Trans-Lux Corp. v. State ex rel. Sweeton, TRANS-LUX

• Decision Date: 19 January 1979
• Docket Number: TRANS-LUX
• Citation: 366 So.2d 710
• Parties: CORPORATION, a Delaware Corporation, and Gus Roberts v. STATE of Alabama ex rel. Eugene SWEETON, Chief of Police of the City of Huntsville, Alabama. 77-651.
• Court: Alabama Supreme Court

Page 710

366 So.2d 710

TRANS-LUX CORPORATION, a Delaware Corporation, and Gus Roberts v. STATE of Alabama ex rel. Eugene SWEETON, Chief of Police of the City of Huntsville, Alabama.

77-651.

Supreme Court of Alabama.

Jan. 19, 1979.

Julian D. Butler and Steven R. Berryman, of Butler & Potter, Huntsville, for appellants.

Charles H. Younger, Huntsville, for appellee.

PER CURIAM.

This is an appeal from a judgment holding that the exhibition of the motion picture "The Opening of Misty Beethoven" in an enclosed movie theater constitutes a nuisance abatable under the Alabama Red Light Abatement Act, §§ 6-5-140 to -154 (Code 1975). The judgment permanently enjoined the defendants from exhibiting the motion picture. We affirm.

This action was commenced by Eugene Sweeton, Chief of Police of the City of Huntsville, as a private citizen, seeking both a preliminary injunction and a permanent injunction to halt the showing of the film "The Opening of Misty Beethoven" at the Trans Lux Twin Theatre in Huntsville. He alleged that the film was lewd and obscene, and that the knowing and wilful showing of such a film by the defendants constituted an abatable nuisance under §§ 6-5-140 to -154 (Code 1975).

The theater is an enclosed motion picture house showing a variety of movies for which an admission price is charged, including an occasional "X" rated film. The movie in question was shown at the Trans Lux Theatre from August 5, 1977, until September 2, 1977, and from September 13, 1977, until October 3, 1977. It was stipulated that no member of the public under the age of eighteen years was admitted to view the film.

On August 13, 1977, four members of the Huntsville Police Department vice squad viewed the film at the theater. Vice squad officers viewed the film partially or in its entirety on at least three subsequent occasions. Sweeton filed his complaint on September 16, 1977. The trial judge set a hearing on the application for a preliminary injunction on September 22, 1977, but continued it until October 3, 1977, on motion of the defendants, who had not been served with a summons until fifteen minutes before the hearing.

After the hearing on October 3, during which the trial judge viewed the film, he issued an order finding that "The Opening of Misty Beethoven" is "obscene under the laws of the State of Alabama * * *, and as such is not within the scope of speech protected by the First Amendment to the Constitution of the United States." The court found that the exhibition of the obscene film constituted a public nuisance and enjoined the defendants from showing it pending a final determination on the merits. There was no express finding as to the standards followed by the trial court in determining the obscenity vel non of the film.

A final hearing was held on March 16, 1978. No new evidence was presented. The court's order dated March 20, 1978, found that exhibiting the film constituted a public nuisance and permanently enjoined the defendants from exhibiting that specific motion picture. Defendants appealed following denial of their motion for a new trial.

Two issues are raised on this appeal. I. May the Alabama Red Light Abatement Act, §§ 6-5-140 to -154 (Code 1975), be applied to the exhibition of a single motion picture found to be obscene? II. If so, is this film, "The Opening of Misty Beethoven," obscene? We answer both questions in the affirmative.

I.

The question of the applicability of our Red Light Abatement Act to motion pictures has been considered by this Court on one prior occasion, General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), Cert. denied, 425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d 753 (1976), "Sweeton I." A discussion of that case is a necessary preliminary to the resolution of the first issue presented by this appeal.

In Sweeton I, a complaint was filed under the Red Light Abatement Act by the same party who filed the action in the instant case, i. e., the Chief of Police of the City of Huntsville. The complaint alleged that the defendant had continuously shown obscene films over a period of nineteen months in the Fox Cinema Theatre, an enclosed adult movie house. The trial judge found that the movies shown were obscene and that the exhibition of the movies was a public nuisance. The court ordered that the defendant be perpetually enjoined from maintaining the nuisance, that all personal property in the theater be sold, and that the theater be closed for all purposes for one year. This court reversed. Mr. Justice Almon authored the plurality opinion with which Justices Merrill, Faulkner, and Embry concurred. Justice Maddox concurred specially, Justice Jones concurred in the result, and Chief Justice Heflin and Justices Bloodworth and Shores concurred in the result in an opinion authored by the Chief Justice. The specific holding, as stated in the plurality opinion, was that "the Alabama Red Light Abatement Act cannot constitutionally be employed to enjoin prospectively the showing of films in enclosed movie theatres to an adult audience * * *." Sweeton I, supra, 294 Ala. at 666, 320 So.2d at 676. The constitutional defect contained in the trial court's judgment was the closing of the theater for one year for all purposes, which amounted to prior restraint at its worst.

The plurality and the special concurrence did not close the door to all possible application of the Red Light Abatement Act to obscene movies. During the course of the opinion, the plurality made the following observations regarding the use of the Red Light Abatement Act in the area of first amendment rights (with which conclusions Justice Maddox concurred):

(1) Traditionally, continuing activity contrary to public morals or decency is a public nuisance. 294 Ala. at 663, 320 So.2d at 672-73.

(2) The use of the definition of obscenity contained in the criminal obscenity statutes is proper in this civil proceeding. 294 Ala. at 664, 320 So.2d at 673.

(3) The Miller standards are incorporated into the definitions contained in the Red Light Abatement Act. 294 Ala. at 664, 320 So.2d at 674.

(4) There is no indication that the legislature intended either to include or exclude the application of the Act to obscene material. Id.

(5) The complaining party has the burden of proof on the question of obscenity under the Act. 294 Ala. at 664-65, 320 So.2d at 674.

(6) The Act meets all requirements for prompt judicial review of any suppression of the defendant's activities. 294 Ala. at 665, 320 So.2d at 674-75.

(7) The closing of a theater for all purposes in this situation, as required by §§ 6-5-147 and -151(b) (Code 1975), is not constitutionally permissible. 294 Ala. at 665-66, 320 So.2d at 675-76.

The plurality opinion then stated two first amendment situations in which the Act might permissibly be used, the first of which is the precise situation present in the instant case:

"The first would be where the impact of the injunction is absolutely devoid of prior restraint or chilling effect upon prospective exercises of expression other than that adjudicated as obscene. More specifically, where there has been a prompt adversary proceeding in which all the requisite constitutional standards for ascertaining the issue of obscenity have been met and the particular film has been found to be obscene; future exhibition of that Particular film may well constitute a public nuisance and be permanently enjoined as such. . . ."

294 Ala. at 666, 320 So.2d at 676.

We reaffirm Sweeton I in concluding that the Red Light Abatement Act may be used to enjoin permanently as a nuisance the exhibition of a particular motion picture found to be obscene, if the provisions of the Act ensuring prompt judicial review of the question of obscenity and providing for a prompt hearing on the merits of the permanent injunction are followed.

The initial section of the Red Light Abatement Act, § 6-5-140 (Code 1975), defines nuisance as "(a)ny place in or upon which Lewdness, assignation or prostitution is conducted, permitted, continued or exists and the personal property and contents used in conducting or maintaining any such place for any such purpose." (Emphasis added.)

We conclude that "lewdness" includes the exhibition of an obscene motion picture in a public place, such as an enclosed motion picture theater, and that a motion picture is "obscene" if it meets the definition of "obscene" contained in our criminal statutes, § 13-7-161 or § 13-7-180 (Code 1975). Section 13-7-180, as written, incorporates the guidelines set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This Court, by judicial construction, incorporated the Miller standards into § 13-7-161 in Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974), Cert. denied, 419 U.S. 1130, 95 S.Ct. 816, 42 L.Ed.2d 830 (1975).

Examples of sexual conduct which may be found to be obscene when depicted on film are set out with specificity in § 13-7-180. While § 13-7-161 does not contain such a list, the incorporation of the Miller standards into this section supplies sufficient notice of what is obscene, I. e., patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. ¹

We reaffirm the seven principles or observations from Sweeton I, listed hereinabove, including the incorporation of Miller standards into the Act. The United States Supreme Court, in Miller, invited such incorporation to provide the required specificity to statutes which would otherwise be too broad. Miller v. California, 413 U.S. at 24 & n.6, 93 S.Ct. 2615 & n.6, 37 L.Ed.2d at 430 & n.6. Accord, United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7, 93 S.Ct. 2665, 2670 n.7, 37 L.Ed.2d 500, 507 n.7 (1973). Moreover, the United States Supreme Court commented favorably upon the use of civil injunction statutes against obscene materials, provided constitutional standards are followed to determine...