*1 with McDowell and the It is because my disagreement I above illustrated that concur the result. problems JJ., in this join concurrence. Meller-Lerman, Gerrard Tipp-It, Inc., corporation, appellant, a Nebraska City Prosecutor, Conboy, Omaha, Martin J. Douglas appellee. County, Nebraska, N.W. 2d 9, 1999. July
Filed No. S-98-096. *2 for appellant. Silver
Jeffrey A. Thelen, Attorney, appellee. for City Omaha Alan M. Assistant Hendry, C.J., Stephan, Gerrard, Wright, Connolly, JJ. Miller-Lerman, McCormack, and Hendry, C.J. HISTORY
I. PROCEDURAL Inc., the Tippit, and Terry a Nebraska corporation, Tipp-It, Bar” referred to as (jointly “Tipp-It”), of the “Run operator to Neb. Rev. a action declaratory judgment pursuant brought 1995), that certain (Reissue seeking a judgment Stat. 28-820 art, were not namely through exhibits 1 putative works the contained Neb. obscenity within definition of obscene 1995). J. (Reissue Conboy, 28-814 Martin the Rev. Stat. § Prosecutor, filed an answer and counterclaim City gen- Omaha contentions and erally denying Tipp-It’s affirmatively alleging a public the continued exhibition of the works constituted trial, a Douglas County nuisance. After bench the District Court a declared exhibits to be obscene. filed Tipp-It and notice of a to We appeal petition bypass. granted Tipp-It’s (Reissue 1995), to see petition Neb. Rev. Stat. 24-1106 bypass, and now affirm.
II. FACTUAL BACKGROUND Street, a bar located at 1713-15 Leavenworth Tipp-It operated Omaha, Nebraska, the under name “Run Bar.” has Tipp-It oper- 24,1994, ated the Run Bar August catering since to a solely gay clientele. The Run Bar has license covering a 1713-15 liquor Street, floor, area, including Leavenworth the main and a loft bar, on, basement. The basement contains a full chairs to sit and The table. basement is utilized pool Thursday through Sunday individuals years over from 8 until 1 The age p.m. a.m. Run Bar consists of primary activity socialization. The works in were question displayed the basement of the Run Bar. The matter in came question light to when local fire inspectors Run examined basement of the Bar pursuant for a Tipp-It’s request certificate of The fire occupancy. inspec- tors to the complained Omaha Police Division several works on being displayed the walls of the On basement. December Ronald Cole at Run Bar Sgt. appeared investigate Cole arrived at complaint. approximately p.m., when the bar was open, walked into the basement. Cole viewed total), various works (22 the basement displayed 3 works he seizing suspected violating laws for (exhibits the State of 3). Nebraska 1 through As a result of subsequent discussions between Conboy and *3 counsel, Tipp-It’s the parties determined that a declaratory judg- ment action would be initiated to ascertain whether the works were obscene. The works exhibits 1 3 depicted were through then returned to with the Tipp-It understanding that the works would not be displayed pending a resolution of this action. filed 9, a for
Tipp-It petition declaratory judgment on March and the case proceeded to trial on May 1997. The Douglas District Court County described the works question as follows:
(C) Exhibit 1 is a photograph of a of drawing sketch men, eight, nine possibly all All clearly adults. are either naked or have Four of exposed genitalia. the men display which penises are erect and of exaggerated dimensions. One to appears just have anal completed intercourse with another man. Water or semen on the appears table or bench on which this man In rests. the lower right-hand comer a man be undergoing to anal appears penetration.
(D) Exhibit 2 is photograph a of a or sketch of drawing men, of two both whom are naked and have erect penises
which are of The exaggerated dimensions. man who [is] is standing. on man who fellatio the is performing
seated of the seated from the mouth dripping to be appears Semen cap---- War-era wearing a Civil man is The standing man. itself which is of display (E) Exhibit 3 is a photograph it, a bearded man In or painting. a photograph either aby standing anal penetration to be undergoing appears haircut. has “Mohawk” man who Cole; trial at was testimony provided adduced The Aikin, witness. On expert Dr. an Roger and Conboy; Tippit; court an order finding district entered the December the of Neb. Rev. meaning within through 3 obscene exhibits 1995). exhibits 1 28-807(10) The court ordered (Reissue Stat. § sheriff, County to the Douglas be 3 to surrendered through the state. or removed from destroyed, OF III. ERROR ASSIGNMENT Douglas error is that the County sole assignment Tipp-It’s exhibits 1 obscene finding District Court erred 28-807(10). meaning within OF IV. REVIEW STANDARD cases of review for was The standard articulated in State v. recently N.W.2d determination
In finder’s that certain a fact reviewing obscene, court is duty material is the threshold of an appellate determine, matter review and as a independent conduct law, constitutional if the material falls within the substantive set forth in California, limitations Miller S. i.e., (1973), 37 L. 2d Ct. Ed. is the material type “hardcore” sexual material that may constitutionally regu be Thereafter, lated under the First Amendment. appellate court must review the determinations of the trier of fact pursuant three-part obscenity standard set forth Miller v. In 28-807(10). California, supra, doing, so appellate *4 give court should deference to the trier of fact appropriate test, i.e., the first two of the the prongs inter “prurient test, test and the est” offensive” issues “patently depend as these of knowledge on “contemporary community standards” which are within the trier fact. uniquely of the of State province Harrold, supra. action,
In a bench
of a
trial
trial
law
a
court’s factual find
the
of
ings have
effect
a
verdict and will not be set aside on
jury
Robertson,
are clearly
unless
Hilliard v.
appeal
they
wrong.
(1997).
Neb.
Finally, appellate de novo apply review the third the considering of Miller v. prong California test, i.e., issue, the “value” material at since this determi nation does not depend community standards and upon is par ticularly amenable to review. State v. appellate supra. review, In a de novo court appellate reaches conclusion Rittscher, of the trial court. independent Eggers v.
V. ANALYSIS 1. Burden of Proof Before proceeding with our analysis under Miller v. California, we note that court supra, this never directly has determined the burden of to appropriate proof applied be civil brought cases to 28-820. The pursuant district court determined the burden appropriate proof was beyond reason- doubt, able that stating the issues of of “given freedom speech stake, and freedom of expression at and given that this proceed- code, under ing arises the criminal the defendant bears a burden a reasonable proving beyond doubt Exhibits 1 through them, any are obscene.” agree. We Section provides, 28-820 in pertinent part, who
Any person exhibits ... or is about exhibit. . . or is about to with acquire intent to possession exhibit... work, material, shall, any conduct or live if performance such has person doubt as to genuine the question work, material, whether such conduct or performance live in fact within the terms and provisions sections 28-829, 28-807 to have an action in right bring district for declaratory court under Uniform judgment Act Declaratory Judgments chief against work, law enforcement officer of the ... city which *5 224
material, located or is or live is performance conduct exhibited, for a determination as judicial intended to be ... work, material, live per- not such conduct or to whether or obscene. formance is of 28-820 indi legislative history the text nor the
Neither burden of intent Legislature’s cates Anderson, 250 N.W.2d 153 See v. Neb. 549 Goolsby proof. therefore 28-820 in a fashion which (1996). We must construe § absurd, unconscionable, result. See State ex unjust avoids Health, Health Care Assn. v. Dept. rel. Neb. N.W.2d 100 587 Basic civil indicates that the burden of jurisprudence actions is a of the proof declaratory judgment preponderance See, evidence and burden is to be borne plaintiff. Anderson, Walter H. Actions for Declaratory Judgments 1951); (2d ed. 22A Am. Jur. 2d Declaratory Judgments § (1988 1999). & Cum. At one Supp. least court has this applied standard in a civil obscenity case of the First irrespective Amendment issues involved. Intern., Webb,
In (N.D. Penthouse Ltd. v. 594 F. Supp. 1984), magazine Ga. a civil publisher brought rights action solicitor against county general seeking declaratory judg- ment to enforcement of the state enjoin statute with respect magazine. to distribution of the The plaintiff argued that the materials were protected aby presumption of nonobscenity and that the could be presumption defeated if the only materials were found obscene a reasonable beyond doubt. The court this claim and rejected stated:
On all theory, plaintiff its would have to do its affirma- tive action for a declaratory is judgment to show that there is a reasonable doubt that the are issues obscene. Plaintiff thus wants to have its cake and eat it too: it wants to force case prove as a defendant [the instead of as a state] [its] by the criminal prosecutor, standard instead of aby pre- evidence, ponderance a federal civil action instead of a state criminal prosecution.
Plaintiff’s suggestion is untenable. The
Court
Supreme
has
held that the
squarely
“beyond reasonable doubt” stan-
dard is not
required
a civil proceeding concerning
obscenity.
Mitchell Brothers’ Santa Ana
[California]
Theater,
U.S.
S.Ct.
Nor does the state bear the burden The state proof. court; has not come into this has. Because plaintiff [the plaintiff] seeks affirmative and relief . . . anticipatory must [plaintiff] the burden that on accept placed every that, civil The Court plaintiff. therefore holds the party relief, seeking carry must the burden of plaintiff proof *6 usual, meet the preponderance-of-the-evidence standard for civil litigation. Intern., Webb,
Penthouse v. F. at Ltd. 1195-96. Supp. Intern., Webb, in suggestion Penthouse Ltd. v. Despite issue, supra, that the Court Supreme has ruled on this squarely the Court’s in holding v. Mitchell Bros’ Santa Ana California 93, Theater, 454 U.S. 102 S. Ct. L. Ed. 2d 262 (1981), stands for more nothing than the that the proposition federal Constitution does not the beyond a require reasonable doubt to standard be in applied civil cases and that “while a State may require proof beyond reasonable doubt in an obscen- case, that choice ity is a matter of solely state law.” Intern., Webb,
Unlike the court Penthouse Ltd. v. we believe the better reasoned is to require approach proof beyond a reasonable doubt. We as suggested much Main Street Wellman, Movies v. 251 Neb. 557 N.W.2d (1997), a declaratory judgment action brought pursuant to 28-820, stated, in which we § “As the issue here is whether the movies are question obscene ... review this matter as a criminal case at law’’ (Emphasis We supplied.) have held long that it is burden in prosecution’s a criminal to produce case proof a reasonable doubt of beyond element of a every charged See, Jimenez, offense. State v. e.g., 248 Neb. 533 N.W.2d Yelli, 785, 530 (1995); State v. (1995); 247 Neb. N.W.2d State, 188, 74 Peyton (1898). N.W. 597 We see no rea son to obscenity treat civil cases differently. addition,
In a burden imposing other than a proof beyond be reasonable doubt would inconsistent with the purpose to 28-820. Section 28-820 was intended with provide plaintiffs a mechanism to test the in a civil obscenity issue action to prior was of proof If the burden criminal prosecution. to
any exposure evidence, finding a a preponderance merely the mate- issue of whether to the assistance be of minimal would case, If such were obscene. criminally question rial under an action instituting little by gain could Thus, plaintiffs to institute be disinclined would plaintiff 28-820. be able to use she not may action if he or declaratory judgment prosecution. for criminal the potential to evaluate the proceeding of this the value acknowledged Court has The Supreme reconciling state vexing problem solving approach with the prohi- expression oriented sexually efforts to suppress First Amendment. bitions of the the offer to dread that the bookseller requiring Instead of him warning, subject without may, prior for sale of a book hazard of imprisonment, with the to a criminal prosecution him that such consequences assures the civil procedure a court order ignores specifically follow unless he cannot him and circumscribed carefully for a prompt directed to of obscenity. determination of issue Books, Brown, 436, 442, 77 S. Ct. Inc. v. Kingsley 1325, 1 “[Sjuch 2d a procedure provides L. Ed. notice, the best possible prior of materials purveyor exhibitor or indictments, to whether the materials are criminal any to state subject regula the First Amendment unprotected *7 49, 55, Slaton, I 413 U.S. 93 S. Ct. tion.” Paris Adult Theater v. Ed. 2d 446 37 L. Moreover, free- believe the hazards to First Amendment doms, in that even regulation obscenity, require inhering cases, more exacting in the State must with the comply civil a reasonable doubt. Given the standard of proof beyond poten- and the fundamental interests at judgments tial for erroneous cases, the fact finder be almost stake in First Amendment must materials are not The constitutionally protected. certain that the such a threat is to the most guard against impose best to way burden, i.e., a reasonable doubt. As stringent proof beyond concurrence in v. Brennan stated his McKinney Justice Alabama, 2d 424 U.S. 96 S. Ct. 47 L. Ed. (1976):
The of that uncertainty line means that erroneous judg- ments as to whether material is obscene or not are likely event, any and are so if the particularly factfinder is only confident marginally that the material on falls the unpro- tected side of the line. In of the light command of the First Amendment, a standard of proof mere preponderance of the evidence too poses substantial a danger that pro- tected material will be erroneously . suppressed. . . [T]he of an possibility erroneous determination is heightened by the fact that the material never be available to may the pub- lic and thus need never have truly faced the acid test of under acceptance prevailing community standards. Furthermore, in light definition of obscenity —incor- law, porating, as it does under current the notion of patent offensiveness to the member average of the community— there is an even need greater for the judge as operating sole factfinder to be convinced beyond a reasonable doubt that obscene, the material is for his determination is made with- out a jury’s assessment of community values.
Equally persuasive is the notion that the possible erroneous of civil imposition sanctions under the preponderance of the evi- dence standard simply creates too great risk of self-censorship by those engaged dissemination or display materials per- taining sex. Just as the improper allocation of the burden of “will proof create the that the danger legitimate utterance will be penalized” and may therefore cause to “steer persons far wider zone,” Randall, the unlawful Speiser S. Ct. 2 L. Ed. 2d (1958), the application of a pre- standard, ponderance of the evidence rather than proof beyond a doubt, reasonable could cause affected persons be overly careful about the material in which deal. In they this respect, Justice Brennan stated:
The inevitable tendency of the preponderance-of-the- evidence by forcing persons dealing marginal standard — material to make hard as to whether judgments such mate- rial is obscene in order to avoid civil sanctions —would be to limit the volume of at least the marginal material a handle, bookseller could permissibly thus “restrict the access to public’s forms of the printed word which the *8 State could not constitutionally suppress directly.” This by “self-censorship, compelled [Citation omitted.] State, would be a the whole censorship affecting public, hardly less virulent for being privately administered.” Alabama, J., v. McKinney (Brennan, U.S. at 686 concur- ring). determined
Having
that
proof beyond reasonable doubt
cases,
most
standard in civil
obscenity
insti
28-820,
tuted pursuant to
we
proceed
analyzing
works
15,
under Miller v.
question
California, 413 U.S.
93 S. Ct.
2607,
(1973).
2.
(a) Threshold Determination
The U.S. Supreme Court has indicated that both trial
courts and
courts
appellate
must make a threshold determination
that the
material
is within the
question
range materials
Harrold,
829,
which
bemay
regulated. State v.
is,
N.W.2d 299
That
determine,
courts must initially
law,
a matter of constitutional
whether the particular material is
within the “substantive limitations” imposed by the First
Harrold,
Amendment. State v.
This review
supra.
is intended
“ ‘both to be
falls
sure
in question actually
[material]
within the unprotected category and to confíne the perimeters of
any
within
unprotected category
narrow
acceptably
limits in an
”
effort to ensure that protected expression will not be inhibited.’
842,
Id. at
In State
It is a few of possible, give plain examples what a state statute could define for under regulation part (b) in of the standard announced this opinion, supra:
(a) offensive of of Patently representations descriptions acts, ultimate sexual normal or actual or simu- perverted, lated.
(b) offensive or Patently representations descriptions masturbation, functions, and lewd exhibition of excretory the genitals. to the
Subsequent Supreme Court’s decision Miller v. California, Legislature Nebraska proscribed “patently conduct,” offensive” of certain acts of “sexual includ- depiction intercourse, “acts of ing . . . sexual homosexuality, sodomy, contact with a prolonged physical person’s clothed or unclothed 28-807(15). genitals ....”§ court, court,
As described the district and by viewed this by 1 exhibits 3 conduct through clearly sexual acts depict involving for 28-807(10). 1 regulation” by Exhibits 3 through “define[d] intercourse, sexual depict acts of anal and sodomy, prolonged contact with a physical unclothed See person’s genitals. 28-807(10). We determine that the sexual acts depicted 1 exhibits 3 are within the through range “hardcore” materi als as described Miller v. Exhibits 1 through 3 California. acts, ultimate depict sex lewd exhibition of genitalia, ejaculated fluid, seminal and anal intercourse. Such are depictions clearly within the confines of Miller v. As the Supreme California. States, 87, 115, Court determined in v. United 418 Hamling U.S. 2887, 94 S. Ct. 41 (1974), L. Ed. 2d 590 in a photographs intercourse, brochure heterosexual and depicting homosexual fluid, sodomy, ejaculated seminal and other sexual acts consti tute a “form of hard-core well pornography within the types permissibly described in proscribed depictions Miller.” conclude, matter,
We therefore
as a threshold
that exhibits 1
Harrold,
3
“as
qualify
obscene.” See State v.
possibly
See, also,
supra.
U.S. v. Various Articles
Obscene
Merchandise,
(2d
1983).
The Court in Miller v.
S.
California,
2607,
(1973),
2d
defined obscenity
Ct.
37 L. Ed.
as those
which,
whole,
materials
“taken as a
to the
inter
appeal
prurient
sex,
est
which
sexual conduct in a
offensive
portray
patently
which,
whole,
taken as a
do not have serious
way,
literary,
artistic,
Accord,
or scientific value.”
Smith v. United
political,
States,
(1977);
U.S.
97 S. Ct.
Third, even though the material appeals to the prurient inter- offensive, obscene, est and is patently it cannot be constitution- work, whole, artistic, unless as a ally, “lacks serious literary, or scientific value.” political, 28-807(10)(c). Accord Miller v. California, Material supra. dealing with sexual conduct in a ideas, manner which advocates which contributes to or illus- discussion, trates scientific or which adds to the general of body art and literature in our culture is the 1st and 14th protected by Amendments to the U.S. Constitution. See Miller v. California, Therefore, supra. courts examine decisions on this appellate third more prong order to ensure that closely First ideas, Amendment however protection is main- unpopular, States, tained. See Smith v. United supra.
(i) Prurient Interest and Patent Offensiveness We now turn to the first two of the prongs Miller three-part (1) test and consider whether the average person, California standards, applying contemporary community would find exhibits to the through appealing (2) interest and prurient whether exhibits through depict, offensive patently way, sexual conduct defined specifically state applicable law. court, fact,
The district sitting as the trier of found exhibits 1 3 both to the appealing interest and prurient depicting sexual conduct in a offensive patently way. Based on the stan- dard of review articulated State v. we deter- supra, mine that the record amply the district supports court’s findings the first two prongs Miller v. test. California court, As described by the district exhibit is a sketch or drawing or nine men eight who are either naked or have exposed genitalia. Four of the men erect display penises exag- dimensions, gerated and one to have appears just completed anal intercourse with another man. Exhibit is a sketch or drawing men, of two naked both of whom have erect penises exagger- ated dimensions. A seated man is performing fellatio on a stand- man, and ing semen appears be from the dripping mouth of *11 the seated man. Exhibit 3 is a or photograph of a painting bearded man who to be appears undergoing anal penetration by another man.
The district court the pictures concluded “clearly appeal the prurient interest and the representations of figures 1, Exhibits 2 and 3 to have been appear designed to shock the and, indeed, viewer to be offensive.” Based on our review of the record and affording deference to the of trier fact, we cannot conclude the district court was clearly wrong. Servs.,
See,
Soc.
Anderson/Couvillon v. Nebraska Dept. of
813,
Robertson,
(1998);
N.W.2d 362
Hilliard v.
Neb.
We next turn to our de novo review of whether exhibits 1 artistic, 3 lack serious literary, political, scientific value. claims that the works in Tipp-It question, “part Francisco, large art collection that was in San gay displayed California,” and including “pencil drawings, pastels, self-por- artists,” traits well known serious artistic value. gay possess Brief for at 22. We appellant disagree.
The district court 1 through determined exhibits 3 lacked any serious artistic value and stated:
If there is anything these three exhibits from keeps obscene, it is that being be said to they might have some serious artistic It value. is here that Dr. Aikin’s unrefuted become opinions significant. The Court finds credible his that Exhibits opinion and 3 are valueless. artistically The Court thus finds that the defendant has borne its bur- den of as to Exhibits 2 and proof and that the same are obscene.
The only expert witness called to testify by either party was Dr. Aikin. Aikin Dr. received his bachelor of arts degree from University Oregon 1969 and his doctorate from degree University California at Berkeley both in art his- He has tory. taught art at Creighton University for 18 years, served as the director of the Creighton Art for 6 Gallery years, and also served as a curator for the Creighton Art for 6 Gallery Dr. Aikin years. currently chairman of the Department of Fine and Performing Arts at Creighton University. Aikin
Dr. testified that whether a particular work has serious artistic value can be determined either under a subjective, “four- comers” test by evaluating such criteria as space, composition, color, balance, design, harmony, and form or under objective “Dickey” analysis, which considers where the art has work, been exhibited as well as whether the or the putative artist, has certain achieved a degree of respect and recognition in the artistic In community. Dr. Aikin’s opinion, exhibits
233 under either 3 do not serious artistic value through possess any analysis.
Dr. Aikin exhibits 1 3 under the initially analyzed through “four-comers” that the works lacked “the analysis, concluding he deemed nec- kinds of of the formal things” “any qualities” to constitute serious artwork. When asked to evaluate the essary exhibits under the Aikin that in Dickey analysis, Dr. stated absence of indication that “any these works have ever been part of a venue” or that had “any serious value accrued to th[em] a result of an exhibition or a exhibition or a juried publication, or some kind of neutral the art dispassionate, judgment by world, I would have to that say . . . have no value as art th[ese] on that basis.” is not
Expert testimony
necessary to enable the trier of
fact to
judge
of material which has been
obscenity
placed
Slaton,
49,
into evidence. See Paris Adult
I
Theater v.
413 U.S.
“
93 S. Ct.
(1973)
Consequently, are not bound to accept Dr. Aikin’s unrebutted, expert testimony, find his uncontroverted testi- mony assistance our de novo review. Dr. Aikin concluded value, exhibits 3 have no through serious artistic regard- less of the analysis employed. Pursuant to our de novo review of record, viewing works their we reach the entirety, same conclusion and find a reasonable beyond doubt that exhibits through any lack serious artistic value.
VI. CONCLUSION considered Having of error and Tipp-It’s assignment finding merit, it lacking we affirm the district court’s December 1997, order, finding exhibits 3 to be obscene.
Affirmed.
J., concurring.
Gerrard,
I
concur in the result reached
reluctantly
majority opin-
I
ion. write
to articulate
views
the third
separately
my
of the test articulated Miller v.
prong
California,
i.e.,
(1973),
93 S. Ct.
The trial court and the majority this case rely upon Aikin, opinion Dr. Roger in the acknowledged expert field of art. I find Aikin’s to be testimony marginally persuasive “four-comers” analysis not at all persuasive regarding his “Dickey” venue I do analysis. find Aikin’s testi- however, uncontradicted, mony, to be essentially and his quali- fications and the foundation for Aikin’s opinion have not been challenged on appeal.
Because we are “in all respects confined to the record prop- us, erly before limited to what was presented to the trial tri- bunal,” see Fremont Joint Stock Land Bank v. Harding, Neb. (1936), N.W. I join the judgment of the majority. Even though appellate court conducts de novo review, it is most helpful have meaningful evidence record in order to conduct an insightful inquiry into the artistic value of the material at issue. It is not the role of an proper appellate court to become a “super expert,” randomly imposing its over opinion those opinions properly admitted in evidence. caveat, conclude,
With that I must after a de novo review of us, the record before that the State met its burden of proving Hence, I issue lacked serious artistic value. the material at concur.
Miller-Lerman, J., concurring. and the with
Given the standard of review record applicable which we are I must concur. presented, Hernandez, appellee,
Shane E.
appellant.
Blankenship,
Rebecca Jean