Attwood v. Purcell

• Citation: 402 F. Supp. 231
• Decision Date: 08 September 1975
• Docket Number: Civ. No. 75-17 Phx. WPC.
• Parties: Mary N. ATTWOOD and Joan F. Poston, Plaintiffs, v. Joseph PURCELL, Individually and as the City Attorney of the City of Phoenix, Arizona, and Lawrence Wetzel, Individually and as the Chief of Police of Phoenix, Arizona, Defendants.
• Court: U.S. District Court — District of Arizona

402 F. Supp. 231

Mary N. ATTWOOD and Joan F. Poston, Plaintiffs, v. Joseph PURCELL, Individually and as the City Attorney of the City of Phoenix, Arizona and Lawrence Wetzel, Individually and as the Chief of Police of Phoenix, Arizona, Defendants.

Civ. No. 75-17 Phx. WPC.

United States District Court, D. Arizona.

September 8, 1975.

Richard J. Hertzberg, Phoenix, Ariz., for plaintiffs.

Richard A. Garcia, Asst. City Atty., Phoenix, Ariz., for defendants.

Before ELY, Circuit Judge, and EAST and COPPLE, District Judges.

OPINION and ORDER

COPPLE, District Judge:

This action was brought pursuant to jurisdiction vested in this court by 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), (4) and 28 U.S.C. § 2284(3). A three-judge court was convened in accordance with 28 U.S.C. § 2284(1).

Plaintiffs have been and wish to continue to be performing "topless" dancers whose services are engaged by adult film theaters to provide live entertainment between films. The dancers perform upon a stage and do not mingle with the audience. These theaters limit their clientele to paying adults and minors are excluded. The theaters do not advertise the performances as "nude" or "topless" dancing. Ample warning is provided so that the audience is aware of the nature of the film entertainment that the theaters offer. Such theaters are engaged solely in entertainment and not in the sale or service of alcoholic beverages¹ or food.

Officers of the Phoenix Police Department's Special Investigations Bureau (Vice Enforcement Unit) enter these theaters and observe the dancing performed therein. If a dancer merely bares her breasts the officer will take no further action; however, if the baring of the breasts is combined with what the officer subjectively conceives to be suggestive conduct the dancer will be arrested² for violating A.R.S. § 13-531.³ The statute provides:

"A person is guilty of a misdemeanor who wilfully and lewdly exposes his person or the private parts thereof in any public place or in a place where there are present other persons to be offended or annoyed thereby."

The department intends to reinstitute the enforcement of the statute unless prevented by the ruling of this court. It intends pursuant to A.R.S. § 13-1403 (2) (misdemeanor in the presence of an officer) to continue the use of arrest⁴ and "booking" of the dancers as their standard operating procedure in such cases.

As a result of the previous conduct of the defendants and their stated purpose to continue the enforcement of A.R.S. § 13-531, the plaintiffs have sought both declaratory and injunctive relief claiming the statute on its face and as applied is unconstitutional. Failing to obtain such relief, the plaintiffs request an injunction requiring that the officers obtain the presence of the plaintiffs for criminal proceedings by use of summons instead of immediate arrest pursuant to A.R.S. § 13-1403(2).

The defendants urge that the instant case is a proper one for abstention. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We disagree. Neither plaintiff is a party to a presently pending civil or criminal action (in regards to this matter) in the state of Arizona. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). If this court fails to act in their favour each of the plaintiffs will again be subject to arrest if they pursue their profession within the City of Phoenix.⁵ The threat of prosecution and not bad faith prosecution or harassment is the standard to be applied by this court. See Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed. 2d 274 (1975). Under these circumstances we see no reason for not invoking the jurisdiction of this court.

I.

The constitutional considerations that guide this court involve the characterization of nude or topless dancing. We are of the opinion that such dancing can be protected expression under the First Amendment.

Judge Charles D. Roush of the Superior Court of Maricopa County, in a well-reasoned, unreported and unappealed decision, Generosity v. City of Scottsdale⁶, a copy of which has been filed herein, observed:

"It hardly needs a citation to establish that dancing can be a form of expression. Any person who has enjoyed a ballet would readily agree. Expressive dancing occupies a major portion of the musical shows on television. Nevertheless, several cases have established that dancing can involve expressive communication." (citations omitted)

In another recent state court opinion the Supreme Court of Arizona in Yauch v. State, City of Tucson, 109 Ariz. 576, 514 P.2d 709 (1973), observed that nude dancing in a theatrical setting could enjoy the constitutional protection afforded by the First Amendment to creative expression.⁷ The court noted that,

"The ordinances plainly are not designed to suppress ideas conveyed through the legitimate theater and were not intended and do not bring within the scope of their prohibition performances of dances, plays, exhibitions, shows or other entertainment where the dissemination of ideas is the objective." (514 P.2d at 712, emphasis added)

The Court of Appeals for the Second Circuit reached the same conclusion in Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2nd Cir. 1974) (Aff'd 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). The court noted:

". . . while the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by the judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who, having worked overtime for the necessary wherewithal, wants some `entertainment' with his beer or shot of rye."

Other courts have resolved the issue in the same manner.⁸

The constitutional protection afforded to this mode of expression was noted by the Supreme Court in California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 2d 342 (1972). This position was reiterated by the court in Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561 2568, 45 L.Ed.2d 648 (1975). The court stated:

"Although the customary `bar room' type of nude dancing may involve only the barest minimum of protected expression we recognized in California v. LaRue (citation omitted), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances."

We feel that the conclusion is inescapable: nude dancing can be a protected form of expression under the First Amendment and as such is applicable to the states through the Fourteenth Amendment. Our consideration of A.R. S. § 13-531 therefore must of necessity be guided by the constitutional standards applied to state control over such expression.

II.

We are of the opinion that A.R.S. § 13-531 is unconstitutional due both to its vagueness and overbreadth.

A. The statute is open to a vagueness attack at least in two ways. In the first instance the statute's reference to wilful and lewd exposure of one's "person or private parts thereof in any public place" fails to meet the requisite specificity required of statutes that intend to regulate expression. As the Supreme Court observed in Miller v. California, 413 U.S. 15, 27, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419 (1973),

". . . no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive `hard core' sexual conduct specifically defined by the regulating state law, as written or construed." (Emphasis added)

The reason for such specificity is two-fold. First, the individual who may wish to perform an expressive act must be put on notice of when he or she will lose the protection of the First Amendment. Secondly, the censor or magistrate must be provided with clear guidance as to what may or may not be controlled under the statute. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), Miller v. California, supra, and Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

The Court has struck down as lacking the required specificity statutes which have used terms such as "sexual promiscuity" (Interstate Circuit Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968)) and "would appeal to lust" (Rabeck v. New York, 391 U.S. 462, 88 S.Ct. 1716, 20 L.Ed.2d 741 (1968)). We think that the terms "wilfully and lewdly" are hardly more definite than those which have been struck down. In United States v. 12 200-Ft. Reels of Super 8 mm Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670 n. 7, 37 L. Ed.2d 500 (1973), the court noted:

"We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where `"a serious doubt of constitutionality is raised"' and `"a construction of the statute is fairly possible by which the question may be avoided."' United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed. 2d 822 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). If and when such a `serious doubt' is raised as to the vagueness of the words `obscene,' `lewd,' `lascivious,' `filthy,' `indecent,' or `immoral' as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, see United States v. Orito, supra, 413 U.S. 139, at 140 n. 1, 93 S.Ct. 2674, at 2676 n. 1, 37 L.Ed.2d 513 1973, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific `hard core' sexual conduct given as examples in Miller v. California, supra, 413 U.S., at 25, 93 S.Ct., at 2615. See United States v. Thirty-Seven Photographs, supra, 402 U.S., at 369-374, 91 S.Ct., at 1404-1407 (opinion of White, J.). Of course, Congress could always define other specific `hard core' conduct."

The state courts have...