Society to Oppose Pornography, Inc. v. Thevis

• Decision Date: 15 December 1971
• Docket Number: No. 5048,5048
• Citation: 255 So.2d 876
• Parties: SOCIETY TO OPPOSE PORNOGRAPHY, INC. v. Michael THEVIS, Robert Di Bernardo et al.
• Court: Court of Appeal of Louisiana — District of US

Page 876

255 So.2d 876

SOCIETY TO OPPOSE PORNOGRAPHY, INC. v. Michael THEVIS, Robert Di Bernardo et al.

No. 5048.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 15, 1971.

Rehearing Denied Jan. 3, 1972.

Writ Refused Feb. 11, 1972.

Michael Silvers, New Orleans, for relator.

Donald DeBoisblanc, New Orleans, for respondents.

Before SAMUEL, REDMANN and LEMMON, JJ.

REDMANN, Judge.

Relators, the owners and the lesseeoperator of a motion picture theater, in this proceeding under LSA-R.S. 13:4711--4717, were adjudged to be maintaining a public nuisance of obscenity, the theater was ordered padlocked for a year, and relators were prepetually enjoined from 'carrying on or permitting the practice of obscenity.' Motion for suspensive appeal was denied.

Because R.S. 13:4712, the key section, had been declared unconstitutional in State v. Gulf States Theatres, 255 So.2d 857 (La .App.1971), appl. for reh, pending, we granted certiorari, with Samuel, J., dissenting.

We uphold the constitutionality of the statute as applied in this case, with one exception hereafter noted. Constitutionality

R.S. 13:4711 and 4712 are reproduced below. ¹ Relators summarize their constitutional attacks thus:

(1) The petition and affidavits which support the action can be filed 'on information and belief' and the Judge only has to satisfy himself that the application is 'in good faith and and not for any improper purpose'. There is no requirement 'that probable cause' be shown.

(2) The District Judge is required, under such circumstances, to grant a temporary injunction without bond restraining the removal of any property from the premises.

(3) The issuing of the rule nisi has the effect of placing the burden of proof on the defendant rather than the plaintiff.

(4) The statute does not require that a judgment be rendered within a specified brief, reasonable period of time.

(5) The statute does not provide for an expedited and effective appeal from the judgment.

(6) Evidence of the general reputation of the building or persons in and of itself, can be used to sustain a judgment.

Much of the attack relies for its effectiveness on the patent invalidity (as held by Gulf States, supra) of the legislative requirement that the trial court 'shall' issue a 'temporary injunction' on presentation of an authorized petition, thus abandoning the judicial function of determining (at least preliminarily) whether obscenity is present. We do not disagree with Gulf States' holding 'that a temporary restraining order * * * issued pursuant to LSA-R.S. 13:4712 is defective and must be vacated.'

But here no such temporary restraint was issued. The trial judge declined to issue such an order, instead signing only a rule. The injunction was issued only after the rule had been heard. Accordingly we consider the statute's unconstitutionality in this particular of no moment in this case. The provisions of the statute are declared separable, Acts 1968, No. 362, § 4, and we find no obstacle to separability.

Relators' point (1) only has significance in a case where the 'temporary injunction' of § 4712 is to be issued. Except in such a case, the only determination, based on petitioner's information and good faith, is that the rule may be filed. This statutory provision thus (once the 'temporary injunction' provision is stricken), instead of harming, may protect against a petition filed in bad faith or for improper purpose.

Item (2) is above discussed, and is not here present.

Item (3) was adequately treated by Gulf States. We agree with the Second Circuit's reasoning that, despite the rule's 'show cause' language, the burden of proof must remain with the complainant, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and thus the rule to show cause is not an objectionable means for initiating the obscenity hearing, Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).

Item (4) is also of merit only in the context of the ex parte prior restraint. Our views differ, in expression at least, from Gulf States on this point. Only where one has been ex parte deprived of a right does the entitlement to speedy hearing and determination arise, as in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). In our case, however, relators were not prevented from operating until After the judicial decision made upon contradictory hearing. Thus (once the 'temporary injunction' provision is stricken) we find no unconstitutionality in R.S. 13:4712 due to failure to require speedy judicial determination . We believe Gulf States' expression of unconstitutionality on this ground must be understood in the context of the ex parte prior restraint there present.

Item (5), lack of requirement of prompt appellate decision, was viewed by Gulf States as not rendering R.S. 13:4712 invalid. We agree, further noting from United States v. Thirty-Seven Photographs, supra, that the 'prompt final judicial decision' requirement of Freedman (relied on by relators) was there held met by proceedings where District court 'decision on the obscenity of Luros' materials might well have been forthcoming within 60 days had petitioner not challenged the validity of the statute and caused a three-judge court to be convened.' ² 91 S.Ct. at 1407. It appears to us that the requirements of speedy judicial action are stated in a context of previous restraint, such as in customs seizure, as in Thirty-Seven Photographs, or (prior) censorship, as in Freedman.

Kingsley Books v. Brown, supra, 354 U.S. at 444, 77 S.Ct. 1325, noted that freedom of expression is not less restricted by criminal conviction (as in Roth v, United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)) than by injunctive remedy. We are unaware of any concept that a criminal obscenity statute is invalid if it does not specify time for appellate review. We conclude that the Louisiana injunction statute does not infringe upon freedom of expression by failing to declare a specified brief time of appellate review of the initial judicial determination.

Furthermore, as did the court in Thirty-Seven Photographs for a federal statute, we would be obliged to save a Louisiana statute from an unconstitutional construction by construing it, in a freedom of expression context, to impliedly require speedy review, to be consistent with Louisiana's Constitution's flat prohibition of laws 'to curtail or restrain the liberty of speech or of the press,' art. 1 § 3, ³ and its requirement that 'All courts shall be open, and every person for injury done him in his rights * * * shall have adequate remedy * * * and justice administered without * * * unreasonable delay,' art. 1 § 6.

Item (6), complaining that R.S. 13:4717 authorizes judgment based on evidence of reputation alone, is a matter relators have no standing to assert. There was no such evidence here, much less reliance on it. Witnesses gave direct testimony of the films shown and some of the film was in evidence.

Relators also objected to the employment of the nuisance concept, citing Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (3 Cir . 1969). We distinguish Grove in that here the statute specifically refers to the conduct enjoinable, and reliance is not had on the 'public nuisance' traditional theory.

Nevertheless, insofar as the statute's injunction might deprive an unknowing and unparticipating owner of his property, especially property employed in expression, on a statutory declaration the owner simply as owner 'shall be guilty of maintaining a nuisance, and shall be enjoined', it cannot meet the due process requirements of La.Const. art. 1 § 2, nor the prohibition against curtailment or restraint of freedom of speech and press of art. 1 § 3. And, as to federal constitutional protection, if the enjoining of future issues of a publication is impermissible, Near v. State of Minnesota, 283 U .S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (note interpretation in Kingsley Books, supra, 354 U.S. at 445, 77 S.Ct. 1325), then enjoining complete use of the press and building is much more impermissible, for that results in no future issues of Any publication, and not only the unprotected obscene. We view the provision for release of the building by bond, R.S. 13:4715, as not curative of an absolutely impermissible injunction.

We therefore conclude that we must modify the judgment to limit it to the statutorily-authorized injunction to prohibit the owners 'from permitting the continued existence of the nuisance.' R.S. 13:4712.

Finally, as in Kingsley Books, supra, 354 U.S. at 440, 77 S.Ct. 1325, we note that relators here do not assail the basic obscenity statute, R.S. 14:106, subd. A(2). ⁴ Nor do they allege error in the...