Ballew v. State

296 So. 2d 206, 292 Ala. 460, 1974 Ala. LEXIS 1095

• Court: Supreme Court of Alabama
• Decided: May 9, 1974
• Docket: SC 480
• Status: Published

Opinions

HARWOOD, Justice.

The appellant operated an “Adults Only” book store in Mobile. As a result of a sale of a magazine entitled “Penelope, Issue No. 1” he was indicted for selling hard-core pornography. His trial resulted in a verdict of guilty, the jury imposing a fine of $500.00. The court imposed an additional punishment of hard labor for Mobile County for one year.

The Court of Criminal Appeals affirmed the judgment without an opinion. The appellant duly petitioned this court for a writ of certiorari, and we granted the writ.

The indictment against this defendant reads:

“The GRAND JURY of said County charge, that, before the finding of this indictment CLAUDE DAVIS BALLEW whose name is to the Grand Jury otherwise unknown than as stated, did knowingly and unlawfully sell to Don Smitherman, who was over 18 years of age, a magazine entitled ‘Penelope, Issue No. 1’ containing pictures and photographs of the female human body depicting the female genitals in such a manner as to be obscene or to represent hard-core pornography, after said Claude Davis Ballew had been notified in writing by an Assistant Attorney General of the State of Alabama, pursuant to Act Number 698, Acts of Alabama, Regular Session, 1969, that there was reasonable cause to believe that said magazine was obscene and hard-core pornography against the peace and dignity of the State of Alabama.”

We do not consider it arguable but that the appellant was proceeded against under the provisions of Act No. 698, approved 10 September 1969. See 1969 Acts of Alabama, pps. 1253 through 1255. This Act now appears in the Recompiled Code of Alabama, 1958, Cumulative Pocket Part 1971, as Chapter 64C, Title 14, Sections 374(16j) through 374(16c), and for convenience will at times be so referred to hereinafter.

Section 374(16j) contains specific definitions of words used in the Act, such as “nudity,” “sexual conduct,” “sado-masochistic abuse,” “hard-core pornography,” “obscene,” etc. “Obscene” is defined as a description or representation in any form of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it, (1) Predominately. appeals to the prurient, shameful, or morbid interest, and (2) is patently offensive to prevailing or contemporary standards in the adult community as a whole with respect to what is suitable material, and (3) is utterly without redeeming social value or importance.

Section 374(16k) makes the sale or loan to a person eighteen years of age or over, of any picture, photograph, drawing, magazine, pamphlet, etc., of a person, or portion of the human body, which depicts nudity, sexual conduct, "or sado-masochistic abuse and which is obscene or represents hardcore pornography.

Section 374(16m) reads:

“(a) No prosecution may be commenced against any person for violating sections 374(16k) and 374(161) of this title unless the accused is first served with prior written notice that there is reasonable cause to believe the material upon which such prosecution is based violates this chapter, and the accused has, after receiving such notice violated this chapter.

“(b) The written notice provided for in paragraph (a) of this section 374 (16m) may be given by only the following officials; the state attorney general and any assistant attorney general; the district attorney, county solicitor, their assistants and deputies, or any person whose office and duty is to prosecute criminal actions before any state, county or municipal court; the sheriff; the chief of police of any municipality or town; and the duly authorized law enforcement employees of the department of public safety.

“(c) Any person receiving such written notice provided for in paragraph (a) of this section 374 (16m) shall have the right within 30 days from such notice to file an appropriate action for declaratory judgment to determine the validity of such written notice, but no such action shall, by reason of the commencement thereof, stay or in any way delay or postpone any prosecution for the violation of this chapter. (1969 p. 12S4, § 4, appvd. Sept. 10, 1969.)”

Section 374(16o) provides that the provisions of Chapter 64c are cumulative of, and in addition to, all laws dealing with obscene or hard-core pornography, and shall not be construed to repeal other laws on such matters.

In the trial below the State introduced in evidence the magazine entitled “Penelope, Issue No. 1.” Additional evidence introduced by the State showed that the Mobile Book Mart is located on Conception Street in Mobile, Alabama. The front of the store had a sign reading “Adult Book Store” followed by the legend, “No one under twenty-one years of age admitted.” The front window glasses were rendered opaque by being painted over. The Mobile Book Mart is operated by Clarence Cantey. On 13 May 1970, the premises were visited by Robert E. Morrow, an Assistant Attorney General. On display for sale was the magazine “Penelope, Issue No. 1,” along with other magazines. After inspecting the magazines Mr. Morrow served a written notice on the appellant to the effect that he had reasonable cause to believe that certain magazines on display, including “Penelope, Issue No. 1” were obscene, and that continuing to offer the materials for sale constituted a violation of Act 698. The next day, Donald T. Smitherman, a 29 year old member of the Vice and Narcotics Squad of the Mobile Police Department, entered the store and purchased a copy of “Penelope, Issue No. 1” from the appellant who was in charge of the store as manager.

The defense offered only one witness, Dr. Robert M. Dowd. Dr. Dowd, who at the time of the trial was currently on leave from the Department of Psychiatry of Tulane University Medical School. He was spending his leave as Assistant Professor of Family Health and Population Dynamics, studying psychiatric aspects of family planning. Dr. Dowd testified as an expert on the question of whether “Penelope, Issue No. 1” appealed predominately to' a prurient interest in sex or nudity, and whether the magazine had any redeeming social value.

Dr. Dowd testified that in his opinion the magazine did not appeal predominately to a prurient sex interest in that it pictures “just female nudes,” and is not sick or morbid.

He further testified that the magazine had redeeming social value in that it would tend to satisfy male curiosity as to female form, and in that aspect might be educational.

He further testified that in his opinion the magazine might be educational to adult females in that some females are curious about their bodies in comparison with the bodies of other females, and in this sense might also be therapeutic.

As stated above, the magazine “Penelope, Issue No. 1” was received in evidence. It was therefore before the court and jury at the trial level, it was before the Court of Criminal Appeals, and is now before us. From the outside of the front cover to the back of the back cover, the magazine consists of nude females in poses contrived to depict their genitals and breasts. The weight to be accorded Dr. Dowd’s testimony was within the province of the jury, as was the weight to be accorded all of the evidence. From the verdict rendered, it must be inferred that the jury attached little or no weight to Dr. Dowd’s testimony. The trial judge by his entry of the judgment pursuant to the verdict, and the Court of Criminal Appeals by its affirmance of the judgment, apparently found no reason to question the conclusions of the jury in this aspect. From our examination of “Penelope, Issue No. 1,” we too are in hearty accord with the correctness of the jury verdict in this aspect.

We hold that Act 698, in all parts other than Section 374(16m) (Notice to be given) is clear and unambiguous. It sufficiently defines what is pornographic as to fully warn anyone of what is prohibited activity.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, are new standards for guidance as to what constitutes obscenity as a matter of law. They are,

(a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The standard set forth in Memoirs v. Massachusetts, 383 U.S. 413 at 419, 86 S.Ct. 975, 16 L.Ed.2d 1, that the work be utterly without redeeming social value was repudiated, and superceded by (c) above. The court further held that patently lewd exhibition or representation of the genitals was a proper subject for regulation in an obscenity statute.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, the court held that the states have a legitimate interest in regulating commerce in obscene material in places of public accommodation, even though minors be excluded therefrom, and further, that it was not error “ * * * to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence * *

We come now to a consideration of whether Act No. 698 (Sections 374(16j) through 374(16o), is unconstitutional in toto because of the unconstitutionality of Section (16m), particularly in view of the recent decision rendered 5 January 1974 by a three judge Federal District Court for the Middle District of Alabama, Northern Division, in United Artists Corporation, a Corp. v. E. L. Wright, Jr., individually and as Chief of Police, City of Montgomery, Alabama, Civil Action No. 4208-N, 368 F. Supp. 1034.

In said case E. L. Wright, Jr., as Chief of Police of Montgomery, Alabama, without any prior administrative or judicial proceeding, before a neutral party, served a written notice on an exhibitor in Montgomery, who proposed to show in his theater a moving picture entitled “Last Tango in Paris,” stating that there was reasonable cause to believe that the exhibition of that film would constitute a violation of the Alabama laws regulating to obscenity.

The written notice advised the exhibitor that he could seek a declaratory judgment in the circuit court as to the obsce-nity vel non of the film, and further advised the exhibitor that “the exhibition of this film prior to obtaining the declaratory judgment might result in prosecution.”

United Artists Corporation, the owner and distributor of the film, upon the exhibitor’s declining to show the film after receipt of the notice, brought an action in which it alleged the unconstitutionality of Act No. 698 (Sections 374(16j)-374(16o)) on its face, and as applied.

The three judge district court held that Section 374(16m) providing for notice was unconstitutional, and further that this section was inseparable from the remaining portions of the Act, and the Act should be considered as an indivisible whole, particularly since the Act failed to contain a separability clause.

The basis of the court’s decision that Section 374(16m) (notice provision) was unconstitutional was that it, (a) constituted in effect a prior restraint, in that a threatened prosecution by a law enforcement officer “can constitute an all too effective prior restraint,” (b) the notice section calls only for reasonable cause to believe the material is obscene on the part of the law enforcement officials, and thereafter the person receiving the warning must bring the declaratory action and carry the burden of proof, (c) the warning is for all intents and purposes a “final” act of censorship in that it would ordinarily effectively stop the showing of a film (or sale of questioned literature), and (d) there is in the section no provision for expediting judicial consideration, either at trial or on appeal, of the issue of obscenity, and therefore a final adjudication is subject to all of the delays incident to processing an ordinary civil action.

We are in accord with the conclusion reached that Section 374(16m) is, unconstitutional.

We are not in accord with the conclusion of the court that Section 374(16m) is inseparable from the remaining portion of the Act, and therefore the entire Act is unconstitutional.

The decisions of federal courts other than the Supreme Court of the United States are not binding upon a state court of last resort. Lokos v. State, 278 Ala. 586, 179 So.2d 714; Liddell v. State, 287 Ala. 299, 251 So.2d 601.

In its opinion, the three judge court wrote:

“Under Alabama law, the absence of a separability clause means that the statute is to be considered as an indivisible whole. San Ann Tobacco Co. v. Hamm, 283 Ala. 397, 406, 217 So.2d 803(1969).”

We consider this statement too general and too broad and a misconception of the doctrines of our cases on the subject. It is true that in San Ann Tobacco Co., supra, this court wrote on rehearing as follows:

“We recognize that a separability clause should be given effect, where possible, to save a legislative enactment. Allen v. Walker County, 281 Ala. 156, 199 So.2d 854; Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810. (We called it a severability clause in Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 [16].)

“Here, the absence of such a clause in Act No. 78, in connection with the fact that the part of the Act discussed in the original opinion was clearly of doubtful constitutionality, and as we stated — ‘it is difficult to understand why the five words were added by amendment to § 3 of the Act,’ give evidentiary strength to our conclusion that the Legislature intended for all the amendments in Act No. 78 to stand or fall together, and thus Act No. 78 has been stricken in its entirety.” (Emphasis supplied.)

In other words, the absence of separability clause gave evidentiary strength to the conclusion arrived at in the original opinion that the legislature intended the amendments provided by Act No. 78 to stand or fall together, but was not conclusive thereof.

The rule of our cases is stated in Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74, as follows:

“Another guiding principle of paramount importance is that courts seek to sustain, and not strike down, the enactments of a coordinate department of government. Every legislative act is presumed to be constitutional and every intendment is in favor of its validity. Tucker v. State, 231 Ala. 350, 165 So. 249; Gray v. Johnson, supra [235 Ala. 405, 179 So. 221]. Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part which is void. State ex rel. Farmer v. Haas, 239 Ala. 16, 194 So. 395. If after the deletion of the invalid part, the remaining portions of an Act are complete -within themselves, sensible, and capable of execution, the Act will stand notwithstanding its partial invalidity. Springer v. State ex rel. Williams, 229 Ala. 339, 157 So. 219.

“Certainly the existence of a severability clause in the Act itself cannot but strengthen this principle.”

In State ex rel. Crumpton v. Montgomery, 177 Ala. 212 at 241, 59 So. 294, at 303, this court observed that the presence of a separability clause “serves only to render certain the legislative intent with respect to passage of the valid parts * * * ” See also A. Bertolla & Sons v. State, 247 Ala. 269, 24 So.2d 23.

Here, the dominant purpose of Act 698 is to proscribe the sale or loaning for a monetary consideration to a person eighteen years of age or older of obscene, hard-core pornography. Apparently, the legislature sought by Section 374 (16m) to give to a purveyor of obscene materials a warning, and even an opportunity to resolve the question of whether the material was obscene in a civil suit. In making this benign gesture, the legislature was mistaken in the constitutional aspects of its action.

However, without Section 374(16m), the remaining portions of Act 698 constitute an Act complete within itself, sensible, and capable of execution. We hold, therefore, that such remaining portions are not rendered invalid because of the invalidity of Section 374 (16m).

The grounds asserted as error in support of the petition for certiorari are, (a) “that the provisions of Title 14, Section 374 as written and applied in the context of the case at bar [are] repugnant to Petitioner’s rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States;” Ground (b) asserts that the rulings and treatment of some sixty-eight obscenity cases by the United States Supreme Court involving matters of “constitutional dimensions” as to both substance and procedure operate prospectively as to new and possible violations of Title 14, Section 374, and the newly announced standards to be employed; Ground (c) is similar to Ground (b) in that it asserts that the decisional standards announced in Miller v. California, supra, cannot be applied retrospectively to pending convictions not yet final as is the case at'bar, “and accordingly the statute as applied is void as ex post facto legislation under Sections 1 and 9 of the United States Constitution.”

What we have written we think disposes of ground (a) of the petition for certiorari.

Grounds (b) and (c) we think are disposed of by the holding in Frank v. Man-gum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, to the effect that Sections 9 and 10 of the United States Constitution are directed to “legislative enactments” rather than judicial decisions.

Upon full consideration of the grounds asserted as error in support of the petition for the writ of certiorari, it is our conclusion that the Court of Criminal Appeals did not err in its memorandum judgment affirming the judgment here involved. Accordingly, the judgment of the Court of Criminal Appeals is due to be affirmed.

Affirmed.

MERRILL, COLEMAN, BLOOD-WORTH, McCALL and FAULKNER, JJ., concur. HEFLIN, C. J., and MADDOX, J., concur specially. JONES, J., dissents.