State ex rel. Ewing v. 'Without A Stitch'

• Decision Date: 09 July 1971
• Citation: 28 Ohio App.2d 107,276 N.E.2d 655
• Parties: , 57 O.O.2d 184 STATE ex rel. EWING, Appellee, v. A Motion Picture Film Entitled 'WITHOUT A STITCH,' et al., Appellants.
• Court: Ohio Court of Appeals

Page 107

28 Ohio App.2d 107

276 N.E.2d 655, 57 O.O.2d 184

STATE ex rel. EWING, Appellee, v. A Motion Picture Film Entitled 'WITHOUT A STITCH,' et al., Appellants.

Court of Appeals of Ohio, Sixth District, Lucas County.

July 9, 1971.

Syllabus by the Court

Applying the tests set forth in Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Mass. (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, the motion picture film 'Without a Stitch' is obscene and the public exhibiting of it is a nuisance under the applicable provisions of R.C. Chapter 3767. Such provisions are constitutional, and when a permanent injunction is issued in a civil action against maintaining a nuisance, an order directing the effectual closing of the place of exhibition (provided for in R.C. 3767.06) and the imposing of a tax (provided for in R.C. 3767.08, and R.C. 3767.09) is mandatory.

Bugbee & Conkle, Toledo, and James Clancy, for appellee.

Fuhrman, Gertner, Britz & Barkan, Toledo, and Edmund C. Grainger, Jr., New York City, for appellants.

POTTER, Presiding Judge.

This cause is before this court de novo. We have reviewed and weighed the evidence submitted in the court below and in this court. Fortunately, after July 1, 1971, the anomalous practice of one trial and one trial de novo is abolished under Rule 2, Ohio Rules of Appellate Procedure.

The case comes to this court on the complaint of the petitioner for an injunction to enjoin the exhibition of the motion picture film, 'Without a Stitch,' and to abate the same as a public nuisance in the city of Toledo, Ohio, pursuant to R.C. 3767.01 et seq. Answers were filed by the defendants James Wescott, Art Theatre Guild, Inc., and Tonylyn Productions, Inc. Mr. Wescott is the manager of the theatre. Art Theatre Guild, Inc. is a corporation organized under the laws of Ohio and operates the Westwood Art Theatre and is wholly owned by Louis K. Sher. Defendant Tonylyn Productions, Inc. is a corporation organized under the laws of the state of California and it owns the distribution rights in and to the said film. Although we are to treat this case as if the cause had never been tried below (see Lincoln Properties v. Goldslager (1969), 18 Ohio St.2d 154, 248 N.E.2d 57), we note that the court below permanently enjoined the defendants and all persons acting for them from exhibiting the subject motion picture film, and that the defendants filed an appeal bond in the amount of $20,000 to perfect their appeal on law and fact and also to stay the execution of the lower court's injunction until a final adjudication is made in the appellate courts of this state, including the Supreme Court of Ohio.

The essential issue before this court is whether the film 'Without a Stitch' is obscene and, therefore, subject to the provisions of R.C. 3767.01, et seq. To the extent the term 'obscene' has been defined or is capable of definition, we look to Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and, for further elaboration, to A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Mass. (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1.

After reviewing the varied decisions since Roth, we appreciate the exasperation of some judges and authors when they suggest that the law is in a fragmented state of bewilderment. After such an examination, Justice Stewart's observation that, 'but I know it when I see it' takes on new dimensions. It is not the purpose of this opinion to add to the already voluminous array of comment on this subject, but to set forth for properly interested parties our reasoning, findings and conclusions.

In Roth, supra, Mr. Justice Brennan, who delivered the opinion of the court, made the following observations at page 484, 77 S.Ct. at page 1309. 'But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.' He also said the following at page 485, 77 S.Ct. at page 1309: 'We hold that obscenity is not within the area of constitutionally protected speech or press.' In Roth, also, was the answer to the argument that the constitution protects the presentation of obscenity in a theatre open only to consenting adults. Justice Brennan in rejecting this argument said proof of a clear and present danger of antisocial conduct is not required. In support thereof he cited Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.

The test laid down by Roth is found at page 489 of the opinion, 77 S.Ct. at page 1311, as follows:

'* * * (w)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. * * *'

The court, in Memoirs, supra, at page 418, 86 S.Ct. at page 975, seized upon the words of the Roth case, 'utterly without redeeming social importance,' and fashioned the following definition of obscenity with three elements which must coalesce:

'* * * ( I)t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.'

This definition was quoted with approval in State v. Mazes, 7 Ohio St.2d 136 at 137, 218 N.E.2d 725 (reversed on other grounds in 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315).

In close cases, it has been suggested that evidence of pandering may be probative with respect to the nature of the material in question. Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31; P. B. I. C., Inc., v. Byrne (D.C. Mass.1970), 313 F.Supp. 757.

The case of Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, considered the private possession of obscene material, and the Supreme Court of the United States found that this was a protected activity. The court in that case reiterated that the Roth decision was still the law, however, some scholars and judges, although we do not mean to imply that the two categories cannot coalesce, thought that they noted a hole in the dike. Thereafter, the country was inundated by a flood of obscenity and favorable court decisions. The varied nature of the subject helped to confuse the issues, e. g., private possession, commercial exploitation, method and type of dissemination, e. g., books, pictures, movies, and live presentation. See 50 American Jurisprudence 2d 481, Lewdness, Indecency, and Obscenity, Section 26. The individual positions of the Justices of the Supreme Court, plus a rash of per curiam reversals of state decisions, helped spawn conflicting appellate decisions before and after Stanley, supra. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; United States v. Klaw (C.C.A. 2, 1965), 350 F.2d 155.

Two recent Supreme Court cases have done much to bring some semblance of order to the morass of obscenity decisions. The cases decided after the decision in the Lucas County Common Pleas Court support that decision and they are United States v. Reidel (May 1971), 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813, and United States v. Thirty-seven (37) Photographs, Milton Luros, Claimant (May 1971), 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822. These cases refuted the argument that Stanley, in effect, emasculated Roth. The principles of Roth are reaffirmed and Stanley is limited to the facts of that case. A 'poor Stanley,' constitutionally may not have obscenity commercially distributed to him. In Reidel, supra, 402 U.S. at page 354, 91 S.Ct. at page 1411, 28 L.Ed.2d at page 816, the court said 'obscenity is not within the area of constitutionally protected speech or press,' and then quoted Stanley, 402 U.S. at page 354, 91 S.Ct. at page 1412, 28 L.Ed.2d at page 817, as follows:

'Roth and the cases following that decision are not impaired by today's holding. As we have said, the states retain broad power to regulate obscenity. * * *' In reference to the district court, and perhaps other courts which have given Stanley too wide a sweep, see the following from Reidel, 402 U.S. at page 354, 91 S.Ct. at page 1412, 28 L.Ed.2d at page 817:

'* * * To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion adjured. Whatever the scope of the 'right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here-dealings which Roth held unprotected by the First Amendment.'

And 402 U.S. at page 356, 91 S.Ct. at page 1413, 28 L.Ed.2d at page 818:

'Roth and like cases have interpreted the First Amendment not to insulate obscenity from statutory regulation.'

In the concurring opinion by Mr. Justice Harlan, we find the following at page 358 of [276 N.E.2d 658] 402 U.S., at page 1413 of 91 S.Ct., at page 818 of 28 L.Ed.2d:

'Appellee here contends, in effect that the Stanley 'right to receive' language, 394 U.S. at 564-565, 89 S.Ct. at 1243, 22 L.Ed.2d at 549, constituted recognition that obscenity was constitutionally protected for its content. Governmental efforts to proscribe obscenity as such would, on this interpretation, not be constitutional; rather, the power of both the state and federal governments would now be restricted to the regulation of the constitutionally protected right to engage in this category of 'speech' in the light of otherwise permissible state interests, such as the protection of privacy or the protection of children.

'That interpretation of Stanley, however, is flatly inconsistent with the square holding of Roth v. United States, 354 U.S. 476, 485, 77...