General Corp. v. State Ex Rel. Sweeton

Sо.2d CORPORATION, corporation, GENERAL Eugene rel. SWEE

STATE Alabama ex Police, TON, City of Chief of Huntsville, Alabama.

SC 521.

Supreme Court of Alabama.

Sept. 18, 1975. Memphis, Graves, Jr.,

Frierson M.

Tenn., appellant.

Watts, Salmon, Roberts, Manning &

Noojin, Huntsville, appellee. for

ALMON, Justice.* presented question appeal this whether the Alabama Red Abate- Act, seq., ment Tit. et Code of § Alabama Recompiled can be constitutionally applied exhibition of pictures. specifical- obscene motion More ly, whether the of obscene motion pictures public nuisance, constitutes padlocking sanction for which is the premises up year. to one complaint filed January 1973, al- leged period that for a in excess of nine- months, appellant teen consistently had shown obscene films at the Fox Cinema showing Theatre and that the of certain of these films constituted a violation of both the nuisance and laws of the complaint State of Alabama. prayed preliminary injunction for issuance of after and hearing, notice and that after final the hearing obscenity, ap- on issue of pellant, Corporation, perpetual- be General enjoined maintaining from said nui- sance. order, pretrial February issued on

13, 1973, out the set contentions the re- spective parties stipulation including a that the Fox Cinema was an Theatre enclosed adult supplemental pre- A movie house. trial 22, order was February on issued 1973, stipulating that in the issues contro- were, versy appel- whether the conduct of 7, lant constituted under “lewdness” Tit. § 1091, Code, supra. 23, 1973, February On final decree Specifical- of the court trial was entered. ly, judge appellant the trial found that had engaged obscene movies at the * justice tape originally assigned who the writer has listened This case was court, reassigned recordings argument. formerly of the oral has been on this it scene,” provisions activity and that under the and that such Theatre Cinema

Fox 7, 1091, seq. (the Pursuant Tit. et Alabama nuisance. § constituted appel- Light operation of the Act) decreed that Abatement court finding, the that subject Appel- main- theatre was to-abatement. enjoined from perpetually lant be lant’s that position the Fox was this Act was not at Cinema said nuisance taining county; apply picture that- films in the intended to motion or elsewhere Theatre or, alternative, legislature in the if thea- did personal property contained all intend, application so sold in manner unconstitu- tre be removed exe- chattels under tional. sale of provided for the closed for all cution; theatre be that Any patently doubts that obscene unless re- year sooner for one purposes expression protection falls outside the 7, provisions of Tit. under the leased § enjoys First Amendment and therefore Code, proceeds 1104, and that supra; immunity no from state regulations have A writ applied the costs. the sale long been laid to rest. Miller v. Califor embodying the injunction issued was nia, 15, 2607, L.Ed.2d S.Ct. final decree. terms ; Reidel, 419 (1973) United States 1973, 23, the court amended March On 1410, 28 L.Ed.2d 813 op- specifically limiting decree its its final States, Roth v. United 354 U.S. matter, leaving but un- to obscene eration (1957). closing provision the theatre

disturbed primary requirements “The may decency year. one for against publications.” enforced obscene Near Minnesota, v. State appellant was showed The evidence 75 L.Ed. More profit operation in the engaged recently the United States Theatre, situated in Hunts- Fox Cinema has principle reaffirmed ‍‌​​​​‌‌​​​‌‌‌​‌​‌​​‌​​​​​‌‌‌​​‌​​​‌​‌‌‌‌‌​‌​​‌‌‌‍the that the states period ville, During the of De- Alabama. a legitimate have interest regulating 20, 1972, January through cember material; use of and, specif more Curlee, inclusive, a detective em- Mr. Ron ically, regulations dealing local with Depart- ployed by the Police Huntsville such material will not be disturbed ment, Theatre on visited the Fox Cinema struck long they down so comport with During these visits Mr. occasions. several specific constitutional Paris mandates. photo- sequential took numerous Curlee Slaton, 49, Adult Theatre v. 413 U.S. 93 contemporaneous au- graphs and recorded 2628, 37 L.Ed.2d 446 (1973). tapes being which were of the films dio These motion exhibited at the theatre. However, due to sta the elevated Making “The picture films were entitled: tus guaran ascribed to First Amendment Sandra,” Movie,” “Mary am of the Blue “I tees, procedures adopted by states deal for Runners,” “The “The Execu- Jane,” Gun ing expression with obscene been the have Wives,” At “The Mermaids.” tive and subject judicial scrutiny. of close Marcus referring the and Curlee, suрpression particular form of of a ex Press, Law, p. (Foundation Criminal 395 pression, rather a condi the abatement of Nuisances, 68, 1969); Wood, p. Law of § upon- tion which harm a substantial works 87, ; ed., 1893) 1 66 Nui (3d vol. C.J.S. public injuriously number of the or which d, police p. sance 18 766. Under § public health, safety, or affects morals. legis power, proper a court of with equity Jones, 82, City v. 202 79 Selma Ala. So. jurisdiction lative authorization can assume (1918). 476 notwithstanding to abate a nuisance fact nuisance that the maintenance of that Press, In City Inc. v. Philadel Grove may a criminal also violation phia, it (3d 1969) 418 F.2d 82 Cir. was State, supra; v. Thea Ridge law. Evans held that too elastic nuisance doctrine was Slaton, 377, tre 180 Corporation v. 227 Ga. amorphous constitutionally restrict denied 404 (1971), S.E.2d 712 cert. rights. First court Amendment con 950, 281, (1971). 92 267 public cluded that nuisance could doctrine

However, rights not be used both define standards of First Amendment whеre protected speech involved, and to serve as vehicle are been no such una- there was 664 s Accord, applicable. it ex rel.

for restraint. State There is a substantial amount 267, persuasive Murphy Morley, authority v. 63 N.M. 317 P.2d proposition for this judicial interpretation Commonwealth v. Guild Thea from in sister states tre, Inc., 378, (1968). respective Light 432 Pa. 248 A.2d of their Red Abatement strikingly comparable Acts to our own. Tit; 7, 1091, Code, supra, defines as a § People 253, Goldman, Ill.App.3d v. any place nuisance “. . . lewd where that, N.E.2d as (1972), it was held ness, assignation, prostitution is con or statute, syn used in its “lewdness” was continued, exists; ducted, permitted, . onym prostitution for and therefore contrast, (Emphasis ours). By .” activity apply Act did not there “amorphous” language discernibly this “pornoshop”). sought enjoined (a to be compared 374(16j) when with 'Tit. § Similarly, in Theatres Loui States Gulf (1971 Supp.) defines Richardson, supra, siana v. the Louisiana incorpo specificity terms with related Supreme public its reasoned that three-prong test “hard-core rates the passed 1918, only nuisance statute in one States, pornography” Roth su v. United year own, prior originally to our de was court, pra. The final decree of the trial signed prostitution gambling to control however, finding in demonstrates that and therefore in the could not used “obscene”, judge trial used the films First Amendment area. The court also incorporated in the Roth above Standard emphasized the fact that the statute con statute. virtually tained making no standards for obscenity. determinations of Ac the final decree in this Since cord, Theatre, ex Southland Inc. v. State cause, Court decided U. S. Tucker, (Ark.Sup.Ct. rel. S.W.2d Miller, supra. consider We under Productions, 1973); Tonlyn Harmer v. facts of this case that the Roth test embod Inc., Cal.App.3d Cal.Rptr. 576 stringent ied in our statute was more than Therefore, subsequent Miller doctrine. complain appellant hardly that can However, lan from the broad Miller standards worked to its detri have Code, supra, guage of Tit. there § Moreover, dealing here with ment. we are any legislative intent to is no indication of ample due civil remedial statute with application to either include or exclude its process safeguards and we are since is the Controlling obscene material. here quite civil realm we need not be so con Abate Light fact the Alabama Red crimi scious of the strictures attendant being ment Act has been construed as prosecution. nal believe that the rea We law, merely declaratory of the common State, in Pierce 292 Ala. soning v. Tuscaloosa, Duncan Ala. City applies equal force (1974), with So.2d 218 and, previous as (1952), 60 So.2d 438 specifically, definitional infirm here; noted, contrary at common acts law Abatement ities the Alabama' public morals were considered by judicial Act were cured construction. subject nuisances and to abatement n Accord, Ewing State ex rel. v. "Without such. Stitch", 307 N.E.2d 37 Ohio St.2d Christenson, 317 F. (1974); Gordon aspect regarding bur The second 1970); Press Supp. (D.Utah 146 Grove proof party upon den of whom —which Evans, F.Supp. (E.D.Va. Inc. v. 306 1084 of the falls —is resolved in favor burden 1969). Light Abatement The Alabama Red State. shifting none of the burden Act contains Appellant argues in the alternative Minneso present in Near v. State judicial evils notwithstanding con- curative of Mary ta, supra, or Freedman v. State struction, intend the legislature did not of 51, 734, land, L.Ed.2d be Light Red Abatement Act to Alabama clearly obscenity. on the issue of tion also transcript shows See The (1965). Cinema, Sedita, F.Supp. Ltd. upon and Jodbar prosecution was callеd that the (W.D.N.Y.1970); Freedman proof. Nei- 868 v. State meet itsburden did in fact supra. Maryland, Abatement Light the Alabama ther Obscenity Law on the Alabama Act nor licensing or pre-exhibition any authorizes Under Alabama Red transcript reveals permit procedure. Act, however, pre-adjudicatory Abatement ex- from not appellant was restrained restraint in the temporary form of a in until films allegedly hibiting the obscene junction by mandatory pro is saved other on adversary proceeding after a final in the Act speedy visions which insure a issue. final resolution of the ultimate issue ob scenity. 7, 1095, Tit. a requires hearing § ju requirement prompt ‍‌​​​​‌‌​​​‌‌‌​‌​‌​​‌​​​​​‌‌‌​​‌​​​‌​‌‌‌‌‌​‌​​‌‌‌‍next — days on that within ten of the issu issue ex any administrative review dicial ance of the temporary injunction; 7, Tit. § re be due to suppression also ecutive —is 1101, requires, that the must defendant noted, the As favor.of State. solved in days prior at least five given nоtice fact nor there allow was Act does not hearing on the matter of whether such an un appellant’s activities suppression of any injunction granted; 7, will be and Tit. § the issue adjudication on til final after 1103; requires adjudication that final shall (cid:127) does Although the Act obscenity. make “precedence take over all cases other ex in temporary a provision for issuance of cept Furthermore, injunctions.” the Unit original junction filing of the after the Supreme ed States has held that Court Code, supra, a 7, 1095, complaint, Tit. § right speedy a only determination arises ten had within must be hearing thereon parte deprived one has been where ex of a parte ex provision for an Thé days, ibid. right. Thirty-Seven United Pho States v. express 1096, order, 7, is restraining Tit. § 1400, tographs, 402 U.S. 91 S.Ct. any manner or in moving “the limited to Rizzi, L.Ed.2d 822 Blount v. su personal property interfering with pra. Oppose also Sociеty Pornog See nuisance place of the where contents raphy, (La. Inc. v. Thevis, 255 So.2d 876 imposes . . . .” alleged to exist App.1972). upon continuing exhibitions no restraint trial on the merits. films until Turning procedur last requirement prohibition al —constitutional here, applica- not at Although issue prior against allegedly restraint for the providing tion Tit. § expression judicial without immediate de deter- premises pending final closing termination, any'system regulation for the mination, a troublesome presents more expression prior involving of obscene re pre-adju- problem could constitute which bearing heavy comes to the straints court dicatory suppression of exhibition. against validity. Bantam presumption its Cusack, Sullivan, Corporation Books v. Teitel Film The decree closing the trial court order States included an (1968), the United judicial purpose for one Fox Theatre for prompt for want of down struck th.e not a nor a city year. liquor nuisance licensing ordinance review This.is rather, nuisance; prostitution a movie provided day administrative to 57 charged with certain ob process could house review before however, pictures. of ob decision, dealt Evidence scene motion The Teitel had. justify proce- not past scene conduct does where administrative with situations protect judi- enjoining future conduct which stayed the hand dures in effect People ex inter- First prompt ed Amendment. thereby preventing its ciary Gals, Cal.App.3d vention, Sarong final determina- rel. Hicks v. supervision, and Thevis, Oppose padlock- Pornography v. Cal.Rptr. Society The only year supra. remedy if the operation This is available appellant’s for one of ing had no is satisfied that the owner at its worst court prior restraint constitutes the nui- knоwledge the existence of patently is unconstitutional. sance. facts in the recent United While South- Court decision of States opinion there are of the We Promotions, Conrad, 420 v. eastern Ltd. ample judge trial was evidence for the pictures ques conclude that the motion point, directly in the rea- are not (1975), hold that tion are obscene. But we also particularly appropriate. soning therein is maintaining if an ob guilty even one is quote:

We constitutionally nuisance, scenity it is not permissible' deprive prospectively him presumption against “. . . rights. his First Amendment prior the de- restraint is heavier—and protection that gree of broader-—than Lest ex- there confusion expression imposed by against limits on holding tent of our that the Alabama Red penalties. Behind the distinc- criminal Light Abatement Act cannot constitution- theory deeply etched in our tion is a ally employed enjoin prospectively punish society prefers to law: a free films in movie enclosed rights speech few who abuse audience, theatres to an we hasten to after them adult they than break' the law to throttle opinion delimit this to at least two First always and all It is others beforehand. Amendment situations in which that statute an in- difficult to know advance what applied pass might so constitutional muster. say, dividual will and the line between impact The first would be where the illegitimate speech legitimate and is of- injunction prior absolutely devoid finely ten that the risks of so drawn upon chilling prospec restraint or effect freewheeling censorship are formidable. expression tive than exercises of other Randall, Speiser v. See adjudicated specifically, as obscene. More 1332,2 (1958).” L.Ed.2d 1460 prompt adversary where there has-been а proceeding requisite in which all the con jurisdiction are not the first to hold We ascertaining stitutional standards for prior restraint of First unconstitutional issue of have been met and the prospective guaranties Amendment particular film has been found be ob public abatement of movie houses as nui scene; particular future exhibition Society Oppose v. Pornography sances. may public film well constitute a nuisance Thevis, supra; ex rel. State of Indiana See, permanently enjoined and be as such. Ind., Enterprises al., Blee et Mohney v. Slaton, Corporation Theatre Evans su (1972); Theatres N.E.2d States Gulf pra; Corporation Cactus v. State ex rel. Louisiana, Richardson, supra. Inc. v. Murphy, Ariz.App. P.2d 375 Obscenity, The Alabama Law on Tit. § ; Vixen, Keating (1971) State ex rel. penalties 374(1) seq., provides et criminal Ohio St.2d 272 N.E.2d 137 appellant’s for conduct such as retribu —if Productions, contra, Tonlyn Harmes v. sanctions, punishment sought, tive those Inc., supra. abatement, only proper not are the ones by the legislature. authorized The second involves situations where foisting patently

there is a off provision films, see, in the Alabama Red not fit places for children to Act, 7, 1104,supra, Abatement Tit. within their view to include streets § facilities, bond is not cu allowing properties, for the release on residential private activity defect. See may rative of this constitutional houses. Such also subject equi MADDOX, special- (concurring to public nuisance a constitute Justice where, course, attendant of injunction ly). table procedural substantive constitutional agree injunction I the issued here v. Paris present. Bloss See safeguards are prohibits showing which of film N.W.2d Township, Mich. n for one year overbroad, is but I cannot exhibiting films theatres (drive-in (1968) ' powerless agree judge trial public of plain in view minors not fit for act. subject residences surrounding streets The Fox Theatre had been used Cinema nuisance). But public abatement as consistently depicted: show films which City of Erznoznik recent case see the Jacksonville, 95 S.Ct. Patently representa- “(a) offensive descriptions tions or sexual ultimate acts, perverted, actual or sim- normal or excep foregoing possible The ulated. prosecut not be construed should tions “(b) Patently representa- offensive pro light for green as a ing authorities descriptions masturbation, tions or ex- films particular spective control of cretory functions, exhibition of and lewd such broadcast which theatres or drive-in California, Miller v. genitals.” imprecise up again point We films. 419. which doctrine public nuisance nature the intricacies cope with ill-equipped Burger, writing Chief for a ma- Justice Thе law of guaranties. First Amendment court, Miller, jority of the in that the said for the a vehicle become cannot nuisance illegal states regulate could conduct overly sensibilities of protection regu- as occurred in this case. One of nui fastidious; the doctrine nor can Court, latory schemes which circumventing as a means of sance serve Miller, permissible, includes: said was safeguards. First Amendment these law, “applicable state as written authori- are Amendment First requirements of the tatively gave construed.” Miller this Court regulatory demanding any stringent and — power guidelines regula- set for most upon these impinges scheme sex- depict tion of works which or describe close be assured precious rights will therefore, opinion, my ual It is conduct. scrutiny. standards, judge, using Miller that a- trial enjoin place operation ás could is due to be in this cause judgment place used if the had been nuisance re- cause hereby and the is reversed purpose films which not incon- proceedings manded for further obscene, Miller In' were under the test. opinion. this with sistent authority granted view of the to this court and remanded. Reversed Miller, this under I do not think that timid, judicially weak,

is so or. should be so cannot, not, “authoritatively that- it or will EMBRY,' MERRILL, FAULKNER redlight construe” our abatement law JJ., concur. regu- such manner that trial courts could specifically late which Miller au- conduct in the result. JONES, J., concurs regulate. thorizes states to Burger recognized Chief Mr. Justice MADDOX, specially. concurs J., easy Miller an that courts would not have road, difficulty. free from He said: HEFLIN, J., with whom C. BLOOD- “ * * * gut ajnount SHORES, ‘fatigue’ JJ., join, concurs no WORTH and result, ‘in- opinion. adopt in the us a convenient with should lead absolutist, ‘any guidelines, stitutional’ rationale —an new Miller case would have thing goes’ outright being view of the First Amendment been rather than reversed lighten proceedings. —because it will our burdens. for further remanded judicial supervi abnegation ‘Such an of Supreme key Court’s reason- sion in this field inconsistent would be ing in be contained in regard this seems to uphold duty with our to the constitution v. footnote of the case of United States 7 Ohio, supra, guarantees.’ al Jacobellis 123, Reels, 12 200-Ft. 93 413 U.S. S.Ct. 187-188, at 378 at U.S. 84 S.Ct. [1676] 2665, handed down (1973), of Bren (opinion 1678 L.Ed.2d [12 793] day the same as 7 Miller. Footnote nan, J.). remedy Nor should we ‘tension Reels, as United States v. 12 200-Ft. reads by between state federal ar and courts’ follows: bitrarily power of a depriving States that, Constitution, “We further note while we must reserved to them under the leave to state the construction of courts power they enjoyed and have duty to legislation, state we do have a continuously exercised from before authoritatively construe federal statutes adoption to this the First Amendment of ‘ where “a doubt of constitution States, serious day. supra, Roth v. See United ‘ ’ ality is “a raised” construction of 482-485, [1304], 354 at at U.S. fairly possible by the statute which the duty 1498], 1307-1309 L.Ed.2d ‘Our [1 ’ question may be avoided.” United facing up admits of no “substitute for Thirty-Seven States x. Photographs, tough problems individual of consti 1404, 363, 369, 1400, 28 L. U.S. judgment every tutional involved ob S.Ct. ” White, (1971) J.), Ed.2d 822 of (opinion scenity case.” [Citations omitted.]’ ‍‌​​​​‌‌​​​‌‌‌​‌​‌​​‌​​​​​‌‌‌​​‌​​​‌​‌‌‌‌‌​‌​​‌‌‌‍Benson, quoting from Crowell v. 285 U. This Court highest is the court of this S. 76 L.Ed. S.Ct. state. It highest is the court which can If and when such a ‘serious “authoritatively construe” state laws. our vagueness doubt’ is raised as to the I opin- think an Miller examination of the ‘lewd,’ ‘lascivious,’ ‘obscene,’ the words clearly Supreme ion indicates that ‘indecent,’ ‘filthy,’ or ‘immoral’ as used Court of the United intended state States regulated describe material in 19 U.S. courts to construe their state statutes so 1305(a)] C. 1305(a) U.S.C.S. § § [19 incorporate specifically prohibited and 18 U.S.C. U.S.C.S. [18 § § given examples conduct Miller Orito, 1462], supra, see United States v. important case. I think that it is that we at at 140 n. S.Ct. [2674] keep in mind prohibited that the acts need at are 2676 n. L.Ed.2d we 516] [37 specifically applica- not be any written in prepared to construe such terms as limit law, rather, ble state but con- ing regulated patently material to offen may struction be obtained to authoritative- representations descriptions sive or ly incorporate construe statute so as to specific ‘hardcore’ sexual conduct specifically prohibited acts. examples given as in Miller v. Califor that if the Miller than remanded for have the imminently strue It seems clear being outright state statutes opinion. authority Supreme clear further Miller Court was and that me that state courts reversed. an proceedings” authoritatively was “vacated analysis this made I believe rather opin- con- graphs, supra, 402 fic ‘hardcore’ conduct.” 822] Congress nia, supra, United States v. ^[2607] (opinion White, J.). [1400], at 2615 could at always [37 1404-1407 [28 L.Ed.2d at Thirty-Seven define other at at 369-374, Of 431]. L.Ed.2d course, Photo speci See con- is significant ion that the California statute under It in the concluded portions opinion every sideration in Miller could not be authorita- handed down tively incorporate Miller, concomitantly construed so as to with acts, tions of ultimate or 200-Ft. sexual normal Court cites footnote simulated; perverted, actual Patent- (b) construed the or Reels wherein the court fed- descriptions incorporating representations offensive eral statutes as description masturbation, excretory functions, representations specific “given as lewd genitals.” exam- exhibition hard-core sexual conduct supra.” California, in Miller ples Miller, judge, Under I believe the trial authority state court cаses under Alabama’s why reason proceedings permanently enjoin is Abatement Act could remanded for further were the use of 7 oí 200-Ft. the theatre for obscene disclosed in footnote also anyone films and require desiring that while it had could to Reels. court noted power authoritatively legitimate use the purpose construe theatre for to the to a fed- statutes, plan a possess pur- the authori- submit which would eral it did not show the pose statutes. for which ty reference to state the theatre would be used with and the prompt- trial court could determine why any whenever This the reason proposed whether the use was for le- a Miller) as was judgment (such court state gitimate purpose, using the Miller stand- proceed- further and remanded for vacated ard, of course. Supreme specifically re- the Court ings, the to footnote 7 of cоurt, ferred state court A California using I Reels. con- United States v. 200-Ft. Act, enjoined Abatement permanently Supreme the judgments tavern, these strue operator any its owner and and actually in- as Court United States person other maintaining, from using authoritatively viting the to state courts occupying premises the purpose for the just statutes as their own state “lewdness,” construe premises closed the all to uses by the statutes construed the federal were year except for one uses not involving en- Reels. Supreme itself in 200-Ft. tertainment, the and ordered sheriff re- to move fixtures, equipment all and musical that states are It seemed clear to me instruments from tavern the and to close obscenity prosecutions proceed free to with the building year. People for one ex rel. standards, long the Miller so under new Gals,” Hicks v. “Sarong Cal.App.3d apply state statе the courts construe Cal.Rptr. 24 (1974). obscenity consistent statutes in a manner guidelines. the new Miller with may The common law of nuisance be a by valid method which implement only problem I see in constitutional police the state’s power in cases prior case is inherent this the restraint this one. In Press Inc. City Grove injunctive relief but I believe granted, the Philadelphia, (3 Cir., 1969), 418 F.2d 82 regu- would relief could be tailored which the court- procedures the held that court illegal conduct, protect First Amend- late chosen city the improper, there were permit opera- rights, and the ment would but spelled the court city out how the could tion of the business show films which regulate the showing of obscene It films. short, not the trial judge were obscene. In said: before him that had voluminous evidence being Fox Theatre was used Cinema perceive “The mischief we in the Penn- illegal an Faced activity. sylvania with this equity rules no there is pattern overwhelming guarantee evidence of hearing final will be season- conduct, practice illegal having ably de- scheduled pre- after the issuance of a liminary non of the injunction termined vel films prompt and that a deci- there, trial were shown court sion will forthcoming be thereafter. The enjoined have further use of the preliminary could days, restraint could exist “(a) months, were Pat- theatre show films which even before decision exists, descrip- merits; on representations or ently possibility offensive where this defective, unacceptable stitutionally an Mr. threat freedom O’Brien Justice expression re- process without due law observed: necessary provide ex- Failure to sults. “ ‘However, proper hearing if a even pre- peditiousness tinges Pennsylvania held, proceeding had been the. instant injunctive procedures liminary with uncon- fatally respect. was defective in another they employed stitutional hues when are * * * Although agree we cannot with expression prior a fi- inhibit restrain or appellants’ prior re contention that no mat- adjudication alleged nal of an obscene pic the exhibition a motion straint on ter. permissible, ture is it is clear that carefully such restraint circum must reiterate, challenge, not do “We we Mary scribed. Freedman v. State postulate primary requirements 'the land, 51, 58, 380 U.S. 85 S.Ct. decency may against be enforced (1965) Books, publications.’ Kingsley Inc. e“procedural Court discussed safe th Brown, 1325, L. designed guards dangers to obviate means that relief Ed.2d 1469 This censorship system.” of a One of these may sought in crimi both the civil and safeguards judicial prompt, was final a Pennsylvania court nal branches of the * * * appel The fact that decision. оbscenity, system to enforce state laws on may have a full dress lants been offered of consonant with the Due Process Clause days original the hearing within four of guar the Amendment and the Fourteenth Quite clearly, does suffice. restraint not expression. It First antee of Amendment deci provision prompt there is no a regu only right is when of the state to the of sion. is vital that the continuance It late undue inhibi collides with de First Amendment freedoms not be protected expression problem that tion of particu pendent upon efficiency the of arises. Where of constitutional dimension upon safeguards judge procedural lar but of expression is inhibited as a result clearly embodied in a statute. canWe an prompt decision reached after only Freed suggest, as the did Court in pro adversary proceeding, there can be no man, supra, stat that a model for such a process But where complaint. cedural due safeguard ute can the First which both pro preliminary in a the inhibition .occurs and of Amendment freedoms exhibitors ju prompt ceeding, guarantee with no of publishers, and the freedom from obscen merits, procedure the dicial decision the on ity society as found in of a whole can be re constitutionally because a defective Books, Brown, Kinglsey (sic) 354 Inc. v. presumably protected expression straint of S.Ct. persisting capable only not occurs but of (1957). The York statute there New required prior for an unlimited time provided day for a trial within one after judicial determination. joinder within of issue decision Pennsyl in is not novel “Our conclusion the trial. days two of conclusion of de jurisprudence. The same basic vania procedure The instant falls far short already termination has been alluded required.’ A.2d at 47-48.” O’Brien, speaking even Mr. for an Justice procedure suggest, Com I which would in state divided Inc., submit a Theatre, require operator Pa. the owner or monwealth v. Guild validity opera- plan setting future course of out the (1968), A.2d where tion, “prior re- Pennsylvania rules constitute some equity would employing effect,” prompt if a “chilling also straint” and enjoin exhibitions obscene was the test men- There, se is made. I believe state had decision authorities raised. injunction af in Press is met. While parte ex without tioned Grove cured an im- against restraint is an opportunity protection prior fording the exhibitors one. it an absolute procedures right, is not ruling con- portant be heard. Brown, Books, Kingsley Inc. v. 354 U.S. to Theodore Roosevelt was an Jefferson ‘extraordinarily L.Ed.2d 1469 vigorous period,’ just not in politics, economics and but in belles commented, Burger Chief Justice and in lettres ‘the outlying fields of so- Miller, repression spectre on political cial philosophies.’ the dissenting wrote: feared. He Justices “We do not see the harsh hand of cen- dissenting “The sound Justices sorship of good bad, sound or ideas — But, view, repression. alarm of in our ‘repression’ unsound —and political equate exchange free and robust liberty lurking regulation in every state political of ideas com debate with exploitation commercial of human in- exploitation mercial material terest in-sex.” grand conception demeans the of the Consequently, I believe that trial First high purposes Amendment and its judge, although law, following state went struggle in the It historic for freedom. too far in restraining the use of the thea- great guarantees is a ‘misuse legitimate tre for purposes. This I do not spech press free free .’ . . . do, think he could but I think he could en- Alexandria, Breard at usеd, sure if it was it would be for le- at [920], L.Ed. [95 gitimate purposes, and it not as had been. 335], ALR2d The First Amendment whole, protects which, works taken as a HEFLIN, Chief (concurring Justice literary, artistic, political, have serious : the result) value, regardless or scientific of whether I concur the result the majority peo government majority of a opinion disagree in this cause but with the ple rep approve ideas these works language attempts which cure the so- protection given speech resent. ‘The in called definitional infirmities Ala- the press unfettered was fashioned to assure judicial Light by bama Abatement Act Red bringing interchange ideas for the construction. changes de political about and social attempts majority opinion The to make United people,’ by sired the Roth v. State, reasoning in the Pierce v. 292 Ala. States, 484, supra, 354 U.S. at 77 S.Ct. 473, applicable (1974), 296 218 to the So.2d [1304], (empha at L.Ed.2d 1308 [1 1498] Light Red Alabama Abatement Act. Wisconsin, sis Kois v. 408 added). See Pierce, 230-232, engrafted by judicial this court at [2245], U.S. at 92 S.Ct. requirements construction the of Miller v. Thornhill 312]; L.Ed.2d 2246-2247 [33 California, 2607, 101-102, 15, 413 Alabama, U.S. 93 37 60 S.Ct. v. 310 U.S. at S. L.Ed.2d 419 Alabama (1973) to the 1961 [736], Ct. at 743-744 1093]. [84 L.Ed. Obscenity Statute to make it constitutional. portrayal public But of hardcore sake, sexual for its and for conduct own supr.a, California, Miller While v. substi- differ ensuing gain, is a commercial stringent prosecutorial tuted require- a less , ent matter. developed ment than the one from Roth v. States, 476, 1304, United 354 S.Ct. U.S. 77 evidence, or empirical “There is no 1 L.Ed.2d 1498 Memoirs v. (1957) and historical, century stern 19th 974, Massachusetts, 413, U.S. 86 S.Ct. censorship American distribu- (1966), regard literary, in relating display of tion and material artistic, values, political or it also scientific sex, supra, States, v. see Roth United limiting specificity addressed the issue of 482-485, at [1304], at U.S. necessary for criminal statutes to any way 1498], L.Ed.2d 1307-1309 [1 vague- withstand constitutional on аttacks expression serious limited or affected grounds. ness and overbreadth literary, artistic, political, scientific or majority opinion that the contrary, beyond it is states def- ideas. On the question Thomas initional infirmities in following that the era the Alabama Red portray sex, sexual conduct in by cured Light Abatement Act are which, However, patently way, taken I cannot find offensive construction. whole, by literary, opinion any language as a do not have serious majority artistic, political, Miller are add- or scientific value. requirements .which I assume question. ed to the statute guidelines “The basic for the trier of opinion majority is to that the intent of average be: ‘the (a) fact whether must limiting requirements of Miller’s engraft contemporary person, applying communi specificity to the Alabama work, ty that the standards’ would find language if such Abatement Act. Even whole, рrurient appeals taken as opinion to ac- appear majority in the did Wisconsin, supra, interest, Kois v. intent, would, nevertheless complish such I 230, 2245, quoting at at U.S. 92 S.Ct. not have the maintain that the court does States, supra, Roth v. 354 U.S. at United require- judicially engraft these right 1311; 489, at wheth (b) 77 S.Ct. [1304] specificity the Ala- limiting ments of describes, depicts in a er work Light Abatement Act. bama Red sexual conduct patently way, offensive applicable appears by in Miller: following specifically defined law, work, state whether (c) categorically set much has been “This whole, literary, as lacks serious taken Court, that obscene material tled artistic, political, or scientific value. We unprotected by the First Amendment. adopt do not constitutional standard Wisconsin, 229, 92 S.Ct. Kois v. val ‘utterly redeeming social without United Massachusetts, test of Memoirs v. ue’ Reidel, U.S., States v. at 91 S. at at 977 [975], 86 S.Ct. U.S. 1411-1412; Roth [1410], at v. United Ct. cоncept 1]; L.Ed.2d has never [16 States, supra, at U.S. more than commanded the adherence of ‘The First Four [1304], at 1309 * * * three at one time. See Justices Amendments have never been teenth supra, at a state law that regu 2613. If as absolutes treated [footnote omitted]’. limited, lates obscene material is thus Alexandria, at Breard construed, written or the First Amend at [920], and cases cited. See applicable ment values to the States Corp. Chicago, Film Times through Fourteenth Amendment are 47-50, 393-395, 81 S.Ct. protected pow adequately by the ultimate Wilson, (1961); Joseph Burstyn, Inc. v. er an in appellate courts to conduct U.S., [777], at at 780. dependent claims review constitutional however, acknowledge, We the inherent Wisconsin, necessary. when Kois v. See dangers undertaking regulate any to supra, [2245], at 408 U.S. 92 S.Ct. expression. form of State statutes de Massachusetts, 2247; Memoirs su at signed regulate to оbscene materials 459-460, pra, [975], at 86 S.Ct. must carefully limited. Interstate See (Harlan, J., at dissenting); Jacobel Circuit, Dallas, supra, Inc. v. at U.S. Ohio, U.S., lis v. at 84 S.Ct. 682-685, [1298], 88 S.Ct. at 1302-1305. ; [1676], (Harlan, J., dissenting) at 1686 result, As a permis we now confine the Sullivan, New York Times Co. v. scope regulation sible of such to works 710, 728, 284-285, depict or describe sexual conduct. L.Ed.2d Roth v. United specifically That conduct must be de States, 497-498, supra, 354 at S. by applicable law, fined state as J., (Harlan, [1304], Ct. at 1315-1316 authoritátively written or construed. concurring dissenting). * * * A state offense must also be which, emphasize limited to taken func- works as a “We that it is not our whole, appeal prurient propose tion regulatory interest to schemes for That must await their incorpo- States. con- court specifically now [T]his possible, legislative crete efforts. It is guidelines rates the Miller or tests here- however, examples give plain a few out tofore set into its cоnstruction of of what state statute could define for word ‘obscene’in 374(3). Section Thus part regulation (b) operation under the stand- provisions of the of Sec- supra: opinion, ard in this applicable announced tion in this 374(4) case is lim- depicts ited to matter which or describes “(a) Patently representa- offensive sexual regulated conduct. The matter descriptions tions or sex- of ultimate specifically more restricted to ‘Pat- (a) acts, perverted, ual normal or actual or ently representations ‍‌​​​​‌‌​​​‌‌‌​‌​‌​​‌​​​​​‌‌‌​​‌​​​‌​‌‌‌‌‌​‌​​‌‌‌‍offensive or de- simulated. acts, scriptions of ultimate sexual normal “(b) Patently representa- offensive perverted, simulated,’ or (b) actual or or masturbation, descriptions tions or ‘Patently representation offensive or de- functions, excretory and lewd exhibi- scriptions masturbation, excretory sup- genitals.” (Emphasis tion of functions, and lewd exhibition of the ” plied) genitals.’ (Emphasis supplied) requirements in Miller was One From Miller it was concluded that in designed regulate that the statutes ob- legislative absence language supplying overly matters but scene can not be broad necessary limiting specificity, some carefully legislative by must be limited act judicially state statutes could be construed judicial following or construction. by engrafting necessary to the statute the language Pierce reflects this court’s limiting specificity thereby pass consti- requirement: treatment of this fact, tutional Miller muster. seems to invite construction a method of Miller, attempted pro “In the court required supplying specificity limiting ‘positive guidance’ vide to other courts if language such is absent from the statute. obscenity The court dealing with issues. normally the providing While task of limit- recognized rthe inherent un dangers of ing specificity legislativе to a statute is a ex dertaking regulate any form of function, nevertheless, engrafted this court pression.’ Therefore, the court contin specificity such limiting to the 1961 Ob- ued, designed regulate statutes ‘[sítate scenity Statute because the U. S. Su- carefully must materials lim preme Court’s invitation to do so. by ited.’ The limitation mentioned first scope the court was the the staUite: majority opinion goes beyond Now the scope now the permissible r[lV]e confine designated statutes to control regulation to works which depict attempts make the Alabama Red sexual Further describe conduct.’ weapon against Abatement Act a “hard more, specifical conduct must be r[t]hat pornography.” Obviously, legisla core applicable law, state defined ture felt that act this was not an authoritatively written or construed.’ [as] passed in control statute. This act was guidelines succinctly in Other are stated 1919 and was on the books when the 1961 following language: Obscenity passed. Act was The 1961 Ob scenity possesses injunctive Act all of the majority opinion “The first issue this court must deal relief features which the give is Alabama would with whether the statute to this act. See Title [the §§ Alabama, Obscenity 374(5)-(11), as contains Code Statute] Recompiled necessary specificity required by (1958 as Mill- amended Cumula —1973 Further, Supreme in Miller tive is Supp.). Court there no invita er. U. S. Supreme judicial invites construction a method tion from the Court of the United specificity supply supplying required construction to States if * * * limiting specificity is statute. necessary such absent to this from 320 So.2d judi- limiting interpret Miller I statute. statutes engraftments cial construction Johnny Daniel BEECHER In re obscenity. specifically control designed is indeed broad question in

The act scope more so in its of Alabama. STATE comprehensive —much my Obscenity Statute. than the parte Johnny Beecher. Daniel Ex opinion beyond majority goes opinion the SC 1054. judicial construc- pale permissible ex-, Alabama. into the realm of over tion and crosses by attempting to drafting legislative elusive July 10, 1975. applied in reasoning as was apply the same Sept. 4, Rehearing 1975. Denied Pierce. why I cannot concur Another reason majority opin- given

the treatment of the residual

ion a consideration involves Red inure to the Alabama

effects that will judi- following Act such

Light Abatement engraft- Before engraftments.

cial broad, question was a

ments the act act,

comprehensive useful the State prostitution, assig- against

fighting battles opin- majority If the

nation and lewdness. requirements of Miller engrafts

ion act will have to be con-

this act then this in a much nar- in the future more

strued only restricted sense can

row and weapon against prostitution, as-

used as

signation pornography. hard-core scope given to protective

The former broad considerably by the

“lewdness” reduced

majority opinion. out, previously pointed

As was

Obscenity provides Act within its arsenal

injunctive relief from obscene materials. enjoin be used to

This act can picture obscene motion There films.

no transform real reason to the Alabama injunc- Act Abatement an into procedure

tive relief to combat hard-core

pornographic proce- films because such a

dure has been available since 1961. above, the reasons forth

For set I re-

spectfully specified disagree with certain

aspects opinion of the majority but feel result majority reached

correct. SHORES, JJ.,

BLOODWORTH

concur. trial Mr. notes Warrant, 717, v. Property Search 367 U.S. theatre, at the pictures he had tаken while 1708, 81 (1961). 1127 subject matter of testified as to the content expression unconditionally line between That testimo- foregoing each of films. guaranteed may legiti and that which be depicted, ny said films- tended to show that mately finely regulated Speiser is drawn. alia, intercourse, fellatio, inter cun- sexual ‍‌​​​​‌‌​​​‌‌‌​‌​‌​​‌​​​​​‌‌‌​​‌​​​‌​‌‌‌‌‌​‌​​‌‌‌‍Randall, 513, 1332, v. 357 2 78 S.Ct. lesbianism, group sex, nilingus, auto-eroti- (1958). L.Ed.2d 1460 fettishism, cism, ma- voyeurism, sado activities; sexual sochistic Although pictures motion are a expression' below State’s contention was that form of and within the shield Amendment, at the Fox of the movies exhibited constituted First United States v. public they Film, A a nuisance were “ob- Picture (2d Motion 404 F.2d 196 663 subject necessarily nimity of a of they authority not for multitude rea- 1968), are Cir. sons, modes of the more salient of warrant governing rules other which same Wilson, separate expression. v. 343 U.S. consideration. Burstyn 777, (1951). 495, 1098 96 L.Ed. 72 S.Ct. three re At outset we note nature unique of singularly Beсause of imposed by quirements the First Amend may be medium, picture de motion attempts upon any ment statute which thereby exceed the obscene nominated regulate obscene material: the burden protective (1) the First Amendment bounds of obscenity always rest with description proving must long written before State; (2) deter Fording, administrative action v. subject same matter. Landau 177, 820, mining aff'd matter to be must not have Cal.App.2d Cal.Rptr. 54 245 .obscene provision 2109, finality L.Ed.2d an air 18 must 87 S.Ct. 388 U.S. —there Bloss, review; prompt Mich. where People (3) v. 18 (1966); 1317 prior exists, More an restraint there im App. 410, 171 455 must N.W.2d over, has final issue mediate determination on the United States immunity Rizsi, obscenity. Blount expressly rejected constitutional v. ; films regulation for obscene Unit (1971) from state Corporation is ed simply Wright, exhibition limited Artists v. 368 because their F. Supp. Adult Theatre v. (N.D.Ala.1974); Paris consenting adults. States Gulf Richardson, Slaton, supra. Theatres Louisiаna v. ; (La.Sup.Ct.1974) So.2d 480 New Rivieria regulation So, although the State, Arts Theatre v. S.W.2d expression unquestionably le is (Tenn.Sup.Ct.1967). control, it does gitimate matter for state proof, In terms burden tra necessarily not that the doctrine follow public ditional nuisance doctrine vis-a-vis constitutionally public ap can be nuisance dilemma; obscenity poses a twofold (1) obscenity. Traditionally, plied continu proof, upon what is the (2) burden of public contrary to morals or ing activity Regarding whom does the fall. burden public decency have constituted nuisances. former, dichotomy there social State, Price v. 96 Ala. 11 So. ills against law State, (1891); Ridge Ala. v. are nuisance law directed. The definition Tucker, v. Mo. Hayden So. 742 (1921); separate al obscenity attempts test for Co. (1866); Amusement Federal protected by those materials State, guaranties ex rel. 159 Fla. Tuppen, So. expression; the aim of a freedom State, 12d 163 Tenn. (1947); Abbott action, hand, nuisance on other not Perkins on S.W.2d

Case Details

Case Name: General Corp. v. State Ex Rel. Sweeton

Court Name: Supreme Court of Alabama

Date Published: Sep 18, 1975

Citation: 320 So. 2d 668

Docket Number: SC 521

Court Abbreviation: Ala.