General Corp. v. State Ex Rel. Sweeton

320 So. 2d 668, 294 Ala. 657, 1975 Ala. LEXIS 1268

Opinions

ALMON, Justice.*

The question presented by this appeal is whether the Alabama Red Light Abatement Act, Tit. 7, § 1091 et seq., Code of Alabama 1940, Recompiled 1958, can be constitutionally applied to the exhibition of obscene motion pictures. More specifically, whether the showing of obscene motion pictures constitutes a public nuisance, the sanction for which is the padlocking of the premises for up to one year.

The complaint filed January 16, 1973, alleged that for a period in excess of nineteen months, appellant had consistently shown obscene films at the Fox Cinema Theatre and that the showing of certain of these films constituted a violation of both the nuisance and obscenity laws of the State of Alabama. The complaint prayed for issuance of a preliminary injunction after notice and hearing, and that after a final hearing on the issue of obscenity, appellant, General Corporation, be perpetually enjoined from maintaining said nuisance.

The pretrial order, issued on February 13, 1973, set out the contentions of the respective parties including a stipulation that the Fox Cinema Theatre was an enclosed adult movie house. A supplemental pretrial order was issued on February 22, 1973, stipulating that the issues in controversy were, whether the conduct of appellant constituted “lewdness” under Tit. 7, § 1091, Code, supra.

On February 23, 1973, the final decree of the trial court was entered. Specifically, the trial judge found that appellant had engaged in showing obscene movies at the Fox Cinema Theatre and that such activity constituted a public nuisance. Pursuant to that finding, the court decreed that appellant be perpetually enjoined from maintaining said nuisance at the Fox Cinema Theatre or elsewhere in the county; that-all personal property contained in the theatre be removed and sold in the manner provided for the sale of chattels under execution; that the theatre be closed for all purposes for one year unless sooner released under the provisions of Tit. 7, § 1104, Code, supra; and that the proceeds of the sale be applied to the costs. A writ of injunction was issued embodying the terms of the final decree.

On March 23, 1973, the court amended its final decree specifically limiting its operation to obscene matter, but leaving undisturbed the provision closing the theatre for one year.

The evidence showed that appellant was engaged in the operation for profit of the Fox Cinema Theatre, situated in Huntsville, Alabama. During the period of December 20, 1972, through January 10, 1973, inclusive, Mr. Ron Curlee, a detective employed by the Huntsville Police Department, visited the Fox Cinema Theatre on several occasions. During these visits Mr. Curlee took numerous sequential photographs and recorded contemporaneous audio tapes of the films which were being exhibited at the theatre. These motion picture films were entitled: “The Making of the Blue Movie,” “I am Sandra,” “Mary Jane,” “The Gun Runners,” “The Executive Wives,” and “The Mermaids.” At trial Mr. Curlee, referring to the notes and pictures he had taken while at the theatre, testified as to the subject matter content of each of the foregoing films. That testimony tended to show that said films- depicted, inter alia, sexual intercourse, fellatio, cunnilingus, group sex, lesbianism, auto-eroticism, fettishism, voyeurism, and sado masochistic sexual activities;

The State’s contention below was that the movies exhibited at the Fox constituted a public nuisance in that they were “obscene,” and that under the provisions of Tit. 7, § 1091, et seq. (the Alabama Red Light Abatement Act) the operation of the theatre was subject to-abatement. Appellant’s position was that this Act was not intended to apply to motion picture films or, in the alternative, if the legislature did so intend, such application is unconstitutional.

Any doubts that patently obscene expression falls outside the protection of the First Amendment and therefore enjoys no immunity from state regulations have long been laid to rest. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). “The primary requirements of decency may be enforced against obscene publications.” Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). More recently the United States Supreme Court has reaffirmed the principle that the states have a legitimate interest in regulating the use of obscene material; and, more specifically, that local regulations dealing with such material will not be disturbed or struck down so long as they comport with specific constitutional mandates. Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

However, due to the elevated status ascribed to First Amendment guarantees, procedures adopted by states for dealing with obscene expression have been the subject of close judicial scrutiny. Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The line between expression unconditionally guaranteed and that which may be legitimately regulated is finely drawn. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

Although motion pictures are a form of expression' and within the shield of the First Amendment, United States v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 1968), they are not necessarily subject to the same rules governing other modes of expression. Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1951). Because of the singularly unique nature of the medium, a motion picture may be denominated obscene and thereby exceed the protective bounds of the First Amendment long before a written description of the same subject matter. Landau v. Fording, 245 Cal.App.2d 820, 54 Cal.Rptr. 177, aff'd 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317 (1966); People v. Bloss, 18 Mich. App. 410, 171 N.W.2d 455 (1969). Moreover, the United States Supreme Court has expressly rejected constitutional immunity from state regulation for obscene films simply because their exhibition is limited to consenting adults. Paris Adult Theatre v. Slaton, supra.

So, although the regulation of obscene expression is unquestionably a legitimate matter for state control, it does not necessarily follow that the doctrine of public nuisance can be constitutionally applied to obscenity. Traditionally, continuing activity contrary to public morals or decency have constituted public nuisances. Price v. State, 96 Ala. 1, 11 So. 128 (1891); Ridge v. State, 206 Ala. 349, 89 So. 742 (1921); Hayden v. Tucker, 37 Mo. 214 (1866); Federal Amusement Co. v. State, ex rel. Tuppen, 159 Fla. 495, 32 So. 2d 1 (1947); Abbott v. State, 163 Tenn. 384, 43 S.W.2d 211 (1931); Perkins on Criminal Law, p. 395 (Foundation Press, 1969); Wood, Law of Nuisances, § 68, p. 87, vol. 1 (3d ed., 1893) ; 66 C.J.S. Nuisance § 18 d, p. 766. Under the police power, a court of equity with proper legislative authorization can assume jurisdiction to abate a nuisance notwithstanding the fact that the maintenance of that nuisance may also be a violation of the criminal law. Ridge v. State, supra; Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971), cert. denied 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267 (1971).

However, where First Amendment rights are involved, there was been no such unanimity of authority for a multitude of reasons, the more salient of which warrant separate consideration.

At the outset we note three requirements imposed by the First Amendment upon any statute which attempts to regulate obscene material: (1) the burden of proving obscenity must always rest with the State; (2) administrative action determining matter to be .obscene must not have an air of finality — there must be provision for prompt judicial review; (3) where prior restraint exists, there must be an immediate final determination on the issue of obscenity. Blount v. Rizsi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) ; United Artists Corporation v. Wright, 368 F.Supp. 1034 (N.D.Ala.1974); Gulf States Theatres of Louisiana v. Richardson, 287 So.2d 480 (La.Sup.Ct.1974) ; New Rivieria Arts Theatre v. State, 412 S.W.2d 890 (Tenn.Sup.Ct.1967).

In terms of burden of proof, traditional public nuisance doctrine vis-a-vis obscenity poses a twofold dilemma; (1) what is the burden of proof, and (2) upon whom does the burden fall. Regarding the former, there is a dichotomy in the social ills against which obscenity law and public nuisance law are directed. The definitional test for obscenity attempts to separate those materials protected by the guaranties of freedom of expression; the aim of a nuisance action, on the other hand, is not the suppression of a particular form of expression, rather the abatement of a condition which works harm upon- a substantial number of the public or which injuriously affects public safety, health, or morals. City of Selma v. Jones, 202 Ala. 82, 79 So. 476 (1918).

In Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (3d Cir. 1969) it was held that nuisance doctrine was too elastic and amorphous to constitutionally restrict First Amendment rights. The court concluded that public nuisance doctrine could not be used both to define the standards of protected speech and to serve as a vehicle for its restraint. Accord, State ex rel. Murphy v. Morley, 63 N.M. 267, 317 P.2d 317 (1957); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968).

Tit; 7, § 1091, Code, supra, defines as a nuisance any place where “. . . lewdness, assignation, or prostitution is conducted, permitted, . continued, or exists; .” (Emphasis ours). By contrast, this language is discernibly “amorphous” when compared with 'Tit. 14, § 374(16j) (1971 Supp.) which defines obscenity and related terms with specificity and incorporates the three-prong test for “hard-core pornography” of Roth v. United States, supra. The final decree of the trial court, however, demonstrates that in finding the films “obscene”, the trial judge used the Roth Standard incorporated in the above statute.

Since the final decree in this cause, the U. S. Supreme Court decided Miller, supra. We consider under the facts of this case that the Roth test embodied in our statute was more stringent than the subsequent Miller doctrine. Therefore, appellant can hardly complain that the Miller standards have worked to its detriment. Moreover, we are here dealing with a civil remedial statute with ample due process safeguards and since we are in the civil realm we need not be quite so conscious of the strictures attendant in criminal prosecution. We believe that the reasoning in Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974), applies with equal force here; specifically, that definitional infirmities in the Alabama' Red Light Abatement Act were cured by judicial construction. Accord, State ex rel. Ewing v. "Without a Stitch", 37 Ohio St.2d 95, 307 N.E.2d 911 (1974); Gordon v. Christenson, 317 F.Supp. 146 (D.Utah 1970); Grove Press Inc. v. Evans, 306 F.Supp. 1084 (E.D.Va.1969).

Appellant argues in the alternative that notwithstanding curative judicial construction, the legislature did not intend the Alabama Red Light Abatement Act to be applicable. There is a substantial amount of persuasive authority for this proposition from judicial interpretation in sister states of their respective Red Light Abatement Acts strikingly comparable to our own. In People v. Goldman, 7 Ill.App.3d 253, 287 N.E.2d 177 (1972), it was held that, as used in its statute, “lewdness” was a synonym for prostitution and therefore the Act did not apply to the activity there sought to be enjoined (a “pornoshop”). Similarly, in Gulf States Theatres of Louisiana v. Richardson, supra, the Louisiana Supreme Court reasoned that its public nuisance statute passed in 1918, only one year prior to our own, was originally designed to control prostitution and gambling and therefore could not be used in the First Amendment area. The court also emphasized the fact that the statute contained virtually no standards for making judicial determinations of obscenity. Accord, Southland Theatre, Inc. v. State ex rel. Tucker, 495 S.W.2d 148 (Ark.Sup.Ct. 1973); Harmer v. Tonlyn Productions, Inc., 23 Cal.App.3d 941, 100 Cal.Rptr. 576 (1972).

However, from the broad language of Tit. 7, § 1091, Code, supra, there is no indication of any legislative intent to either include or exclude its application to obscene material. Controlling here is the fact that the Alabama Red Light Abatement Act has been construed as being merely declaratory of the common law, Duncan v. City of Tuscaloosa, 257 Ala. 574, 60 So.2d 438 (1952), and, as previously noted, acts at common law contrary to public morals were considered as public nuisances and subject to abatement as such. ■

The second aspect regarding burden of proof — which party upon whom the burden falls — is resolved in favor of the State. The Alabama Red Light Abatement Act contains none of the burden shifting evils present in Near v. State of Minnesota, supra, or Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d (1965). The transcript clearly shows that the prosecution was called upon and did in fact meet itsburden of proof. Neither the Alabama Red Light Abatement Act nor the Alabama Law on Obscenity authorizes any pre-exhibition licensing or permit procedure. The transcript reveals that appellant was not restrained from exhibiting the allegedly obscene films until after a final adversary proceeding on the issue.

The next requirement — prompt judicial review of any administrative or executive suppression — is also due to be resolved in favor.of the State. As noted, the Act does not allow nor was there in fact any suppression of appellant’s activities until after final adjudication on the issue of obscenity. Although the Act does • make provision for issuance of a temporary injunction after the filing of the original complaint, Tit. 7, § 1095, Code, supra, a hearing thereon must be had within ten days, ibid. Thé provision for an ex parte restraining order, Tit. 7, § 1096, is expressly limited to “the moving or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist . . . .” and imposes no restraint upon continuing exhibitions of films until trial on the merits.

Although not at issue here, the application of Tit. 7, § 1101, providing for the closing of the premises pending final determination, presents a more troublesome problem which could constitute a pre-adjudicatory suppression of exhibition.

In Teitel Film Corporation v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), the United States Supreme Court struck down for want of prompt judicial review a city licensing ordinance which provided a 50 to 57 day administrative process before judicial review could be had. The Teitel decision, however, dealt with situations where administrative procedures in effect stayed the hand of the judiciary thereby preventing its prompt intervention, supervision, and final determination on the issue of obscenity. See also Jodbar Cinema, Ltd. v. Sedita, 309 F.Supp. 868 (W.D.N.Y.1970); Freedman v. State of Maryland, supra.

Under the Alabama Red Light Abatement Act, however, pre-adjudicatory restraint in the form of a temporary injunction is saved by other mandatory provisions in the Act which insure a speedy final resolution of the ultimate issue of obscenity. Tit. 7, § 1095, requires a hearing on that issue within ten days of the issuance of the temporary injunction; Tit. 7, § 1101, requires, that the defendant must be given at least five days notice prior to the hearing on the matter of whether such an injunction will be granted; and Tit. 7, § 1103; requires that final adjudication shall take “precedence over all other cases except injunctions.” Furthermore, the United States Supreme Court has held that the right to a speedy determination arises only where one has been ex parte deprived of a right. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Blount v. Rizzi, supra. See also Society to Oppose Pornography, Inc. v. Thevis, 255 So.2d 876 (La.App.1972).

Turning to the last procedural requirement — constitutional prohibition against prior restraint of allegedly obscene expression without immediate judicial determination, any'system for the regulation of obscene expression involving prior restraints comes to the court bearing a heavy presumption against its validity. Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The decree of the trial court included an order closing th.e Fox Theatre for any purpose for one year. This.is not a liquor nuisance nor a prostitution nuisance; rather, a movie house charged with showing certain obscene motion pictures. Evidence of obscene conduct in the past does not justify enjoining future conduct which is protected by the First Amendment. People ex rel. Hicks v. Sarong Gals, 27 Cal.App.3d , 103 Cal.Rptr. 414 (1972). The padlocking of appellant’s operation for one year constitutes prior restraint at its worst and is patently unconstitutional.

While the facts in the recent United States Supreme Court decision of Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), are not directly in point, the reasoning therein is particularly appropriate. We quote:

“. . . The presumption against prior restraint is heavier — and the degree of protection broader- — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break' the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. See Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).”

We are not the first jurisdiction to hold unconstitutional as prior restraint of First Amendment guaranties the prospective abatement of movie houses as public nuisances. Society to Oppose Pornography v. Thevis, supra; State of Indiana ex rel. Blee v. Mohney Enterprises et al., Ind., 289 N.E.2d 519 (1972); Gulf States Theatres of Louisiana, Inc. v. Richardson, supra. The Alabama Law on Obscenity, Tit. 14, § 374(1) et seq., provides criminal penalties for conduct such as appellant’s — if retributive punishment is sought, those sanctions, not abatement, are the only proper ones authorized by the legislature.

The provision in the Alabama Red Light Abatement Act, Tit. 7, § 1104, supra, allowing for the release on bond is not curative of this constitutional defect. See Society to Oppose Pornography v. Thevis, supra. This remedy is available only if the court is satisfied that the owner had no knowledge of the existence of the nuisance.

We are of the opinion there was ample evidence for the trial judge to conclude that the motion pictures in question are obscene. But we also hold that even if one is guilty of maintaining an obscenity nuisance, it is not constitutionally permissible' to deprive him prospectively of his First Amendment rights.

Lest there be any confusion as to the extent of our holding that the Alabama Red Light Abatement Act cannot constitutionally be employed to enjoin prospectively the showing of films in enclosed movie theatres to an adult audience, we hasten to delimit this opinion to at least two First Amendment situations in which that statute so applied might pass constitutional muster.

The first would be where the impact of the injunction is absolutely devoid of prior restraint or chilling effect upon prospective exercises of expression other than that adjudicated as obscene. More specifically, where there has-been a prompt adversary proceeding in which all the requisite constitutional standards for ascertaining the issue of obscenity have been met and the particular film has been found to be obscene; future exhibition of that particular film may well constitute a public nuisance and be permanently enjoined as such. See, Evans Theatre Corporation v. Slaton, supra; Cactus Corporation v. State ex rel. Murphy, 14 Ariz.App. 38, 480 P.2d 375 (1971) ; State ex rel. Keating v. Vixen, 27 Ohio St.2d 278, 272 N.E.2d 137 (1971); contra, Harmes v. Tonlyn Productions, Inc., supra.

The second involves situations where there is a foisting off of patently obscene films, not fit for children to see, in places within their view to include public streets and facilities, residential properties, and private houses. Such activity may also constitute a public nuisance subject to equitable injunction where, of course, attendant constitutional substantive and procedural safeguards are present. See Bloss v. Paris Township, 380 Mich. 466, 157 N.W.2d 260 (1968) (drive-in theatres exhibiting films not fit for minors in plain view of public ' streets and surrounding residences subject to abatement as a public nuisance). But see the recent case of Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

The foregoing possible exceptions should not be construed by prosecuting authorities as a green light for prospective control of particular obscene films or drive-in theatres which broadcast such films. We again point up the imprecise nature of public nuisance doctrine which is ill-equipped to cope with the intricacies of First Amendment guaranties. The law of nuisance cannot become a vehicle for the protection of the sensibilities of the overly fastidious; nor can the doctrine of nuisance serve as a means of circumventing these First Amendment safeguards. The requirements of the First Amendment are stringent and demanding — any regulatory scheme which impinges upon these most precious rights will be assured of close scrutiny.

The judgment in this cause is due to be and hereby is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MERRILL, FAULKNER and EMBRY,' JJ., concur. JONES, J., concurs in the result. MADDOX, J., concurs specially. HEFLIN, C. J., with whom BLOOD-WORTH and SHORES, JJ., join, concurs in the result, with opinion.

Footnotes

*

This case was originally assigned to a justice formerly on this court, it has been reassigned to the writer who has listened to the tape recordings of the oral argument.