State v. Gay Times, Inc., No. 52366

CourtSupreme Court of Louisiana
Writing for the CourtDIXON; SANDERS; BARHAM; BARHAM; In that part of Justice Douglas's dissent in the Ginzburg case in which Justice Black concurred
Citation274 So.2d 162
PartiesSTATE of Louisiana v. GAY TIMES, INC.
Decision Date19 February 1973
Docket NumberNo. 52366

Page 162

274 So.2d 162
STATE of Louisiana
v.
GAY TIMES, INC.
No. 52366.
Supreme Court of Louisiana.
Feb. 19, 1973.
Dissenting Opinion March 5, 1973.
Rehearing Denied March 26, 1973.

Michael Silvers, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

This prosecution puts at issue the constitutionality of R.S. 14:106, the Louisiana obscenity statute, in its application to sexually explicit motion picture film.

Censorship (see, State v. Gulf States Theatres of Louisiana, Inc., 264 La. 44, 270 So.2d 547 (1972)) is not involved in this case, as in other cases involving motion picture film decided by the United States Supreme Court. See, Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). This case is also distinguishable

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from Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), in which a search warrant was quashed because its only basis was an opinion of the affiant that the material to be seized was obscene. The affidavit for the search warrant in the instant case summarized the film and particularized the explicit and clinical depiction of sex acts between four couples which constituted the entire movie (except for a brief introduction and electrocution scene at the end). 1 Unlike material in Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972), this film is not rationally related to the dissemination of ideas and information which are not prurient and it does not bear 'some of the earmarks of an attempt at serious art.'

The bill of information charges that Gay Times committed the crime of obscenity 'by the intentional exhibition of lewd, lascivious, filthy and sexually indecent motion picture film . . . with the intent to primarily appeal to the prurient interest of the average person . . .'

The obscenity statute defines the crime, in the relevant section, as the 'exhibition . . . with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent . . . motion picture film . . .' R.S. 14:106(2).

The Louisiana obscenity statute first appeared in approximately its present form in the Louisiana Criminal Code of 1940. Its constitutionality was commented upon by the redactors of the 1940 code as follows:

'It has been urged that such statutes are unconstitutional violations of the rights of free speech and a free press. The courts have consistently held that the constitution gives no one the right to scandalize or otherwise shock the public. State v. Van Wye, 136 Mo. 227, 37 S.W. 938 (1896); State v. McKee, 73 Conn. 18, 46 A. 409 (1900). The regulation is obviously a just exercise of the police power.'

R.S. 14:106 encountered some difficulty in State v. Roth, 226 La. 1, 74 So.2d 392 (1954). It was amended and encountered more critical treatment in State v. Christine, 239 La. 259, 118 So.2d 403 (1960).

Finally, State v. Roufa, 241 La. 474, 129 So.2d 743 (1961) and State v. Henry, 250 La. 682, 198 So.2d 889 (1967), sustained bills of information similar to the instant bill against contentions that they were too vague and indefinite to comply with the constitutional requirements. See, Art. I, § 10 of the Louisiana Constitution of 1921. 2

Unfortunately, for an easy determination of the constitutionality of the obscenity statute, the United States Supreme Court reversed State v. Henry, supra, in a per curiam opinion, in which the court said:

'The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.

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Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is granted and the judgment is reversed. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.' Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343.

Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) was another per curiam opinion in a case involving books, pictures, etc. Redrup seems merely to have summarized the then existing views of the various justices on the constitutional standards for obscenity cases, and to have found that the seizure of the printed materials in the cases then before the court did not comply with the standards of any of the justices. 3 Consequently, there is no easily ascertainable standard by which we may judge the constitutionality of the Louisiana obscenity statute as applied to moving picture film. 4

The states can justifiably expect the Constitution of the United States, as interpreted by the United States Supreme Court, to require that efforts to control obscenity by criminal prosecution at least meet the standards enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The United States Supreme Court seems to say that the First and Fourteenth Amendments of the United States Constitution protect conduct (which can be considered, in some way, to be either 'speech' or the communication of ideas) from state regulation unless the dominant theme of the conduct or material appeals to a prurient interest in sex, is patently offensive because if affronts a contemporary community standard of conduct, and is without redeeming social value. 5 Memoirs (Fanny Hill) v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

Therefore, the question is: does the statute meet the constitutional requirements? We hold that it does. When the statute makes the exhibition 'with the intent to primarily appeal to the prurient interest of the average person of any lewd, lascivious, filthy or sexually indecent film' a crime, it has established a community standard and it has reprobated material whose dominant theme appeals to the prurient interest in sex.

Whether the material has redeeming social value would appear to be a matter of defense. The exhibition of obscene matter may be justifiable because of its social value. If so, it 'shall constitute a defense to prosecution for any crime based on that conduct.' R.S. 14:18.

The other arguments of the defendant are also without merit.

Defendant complains of the introduction in evidence of a reel of film that was not actually a part of the picture 'Benny Bungles It.' Pursuant to the search warrant, two reels of film were

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seized at the theatre. One reel had the title 'Benny Bungles It' taped on the reel. The other reel bore no identification. The bill of information charged the exhibition of obscene film. The motion for the bill of particulars requested many things, including 'precise identification of any publications exhibited.' The answer to the motion for a bill of particulars gave precisely the information requested. There is no indication that the district attorney knew that the second reel was not a part of the film 'Benny Bungles It.' The bill of particulars 'was never intended as a trap for the unwary district attorney.' Official Revision Comment, C.Cr.P. 485.

The defendant also complains that the trial judge observed only fourteen minutes of 'Benny Bungles It.' The record shows that he also viewed the second reel containing the 'shorts.'

There is no substance to either complaint. Both films were relevant, admissible in evidence, and both should have been viewed by the judge. The defendant was in no way prejudiced by the failure of the State to further identify the 'short' film in the bill of particulars.

Our review of 'Benny Bungles It' confirms the conclusion of the trial judge; the balance of the film was mere repetition of the same or similar acts between different characters.

The defendant further contends that the conviction is illegal because the State introduced no expert testimony to establish that the film was utterly without redeeming social value, that the community standard of conduct was offended by the film and that the dominant theme of the film, taken as a whole, appealed to the prurient interest in sex.

This is, in effect, an attack upon the quantity and quality of the evidence. The film is in evidence. We have seen it. It is offensive by any standard.

The bill of information in the instant case charged that the defendant 'did wilfully and unlawfully commit the crime of obscenity by the intentional exhibition of lewd, lascivious, filthy and sexually indecent motion picture film . . . with the intent to primarily appeal to the prurient interest of the average person.' The defendant contends that the obscenity statute in sections (2), (3), (4), (6) and (7) of R.S. 14:106 is unconstitutionally vague and broad, prohibiting acts which would be constitutionally protected under the Roth decision.

These contentions are made in spite of the fact that the bill of information is couched solely in terms of the exhibition of obscene motion picture film, reprobated by R.S. 14:106(2). In its motion for a bill of particulars, the defendant asked the State to specify under which sections of the obscenity act it was being prosecuted. In its answer, the State said: 'Defendant is alleged to have violated subsections (2), (3), (4), (6) and (7) of the Louisiana Revised Statutes 14:106.' In spite of this allegation in the motion for a bill of particulars, the bill of information, which must stand alone as the basis for this prosecution, charged an offense only under R.S. 14:106(2).

We limit our review here to the constitutionality of the section under which the defendant was prosecuted--R.S. 14:106(2). We make no finding as to the constitutionality of any other section of R.S. 14:106. The sections of the statute are separable and do not depend upon each other for validity. See Section 3 of Act 167 of 1970.

Under the Roth standards, we find the second section of R.S. 14:106 to be violative of neither the First and Fourteenth...

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2 practice notes
  • State v. Shreveport News Agency, Inc., No. 53985
    • United States
    • Supreme Court of Louisiana
    • 3 Diciembre 1973
    ...but for the holding that obscenity can be restricted and controlled without violating the First Amendment. In State v. Gay Times, Inc., 274 So.2d 162 (La.1973), the majority of this Court stated, in light of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and the var......
  • State v. Gay Times, Inc., No. 52366
    • United States
    • Supreme Court of Louisiana
    • 29 Abril 1974
    ...Korns, Asst. Dist. Atty., for appellee. TATE, Justice. We previously affirmed the conviction of the defendant. State v. Gay Times, Inc., 274 So.2d 162 (1973). In that opinion, we rejected the contention of the defendant that La.R.S. 14:106, subd. A(2) was unconstitutional. This statute defi......
2 cases
  • State v. Shreveport News Agency, Inc., No. 53985
    • United States
    • Supreme Court of Louisiana
    • 3 Diciembre 1973
    ...but for the holding that obscenity can be restricted and controlled without violating the First Amendment. In State v. Gay Times, Inc., 274 So.2d 162 (La.1973), the majority of this Court stated, in light of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and the var......
  • State v. Gay Times, Inc., No. 52366
    • United States
    • Supreme Court of Louisiana
    • 29 Abril 1974
    ...Korns, Asst. Dist. Atty., for appellee. TATE, Justice. We previously affirmed the conviction of the defendant. State v. Gay Times, Inc., 274 So.2d 162 (1973). In that opinion, we rejected the contention of the defendant that La.R.S. 14:106, subd. A(2) was unconstitutional. This statute defi......

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