CHAPTER 233

An Act to amend the Code of Virginia by adding thereto sections num-
bered 18.1-227 through 18.1-286.8, relating to obscenity, defining the
word “obscene”, providing that certain obscene acts and conduct, and
certain acts and conduct in connection therewith, shall be unlawful,
making it a felony to commit a second or other subsequent offense
thereof, providing for the issuance of certain orders and judgments
as to obscene books; and to repeal §§ 18-113 and 18-118.1 of the
Code of Virginia, relating to the same matters. CH 40]

Approved March 11, 1960

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia be amended by adding thereto sections
numbered 18.1-227 through 18.1-236.3 as follows:

§ 18.1-227. The word “obscene” where it appears in this act shall
mean that which considered as a whole has as its dominant theme or pur-
pose an appeal to prurient interest, that is, a shameful or morbid interest
in nudity, sex or excretion, and if it goes substantially beyond customary
limits of candor in description or representation of such matters.

§ 18.1-228. Every person who knowingly:

(1) Prepares any obscene item for the purposes of sale or commercial
distribution; or

(2) Prints, copies, manufactures, produces, or reproduces any
obscene item for purposes of sale or commercial distribution ; or

(3) Publishes, sells, rents, lends, transports in intrastate commerce,
or commercially distributes or exhibits any obscene item, or offers to do
any of these things; or

(4) Has in his possession with intent to sell, rent, lend, transport, or
commercially distribute any obscene item, shall be guilty of a misdemeanor.

§ 18.1-229. Obscene items shall include:

(1) Any obscene book; or

(2) Any obscene leaflet, pamphlet, magazine, booklet, picture, paint-
ing, drawing, photograph, film, negative, slide, motion picture; or

(3) Any obscene figure, object, article, instrument, novelty device, or
recording or transcription used or intended to be used in disseminating
any obscene song, ballad, words, or sounds.

§ 18.1-230. Every person who knowingly:

(1) Produces, promotes, prepares, presents, manages, directs, car-
ries on or participates in, any obscene exhibition or performance, includ-
ing the exhibition or performance of any obscene motion picture, play,
drama, show, entertainment, exposition, tableau or scene; or

(2) Owns, leases or manages any theatre, garden, building, struc-
ture, room or place and leases, lets, lends or permits such theatre, garden,
building, structure, room or place to be used for the purpose of presenting
such obscene exhibition or performance, shall be guilty of a misdemeanor.

§ 18.1-231. Every person who knowingly prepares, prints, pub-
lishes, or circulates, or causes to be prepared, printed, published or circu-
lated, any notice or advertisement of any obscene item proscribed in
§ 18.1-229, or of any obscene performance or exhibition proscribed in
§ 18.1-230, stating or indicating where such obscene item, exhibition, or
performance may be purchased, obtained, seen or heard, shall be guilty
of a misdemeanor.

§ 18.1-232. Every person who knowingly exposes, places, displays,
posts-up, exhibits, paints, prints, or marks, or causes to be exposed, placed,
displayed, posted, exhibited, painted, printed or marked, in or on any
building, structure, billboard, wall or fence, or on any street, or in or
upon any public place,’ any placard, poster, banner, bill, writing, or
picture which is obscene, or which advertises or promotes any obscene
item proscribed in § 18.1-229 or any obscene exhibition or performance
proscribed in § 18.1-230, or who knowingly permits the same to be dis-
played on property belonging to or controlled by him, shall be guilty of a
misdemeanor.

§ 18.1-233. No person, firm, association or corporation shall, as a
condition to any sale, allocation, consignment or delivery for resale of any
paper, magazine, book, periodical or publication require that the pur-
chaser or consignee receive for resale any other article, book, or other
publication which is obscene; nor shall any person, firm, association or
corporation deny or threaten to deny any franchise or impose or threaten
to impose any penalty, financial or otherwise, by reason of the failure or
refusal of any person to accept such articles, books, or publications, or
by reason of the return thereof. A violation of this section shall be a
misdemeanor.

§ 18.1-234. Every person who intentionally, in any manner, hires,
employs, uses or permits any minor under the age of eighteen years to
do or assist in doing any act or thing constituting an offense under this
article shall be guilty of a misdemeanor.

§ 18.1-285. Every person who knowingly:

(1) Photographs himself or any other person, for purposes of pre-
paring an obscene film, photograph, negative, slide or motion picture for
purposes of sale or commercial distribution; or

(2) Models, poses, acts, or otherwise assists in the preparation of
any obscene film, photograph, negative, slide or motion picture for pur-
poses of sale or commercial distribution, shall be guilty of a misdemeanor.

§ 18.1-236. Every person who intentionally makes an obscene dis-
play or exposure of his person, or the private parts thereof, in any public
place, or in any place where others are present, or procures another to so
expose himself, shall be guilty of a misdemeanor.

§ 18.1-2386.1. Any person, firm, association or corporation convicted
of a second or other subsequent offense under §§ 18.1-233, 18.1-234, or
18.1-235 shall be guilty of a felony and shall be punished by confinement in
the penitentiary not less than one nor more than two years, or by confine-
ment in jail not exceeding twelve months, or by a fine of not less than five
hundred dollars nor more than two thousand dollars.

1S Paella Nothing contained in this article shall be construed to
apply wo:

(1) The exhibition of any motion picture approved for public exhibi-
tion by the Virginia Board of Motion Picture Censors;

(2) The purchase, distribution, exhibition, or loan of any book, maga-
zine, or other printed or manuscript material by any library, school, or
institution of higher learning, supported by public appropriation;

(3) The purchase, distribution, exhibition, or loan of any work of art
by any museum of fine arts, school, or institution of higher learning, sup-
ported by public appropriation;

(4) The exhibition or performance of any play, drama, tableau, or
motion picture by any theatre, museum of fine arts, school, or institution
of higher learning, supported by public appropriation.

§ 18.1-236.3. (1) Whenever he has reasonable cause to believe that
any person is engaged in the sale or commercial distribution of any obscene
book, any citizen or the Attorney for the Commonwealth of any county or
city, or City Attorney, in which the sale or commercial distribution of such
book occurs may institute a proceeding in any court of record in said city
or county for adjudication of the obscenity of the book.

(2) The proceeding shall be instituted by filing with the court a
petition

(a) directed against the book by name or description,

(b) alleging the obscene nature of the book, and

(c) listing the names and addresses, if known, of the author, pub-
lisher, and all other persons interested in its sale or commercial dis-
tribution.

(3) Upon the filing of a petition pursuant to this article, the court in
term or in vacation shall forthwith examine the book alleged to be obscene.
If the court find no probable cause to believe the book obscene, the judge
thereof shall dismiss the petition; but if the court find probable cause to
believe the book obscene, the judge thereof shall issue an order to show
cause why the book should not be adjudicated obscene.

(4) The order to show cause shall be:

(a) directed against the book by name or description ;

(b) published once a week for two successive weeks in a newspaper
of Reneral circulation within the county or city in which the proceeding
is ;

(c) if their names and addresses are known, served by registered
mail upon the author, publisher, and all other persons interested in the
sale or commercial distribution of the book; and

(d) returnable twenty-one days after its service by registered mail
or the commencement of its publication, whichever is later.

(5) When an order to show cause is issued pursuant to this article,
and upon four days’ notice to be given to the persons and in the manner
prescribed by the court, the court may issue a temporary restraining order
against the sale or distribution of the book alleged to be obscene.

(6) On or before the return date specified in the order to show cause,
the author, publisher, and any person interested in the sale or commercial
distribution of the book may appear and file an answer. The court may by
order permit any other person to appear and file an answer amicus curiae.

(7) If no one appears and files an answer on or before the return
date specified in the order to show cause, the court, upon being satisfied
that the book is obscene, shall order the clerk of court to enter judgment
that the book is obscene, but the court in its discretion may except from
its judgment a restricted category of persons to whom the book is not
obscene.

(8) If an appearance is entered and an answer filed, the court shall
order the proceeding set on the calendar for a prompt hearing. The court
shall conduct the hearing in accordance with the rules of civil procedure
applicable to the trial of cases by the court without a jury. At the hearing,
the court shall receive evidence, including the testimony of experts, if
such evidence be offered, pertaining to:

(a) the artistic, literary, medical, scientific, cultural and educational
values, if any, of the book considered as a whole;

b) the degree of public acceptance of the book, or books of similar
character, within the county or city in which the proceeding is brought;

(c) the intent of the author and publisher of the book;

(d) the reputation of the author and publisher;

(e) the advertising, promotion, and other circumstances relating to
the sale of the book;

(f) the nature of classes of persons, including scholars, scientists,
and physicians, for whom the book may not have prurient appeal, and who
may be subject to exception pursuant to Section (7)

(9) In making a decision on the obscenity of the book, the court
shall consider, among other things, the evidence offered pursuant to
Section (8), if any, and shall make a written determination upon every
such consideration relied upon in the proceeding in his findings of fact and
conclusions of law or in a memorandum accompanying them.

(10) If he finds the book not obscene, the court shall order the clerk
of court to enter judgment accordingly. If he find the book obscene, the
court shall order the clerk of court to enter judgment that the book is
obscene, but the court, in its discretion, may except from its Judgment a
restricted category of persons to whom the book is not obscene.

(11) While a temporary restraining order made pursuant to Sec-
tion (5) is in effect, or after the entry of a judgment pursuant to Section
(7), or after the entry of judgment pursuant to Section (10), any person
who publishes, sells, rents, lends, transports in intrastate commerce, or
commercially distributes or exhibits the book, or has the book in his pos-
session with intent to publish, sell, rent, lend, transport in intrastate com-
merce, or commercially distribute or exhibit the book, is presumed to
have knowledge that the book is obscene under §§ 18.1-227 through 18.1-
233 of this article.

(12) Any party to the proceeding, including the petitioner, may ap-
peal from the judgment of the court to the Supreme Court of Appeals of
Virginia, as otherwise provided by law.

(13) It is expressly provided that the petition and proceeding auth-
orized under this article, relating to books alleged to be obscene, shall be
intended only to establish scienter in cases where the establishment of such
scienter is thought to be useful or desirable by the petitioner; and the pro-
visions of § 18.1-236.3 shall in no wise be construed to be a necessary
prerequisite to the filing of criminal charges under this article.

2. That §§ 18-113 and 18-113.1 of the Code of Virginia are repealed.