Michigan Decency Action Council
Basic Information Series

"The Michigan Obscenity Statute -- With Comments"

This paper contains the actual language of the Michigan state obscenity law with comments interspersed to aid the average non-attorney in understanding the significance of certain sections of the statute. The actual language of the law is printed in bold type. Comments are printed in normal type within bracketed areas. In general, comments follow the portion of the law to which they refer.

Though identified here as Public Act 343 of 1984, changes were made to the original act on October 8, 1992, when Governor John Engler signed P.A. 216 of 1992 into law. The changes made by that act became effective on April 1, 1993, and have been incorporated into this paper. MCLA numbers have been changed in anticipation of what those new numbers will be.

Public Act No. 343 of 1984

The Public Act number assigned simply means this was the 343rd bill signed into law by the governor in 1984. For that reason, attorneys usually refer to the number assigned the statute in the Michigan Compiled Laws-Annotated (MCLA). Those numbers identify the statute and the sections within the statute. In this case, the obscenity statute has been assigned MCLA numbers 752.361 - 752.373.

The act begins with a "short definition" and then sections 1 - 4 which define the terms used throughout the statute. The definitions are a critically important part of the law.

AN ACT to define and prohibit the possession or dissemination of obscene material under certain circumstances; to prohibit conduct related thereto; to provide penalties; to prohibit local units of government from enacting or enforcing any law, ordinance or rule pertaining to matters under this act; and to repeal certain acts and parts of acts.

Sec. 2. (1) "Contemporary community standards" means the customary limits of candor and decency in this state at or near the time of the alleged violation of this act.

Note that the act defines the "community" as the entire state of Michigan. This goes beyond the requirement set down by the U.S. Supreme Court in Miller vs. California, the landmark ruling handed down in 1973. Many believe a more reasonable criteria would define the community as the area (or vicinage) from which the jurors were selected and in which the alleged crime occurred.

(2) "Disseminate" means to manufacture, sell, lend, rent, publish, exhibit, or lease to the public for commercial gain, or to offer to or agree to manufacture, sell, lend, rent, publish, exhibit, or lease to the public for commercial gain.

(3) "Knowledge of content and character" means having general knowledge of the nature and character of the material involved. Knowledge of content and character may be proven by direct or circumstantial evidence, or both.

Referred to as the "guilty knowledge" or "scienter" provision , this part of the law has been changed by the passage of PA 216. Until it was changed, the prior language was found to be unconstitutional by a number of courts across the state.

"Gilty knowledge" simply means that the prosecutor must be able to prove that the accused knew the nature and content of the material being disseminated.

(4) "Material" means anything tangible which is capable of being used or adapted to arouse prurient interest, whether through the medium of reading, observation, sound or in any other manner, including but not limited to, anything printed or written, any book, magazine, newspaper, pamphlet, picture, drawing, pictorial representation, motion picture, photograph, video tape, video disk, film, transparency, slide, audiotape, audiodisk, computer tape,or any other medium used to electronically produce or reproduce images on a screen, or any mechanical, chemical, or electronic reproduction. Material includes undeveloped photographs, molds, printing plates, and other latent representational objects whether or not processing or other acts are required to make the content of the material apparent.

(c) The material depicts or describes sexual conduct in a patently offensive way.

The definition of "obscene " is a critical part of this law. In (a), (b), and (c) above, Michigan law incorporates the definition of obscenity set down by the U.S. Supreme Court in Miller vs. California in 1973. Note that it is a three part test requiring that all three parts must be applied and met before a judgment of obscene can be found.

The following section further defines the language used in the definition of obscenity. At times the law must become quite graphic, especially as it defines sexual conduct.

752.363 Definitions; P.

(3) "Ultimate sexual acts" means sexual intercourse, fellatio, cunnilingus, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, or depictions or descriptions of sexual bestiality, sadomasochism, masturbation, or excretory functions.

With the conclusion of the definition sections, the statute now moves on to describe the types of criminal activities and the penalties for them.

752.365 Obscenity ; misdemeanor; penalty; second or subsequent offense.

Sec. 5. (1) A person is guilty of obscenity when, knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, any obscene material .

(3) A person who is convicted of a second or subsequent offense under this section is guilty of a felony and may be imprisoned for not more than 2 years, and shall be fined not less than $50,000.00 and not more than $5,000,000.00. For purposes of this section, an offense is considered a second or subsequent offense if the defendant has previously been convicted under this section or under any similar statute of the United States or any state.

After correcting a purported constitutional issue in the "guilty knowledge" section, the most significant positive change made by P.A. 216 was the change reflected in this section. The original act established two "degree" of obscenity — one intended to identify "adult" bookstores, etc. and the other dealing with obscenity disseminated in a place where the "predominate" business was not sexually explictic materials. That simply did not work.

P.A. 216 did away with that attempt to establish degrees and simply identified obscenity as obscenity. The law was also strenghten by creating a felony offence for repeat offenders. A felony count is consider much more seriously under the law. The addition of a felony status rightly reflects to seriousness of the problem.

752.366 Applicability of 752.365 .

(d) A cable television operator that is subject to the communications act of 1934, chapter 652, 48 Stat. 1064.

This section is one of the most disturbing portions of the law. It does something found in no other criminal statute that we are aware of — it grants statutory immunity from prosecution by reason of a person's employment. While it may be argued that Sec. 7,(a),(i),(ii) and (iii) offer protection from harassment to school, library and museum personnel, the last subsection is indefensible. By offering immunity to everyone in a store except the manager or owner, the hands of law enforcement have been tied. Indeed, most "adult" bookstores and movie theaters no longer have a "manager" on site and corporate records often list nonresident owners. When located these nonresident owners often claim they did not know what was being sold and therefore do not have the "guilty knowledge" to be successfully prosecuted. [See Sec. 2.(3) for definition of guilty knowledge.]

While none of us would like to see an 18 year old grocery store clerk arrested for selling obscene material, neither should that person be held unaccountable if he/she had knowledge of what was being sold. As you can see, the guilty knowledge portion of the law already offers protection to the innocent clerk. However, by granting immunity to the clerk ahead of time, law enforcement officials have little or no way to prove the guilt of the nonresident owner.

In short, we agree with others who have called this section of the law the "Hitler Defense." It is no more or no less than the same argument used by the Nazi war criminals who claimed they were not guilty because they were just doing their jobs. That argument did not fly at Nuremberg and it should not fly in Michigan.

752.368 Prohibited conduct; violation as misdemeanor; penalty.

(a) As a condition to a sale, allocation, consignment, or delivery for the resale of any paper, magazine, periodical, book, publication, or other merchandise, require or demand that the purchaser or consignee receive for resale or further commercial distribution any obscene material.

(b) Deny, revoke, or threaten to deny or revoke a franchise, or impose or threaten to impose any penalty, financial or otherwise, because of the failure or refusal to accept obscene material or material reasonably believed by the purchaser or consignee to be obscene.

(2) A violation of this section is a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $500.00, or both.

Sec. 8 is a well-written and important part of the law. It offers protection to store owners who don't want to sell certain types of material in their stores. In the past it was not uncommon for store owners to complain that the magazine wholesalers were demanding that they sell all the magazines the wholesaler wanted to put on their racks. Store owners were told that the wholesalers would not provide any magazines if they didn't take everything. This section prohibits that kind of sales tactic.

Sec. 9. A prosecuting attorney or the attorney general may commence and prosecute an action under this act.

This section specifies who can bring action under the statute. Note that neither a citizen, local official nor city, township or village attorney may bring action. This is probably as it should be.

752.370 Prohibited law, ordinance, or rule; exceptions.

(2) Subsection (1) does not apply to a zoning law, zoning ordinance, or zoning rule.

This section specifically pre-empts any local statutes dealing with obscenity except for zoning ordinances. There are strong arguments for and against this provision. Most citizens seem to want the right to enact local laws which are seen as tools to protect their communities. In fact many communities across the state have enacted obscenity statutes which are now of no effect.

Supporters of this provision argue that by allowing every community to adopt their own law would effectively limit the type of material available in the state to the lowest common denominator established by the most "conservative" community.

While both arguments have some validity, the reality is that most (if not all) local governmental units lack the financial resources and legal expertise to effectively prosecute a violation of an obscenity ordinance. The county prosecutor should be the agent to supervise the investigation and conduct the prosecution of obscenity violations. However, local units of government should be allowed to enact such ordinances if for no other reason than to provide a forum for the proclamation of that community's standards.

Sec. 14. Sections 342a to 343d, 344,345,345a, and 346 of Act No. 328 of the Public Acts of 1931, being sections 750.343a to 750.343d, 750.344, 750.345, 750.345a, and 750.346 of the Michigan Compiled Laws, are repealed.

This final section is a housekeeping section which repeals the old obscenity statute.

This law became effective on March 29, 1985. Since that time there has been little if any successful prosecution of obscenity under its provisions. The problems created by some of the sections have made effective prosecution difficult. Efforts to reform the law, such as those effected by the passage of P.A. 216 of 1992, have taken place since 1986. While efforts to further improve the law will continue, the statute in its present form is very enforceable. All that seems to be lacking is a willing attitude to prosecute.

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