Slaton v. Paris Adult Theatre I, No. 26631

• Court: Supreme Court of Georgia
• Writing for the Court: INGRAM; All the Justices concur, except GUNTER; GUNTER
• Citation: 201 S.E.2d 456,231 Ga. 312
• Decision Date: 30 October 1973
• Docket Number: No. 26631
• Parties: Lewis R. SLATON et al. v. PARIS ADULT THEATRE I et al.

Page 456

201 S.E.2d 456 231 Ga. 312 Lewis R. SLATON et al.
v.
PARIS ADULT THEATRE I et al. No. 26631. Supreme Court of Georgia. Oct. 30, 1973.

Page 457

[231 Ga. 318] Carter Goode, Hinson McAuliffe, Sol., W. Baer Endictor, Thomas E. Moran, Thomas R. Moran, Atlanta, for appellants.

D. Freeman Hutton, Gilbert H. Deitch, Atlanta, Robert Eugene Smith, Towson, Md., for appellees.

Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, amicus curiae.

Syllabus Opinion by the Court

[231 Ga. 312] INGRAM, Justice.

This case comes before the court again following decision and remand by the United States Supreme Court in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). It began on December 28, 1970, when the District Attorney of the Atlanta Judicial Circuit and the Solicitor of the Criminal Court of Fulton County filed separate complaints in the Superior Court of Fulton County against Paris Adult Theatres I and II and certain named individuals, praying for a rule nisi to require the defendants to show cause why the motion picture films 'It All Comes Out in the End' and 'Magic Mirror' should not be declared obscene and enjoined from exhibition. A temporary [231 Ga. 313] restraining order was thereafter granted ex parte by the trial court restraining the defendants from destroying the films or removing them from the jurisdiction of the court pending a hearing. On January 31, 1971, pursuant to the rule nisi, an adversary hearing was conducted in superior court during which the parties agreed to waive jury trial and a preliminary hearing and to submit the cause to the trial court for final determination and judgment. The films were then exhibited to the trial court. The state offered no other evidence at the hearing except for the testimony of the criminal investigators who had paid admission to see the films and who related that nothing on the outside of the theatres indicated the full nature of that which was shown, namely, scenes of simulated fellatio, cunnilingus and group sex intercourse.

After viewing the motion pictures and hearing the evidence, the trial court rendered the following judgment: 'The state contends that the motion pictures under review in the above actions are obscene. The titles of the films are, 'It All Comes Out in the End' and 'Magic Mirror.' Assuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately, then these films may fairly be considered obscene. Both films are clearly designed to entertain the spectator and perhaps, depending on the viewer, to appeal to his or her prurient interest. The portrayal of the sex act is undertaken; but the act itself is consistently only a simulated one if, indeed, the viewer can assume an act of intercourse or of fellatio is occurring from the machinations which are portrayed on the screen. Each of the films is childish, unimaginative, and altogether boring in its sameness. It appears to the court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of

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their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible. It is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene. The actions against the defendants, therefore, are dismissed. This 12th day of April, 1971. Jack Etheridge, Judge Superior Court of Fulton County, Atlanta Judicial Circuit.'

On appeal from the above order, this court unanimously reversed the judgment of the trial court and held that the films were hard-core pornography and that the showing of these films should have been enjoined in that their exhibition to consenting adults [231 Ga. 314] was not protected by the First Amendment. Slaton v. Paris Adult Theatre I, 228 Ga. 343, 185 S.E.2d 768 (1971). The United States Supreme Court granted certiorari on June 26, 1972, and thereafter on June 21, 1973, vacated the judgment of this court and remanded the case for further proceedings not inconsistent with its opinions rendered in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See, also, United States v. 12 200-Ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

On August 27, 1973, we granted counsel for opposing sides, and the Attorney General, leave to submit briefs to assist this court in assessing the effect of these opinions upon the earlier judgment of this court and upon the legislative enactments of this state on obscenity.

I

Overbreadth

It is now firmly established that 'obscenity' is not protected by the Free Speech Clause of the First Amendment and may be regulated by the state. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, supra; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In order to maintain the integrity of the First Amendment and to prevent incursions into areas of protected speech and expression, the United States Supreme Court has made it necessary, however, that regulatory statutes be carefully limited to define specific sexual conduct to whose depiction and description they apply. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, supra. In Miller and in United States v. 12 200-Ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500, supra, the court made clear that this statutory requirement could be met by specific legislation, as e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-62 and Hawaii Penal Code, Title 37, §§ 1210-16, and as well by authoritative judicial interpretation of legislation such as Code Ann. § 26-2101(b) (Ga.L.1968, pp. 1249, 1302).

In Miller, the Court settled upon minimal, factual guidelines for describing obscene material. The constitutional test was whether: '(a) '(T)he average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and, (c) the work, taken as [231 Ga. 315] a whole, lacks serious literary, artistic, political, or scientific value.' Miller v....