stating that “[i]n Tennessee, a person accu sed of a crime is cons titutionally entitled to testify in his own behalf”
How later courts described this case
- stating that “[i]n Tennessee, a person accu sed of a crime is cons titutionally entitled to testify in his own behalf”
Written by the judges who cited it.
The opinion
DAUGHTREY, Judge, separately
dissenting.
Given the vagueness of the testimony regarding defendant Probst’s conduct in this case, I do not believe that the evidence is constitutionally sufficient to support her conviction, and I therefore dissent.
Although the United States Supreme Court has never decided a case involving a *354 live performance on its merits, the Court has indicated that “the customary ‘bar room’ type of nude dancing may involve only the barest minimum of protected expression” but that “this form of entertainment [may] be entitled to First and Fourteenth Amendment protection under some circumstances.” Doran v. Salem Inn, Inc., 422 U.S. 922, 932 , 95 S.Ct. 2561, 2568 , 45 L.Ed.2d 648 (1975), citing California v. LaRue, 409 U.S. 109,118 , 93 S.Ct. 390, 397 , 34 L.Ed.2d 342 (1972). Moreover, in the landmark case of Miller v. California, the Court held that “no one [should] be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct_” 413 U.S. 15, 27 , 93 S.Ct. 2607, 2616 , 37 L.Ed.2d 419 (1973).
Probst’s activities in this case can hardly be described as “hard core.” According to the testimony of Officer DiScenza, her conduct was not materially different from that depicted in publications currently sold in virtually every newsstand and convenience market in Tennessee.
To the extent that activities like those in this case require regulation, they are more appropriately and effectively regulated by our Alcoholic Beverage Commission. See generally California v. LaRue, supra. By pursuing this latter route, the state both conserves its criminal prosecution reserves and avoids the risk of violating the First Amendment.
Sexual exploitation of children may also be regulated without running afoul of the constitution. New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982). But there was no evidence of the involvement of children in this case, either on the stage or in the audience. What we have instead is a group of adults who may have been misguided in their desire to watch what many would find to be a distasteful and vulgar performance, but none of whom were forced to attend nor exposed involuntarily to that performance.