City of Seattle v. Marshall

• Citation: 521 P.2d 693,83 Wn.2d 665
• Decision Date: 25 April 1974
• Docket Number: 42651,Nos. 42650,s. 42650
• Parties: The CITY OF SEATTLE, Respondent, v. Teresa MARSHALL, Appellant, and James Verdon, Appellant.
• Court: United States State Supreme Court of Washington

Page 665

83 Wn.2d 665

521 P.2d 693

The CITY OF SEATTLE, Respondent, v. Teresa MARSHALL, Appellant, and James Verdon, Appellant.

Nos. 42650, 42651.

Supreme Court of Washington, En Banc.

April 25, 1974.

Rehearing Denied June 24, 1974.

Victor V. Hoff, Seattle, for appellants.

John P. Harris, Corp. Counsel, Seattle, for respondent.

HUNTER, Associate Justice.

This is a consolidation of appeals from two separate convictions: (1) the appeal of Teresa Natale Marshall for conviction of directly participating in the asserted violation of Seattle Code 12.11.220; and (2) the appeal of James Lee Verdon for the conviction of aiding and abetting Teresa Natale Marshall and others in the asserted violation of the ordinance.

The appellants (defendants) were charged with violating the following ordinance:

12.11.220 Indecent exposure. It is unlawful for any person to appear in a state of nudity, or in any indecent or Lewd dress, or make any indecent exposure of his person, or to expose his private parts to public view, or be guilty of Any lewd act or behavior in any place exposed to public view. (Ord. 16046 § 21; May 23, 1907).

(Italics ours.)

The facts which are undisputed are as follows. On December 7, 1971, the defendant, Teresa Natale Marshall, while on the stage of the New Paris Theater, removed all of her clothing and while she was naked, spread her legs toward an all male adult audience and exposed her private parts to that audience. In addition, she laid on her back and then on her stomach and simulated a 'bump and grind' sex act. On February 4, 11 and 12, 1972, and March 9, 1972, women on the stage of the New Paris Theater stripped until they were naked and, while naked, simulated a sex act either on the stage or on a large padded stool that was on the stage, somersaulted and landed with their legs spread toward the audience, and exposed their private parts to an all male adult audience while sitting on the edge of the stage.

During the above times the defendant, James Lee Verdon, was the manager of the theater and was responsible for hiring and firing the above mentioned women, counseled them about their performance, and was responsible for deciding whether they would remove their G-strings during the performance. The New Paris Theater in Seattle admits the general adult public to any of its performances upon payment of a monetary fee.

The threshold question in this case is whether the above conduct on the stage of the New Partis Theater was obscene. The United States Supreme Court, in Miller v. California, 413 U.S. 15, on pages 24--25, 93 S.Ct. 2607, on page 2615, 37 L.Ed.2d 419 (1973), defines obscenity as follows:

(C)onduct . . . (or) works which, taken as a whole, appeal to the 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.

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, Supra, (408 U.S. 229 (1972)) at 230, 92 S.Ct. 2245, 33 L.Ed.2d 312 quoting Roth v. United States, Supra, (354 U.S. 476 (1957)) at 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498; (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. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S. 413, at 419, 86 S.Ct. 975, 16 L.Ed.2d 1; . . .

One needs no expert testimony for it to be concluded that this conduct that took place in the New Paris Theater comes squarely within the above definition, particularly when applying the basic guidelines enunciated. There was no plot to this base conduct; there was no communication of ideas other than a prurient sex interest. It was a pure exhibition to portray an interest in sex conduct in an offensive way without any semblance of literary, artistic, political or scientific value. The conduct was obscene on its face. It is obscenity per se. In Morris v. United States, 259 A.2d 337, 341 (D.C.App.1969), that court quoted the following language from the Court of Special Appeals of Maryland, defining obscenity per se: (At that time the element of no redeeming social value, and the requirement of national community standards in the Roth and Memoris definition were in effect. Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957), and A Book Named 'John Cleland's Memoris of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).)

There is no desire to portray (it) in pseudo-scientific or 'arty' terms. It can be recognized by the insult it offers, invariably, to sex and to the human spirit. It goes substantially beyond customary limits of candor and deviates from society's standards of decency in the representation of the matters in which it deals. It has a patent absence of any redeeming social value; it speaks for itself and screams for all to hear that it is obscene. It is not designed to be a truthful description of the basic realities of life as the individual experiences them but its main purpose (is) to stimulate erotic response. * * * No proof, other than the viewing of it, is required to determine if it is, in fact, obscene.

(Footnotes omitted.)

That court then said, 259 A.2d on page 341:

It is clear to this court that where obscenity per se is involved, the prosecution is not required to offer any evidence (beyond the material or performance itself) that it is pornographic or obscene or that it is below the national community standards. . . . In other words, if reasonable men could not differ and they could come to but one conclusion, I.e., that the material or performance is sexually morbid, grossly perverse, and bizarre, without any artistic or scientific purpose or justification, then the Government on its case-in-chief need not offer any evidence of national community standards.

(Citations omitted.)

We hold that the conduct on the stage of the New Paris Theater on the occasion heretofore outlined was obscene per se; that reasonable men could not differ that the elements essential to constitute obscenity existed in the conduct of the performers in this case, and that no opinion evidence is necessary to support such a conclusion. In State v. J-R Distributors, Inc., 82 Wash.2d 584, 623, 512 P.2d 1049, 1073 (1973), we stated:

'(H)ard core pornography' can and does speak for itself on the question of obscenity, according to Paris Adult Theatre I v. Slaton, Supra; (413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)) . . . No amount of testimony by anthropologists, sociologists, psychiatrists, or psychologists could have added anything to the trial court's ability to determine that the materials failed to comply with any contemporary community standards related to sexual matters.

(Citations omitted.)

The facts in this case do not constitute obscenity in the same degree as in State v. J-R Distributors, Inc., Supra, but the rule therein stated should nevertheless be applicable.

That the performance in the New Paris Theater was obscene is further supported by the case of Adams Theatre Co. v. Keenan, 12 N.J. 267, 275, 96 A.2d 519, 523 (1953), wherein Justice Brennan described a class of burlesque to be Obscene, which clearly encompasses the facts of the instant case:

In contrast, that which has been termed 'modern burlesque' has been described as

'a plotless musical entertainment consisting of a series of unrelated episodes and dances, all with the purpose of depicting or suggesting sexual subjects or objects. The one outstanding characteristic of modern burlesque is the fact that it is completely sex-centered. It has some low comedy and occasionally some humor, but the principal subject of both is sex. * * * The Piece de resistance is the girl who disrobes, partially or entirely, and this act varies with the political season and the locality. * * * If burlesque of today is metropolitan, so also it is vice, and needs to be thought of in that light, as an aspect of social pathology. If vice implies a sense of antagonism toward existing mores, a purveying of sex in a vicarious, professional and promiscuous fashion, then burlesque is just that. * * * Although the operator may not be willing to say so to an inquirer, usually adopting a sanctimonious air, he knows, and everything in his theatre indicates he knows, that he is giving a sex show, sans excuses, sans philosophy and above all, sans clothes. He is, in that sense a professional purveyor of sex.' Dressler, Burlesque as a Cultural Phenomenon (1937).

A burlesque show answering the latter description may well be considered outrightly lewd and indecent.

(Italics ours.)

It is contended that the Seattle ordinance is a public view ordinance that relates to public view of conduct in the streets, and that a theater is not a place intended to be covered by the ordinance. We disagree. There is no language in the ordinance to support this limitation of its application.

It is further contended that the Seattle ordinance has not been violated on the theory that the performance in the New Paris Theater was not a public place and thus the proscribed conduct was not exposed to public view. This was answered emphatically in the negative by the United States Supreme Court in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), involving a case of consenting adults with paid admissions. The court stated on page 68, 93 S.Ct. on page 2641:

Finally, petitioners argue that conduct which directly involves 'consenting adults' only has, for that sole reason, a special claim to constitutional protection....