Paris Adult Theatre v. Slaton 8212 1051

• Citation: 37 L.Ed.2d 446,413 U.S. 49,93 S.Ct. 2628
• Decision Date: 21 June 1973
• Docket Number: No. 71,71
• Parties: PARIS ADULT THEATRE I et al., Petitioners, v. Lewis R. SLATON, District Attorney, Atlanta Judicial Circuit, et al. —1051
• Court: United States Supreme Court

413 U.S. 49

93 S.Ct. 2628

37 L.Ed.2d 446

PARIS ADULT THEATRE I et al., Petitioners,

v Lewis R. SLATON, District Attorney, Atlanta Judicial Circuit, et al.

No. 71—1051.

Argued Oct. 19, 1972.

Decided June 21, 1973.

Rehearing Denied Oct. 9, 1973.

See 414 U.S. 881, 94 S.Ct. 27.

Syllabus

Respondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jury-waived trial, the trial court (which did not require 'expert' affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was 'constitutionally permissible.' The Georgia Supreme Court reversed, holding that the films constituted 'hard core' pornography not within the protection of the First Amendment. Held:

1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. P. 54.

2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966; Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. Pp. 54—55.

3. It was not error to fail to require expert affirmative evidence of the film's obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. P. 56.

4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including 'adult' theaters. Pp. 57—69.

(a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 57—63.

(b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 64.

(c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, distinguished. Nor can the privacy of the home be equated with a 'zone' of 'privacy' that follows a consumer of obscene materials wherever he goes. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; United States v. 12 200-Foot Reels of Super 8mm., 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500. Pp. 65—67.

(d) Preventing the unlimited display of obscene material is not thought control. Pp. 67—68.

(e) Not all conduct directly involving 'consenting adults' only has a claim to constitutional protection. Pp. 68—69.

5. The Georgia obscenity laws involved herein should now be re-evaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Pp. 69—70.

228 Ga. 343, 185 S.E.2d 768, vacated and remanded.

Robert Eugene Smith, Atlanta, Ga., for petitioners.

Thomas E. Moran, Atlanta, Ga., for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the style of 'adult' theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26 2101.¹ The two films in question, 'Magic Mirror' and 'It All Comes Out in the End,' depict sexual conduct char- acterized by the Georgia Supreme Court as 'hard core pornography' leaving 'little to the imagination.'

Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment.

On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit 'Atlanta's Finest Mature Feature Films.' On the door itself is a sign saying: 'Adult Theatre—You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.'

The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted—as as they did—scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed respondents' complaints. He assumed 'that obscenity is established,' but stated:

'It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.'

On appeal, the Georgia Supreme Court unanimously reversed. 228 Ga. 343, 185 S.E.2d 768. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), the Georgia court stated that 'the sale and delivery of obscene material to willing adults is not protected under the first amendment.' The Georgia court also held Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), to be inapposite since it did not deal with 'the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films.' 228 Ga. 343, 345, 185 S.E.2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating:

'The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined since their exhibition is not protected by the first amendment.' Id., at 347, 185 S.E.2d, at 770.

I

It should be clear from the outset that we do not undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, 413 U.S. 15, at 23—25, 93 S.Ct. 2607, at 2614—2615, 37 L.Ed.2d 419; Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972); United States v. Reidel, supra, 402 U.S., at 354, 91 S.Ct., at 1411; 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).

Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material,² the Georgia case law permitting civil injunction does adopt the definition of 'obscene materials' used by the criminal statute.³ Today, in Miller v. California, supra, we have sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller.

This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and...