ABC Interstate Theatres, Inc. v. State

• Decision Date: 13 January 1976
• Docket Number: No. 48583,48583
• Citation: 325 So.2d 123
• Parties: ABC INTERSTATE THEATRES, INC., Defendant-Appellant, v. STATE of Mississippi, Complainant-Appellee.
• Court: Mississippi Supreme Court

Page 123

325 So.2d 123

ABC INTERSTATE THEATRES, INC., Defendant-Appellant, v. STATE of Mississippi, Complainant-Appellee.

No. 48583.

Supreme Court of Mississippi.

Jan. 13, 1976.

Thomas, Price, Alston, Jones & Davis, Jackson, Phillip A. Wittmann, Anthony M. DiLeo, New Orleans, La., for defendant-appellant.

A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for complainant-appellee.

Before PATTERSON, INZER and WALKER, JJ.

PATTERSON, Justice:

This appeal arises from the Circuit Court of Forrest County as the result of the seizure by the state of the film 'The Exorcist,' and the subsequent conviction of ABC Interstate Theatres, Inc., on the charge that the film was 'obscene, indecent, or immoral' as these terms are used in Mississippi Code Annotated section 97-29-33 (1972). The appellant assigns as error, among other assignments, that the statute under which it was convicted is unconstitutionally overbroad.

In April 1974 several police officers and a justice of the peace accompanied the district attorney to the Saenger Theatre, owned by the appellant, in the city of Hattiesburg, Mississippi, to observe the motion picture, 'The Exorcist,' which was being shown to the public. Thereafter, affidavits were filed, warrants issued, the film seized and the theatre manager and projectionist were arrested. The charges against the manager and the projectionist were subsequently dismissed, but the corporate appellant was tried for publicly exhibiting an obscene, indecent and immoral motion picture in violation of Section 97-29-33, supra.

The appellant argues numerous assignments of error for reversal, but we limit this opinion to the constitutionality of Mississippi Code Annotated section 97-29-33 (1972) which provides:

It shall be unlawful for any person, firm or corporation, owning or operating any moving picture show or moving picture establishment, in this state, to show, or exhibit to public view on a screen or otherwise, any obscene, indecent, or immoral picture, drawing or print, provided such picture, drawing or print is not being exhibited under the auspices of health authorities for educational purposes. Any person, firm or corporation owning or operating any moving picture show or moving picture establishment in this state, violating this section shall be guilty of a misdemeanor and on conviction shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment for not more than sixty days or both. (Emphasis added.)

The appellant argues that the statute is unconstitutionally overbroad, lacks specificity, and does not comply with the standards prescribed by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), regarding the First Amendment to the United States Constitution's prohibition of the enactment of laws abridging freedom of speech.

In the beginning we reiterate that it is axiomatic that the United States Supreme Court is the final arbiter of the constitution and that its constructions are the final authority upon the meaning of the terms of that great document. Moreover, its decisions, which apply to the states through the Fourteenth Amendment, permit little leeway by this or other state judiciaries to recede from its pronouncements of the meaning of our federal constitution. It necessarily follows that if either the statutory or case law of the state conflicts with the construction of the federal constitution as placed upon it by the United States Supreme Court, the state law must yield. The issues before us must be decided from this context.

We are of the opinion that Mississippi Code Annotated section 97-29-33 (1972) is overbroad since it prohibits freedom of speech in areas beyond the permissible limits of Miller, supra. There the United States Supreme Court said:

. . . State statutes designed to regulate obscene material must be carefully limited. . . . As a result, we now confine the permissible scope of such regulations to works which (would) depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. (The stated) offense must also be limited to works which, taken as a whole, appeal to prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. 413 U.S. at 23-24, 93 S.Ct. at 2614-2615, 37 L.Ed.2d at 430-431.

The standard for the trier of fact was stated:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary ocmmunity 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. . . . 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

The area of regulation remaining to the states was expressed through the following examples:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. . . .

413 U.S. at 25-26, 93 S.Ct. at 2615-2616, 37 L.Ed.2d at 431-432.

We think it self-evident that using a statutory definition of 'obscene, indecent or immoral' in viewing moving pictures treads upon the freedom of speech requirements of Miller and as such is an unconstitutional trespass upon the First Amendment to the United States Constitution. ¹ Of interest, see 45 Miss.L.J. 435-Miller v. California: A Mandate for New Obscenity Legislation (1974).

The state does not seriously argue the constitutionality of Section 97-29-33 by its literal terms, but urges this Court to 'authoritatively construe' it to constitutional proportions by reading into it the specificity and limitations of Miller. We are not persuaded for several reasons. The adoption of authoritative construction could only be prospective as to this appellant, for surely a retrospective application of Miller would impose upon this appellant an ex post facto rule of law, for how can it be said that the defendant's actions in showing the movie were criminal when the alleged crime was committed a year and a half before the statute was revitalized by authoritative construction. ² Ballew v. State, 292 Ala. 460, 296 So.2d 206 (1974), the concurring opinion of Chief Justice Heflin; Papp v. State,281 So.2d 600 (Fla.App.1973); and Stroud v. State, 300 N.E.2d 100 (Ind.1973).

Moreover, this Court has never undertaken the suggested approach of the state, though it must be conceded that such authoritative construction is permitted by Miller. In Boydstun v. State, 249 So.2d 411 (Miss.1971), we held this Court would not define the offense of criminal libel or make common law even though the elements of that common law offense were uncertain due to the passage of time and varied constructions by the United States Supreme Court during the interval. We determined that the enactment of criminal offenses was best left to the legislature. See also Reserve Life Ins. Co. v. Coke, 254 Miss. 936, 183 So.2d 490 (1966), and Monaghan, State Tax Collector v. Reliance Mfg. Co., 236 Miss. 462, 111 So.2d 225 (1959).

We think it is clearly demonstrated by these decisions that our constitution intended the legislative function to be left to that body, and particularly the enactment of criminal sanctions for transgressions thought to be offensive to the citizenry of this state. Without doubt, the legislature is better suited for that purpose than is this Court by the use of judical engraftment to meet constitutional requirements. We observe also that the legislature might want to give consideration to Article 3, Section 13, of the Mississippi Constitution (1890) relating to the freedom of speech in this state. It is there provided that 'the freedom of speech and of the press shall be held sacred; . . .' when considering amendatory legislation. We are of the opinion, without deciding, that Article 3, Section 13, supra, by modern-day standards, appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration. We therefore reject the revitalization of Section 97-29-33 by authoritative construction.

We are aware that attempts to regulate obscene matters have resulted in controversy unequaled in other areas of law and we are hesitant to enter this thicket where each of us by his background and education can clearly perceive and distinguish between obscenity and nonobscenity, but which due to human frailties, we are unable to reduce to written definition capable of clear understanding by others because their eyes are beclouded by other environments and education. At least Miller has reduced the formulation of obscenity statutes from a national standard of 'utterly without social value' to the standard...