General Corp. v. State ex rel. Sweeton

• Decision Date: 18 September 1975
• Citation: 294 Ala. 657,320 So.2d 668
• Parties: GENERAL CORPORATION, a corporation, v. STATE of Alabama ex rel. Eugene SWEETON, Chief of Police, City of Huntsville, Alabama. SC 521.
• Court: Alabama Supreme Court

Page 668

320 So.2d 668

294 Ala. 657

GENERAL CORPORATION, a corporation, v. STATE of Alabama ex rel. Eugene SWEETON, Chief of Police, City of Huntsville, Alabama.

SC 521.

Supreme Court of Alabama.

Sept. 18, 1975.

Frierson M. Graves, Jr., Memphis, Tenn., for appellant.

Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.

ALMON, Justice. ^*

The question presented by this appeal is whether the Alabama Red Light Abatement Act, Tit. 7, § 1091 et seq., Code of Alabama 1940, Recompiled 1958, can be constitutionally applied to the exhibition of obscene motion pictures. More specifically, whether the showing of obscene motion pictures constitutes a public nuisance, the sanction for which is the padlocking of the premises for up to one year.

The complaint filed January 16, 1973, alleged that for a period in excess of nineteen months, appellant had consistently shown obscene films at the Fox Cinema Theatre and that the showing of certain of these films constituted a violation of both the nuisance and obscenity laws of the State of Alabama. The complaint prayed for issuance of a preliminary injunction after notice and hearing, and that after a final hearing on the issue of obscenity, appellant, General Corporation, be perpetually enjoined from maintaining said nuisance.

The pretrial order, issued on February 13, 1973, set out the contentions of the respective parties including a stipulation that the Fox Cinema Theatre was an enclosed adult movie house. A supplemental pretrial order was issued on February 22, 1973, stipulating that the issues in controversy were, whether the conduct of appellant constituted 'lewdness' under Tit. 7, § 1091, Code, supra.

On February 23, 1973, the final decree of the trial court was entered. Specifically, the trial judge found that appellant had engaged in showing obscene movies at the Fox Cinema Theatre and that such activity constituted a public nuisance. Pursuant to that finding, the court decreed that appellant be perpetually enjoined from maintaining said nuisance at the Fox Cinema Theatre or elsewhere in the county; that all personal property contained in the theatre be removed and sold in the manner provided for the sale of chattels under execution; that the theatre be closed for all purposes for one year unless sooner released under the provisions of Tit. 7, § 1104, Code, supra; and that the proceeds of the sale be applied to the costs. A writ of injunction was issued embodying the terms of the final decree.

On March 23, 1973, the court amended its final decree specifically limiting its operation to obscene matter, but leaving undisturbed the provision closing the theatre for one year.

The evidence showed that appellant was engaged in the operation for profit of the Fox Cinema Theatre, situated in Huntsville, Alabama. During the period of December 20, 1972, through January 10, 1973, inclusive, Mr. Ron Curlee, a detective employed by the Huntsville Police Department visited the Fox Cinema Theatre on several occasions. During these visits Mr. Curlee took numerous sequential photographs and recorded contemporaneous audio tapes of the films which were being exhibited at the theatre. These motion picture films were entitled: 'The Making of the Blue Movie,' 'I am Sandra,' 'Mary Jane,' 'The Gun Runners,' 'The Executive Wives,' and 'The Mermaids.' At trial Mr. Curlee, referring to the notes and pictures he had taken while at the theatre, testified as to the subject matter content of each of the foregoing films. That testimony tended to show that said films depicted, Inter alia, sexual intercourse, fellatio, cunnilingus, group sex, lesbianism, auto-eroticism, fettishism, voyeurism, and sado masochistic sexual activities.

The State's contention below was that the movies exhibited at the Fox constituted a public nuisance in that they were 'obscene,' and that under the provisions of Tit. 7, § 1091, et seq. (the Alabama Red Light Abatement Act) the operation of the theatre was subject to abatement. Appellant's position was that this Act was not intended to apply to motion picture films or, in the alternative, if the legislature did so intend, such application is unconstitutional.

Any doubts that patently obscene expression falls outside the protection of the First Amendment and therefore enjoys no immunity from state regulations have long been laid to rest. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 'The primary requirements of decency may be enforced against obscene publications.' Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). More recently the United States Supreme Court has reaffirmed the principle that the states have a legitimate interest in regulating the use of obscene material; and, more specifically, that local regulations dealing with such material will not be disturbed or struck down so long as they comport with specific constitutional mandates. Paris Adult Theatre v. Slaton, 143 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

However, due to the elevated status ascribed to First Amendment guarantees, procedures adopted by states for dealing with obscene expression have been the subject of close judicial scrutiny. Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The line between expression unconditionally guaranteed and that which may be legitimately regulated is finely drawn. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

Although motion pictures are a form of expression and within the shield of the First Amendment, United States v. A Motion Picture Film, 404 F.2d 196 (2d Cir. 1968), they are not necessarily subject to the same rules governing other modes of expression. Burstyn v. Wilson, 343 U.S. 495, 7i S.Ct. 777, 96 L.Ed. 1098 (1951). Because of the singularly unique nature of the medium, a motion picture may be denominated obscene and thereby exceed the protective bounds of the First Amendment long before a written description of the same subject matter. Landau v. Fording, 245 Cal.App.2d 820, 54 Cal.Rptr. 177, aff'd 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317 (1966); People v. Bloss, 18 Mich.App. 410, 171 N.W.2d 455 (1969). Moreover, the United States Supreme Court has expressly rejected constitutional immunity from state regulation for obscene films simply because their exhibition is limited to consenting adults. Paris Adult Theatre v. Slaton, supra.

So, although the regulation of obscene expression is unquestionably a legitimate matter for state control, it does not necessarily follow that the doctrine of public nuisance can be constitutionally applied to obscenity. Traditionally, continuing activity contrary to public morals or decency have constituted public nuisances. Price v. State, 96 Ala. 1, 11 So. 128 (1891); Ridge v. State, 206 Ala. 349, 89 So. 742 (1921); Hayden v. Tucker, 37 Mo. 214 (1866); Federal Amusement Co v. State, ex rel. Tuppen, 159 Fla. 495, 32 So.2d 1 (1947); Abbott v. State, 163 Tenn. 384, 43 S.W.2d 211 (1931); Perkins on Criminal Law, p. 395 (Foundation Press, 1969); Wood, Law of Nuisances, § 68, p. 87, vol. 1 (3d ed., 1893); 66 C.J.S. Nuisance § 18 d, p. 766. Under the police power, a court of equity with proper legislative authorization can assume jurisdiction to abate a nuisance notwithstanding the fact that the maintenance of that nuisance may also be a violation of the criminal law. Ridge v. State, supra; Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971), cert. denied 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267 (1971).

However, where First Amendment rights are involved, there was been no such unanimity of authority for a multitude of reasons, the more salient of which warrant separate consideration.

At the outset we note three requirements imposed by the First Amendment upon Any statute which attempts to regulate obscene material: (1) the burden of proving obscenity must always rest with the State; (2) administrative action determining matter to be obscene must not have an air of finality--there must be provision for prompt judicial review; (3) where prior restraint exists, there must be an immediate final determination on the issue of obscenity. Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); United Artists Corporation v. Wright, 368 F.Supp. 1034 (N.D.Ala.1974); Gulf States Theatres of Louisiana v. Richardson, 287 So.2d 480 (La.Sup.Ct.1974); New Rivieria Arts Theatre v. State, 412 S.W.2d 890 (Tenn.Sup.Ct.1967).

In terms of burden of proof, traditional public nuisance doctrine vis-a-vis obscenity poses a twofold dilemma; (1) what is the burden of proof, and (2) upon whom does the burden fall. Regarding the former, there is a dichotomy in the social ills against which obscenity law and public nuisance law are directed. The definitional test for obscenity attempts to separate those materials protected by the guaranties of freedom of expression; the aim of a nuisance action, on the other hand, is not the suppression of a particular form of expression, rather the abatement of a condition which works harm upon a substantial number of the public or which injuriously affects public safety, health, or morals. City of Selma v. Jones, 202 Ala. 82, 79 So. 476 (1918).

In Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (3d Cir. 1969) it was held that nuisance doctrine was too elastic and amorphous to constitutionally restrict First Amendment rights. The court concluded that public nuisance doctrine could not be used both to define the standards of protected speech and to serve as a vehicle for its restraint. Accord, State ex rel. Murphy v. Morley, 63 N.M. 267, 317 P.2d 317 (1957); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968).

Tit. 7, § 1091, Code, supra, defines as a nuisance...