New Rivieria Arts Theatre v. State ex rel. Davis

• Decision Date: 15 February 1967
• Citation: 412 S.W.2d 890,219 Tenn. 652,23 McCanless 652
• Parties: , 219 Tenn. 652 NEW RIVIERIA ARTS THEATRE and H. W. Hill, Plaintiffs-in-Error, v. STATE of Tennessee ex rel. Edward E. DAVIS, Defendants-in-Error.
• Court: Tennessee Supreme Court

Page 890

412 S.W.2d 890

23 McCanless 652, 219 Tenn. 652

NEW RIVIERIA ARTS THEATRE and H. W. Hill, Plaintiffs-in-Error, v. STATE of Tennessee ex rel. Edward E. DAVIS, Defendants-in-Error.

Supreme Court of Tennessee.

Feb. 15, 1967.

Dwayne D. Maddox, Huntingdon, Edward A. Rudley, Philadelphia, Pa., of counsel, for plaintiffs in error.

Frierson M. Graves, Jr., Memphis, Amicus Curiae.

George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendants in error.

OPINION

CHATTIN, Justice.

Edward E. Davis, District Attorney General for the Sixth Judicial Circuit, filed this petition against the defendants, New Rivieria Arts Theatre of Chattanooga, Tennessee, and its manager, H. W. Hill. The petition sought a temporary injunction enjoining the defendants from showing or disposing of the film 'London Night Life' or any other film or acquiring other such films. The petition also prayed the temporary injunction be made permanent after a hearing and a determination the films complained of were obscene.

Upon the filing of the petition, the trial court ordered the clerk to issue a temporary injunction as prayed. The clerk issued the injunction and it was served on the defendants on the same day the petition was filed, March 9, 1966.

The defendants filed their answer on April 4, 1966. On April 6, 1966, the defendants filed a motion to dissolve the injunction on the ground they were being deprived of their property without due process of law by an unconstitutional application of the obscenity statute, T.C.A. Section 39--3005. On the same day, the defendants filed a motion to set the case for trial within two days as provided by T.C.A. Section 39--3005(b). The trial judge overruled the motion to dissolve the temporary injunction. He deferred action on the motion to set the case for trial until the respective parties had agreed in writing that the issues were joined.

After a full hearing on April 18 and 19, 1966, at which the parties offered witnesses and the trial judge was shown the film, 'London Night Life,' the trial judge found this film and others as well as certain previews to be obscene material under T.C.A. Section 39--3007.

Accordingly, he entered a decree which provides in part:

'From the testimony of the State's witnesses, from the viewing by the court of the film, 'London Night Life,' and from the testimony of the defendant, H. W. Hill, and the defense expert witness, Prof. Joseph Life, 'Wife Swappers,' 'Days of Sin' and 'Nights of Nymphomania,' 'One Shocking Moment,' 'Bare and Beautiful' and several 'Coming Attractions,' or 'Trailers' on some of these films, are 'obscene material' under the definition in Tennessee Code Annotated, Section 39--3007.

'It is, therefore, ordered, adjudged and decreed, pursuant to the authority in Tennessee Code Annotated, Section 39--3005(c) that the defendants, New Rivieria Arts Theatre of Chattanooga, Inc., and H. W. Hill, be permanently enjoined from the further or future showing of the films herein mentioned before, and other films and 'Coming Attractions' or 'Trailers' of the sort, kind or type which may be classified by the court as 'obscene material' under the definition of Tennessee Code Annotated, Section 39--3007.'

Defendants were granted a broad appeal to this Court and have assigned seven errors.

The first assignment of error contends that T.C.A. Section 39--3005(a) does not authorize an injunction, temporary or permanent, enjoining the showing of any and all films by the parties sought to be enjoined.

The State insists this question has become moot and should not be considered by this Court. That is, the temporary injunction is not in effect and the permanent injunction does not enjoin or prohibit defendants from showing films other than those the trial judge found to be obscene.

While the rule that this Court will not decide a moot question is applicable when the question for determination affects only rights and claims personal to the parties, an exception is well recognized when interest of a public character and of importance in the administration of justice generally are involved. McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1945). Because the question involves a determination of public rights or interests under conditions which may be repeated in the future, we will consider the question.

The statute, T.C.A. Section 39--3005(a), provides:

'The circuit, chancery, and criminal courts of this state have jurisdiction to enjoin the sale or distribution of obscene material as hereinafter specified:

'(a) The district attorney-general, in any district where a person, firm or corporation sells, distributes, exhibits or displays, or is about to sell, distribute, exhibit or display, or has in its possession with the intent to sell, distribute, exhibit or display any material which is obscene, as hereinafter defined, may maintain an action for an injunction against such person, firm or corporation in the circuit, chancery or criminal court of the county in which said sale, distribution, exhibition, display or possession occurred, and to prevent such sales, distribution, exhibition or display or further sales, distribution, exhibition or display, or the further acquisition of any such material.'

Motion pictures are within the basic protection of the first and fourteenth amendments to the Federal Constitution. Kingsley International Picture Corp. v. Regents of University of State of N.Y., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959).

A State has power to prevent the distribution of obscene material. Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), reh. den. 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383.

Whether proscribed conduct in regard to obscene matters is to be visited by a criminal prosecution or by a qui tam action or by an injunction, or by some or all of these remedies in combination is a matter within the legislature's range of choice. Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).

Material which is, in fact, obscene may be proscribed in a number of ways provided the proscription, whatever it may be, is imposed in accordance with constitutional standards. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

The temporary injunction sought by the petition and granted by the trial judge enjoined defendants from showing any and all films obscene or otherwise. The purpose of the statute is to prevent the dissemination of the obscene material and not to close a business or theater.

It is our opinion the statute clearly comprehends injunctions only against the display or sale of obscene material.

We agree with defendants' insistence the interpretation and application of the statute by the trial court was erroneous. The granting of the temporary injunction prohibiting the defendants from showing any film had the effect of closing the theater and was an unconstitutional application of the statute in violation of defendants' constitutional rights of freedom of speech and due process.

By defendants' fourth assignment of error it is insisted the trial judge erred in failing to hold the application of the obscenity statute sought by the petition of the District Attorney General was unconstitutional in violation of the first, fifth and fourteenth amendments to the Federal Constitution.

The petition of the District Attorney General alleged generally the defendants had been showing obscene films. The only film specifically named in the petition, and shown to be in the possession of the defendants, was the film, 'London Night Life.'

It is our opinion the statute clearly comprehends injunctions only against specific material. That is, obscene material, which a defendant is selling or displaying or is about to acquire and sell or display or has in his possession with the intent to sell or display.

To prevent the display or sale of obscene materials under the statute, the District Attorney General must bring an action against each and every item the display or sale of which he seeks to enjoin. The petition must name or clearly identify the material the defendant is displaying or selling or is about to acquire and sell or display or has in his possession with intent to sell or display.

The petition sought a temporary injunction prohibiting the defendants from showing any films whether obscene or not. In other words, the petition sought to close the theater.

We agree the application of the statute sought by the petition was unconstitutional in violation of defendants' rights under the first, fifth and fourteenth amendments to the Federal Constitution.

The second assignment contends the trial judge was in error in admitting certain evidence by the State into the record. Specifically, the argument is directed to the testimony as to trailers and previews of coming attractions as not competent to aid in the determination of whether the films, as a whole, were obscene.

T.C.A. Section 39--3006 provides:

'In any action or prosecution under Sections 39--3003 or 39--3005 or any laws of this state wherein the question of the obscenity of any material is an issue it shall be admissible in evidence, among other things, to show:

'(a) the...