeals was of the view that neither
Roth v.
United States, 354 U. S. 476
(1957), nor later cases should be read to include within the
definition of obscenity those materials that appeal to only normal
sexual appetites.
Roth held that the protection of the
First Amendment did not extend to obscene speech, which was to be
identified by inquiring
"whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest."
Id. at
354 U. S. 489
(footnote omitted). Earlier in its opinion,
id. at
354 U. S. 487,
n. 20, the Court had defined "material which deals with sex in a
manner appealing to prurient interest" as:
"
I.e., material having a tendency to excite lustful
thoughts. Webster's New International Dictionary (Unabridged, 2d
ed., 1949) defines
prurient, in pertinent part, as
follows:"
". . . Itching; longing; uneasy with desire or longing; of
persons, having itching, morbid, or lascivious longings; of desire,
curiosity, or propensity, lewd. . . ."
"
Pruriency is defined, in pertinent part, as
follows:"
". . . Quality of being prurient; lascivious desire or thought.
. . ."
"
See also Mutual Film Corp. v. Industrial Comm'n,
236 U. S.
230,
236 U. S. 242, where this
Court said as to motion pictures:"
". . . They take their attraction from the general interest,
eager and wholesome it may be, in their subjects, but a
prurient interest may be excited and appealed to. . .
."
(Emphasis added.)
Page 472 U. S. 497
"We perceive no significant difference between the meaning of
obscenity developed in the case law and the definition of the
A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957),
viz:"
". . . A thing is obscene if, considered as a whole, its
predominant appeal is to prurient interest,
i.e., a
shameful or morbid interest in nudity, sex, or excretion, and if it
goes substantially beyond customary limits of candor in description
or representation of such matters. . . ."
"
See Comment,
id. at 10, and the discussion at
page 29
et seq."
Under
Roth, obscenity was equated with prurience and
was not entitled to First Amendment protection. Nine years later,
however, the decision in
Memoirs v. Massachusetts,
383 U. S. 413
(1966), established a much more demanding three-part definition of
obscenity, a definition that was in turn modified in
Miller v.
California, 413 U. S. 15
(1973). [
Footnote 7] The
Miller guidelines for identifying obscenity are:
"(a) whether 'the average person, applying contemporary
community standards' would find that the work, taken as a whole,
appeals to the prurient interest,
Kois v. Wisconsin, [408
U.S.] at
408 U. S. 230,
quoting
Roth v. United States, supra, at
354 U. S.
489; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific
value."
Id. at
413 U. S.
24.
Miller thus retained, as had
Memoirs, the
Roth formulation as the first part of this test, without
elaborating on or disagreeing
Page 472 U. S. 498
with the definition of "prurient interest" contained in the
Roth opinion.
The Court of Appeals was aware that
Roth had indicated
in footnote 20 that material appealing to the prurient interest was
"material having a tendency to excite lustful thoughts" but did not
believe that
Roth had intended to characterize as obscene
material that provoked only normal, healthy sexual desires. We do
not differ with that view. As already noted, material appealing to
the "prurient interest" was itself the definition of obscenity
announced in
Roth; and we are quite sure that, by using
the words "lustful thoughts" in footnote 20, the Court was
referring to sexual responses over and beyond those that would be
characterized as normal. At the end of that footnote, as the Court
of Appeals observed, the
Roth opinion referred to the
Model Penal Code definition of obscenity -- material whose
predominate appeal is to "a shameful or morbid interest in nudity,
sex, or excretion" and indicated that it perceived no significant
difference between that definition and the meaning of obscenity
developed in the case law. This effectively negated any inference
that "lustful thoughts" as used earlier in the footnote was limited
to or included normal sexual responses. [
Footnote 8] It would require more
Page 472 U. S. 499
than the possible ambiguity in footnote 20 to lead us to believe
that the Court intended to characterize as obscene and exclude from
the protection of the First Amendment any and all speech that
aroused any sexual responses, whether normal or morbid.
Appellants urge that, because
Roth defined prurience in
terms of lust, the Washington obscenity statute cannot be faulted
for defining "prurient" as that which "incites lasciviousness or
lust." Whatever
Roth meant by "lustful thoughts" -- and
the State agrees that the Court did not intend to include materials
that provoked only normal sexual reactions -- that meaning should
be attributed to the term "lust" appearing in the state law. On
this basis, the State submits that the statute cannot be
unconstitutional for defining prurience in this manner.
The Court of Appeals rejected this view, holding that the term
"lust" had acquired a far broader meaning since
Roth was
decided in 1957. The word had come to be understood as referring to
a "healthy, wholesome, human reaction common to millions of
well-adjusted persons in our society," rather than to any shameful
or morbid desire. 725 F.2d at 490. Construed in this way, the
statutory definition of prurience would include within the first
part of the
Miller definition of obscenity material that
is constitutionally protected by the First Amendment: material
that, taken as a whole, does no more than arouse, "good, old
fashioned, healthy" interest in sex.
Id. at 492. The
statute, the Court of Appeals held, was thus overbroad and invalid
on its face.
Appellants fault the Court of Appeals for construing the statute
in this manner. Normally, however we defer to the construction of a
state statute given it by the lower federal courts.
Chardon v.
Fumero Soto, 462 U. S. 650,
462 U. S.
654-655, n. 5 (1983);
Haring v. Prosise,
462 U. S. 306,
462 U. S. 314,
n. 8 (1983);
Pierson v. Ray, 386 U.
S. 547,
386 U. S. 558,
n. 12 (1967);
General
Box
Page 472 U. S. 500
Co. v. United States,
351 U. S. 159,
351 U. S. 165
(1956). We do so not only to "render unnecessary review of their
decisions in this respect,"
Cort v. Ash, 422 U. S.
66,
422 U. S. 73, n.
6 (1975), but also to reflect our belief that district courts and
courts of appeals are better schooled in and more able to interpret
the laws of their respective States.
See Bishop v. Wood,
426 U. S. 341,
426 U. S.
345-346 (1976);
Goodin v. Wilson, 405 U.
S. 518,
405 U. S. 524,
and n. 2 (1972). The rule is not ironclad, however, and we surely
have the authority to differ with the lower federal courts as to
the meaning of a state statute. [
Footnote 9] It may also be that, other things being equal,
this would not be a case for deferring to the Court of Appeals.
[
Footnote 10] But we
pretermit this
Page 472 U. S. 501
issue, for the Court of Appeals fell into another error when it
invalidated the statute on its face because of its
"unconstitutionally overbroad" definition of obscenity.
III
Appellants insist that the error was in finding any invalidity
in the statute, even accepting the court's construction of the word
"lust." To be obscene under
Miller, a publication must,
taken as a whole, appeal to the prurient interest, must contain
patently offensive depictions or descriptions of specified sexual
conduct, and on the whole have no serious literary, artistic,
political, or scientific value. Appellants submit that the latter
two
Miller guidelines, which the Washington statute
faithfully follows, will completely cure any overbreadth that may
inhere in the statute's definition of prurience as construed by the
Court of Appeals. We are not at all confident that this would
always be the case. It could be that a publication that on the
whole arouses normal sexual responses would be declared obscene
because it contains an isolated example of conduct required by the
second guideline and because it also fails to have the redeeming
value required by the third. Under the existing case law, material
of that kind is not without constitutional protection. [
Footnote 11]
Facial invalidation of the statute was nevertheless improvident.
We call to mind two of the cardinal rules governing the federal
courts:
"'[o]ne, never to anticipate a question of constitutional law in
advance of the necessity of deciding it; the other, never to
formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.'"
United States v. Raines, 362 U. S.
17,
362 U. S. 21
Page 472 U. S. 502
(1960),
quoting Liverpool, New York & Philadelphia S.S.
Co. v. Commissioners of Emigration, 113 U. S.
33,
113 U. S. 39
(1885). Citing a long line of cases,
Raines also held
that
"[k]indred to these rules is the rule that one to whom
application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional."
These guideposts are at the bottom of the
"elementary principle that the same statute may be in part
constitutional and in part unconstitutional, and that, if the parts
are wholly independent of each other, that which is constitutional
may stand while that which is unconstitutional will be
rejected."
Allen v. Louisiana, 103 U. S. 80,
103 U. S. 83-84
(1881),
quoted with approval in Field v. Clark,
143 U. S. 649,
143 U. S.
695-696 (1892). Absent "weighty countervailing"
circumstances,
Raines, supra, at
362 U. S. 22,
this is the course that the Court has adhered to.
Reagan v.
Farmers' Loan & Trust Co., 154 U.
S. 362,
154 U. S.
395-396 (1894);
Champlin Refining Co. v. Corporation
Comm'n, 286 U. S. 210,
386 U. S.
234-235 (1932);
Watson v. Buck, 313 U.
S. 387,
313 U. S.
395-396 (1941);
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 108
(1976). Just this Term, in
Tennessee v. Garner,
471 U. S. 1 (1985),
we held unconstitutional a state statute authorizing the use of
deadly force against fleeing suspects, not on its face, but only
insofar as it authorized the use of lethal force against unarmed
and nondangerous suspects.
Nor does the First Amendment involvement in this case render
inapplicable the rule that a federal court should not extend its
invalidation of a statute further than necessary to dispose of the
case before it.
Buckley v. Valeo, supra, illustrates as
much. So does
Cantwell v. Connecticut, 310 U.
S. 296 (1940), where the Court did not invalidate the
state offense of "breach of the peace" on its face but only to the
extent that it was construed and applied to prevent the peaceful
distribution of religious literature on the streets. In
Marsh
v. Alabama, 326 U. S. 501
(1946), the Court struck
Page 472 U. S. 503
down a state trespass law only "[i]nsofar as the State has
attempted to impose criminal punishment" on those distributing
literature on the streets of a company town.
Id. at
326 U. S. 509.
NAACP v. Button, 371 U. S. 415
(1963), did not facially invalidate the State's rules against
solicitation by attorneys but only as they were sought to be
applied to the activities of the NAACP involved in that case.
Id. at
371 U. S. 419,
371 U. S. 439.
More recently, in
United States v. Grace, 461 U.
S. 171 (1983), we declined to invalidate on its face a
federal statute prohibiting demonstrations on the Supreme Court
grounds and confined our holding to the invalidity of the statute
as applied to picketing on the public sidewalks surrounding the
building.
Id. at
461 U. S.
175.
For its holding that in First Amendment cases an overbroad
statute must be stricken down on its face, the Court of Appeals
relied on that line of cases exemplified by
Thornhill v.
Alabama, 310 U. S. 88
(1940), and more recently by
Village of Schaumburg v. Citizens
for a Better Environment, 444 U. S. 620
(1980). In those cases, an individual whose own speech or
expressive conduct may validly be prohibited or sanctioned is
permitted to challenge a statute on its face because it also
threatens others not before the court -- those who desire to engage
in legally protected expression but who may refrain from doing so
rather than risk prosecution or undertake to have the law declared
partially invalid. If the overbreadth is "substantial," [
Footnote 12] the law may not be
enforced against anyone, including the party before the court,
until it is narrowed to reach only unprotected activity, whether
by
Page 472 U. S. 504
legislative action or by judicial construction or partial
invalidation.
Broadrick v. Oklahoma, 413 U.
S. 601 (1973).
It is otherwise where the parties challenging the statute are
those who desire to engage in protected speech that the overbroad
statute purports to punish, or who seek to publish both protected
and unprotected material. There is then no want of a proper party
to challenge the statute, no concern that an attack on the statute
will be unduly delayed or protected speech discouraged. The statute
may forthwith be declared invalid to the extent that it reaches too
far, but otherwise left intact.
The cases before us are ones governed by the normal rule that
partial, rather than facial, invalidation is the required course.
The Washington statute was faulted by the Court of Appeals only
because it reached material that incited normal as well as
unhealthy interest in sex, and appellees, or some of them, desiring
to publish this sort of material, claimed that they faced
punishment if they did so. Unless there are countervailing
considerations, the Washington law should have been invalidated
only insofar as the word "lust" is to be understood as reaching
protected materials.
The Court of Appeals was of the view that the term "lust" did
not lend itself to a limiting construction and that it would not be
feasible to separate its valid and invalid applications. Even
accepting the Court of Appeals' construction of "lust," however, we
are unconvinced that the identified overbreadth is incurable and
would taint all possible applications of the statute, as was the
case in
Secretary of State of Maryland v. Joseph H. Munson
Co., 467 U. S. 947
(1984).
See also City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789,
466 U. S.
796-799, and nn. 12-16 (1984). If, as we have held,
prurience may be constitutionally defined for the purposes of
identifying obscenity as that which appeals to a shameful or morbid
interest in sex,
Roth v. United States, 354 U.
S. 476 (1957), it is equally certain that, if the
statute at issue here is invalidated only insofar as the word
"lust" is taken to include
Page 472 U. S. 505
normal interest in sex, the statute would pass constitutional
muster and would validly reach the whole range of obscene
publications. Furthermore, had the Court of Appeals thought that
"lust" refers
only to normal sexual appetites, it could
have excised the word from the statute entirely, since the
statutory definition of prurience referred to "lasciviousness" as
well as "lust." Even if the statute had not defined prurience at
all, there would have been no satisfactory ground for striking the
statute down in its entirety because of invalidity in all of its
applications. [
Footnote
13]
Page 472 U. S. 506
Partial invalidation would be improper if it were contrary to
legislative intent in the sense that the legislature had passed an
inseverable Act or would not have passed it had it known the
challenged provision was invalid. But here the statute itself
contains a severability clause; [
Footnote 14] and under Washington law, a statute is not
to be declared unconstitutional in its entirety unless
"the invalid provisions are unseverable and it cannot reasonably
be believed that the legislature would have passed the one without
the other, or unless the elimination of the invalid part would
render the remainder of the act incapable of accomplishing the
legislative purposes."
State v. Anderson, 81 Wash. 2d
234, 236,
501 P.2d
184, 185-186 (1972). [
Footnote 15] It would be frivolous to suggest, and
Page 472 U. S. 507
no one does, that the Washington Legislature, if it could not
proscribe materials that appealed to normal as well as abnormal
sexual appetites, would have refrained from passing the moral
nuisance statute. And it is quite evident that the remainder of the
statute retains its effectiveness as a regulation of obscenity. In
these circumstances, the issue of severability is no obstacle to
partial invalidation, which is the course the Court of Appeals
should have pursued.
The judgment of the Court of Appeals is accordingly reversed,
and the case is remanded for further proceedings consistent with
this opinion.
So ordered.
JUSTICE POWELL took no part in the decision of these cases.
[
Footnote 1]
An earlier moral nuisance law, Wash.Rev.Code § 7.48.052
et
seq. (1983), adopted as an initiative measure in 1977, was
struck down as an impermissible prior restraint.
See Spokane
Arcades, Inc. v. Brockett, 631 F.2d 135 (CA9 1980), summarily
aff'd, 454 U. S. 1022
(1981).
[
Footnote 2]
Seven separate suits were originally filed in the District Court
for the Eastern District of Washington, where they were
consolidated.
[
Footnote 3]
Appellees also challenged the Washington statute's paraphrasing
of the second and third parts of the test set forth in
Miller
v. California, 413 U. S. 15
(1973).
See infra, at
472 U. S. 497.
The District Court rejected these attacks, and the Court of Appeals
did not address them. Appellees have not renewed these claims in
this Court.
[
Footnote 4]
The District Court stayed its judgment to allow appellees to
seek a stay pending appeal from the Court of Appeals, which the
Court of Appeals subsequently granted. 725 F.2d 482, 485 (1984).
Thus, the statute was not enforced pending appeal.
[
Footnote 5]
Having struck down the statute
in toto on overbreadth
grounds, the Court of Appeals nevertheless went on to conclude that
the statute's civil fine provisions were constitutionally invalid,
on the theory that "the legislature will undoubtedly try again."
725 F.2d at 493. This part of the opinion was obviously unnecessary
to the Court of Appeals' holding, and in view of our disposition of
this case, will require reconsideration on remand.
[
Footnote 6]
Because there are no significant differences between the two
cases, we do not distinguish between them in our discussion.
[
Footnote 7]
The basic difference between the
Memoirs test and the
Miller test was the
Memoirs requirement that in
order to be judged obscene, a work must be "utterly without
redeeming social value." 383 U.S. at
383 U. S. 418.
Miller settled on the formulation, "whether the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value." 413 U.S. at
413 U. S.
24.
[
Footnote 8]
This conclusion is bolstered by a subsequent footnote, 354 U.S.
at
354 U. S. 489,
n. 26, referring to a number of cases defining obscenity in terms
of "lust" or "lustful."
See Parmelee v. United States, 72
App.D.C. 203, 210, 113 F.2d 729, 736 (1940) (material is protected
if "the erotic matter is not introduced to promote lust");
United States v. Dennett, 39 F.2d 564, 569 (CA2 1930) (sex
education pamphlet not obscene because tendency is to "rationalize
and dignify [sex] emotions rather than to arouse lust");
United
States v. One Book Called "Ulysses," 5 F. Supp.
182, 184 (SDNY 1933),
aff'd, 72 F.2d 705 (CA2 1934)
(meaning of the word "obscene" is "[t]ending to stir the sex
impulses or to lead to sexually impure and lustful thoughts");
Commonwealth v. Isenstadt, 318 Mass. 543, 549-550, 62
N.E.2d 840, 844 (1945) (material is obscene if it has "a
substantial tendency to deprave or corrupt its readers by inciting
lascivious thoughts or arousing lustful desire");
Missouri v.
Becker, 364 Mo. 1079, 1085,
272 S.W.2d
283, 286 (1954) (materials are obscene if they "incite
lascivious thoughts, arouse lustful desire");
Adams Theatre Co.
v. Keenan, 12 N.J. 267, 272,
96 A.2d
519, 521 (1953) (BRENNAN, J.) (question is whether "dominant
note of the presentation is erotic allurement
tending to excite
lustful and lecherous desire'").
[
Footnote 9]
The Court has stated that it will defer to lower courts on state
law issues unless there is "plain" error,
Palmer v.
Hoffman, 318 U. S. 109,
318 U. S. 118
(1943); the view of the lower court is "clearly wrong,"
The
Tungus v. Skovgaard, 358 U. S. 588,
358 U. S. 596
(1959); or the construction is "clearly erroneous,"
United
States v. Durham Lumber Co., 363 U. S. 522,
363 U. S. 527
(1960), or "unreasonable,"
Propper v. Clark, 337 U.
S. 472,
337 U. S.
486-487 (1949). On occasion, then, the Court has refused
to follow the views of a lower federal court on an issue of state
law. In
Cole v. Richardson, 405 U.
S. 676,
405 U. S.
683-684 (1972),
e.g., we refused to accept a
three-judge District Court's construction of a single statutory
word based on the dictionary definition of that language where more
reliable indicia of the legislative intent were available.
[
Footnote 10]
Appellants make a strong argument that the Court of Appeals
erred in construing the Washington statute. The Court of Appeals
relied on dictionary definitions of "prurient" and "lust," saying
that the most recent edition of Webster's Third New International
Dictionary (Unabridged, 4th ed.1976) did not include the word
"lust" in its definition of "prurient." But neither did the edition
of Webster cited by the
Roth court. Webster's Second
Edition defined "lust" as (excluding the obsolete meanings):
"sensuous desire; bodily appetite; specif. and most commonly,
sexual desire, as a violent or degrading passion."
Webster's New International Dictionary (Unabridged, 2d ed.,
1949).
Furthermore, and of some significance, the word "lust" is
defined in Webster's Third New International (Unabridged, 5th ed.,
1981) in pertinent part as follows:
"1
obs. a: PLEASURE, GRATIFICATION, DELIGHT . . . b:
personal inclination: WISH, WHIM . . . c: VIGOR, FERTILITY . . . 2:
sexual desire esp. of a violent self-indulgent character: LECHERY,
LASCIVIOUSNESS . . . 3 a: an intense longing: CRAVING . . . b:
EAGERNESS, ENTHUSIASM."
[
Footnote 11]
Roth specifically rejected a standard of obscenity that
"allowed material to be judged merely by the effect of an isolated
excerpt upon particularly susceptible persons." 354 U.S. at
354 U. S.
488-489 (discussing
Queen v. Hicklin, [1868]
L.R. 3 Q.B. 360).
[
Footnote 12]
The Court of Appeals erred in holding that the
Broadrick v.
Oklahoma, 413 U. S. 601
(1973), substantial overbreadth requirement is inapplicable where
pure speech rather than conduct is at issue.
New York v.
Ferber, 458 U. S. 747,
458 U. S. 772
(1982), specifically held to the contrary. Because of our
disposition of these cases, we do not address the issue whether the
overbreadth of the Washington statute, in relation to its
legitimate reach, is substantial and warrants a declaration of
facial invalidity.
See Secretary of State of Maryland v. Joseph
H. Munson Co., 467 U. S. 947,
467 U. S.
964-965 (1984);
CSC v. Letter Carriers,
413 U. S. 548,
413 U. S.
580-581 (1973).
[
Footnote 13]
According to appellees, the vast majority of state statutes
either leave the word "prurient" undefined or adopt a definition
using the words "shameful or morbid." Brief for Appellees 26-27.
One State, New Hampshire, defines prurient interest as "an interest
in lewdness or lascivious thoughts." N.H.Rev.Stat.Ann. §§
650:(1)(I)-(IV)(a) (Supp.1983). Mississippi is apparently the only
State other than Washington to use the word "lust" in its
definition of "prurient." Miss.Code Ann. § 97-29-103(1)(a)
(Supp.1984) ("a lustful, erotic, shameful, or morbid interest in
nudity, sex or excretion"). The District Court for the Northern
District of Mississippi has issued a preliminary injunction against
enforcement of the statute, partly on the ground that "[t]he
inclusion of the terms lustful and erotic [in the definition of
prurient] would permit the application of the statute to arguably
protected materials."
Goldstein v. Allain, 568 F.
Supp. 1377, 1385 (1983),
appeal stayed pending trial on the
merits, Case No. 83-4452 (CA5, June 20, 1984).
Some lower courts considering the issue have used the words
"shameful or morbid" in describing the "prurient interest" that
distinguishes obscene materials.
See, e.g., Red Bluff Drive-In,
Inc. v. Vance, 648 F.2d 1020, 1026 (CA5 1981),
cert.
denied sub nom. Theatres West, Inc. v. Holmes, 455 U.S. 913
(1982);
Leach v. American Booksellers Assn.,
Inc., 582
S.W.2d 738, 749-750 (Tenn.1979). Others, however, have used
"lust" in connection with definitions of "prurient," reading the
word as connoting a sense of shame or debasement, or relying on its
use in
Roth. See, e.g., United States v. 35 MM. Motion
Picture Film Entitled "Language of Love," 432 F.2d 705,
711-712 (CA2 1970);
Childs v. Oregon, 431 F.2d 272, 275
(CA9 1970);
Flying Eagle Publications, Inc. v. United
States, 273 F.2d 799, 803 (CA1 1960).
An obscenity statute that leaves the word "prurient" undefined,
or rather, defined only by case law has been sustained.
See Red
Bluff Drive-ln, Inc. v. Vance, supra, at 1026.
See also
Ward v. Illinois, 431 U. S. 767,
431 U. S. 775
(1977) (state obscenity statute not overbroad for failure to
expressly describe the kinds of sexual conduct intended to be
referred to under part (b) of
Miller guidelines, where
state court had construed statute to incorporate the examples of
sexual conduct mentioned in
Miller). A predecessor of the
Washington statute at issue here similarly used the word "prurient"
without defining it. Wash.Rev.Code § 7.48.050
et seq.
(1983). The Court of Appeals for the Ninth Circuit struck down the
statute on other grounds, but apparently the use of the word
"prurient" was not challenged.
See Spokane Arcades v.
Brockett, 631 F.2d at 136, n. 1. An earlier predecessor
statute used only the word "obscene," without any further
definition whatsoever. The Washington Supreme Court construed the
statute to incorporate the
Roth-Miller test, saving it
from unconstitutional vagueness.
See State v. J-R Distributors,
Inc., 82
Wash. 2d 584, 602-603,
512
P.2d 1049, 1061 (1973). The evident likelihood that the
Washington courts would construe the instant statute to conform
with the
Miller standards also counsels against facial
invalidation in this case.
Cf. Time, Inc. v. Hill,
385 U. S. 374
(1967).
[
Footnote 14]
"If any provision of this act or its application to any person
or circumstance is held invalid, the remainder of the act or the
application of the provision to other persons or circumstances is
not affected." Wash.Rev.Code § 7.48 A. 900 (1983).
[
Footnote 15]
This standard is similar to that which we would apply in
determining the severability of a federal statute:
"'Unless it is evident that the Legislature would not have
enacted those provisions which are within its power, independently
of that which is not, the invalid part may be dropped if what is
left is fully operative as a law.'"
See Buckley v. Valeo, 424 U. S. 1,
424 U. S.
108-109 (1976),
quoting Champlin Refining Co. v.
Corporation Comm'n, 286 U. S. 210,
286 U. S. 234
(1932).
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring.
Only days after the State of Washington adopted the moral
nuisance law at issue here, appellees launched a constitutional
attack in Federal District Court. Although the statute has never
been enforced or authoritatively interpreted by a state court,
appellees allege that it applies to constitutionally protected
expression and is facially invalid. Because I believe that the
federal courts should have abstained and allowed the Washington
courts an opportunity to construe the state law in the first
instance, I think the proper disposition of these cases would be to
vacate the judgment of the Court of Appeals on that ground. The
Court, however, rejects that course and reaches the merits of the
controversy. I join the opinion of the Court because I agree that
the Court of Appeals erred in declaring the statute invalid on its
face.
Page 472 U. S. 508
Although federal courts generally have a duty to adjudicate
federal questions properly before them, this Court has long
recognized that concerns for comity and federalism may require
federal courts to abstain from deciding federal constitutional
issues that are entwined with the interpretation of state law. In
Railroad Comm'n v. Pullman Co., 312 U.
S. 496 (1941), the Court held that where uncertain
questions of state law must be resolved before a federal
constitutional question can be decided, federal courts should
abstain until a state court has addressed the state questions.
Id. at
312 U. S. 501;
see also Hawaii Housing Authority v. Midkiff, 467 U.
S. 229,
467 U. S.
236-237 (1984). This doctrine of abstention acknowledges
that federal courts should avoid the unnecessary resolution of
federal constitutional issues and that state courts provide the
authoritative adjudication of questions of state law.
Attention to the policies underlying abstention makes clear that
in the circumstances of these cases, a federal court should await a
definitive construction by a state court rather than precipitously
indulging a facial challenge to the constitutional validity of a
state statute. There can be no doubt that a state obscenity statute
concerns important state interests. Such statutes implicate
"the quality of life and the total community environment, the
tone of commerce in the great city centers, and, possibly, the
public safety itself"
Paris Adult Theatre I v. Slaton, 413 U. S.
49,
413 U. S. 58
(1973). The nature of the overbreadth claim advanced by appellees
suggests that abstention was required because the Washington
statute is "fairly subject to an interpretation which will render
unnecessary or substantially modify the federal constitutional
question."
Harman v. Forssenius, 380 U.
S. 528,
380 U. S. 535
(1965).
The First Amendment overbreadth doctrine allows a challenge to
the validity of a statute on its face only if the law is
substantially overbroad.
City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789,
466 U. S.
799-801 (1984);
New York v. Ferber,
458 U. S. 747,
458 U. S.
769-773 (1982). Thus, analysis of the constitutional
claims advanced by appellees necessarily
Page 472 U. S. 509
requires construction of the Washington statute to assess its
scope.
Id. at
458 U. S. 769,
n. 24;
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S. 618,
n. 16 (1973) ("[A] federal court must determine what a state
statute means before it can judge its facial constitutionality").
Furthermore, a narrowing construction of a statute might obviate
any challenge on overbreadth grounds.
E.g., id. at
413 U. S.
617-618 (relying on interpretation of State Personnel
Board and Attorney General to reject overbreadth claim). Where a
state statute has never been construed or applied, it seems rather
obvious that interpretation of the statute by a state court could
substantially alter the resolution of any claim that the statute is
facially invalid under the Federal Constitution.
The Court of Appeals opined that the Washington statute is not
susceptible to a limiting construction and therefore any
interpretation by the state court would "neither eliminate nor
materially change the constitutional issues presented here." 725
F.2d 482, 488 (1984). This assertion is simply implausible. As
noted in the opinion of this Court, the conclusion below that the
state statute reaches
any expression protected by the
First Amendment rests on a dubious interpretation of the word
"lust" as used in the statute.
Ante at
472 U.S. 500-501, n. 10. Both the text
and the background of the Washington statute indicate that the
state legislature sought to conform the moral nuisance law to the
constitutional standards outlined by this Court in
Miller v.
California, 413 U. S. 15
(1973). Moreover, the state courts have demonstrated their
willingness to construe state obscenity laws in accord with Miller.
See State v. J-R Distributor, Inc., 82 Wash. 2d
584,
512 P.2d
1049 (1973),
cert. denied, 418 U.
S. 949 (1974).
Apart from its unwarranted belief that the statute is not fairly
subject to a limiting construction, the Court of Appeals asserted
that
Pullman abstention should "almost never" apply where
a state statute is challenged on First Amendment grounds "because
the constitutional guarantee of free expression is, quite properly,
always an area of particular
Page 472 U. S. 510
federal concern." 725 F.2d at 488. This Court has never endorsed
such a proposition.
See Babbitt v. Farm Workers,
442 U. S. 289,
442 U. S.
306-312 (1979). On the contrary, even in cases involving
First Amendment challenges to a state statute, absention may be
required
"'in order to avoid unnecessary friction in federal-state
relations, interference with important state functions, tentative
decisions on questions of state law, and premature constitutional
adjudication.'"
Id. at
442 U. S. 306,
quoting Harman v. Forssenius, supra, at
380 U. S. 534;
see also Harrison v. NAACP, 360 U.
S. 167,
360 U. S.
176-178 (1959).
The decision of the Court of Appeals represents a premature and
avoidable interference with the enforcement of state law in an area
of special concern to the States. Speculation by a federal court
about the meaning of a state statute in the absence of prior state
court adjudication is particularly gratuitous when, as is the case
here, the state courts stand willing to address questions of state
law on certification from a federal court. Wash.Rev.Code §§
2.60.010-2.60.900 (1983); Wash. Rule App. Proc. 16.16.
Cf.
Bellotti v. Baird, 428 U. S. 132,
428 U. S.
150-151 (1976). In my view, the state courts should have
been afforded an opportunity to construe the Washington moral
nuisance law in the first instance.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
We granted certiorari to consider the holding of the United
States Court of Appeals for the Ninth Circuit that the Washington
state obscenity law, Wash.Rev.Code §§ 7.48 A. 0107.48 A. 900
(1983), is substantially overbroad and therefore invalid on its
face under the First Amendment because it defines "prurient" in
such a way as to reach constitutionally protected material that
stimulates no more than a healthy interest in sex. This statute is,
in my view, unconstitutionally overbroad and therefore invalid on
its face for the reasons given in my dissent in
Paris Adult
Theatre I v. Slaton, 413 U. S. 49,
413 U. S. 73
(1973). I would therefore affirm the judgment of the Court of
Appeals.