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 prohibited. The precedent for regulating public display is well established. Mr. Justice Brennan has commented,
I may say that whatever theory of the first amendment's scope is championed, all schools of thought... are in substantial agreement... 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 amendment 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.[1]
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 manner so blatant or obtrusive as to make it difficult or impossible for an unwilling individual to avoid exposure to it.[2]
Displaying indecent matter is a petty misdemeanor. This relatively light penalty is based on the small amount of harm done, but it is thought desirable 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 insufficient. This is in accord with United States Supreme Court case law in the area of dissemination of obscene books.[3] 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.
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§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).