Evans Theatre Corp. v. Slaton

Citation227 Ga. 377,180 S.E.2d 712
PartiesEVANS THEATRE CORPORATION et al. v. Lewis R. SLATON. No 26249.
Decision Date04 March 1971
CourtSupreme Court of Georgia

Syllabus by the Court

1. The trial court did not err in finding the film 'I Am Curious (Yellow)' to be obscene.

2. The courts of this State are not estopped from finding a film obscene because of a holding by the United States Court of Appeals, Second Circuit that the same film is not obscene.

3. The State has an interest in the welfare, peace, and good order of its citizens and communities, and may in a proper case maintain an action at the instance of the district attorney to enjoin an existing or threatened nuisance, even though the nuisance constitutes a crime punishable under the criminal laws.

4, 5. The injunction in the present case must be considered as an interlocutory one, and the obsecene material can not be destroyed as contraband at the interlocutory stage.

6. The trial judge did not abuse his discretion in denying a continuance to appellants.

7. It is a crime under our criminal law (Code Ann. § 26-2101) to exhibit an obscene film to the public even though minors are not invited to view it.

Albert M. Horn, Glenn Zell, Margie Pitts Hames, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Hinson McAuliffe, Sol. Gen., Thomas E. Moran, Frank A. Bowers, Atlanta, Keating, Clancy, Bertsch & Johnston, Cleveland, Ohio, for appellee.

MOBLEY, Presiding Justice.

Lewis R. Slaton, District Attorney of the Atlanta Judicial Circuit, and Hinson McAuliffe, Solicitor General of the Criminal Court of Fulton County, brought a complaint in Fulton Superior Court against Evans Theatre Corporation, operator of Loew's Grand Theatre, a motion picture theater in Atlanta, and Marion Smith and John Herbert, managers of the corporation, alleging that defendants have advertised in the local papers the showing of a film, 'I Am Curious (Yellow),' which is obscene within the definition of obscene materials in Code Ann. § 26-2101 (Ga.L.1968, pp. 1249, 1302), and its exhibition is prohibited by that section. Plaintiffs demanded that rule nisi issue, the film be declared obscene and subject to seizure, and defendants be temporarily and permanently enjoined from exhibiting the film within the jurisdiction of the court.

After a hearing, the trial judge held that the film 'I Am Curious (Yellow)' is obscene and subject to seizure. It was ordered that all copies in the possession of defendants be seized, and that defendants, their associates, agents, and employees, be restrained and enjoined from distributing, exhibiting, or otherwise showing the film in any theater or other place where the public is permitted within the jurisdiction of the court.

Defendants filed an appeal from this judgment, making the following enumerations of error: The court erred (1) in finding and holding the film 'I Am Curious (Yellow)' to be obscene; (2) in enjoining appellants from showing or exhibiting the film; (3) in ordering the film seized as contraband; (4) in proceeding with the complaint in the absence of statutory standards, provision for jury trial, and other constitutional safeguards; (5) in refusing a continuance to appellants where the complaint was unverified and no showing of urgency was made; (6) in not holding that the State was estopped or precluded from prosecuting the complaint because of the Federal Court of Appeals (404 F.2d 196) holding the film not to be obscene; and (7) in finding and holding that Code Ann. § 26-2101 extends to the exhibiting of an alleged obscene film to consenting adults.

1. The first error enumerated is the finding that the film is obscene.

The General Assembly has defined obscene material as follows: '* * * (b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters * * *' Code Ann. § 26-2101.

At the hearing the trial judge viewed the film before making his finding that it was obscene. Counsel for appellants have made the film available for our viewing of it, and we have done this.

The film was produced in Sweden. It shows a young Swedish woman questioning the social, political, and moral values of her own country and other countries. She meets a young man and immediately engages in sexual intercourse with him. In extended scenes the young woman and her sex partner are shown completely nude and, in the course of the film, they engage in numerous acts of sexual intercourse, natural, unnatural, bizarre, and violent. In a dream fantasy the young woman murders and castrates her sex partner. All of these scenes are explicit.

Appellants urge that the two expert witnesses testifying in their behalf explained that the film's main or dominant appeal is to social, political, and moral issues, and that the scenes portraying sexual activity were essential to, and integrated with, the film's main political and moral themes, and do not exceed the standards embodied in other films and books being shown in the country

Appellants contend that the failure of appellees to introduce any evidence of community standards to determine the question of obscenity requires a reversal of the judgment finding the film obscene, and cite Hudson v. United States, 234 A.2d 903, a case in the District of Columbia Court of Appeals, in which a criminal conviction was reversed because the Government offered no evidence of community standards prevailing in the nation generally. We are, of course, not bound by that decision.

In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, in an opinion concurred in by two Justices of the United States Supreme Court, it was stated that the 'contemporary community standards' by which they must determine the issue of the Federal constitutional rights of those convicted of crimes involving alleged obscene material were national standards. This opinion did not suggest that State courts must have evidence of national standards of decency before them in order to make a determination as to whether material is obscene. The United States Supreme Court in the Jacobellis case made its determination as to whether the film there reviewed was obscene under 'national' community standards by viewing the film itself. It is our opinion that the trial judge could make a decision in the same manner.

After viewing the film ourselves, we state without hesitation that the trial judge did not err in finding it obscene, whether viewed by the standards of our local community or national standards. We have no doubt that its predominant appeal is to prurient interest in nudity and sex, and we feel certain that it would never have been brought from Sweden to this country had it not had in it the explicit sexual scenes, which its promoters, no doubt, though would appeal to the prurient interests of persons in this country, to the profit of the promoters. If the film does not go substantially beyond the customary limits of candor in representing sexual matters, then there are no limits of candor in this county.

Appellants urge that the film communicates ideas of a political and social nature and cannot be said to be 'utterly without redeeming social value.' Our statute making the distribution of obscene material criminal provides that the material must be 'utterly without redeeming social value' to come within the definition of obscenity. Code Ann. § 6-2101.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the majority opinion of the United State Supreme Court stated: 'All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.'

Since the Roth decision many decisions have been written in this country expounding and enlarging upon the statement there made. In A Book Named 'John Clelland's Memoirs of a Woman of Pleasure,' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, in an opinion concurred in by less that a majority of the United States Supreme Court it was said: 'A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive.'

In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, supra (in an opinion concurred in by two Justices) it was stated: 'The...

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    ...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)." General Corp. v. State ex rel. Sweeton, ......
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