COM 0042.001 2002-2004 - Laserfiche WebLink

Home

ants of and: apply - ,taken id cal, or station .)erson Is and ement and: erson, d that, ,t; and ,al, or tality, a per- ast or on, or :male ion a pt of �ewide ' The House to the lawaii P.2d ,nse any lk, a .the his tate PUBLIC HEALTH AND MORALS 712-1213 of sexual excitement or engaged in an act of sexual conduct or sadomas- ochistic abuse; and (b) Which is presented in such a manner as to exploit lust; and (c) Which lacks serious literary, artistic, political, or scientific value. (2) Displaying indecent material is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1981, c 106, §2; am L 1982, c 147, §26; gen ch 1993] COMMENTARY ON §712-1211 Section 712-1211 restates previous Hawaii law regulating public display of matter which would be deemed offensive by a substantial segment of the public. Although nudity and near -nudity now have gained wide acceptance, many people would be affronted by a public display of the sort here pro- hibited. The precedent for regulating public display is well established. Mr. Justice Brennan has com- mented, I may say that whatever theory of the first amendment's scope is championed, all schools of thought... are in substantial agree- ment... that government has some power to regulate the "how" and "where" of the exercise of the freedom; government is not powerless to say that you cannot blare by loudspeaker the words of the first amend- ment in a residential neighborhood in the dead of night, or litter the streets with copies of the text. In other words, though the speech itself be under the first amendment, the manner of its exercise or its collateral aspects may fall beyond the scope of the amendment.' And Mr. Justice Stewart, after underscoring the sanctity of freedom of expression, remarked in his Ginzburg dissent that: Different constitutional questions would arise in a case involving an assault upon individual privacy by publication in a man- ner so blatant or obtrusive as to make it difficult or impossible for an unwilling indi- vidual to avoid exposure to it.' Displaying indecent matter is a petty misde- meanor. This relatively light penalty is based on the small amount of harm done, but it is thought desir- able to have a brief jail sentence available as an unpleasant reminder that society does not favor such conduct. The section requires the mental state of knowledge or recklessness as a minimum basis for prosecution. Thus negligence would be insuffi- cient. This is in accord with United States Supreme Court case law in the area of dissemination of obscene books.' The area of prohibited display is limited to areas which the general public cannot avoid if affronted by the display. Thus it is not as broad as the definition of "public place" in §711- 1100(2). Section 712-1211 contains special requirements that the display be presented in such a manner as to exploit lust and that it be utterly without redeeming social importance. Arguably neither requirement is constitutionally necessary because of the limited area of prohibition, but particularly since certain works of art would otherwise be included it seems wise to include such a limitation on liability. SUPPLEMENTAL COMMENTARY ON §712-1211 Act 106, Session Laws 1981, amended subsection (1)(c) to conform to the revised definition of pornographic in §712-1210. §712-1212 REPEALED. L 1973, c 136, §10. §712-1213 Displaying indecent material; prima facie evidence. The fact that a person engaged in the conduct specified by section 712-1211 is prima facie evidence that the person engaged in that conduct with knowledge of or in reckless disregard of the character, content, or connotation of the material which is displayed. [L 1972, c 9, pt of §1; am L 1987, c 176, §5] Cross References Prima facie evidence, see §701-117. §712-1211 Commentary: 1. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 5 (1965). 2. Ginzburg v. United States, 383 U.S. 463 (1966). 3. Smith v. California, 361 U.S. 147 (1959). 309