Robert Arthur Management Corp. v. State ex rel. Canale

• Decision Date: 27 March 1967
• Citation: 24 McCanless 101,414 S.W.2d 638,220 Tenn. 101
• Parties: , 220 Tenn. 101 ROBERT ARTHUR MANAGEMENT CORP., Appellant, v. STATE of Tennessee ex rel. Phil M. CANALE, Jr., District Attorney General, Appellee.
• Court: Tennessee Supreme Court

Page 638

414 S.W.2d 638

24 McCanless 101, 220 Tenn. 101

ROBERT ARTHUR MANAGEMENT CORP., Appellant, v. STATE of Tennessee ex rel. Phil M. CANALE, Jr., District

Attorney General, Appellee.

Supreme Court of Tennessee.

March 27, 1967.

Frierson M. Graves, Jr., Memphis, for appellant, Heiskell, Donelson, Adams, Williams & Wall, Memphis, of counsel.

George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, Sam J. Catanzaro, and Jesse Clyde Mason, Asst. Dist. Attys. Gen., Memphis, prosecuted the case for the State in the trial court.

OPINION

DYER, Justice.

The constitutionality of a statutory scheme prohibiting obscene materials, by use of the injunctive process, is at issue here. This statute, enacted by Chapter 93 of the Public Acts of 1965, is now carried in Tennessee Code Annotated as Sections 39--3005, 39--3006 and 39--3007. Under this statute the Criminal Court of Shelby County found the motion picture film 'Mondo Freudo' and an advertising trailer 'Olga's Girls' to be obscene. The appeal here is by the exhibitor of the film and trailer, Robert-Arthur Management Corporation.

Under the Constitution of the United States obscenity is excluded from constitutional protection since it is utterly without redeeming social importance. Althberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Likewise under the Constitution of the State of Tennessee obscenity has no protection. Also motion picture films are within the basic protection of the First and Fourteenth Amendments to the Constitution of the United States. Kingsley International Picture Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). We make these statements, not to decide the issues before us, but to clearly define the issues raised.

The first constitutional objection to this statute is on the ground it allows restraint of the alleged obscene material prior to an adversary hearing on the underlying issue. This statute does allow prior restraint since it allows a temporary injunction. The seriousness of this issue is expressed by the United States Supreme Court in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 wherein it was said, 'any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'

The statute at issue, where a temporary injunction has been issued, makes mandatory a trial on the issue of obscenity within two days after joinder of issues and a final decision of the court within two days after the conclusion of the trial. This statute, on the issue of prior restraint, is almost identical with the New York statute, on the same subject, dealt with by the United States Supreme Court in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The New York statute required trial within one day after joinder of issue and a decision within two days of the conclusion of the trial. The court in Kingsley Books upholding the validity of the statute said:

Neither in the New York Court of Appeals, nor here, did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22-a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which 'adequate notice, judicial hearing, and fair determination' are assured, * * *, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene * * * Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product and as such is violative of that freedom of thought, and speech which had been 'withdrawn by the Fourteenth Amendment from encroachment by the states.'

The judicial angle of vision in testing the validity of a statute like § 22-A is 'the operation and effect of the statute in substance.' Id. 283 U.S. at 713, 51 S.Ct. at page 630. The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties. 'What is needed,' writes Professor Paul Freund, 'is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.' 354 U.S. 441, 77 S.Ct. 1328.

The case of Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) dealt with statutes creating a State Board of Censors. On the issue of prior restraint the requirement to submit a film to a censor, prior to exhibiting same, is analogous to a temporary injunction prohibiting the showing of the film. In both cases there is some restraint prior to an adversary hearing on the underlying issue. In the Freedman case the Court said:

The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. * * * Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.

380 U.S. 58, 85 S.Ct. 739.

The First Amendment to the Constitution of the United States, made applicable to the States by the Fourteenth, in effect guarantees to the people the right of free expression in order that there may be a full and unrestricted interchange of ideas for bringing about any political and social changes desired by the people. This amendment gives protection to all ideas, no matter how unorthodox or controversial, so long as they have the slightest redeeming social importance. What we are weighing here is the right of the State to maintain a decent society against the right of individuals to express themselves freely. In doing so we move in a sensitive area. The issue here is whether this statute, by its operation and effect, has adequate procedural safeguards to properly protect, in this sensitive area, against constitutionality protected expression. We think this statute provide such adequate safeguards for the following reasons.

First: The State (acting through a district attorney-general) carries the burden to show the material sought to be proscribed is not material protected by the First Amendment to the Constitution of the United States. Second: The trial judge can exercise an independent check on the judgment of the district attorney-general at a point before any restraint takes place. Third: Upon issuance of a temporary injunction the date of joinder of issues is within the discretion of the party charged. Under this statute it is possible (though we admit not probable) to have the entire matter, including a decision on the underlying issue, fully disposed of within four days. This limits the status quo for the shortest possible time.

Error is assigned to the action of the trial judge in allowing State witnesses to be qualified relative to local (Shelby County, Tennessee) contemporary community standards rather than national contemporary community standards. In the leading case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) the test of obscenity is stated to be 'whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to pruient interest.' The issue is whether 'community' as the word is used in determining standards of decency means the local standard as opposed to the national standard. Since the suppression of freedom of expression must pass muster of a Federal Constitution the standards used to determine obscenity must of necessity be the national standard. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); State v. Vollmar, 389 S.W.2d 20 (Mo.1965).

When the first State witness was offered objection was made to his testimony unless it could be shown he had knowledge of the standards of decency based on the national standard. The trial judge, in overruling the objection, stated it was relevant to know the local standard and it might also be relevant to know the national standard. ...