NGC Theatre Corp. v. Mummert

• Decision Date: 20 October 1971
• Docket Number: No. 10341,10341
• Citation: 107 Ariz. 484,489 P.2d 823
• Parties: NGC THEATRE CORPORATION, Appellant, v. John MUMMERT, Sheriff of Maricopa County; and Maricopa County Sheriff's Office, Appellees.
• Court: Arizona Supreme Court

Page 823

489 P.2d 823

107 Ariz. 484

NGC THEATRE CORPORATION, Appellant, v. John MUMMERT, Sheriff of Maricopa County; and Maricopa County Sheriff's Office, Appellees.

No. 10341.

Supreme Court of Arizona, In Banc.

Oct. 20, 1971.

Rehearing Denied Nov. 16, 1971.

Brown & Finn, by Michael J. Brown, Tucson, Stanley Fleishman, Hollywood, Cal., for appellant

Moise Berger, Maricopa County Atty., by Robert L. Storrs, Deputy County Atty., Phoenix, for appellees.

CAMERON, Justice.

This is an appeal from an order of the trial court holding that the film 'I Am Curious (Yellow)' is obscene under the Arizona statutes § 13--531.01 and § 13--535 A.R.S. and granting a permanent injunction prohibiting the appellant, National General Corporation, from exhibiting the film within the State of Arizona.

We are called upon to decide:

1. Does the definition of obscenity as set forth in the Arizona statutes violate the due process requirements of notice?

2. Does the statute cover motion pictures?

3. Is this film protected by the First Amendment?

4. Is 'I Am Curious (Yellow)' obscene under the Arizona statutes?

The film was exhibited for a period of approximately five weeks at the Vista Theater in Phoneix, Arizona. Thereupon it was seized pursuant to a search warrant and without prior adversary hearing. In a collateral action such procedure was set aside. Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). After petition and hearing on the petition, a full adversary hearing was set for 28 November 1969. After the hearing and after two viewings of the film by the trial judge, the judge found the film to be obscene, ruled that continued exhibition thereof constituted a public nuisance, granted a permanent injunction against exhibition thereof, and ordered the film impounded.

DEFINITION

Appellant first contends that the definition of obscenity in the Arizona statute is not consistent with the due process clause of the United States Constitution and the United States Supreme Court decisions decided thereunder. The statute in effect at the time of the prior adversary hearing was an almost literal reproduction of the ALI, Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), and read as follows:

'2. 'Obscene' means that which considered as a whole has as its dominant theme or purpose an appeal to prurient interest or a shameful or morbid interest in nudity, sex or lawdness going substantially beyond customary limits of candor in description or representation of such matters.' § 13--531.01, subsec. 2 A.R.S.

The United States Supreme Court has atated:

'This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. * * * (A)ll that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *'.' Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, 1510--1511 (1957).

We have examined the definition and find it sufficient that an 'ordinary person can intelligently choose in advance what course is lawful for him to pursue.' We agree with the statement of the Arizona Court of Appeals:

'We believe, therefore, that our statutory definition of 'obscene,' applied according to the standards enunciated by the U.S. Supreme Court for judging obscenity, gives adequate warning of the proscribed conduct and affords sufficient guidelines for fair administration of the anti-obscenity statute.' Barbone v. Superior Court of Pima County, 11 Ariz.App. 152, 156, 462 P.2d 845, 849 (1969).

MOTION PICTURES

§ 13--535 A.R.S., wherein relevant, reads as follows:

'A. The superior court has jurisdiction to enjoin the sale or distribution of obscene prints and articles, as described in subsection B.

'B. The county attorney of any county or the city attorney of any city in which a person * * * or corporation publishes, sells, or distributes * * * any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure, image or any written or printed matter of an indecent character, which is obscene * * * or in any other respect defined in § 13--531.01, may maintain an action on behalf of such county or city for an injunction Appellant would have us apply the Expressio unius est exclusio alterius doctrine and exclude motion pictures from such treatment. We decline to do so. Exhibit reference is had to § 13--531.01. That section defines an obscene 'item' as follows:

* * * in the superior court to prevent the sale * * * or the distribution * * * of the acquisition, publication or possession * * * of any * * * picture, drawing, photographed figure or image or any written or printed matter of an indecent character, described in this subsection Or in § 13--531.01.' (Emphasis added.)

'* * * any book, leaflet, pamphlet, magazine, booklet, picture, drawing, photograph, film, negative, slide, Motion picture, figure, object, article, novelty device, recording, transcription or other similar items.' (Emphasis added.)

We hold that the statute, § 13--535 A.R.S., embraces obscene motion pictures.

DOES THE FIRST AMENDMENT PROTECTION APPLY?

The protection offered by the First Amendment of the United States Constitution to citizens in obscenity cases, has been poorly delineated, if indeed it has been delineated at all. We agree with Mr. Justice Harlan (in dissent) that, 'no stable approach to the obscenity problem has yet been devised by this Court.' A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' (Fanny Hill) v. Attorney General of Com. of Mass., 383 U.S. 413, 455, 86 S.Ct. 975, 996, 16 L.Ed.2d 1, 26 (1966).

'We need a definition of 'obscenity' to know what publications, if any, in this general class are subject to punishment. First-class minds have devoted first-class efforts to this definition for many years, and we must get used to their want of success. Obscenity may be defined either at some high level of abstraction or in functional terms, but this is a social problem which is not ever going to be reducible to some simple formula of the A= r2 variety. Not only is obscenity incapable of a mathematically precise definition; it is also incapable of definition with the precision of many a good, usable legal formula. A definition of burglary as breaking and entering in the nighttime for the purpose of committing a felony has a flatly tangible quality to it. There is going to be no equivalent in the law of obscenity.' John P. Frank, Obscenity: Some 'Problems of Values and the Use of Experts, 41 Washington Law Review 631, 633 (1966).

However indistinct the guidepost set by the United States Supreme Court may be, we must, nevertheless, attempt to determine whether the trial court was correct when it denied the protection of the First Amendment to the facts (and the film) in the instant case.

Motion pictures are forms of expression within the meaning of the First Amendment to the United States Constitution. Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). The standard to be used in determining whether the film is obscene is a federal constitutional standard under the United States Constitution:

'* * * The legal test for obscenity established by Federal case law is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Jacobellis v. Ohio (378) U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. We specifically say 'Federal case law' because the phrase 'contemporary community standards' refers to the entire nation and not the geographic boundaries of any state or subdivision thereof. To limit 'contemporary community standards' to the standards of an area less than the entire nation would conflict with the First Amendment. Jacobellis v. Ohio, supra.' State v. Locks, 97 Ariz. 148, 151, 397 P.2d 949, 951 (1964).

It is the standard that the United States Supreme Court under the United States Constitution has determined to be the national 'contemporary community The application of this federal constitutional (national) standard is a matter of law for the court:

standard' that must be applied by the states in determining whether to extend the protection of the First Amendment to a particular case. Indeed, the United States Supreme Court is the only court that can practically (and authoritatively) say what the national standard is to be. We are not then concerned with standards of other states or an average of the standards of other communities.

'Where the keeping for sale and exhibiting of obscene or indecent writings or pictures is the charge before the court, it is incumbent upon the court to determine whether the material is obscene as a matter of law. Unless the material is obscene as a matter of law, the dissemination thereof is protected by the First Amendment to the Constitution of the United States. * * *' State v. Locks, supra at 97 Ariz. 151, 397 P.2d at 951.

The trial court, then, must, as a matter of law and using the national standards as set down by the United States Supreme Court, determine if the defendant or the material in a particular case is protected by the First Amendment. This is usually done in the 'prior adversary hearing' as required by the United States Supreme Court. Lee Art Theatre v. Virginia, supra; Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). We believe that the procedure followed in this case, wherein a 'prior adversary hearing' was held, was correct. Even though the Arizona statutes do not require this proceeding, the United States Supreme Court cases most certainly do. Lee Art Theatre v. Virginia, supra; Freedman v. Maryland, supra; City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966).

The next question concerns the guidelines to be followed by the court in making this determination. We believe that under the decisions of the United...