La Rue v. State of California

al., Buckit, RUE, dba the et Robert LA Plaintiffs,

v. CALIFORNIA, Edward

STATE OF Kirby, Dirеctor Alcoholic Bev- J. Control, erage Defendants. al.,* Scorpio, MacLEAN, et

Don dba the Plaintiffs,

The DEPARTMENT OF ALCOHOLIC

BEVERAGE CONTROL OF the STATE CALIFORNIA, OF Defendant.

Jerry JENNINGS, Sugar Shack, D. dba Ray- Rohm, Chee, A. dba Chee Erwin Rohm, Firehouse, mond dba Richard Warner, Carson and Robert A. dba Tus- Room, Seemaygro, Inc., can a Califor- Corporation, Sarong Gals, nia dba Rob- Poff, King, ert E. Grimes, 1st dba Edward Circle, Harry dba the J. Cole- Butts, man dba Dollie and Hi Everett L. Plaintiffs, Worlock, dba the KIRBY,

Edward J. Director of the De- partment Beverage of Alcoholic Control California, State John Can- J. ney, Depart- Assistant Director of the ment of Beverage Alcoholic Control California, Kelly, State of John A. Orange County District Administrator Department of Alcoholic Bever- age Control of California, the State of Meehan, Long James F. Beach District

Administrator Beverage Alcoholic Control of the State California, Q. Greene, Kermit Cren- shaw District Administrator of De- partment Beverage of Alcoholic Control of the State of California, Defendants. 70-1751-F,

Civ. Nos. 70-1770-F and 70-1782-F.

United States District

C. D. California.

April 7, 1971. * provided plaintiffs in The court was with additional names action. Hertzberg, Angeles, Harrison W. Los

Cal., for LaRue, Robert dba Buck- it and others. Wolfe, Boss, Warren I. Donald Los J.

Angeles, Cal., for Don MacLean dba The Scorpio and others. Moore, Scholtz,

Berrien E. Kenneth Gardena, Jennings Cal, Jerry dba D. Sugar Shack and others. Younger, Atty. Gen., Evelle J. Los Cal., Angeles, Stephen Deputy Porter, L. Atty. Gen., Francisco, Cal., San for de- fendants. ELY, Judge,

Before Circuit FERGUSON, GRAY and District Judges. MEMORANDUM OPINION FERGUSON, Judge: District the California obscenity case, in an declared: “The United States wisely recognized ultimately public taste must determine that which is offensive to it and that not; which is taste that sophisticated reject and mature will dull; offensive and the will good tawdry, its own sense discard having tawdry so, and ‍‌​‌​‌‌​‌​​​‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌​‌‌‌​​‌‌‍once done disappear production will because its profitable. and distribution will not be involving maturity Understandably, prohibiting does conduct law and, turpitude.” easily, quickly moral not come time the strictures of Victorian- when paragraph That constitution state replaced been wide ism have reject interpreted the con- has bеen swings extremism, hope- it seems pow- its tention of the lessly Noroff, People 67 remote.” denial, suspension and er over revocation 575, 791, 796-797, Cal.Rptr. Cal.2d 63 liquor and abso- licenses is limitless 579, 479, (1967). 433 P.2d 483 Department’s held lute. was by After statement California’s subject power over such matters highest court, surprising it is somewhat Kirby legislative enactment. reasonable years that a federal four district court Appeals Beverage Alcoholic Control upon later is called whether to determine 241, Board, Cal.Rptr. 1200, 71 Cal.2d agency may a state re- administrative (1969); Market P.2d Samson “fig quire by leaves” enter- to be worn Ap- Beverage Alcoholic Control Co. v. tainers California. Cal.Rptr. 1215, Board, peals 71 Cal.2d Big Boy Liq- brought (1969); pur- These three 459 P.2d 667 actions are Beverage uors, Con- suant to 28 Ltd. U.S.C. v. Alcoholic §§ 1226, 81 1983, by Appeals Board, and trol 71 Cal.2d vari- U.S.C. § (1969). liquor Cal.Rptr. holders of ous California licenses 459 P.2d 674 premises. and dancers licensed A 143.2, Department adopted Rules The three-judge court in ac- convened was August 143.3, 143.5, effective 143.4 cordance with 28 2281 and U.S.C. §§ Rules, are set The which enjoin 2284. The the en- actions seek to generally A, Appendix forth in state forcement of certain statewide rules premises on that certain entertainment by adopted Department of Alcoholic contrary by Department licensed Beverage Kirby, Control J. and Edward liq- public morals and welfare and parties, pre-trial its director. The any estab- uor license held at be n stipulations orders, acknowl- have where lishment such entertainment edged proper jurisdiction and venue provide: permitted. they summary, this court. (1) prohibits topless waitress- 143.2 — es. Rules in Issue (2) 143.3— Department pur- The is established suant entertainers; to Article 22 of the Section (a) prohibits nude That section Constitution. (b) regulates content of enter- provides part: ; tainment Alcoholic Bev- (c) requires certain entertain- erage Control shall have the exclusive stage. perform ers on a power, except provided and as herein regulates (3) сontent 143.4— in accordance enacted with laws movies. Legislature, the manu- to license (4) prohibits entertain- 143.5— facture, importation and sale of alco- city or ment which violates beverages State, holic and to in this county ordinance. occupation collect license or taxes fees challenged plaintiffs originally all The department on account The thereof. argument However, discretion, four Rules. at oral power, have the in its shall objections suspend any specif- in these deny, withdrew their or revoke (1) prohibit beverages actions to the license if Rules which ic alcoholic regu- waitresses, topless (2) good permit local cause that shall determine lations, (3) require granting certain enter- li- of such continuance stage. plaintiffs contrary tainers cense would be wel- morals, topless concede that person seek- thus waitresses fare or or that ing holding protection violated within a license has Attorney state Amеndment; must courts refused. ordinances have local General, furthermore, challenged depending has asked independently content; re- this court not abstain but decide and that their litigation. merits of the quirement entertainers certain stage invalid. is not must dance on It, therefore, appears therefore, is, required to The court ap doctrine of abstention should not be 143.4, (1) Rule determine whether obligation plied, and this court has the regulates un- movies, the content to decide another state case constitutional, (2) those whether before state have ruled.1 courts regulate portions of 143.3 which Rule However, litigation in order to entertainment the content of live proper focus, a discussion of the ob First, Four- prohibited Fifth and scenity pronounced by laws as the Cali teenth Amendments. Supreme Court, fornia as well as Supreme Court,

United neces States sary. Abstention Doctrine of mer- of the

Prior to the determination litigation, deter- it must be its of the Background stay its mined should whether this court 1965, pending determination. a dancer in a hand state court California nightclub Constantineau, 400 U.S. danced with ex In Wisconsin v. her breasts (Jan. posed. 433, The L.Ed.2d 515 California Giannini, in In 1971), re the invalidat- Cal.2d Cal. Rptr. relating liquor matters ed P.2d a state law held that Under she could not be convicted infirmities. due constitutional might ordinary circumstances, exposure either this court lewd conduct indecent proof adopted reasoning the Mr. Jus- absence of that her dance the have dissenting opinion, was The court tice obscene. stated: Black his unfair “I it is when he stated: believe accept prosecu- “Nor can we the permit to be courts Wisconsin to its argument sweeping tion’s that ‘stand- confining opportunity this denied the required obscenity prosecu- ards of an proper if it could law within its limits inapplicable tion are in this case’ be- state law be shown that there are other standing cause the ‘conduct alone provisions provide such that could clearly not unlawful’ and does become bоundaries.” 91 S.Ct. at 400 U.S. at engaged in dur- lawful ‘because it is 513. ing activity’ an would be af- which However, plaintiffs certain of the Amend- forded First and Fourteenth protections. appar- this action to state court have been ment Petitioner’s Rules, challenge many occasions to the ent consisted of the ‘unlawful conduct’ baring breasts; but to as- the state courts have refused of her the thrust of jurisdiction complaints. argument presumably sume over their since is that lawfully Attorney re- en- The California General has such could not be conduct juris- gaged any quested any place courts to assume in at and time state litigation presented diction and under all circumstances over but, here, rejecting request, protee- is not entitled to constitutional respect Judge Gray, all courts than With due Oalifornia less his dissenting Judge opinion reempha Gray, entertained but when the warrants significant points. First, sis of refuse to decide the is- two all California courts sues, parties present- agree those involved when issues are California sig orderly procedures under author- courts have to consider ed us refused law, questions ized we cannot abdicate our nificant constitutional which responsibility Second, parties until some in- confront us. all stitutional may definite time which never arrive. insist this court should resolve these majority’s respect issues. distinguished books, different formances performed in the tion when not until No- pictures. It performance. film and was a theatrical context legislature en- 1970 that the vember took of course here conduct 311(g) of the acted Section performance during theatrical place Code, first time which for Penal We an audience. before of a dance the am- placed within entertainment live explained previously have obscenity statutes. bit protection. enjoys constitutional dance parts asserted turns proper issue here therefore do alleged invalid because con- Rules are unlawful on whether enact- statutes to the inextricably part of conform duct, light Legislature pro- ed the California dance, forfeits constitutional trilogy interpreting relation- alleged obscene its tection because legislature ship De- and the between nature. (Kirby, partment Market Co. Samson conduct questioned “To isolate Inc., supra). Big Boy Liquors, entirely differ- judge it in an However, which does issue is one na- to distort ent context would and, the Federal Constitution not involve fictitiously By case. ture of therefore, court. is not before this place of its changing manner and prosecution would performance the meantime, In the law enforcement although in criminal conduct make the agencies upset the decisions were with its manner the actual Su- of the United States and California performance the conduct should obscenity. preme field of Courts by constitutional standards. tested May Department In of Alco- of began Beverage hearings on in a are unlawful holic Control acts which “Thus circumstance, subject context, which are the of this Rules different agencies, litigation. incorporated depicted Law enforcement place, stage presentation premises and counsel and owners of licensed or screen investigators protection Department of the for within come Amendment, losing protec- story unfolded testified. The was First one, relating primarily only Re- to if found to sordid sexual be obscene. tion spondent’s automati- conduct dancers and customers. contention would between reading obvious, cally reject application the law It of the tran- after Department It obscenity scripts, why instant case. to the this is of if adjudicate adopted requires conduct as certain Iser’s Rule which would stage, stage perform performed on the entertainers to on a not were dance, incorporated away in a and not least six feet customer. not a why plaintiffs the en- It Yet is also form of communication. obvious objection to thаt point case is that the have abandoned their tire of the very person No could claim in that context.” Rule. reasonable duct occurred have a that entertainers and customers Then, pro Robert Barrows G. right engage in such constitutional Hollywood, play one-act duced a lounge. conduct in a cocktail play ended “The Beard”. named However, reading pro the tran- act, a fair sex with a simulated hearings scripts requires for vio of the the con- ducer and actors were arrested only de- lating in clusion that the not Penal Code Sections California obscenity. prohibit volving disorderly conduct between sired sexual conduct and Court, customers, in Bar dancers and but wanted The California cir- establish a set of rules which would Municipal Cal.3d rows v. cumvent and California Cal.Rptr. 819, United States 464 P.2d relating to ob- disorderly decisions statute conduct held that the transcripts scenity. Excerpts performers, from the pertain did not to theatrical must Appendix existing contained in B. ob are that the then by displeasure scenity initially, per- encompass be stated did live laws by agencies required state ad- der the standards Su- enforcement law agencies preme deci- with court Court. ministrative scope interpreting the First sions summary obscenity A laws is provide basis Amendment cannot States, provided in Roth United against agencies en- adopt rules those 476, 488-489, 1304, 1311, 1 U.S. 77 S.Ct. protected those which is tertainment (1957): L.Ed.2d 1498 decisions. leading early standard ob- scenity judged allowed material to be Regarding Obscenity The Issue of merely by ex- the effect of isolated an Movies cerpt susceptible upon particularly and conduct without film, duction of Rule 143.4 still pictures certain prohibits or other portions regard visual showing whether repro- body courts persons. L.R. 3 decisions have adopted Q.B. Regina this standard but rejected Some Hicklin, it and American substi- ^[1868] later portrayal obscene. such visual to the tuted whether test: average applying contempo- person, per careful not to must be One rary community standards, domi- per analysis mit of a theatrical one’s taken as a nant theme the material view his formance be clouded prurient appeals interest. whole con nontheatrieal the same conduct test, judging The Hicklin regulate may certainly text. The state passages upon effect isolated both, standards but the constitutional might persons, susceptible the most quite applied are to each that must be legitimately encompass well material fall While both within different. sex, treating it must be with and so per state, police power theatrical unconstitutionally rejected restric- books, formances, pictures and as well as speech tive of the freedoms films, protection of the within the omitted.) (Footnotes press.” ob unless Amendment A Mem- Book “John Cleland’s Named scene. v. Massa- oirs of Woman of Pleasure” Wilson, Burstyn, Joseph In Inc. v. 975, 413, 418, ‍‌​‌​‌‌​‌​​​‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌​‌‌‌​​‌‌‍chusetts, 383 86 S.Ct. U.S. 495, 77, 96 1098 343 U.S. 72 L.Ed. S.Ct. 977, (1966), Court 16 L.Ed.2d 1 the (1952), specifically held that the Court held: pictures motion the free are within this оbsceni- “Under definition [of guaranties speech press the of and free cases, ty], subsequent in as elaborated and Amendments. Fourteenth coalesce: it must three elements must recently, Appeals for the of More Court (a) the dominant be established that held, Pit the Ninth in v. Circuit Pinkus of taken as theme material chess, 1970), (9th 429 F.2d 416 Cir. appeals prurient interest in whole to a Pinkus, aff’d 400 sub nom. California v. sex; (b) patently the material of- is 922, 185, 183 U.S. L.Ed.2d 91 27 S.Ct. contempo- fensive because it affronts “stag” (November 23, 1970), relating rary community standards and movie of a woman who disrobed description representation or of feigned type some sexual satisfaction of matters; (c) and the material sexual from self-induced is not obscene. acts redeeming utterly is without social may, of of State California value.” course, prohibit movies. That obscene not the issue here. The issue is whether It is clear from these cases that regulate may or not portions the con- the state isolated of a cannot be moviе by prohibiting tent of movies those of whole. extracted out context expo- depict conduct, uniformly To certain do so has con been portions body, Supreme sure of without Yet demned Court. factually exactly requirement Department’s movies what regulation legally Moreover, and un- determined to be obscene does. it fails to 354 * * * js redeeming perhaps any possible social dance consider spontaneous earliest taken a whole and most mode the material as value expressing way contemporary feel- com- emotion and dramatic in no takes and ing; great variety munity it exists into consideration. standards among people and is some forms require- regard the social In value religious prac- nected with belief and Georgia, Court, Stanley

ment, tice, among the Mohammedans and 1243, 566, 1248- 557, 89 394 S.Ct. U.S. Hindus.” 22 L.Ed.2d 542 stated: case, Barrows, supra, In that and it that obscene mate- “Nor is relevant held particular general, films rials dancing performances and live thеatrical arguably before the devoid are within the First Amendment. any ideological line content. the transmission between of ideas performance in- of the dance “[T]he too elu- dubitably mere entertainment is much represents pro- a medium of draw, sive for if indeed expression. this Court tected take one To but such a line obviously can be drawn at all.” example, typifies the ballet expres- a form of entertainment Assuming under the California sion that involves communication Constitution feelings. ideas, impressions, and Sim- showing power prohibit ob- ilarly, vulgar dancing, Iser’s however premises, it scene in licensed movies tawdry might content, in- well specifical- not use a test which was volve communication her audience.” ly rejected ago years Cal.Rptr. at Cal.2d Court. 446 P.2d at 540. Regarding Obscenity The Issue Live significance is of no that ex Entertainment pression protected by which is the First regulates Amendment takes a commercial Rule live entertain- 143.3 setting. Books, Sullivan, Bantam prohibits Inc. v. ment certain conduct exposure. previously, 372 U.S. L.Ed.2d it As stated (1963); California, Smith 361 U.S. well settled that theatrical entertainment (1959). protection 80 S.Ct. L.Ed.2d 205 falls free within the protection it speech-free Nor does lose its due to the press provisions of the First presented fact in an unusual Amendment, applicable made States, United through Schacht v. states manner. the Fourteenth Amend- 58, 1555, 90 L.Ed.2d 44 See, g., Ohio, 398 U.S. S.Ct. 26 ment. e. 378 Jacobellis v. (1970), per 184, that a 1676, Justice Black stated 84 793 U.S. S.Ct. 12 L.Ed.2d though (1964); Kingsley formance is a theatrical one even Corp. Re Pictures v. performed gents, in 684, 1362, it is not a conventional L. 360 79 3 U.S. S.Ct. There, a Giannini, way place. in a conventional (1959). Ed.2d 1512 In In re 655, 563, 567-568, troop performed induc Cal.Rptr. 69 mime outside an Cal .2d 72 station, tion Court held 658-659, (1968), the 535, 446 P.2d 538-539 acting in theat the that its members were a stated: Court production. rical stated that The Court “Although the Su- United States always productions “theatrical need not preme pre- not ruled on the buildings performed a be in or even on question performance cise whether the stage. defined area such as a conventional potentially of a dance is a form they by profes performed Nor need be against protected communication state heavily or financed sional actors be guarantees intrusion the the elaborately produced.” U.S. First and Fourteenth Amendments 90 S.Ct. at 1558. Constitution, very the def- federal the Nevertheless, Department inition of dance it an ex- the describes as not pression is tends live entertainment emotions ideas. that Rule, dancing, protection pertains speech First The as it the of the within decision, Amendment, relies States runs afoul of the Roth on United as does pertaining 88 S.Ct. the Rule While O’Brien, v. 391 U.S. to movies. O’Brien, may (1968). prohibited the In both be if are ob- 20 L.Ed.2d 672 burning scene, may prohibited conviction for neither unless a be Court affirmed obscenity spite is in of the assertion the constitutional a draft card test sym- may his isolated not taken action was met. One act be defendant the However, whole, involved speech. out of context from and to be bolic O’Briеn the regis- obscene meet of a service considered the whole must destruction selective dealing three-pronged Ain set forth certificate. We are test tration or destruction when Book Named “John Memoirs of with violence Cleland’s Massachusetts, nothing subject more theatri- than the a Woman of Pleasure” is dancing. performance cal 16 L.Ed.2d U.S. (1966). O’Brien, set forth in course, sexual Of between conduct regulation tests which a four individual hardly dancer and a be customer could (1) it must in this must meet: area performance termed a theatrical power the constitutional within protected Amendment. First governmental agency; (2) fur it must stage Hopefully, requirement set govern important or an substantial ther 143.3 desired forth Rule will have the interest; governmental (3) mental prohibiting effect of such conduct. sup interest must be unrelated (4) pression expression; of free Public and Morals Welfare Amend restriction incidental greater study than must ment freedoms It is evident from a of the tran- public hearings scriрts to the furtherance is essential Department enacted Rules in an at- interest. laws, obscenity tempt to circumvent regulations It seems clear prohibit as as to between well contact require- question do not meet here dancers and customers. light pre- of O’Brien. ments Department claims stipulation, it is uneontested trial governmen further legitimate Rules substantial interests state none of interest, protection York, tal such as Redrup New summarized B-girls, welfare morals from 18 L.Ed.2d 87 S.Ct. U.S. prostitution, protection narcotics and the in- field of Department of minors. The asserts present Minors are in the case. volved problems are alco those increased when not allowed to. view the entertainment. possible hol and stimulation sexual “pandering” is no and the enter- There present premises. Nar within the same presented way tainment prostitution cotic and unwilling violations not forced individu- prosecuted criminal course be under als. statutes, certainly but cannot be used Morеover, governmental interest impose censorship without vehicle which the seems to assert obscenity. complying with the law on directly suppression to related pre-trial stipulates it that The order very may what well free be non-obseene disputed pro- plaintiffs is not that expression. resulting The restriction in their the attendance of minors hibit First Amendment considera- freedoms is establishments, they cause that bly greater than is essential to the ‍‌​‌​‌‌​‌​​​‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌​‌‌‌​​‌‌‍fur- policed to premises and customers to be legitimate therance of interest state The of minors. insure the nonentrance could, since the as has been un- pre-trial order the further sets forth Legislature, dancing done limit (1) can- disputed facts that premises, prohibition its outside obscene entertainment. not be viewed 356 Anne,

(2) persons In are warned at the en- Carroll v. Princess 393 U.S. type 347, 21 325 of entertainment 89 S.Ct. L.Ed.2d trances conducted, (3) (1968), despite in- there the fact that the case therefore, violence, is, clear pandering. volved thе threat of the Court no legitimate against inter- state held that that none of the while sanctions plaintiffs Redrup may v. New of criminal take the form ests summarized prosecutions York, 87 valid 386 S.Ct. for U.S. violation (1967), laws, may 515 are involved L.Ed.2d not take the form 18 showing prior censorship, present action. in an absent adversary proceeding of a clear may entertainment Theatrical present danger. prohibited without a constitution not Justice Mosk of Su- the California obscenity the state deems test because al preme Court, Municipal in Burton v. necessary protect public it welfare 684, 696, Cal.Rptr. 68 Cal.2d 68 That decision was made and morals. 721, 728, suc- P.2d Georgia, Stanley v. cinctly stat- answered the issue when he pra: su ed, “It is clear Amend- that where First yet, “And in the face of these tradi- rights ment the statute it- concerned liberty, tional notions of individual self and not the evidence in an individu- Georgia right protect asserts per- al case establishes the boundaries of ” * * * mind individual’s from the effects missible conduct. obsсenity. We not certain that adopt A state is not free to whatever argument anything this amounts procedures dealing pleases it for with more the assertion than the State obscenity. Warrant, Marcus v. Search right has the control the moral con- 717, 731, 367 U.S. L. thoughts. some, person’s tent of a To (1961). Dancing always Ed.2d 1127 may purpose, be a noble it is but presented problem it to those who see wholly philoso- inconsistent with the representing perils pagan memo * * * phy of the First Amendment. Amendment, however, ries. The First Georgia recognizing concepts directs that

“Perhaps this, welfare morality may prohibit exposure a dance asserts that to obscene mate- may appear matter how rials lead to immoral deviant sexual be- be, unless it violates an statute havior or crimes of sexual violence. Clearly Roth. appears meets the test of empirical There to be little they pertain Rules as to entertainment basis that assertion. But more were, fact, do important, not meet that test and only if the State is designed to printed cerned circumvent it. about or filmed materi- inducing conduct, als antisocial be- we private lieve the context of Twenty-First Amendment consumption of ideas and information Argument we should adhere to the view Twenty-First Section Amend- ‘[a]mong men, free the deterrents or- that; provides ment dinarily applied prevent to be crime transportation “Sec. 2. or im- punishment are education and for vio- * * portation any State, into Territory, or

lations Whitney of the law *.’ possession of the United States for de- California, 357, 378, 274 U.S. S. livery intoxicating or use therein of 641, 649, (1927) Ct. 71 L.Ed. 1095 liquors, in violation of the laws there- J., concurring). (Brandéis, Emer See of, hereby prohibited.” son, Theory Toward a General (cid:127) Amendment, Catering Yale L.J. Corp. Colonnade United (1963).” 938 394 565-567, States, U.S. 72, 774, at 89 397 L. U.S. 90 S.Ct. 25 1248-1249; (Footnotes S.Ct. at (1970), Douglas omit Ed.2d 60 Mr. Justice ted.) regard regulations held liquor in to

357 “discouragements” undoubtedly unquestioned have the government has an the upon exercise of same coercive effect the legislаtion right assure to to enact rights imprison- government First Amendment over taxing power the the injunctions. ment, Wis- American industry fines effective. liquor the Douds, 433, 339 U.S. 91 Communications Assn. v. Constantineau, 400 U.S. consin v. 19, 402, 382, 674, 94 925 70 L.Ed. 507, S.Ct. (January 515 27 L.Ed.2d S.Ct. (1950). Thus, agency cannot police power of state 1971), that the he stated power issue, intoxicating its exercise constitutional liquors was over the states liquor renew or revoke the licenses for extremely prior to the Twen- broad even purpose censoring Amendment, citing whatever it believes v. ty-First Crane 98, to be undesirable To 304, 62 al- Campbell, entertainment. 38 S.Ct. 245 U.S. by low this would allow circum- (1917). states to Yet it was stated L.Ed. 304 protection provided by vent the Justices, including First the dissent- all those who indirectly Amendment and abstention, do that which ed on the doctrine of directly. do cannot regulating in the interest of a state liquor Due business cannot override the

Process the Fourteenth Clause Obscenity by Must be Determined If Amendment. it cannot override Courts clause, certainly it cannot override explicit Supreme in Amеndment, always re- which has terms, has stated of ob issue “preferred among position” ceived a scenity by must be determined granted liberties v. to all of Thomas us. merely by courts and not administra an Collins, 529-530, 516, 65 S.Ct. U.S. meaning agency, tive no matter how well (1945). 89 L.Ed. 430 it is. All of the cases cited to the court Maryland, In Freedman v. 380 U.S. interpreting the Twen- 85 S.Ct. L.Ed.2d ty-First Amendment inter- involved the system any the Court held that of cen- relationship of that Amendment with mimimum, sorship contain, must import-ex- the commerce clause and the following safeguards procedural it if port clause of the Constitution. is not to the First and Fifth contravene clear that other clauses the Constitu- prior (a) Amendments: restraint may tion not be used to restrict obsceni- judicial imposed determination must be ty complying without with the standards go only briefly; (b) the censor must established See Court. specified period; court in a brief Rizzi, Blount S.Ct. v. 400 U.S. (e) safeguards contained must be (1971). 27 L.Ed.2d 498 by judi- supplied the statute itself or be cial rule.

While it is true that one does right Rizzi, supra, not have In Blount an absolute the Court receive liquor license, strengthened equally requirement that even true that only state cannot noncriminal an unconstitutional cases courts precondition authority possession de- on the of those have the constitutional judicial obscenity, re- licenses. As the noted termine and that Court Verner, 83 view must be a swift one. There Sherbert U.S. (1963): Maryland, 1790, 1794, cited su- Freedman v. 10 L.Ed.2d pra: that, teaching day ‍‌​‌​‌‌​‌​​​‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌​‌‌‌​​‌‌‍“It of our cases is is too in the doubt that late * * * only judicial expression because determination liberties of infringed adversary proceeding an ensures the denial of necessary sensitivity placing upon of ex- conditions a benefit or freedom privilege.” pression, only procedure requiring a re- direct The fact that no judicial impose punishment imposed straint or determination suffices to speech not deter- a valid final restraint.” U.S. at exercise of does speech question. Indirect at 739. mine the free 85 S.Ct. adopted by Department perform; Rules (d) adoption The must and Beverage totally regulations they are provided comport

of Alcoholic Control local any requirement De- void of with the United States Constitution are any judicial partment challenged. seek review of ob- very judicial scenity. limited in- provisions Pursuant to the of Rule 52 volvement set forth in California Procedure, of the Federal Rules of Civil and Business Professions Code § opinion findings shall constitute the provides which that: of fact and conclusions of law “Any person by affected or- court. a final Beverage der of the Control [Alcoholic Pursuant to Rule the Federal * * * Appeals Board], may, Procedure, judgment Rules of Civil -» * * apply to the shall entered in each of the cas- three ap- appeal or to the court of for the against plaintiffs es in favor and pellate proceed- district in which the the defendants as follows: ing arose, for writ of review of such Displays— “1. Rule 143.4 —Visual final order.” adjudged to be in of the violation fact, First, previously, In as set forth Fifth and Fourteenth Amend- designed Rules were ments of the circumvent cоurt Constitution the Unit- dealing States, ed decisions with and and to the defendants en- judicial joined enforcing eliminate from the same. determinations. That constitutionally impermissible. “2. Rule 143.3 —Entertainers adjudged Conduct —is to be viola- procedure set forth the Rules First, tion of the Fifth and Four- and the California Business and Profes- Amendments, teenth pertains as it requires sions Code the licensee to chal- entertainment, live and the defendants lenge Department the decision of the enjoined enforcing same. suppress obscenity. This method was injunction pertain This does not Rizzi, supra, condemned in Blount v. any sexual conduct an enter- between “the scheme statutory provision has no tainer and customer. requiring governmentally ju- initiated participation dicial procedure in the party “3. Each shall bear its own * * any procedure or even assur- costs. ing judicial prompt review”. jurisdiction “4. The court retains Judicial review of the decisions of provisions judg- to enforce the of this Department apрellate is limited to ment, purpose issuing for the or- (California review Business and Profes- clarify, modify any ders to or amend sions Code 23090-23090.7), §§ which provisions hereof, of the all does not meet required the standard purposes.” other Freedman Maryland, supra, Rizzi, supra. Blount v. APPENDIX A “143.2 Attire and The fol- Conduct. Summary lowing prem- acts or conduct on licensed contrary ises are deemed wel- summary, [II] we hold that fare and morals and therefore no on-sale Rules of written, as any premises license shall be held at prohibit the content of movies permit- where such conduct or acts are entertainment, live are void for the ted: reason that do not conform to the tests established “(1) any employ person United States To or use parts Court. The other in the or service sale of alcoholic bev- Rules, namely, regulate (a) erages those prem- in or licensed waitresses; (b) attire of person the con- ises while such is unclothed performers duct customers; between attire, clothing in сostume or (c) where expose portion certain entertainers view “(2) Subject top provisions ar- of the to the of below female breast portion pubic hereof, any (1) subdivision entertainers eola or of buttocks, hair, anus, vulva whose buttocks are ex- breasts cleft and/or posed only upon genitals. perform to or view shall stage at least 18 inches above the employ “(2) or use services To immediate floor level removed at person min- any other to or hostess patron. least six-feet the nearest gle host- patrons such while with the any person person or permit unclothed “No or licensee shall ess other clothing de- attire, or use such costume to devices or inanimate artificial ob- (1) paragraph jects depict any above. prohibited scribed in to of the ac- tivities described above. any encourage permit “(3) or To premises to person any person licensed permit on the “No shall licensee breаsts, touch, prem- fondle or caress to remain in licensed or any genitals buttocks, any other exposes por- or public anus ises who to view person. genitals tion of his or or her anus. “ any employee per- (4) or permit To any provision “If or of this rule any cover- device or son or use to wear any application person or cir- thereof to ing view, exposed which simulates to invalid, cumstances such invalidi- held anus, pubic or genitals, hair breast, ty provisions shall affect other or any portion thereof. giv- application of which can be the rule provision effect invalid any this or en without provision “If rule provi- application, any person cir- or application or and to this end to thereof invalid, sions of this such invalidi- rule are severable. held cumstances is provisions ty or affect other shall not Displays. “143.4. The Visual follow- giv- application can be the rule which ing premises acts or conduct on licensed provision the invalid without en effеct contrary public are deemed to welfare provi- application, end the or morals, li- and therefore on-sale sions rule are severable. of this any premises cense shall held at permit- and Conduct. where conduct or acts are Entertainers “143.3. premises in licensed ted. or Acts conduct are deemed this rule violation showing film, pictures, still morals, trary welfare reproduction, or other electronic visual held shall be on-sale license therefore no reproductions depicting: any or premises such conduct where “(1) or acts of sex- Acts simulated permitted. acts are masturbation, intercourse, sodomy, ual permitted on “Live entertainment bestiality, flagellation copulation, oral except any premises, that: licensed prohibit- any or sexual acts which are any permit “(1) shall ed law. licensee No person perform of or acts acts being touched, “(2) Any person ca- which simulate: breast, or ressed fondled on the but- genitals. tocks, intercourse,

(a) anus or masturba- Sexual bestiality, copula- tion, sodomy, oral “(3) person Scenes wherein dis- flagellation acts tion, or sexual plays the or vulva or the anus prohibited law. which are genitals. caressing touching, (b) or “(4) wherein artificial de- Scenes breast, buttocks, fondling on the objects are vices or inanimate em- genitals. or anus drawings ployed depict, are em- ployed portray, any prohibit- displaying pubic (c) anus, genitals. hair, ed activities above. vulva or described any provision or the of this rule revised Cafe Entertainment Ordinance “If City Angeles, any person or cir- has application of Los thereof through prompted primarily invalidi- recent is held invalid such been cumstances provisions ty affect other court decisions. The Barrows Case shall not giv- 30th, January compelled application of the rule which can be us per- provision or our cafe entertainment without the invalid re-examine en effect ordinance, provi- process application, is in the and to this end the mit and this fact, a of it’s rule are of As matter sions of this severable. revision. going upon by police our acted Notwithstanding “143.5. Ordinances. afternoon. commission tomorrow any provisions of Rules 143.- 143.4, licensee no on-sale 143.3 and taking position that “The main we’re of, per- employ, use the or services shall regards nudity subject in loca- as the of premises, en- licensed mit his Depart- by the tions that are licensed person attired as to be so tertainment Control, Beverage ment of Alcoholic county any city ordi- in of violation compelling there is a need a nance.” separation from the of the entertainer position And non-entertainer. this B APPENDIX experience had in based on that we have during years, past the one and a half I the which time we’ve seen advent growth in our the of nude Captain entertainment Testimony Robert Partial of city bars. Angeles Police Devin the Los of Department novelty topless fе- “The former of a replaced performer male has now been Mr. ROBERT A. DEVIN: “CAPT. by performer. the Our first bottomless myself. Chairman, I’d like to introduce knowledge experience, lo- our first Devin, Capt. of Robert commander I’m type in in cations of this were existence the vice division administrative Angeles approximately in Los February occurred Angeles Department. I have Police Los opinion, of In our this police department member of the been a Su- arose because State City Angeles past for the in the of Los preme Court decision that followed years. twenty-one I a half have rules, prior im- federal of the stated two assignment assigned my current been recogni- portant gave it items. No. of the administrative as the commander expres- as a form of tion the dance past a half for the one and vice division sion, be- as a form of communication my responsibilities years. Part of audience, performer the tween and the coordination, prob- reviеw of stated, effect, the dance obscenity pornography and lem of constitutionally protected the first under Angeles. City throughout of Los amendment. And in the absence of capacity, I formed have some And showing obscenity, dance that a was opinions. I documented I believe have constitutionally protected. And second- position am I about to state showing arily, imposed, part it as in- to share group, and I’d like this necessity people, for a new the rules committee formation with morning. standard, contemporary community declare to be that standard would Angeles Los Police of the State of California. standard changes supports rules all three of the statutory law has availa- “While been proposed. feel there is that are We formerly regulate to us to was ble what regulation need for a measure behavior, antisocial considered as rather, field of live entertainment — has, system judicial federal and state nudity pertains en- field of live as decisions, through ef- of similar a series Coincidentally, City of tertainment. fectively enforcement Angeles emasculated law at this time Los is embarked dancing. and to control And almost all of these its effort to contain cases performances growth pornography, and of involved which were proper perspective. and of behavior tion Partial to tions gentlemen. this kind of Mesa Police sively as to these establishments served to your promulgation Costa Mesa of Costa and I am the ever, some dissolute tion of entertainment. Attorney “MR. ROY E. JUNE: ^[******] 647(a) have not been as relating circumstances, prosecution. vigilant and reasonable attention Testimony we Mesa, and I am here conduct, performance.” could in 1967. of City My name is to City Attorney to support these activities Council of topless and bottomless City Penal II of rules and We no but Roy is associated with can use it under longer generous. Code, Good by the Costa Roy Costa E. courts, for the director der Junе, City as exten- lewd and morning, E. available in their Mesa further City regula- direc- June, how- City Sec- in of or Section 314.1 posure partment These are the ments. were terms of the criminal from the They less-type involved ing scene, under which these cases were use words such as ecuted bikini-type conduct covering. Code, eases dances, lute,’ doubt. a dance had to be ducted on consider what a conviction means in Penal Code statutes. in which approximately but Section and it had to be filed some As statutes. Most was obscene As of and indecent totally of Alcoholic these words have been dancing. waist proven almost all premises To you bottom were of involved 647(a) the dancer convict under the January nude which I lewd and up ‘lewd,’ ‘lewdly,’ ‘disso- doubt and then be either without licensed beyond There were 134 convictions dancing bar-type Beverage law. Most of the the dance was ob- exposure topless-type proven that 1st, 1970, personally pros- know, of would wear Now, under Penal then indecent Penal Code. a reasonable the dances or bottom- establish- the lewd we filed, Control. statutes statutes applied, exposed sort held a few there danc- have De- un- ex- of to synonymous the Pe- There- “Portions Section of with obscene. be 615% fore, Code, exposure, prove nal is not as a violation on indecent there was law, prove prosecution as it in available to the was criminal we had to obscenity year There been inroads the three elements of have prove established, these on these and cases. were beyond rea- elements were established “Regulation entertainment, un- of live doubt, each to a reasonable sonable and un- less so broad to be cumbersome beyond certainty. doubt, and a moral workable, longer is no available are, The three elements remains, prosecution. think, for the I one, were the dances sub- number Beverage Control Board ef- Alcoholic bеyond stantially customary limits of fectively regulate topless and bottomless community, in the and the Su- candor dancers, pornographic films dis- held preme United States played in these establishments.” communi- case that in the Giannini ty which was relevant was entire III Secondly, it had to State California. Testimony appeal predominant Hirsch Partial Richard C. be shown that Angeles interest, the Los prurient the dance was to office of Attorney County District morbid inter- and that shameful nudity, And or excretion. est in sex Angeles County “In the Los Dis- shown, beyond third, it had be Attorney’s approxi- trict office filed involving doubt, mately of these stand- each 781 cases bottomless reasonable trial in which prosecute and the statute or not the ing. fect, and ny this is the es, case most of We have to send a ly, court. have a bottomless say, tance. “Take ards, utterly a citation issued present the defense there is taken on ^[******] the owner of a would And separate trial. defense on an without * * * on its prosecution the defensе Generally that demurrer. the dances material, average then be a ordinarily expert pretrial aiding face requests a the redeeming procedure be dance case and what would demur to the statute deputy to establish whether part case. is unconstitutional. the dance in establishment who brought most of the dancer. hearing is, in grounds It’s a full-blown of the defense Then, question pretrial abetting, into social Suppose we find in these cas- quite into the that the testimo- court to general- happen, impor- ques- there hear- And, were ef- we court. individuals from the sort of but, who come in and that would plus in that many parts, many welfare in to devote fessional the cost of a case that there much it cific totals ed “MR. HIRSCH: I don’t have “MR. SEXTON: the number generally paid. They in type of per the fact that need that the—or a considerable amount of take. course, These compensation might day, of entertainment. this witnesses, psychiatrists asking that, wondering for are jury concernеd about the And I fees totals there is that amount cost the type you, first you expect expert days will trial is in a criminal Well, but I available cases can think it for their time in arts amendment cases testimony.” taxpayer vary that these witnesses figure I would assume man-power psychologists, was expense receive usually pro- as to what would interest- any spe- amount, that out to have theater money, cases must some also, how constitutionally protected. tion At is GRAY, Judge WILLIAM P. District time, judge that rules on the whether or (dissenting): constitutionally protected. not it’s If he constitutionally protected, It rules it is not seems to me that this is a case it practice which been the for the case to our court should abstain until the go writ, up prohibition on a or courts of oppor- mandate California have had an appellate department tunity at that to time consider the constitutional is- time, Superior Court. At that sues here we concerned. This conclusion appellate deputy rep- ‍‌​‌​‌‌​‌​​​‌​​‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‌​​‌‌​‌​‌‌‌​​‌‌‍have an reinforced who would Su- decisions preme appellate depart- Younger resent our in the Harris, office Court in v. 401 37, 746, ment on Then U.S. the case will 91 case. S.Ct. 27 669 L.Ed.2d (1971) often than not come companion more back to the and its five cases1 time, trial At that court. we will en- were all day, decided on the same gage trial, jury and in a full either or court which after came Wisconsin Con- v. trial, anywhere may stantineau, 433, 507, last a which from 400 U.S. 91 S.Ct. days And, few to week or more. of 27 upon a L.Ed.2d 515 which course, being deputy majority opinion a involves tied here true relies. It is up period Younger court this entire companion and its cases So, is, case, pos- time. there on each were concerned with whether a United great sibility being deal enjoin a of time ex- States District Court should cur- a pended by deputies pro- rently pending trial in these prosecution, state criminal ceedings. which is a somewhat different issue Boyle Landry, 77, Dyson (1971) ; Stein, 401 2d v. U.S. 701 S.Ct. v. 401 U.S. 758, (1971) ; 769, (1971) ; 27 L.Ed.2d 696 Samuels 91 S.Ct. 27 L.Ed.2d 781 Byrne Mackell, Karalexis, v. U.S. v. 401 U.S. 91 S. ; (1971) (1971). Perez 27 L.Ed.2d 688 Ledes L.Ed. 792 Ct. ma, 401 U.S. 82. 91 S.Ct. 674. 27 L.Ed. day necessarily However, carry in de- not does here involved. the one ciding opinions tois this case. principal of those thrust judge we suggest courts to our three may Dancing fig very without leaves give consideration increased should expression well a form of artistic be comity, concept embodies which the “ protected by But First Amendment. * * * respect for state proper right not For exam- such a absolute. * * * and a continuance functions power, ple, state, police under its the National Govern- of the belief certainly prohibit dancing on could nude and the States if will fare best ment campus corner or of a street per- free to left institutions their junior high within the school. is also in their separate functions their form police power prohibit all alco- sales * * * ways. What separate beverages impose reasonable holic system in which cept represent is a does under the conditions restrictions legitimate sensitivity in- to the there may made. be such sales аnd National Gov- of both State terests acknowledge things, ernments, the National I do in which If we these though beyond Government, it not think it the constitu- anxious rights right California, through protect federal its tional to vindicate interests, agency, say, always endeavors in its administrative wis- federal unduly wisdom, in- ways not dom or lack of that lewd na- will to do so legitimate dancing (even though activities ked not necessari- with the terfere Harris, ly obscene) Younger serving U. and the of alcohol do the States.” although properly mix, 37, 44, 27 L.Ed.2d and that not 91 S.Ct. S. person may other, present (1971). me seems to one or he This princi- may apply this do good not same both case which time. ple. just as able courts The California indicates, majority opinion As the consider whether are we to regulations prohib- is conceded that square

subject regulations with iting personal direct contact between They Constitution. States United employees customers and naked opportunity given the so should stitutionally opinion enforceable. persuadеd do, I am means suggests also so because de- them to have this record shows such contact and what result there- responsibility. to assume clined public At from are offensive morals. hearing has determined administrative that this court Now hand, stemmed, subject regulations I there of the case rule on merits disagreement testimony again with myself was as to some of horren- find things question an “well- majority. here is dous occasional “ * * * patron purportedly ad- simply whether a state oiled” did to ‘fig girl saw, immediately agency may require first he ministrative leaving having entertainers a bar after been worn leaves’ page (see majority “inspired” opinion, aroused the nude California” Ferguson dancing. might logical agree Judge up 350). think rea- I with We “ * * * regulations that theatri- settled sons would warrant it well seeking pro- protect morals falls within cal entertainment ignore press against offenses, speech-free on-site free tection danger. subsequent Amendment I believe that provisions But * * 354.) page nothing requires (Majority opinion, Constitution However, law such a distinction. this valid assertion

Case Details

Case Name: La Rue v. State of California

Court Name: District Court, C.D. California

Date Published: Apr 7, 1971

Citation: 326 F. Supp. 348

Docket Number: Civ. 70-1751-F, 70-1770-F and 70-1782-F

Court Abbreviation: C.D. Cal.