City of Chicago v. Festival Theatre Corp.

• Decision Date: 18 June 1982
• Docket Number: No. 54090,54090
• Citation: 63 Ill.Dec. 421,438 N.E.2d 159,91 Ill.2d 295
• Parties: , 63 Ill.Dec. 421 The CITY OF CHICAGO, Appellant, v. FESTIVAL THEATRE CORPORATION, et al., Appellees.
• Court: Illinois Supreme Court

Page 159

438 N.E.2d 159

91 Ill.2d 295, 63 Ill.Dec. 421

The CITY OF CHICAGO, Appellant, v. FESTIVAL THEATRE CORPORATION, et al., Appellees.

No. 54090.

Supreme Court of Illinois.

June 18, 1982.

Stanley Garber, Corp. Counsel, Chicago (Robert R. Retke and Jerome A. Siegan, Asst. Corp. Counsels, Chicago, of counsel), for appellant.

Patrick A. Tuite, of Patrick A. Tuite, Ltd., Chicago, for appellees.

WARD, Justice:

This appeal concerns the propriety of a permanent injunction issued by the circuit court of Cook County, by which the court restrained the Festival Theatre Corporation and the theater manager, Paul Liang, from presenting obscene live exhibitions. The appellate court held that issuance of the injunction violated the first amendment to the United States Constitution (U.S.Const., amend. I). (88 Ill.App.3d 216, 43 Ill.Dec. 341, 410 N.E.2d 341.) We granted the city of Chicago, which had sought the injunction, leave to appeal (73 Ill.2d R. 315(a)).

The plaintiff, the city of Chicago, filed a complaint for injunctive relief on August 29, 1978. The complaint alleged that the defendants, Festival Theatre Corporation and Liang, on three occasions presented exhibitions that consisted of live sex acts in violation of the criminal obscenity statute (Ill.Rev.Stat.1977, ch. 38, par. 11-20). The city alleged that the performances were harmful to its citizens, and that it had no adequate remedy at law. Also, the city alleged that the defendants were violating a municipal ordinance because they had not secured a public amusement license. The complaint petitioned for the issuance of an injunction against such performances at the theater.

The court conducted a hearing on September 25, 1978, at which several Chicago police officers testified to the following. On July 26, 1978, and August 14, 1978, plainclothes police officers paid fees of five dollars to enter the theater. On both occasions, there was a live stage show involving two women. In the July 26 show, the women danced and completely disrobed to music. On both occasions, though the shows differed in some respects, the women kissed and fondled each other, and engaged in deviate sexual acts during the performances. After the performances, the women were arrested for obscenity (Ill.Rev.Stat.1977, ch. 38, par. 11-20(a)(4)) and public indecency (Ill.Rev.Stat.1977, ch. 38, par. 11-9(a)(2)). The manager, Liang, was arrested for obscenity (Ill.Rev.Stat.1977, ch. 38, par. 11-20(a)(2)) and for city ordinance violations.

On August 23, 1978, the stage show, which was witnessed by police officers, involved only one of the women and a man. The woman told the audience that she had to change her "act" because of previous arrests. Again she danced and removed her clothes. She was soon joined on stage by the man, who removed his clothes, and they engaged in actual or simulated intercourse and deviate acts. Both were arrested for obscenity and public indecency.

Criminal proceedings were begun after the arrests, but at the time of the hearing no dispositions had been made of them. The record does not indicate the eventual dispositions.

The court found that the performances were a public nuisance. The injunction stated:

"THE COURT DOTH FIND: That the live stage performance, as performed at the Festival Theater, 3912 N. Sheridan Road, Chicago, Illinois, is a public nuisance.

THEREFORE, IT IS HEREBY ORDERED that defendants, Festival Theater Corporation and Paul N. Liang, their employees, agents and representatives, are hereby permanently enjoined and restrained, until further order of Court, from performing or permitting the performance of lewd acts of live persons, in violation of applicable City Ordinances and State Statutes, at 3912 N. Sheridan Road, Chicago, Illinois, for the entertainment, sexual arousal, or viewing by and of members of the public; including, but not limited to, the following of such acts:

1. Actual or simulated stimulation, fondling and/or massage of the genitals of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.

2. Actual or simulated stimulation, fondling and/or massage of the breasts and/or buttocks of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.

3. Conduct amounting to a lewd exhibition of the genitals.

4. Actual or simulated acts of sexual intercourse where the genitals and/or buttocks of one or more of the performers are exposed."

The appellate court considered that the city of Chicago had demonstrated that it had no adequate legal remedy. Further, the court recognized that the concept of common law nuisance enabled a court to exercise its equity powers to abate a use of premises harmful to public morals. The court held, however, that the concept of a common law public nuisance was so vague that use of it against obscenity "transgresses the constitutional boundaries * * * which provide that conduct regulated as obscenity must be specifically defined." 88 Ill.App.3d 216, 230, 43 Ill.Dec. 341, 410 N.E.2d 341.

Though it did not appear to have been an issue, the appellate court stated, too, that the proceeding could not have been brought as a statutory nuisance action under "An Act regarding places used for purposes of lewdness, assignation, or prostitution * * * " (Ill.Rev.Stat.1977, ch. 100 1/2, par. 1 et seq.) (The Public Nuisance Act). Relying upon decisions that it said held that the Act was aimed against prostitution and not obscenity, the court concluded that the conduct here was not covered by the terms "lewdness, assignation, or prostitution." 88 Ill.App.3d 216, 222, 43 Ill.Dec. 341, 410 N.E.2d 341.

First, as to whether the Public Nuisance Act could have been invoked under these circumstances, we do not express an opinion. The city points out it did not attempt to bring this action under the Act. The appellate court, however, did briefly discuss the question. It relied upon three decisions, People v. Movies, Inc. (1971), 49 Ill.2d 85, 273 N.E.2d 366 (a dictum ), People ex rel. Difanis v. Futia (1978), 56 Ill.App.3d 920, 15 Ill.Dec. 184, 373 N.E.2d 530, and People v. Goldman (1972), 7 Ill.App.3d 253, 287 N.E.2d 177, which stated that the Act was aimed at prostitution, not at obscenity. The court said that because the legislature did not amend the statute following those decisions, that construction of the Act presumptively reflected the legislature's intent. Therefore, the Act was unavailable here. 88 Ill.App.3d 216, 222, 43 Ill.Dec. 341, 410 N.E.2d 341.

While we need not and do not decide the question, because of the appellate court's stated conclusion it is appropriate to point out that the unavailability of the Act here is not as clear cut an issue as the appellate court's opinion indicates. In none of the decisions cited was the activity to be enjoined live sex acts. Movies concerned motion pictures; Futia involved a "peep show" and nude photo studio; and Goldman concerned an adult bookshop.

Courts have held that statutes providing for the abatement of places where "lewdness, assignation or prostitution" are conducted are not applicable to the exhibition of obscene films or books. (E.g., People ex rel. Busch v. Projection Room Theatre (1976), 17 Cal.3d 42, 60-61, 550 P.2d 600 611-12, 130 Cal.Rptr. 328, 339-40, cert. denied (1976), 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289; State ex rel. Murphy v. Morley (1957), 63 N.M. 267, 317 P.2d 317.) Some of those holdings, however, have been based at least partially on the ground that the statutory language was directed against conduct rather than portrayal. (See State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp. (1976), 396 Mich. 244, 246, 240 N.W.2d 460, 461 (statute "was intended to apply to houses of prostitution and not motion picture theaters where sexual acts are not committed but are portrayed on the screen"); Commonwealth v. MacDonald (1975), 464 Pa. 435, 460-61, 347 A.2d 290, 304, cert. denied (1976), 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (statute concerns only buildings used for "illicit sexual conduct," not obscene films).) In California, where a statute with such language has been held inapplicable to films, courts have held that the statute could be used against a place offering live obscene performances (People ex rel. Busch v. Projection Room Theatre (1976), 17 Cal.3d 42, 60-61, 550 P.2d 600, 611-12, 130 Cal.Rptr. 328, 339-40, cert. denied (1976), 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289; People ex rel. Hicks v. Sarong Gals (1972), 27 Cal.App.3d 46, 103 Cal.Rptr. 414) or a place showing obscene films where lewd sexual conduct by the audience is condoned and encouraged (People v. Mitchell (1976), 64 Cal.App.3d 336, 134 Cal.Rptr. 358).

Thus, whether a distinction may be drawn, as the appellate court sought to do, between the abatement of obscenity and the abatement of a house of prostitution may be questioned where the obscenity consisted of live sex acts performed before a paying audience. This is true especially because this court has not restricted the meaning of "prostitution" under nuisance laws to the definition of "prostitution" in the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 11-14). City of Chicago v. Cecola (1979), 75 Ill.2d 423, 27 Ill.Dec. 462, 389 N.E.2d 526 (obscene massage, though not prostitution under criminal law, is prostitution for purposes of nuisance laws).

We do hold, however, that obscene stage shows may be enjoined as common law public nuisances.

The Public Nuisance Act does not displace common law actions to abate public nuisances. (City of Chicago v. Cecola (1979), 75 Ill.2d 423, 427, 27 Ill.Dec. 462, 389 N.E.2d 526). Rather, equitable jurisdiction to abate public nuisances is said to be of "ancient origin," and it exists even where not conferred by statute, where the offender is amenable to the criminal law,...