McKinney v. City of Birmingham

So.2d 296 So.2d In re Chester McKINNEY McKINNEY In re Chester CITY OF BIRMINGHAM. BIRMINGHAM. CITY OF McKinney. parte Chester Ex McKinney, Petitioner. Chester SC 653. SC 484 and Alabama. Court of Alabama. Court May 9, May 9, Rehearing Rehearing Denied June Denied June Rob- Ritchey, Jr., Birmingham, Ferris S. Birmingham, Ritchey, Robert Ferris S. Hutton, At- Smith, Freeman D. Eugene ert Hutton, At- Smith, D. Freeman Eugene lanta, Ga., petitioner. for Ga., lanta, petitioner. respondent. No brief Birmingham, for Jenkins,

Herbert Birmingham, respondent. City of FAULKNER, Justice. denied. Writ PER CURIAM. cer- McKinney for Petitions Chester COLEMAN, MERRILL, Appeals tiorari to the Court Criminal Mc-

BLOODWORTH, MADDOX de- judgments and review and revise CALL, concur. JJ., McKinney cisions that court in Chester 6-326, 6- City Birmingham, [6-325, 6-370, 6-328, 6-371, 6-372, 6-373 J., dissents. JONES, 29, 1973, without ‍​​‌​​‌​​‌‌​​‌‌​​​​​‌​​​‌‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‍affirmed 6-374] June opinion. sitting. examination, prеliminary the writs were and the causes certiorari issued JONES, (dissenting). Justice argument. Upon were for oral set down consideration, heard having

further after having arguments the oral studied My have views grant the writ. briefs, opinion are now the City McKinney expressed been having writs to be been quashed are due 296 So.2d Birmingham, 292 Ala. improvidently granted. simultaneously with (1974), released on the opinion, respectfully dissent and I grounds. quashed.

same Writs of certiorari Fifth, COLEMAN, Amendments to and Fourteenth MF.~R~RTT.T-, prays BLOODWORTH, MADDOX, McCALL United States Constitution be- FAULKNER, it unconstitutional as the Court declare vague. too J., JONES, dissents. contention; majority rejects that, stand- applying the minimum concede Supreme by ards set recent United States sitting. identical or similar wherein Court decisions upheld United

statutes have been Constitution, re- grant States we could JONES, (dissenting).- Justice Slaton, 413 lief. Adult Theatre I v. Paris Petitioner, McKinney, ‍​​‌​​‌​​‌‌​​‌‌​​​​​‌​​​‌‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‍con- Chester was violating City Birmingham victed (1973); Kaplan pro- This No. ordinance Ordinance 67-2. (1973); vides : Heller v. New here, stоp To 37 L.Ed.2d 745

“Section It shall be unlawful for however, ignore yet is to two issues person print, knowlingly publish, ex- remain: hibit, posses- distribute or have in his (1) To what extent is the United States distribute, exhibit, sion with intent sell interpretation Court’s of the min- sale, City police or offer for or the safeguard imum afforded the United jurisdiction thereof, any obscene mat- controlling States Constitution where ter.” grants like or broader The ordinance further defines obscene safeguards personal freedom. material as follows: light (2) In rights pro- individual ' “A. average ‘Obscene’means that to the tected our State in- standards, applying contemporary Court, terpreted by city ordinance predominant matter, appeal of the proscribing pornography constitutional? whole, interest, taken is to prurient e., i. a shameful or morbid interest As issue, to the first long far too sex, nudity, excretion, goes or sub- state constitutional freedoms have been stаntially beyond customary overlooked, limits eyes while all have been cast description representation candor in or upon the United States Constitution for the If it appears matters. protection from of civil Although liberties. state character of the material or the circum- cоnstitutions contain full statements of our stances dissemination liberties, that the sub- civil on the whole the record ject designed matter specially for a sus- state court guardianship of “First Amend- ceptible audience, predominant appeal ment Freedoms” disappointing. Only judged shall be with reference occasionally do state cases concerned with If subject audience. matter is dis- press freedom of speech position take a tributed age, to minors under 18 protecting beyond the freedoms has what predominant appeal judged shall with required been by the United States average person reference an article, Court. a well-reasoned Pro- age actual of the minor to whom such fessor Monrad G. Paulsen1 states: matter is distributed.” “State constitutions furnish extensive and The petitioner challenges the constitution- unique sometimes materials which can ality ordinancе, of this claiming that it is help protection of human liberties repugnant rights First, his under the provide and state courts the forums Law, University, Bloomington, Associate Professor of Indiana Indiana. ” [Emphasis . . . . process of law of civil liber number very great supplied]. when Thus even are decided.

ties cases proteсtion rests argument pro- way impedes a state in no This the low grounds, Amendment Fourteenth liberties to civil greater viding courts supreme courts and er state of its own construction through the free strategic to serve position are Indeed, Tenth and the Ninth stitution. A case expression effectively. dom of Constitution of the Federal Amendments in the state freedom stands for which is This truth. envisage this fundamental further taken no need be supreme court that, the Federal Constitution while deepest our valu of for the vindication afford- minimum establishes the e.”2 States, ed all citizens of United constitution, may state, through its Thus, own law a brief lesson constitutional for civil provide greater protection to the even The First Amendment is in order. declares, “Congress liberties.4 Federal Constitution abridging . . shall make no law . Therefore, not concern ourselves we need ” speech, press or of the . . . . freedom of extent raging still with the battle over through [Emphasis supplied]. The conduit First Amendment of to which the obligatory Rights which the Bill or is ‍​​‌​​‌​​‌‌​​‌‌​​​​​‌​​​‌‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‍made protects ob- United States Amend- on the the Fourteenth states is scenity.5 only look to our need We ment,3 provides: that freedom find State Constitution to expression right. Alabama’s an absolute is any “No State shall make or enforce law Article provision, analogous constitutional privileges which shall or im- abridge 4, reads: States; munities of citizens of the United any deprive any person nor shall State passed to “That no law shall ever be life, liberty, property, or due without speech liberty curtail or restrain Paulsen, Constitutions, press stitutionally speech Courts protected State State under or Freedoms, States, 4 Vand.L. and First Amendment 354 this amendment. Roth v. United (1951). 476, 1304, 620 Rev. L.Ed.2d 1498 1 U.S. 77 S.Ct. Obscenity (1957). area of is not within Louisiana, 145, constitutionally protected speech press 391 Duncan v. U.S. 88 or 1444, (1968). may regulated 20 L.Ed.2d 491 is S.Ct. Bantam be the states. interesting sрeculate Books, Sullivan, 58, on the evolution 83 v. S.Ct. Inc. 372 U.S. incorporation” (1963). 631, the doctrine of “selective 9 L.Ed.2d 584 Obscene applies standards) (which unprotected minimum federal Amendment. Mil- the First rightful California, supra. their roles had states assumed ler v. enforcing the fundamental standards of due hand the Court has had to On other process guaranteed by dissenting the state constitutions. views Justices contend with Twining Jersey, 78, Douglas 29 See 211 most U.S. and Black. Mr. Justice Black’s 14, (1908) ; noteworthy L.Ed. Palko v. Con S.Ct. 53 97 area is: statement 149, necticut, 319, abridging’ L.Ed. 302 58 S.Ct. 82 U.S. “I . . read ‘no law . Maryland, abridging. also Benton 288 First Amend- mean no law The 784, 2056, ment, supreme 395 89 S.Ct. 23 707 of the law land, on free- has thus fixed its own value press by putting speech these dom 502, ‘beyond wholly 86 Mishkin v. New 383 U.S. reach’ of freedoms fed- Way (1966) ; Milky power abridge.” L.Ed.2d 56 S.Ct. 16 eral Smith v. Productions, Leary, F.Supp. 147, 157, Inc. 288 4 give (S.D.N.Y., 1969). (1959) J., concurring). (Black, The is free to L.Ed.2d 205 expression Douglas, dissenting than the First wider freedom in Roth Mr. Justice require. and Fourteen Amendments states: prohibition Amendment, “The First majority preclude absolute, designed hand the has con- one terms was weighing tinually legislatures from held that the First Amendment has courts as as speech well against The never been treated as an absolute. Breard v. silence. values of puts speech Alexandria, free First Amendment prеferred Obscenity position.” is not L.Ed. may press; cific material? While Roth or speak, write, States, publish his United sentiments subjects, responsible (1957), on all being for the there was national standard, sup- liberty.” [Emphasis abuse of that under Miller there is now a state plied]. or local standard. This a solution to problem, merеly but a decentralization only limitation contained therein of the Board of Censors’ role from the responsible may civilly one held for the Washington, D.C., Court to the libel, e., slander, liberty (i. of such abuse supreme states, perhaps courts in the 50 or etc.).6 support rejuvenated To add single to a in a сommunity. individual local upon stand- reliance state constitutional attempt an give obscenity ard we should consider the most recent Miller interpretation congruous standards an United more States Court decisions California, 15, that the community Miller with of local in 413 applied. it is Kaplan depart 37 419 is here that I from (1973); L.Ed.2d reasoning the and holding majority, of the 37 for I contend that such standards (1973), L.Ed.2d 492 and Paris Adult Thea- cannot Slaton, constitutionally applied. be tre I 93 The S.Ct. standard the community of changes In toward sexuality 446 these “ob- scenity” rapidly any that cases the Court stated that the so standard would be sub ject permissible is to scope regulation of be continuous re-evaluation.8 a to As matter, practical applied person by application the what excites one of local communi- ty may specifically standards shock another and bore an defined jury other. a of very any law. thеre will be The foundation of such twelve subjective regulation must this same based be the state constitution determination upon my itself. individual morals. It conviction to that invoke criminal such sanctions We turn now to the second issue—to ground inevitably tenuous will violate due may “obscenity” what extent regulated be process, interpret and I the absolutism § light safeguards protecting broad its expression of as the embodiment of this expression, freedom subjects,” of all “on as stated, principle. I that Otherwise believe set out in the Alabama Constitution? keenly of the framers our Constitution were anything that less than literal con aware Regulation obscenity of necessarily in- safeguard (§ 4) struction of this would volves balancing of right of ex- remain in and of itself be violative of pression against right exposed not to be guarantees process. of due ing problem thereto. The Federal begins with the United States particular such a area as this Where obscenity declaration Court’s subject varying interpretations, to such protected is not by the First Amendment.7 expression, per of right se—a basic problem specifically This has led to the democracy fundamental of our —should defining obscenity so not to be over- dеprived. arbitrarily ‍​​‌​​‌​​‌‌​​‌‌​​​​​‌​​​‌‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‍be so Instead broad. For the United States Su- passing this potato,” “hot handed down to preme Court has had assume the role to Court, us the United States of a attempting Board Censors to to the local communities and the ultimate limit statutory fact, definitions. Here preferable triers of I bеlieve it to impenetrable face the is to barrier —who theoretically practically take more interpret applied this spe- definition as to approach by obscenity embracing rational Paulsen, supra, p. Cairns, Wisbner, at 8.See Paul and Sex Censor- ship Assumption Anti-Obscenity : The Ginsberg Empirical Evidence, Laws and 46 Minn.L. Rev. 1009 per- I foregoing is not The subjects” of the “all within the widespread prolifera- sonally Accordingly, condone I, Article Admit- society today. obscenity tion of regulation hold that us before material I protect tedly, when view duty is to obscenity, the state’s sole cases, сom- possessed I am in these not consent who do of its citizens those against such out to strike pelling force constructively) sub- actually (not being most, compulsion feel immorality. like they consider jected to behavior castigate these legal process minors, giv- to use incapable of too, obscene. So ex- manifestations of sacred degrading consent, protected by to be are my thereby vindicate pression love and state.9 To describe personal attitudes. own (dictated limitations these two Outside film in one case (8 16-mm. material considerations), by balancing cоnstitutional filthy, dirty, magazines the other) expression must of freedom the interest “sick,” overly lewd, is to be offensive excluding persons, preserved. be overt deeply I resent charitable. minors, exposed to obscene towish be who sex- purpose to human take avowed right,10 just as those have the wholesome, holy uality good, —which exposed have who wish depths plunge purity into —and compelled. right not be so stitutional degradation. acknowledge an obsession available, has proprietor making my to fores others conform exposing those otherwise the burden of punish those morality stаndards of and to case the absence protected. In the instant guilty non-conformity. believe But I advertisements any potentially offensive against that the such inclination restraint prohibiting presence of notices the and very the constitutional the essence of content warning others of thе

minors and personal to liberties; that is films, proper balance strikes say, organic legal process— basis of our conflicting interests.11 between bri- purposefully the State Constitution— compulsion indi- dles this for the sake light of of interests In this balance vidual freedoms. laws must Alabama construe current in Tit. obscenity on are found Any approach proper realistic role 64A, 64C, 64B, 374(l)-374(16o), Chs. society and matters must start from § Chap- premise controlling as amended. Code crime and Alabama general prohibitions and safeguarding things. ter 64A states the are different morals chapter penalties obscenity; concerning ago, More than Thomas St. exhibition, etc., of speaks Aquinas 64B “Private sin is different to the sale wrote: chapter public minors; only and crime and the latter lies obscene persons province over of man-made sale law.” 64C concerns such government proper agent 64A and fоr con- eighteen, chapter I hold would trolling crime, primary guardians as violative while 64C unconstitutional morality family, church, At are the Art. community time, chapter organs public opin- and the hold 64B same institutions, government, on ion. These constitutionally permissible restriction strengthened given must be and aid every оf obscene material. the sale York) Ginsberg and notes v. New that statutes restrict- right (1968). place no one’s to such material have suggests regulatory in the law. He better Stanley Georgia, institutions the home and church. E. also 22 U.Ed.2d pp. Oregon Jr., Statutes, Keister, Victims at No 11.See Revised Title Crimes With entitled, chaptеr 167.060, 167.065, 167.075, 167.070, Ohs. In 49-54 Dirty? ”, 167.080, 167.085, 167.090, Feb. STATE. C. J. McWilliams. Thomas, ‍​​‌​​‌​​‌‌​​‌‌​​​​​‌​​​‌‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌​​‍Huntsville, peti- David L. tioner.

Supreme Court of Alabama. No for the State. brief April 25, 1974. MERRILL, Justice. Petition of Ronald Lee Martz for Cer Smith, Elno Jr., A. Montgomery, pe- tiorari to the Appeals Court of Criminal

titioner. review and the judgment revise and deci No brief for the State, sion of State. that Court in Martz 51 Ala.

App., 290 So.2d 661.

FAULKNER, Justice. Writ denied. Petition of C. McWilliams for Certio- J. rari to the Court of Appeals Criminal J., C. review and revise judgment and deci- FAULKNER, MADDOX notes author Is a 167.095 “When Movie obscenity (specifically lagging laws perform State, their function the moral sion of that Court McWilliams v. sphere sphere government (3 where should 294 So.2d 454 237). Div. —a not, cannot, effectively It is reach. Writ denied. obscenity now time for the venue over be withdrawn from the courts MERRILL, HAR- personal concern shifted levels in to those WOOD, MADDOX, belongs. life it routine where Long ago wisely Socrates “No said: man thoroughly right so be entitled to totally wrong. others are your truth, well affirm but it is not well to condemn those who think dif- ferently.” In spirit, register my dissent. 290 So.2d 665 re Ronald Lee MARTZ STATE. Lee Ronald Martz. 294 So.2d 457 Supreme Court of Alabama. In re J. C. McWILLIAMS

Case Details

Case Name: McKinney v. City of Birmingham

Court Name: Supreme Court of Alabama

Date Published: May 9, 1974

Citation: 296 So. 2d 236

Docket Number: SC 484 and SC 485

Court Abbreviation: Ala.