Commonwealth v. Bitsocos , 361 Mass. 859 ( 1972 )

These cases arise out of five criminal complaints brought in the District Court of Springfield, each alleging possession for purpose of sale of an obscene magazine. After trial in the District Court, the defendants were found guilty and appealed to the Superior Court. The cases were tried there in a jury waived trial. The defendants were found guilty and the cases are before us under G. L. c. 278, §§ 33A-33G. A recital of the facts would serve no useful purpose. We experience no difficulty in determining that these so called “magazines” have no redeeming social, artistic or any other value. Unfortunately, and most reluctantly, we feel obliged “to point out that the recent decisions of the Supreme Court [of the United States] in Redrup v. New York, 386 U. S. 767, Central Magazine Sales, Ltd. v. United States, 389 U. S. 50, Schackman v. California, 388 U. S. 454, and Bloss v. Dykema, 398 U. S. 278 (see Hunt v. Keriakos, 428 F. 2d 606 [1st Cir.]) extend the protection of the First Amendment to publications and films which, although depicting male and female nudity in sexually provocative poses, do. not portray actual sexual congress or other activities commonly known as hard core pornography. See Stewart, J., dissenting in Ginzburg v. United States, 383 U. S. 463, 499. We might add that we are entirely in accord with the views stated by Mr. Justice Harlan in his dissent in the Bloss case, supra, in which he was of opinion that proscribing material of the sort here involved was ‘the permissible exercise of state power.”’ Commonwealth v. Palladino, 358 Mass. 28, 32. Consequently the judgments must be reversed, the findings set aside, and a finding of not guilty entered in each case.

Gerald R. Hegarty (Alvin Pudlin, of Connecticut, with him) for the defendants. Matthew J. Ryan, Jr., District Attorney (John T. McDonough, Assistant District Attorney, with him), for the Commonwealth.

So ordered.