State v. Gulf States Theatres of Louisiana, Inc.

Decision Date29 June 1972
Docket NumberNo. 52132,52132
Citation270 So.2d 547,264 La. 44
PartiesSTATE of Louisiana and The Parish of Caddo v. GULF STATES THEATRES OF LOUISIANA, INC., et al.
CourtLouisiana Supreme Court

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiffs-applicants.

Wilkinson, Woods, Carmody & Peatross, Arthur R. Carmody, Jr., John M. Madison, Jr., Shreveport, Breazeale, Sachse & Wilson, Hopkins P. Breazeale, Jr., Baton Rouge, for defendants-respondents.

SUMMERS, Justice.

Article 106 of the Criminal Code denounces as obscene the exhibition with intent to primarily appeal to the prurient interest of the average person of lewd, lascivious, filthy or sexually indecent motion picture film. Acting on this authority the district attorney of Caddo Parish, on behalf of the state and parish, brought this action against defendants, the owners and operators of the Broadmoor Theatre in Shreveport, to abate as a public nuisance the showing of the motion picture 'The Stewardesses'. The action was brought under the procedure prescribed by the Abatement of Nuisances Statute, Sections 4711--4717 of Title 13 of the Revised Statutes.

On this basis, and the sworn statement of facts contained in the petition filed by the district attorney, the trial judge issued an order restraining and enjoining the exhibition of the motion picture. At the same time, as the statute prescribes, a rule to show cause within five days why a permanent injunction should not issue was served on defendants. Defendants filed motions to dismiss, exceptions of no cause and no right of action, a plea of unconstitutionality and motion for continuance. On the fifth day all motions and exceptions were overruled and the trial of the rule proceeded. A full hearing was had on the question of the obscene nature of the film with the State assuming the burden of proof. At the conclusion of the evidence, the trial judge announced his reasons for judgment from the bench. He said:

. . . the evidence as a whole shows that there was no plot or story to the movie and that it was merely scenes and acts in the context that made them lewd, lascivious, obscene and sexually indecent, and therefore in the opinion of this Court the dominant theme of this movie, 'The Stewardesses' taken as a whole is designed to appeal to sexual prurient interest, and it is offensive and affronts contemporary standards relating to sexual matters and is without any redeeming social value. Its showing is therefore a nuisance and it is the judgment of this court that an injunction be granted . . ..

A formal judgment was accordingly rendered and signed permanently enjoining defendants from showing any version of the motion picture within Caddo Parish.

On appeal to the Second Circuit, Section 4712 of Title 13 of the Revised Statutes was declared unconstitutional. Accordingly, the judgment of the trial court was reversed and the injunction recalled. 255 So.2d 857. An act of the legislature having been declared unconstitutional, we granted certiorari upon the plaintiff's application. 257 La. 154, 260 So.2d 698.

At the outset we hold that we agree with the trial judge and decide that 'The Stewardesses' is obscene. The record amply supports the trial judge, and there is no manifest error in his findings. There was no plot or story. The movie consisted merely of a series of scenes or incidents portrayed in a context which made them lewd, lascivious, obscene and sexually indecent. The dominant theme is designed to appeal to prurient interest. The movie is offensive and affronts contemporary standards of the average person in the community, and it is without any redeeming social value. We note, also, that obscenity is not within the area of constitutionally protected free speech. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

Defendants' claim of unconstitutionality is that the Abatement of Public Nuisances Statute (La.R.S. 13:4711--4717) is a device to suppress without notice or hearing the right to exhibit this motion picture. As such, they say, the statute violates defendants' freedom of expression guaranteed by the First Amendment of the Federal Constitution and Article I, Section 2 of the Louisiana Constitution. Further, it is contended the statute is unconstitutional in that (1) its 'rule nisi' provisions casts the burden of proof on defendants; (2) there is no provision in the statute for a speedy trial court decision; (3) there is no speedy appellate procedure; (4) the mandatory penalties requiring that the building in which the nuisance exists be padlocked for one year violates the property owner's due process of law rights, and (5) the body of the act is broader than its title.

The part of the Abatement of Public Nuisances Act, Part A (La.R.S. 13:4711--4713) with which we are concerned, pertinently provides that an obscene motion picture, as defined by the criminal laws of this State, and the premises where it is displayed, are declared to be nuisances and shall be enjoined. By the terms of Section 4712 of the Act, the district attorney, the sheriff or the parish governing authority, any corporation or association formed in this State for the suppression of vice, and any citizen of the parish may maintain an action to enjoin and abate such a nuisance. 'Upon the presentation of the petition for injunction alleging that the nuisance exists, verified by the affidavits of at least two persons, or verified by the affidavit of the district attorney or other parish official hereinabove designated on information and belief, the judge . . . shall grant a temporary injunction without bond.' A rule nisi must be issued, returnable in five days, and a hearing shall be had thereon. No such action may be brought by anyone other than the district attorney or other parish official hereinabove designated until the applicant obtains a certificate from the district judge that the applicant is acting in good faith and not for any improper purposes.

The injunction action may be dismissed upon contradictory motion. The motion to be accompanied by sworn statements of the mover and his attorney setting forth the reasons for dismissal.


The principal thrust of the attack upon the constitutionality of the act is aimed at the quoted provision declaring that 'the judge . . . shall grant a temporary injunction.' It is contended that there is no requirement that probable cause be shown through factual allegations in the affidavit accompanying the petition; that is, the mandate that the judge 'shall' grant the temporary injunction deprives the judge of any discretion in the matter; the implication being that the judge must issue the temporary injunction whether the nuisance exists or not. For this reason, it is asserted, the First Amendment right of freedom of expression enjoyed by makers and exhibitors of motion pictures is restrained without reasonable cause.

This argument lacks merit. The statute requires that the petition allege the existence of a 'nuisance' and that it be verified by the district attorney. This makes it necessary for the trial judge to determine, on the basis of the facts alleged, whether 'obscenity', as defined by Article 106 of the Criminal Code, is 'carried on' before he issues an injunction. If the allegations and the accompanying affidavit do not, in the judge's opinion, recite facts which warrant a conclusion that a 'nuisance' is being 'carried on' then the prerequisites to the issuance of the injunction have not been satisfied and the judge must not sign the temporary injunction. On the other hand, if the allegations of the petition and the accompanying affidavit do set forth, in the judge's opinion, that a 'nuisance' is being carried on, then, and in that event, he 'shall' issue the temporary injunction.

Under this view a great deal of discretion is left to the trial judge for a judgment on his part must be made. He must ascertain from the petition and accompanying affidavit whether the facts set out fulfill those elements of the law which, taken together, constitute a nuisance. For instance, in this case, the petition must allege that the film must have been, and is being, exhibited with intent to primarily appeal to the prurient interest of the average person. And it must be lewd, lascivious, filthy or sexually indecent.

It is not mandatory that the judge sign every petition placed before him whether it is properly supported by the facts or not. We doubt that any trial judge so construes this statute. He 'shall' sign only those injunctions which are supported by a sworn petition which alleges facts which constitute a nuisance. This is what occurred in this case. In the petition which he presented the district attorney alleged in detail the exhibition of the movie, the location of the theater in close proximity to a public elementary school and a Baptist Church; that the movie was viewed by many people and that the movie was lewd, lascivious, obscene and sexually indecent and, as a whole, appeared only to prurient interests, and that it was without any redeeming social value whatever, particularly describing the details of the movie. In addition to the sworn statement of the district attorney, the assistant district attorney made oath to the verity of the allegations.

The word 'shall' as used in this statute is nothing more than the mandate the law imposes upon the judge to issue an order, as in other cases, when the rights of the parties are supported by the law and properly alleged facts; e.g., 'An injunction Shall issue . . ..' La.Code Civil P. art. 3601; 'A temporary restraining order Shall be granted without notice when it clearly appears from specific facts shown by a verified petition or by supporting affidavit . . ..'

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