Gulf States Theatres of Louisiana, Inc. v. Richardson, No. 54044

CourtSupreme Court of Louisiana
Writing for the CourtBARHAM; However, in A Quantity of Books v. Kansas, supra, a Kansas statute authorized the seizure of allegedly obscene books before an adversary determination of their obscenity and their destruction by burning or other means after that determination
Citation287 So.2d 480
Docket NumberNo. 54044
Decision Date03 December 1973
PartiesGULF STATES THEATRES OF LOUISIANA, INC. et al. v. John A. RICHARDSON and George W. D'Artois.

Page 480

287 So.2d 480
GULF STATES THEATRES OF LOUISIANA, INC. et al.
v.
John A. RICHARDSON and George W. D'Artois.
No. 54044.
Supreme Court of Louisiana.
Dec. 3, 1973.
Rehearing Denied Jan. 11, 1974.

Page 482

John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., W. Gene Carlton, Asst. City Atty., for defendants-respondents.

Phillip A. Wittmann, Anthony M. DiLeo, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, John M. Madison, Jr., Wilkinson, Carmody & Peatross, Shreveport, Hopkins P. Breazeale, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for plaintiffs-relators.

BARHAM, Justice.

The plaintiffs, Gulf States Theatres of Louisiana, Inc., the owner of the Don Theatre in Shreveport, Louisiana, and a number of other motion pictures theatres, United Artists Corporation, the owner of the movie film 'Last Tango in Paris', and Joe Gianforte, Manager of Gulf States Theatres' Don Theatre, brought suit against the District Attorney for the Parish of Caddo and the Commissioner of Public Safety of the City of Shreveport, seeking to enjoin the defendants from enforcing R.S. 14:106A(2) and (3). The plaintiffs commenced the showing of the nationally publicized and distributed motion picture, 'Last Tango in Paris' in Shreveport on September 28, 1973. The first showing of said movie on that date was to a full capacity crowd. During the second showing of the motion picture on the same date, plaintiff Gianforte, was arrested and charged with violation of R.S. 14:106A(2). At the same time, pursuant to a search warrant issued by a judge of the First Judicial District Court for the Parish of Caddo, police authorities seized four twenty-six inch reels of film entitled 'Last Tango in Paris'.

Page 483

The following day, after the first showing on that day of 'Last Tango in Paris' from other reels of film, the plaintiff Gianforte, was again arrested and the reels of film which had produced on screen the movie 'Last Tango in Paris' were seized. The copy of the film seized on September 29 was an exact copy of the film used on September 28. On that date, September 29, the plaintiffs sought relief from the United States District Court, Western District of Louisiana, Shreveport Division, and were granted a temporary restraining order prohibiting further arrest of Gianforte and further seizure of any film.

When the temporary restraining order issued by the federal district court expired, the plaintiffs filed this suit in the First Judicial District Court, Caddo Parish, seeking a temporary restraining order and a preliminary and permanent injunction, enjoining and restraining and prohibiting the District Attorney and the Commissioner of Public Safety or their representatives from interfering with the showing of 'Last Tango in Paris' at the Don Theatre in Shreveport until there could be a final judicial determination of the obscenity issue in an adversary hearing. The district court on the same date, October 4, denied plaintiffs' petition for a temporary restraining order and injunctive relief. Two criminal charges were then and are now pending in Caddo Parish against one of the plaintiffs, Gianforte.

The plaintiffs then applied to this Court on that same date for relief under our supervisory jurisdiction. We granted writs of prohibition and mandamus to the district judge, ordering him to restrain and enjoin the defendants and their agents from making seizures of prints of the film 'Last Tango in Paris', and from otherwise interfering with its showing at the Don Theatre in Shreveport, pending a judicial determination of the issues. Our docket No. 54,009, October 4, 1973, 283 So.2d 493. Upon the district court's receipt of that order from our Court on October 4, the restraining order was issued and a rule to show cause on the 9th day of October why a preliminary injunction should not be entered was served upon the defendants.

On October 5, the defendants answered and reconvened, praying for a permanent injunction agaisnt the plaintiffs from further showing and exhibiting the film 'Last Tango in Paris', 'in accordance with provisions of R.S. 13:4711, et seq.' (nuisance statutes). The trial court issued a rule to show cause on the same date fixed for the other rule why this permanent injunction should not issue against the plaintiffs, defendants in reconvention, which would permanently enjoin them from further showing and exhibiting 'Last Tango in Paris'. The reconventional demand is accompanied by a certificate, signed by the District Attorney and the Commissioner of Public Safety, alleging on facts and allegations true and correct to the best of their knowledge, information and belief, that the affiants viewed the motion picture complained of, believed it to be obscene, and that the showing of said movie constituted the continuous conducting of a public nuisance under the laws of Louisiana.

On October 9 trial was begun on the main and reconventional demands. At the conclusion of the trial on October 12, 1973, the demands of plaintiffs in rule for injunctive relief agaisnt the defendants were rejected. The court entered a judgment in favor of the plaintiffs in reconvention, the District Attorney, and the Commissioner of Public Safety, agaisnt the plaintiffs, defendants in reconvention, permanently enjoining the latter from showing 'Last Tango in Paris', beginning at 9:30 P.M. that day, October 12, 1973.

On October 16, the plaintiffs, defendants in reconvention, again applied to this Court under its supervisory jurisdiction and this Court granted a writ of certiorari, ordering the record of the proceedings below forwarded to this Court, and assigning the matter for hearing on October 26, our docket No. 54,044 (October 18, 1973), 283 So.2d 762. The order, which is on the

Page 484

usual certiorari form of this Court, further ordered all proceedings in the First Judicial District Court to be stayed and suspended.

On October 18, the plaintiff Gianforte, applied to this Court for review of certain preliminary rulings in the two criminal proceedings pending agaisnt him in the criminal section of the First Judicial District Court. This Court responded by order staying all proceedings in the criminal actions pending a final action by this Court in the civil proceeding which is now before us, our docket No. 54,049 (October 18, 1973).

Posed for our consideration are two issues of constitutionality--that of R.S. 13:4711--4717 and that of R.S. 14:106. We will first address ourselves to the constitutionality of R.S. 13:4711--4717, since that issue will also be decided by this Court in the case on this same docket, State of Louisiana and the Parish of Caddo v. Gulf States Theatres of Louisiana, et al., 287 So.2d 496, on remand from the United States Supreme Court. The case on remand is not only to be considered in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its companion cases, but also in light of Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973).

The plaintiffs' position is that after the beginning of a financially successful showing of the motion picture 'Last Tango in Paris', they were, and have remained (except for our stay order), permanently enjoined from showing any version of that motion picture. Plaintiffs allege that this motion picture has been playing in approximately 350 cities throughout the United States and has been viewed by approximately 5,000,000 people. Plaintiffs further allege that they were receiving revenue in excess of $1,000 per day from the showing of the film and therefore they have been, and will be, under a permanent injunction, deprived of revenue in excess of $1,000 per day.

We are here concerned with the State's right to regulate obscene expression. Every exercise of the State's right to control obscenity '* * * implicates questions whether the procedures * * * were adequate to avoid suppression of constitutionally protected publications. '* * * (T)he line between expression unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn * * *. The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * * '. Speiser v. Randall, 357 U.S. 513, 525, 1472, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. It follows that, under the Fourteenth Amendment, a State its not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

Keeping constantly in mind, then, that under consideration here is the delicate line of demarcation between unconditionally guaranteed freedom of speech and the very limited exceptions under which speech and expression may be legitimately regulated or suppressed, we examine the attacks upon the constitutionality of R.S. 13:4711--4717.

A history of the development of the statutes casts light upon the consideration of the constitutional attacks. The statutes originated with Act 47 of 1918, which was an act to declare houses of prostitution and their contents nuisances and to provide means to enjoin and abate them. All seven provisions, R.S. 13:4711--4717, remained unchanged for over 40 years. In 1960 the Legislature attempted by Act 201 to amend Section 4711 to include Obscenity with Prostitution in the definition of a nuisance.

Page 485

Chapter 32 of Title 13 of the Revised Statutes of 1950 is titled 'Particular Classes of Actions and Cases'. Part I is titled 'Abatement of Public Nuisances'. Subpart A, titled 'Houses of Prostitution', contains these statutes which remained as originally enacted when the Revised Statutes of 1950 were adopted. They provide, as the title indicates,...

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35 practice notes
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...ex rel. Sweeton (1975) 294 Ala. 657, 320 So.2d 668, 675 (plurality opn.); Gulf States Theatres of Louisiana, Inc. v. Richardson (La.1973) 287 So.2d 480, 489; Mitchem v. State ex rel. Schaub (Fla.1971) 250 So.2d 883, 886--887; New Rivieria Arts Theatre v. State, supra, 412 S.W.2d 890, 893--8......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...an invalid prior restraint of presumptively protected materials (Gulf States Theatres of Louisiana, Inc. v. Richardson (La.1973) 287 So.2d 480, 489; Mitchem v. State ex rel. Schaub (Fla.1971) 250 So.2d 883, 886-887; New Rivieria Arts Theatre v. State, supra, 219 Tenn. 652, 412 S.W.2d 890. 8......
  • State ex rel. Andrews v. Chateau X, Inc., No. 23
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 4, 1979
    ...A Motion Picture Entitled "The Bet," 219 Kan. 64, 547 P.2d 760 (1976); Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 The State contends, however, that the trial court erred in interpreting G.S. 19-5 as authorizing such a complete closing. That issue is not p......
  • Universal Amusement Co., Inc. v. Vance, No. 75-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 18, 1978
    ...J., dissenting). 13 E. g., Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974); Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1974); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), Cert. denied, 425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d ......
  • Request a trial to view additional results
35 cases
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...ex rel. Sweeton (1975) 294 Ala. 657, 320 So.2d 668, 675 (plurality opn.); Gulf States Theatres of Louisiana, Inc. v. Richardson (La.1973) 287 So.2d 480, 489; Mitchem v. State ex rel. Schaub (Fla.1971) 250 So.2d 883, 886--887; New Rivieria Arts Theatre v. State, supra, 412 S.W.2d 890, 893--8......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...an invalid prior restraint of presumptively protected materials (Gulf States Theatres of Louisiana, Inc. v. Richardson (La.1973) 287 So.2d 480, 489; Mitchem v. State ex rel. Schaub (Fla.1971) 250 So.2d 883, 886-887; New Rivieria Arts Theatre v. State, supra, 219 Tenn. 652, 412 S.W.2d 890. 8......
  • State ex rel. Andrews v. Chateau X, Inc., No. 23
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 4, 1979
    ...A Motion Picture Entitled "The Bet," 219 Kan. 64, 547 P.2d 760 (1976); Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 The State contends, however, that the trial court erred in interpreting G.S. 19-5 as authorizing such a complete closing. That issue is not p......
  • Universal Amusement Co., Inc. v. Vance, No. 75-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 18, 1978
    ...J., dissenting). 13 E. g., Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974); Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1974); General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), Cert. denied, 425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d ......
  • Request a trial to view additional results

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