Brockett v. Spokane Arcades, Inc. 472 U.S. 491 (1985)

Brockett v. Spokane Arcades, Inc.

No. 84-28

Argued February 20, 1985
Decided June 19, 1985
472 U.S. 491

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Syllabus

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. 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. 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 sexual appetites, it could have excised the word from the statute, since the definition also refers to "lasciviousness." Pp. 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. 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. 507. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 510. POWELL, J., took no part in the decision of the cases.