§712-1211 Displaying indecent matter. (1) A person commits the offense of displaying indecent matter if the person knowingly or recklessly displays on any sign, billboard, or other object visible from any street, highway, or public sidewalk, a photograph, drawing, sculpture, or similar visual representation of any person of the age of puberty or older:

(a) Which reveals the person with less than a fully opaque covering over his or her genitals, pubic area, or buttocks, or depicting the person in a state of sexual excitement or engaged in an act of sexual conduct or sadomasochistic abuse;

(b) Which is presented in such a manner as to exploit lust; and

(c) Which lacks serious literary, artistic, political, or scientific value.

(2) Displaying indecent material is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1981, c 106, §2; am L 1982, c 147, §26; gen ch 1993]

Revision Note

In subsection (1)(a), "and" deleted pursuant to §23G-15.

Cross References

Display of adult entertainment products for sale, see §489X-1.

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 rust 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 Ginsburg 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? 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).