West Gallery Corp. v. Salt Lake City Board of Commissioners

586 P.2d 429, 4 Media L. Rep. (BNA) 1889, 1978 Utah LEXIS 1442

• Court: Utah Supreme Court
• Decided: October 16, 1978
• Docket: 15749
• Status: Published

Opinions

HALL, Justice:

This appeal concerns a single issue of constitutional law: Does a Salt Lake City licensing ordinance which permits the City to suspend an adult theatre license if the licensee violates the City’s obscenity ordinance during the license term infringe upon rights of free speech guaranteed by the constitutions of the United States and the State of Utah?¹ It is noteworthy that we are not called upon to discuss any issue of procedural due process or improper breadth of administrative discretion. Plaintiff-Appellant asserts that since the ordinance provides for license revocation as a consequence of obscenity ordinance violation it is an unconstitutional interference with freedom of speech.

Defendants-Respondents, Salt Lake City Board of Commissioners, (the “City”) enacted an ordinance (Title 20, Chapter 20, Revised Ordinances of Salt Lake) which was in effect at all times relevant to this litigation and which provides that the City may revoke or suspend a theatre license upon the licensee’s conviction of violation of the City’s obscenity ordinances. The ordinance provides grounds for revocation other than “conviction of violation,” but they do not concern us here.

Plaintiff-Appellant West Gallery Corporation (“Gallery”) obtained an adult theatre license from the City in 1974. In 1976, Gallery was convicted of violating the City’s obscenity ordinance, and the City acted pursuant to the licensing ordinance to suspend Gallery’s license. Gallery applied to the Third Judicial District Court for annulment of the suspension on constitutional grounds. From denial of that application, Gallery appeals.

There are certain relevant principles of constitutional law so well established as not to require supporting citation. The United States Constitution and the Utah Constitution² both prohibit the making of laws “abridging freedom of speech.” Motion pictures are forms of expression which constitute “speech” within the meaning of the constitutional phrases. “Obscene” speech is not protected by either the federal or the state constitution.

Gallery’s position is that license suspension in the circumstances of this case is an attempt by the City to suppress as obscene the exhibition of whatever films Gallery might intend to exhibit before any adjudication of their obscenity. Gallery cites an impressive array of cases from other States which clearly hold that a State cannot constitutionally prevent the exhibition of a motion picture before it is judicially determined to be outside the scope of First Amendment protection. Those cases³ (adopting what is sometimes called the doctrine of “prior restraint”) deny any state authority to enjoin a theatre’s operation or to suspend the operator’s license on the ground of past obscenity violation. We observe that all of these cases are from state systems, however, we prefer the reasoning in the federal cases which supports a contrary result.

Examination of the pronouncements of the federal judiciary, and particularly the Supreme Court, does not lead to the conclusion that prior restraint, as a means of controlling obscenity, is constitutionally unacceptable. The initial case on the point is Near v. Minnesota⁴ which dealt with a State’s attempt to enjoin the continued publication of a periodical which had, from its inception, been loaded with scandalous and libelous statements about public officials and others. The Court held that prohibition of critical comment, before judicial determination of its libelous nature, constituted prior restraint in violation of First Amendment guarantees.

The Court distinguished, however, material feared to be libelous and material feared to be obscene in terms of the propriety of prior restraint. The majority opinion notes that the “protection” of the First Amendment “even as to previous restraint is not absolutely unlimited.” It then undertakes to identify some “exceptional cases” (such as in time of war) in which prior restraint could be justified:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. [Emphasis added.]

In Times Film Corp. v. Chicago,⁵ the court interpreted the quoted language of Near, as we do now, to permit the imposition of previous restraint in the control of obscenity under certain circumstances.

Gallery argues that the use of the licensing authority to punish individuals for past crimes is somehow abhorrent to constitutional principles. We do not see that the license suspension under review is primarily a punishment for past crimes. It is rather a means of assuring that the people who make the initial decision about the display of erotic films are not people who have already demonstrated an insensitivity to the statutory criteria for acceptability. A license is a privilege, not a right, and the licensing authority can and has been used to deter misconduct, even where freedom of speech is involved. A prominent example thereof is the longstanding practice of revoking various professional licenses for misconduct.

The States have traditionally used licensing authority to control protest demonstrations and parades, activity which clearly falls within First Amendment shelter. In Cox v. New Hampshire,⁶ the court ruled it constitutional for the state to require a parade license so long as the discretion vested in the administrative agency related to those aspects of the activity (“time, place and manner”) which the state must regulate in order to provide adequate traffic control and police protection.

Whether legislative action which impinges on speech freedom is constitutional seems to depend on whether the action is a legitimate exercise of the police power in the interest of the public welfare and safety. The classic due process test for judging the validity of an exercise of the police power are “First, that the interest of the public . . . require such interference and second that the means are reasonably necessary for the accomplishment of the purpose.”⁷

On the question of whether the interests of the public require interference with the business of exhibiting motion pictures, the U.S. Supreme Court has recently declared that the threat of public exposure to obscene movies can be found to “endanger the public safety.” In Paris Adult Theatre v. Slaton,8 the court said:

The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Chief Justice Warren’s words, the States’ “right ... to maintain a decent society.”

The City can constitutionally make and has made a judgment that the exhibition of obscene motion pictures endangers the public safety; and the police power is invoked, in the classic phrase, to protect “the public health, safety and welfare.”

On the question of whether the means (suspension of license for violation of obscenity ordinance) is reasonably necessary for accomplishment of the purpose, there are two federal cases which are relevant. In Times Film Corp. v. Chicago, supra, the court, in upholding an ordinance which required an applicant for a movie license to submit a copy of each film to the police commissioner for preview, said “it is not for the court to limit the State in its selection of the remedy it deems most effective to cope with such a problem.”

In 106 Forsyth Corp. v. Bishop,9 a license suspension was upheld as an appropriate remedy under circumstances substantially the same as those before the court now. The Supreme Court denied certiorari. No other federal appellate decisions appear to be on point.

We do not perceive that every citizen has the unrestricted right to operate an adult theatre or, indeed, to speak his mind without restriction reasonably related to protection of coordinate public rights. We hold that the license suspension under scrutiny does not violate federal or state constitutional guarantees.

Affirmed, Costs to Defendants-Respon-. dents.

ELLETT, C. J., and CROCKETT, J., concur.

1 . The First Amendment to the Constitution of the United States prohibits Congress from making any law “abridging the freedom of speech”; Article I, Section I of the Constitution of Utah guarantees everyone the inherent and inalienable right “to communicate freely their thoughts and opinions, being responsible for the abuse of that right,” and Section 15 thereof provides “[n]o law shall be passed to abridge or restrain the freedom of speech . ”

2 . Ibid.

3 .People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600 (1976); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975); State v. A Motion Picture Entitled “The Bet”, 219 Kan. 64, 547 P.2d 760 (1976); Gulf States Theatres of Louisiana v. Richardson, 287 So.2d 480 (La.1974); New Rivieria Arts Theatre v. State, 219 Tenn. 652, 412 S.W.2d 890 (1967); City of Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d 126 (1973); City of Delevan v. Thomas, 31 Ill.App.3d 630, 334 N.E.2d 190 (1975); Alexander v. City of St. Paul, 303 Minn. 201, 227 N.W.2d 370 (1975).

4 . 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

5 . 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961).

6 . 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941).

7 . Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894).

8 . 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

9 . 482 F.2d 280 (5th Cir. 1973).