State v. A Motion Picture Entitled 'The Bet'

• Decision Date: 06 March 1976
• Docket Number: No. 47817,47817
• Citation: 547 P.2d 760,219 Kan. 64
• Parties: STATE of Kansas, Appellant and Cross-Appellee, v. A MOTION PICTURE ENTITLED 'THE BET' et al., and a Motion Picture Entitled 'The Sexual Therapist,' et al., Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 760

547 P.2d 760

219 Kan. 64

STATE of Kansas, Appellant and Cross-Appellee, v. A MOTION PICTURE ENTITLED 'THE BET' et al., and a Motion Picture Entitled 'The Sexual Therapist,' et al Appellees and Cross-Appellants.

No. 47817.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. The word 'obscene' is a word of constitutional meaning and, as used in K.S.A. 21-4301 and related statutes such as K.S.A. 22-3901 et seq., regulating or prohibiting obscenity, it embraces materials and performances which are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation excretory functions, and lewd exhibition of the genitals. (Following Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.)

2. A conviction of promoting obscenity may be had under our statutes if the trier of fact finds under the substantial evidence test:

(1) That the material depicts or describes in a patently offensive way sexual conduct as explicated in Syl. 1 above;

(2) That to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest in such matters; and

(3) That the material, taken as a whole, lacks serious literary, artistic, political, or scientific value.

3. A system of regulation that permits suppression of speech or films in advance of actual expression may be deemed a prior restraint.

4. Although the regulation of obscene expression is unquestionably a legitimate matter for state control, it does not follow that the doctrine of public nuisance can be constitutionally applied to obscenity if it has the effect of imposing prior restraints upon freedom of speech or press.

5. The Kansas nuisance abatement statute (K.S.A. 22-3901 et seq.) as applied to promoting obscenity is overbroad in authorizing a padlock order on any house, building, room, or other structure and in authorizing the destruction of equipment, seats or other neutral property designed for use in showing films. Such provisions of the statute are unconstitutional as a prior restraint of freedom of expression, speech, and press under the First Amendment to the Constitution of the United States and under the Constitution of the State of Kansas, Bill of Rights § 11.

6. In an action to abate the promotion of obscenity, consisting of the public showing of films, under K.S.A. 22-3901 et seq., the record on appeal is examined and it is held the trial court did not err: (1) in construing the word 'obscene' under the standards in Miller v. California, supra, and upholding the constitutionality of the statute; (2) in enjoining the future showing of the named films in Kansas; (3) in refusing a padlock order on the premises; and (4) in refusing to abate neutral itmes of equipment used in the display of the films. It is further held: (5) the trial court erred in refusing to order destruction of the obscene films and in failing to allow a reasonable attorney fee to the prosecuting attorney.

Randy L. Baird, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the briefs for appellant and cross-appellee.

John H. Weston, Hollywood, Cal., argued the cause, and John A. McKinnon, Topeka, was with him on the briefs for Las Vegas Cinema, Inc., appellees and cross-appellants.

Charles Rooney, Jr. and William R. Brady, Topeka, were on the brief for Dickinson, Inc., appellee.

FROMME, Justice:

Two actions were brought by the state of Kansas on the relation of the district attorney to enjoin the public showing of obscene films, to abate the films and other personal property used in promoting obscenity, to obtain an order padlocking the theater where the films had been exhibited, and to allow a reasonable attorney fee and court costs. The first action was based on the public showing of four films, viz., 'The Bet', 'Flossie', 'The King', and 'The Fashion Jungle'. The second action concerned the public showing of two films, viz., 'The Sexual Therapist' and 'Three Pennies'. The actions were consolidated by agreement of the parties.

The actions were filed under the provisions of K.S.A. 22-3901 et seq., which provides for the abatement of common nuisances. K.S.A. 22-3901 provides:

'The following unlawful activities and the use of real and personal property in maintaining and carrying on such activities are hereby declared to be common nuisances:

'(a) Commercial gambling;

'(b) Dealing in gambling devices;

'(c) Possession of gambling devices;

'(d) Promoting obscenity;

'(e) Promoting prostitution;

'(f) Habitually promoting prostitution;

'(g) Violations of any law regulating narcotic or dangerous drugs.

'Any real property used as a place where any such activities are carried on or permitted to be carried on and any effects, equipment, paraphernalia or other personal property designed for and used on such premises in connection with such unlawful activities are subject to injunction and abatement as in this article provided.'

The procedure outlined in K.S.A. 22-3902 was followed and, after an adversary judicial hearing in which the films were viewed by the court, the four films included in the first action were ordered seized and held as evidence. It was found that there was probable cause to believe the films were obscene and should be held as evidence. The two films included in the second cause of action were no longer in the possession of the theater owners and were not seized or viewed. No request was made by counsel for defendants to make copies of the films or withdraw the four films for the purpose of exhibition pending final decision on the merits. (See Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745.)

The instant action was tried to the court. At the trial defendants offered no evidence and advanced no arguments on the issue of obscenity vel non. The defense rested on a motion for involuntary dismissal which challenged the validity of the state statute defining obscene material (K.S.A. 21-4301(2)(a) and (3)) on stated constitutional grounds.

After hearing the evidence introduced by the state, which included a showing of the four films and oral testimony concerning 'The Sexual Therapist' and 'Three Pennies', the court found that all six films were obscene within the broader definition of K.S.A. 21-4301 and as construed more narrowly to conform to the constitutional requirements explicated in Miller v. California,413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. den., 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128.

The trial court entered judgment permanently enjoining any future showing and exhibition of these six films in Kansas and ordered Las Vegas Cinema, Inc., d/b/a Vegas Cinema to pay all costs of the action. The court refused to abate the equipment and personal property used in the exhibition of films in the theater. It refused to grant a padlock order on the theater property. It refused to order defendant to pay a reasonable attorney fee to the district attorney and it ordered the four films (seized as evidence) be returned to Las Vegas Cinema, Inc.

The state has appealed from those portions of the court's order which denied the abatement of equipment and personal property, which refused to grant the padlock order, which refused to order destruction of the films, and which denied allowance of attorney fees to the district attorney. The defendant has cross-appealed from those portions of the court's order which permanently enjoined the exhibition of the films in Kansas and which construed K.S.A. 21-4301(2)(a) and (3) as limited by the constitutional standards for obscene materials set forth in Miller v. California, supra.

In order to place the questions raised by this appeal and cross-appeal in proper perspective it might be well to consider some of the history of the decisions in this general area. The First Amendment to the United States Constitution provides that Congress shall make no law abridging the freedom of speech or of the press. This amendment was made applicable to the states through the Fourteenth Amendment which specifies that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. The United States Supreme Court in the plethora of decisions has held that First Amendment rights apply to practically all forms of the written and spoken word including performances, sound communications and graphic materials. However, a majority of the members of that court hold that obscene materials do not enjoy the protection of First Amendment rights. (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.) Therefore the states retain the right to prohibit the public display of obscene materials. The difficulty in this area comes from an inability of the states to lay down definitive standards to determine what is obscenity which will meet the changing standards of the United States Supreme Court.

Kansas has unsuccessfully attempted to provide censorship for obscene films which are to be shown publicly by the motion picture industry. A censorship statute passed by the legislature in Kansas was struck down by the high court. (See Holmby Productions, Inc. v. Vaughn, 177 Kan. 728, 282 P.2d 412, rev. 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770.) Efforts to provide for the seizure and destruction of publications deemed to be obscene and immoral have met similar fates. (See State v. A. Quantity of Copies of Books, 191 Kan. 13, 379 P.2d 254, rev. 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, and State ex rel. v. A Quanitity of Copies of Books, 197 Kan. 306, 416 P.2d 703, reversed without opinion, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314.)

Much of the difficulty in this area comes from the vacillation of the high court in this sensitive area where First Amendment rights...