Petition — Chateau X, Inc. v. Andrews

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IN THE

SUPREME COURT OF

UNITED STATES

October Term, 1978

No. 78 -13 91

CHATEAU X, INC., a South Carolina Corporation; ATLA

THEATERS, INC., a South Carolina Corporation; JAMES

RUSS, individually and in his capacity as an officer of both

Chateau X, Inc. and ATLA Theaters, Inc.; ALBERT

PELOQUIN, individually and in his capacity as an officer of

both Chateau X, Inc. and ATLA Theaters, Inc.; HECTOR

RIQUELME, JR.; FREDERICK OLLIE BYROM,; SUSAN

RUPE; VICTOR STROOP; JIMMIE TUCKER HILL;

DENISE TERRY LAMB; GEORGE JOHNSON; JOE

HORNSBY; ROBERT JEROME SMITH; and a place of

business known as Chateau X Theater and Bookstore,

Highway 17 South, Jacksonville, North Carolina,

Petitioners,

STATE OF NORTH CAROLINA, EX REL WILLIAM H.

ANDREWS, District Attorney for the Fourth District of

North Carolina,

Respondent.

i i ee ee i i i te iii aia

ll ltt aaa acl ltl

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

QPP aaa orate

ARTHUR M. SCHWARTZ, P.C.

1650 Market Street

Denver, Colorado 80202

(303) 893-2500

BAILEY, RAYNOR & ERWIN

323 New Bridge Street

Jacksonville, North Carolina 28540

(919) 455-3212

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TABLE OF CONTENTS

Page

Citation to Opinion Below ...................... 1

Statement of Jurisdiction ....................00. 2

cc ceccecnesde 2

Constitutional Provisions Involved .............. 2

AIT EOE cise ccuncesecccescess 3

Reasons for Granting the Writ .................. 7

Rs She Pie's ON Vk Kec h a vceece cabs 17

CONSTITUTION AND STATUTES

Page

United States Constitution:

Ee ie oi seek Tos A ela kia ts 2

I kia Fle gis. ck viene sn aie « 2

PN MD an ee cv G5 s cin pu oa heocs viemes 2

North Carolina General Statutes, Chapter 19 .... 8

CASE CITATIONS

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct.

OE 8 Bae Oe CI is ib icisawevs cence

Fehlhaber v. North Carolina, 445 F.Supp. 130

EE oy a6 ERG SO ASO SS ODS LESS

Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40

SLE ROOD Sin kok cove erae sanded udes

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88

S.Ct. 1304, 20 L.Ed.2d 225 (1968) ...........

Katzinger v. Chicago Metallic Mfg. Co., 329 US.

394, 67 S.Ct. 416, 91 L.Ed. 374 (1947) .......

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct.

1325, 1 L.Ed.2d 1469 (1957) ................

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37

Cae Er UTED 6 v.08 0 55a eras 8s devin

Mitchem uv. State ex rel Schaub, 250 So.2d 883 (Fla.

BD Booted ire Pale eee Bike ek OU a To

Near v. Minnesota ex rel Olson, 283 U.S. 697, 51

S.Ct. 625, 75 L.Ed: 1887 (¥981) ..............

Nebraska Press Association v. Stuart, 427 U.S. 539,

96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ........

New Riviera Arts Theater v. State ex rel Davis, 219

Tenn. 652, 412 SW2d 890 (1967) ............

Pag?

12, 13

iii

CASE CITATIONS — Continued

Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct.

2628, 37 L.Ed.2d 446 (1973) ................

Parish of Jefferson v. Bayou Landing, Ltd., 350

INE UN TED Cucuwhy cake cesaraue ss

People ex rel Busch v. Projection Room Theater, 17

Cal. 3d 42, 130 Cal.Rptr. 328, 550 P.2d 600

(1976) cert.den. 429 U.S. 922, 97 S.Ct. 320, 50

SE I LOE a ncie ss do chin Sac ev eences

Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359

ee A ELS Gains Ck bes care whe dae oka

Sanders v. Georgia, 231 Ga. 608, 203 SW2d 153

3 Rae ed eee eee

Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4

L.Ed.2d 205 (1959) reh.den. 361 U.S. 950, 80

S.Ct. 399, 4 L.Ed. 2d 383 (1959) .............

Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756,

core kee a ee eee eee eT

State v. A Motion Picture Entitled “The Bet’, 219

Kan. 64, 547 P.2d 760 (1976) ...............

State ex rel Sweeton v. General Corporation, 294 Ala.

657, 320 S.2d 668 (1975) cert.den. 425 U.S. 904,

96 S.Ct. 1494, 47 L.Ed.2d 753 (1976) ........

Universal Amusement Co., Inc. v. Vance, 559 F.2d

1286 (5th Cir. 1977) rev’d in part Universal

Amusement Co., Inc. v. Vance, F.2d

(5th Cir. #75-4312, decided December

Wi a ok eck ob ee Ue FC Kw Ke cece beiee

Page

OTHER AUTHORITY Page

Note, The Overbreadth Doctrine, 83 Harv.L.Rev.

S66 (OOF 05 cseinksie eee eek 14

Note, New Prosecutorial Techniques and Contir.ued

Judicial Vagueness: An Argument for Aban-doning

Obscenity as a Legal Concept, 21 UCLA

L.Row. B64 CHRPRR cicadas ewer tias Fees as 14

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1978

CHATEAU X, INC., a South Carolina Corporation; ATLA

THEATERS, INC., a South Carolina Corporation; JAMES

RUSS, individually and in his capacity as an officer of both

Chateau X, Inc. and ATLA Theaters, Inc.; ALBERT

PELOQUIN, individually and in his capacity as an officer of

both Chateau X, Inc. and ATLA Theaters, Inc.; HECTOR

RIQUELME, JR.; FREDERICK OLLIE BYROM; SUSAN

RUPE; VICTOR STROOP; JIMMIE TUCKER HILL;

DENISE TERRY LAMB; GEORGE JOHNSON; JOE

HORNSBY; ROBERT JEROME SMITH; and a place of

business known as Chateau X Theater and Bookstore,

Highway 17 South, Jacsonville, North Carolina,

Petitioners,

STATE OF NORTH CAROLINA, EX REL WILLIAM H.

ANDREWS, District Attorney for the Fourth District of

North Carolina,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

Petitioners pray that a Writ of Certiorari issue to review

the judgment of the Supreme Court of North Carolina en-

tered January 4, 1979.

CITATION TO OPINION BELOW

This Petition seeks review of the North Carolina Su-

preme Court decision in the case of State of North Carolina ex

rel Andrews v. Chateau X, Inc., et al., 296 N.C. 251,

SE2nd (1979), which appears in the Appendix to this

Petition.

STATEMENT OF JURISDICTION

The judgment of the North Carolina Supreme Court was

entered on January 4, 1979. Jurisdiction to review this

judgment by Writ of Certiorari is conferred on this Court by

Title 28, United States Code, §1257(3).

QUESTION PRESENTED

Whether an injunction against the future sale of

“obscene materials”, as that term is defined by state law,

represents an unconstitutional prior restraint on rights

guaranteed to the Petitioners by the First and Fourteenth

Amendments to the United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

Amendment I

Congress shall make no law respecting an establish-

ment or religion or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble and to petition the gov-

ernment for a redress of grievances.

Amendment XIV

$1. Citizenship defined - privileges of citizens - All per-

sons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and

of the state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall any state

deprive any person. of life, liberty or property without due

process of law, nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

Petitioner Chateau X, Inc. is a South Carolina Corpora-

tion licensed to do business in the State of North Carolina

and operating a place of business in Jacksonville, North

Carolina. At that location, Petitioner Chateau X, Inc. owns

and operates a bookstore and arcade which disseminates to

consenting adults material of an explicit sexual nature. The

other Petitioners are officers and employees of this place of

business. On December 12, 1977, Respondent, the District

Attorney for the Fourth Judicial District of North Carolina,

filed a complaint against the Petitioners. This Complaint

alleged that the Petitioners were maintaining a business for

the purpose of exhibiting and selling to the public obscene

films and publications as a regular and predominant course

of the Petitioners’ business. The Respondent’s Complaint

named certain materials being disseminated by the

Petitioners. The Respondent further alleged that the

Petitioners were selling other material which was similar to

that named in the Complaint. Respondent’s Complaint al-

leged that the actions of the Petitioners constituted a nui-

sance pursuant to Chapter 19 of the North Carolina General

Statutes and asked that Petitioners’ business be declared a

nuisance and be perpetually enjoined from operating any-

where within the State of North Carolina. Respondent also

requested the destruction of the materials specified in his

Complaint.

On December 12, 1977, the same day on which the

Respondent filed his Complaint, the Onslow County

Superior Court issued a Temporary Restraining Order en-

joining the Petitioners from removing or interfering with

any property on the premises of their business and ordering

them to make a full accounting of all transactions involving

“lewd” or “obscene matter.” On December 20, 1977, counsel

for the Petitioners filed a motion to dismiss or continue the

action. This motion was based on the pendency of an action

in the Federal District Court for the Eastern District of

North Carolina in which the constitutionality of the North

Carolina nuisance law was being challenged. This motion

was denied.

The Court, on December 30, 1977, issued a preliminary

injunction which essentially enjoined the dissemination of

all of Petitioners’ stock-in-trade. This injunction enjoined all

future sales of “obscene and lewd matter” as those terms are

defined by the North Carolina Obscenity Law. As a result of

this injunction, Petitioners closed their place of business. It

has remained closed since that date. On January 4, 1978,

Petitioners filed their Answer, as wel] as a Motion to Dismiss

Respondent’s Complaint. The motion alleged that the North

Carolina Nuisance Statute, as well as the relief requested by

the Respondent, violated the First and Fourteenth Amend-

ments to the United States Constitution. Petitioners further

contended that, since theirs was the only adult business in

‘the City of Jacksonville against which Respondent had

brought suit, the statute was being enforced against

Petitioners in an unconstitutionally arbitrary manner and,

thus, had violated their equal protection guarantees. The

Court denied this motion on the same day it was filed.

Trial was held on January 4 and 5, 1978, and resulted in

a judgment rendered on January 13, 1978. At trial, Petition-

ers cited the Court to a ruling handed down by the Federal

District Court for the Eastern District of North Carolina on

January 4, 1978. This opinion, Fehlhaber v. North Carolina,

445 F.Supp. 130 (EDNC 1978) held the North Carolina Nui-

sance Statute unconstitutional in several respects, includ-

ing those raised by the Petitioners. Nonetheless, the state

court again refused to dismiss the case against Petitioners

and granted relief contrary to the Federal Court ruling.

In its judgment, the state trial court held that all the

material specified in Respondent’s Complaint was “lewd,

obscene and a nuisance.” The Court then ordered Petitioners

enjoined from the dissemination of the specified materials

and ordered the destruction of these materials. Further, the

Court enjoined the Petitioners from:

Possessing for exhibition to the public illegal, lewd mat-

ter consisting of films which appeal to the prurient inter-

est in sex without serious literary, artistic, educational,

political or scientific value and that depicts or shows:

(1) Persons engaging in sodomy, per os, or per anum

(2) Enlarged exhibits of the genitals of male and

female persons during acts of sexual intercourse, or

(3) Persons engaging in masturbation.

and from

Possessing for sale and in selling illegal lewd matter

which constitutes a principal or substantial part of the

stock in trade at a place of business consisting of

magazines, books and papers which appeal to the pru-

rient interest in sex without serious literary, artistic,

educational, political or scientific value and that depicts

or shows:

(1) Persons engaged in sodomy, per os, or per anum

(2) Enlarged exhibits of the genitals of male and

female persons during acts of sexual intercourse, or

(3) Persons engaging in masturbation. S

Petitioners appealed this judgment to the North

Carolina Court of Appeals. That Court granted a by-pass so

that the appeal might be heard by the North Carolina Su-

preme Court. In this appeal, Petitioners raised numerous

constitutional issues, all based on the United States Con-

stitution. Petitioners challenged both the procedural and

substantive constitutionality of the North Carolina Nui-

sance Statute and also argued the constitutional legitimacy

of the trial court’s injunction order. Petitioners contended

that the statute constituted an unconstitutional prior re-

straint on activities protected by the First and Fourteenth

Amendments because it provided for the effective closing of a

business based on prior sales of obscene material. Petition-

ers also contended that the trial court’s injunction order

against future sales of “obscene material” violated Petition-

ers’ First and Fourteenth Amendment rights by imposing an

unconstitutional prior restraint upon them. Petitioners

further argued that the trial court’s injunction order was

unconstitutionally overbroad because it failed to require

that the material to be enjoined in the future be judged by

contemporary community standards or be patently offen-

sive.

audi

The North Carolina Supreme Court affirmed the trial

court by a four-to-one vote with two members not participat-

ing. In so doing, the Court did not rule on Petitioners’ claim

that the North Carolina Nuisance Statute was unconstitu-

tional. However, it did note that, if the challenged provisions

did constitute an unconstitutional prior restraint, those por-

tions would be severable from the remainder of the statute.

The Supreme Court held that the trial court’s incorporation

of the North Carolina Obscenity Law cured any infirmities

in its injunction by imposing the legal test for obscenity upon

the Petitioners. Finally, the North Carolina Supreme Court

ruled that an injunction against future dissemination of

“obscene material” did not constitute an unconstitutional

prior restraint in violation of the First and Fourteenth

Amendments to the United States Constitution. The one

dissenting justice opined that the trial court’s injunction

against future sale of “lewd matter” “contravened the free-

dom of speech and freedom of the press clauses of the First

Amendment as applied to the states under the Fourteenth

Amendment” and noted that “this is the kind of prior re-

straint against future expression which the United States

Supreme Court has consistently and rightly determined to

be inconsistent with the guarantees of the First Amend-

ment.” (Appendix, p. ).

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH A RUL-

ING OF THE NORTH CAROLINA FEDERAL DIS-

TRICT COURT IN THE SAME SUBJECT MATTER

AND WITH THE DECISIONS OF OTHER FEDERAL

AND STATE COURTS.

The ruling of the North Carolina Supreme Court which

Petitioners seek to review stands in direct contradiction to

rulings of several other state courts and of two recent federal

court decisions, both of which are now on appeal. Most criti-

cal is the friction between the ruling below and a decision

rendered by the Federal Court for the Eastern District of

North Carolina in Fehlhaber v. North Carolina, 445 F.Supp.

130 (EDNY 1978). In Fehlhaber, a group of adult businesses

brought suit against the State of North Carolina, its Attor-

ney General and a local District Attorney to challenge the

validity of a 1977 enactment, Ratified Bill Chapter 819. This

law, which became GS 19-1 et seq. amended prior public

nuisance law to provide civil remedies for the “illegal posses-

sion or sale or obscene matter.” During the pendency of the

Fehlhaber case, Respondent brought the instant action

against Petitioners pursuant to that statute.

Among the claims asserted by the Plaintiffs in Feh-

lhaber was an attack on the injunctive provisions of the

nuisance law. Those provisions are contained in §19-5 of the

Act which provides that, once the state has established that

a business has sold any obscene material:

An order of abatement shall be entered as a part of the

judgment in the case, which judgment and order shall

perpetually enjoin the defendant and any other person

from maintaining the nuisance at the place complained

of. . .Such order may also require the effectual closing of

the place against its use thereafter for the purpose of

conducting any such nuisance.

Plaintiffs in Fehlhaber argued that this section provided

for an unconstitutional absolute closing of a business based

on a sale of a single piece of obscene material. In support of

this claim, Plaintiffs cited §19-2.1 which allowed an action

“to enjoin the use of any structure or thing adjudged to be a

nuisance under this chapter.” Defendants contended that

the challenged statute only allowed an injunction to be di-

rected against the specific material deemed obscene. The

Fehlhaber Court rejected both interpretations and held that:

The clear meaning of Section 19-5 is that upon a finding

that a book store or moviehouse is a nuisance because it

substantially or regularly trades in obscene materials,

the superior court judge must enjoin the further distribu-

tion by the particular proprietor of any books or movies

falling within the statutory definition of lewdness.

445 F.Supp. at 137.

The issue, thus, became whether the statute could constitu-

tionally provide for an injunction against all future sales of

“obscene matter” as that phrase is defined by the North

Carolina obscenity law. |

The Fehlhaber Court ruled that the statute could not so

provide. Any such injunction, the Court held, would consti-

tute an unconstitutional prior restraint on activity pre-

sumptively protected by the First Amendment. In so ruling,

the Fehlhaber Court stated:

Numerous courts have struggled diligently with the

applicability of these basic principles to a state’s efforts

to regulate obscenity through civil nuisance procedures.

Seven state supreme courts have invalidated injunction

provisions of civil nuisance statutes analogous to North

Carolina’s as overbroad prior restraints ... The com-

mentators are similarly unanimous.

* kk

The equation of prior restraint with subsequent punish-

ment ignores basic principles rooted in our jurisprudence

since Blackstone. While the government may be able

subsequently to punish those who engage in unprotected

speech, only in exceptional circumstances may the same

speech (in this case, the dissemination of books and

movies) be enjoined before it occurs.

**k

That particular speech may be outside the parameters of

the First Amendment and thus punishable criminally

provides no theoretical basis for enjoining the speech

before its occurrence.

Id. at 139 (Citations omitted)

(Footnote omitted)

The Fehlhaber Court issued a declaratory judgment

that §19-5, the injunction procedure of the nuisance law, was

unconstitutional as not being strictly limited to specified

materials and as constituting an unconstitutional prior re-

straint on future dissemination of presumptively protected

speech materials. The state appealed the Fehlhader ruling to

the Fourth Circuit Court of Appeals, and this appeal is

presently pending. Although Petitioners cited the Fehlhaber

decision to the North Carolina Supreme Court, the majority

opinion of that Court neither discussed nor distinguished

that ruling.

More recently, in Universal Amusement Co., Inc. v.

Vance, F.2d (5th Cir. #75-4312, decided De-

cember 18, 1978) the Fifth Circuit Court of Appeals adjudi-

cated the same issue in a manner consistent with the Feh-

lhaber ruling and contrary to the holding of the North

Carolina Supreme Court. In that case, the Fifth Circuit had

originally ruled that an injunction against future dissemi-

nation of “obscene material” did not constitute an uncon-

stitutional prior restraint. Universal Amusement Co., Inc. v.

Vance, 559 F.2d 1286 (5th Cir. 1977). The Court, however,

granted an En Banc rehearing to reconsider this holding. On

rehearing, the Court reversed its earlier ruling and held

that:

An order banning the exhibition of unnamed ‘obscene’

films would prohibit the showing of films that have not

been judicially declared obscene, as well as, films that

may not have even been produced . . . An injunction that

forbids the showing of any film portraying a particular

act enumerated in the obscenity statute suppresses fu-

ture films because past films have been deemed offensive

... We therefore hold that Article 4667(a)(3) is uncon-

stitutional insofar as it authorizes injunctions against

the future exhibition of unnamed films. Such a broad

injunction simply cannot stand, for it amounts to a prior

restraint on materials not yet declared obscene (Cita-

tions omitted)

The Defendants in Universal Amusement Co., Inc. v. Vance,

have appealed the Fifth Circuit decision to this Court.

In addition to conflicting with these two Federal Court

opinions, the opinion below rejected the rulings of eight state

Supreme Courts all of which manifestly and uniformly in-

validated the same type of injunction which the North

Carolina Supreme Court upheld. Indeed, every state Su-

preme Court which has considered this question has ruled

that any injunction against future sales of “obscene mate-

rial” and any statute which allows for such an injunction

violate First and Fourteenth Amendment protections

against unconstitutional prior restraints on speech activity.

Parish of Jefferson v. Bayou Landing, Ltd., 350 So. 2d 158

(La. 1977); New Riviera Arts Theater v. State ex rel Davis,

219 Tenn. 652, 412 SW2d 890 (1967); Ranck v. Bonal Enter-

prises, Inc.; 467 Pa. 569, 359 A.2d 748 (1976); People ex rel

Busch v. Projection Room Theater, 17 Cal.3rd 42, 130

Ca.Rptr. 328, 550 P.2d 600 (1976) cert. den. 429 U.S. 922, 97

S.Ct. 320, 50 L.Ed.2d 289 (1976); Sanders v. Georgia, 231 Ga.

608, 203 SW2d 153 (1974); State ex rel Sweeton v. General

Corporation, 294 Ala. 657, 320 So.2d 668 (1975) cert. den.

425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d 753 (1976); State v. A

Motion Picture entitled “The Bet”, 219 Kan. 64, 547 P.2d 760

(1976); Mitchem v. State ex rel Schaub, 250 So.2d 883 (Fla.

1971). :

This Petition presents three factual postures which

have traditionally served as a basis for this Court’s grant of

certiorari review. First, the ruling below has created a clear

friction between the North Carolina State and Federal

Courts. This Court provides the only forum in which this

friction can be alleviated. Second, a conflict between deci-

sions of the highest courts of several states on a federal

question has proven to be cogent ground for this Court’s

review. This is especially so with regard to the validity under

the Federal Constitution of a state statute common to these

various states. Fuller v. Oregon, 417 U.S. 40, 42, 94 S.Ct.

2116, 40 L.Ed.2d 642 (1974). Third, the conflict between the

North Carolina Supreme Court and the Fifth Circuit Court

of Appeals provides a further basis for granting review of

either decision. See Katzinger v. Chicago Metallic Mfg. Co..,

329 U.S. 394, 67 S.Ct. 416, 91 L.Ed. 374 (1947).

2. THE COURT BELOW ERRONEOUSLY APPLIED

SIGNIFICANT UNITED STATES SUPREME

COURT PRECEDENT

In holding that the injunction against Petitioners did

not constitute an unconstitutional prior restraint, the Court

below relied heavily on its determination that this Court’s

opinion in the landmark case of Near v. Minnesota ex rel

Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) was

inapplicable to the regulation of explicit sexual material.

Based on this determination, the Court below held that the

trial court’s injunction against future sales of “obscene

material” was specific enough to avoid self-censorship and

was “in effect nothing more than a personalized criminal

statute against selling certain obscene material that is di-

rected toward the Defendants because they sold illegal mat-

ter in the past.” (Appendix, P. +)

These holdings are patently erroneous. Neither this

Court nor any other court has ever held that the precepts

promulgated in Near are inapplicable to civil procedures

involving explicit sexual material. In Near, this Court in-

validated a statute which allowed for the restraint of future

publications based on a finding that the publication, in the

past, had presented “malicious, scandalous and defamatory”

matter. This Court stated that “liberty of the press, histori-

cally considered and taken up by the Federal Constitution,

has meant, principally although not exclusively, immunity

from previous restraints or censorship.” Jd. at 716. The

North Carolina Supreme Court cited language in the Near

opinion in which the Court stated “on similar grounds, the

primary requirements of decency may be enforced against

obscene publication” in holding that the rigid requirements

against prior restraints established by the Near decision

were inapplicable to the injunction against Petitioners.

Later opinions of this Court make it manifest that the

quoted language referred to restraints against specific

material brought before a trier of fact and deemed obscene by

that trier of fact and not to material which was neither

specified nor deemed obscene. This distinction between a

restraint based on a judgment that specific material is

obscene and a prior resti sint without such an adjudication is

clearly drawn in Kingsley Books, Inc. v. Brown, 354 U.S. 436,

77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). In the Kingsley Books

case, this Court upheld a New York statute from the law

invalidated in Near v. Minnesota. This Court did not distin-

guish the Near case on the basis that the statute in Near did

not involve regulation of explicit sexual material. Rather,

the law adjudicated in Kingsley Books was upheld because

“it studiously withholds restraint upon matters not already

published and not yet found offensive.” 345 U.S. at 445.

Later, in Paris Adult Theater I v. Slaton, 413 U.S. 49, 93

S.Ct. 2628, 37 L.Ed.2d 446 (1973), this Court, in approving a

Georgia injunctive procedure, stressed that:

Georgia imposed no restraint on the exhibition of the

films involved in this case until after a full adversary

proceeding and a final judicial determination by the

Georgia Supreme Court that the materials were con-

stitutionally unprotected. Jd. at 55 (Footnote omitted)

The injunction upheld by the Court below does not

studiously withhold restraint on future speech and uncon-

stitutionally places the burden of self-censorship upon the

Petitioners. The challenged injunction places upon Petition-

ers the burden of determining the obscenity vel non of every

piece of material which they desire to sell. As such, Petition-

ers are required to make a determination which courts and

legislatures have been unable to make for two and one-half

decades. The problem of defining obscenity has been termed

“intractable”, Interstate Circuit, Inc. v. Dallas, 390 U.S. 676,

704, 88 S.Ct. 1304, 20 L.Ed.2d 225 (1968) (Harlan J., Con-

curring and Dissenting). Several justices of this Court have

conceded that efforts to do so must ultimately fail. See e.g.

Miller v. California, 413 U.S. 15, 37, 93 S.Ct. 2607, 37

L.Ed.2d 419 (1973) (Douglas J., Dissenting); Paris Adult

Theater I v. Slaton, supra, 413 U.S. at 73 (Brennan J., Dis-

senting); Smith v. United States, 431 U.S. 291, 311, 97S.Ct.

1756, 52 L.Ed.2d 324 (1977) (Stevens J., Dissenting). Courts

and commentators alike have recognized the extraordinary

difficulty in promulgating standards which are intelligible

enough to provide uniform notice to the public and guidance

to the judiciary by which they may perform the delicate job of

delineating between protected and unprotected speech. See

e.g. Note, The Overbreadth Doctrine, 83 Harv.L.Rev. 844,

883-890 (1970), Note, New Prosecutorial Techniques and

Continued Judicial Vagueness: An Argument for Aban-

doning Obscenity as a Legal Concept, 21 UCLA L.Rev. 181

(1973).

This Court has stressed that:

The line between speech unconditionally guaranteed

and speech which may legitimately be regulated, sup-

pressed or punished is finally drawn. Speiser v. Randall,

357 U.S. 513, 525, 78 S.Ct. 1332, 2L.Ed.2d 1460 (1958).

Petitioners are required to draw this fine line. Petitioners

must make their own determination as to what contempor-

ary community standards may be applicable, whether any

given material may appeal to a prurient interest in sex, to

what group that material might appeal and whether the

material might be patently offensive. The result of such

self-censorship is clear and was condemned by this Court in

Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205

(1959), reh.den. 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383

(1959). As this Court noted in that case, the evil of self-cen-

sorship is that public access to speech matter would be re-

stricted to those materials whic booksellers had inspected

and found to be safe from any liability. As this Court noted:

The booksellers’ self-censorship, compelled by the State,

would be a censorship affecting the whole public, hardly

less virulent for being privately administered. Through

it, the distribution of all books, both obscene and not

obscene would be impeded. Jd. at 154.

The result of forcing those such as Petitioners to make

such an impossible determination and to censor themselves

is vividly demonstrated by Petitioners’ response to the chal-

lenged injunction. As a result of the injunction, Petitioners’

store has remained closed since December, 1977, and re-

mains closed today.

For this very reason, this Court has imposed strict limits

on all injunctions against dissemination of presumptively

protected speech. As prior restraints, such injunctions must

come before a reviewing court bearing a heavy presumption

against their constitutional validity. Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

The Court below completely ignored this presumption and

failed to impose it upon the state. Instead, the North

Carolina Supreme Court based its judgment on a theory

which has been manifestly rejected by this Court. The Court

below relied on the proposition that an injunction against

future expression which, by statutory definition, would be

violative of state law posed no greater threat to protected

speech than statutes which impose criminal sanctions

against those engaged in such described expression. This

Court has long rejected this argument and has placed more

severe restrictions on civil injunctions than on criminal

proscriptions:

A presumption against prior restraints is heavier — and

the degree of protection broader — from that against

limits on expression imposed by criminal penalties. Be-

hind the distinction is a theory deeply etched in our law:

A free society prefers to punish the few who abuse rights

of speech after they break the law than to throttle them

and all others before him. Southeastern Promotions, Ltd.

v. Conrad, 420 U.S. 546, 558-559, 95 S.Ct. 1239, 43

L.Ed.2d 448 (1975)

A threat of criminal sanctions after publication may chill

speech but a prior restraint will freeze such speech. Ne-

braska Press Association v. Stuart, 427 U.S. 539, 559, 96

S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Thus, the Court below violated clear precedent from this

Court by misapplying the doctrine of prior restraint, apply-

ing the same standards for prior restraints as for criminal

sanctions and by failing to impose the strict burden against

prior restraints required by this Court.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the Supreme Court of

North Carolina.

Respectfully submitted,

ARTHUR M. SCHWARTZ, P.C.

The Market Center

1650 Market Street

Denver, Colorado 80202

(303) 893-2500

BAILEY, RAYNOR & ERWIN

323 New Bridge Street

Jacksonville, North Carolina 28540

(919) 455-3212

APPENDIX

SUPREME COURT OF NORTH CAROLINA

FALL TERM 1978

STATE OF NORTH CAROLINA, EX

REL WILLIAM H. ANDREWS, DIS-

TRICT ATTORNEY FOR THE

FOURTH DISTRICT OF NORTH

CAROLINA

CHATEAU X, INC., a South Carolina

Corporation; ATLA THEATERS, INC., a

South Carolina Corporation; JAMES

RUSS, individually and in his capacity

as an officer of both Chateau X, Inc. and

ATLA Theaters, Inc.; ALBERT PELO-

QUIN, individually and in his capacity

as an officer of both Chateau X, Inc. and

ATLA Theaters, Inc.; HECTOR

RIQUELME, JR.; FREDERICK OLLIE

BYROM; SUSAN RUPE; VICTOR

STROOP; JIMMIE TUCKER HILL;

DENISE TERRY LAMB; GEORGE

JOHNSON; JOE HORNSBY; ROBERT

JEROME SMITH; and a place of busi-

ness known as Chateau X Theater and

Bookstore, Highway 17 South, Jackson-

ville, North Carolina.

No. 23 - ONSLOW

Appeal by defendants and cross-appeal by the State

from Small, J., at the 4 January 1978 Session of Onslow

Superior Court.

On 12 December 1977 the State, through William H.

Andrews, District Attorney for the Fourth District, filed a

complaint against defendants, a South Carolina corporation

doing business in Jacksonville, North Carolina and its of-

ficers and employees. The complaint alleged that defendants

maintained a business, Chateau X Theater and Bookstore,

for the purpose of illegal exhibitions and sales to the public of

obscene and lewd films and publications as a regular and

predominent course of business. Among other relief not rel-

evant to this appeal, it prayed that Chateau X be declared a

nuisance under Chapter 19 of North Carolina General Stat-

utes. The State also asked that an injunction issue ordering

that defendants be “perpetually enjoined from maintaining,

using, continuing, owning or leasing said place known as

Chateau X Theater and Bookstore ... as a nuisance” and

“any place in the State of North Carolina as a nuisance.”

On 20 December 1977 defendants madé a motion to

dismiss the action or, in the alternative, to continue it. They

based this motion on the fact that there was a declaratory

judgment action pending in the United States District Court

for the Eastern District of North Carolina to test the con-

stitutionality of Chapter 19. On 4 January 1978 defendants

filed their answer along with a motion to dismiss the State’s

complaint on the ground that Chapter 19 is unconstitu-

tional. After argument, the trial court denied defendants’

motion.

The parties, by mutual stipulation, waived a jury trial.

Trial was conducted before the judge beginning on 4 Ja nuary

1978.

At trial, the State introduced twenty exhibits into evi-

dence without objection by defendants. Nineteen of these

were copies of magazines and films possessed for sale or

shown by Chateau X. State’s Exhibit Number 20 was an

inventory of materials found at the operation on 12 De-

cember 1977.

The trial judge personally viewed State’s Exhibit

Number 15, a film called “Airline Cockpit,” and State’s

Exhibit Number 3, a magazine entitled “Spread Your Legs.”

The parties mutually stipulated that all the films and

magazines listed in the inventory, State’s Exhibit Number

20, “contain substantially similar material” as is found in

State’s Exhibit Number 15 and State’s Exhibit Number 3.

The defendants presented no evidence. The parties

stipulated, however, “{t]hat if the defendants would testify,

the evidence would indicate that the motion pictures exhib-

ited and the books distributed and sold were done to consent-

ing adults.”

The trial judge found that State’s Exhibits Numbers 15

and 3 are obscene, that the remainder of the nineteen films

and magazines introduced into evidence are obscene, and

that all the materials listed in the inventory are nuisances.

He held that all the above films and magazines are nui-

sances. He also declared Chateau X itself to be a nuisance

under Chapter 19.

The judge ordered that all the material listed on the

inventory, State’s Exhibit Number 20, be confiscated and

destroyed. He enjoined the defendants from exhibiting or

selling any of these items. The defendants also were enjoined

from selling or showing any other obscene matter in the

future which depicted certain specific sexual conduct listed

in the order.

In his final order the trial judge interpreted a part of

G.S. 19-5 as authorizing the actual closing of a business after

it had been declared a nuisance. He held this portion uncon-

stitutional.

Both the defendants and the State gave timely notice of

appeal from the trial court’s final judgment.

On 24 April 1978 the parties petitioned this Court pur-

suant to G.S. 7A-31(b) for review prior to it being determined

by the Court of Appeals. We allowed the petition on 8 May

1978.

Attorney General RUFUS L. EDMISTEN by Senior

Deputy Attorney General ANDREW A. VANORE, JR.,

Assistant Attorney General MARVIN SCHILLER and I.

BEVERLY LAKE, JR. for the State.

BAILEY & RAYNOR BY EDWARD G. BAILEY and

FRANK ERWIN; ARTHUR M. SCHWARTZ, P.C. by

NEIL AYERVAIS for the defendants.

COPELAND, Justice.

This case concerns the statutory construction and con-

stitutionality of Chapter 19 of North Carolina General Stat-

utes. For the reasons set out below, we have determined that

Chapter 19 as interpreted and applied in this case is con-

stitutional; therefore, the judgment of the trial court is af-

firmed.

Both parties in this action have brought up assignments

of error to this Court. The State is challenging certain

interpretations and applications of Chapter 19 by the court

below. As the resolution of these issues affects the defen-

dants’ constitutional questions, we will consider the State’s

assignments of error on cross-appeal first.

The core of the controversy in this case stems from that

part of the trial court’s order that enjoins the defendants

from selling or showing obscene matter that is not listed on

the inventory. This portion of the order states:

“2. The defendants . . . are hereby enjoined and

restrained from:

d. Possessing for exhibition to the public illegal,

lewd matter ‘consisting of films which appeals to the

prurient interest in sex without serious literary, artistic,

educational, political or scientific value and that depicts

or shows:

(1) Persons engaging in sodomy, per os, or per

anum,

(2) Enlarged exhibits of the genitals of male and

female persons during acts of sexual intercourse,

(3) Persons engaging in masturbation.

e. Possessing for sale and in selling illegal lewd

matter which constitutes a principal or substantial part

of the stock in trade at a place of business consisting of

magazines, books, and papers which appeal to the pru-

rient interest in sex without serious literary, artistic,

educational, political, or scientific value and that depicts

or shows:

(1) Persons engaged in sodomy, per os, or per anum,

(2) Enlarged exhibits of the genitals of male and

female persons during acts of sexual intercourse,

(3) Persons engaging in masturbation.”

The State contests two aspects of the above injunction.

Both of them contain the argument that the judge did not go

far enough.

The State first claims the trial court erred by enjoining

films and publications showing only “enlarged” exhibits of

the genitals during sexuat intercourse. It argues that the

court was required to prohibit the sale of matter depicting

any genitals, enlarged or not, because of the mandates of

G.S. 19-5, which reads in part: “If the existence of a nuisance

is admitted or established . . . an order of abatement shall be

entered as part of the judgment in the case.” (Emphasis

supplied.) Apparently the State is contending that once a

business has been established as a nuisance, the judge is

required to enjoin the future distribution of any and all

obscene matter as defined by G.S. 19-1.1(2).1 We do not

agree.

The trial judge necessarily must be given some discre-

tion in formulating his abatement order. The defendants

will be subject to contempt of court if they violate the injunc-

tion; therefore, it is necessary that they be put on notice as to

1 G.S. 19-1.1(2) states:

“Lewd matter” is synonymous with “obscene matter” and means any

matter:

(a) Which the average person, applying contemporary community stan-

dards, would find, when considered as a whole, appeals to the prurient

interest; and

(b) Which depicts patently offensive representations of:

1. Ultimate sexual acts, normal or perverted, actual or simulated;

2. Masturbation, excretory functions, or lewd exhibition of the geni-

tals or genital area;

3. Masochism or sadism; or

4. Sexual acts with a child or animal.

Nothing herein contained is intended to include or proscribe any

writing or written material, nor to include or proscribe any matter which,

when considered as a whole, and in the context in which it is used,

possesses serious literary, artistic, political, educational, or scientific

value.

exactly what material they can and cannot show or sell in

the future. See generally D. DOBBS, REMEDIES § 2.4

(1973); Developments in the Law-Injunctions, 78 Harv.

L.Rev. 994, 1064 (1965). A judge has a duty to supply this

specificity. Rule 65(d) of the North Carolina Rules of Civil

Procedure states that “[e]very order granting an injunction .

. . Shall be specific in terms; shall describe in reasonable

detail, and not be reference to the complaint or other docu-

ment, the act or acts enjoined.”

The Legislature must have intended for judges to have

some discretion in abating nuisances. “[Llegislative intent is

usually ascertained not only from the phraseology of the

statute but also from the nature and purpose of the act and

the consequences which would follow its construction one

way or the other.” In re Hardy, 294 N.C. 90, 97, 240 S.E. 2d

367, 272 (1978). (Emphasis deleted.)

Chapter 19 as applied to obscene matter treads near the

area of free speech. The sanctions for disobeying an abate-

ment order could be severe. This Court need not decide today

whether a judge must always issue a general injunction,

such as this one, against selling or exhibiting obscene matter

not actually before the court. See D. Dobbs, supra at § 2.11

note 22. We do hold, however, that if such an order does

issue, the trial court has some discretion to define what

conduct is prohibited as long as it falls within constitutional

and statutory mandates, and he has the duty to specifically

warn the defendent of the prohibited conduct. This assign-

ment of error is overruled.

The State next argues that the trial court’s order was

erroneous because it enjoined the defendants from selling

obscene matter only when such material “constitutes a prin-

cipal or substantial part of [their] stock in trade.” It contends

that the judge was required to restrain the defendants from

selling any lewd matter at all, whether or not it made up a

large part of defendants’ inventory.

A careful reading of the statute refutes this argument.

As the State points out, G.S. 19-1.22defines nuisances in

terms of businesses that regularly display or sell lewd mate-

rial and the obscene matter itself. However, G.S. 19-1.2(5)

states that a lewd publication is a nuisance only when “pos-

sessed at a place which is a nuisance.” In order for a

bookstore to be a nuisance, the lewd publications must “con-

stitute a principal or substantial part of the stock in trade.”

Thus, not every isolated obscene publication is a nui-

sance that can be abated under G.S. 19-5. First it must be

found that the book or magazine is one of many, such that all

together they make up a large part of the bookstore’s inven-

2 G.S. 19-1.2. Types of nuisances. — The following are declared to be

nuisances wherein obscene or lewd matter or other conduct prohibited in

G.S. 19-1(a) is involved:

(1) Any and every place in the State where lewd films are publicly

exhibited as a predominant and regular course of business, or

possessed for the purpose of such exhibition;

(2) Any and every place in the State where a lewd film is publicly and

repeatedly exhibited, or possessed for the purpose of such exhibi-

tion;

(3) Any and every lewd film which is publicly exhibited, or possessed

for such purpose at a place which is a nuisance under this Article;

(4) Any and every place of business in the State in which lewd

publications constitute a principal or substantial part of the stock

in trade;

(5) Any and every lewd publication possessed at a place which is a

nuisance under this Article;

(6) Every place which, as a regular course of business, is used for the

purposes of lewdness, assignation, gambling, the illegal posses-

sion or sale of intoxicating liquor, the illegal possession or sale of

narcotic drugs as defined in the North Carolina Controlled Sub-

stances Act, or prostitution, and every such place in or upon which

acts of lewdness, assignation, gambling, the illegal possession or

sale of intoxicating liquor, the illegal possession or sale of narcotic

drugs as defined in the North Carolina Controlled Substances

Act, or prostitution, are held or occur. (1977, c. 819, s. 3).

tory. Once this initial determination is made, however, each

individual obscene publication is a nuisance, and any and

every one of them can be abated. This assignment of error is

overruled.

The trial court determined that a part of G.S. 19-5,

stating that the judge’s final order “may also require the

effectual closing of the place against its use thereafter for the

purpose of conducting any such nuisance,” authorizes the

complete closing of a theater or bookstore once it has been

declared a nuisance under Chapter 19. It held that portion

ineffectual in nuisance actions dealing with obscene matter

because such a closing would be an unconstitutional prior

restraint on free speech. The State concedes in its brief and

in its argument before this Court that any complete closing

of a business for past sales of obscene material would consti-

' tute illegal prior restraint. We agree. See Organization for a

Better Austin v. Keefe, 402 U.S. 415, 29 L.Ed. 2d 1, 91S.Ct.

1575 (1971). Other states have so held. See e.g., Sanders v.

State, 231 Ga. 608, 203 S.E. 2d 153 (1974); State v. A Motion

Picture Entitled “The Bet,” 219 Kan. 64, 547 P. 2d 760

(1976); Gulf States Theatres of Louisiana, Inc. v.

Richardson, 287 So. 2d 480 (La. 1973).

The State contends, however, that the trial court erred

in interpreting G.S. 19-5 as authorizing such a complete

closing. That issue is not properly before the Court at this

time. This interpretation of the statute was not excepted to

by the State, and it also was not included iu its grouping of

exceptions and assignments of error in the record on appeal.

Under Rule 10 of the Rules of Appellate Procedure, “the

scope of review on appeal is confined to a consideration of

those exceptions set out and made the basis of assignments of

error in the record on appeal.” This mandate is subject to

various exceptions, none of which are relevant here. The

State is as much bound by these Rules as other parties before

the courts of this State. Thus, we do not now decide whether

G.S. 19-5 does authorize a judge to completely close a busi-

ness after it has been declared a nuisance because of past

exhibitions or sales of obscene material.

We turn now to defendants’ assignments of error. At the

outset, it is important to note what issues are not before this

Court. The trial judge found all the items listed in the inven-

tory, totaling over five hundred different films and

magazines, to be legally obscene. Defendants do not contest

this finding. Furthermore, from a cursory examination of

some of that matter, suffice it to say that it is, in the words of

Chief Justice Burger, “offensive to the point of being nau-

seous.” Kaplan v. California, 413 U.S. 115, 117, 37 L.Ed. 2d

492, 496, 93 S.Ct. 2680, 2683 (1973). Thus, we are dealing

here not with borderline obscenity but rather with patently

hard-core pornography.

Secondly, the defendants do not object to that provision

of the court’s order restraining them from selling or exhibit-

ing the material before the court. In essence, then, the de-

fendants are attacking only the statute itself and that por-

tion of the final order enjoining them from selling or showing

obscene matter not before the court. We now turn to these

contentions.

Defendants first assert the trial court erred in denying

their motion to dismiss the State’s complaint before trial.

Although it is somewhat unclear, apparently they argue

that Chapter 19 of North Carolina General Statues is uncon-

stitutional on its face, thereby invalidating any action taken

pursuant to it.

The defendants contend that the act in question is un-

constitutional per se in two respects. First, they assert G.S.

19-5 authorizes the complete closing of a business in viola-

tion of the first amendment right of free speech. As stated

above, that issue is not being decided by the Court at this

time. Assuming, however, that G.S. 19-5 does allow such an

illegal action, defendant’s position is still untenable.

When only part of a statute is unconstitutional, the

constitutional portions will still be given effect as long as

they are severable from the invalid provisions. State v.

Smith, 265 N.C. 173, 143 S.E. 2d 293 (1965); Clark v. Mey-

land, 261 N.C. 140, 134 S.E. 2d 168 (1964). To determine

whether the portions are in fact divisible, the courts first see

if the portions remaining are capable of being enforced on

their own. They also look to legislative intent, particularly

to determine whether that body would have enacted the

valid provisions if the invalid ones were omitted. See Hobbs

v. Moore County, 267 N.C. 665, 149 S.E. 2d 1 (1966).

We find from an examination of the statute itself that

Chapter 19 is sufficiently complete when this provision of

G.S. 19-5, allegedly authorizing the padlocking of a busi-

ness, is deleted. As that portion relates to only one of many

possible remedies a court can adopt in its final order, the

statute can be adequately enforced without it. Furthermore,

in G.S. 19-8.3 the Legislature has provided guidance for

dealing with its intent in this area:

“If any section, subsection, sentence, or clause of this

Article is adjudged to be unconstitutional or invalid,

such adjudication shall not affect the validity of the re-

maining portion of this Article. It is hereby declared that

this Article would have been passed, and each section,

sentence, or clause thereof, irrespective of the fact that

any one or more sections, subsections, sentences or

clauses might be adjudged to be unconstitutional, or for

any other reason invalid.”

This argument is without merit.

The defendants also contend Chapter 19 is unconstitu-

tional on its face because it places the burden of proving

non-obscenity on a defendant in a nuisance action. They

claim that G.S. 19-1.2(2), set out above in footnote 1, requires

the defendant to prove as an affirmative defense that the

material before the court as a whole lacks “serious literacy,

artistic, political, educational, or scientific value.”

In Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93

S.Ct. 2607 (1973), the United States Supreme Court laid

down the present constitutional test for obscenity.

“The basic guidelines for the trier of fact must be: (a)

whether ‘the average person, applying contemporary

community standards’ would find that the work, taken as

a whole, appeals to the prurient interest; (b) whether the

work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable

state law; and (c) whether the work, taken as a whole,

lacks serious literary, artistic, political, or scientific

value.” Id. at 24, 37 L. Ed. 2d at 431, 93 S.Ct. at 2615.

(Citation omitted.)

It is clear that the burden of proving obscenity must be on the

State. Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 43 L. Ed. 2d 448, 95 S.Ct. 1239 (1975).

It is equally well settled, however, that legislative acts

are presumed to be constitutional, and this Court will inter-

pret a statute so as to comport with constitutional mandates

unless such a construction is unreasonable. See, e.g., Painter

v. Board of Education, 288 N.C. 165, 217 S.E. 2d 650 (1975);

Highway Commission v. Industrial Center, 263 N.C. 230,

139 S.E. 2d 253 (1964). Therefore, we find that the State is

required to prove all the elements of obscenity found in G.S.

19-1.2(2) in a nuisance action, including proof that the mate-

rial as a whole lacks “serious literary, artistic, political,

educational, or scientific value.” The trial judge properly

denied defendants’ motion to dismiss the State’s complaint.

The defendants next assert that the judge’s final order

dealing with illegal lewd matter not before the court en-

joined absolutely protected matter. They claim that the

order restrained the sale of non-obscene material because it

failed to require that the magazines and films enjoined be

“patently offensive” in their depiction of the specified sexual

conduct.

The Miller test of obscenity contains three elements, one

of which is that the material depicts defined sexual conduct

“in a patently offensive way.” A comparison of that test and

G.S. 19-1.2 (2) shows that Chapter 19’s definition of “lewd

matter” almost exactly tracks the Supreme Court’s lan-

guage in Miller. In his final order, the trial court enjoined

the defendants from showing or selling “illegal lewd matter”

which “appeals to the prurient interest in sex,” which is

“without serious literary, artistic, educational, political or

scientific value,” and which shows certain sexual conduct.

Thus, although the order restated almost all of the definition

of obscenity in Miller and in G.S. 19-1.2(2), it did not specifi-

cally state that the sexual conduct being depicted be “pat-

ently offensive.”

This minor omission is not fatal to the injunction. Other

courts have held it permissible for an injunction to include

terms that are adequately defined in applicable statutes.

See, e.g., Gulf King Shrimp Co. v. Wertz, 407 F. 2d 508 (5th

Cir. 1969); Wilson Finance Co. v. State, 342 S.W. 2d 117

(Tex. Civ. App. 1960). In the case before us the trial judge

enjoined only the sale of “illegal lewd matter” which is cor-

rectly and completely defined in G.S. 19-1.2(2). Thus, the

constitutional requirements of Miller have been met, and

defendants have been restrained from dealing in only legally

obscene magazines and films and not ones protected by the

first amendment. This assignment of error is overruled.

Defendants’ main argument is that the judge’s order

restraining them from selling or exhibiting obscene matter

not actually before the court is unconstitutional. They claim

such action constitutes an illegal prior restraint in violation

of their first amendment right of free speech.

The United States Supreme Court has repeatedly stated

that the first and fourteenth amendments are not absolute.

Even the greatly revered right to freedom of speech is subject

to various exceptions, one of which is obscenity. “This much

has been categorically settled by the Court, that obscene

material is unprotected by the First Amendment.” Miller v.

California, supra at 23, 37 L. Ed. 2d at 430, 93 S.Ct. at 2614.

It is equally well settled that the states have a long-recog-

nized legitimate interest in regulating obscenity in the

commercial context, which has become big business. See

generally Cook, The X-Rated Economy, FORBES, Vol. 122,

No. 6, Sept. 18, 1978.

“The sum of experience ... affords an ample basis for

legislatures to conclude that a sensitive, key relationship

of human existence, central to family life, community

welfare, and the development of human personality, can

be debased and distorted by crass commercial exploita-

tion of sex. Nothing in the Constitution prohibits a State

from reaching such a conclusion and acting on it legisla-

tively.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63,

37 L.Ed.2d 446, 460, 93 S.Ct. 2628, 2638 (1973).

A State can constitutionally attempt to control commer-

cial obscenity through its criminal laws. Roth v. United

States, 354 U.S. 476, 1 L.Ed. 2d 1498, 77 S.Ct. 1304 (1957).

However, that is not the only avenue open to it.

“We need not linger over the suggestion that some-

thing can be drawn out of the Due Process Clause of the

Fourteenth Amendment that restricts [a state] to the

criminal process in seeking to protect its people against

the dissemination of pornography. It is not for this Court

thus to limit the State in resorting to various weapons in

the armory of the law. Whether proscribed conduct is to

be visited by a criminal prosecution or by a qui tam action

or by an injunction or by some or all of these remedies in

combination, is a matter within the legislature’s range of

choice.” Kingsley Books v. Brown, 354 U.S. 436, 441, 1

L.Ed. 2d 1469, 1473-74, 77 S.Ct. 1325, 1327-28 (1957).

See also Times Film Corp. v. Chicago, 365 U.S. 43, 5

L.Ed. 2d 403, 81 S.Ct. 391 (1961).

Of course, the legislature must choose those means that are

within constitutional boundaries.

Defendants have concluded that because it is an injunc-

tion they are attacking, that remedy automatically consti-

tutes a prior restraint. We note, however, that in this area

prior restraint normally means when allegedly obscene

material is seized or preliminarily enjoined before a judicial

declaration of obscenity, see, e.g., Marcus v. Search Warrant,

367 U.S. 717, 6 L.Ed. 2d 1127, 81 S.Ct. 1708 (1961); Kingsley

Books v. Brown, supra., or when a person is required to

submit material for the approval of a licensing body before it

is allowed to be distributed or shown to the public. See, e.g.,

Times Film Corp. v. Chicago, supra; Kingsley International

Pictures Corp. v. Regents, 360 U.S. 684, 3 L.Ed. 2d 1512, 79

S.Ct. 1362 (1959). In fact, we could find no decision by the

United States Supreme Court that struck down an injunc-

tion such as this one or that even labelled one a prior re-

straint.

Assuming, however, that this injunction does fit the

definition of a prior restraint, our inquiry as to its legality

does not end there. For prior restraints are not per se uncon-

stitutional. Southeastern Promotions, Ltd. v. Conrad, 420

US. 546, 43 L.Ed. 2d 448, 95 S.Ct. 1239 (1975). Rather, the

courts must test its validity by its operation in practice, and

they have looked to see how the statute differs in effect from

a criminal law against selling obscene matter. Kingsley

Books v. Brown, supra.

In Kingsley Books the Supreme Court compared a New

York statute, authorizing a preliminary injunction against

the distribution of allegedly obscene matter for a short time

pending trial, with a criminal obscenity law. In upholding

that statute, that Court stated:

“Criminal enforcement and the proceeding under

[the New York statute] interfere with a book’s solicita-

tion of the public precisely at the same stage. In each

situation the law moves after publication; the book need

not in either case have yet passed into the hands of the

public. . . . In each case the bookseller is put on notice by

the complaint that sale of the publication charged with

obscenity may in the period before trial subject him to

penal consequences. In one case he may suffer fine and

imprisonment for violation of the criminal statute in the

other, for disobedience of the temporary injunction. The

bookseller may of course stand his gornd and confidently

believe that in any judicial proceeding the book could not

be condemned as obscene but both modes of procedure

provide an effective deterrent against distribution prior

to adjudication of the book’s content—the threat of

penalization.” Jd. at 442-43, 1 L.Ed. 2d at 1475, 77 S.Ct.

at 1328-29.

Although we realize that the preliminary injunction in

Kingsley is quite different from the injunction being

scrutinized in this case, the Court’s analysis provides us with

some guidance. The judge’s order here is restricted to legally

obscene matter; in fact it is limited to only a specified portion

of what is legally obscene. Thus the defendants suffer less

indecision as to what materials they can deal in under the

injunction than they weuld under a usual criminal obscenity

statute. It is true that the defendants may be fined or impris-

oned if they violate the injunction, but those same conse-

quences could flow from a violation of the criminal law.

In fact, under a Chapter 19 nuisance proceeding, unlike

@ prosecution under a criminal law, a defendant gets two

chances. Before such an injunction issues, a court must find

that a defendant sold illegal lewd matter in the past; how-

ever, he is not subject to criminal sanctions until he sells

obscene matter again in violation of the court’s order. See

Rendleman, Civilizing Pornography, The Case For An Ex-

clusive Obscenity Nuisance Statute, 44 Chi. L. Rev. 509, 556

(1977).

There is no significant difference procedurally in a crim-

inal action for selling obscenity and in a contempt action for

violation of an injunction. In both proceedings the defendant

can always defend on the ground that the material is not

legally obscene. See McKinney v. Alabama, 424 U.S. 669, 47

L. Ed. 2d 387, 96 S.Ct. 1189 (1976). The burden is on the

State to prove obscenity beyond a reasonable doubt. See G.S.

5A-15(f) (Cum. Supp. 1977). Although a defendant is not

entitled to a jury trial in the contempt action, the United

States Supreme Court has held that a defendant has no

constitutional right to a jury trial in criminal contempt

actions if the authorized penalty or the penalty actually

imposed does not exceed six months imprisonment. Taylor v.

Hayes, 418 U.S. 488, 41 L. Ed. 2d 897, 94 S.Ct. 2697 (1974).

Under G.S. 19-4, a defendant is subject only to “a fine of not

less than two hundred ($200.00) or more than one thousand

dollars ($1,000), or by imprisonment in the county jail not

less than three or more than six months, or by both fine and

imprisonment.” Thus, an injunction such as this one is in

effect nothing more than a personalized criminal statute

against selling certain obscene material that is directed

toward the defendants because they sold illegal matter in

the past. As the Legislature could have constitutionally im-

posed the same restrictions on the public in general, it is not

an unconstitutional prior restraint.

Although this point has not been raised by any party to

this lawsuit, we note that G.S. 19-4 authorizes a judge to

“summarily try and punish the offender” for violation of an

injunction issued under Chapter 19. While this “summary”

action is not defined by the Legislature, we emphasize that

the procedural safeguards outlined above must be followed.

See Harris v. United States, 382 U.S. 162, 15 L. Ed. 2d 240,

86 S.Ct. 352 (1965); Cooke v. United States, 267 U.S. 517, 69

L.Ed. 767, 45 S. Ct. 390 (1925)

Although there are provisions for summary criminal

contempt proceedings in G.S. 5A-13 and G.S. 5A-14, they

apply only to acts of contempt committed near or before a

judicial officer which are “likely to interrupt or interfere

with matters then before the court.” A violation of an order

such as this one certainly does not fall within that category.

Therefore, the plenary proceedings provided for in G.S.

5A-15 apply to contempt actions following a Chapter 19

injunction. :

Defendants strongly assert that this case is controlled

by Near v. Minnesota, 283 U.S. 697, 75 L.Ed. 1357, 51 S.Ct.

625 (1931). That case concerned a state statute that au-

thorized abatement of certain nuisances, one of which was “a

malicious, scandalous and defamatory newspaper.” The trial

court found the newspaper in question to be a public nui-

sance, and it permanently enjoined defendants “from further

conducting said nuisance under the name and title of said

The Saturday Press or any other name or title.” The United

States Supreme Court struck down the injunction, declaring

that it constituted an invalid prior restraint on defendants’

first amendment right to freedom of the press. While there

are some analogies between Near and this case, we feel that

the two are distinguishable in several important respects.

The defendants in Near operated a newspaper that

chiefly made allegations of misconduct directed toward pub-

lic officers. The Court, in dealing with the issue of freedom of

the press repeatedly emphasized that “[t]hat liberty was

especially cherished from the immunity it afforded from

previous restraint of the publication of censure of public

officers and charges of official misconduct.” Jd. at 717, 75 L.

Ed. at 1368, 51 S.Ct. at 631.

The difference between trying to limit that type of ex-

pression and obscenity has been recognized. “[I]t is manifest

that society’s interest in protecting this type of expression

[erotic material] is of a wholly different, and lesser, mag-

nitude than the interest in untrammeled political debate.”

Young v. American Mini Theatres, 427 U.S. 50, 70, 49 L. Ed.

2d 310, 326, 96 S.Ct. 2440, 2452 (1976). We agree with

Justice Stevens when he said: “It seems to me ridiculous to

assume that no regulation of the display of sexually oriented

material is permissible unless the same regulation could be

applied to political comment.” Smith v. United States, 431

U.S. 291, 318-19, 52 L.Ed. 2d 324, 346-47, 97 S.Ct. 1756,

1773 (1977) (Stevens, J., dissenting on other grounds). See

also Kingsley Books v. Brown, supra at 445, 1 L.Ed. 2d at

1476, 77 S.Ct. at 1330.

It is clear from the Near decision itself that the Court did

not intend for it to apply to injunctions concerning obscene

materials.

The Minnesota statute in Near also authorized an in-

junction against obscene publications declared to be nui-

sances. However, the Court specifically limited its holding to

striking down clause (b) of the act that dealt with malicious

and defamatory newspapers. “The opinion seems to concede

that under clause (a) of the Minnesota law the business of

regularly publishing and circulating an obscene periodical

may be enjoined as a nuisance.” Jd. at 737, 75 L.Ed. at 1378,

51 S.Ct. at 638 (Butler, J., dissenting).

The Court in Near was also concerned about the lack of

specificity in the trial court’s injunction, which restrained

the defendants from publishing “any publication what-

soever which is a malicious, scandalous or defamatory news-

paper, as defined by law.” The Court noted that “scandalous

and defamatory” are broadly defined by law to include publi-

cations charging official misconduct. Therefore, if one of the

defendants’ future editions contained any such allegations,

the defendants would then have to prove that the publication

is “usual and legitimate,” “consistent with the public wel-

fare,” and published with “good motives and for justifiable

ends” in order not to be held in violation of the order. The

Supreme Court recognized that these are vague standards at

best.

Our case is different. We have already stated that the

burden would be entirely on the State to prove that these

defendants had shown or sold illegal lewd matter in viola-

tion of the injunction. More importantly, this order is nar-

rowly drawn, and the prohibited conduct is specifically de-

fined.

The defendants assert that the danger here is in selfcen-

sorship; they will limit their sale of constitutionally pro-

tected matter for fear that they may violate the injunction.

The Supreme Court has addressed this issue.

“The fact that the First Amendment protects some,

though not necessarily all, [erotic] material from total

suppression does not warrant the further conclusion that

an exhibitor’s doubts as to whether a borderline film may

be shown in his theater . . . involves the kind of threat to

the free market in ideas and expression that justifies the

exceptional approach to constitutional adjudication rec-

ognized in cases like Dombrowski v. Pfister, 380 U.S. 479

(holding that a person can collaterally attack the con-

stitutionality of a criminal law that chills free speech in

the political context].” Young v. American Mini

Theatres, supra at 61, 49 L.Ed. 2d at 321, 96 S. Ct. at

2448.

We are sensitive to the importance of defendants’ claim

that their first amendment right to free speech is being

chilled by the injunction against future sales of unnamed

matter. However, in light of the unquestionable obscene

nature of all defendants’ films and magazines before the

court below, the fact that the defendants are adequately

warned of which materials they cannot sell or exhibit by the

specifically drawn order, and the procedural safeguards af-

forded the defendants, we find that the injunction is not an

unconstitutional prior restraint.

As to all issues that are properly before this Court, the

trial court is in all respects

AFFIRMED.

Justices Britt and Burke did not participate in this

decision.

Fall Term 1978

EXUM, Justice, dissenting:

As the majority opinion notes at the outset, the present

case “concerns the statutory construction and constitution-

Ee re ee ee

ality of Chapter 19 of [the] North Carolina General Sta-

tutes.” I disagree in part with the majority’s handling of both

aspects. As to the first, the majority upholds an injunction

the breadth of which is not authorized by the statute. As to

the second, the procedure upheld here is an unconstitutional

prior restraint on the exercise of freedom of speech and the

press.

I agree that the “core of the controversy in this case

stems from that part of the trial court’s order that enjoins

defendants from selling or showing obscene matter that is

not listed on the inventory,” i.e., matter described in the

abstract by the statutory definition of obscenity that defen-

dant might acquire in the future. The majority assumes,

without stating its reasons therefor, that the trial court was

authorized by the statute to enter an order this broad. As I

read the statute, it authorizes only an injunction against

future possession or sale of matter before the court and

judicially declared to be obscene at the proceeding in which a

defendant is adjudged to be maintaining a nuisance.

Chapter 19, which is entitled “Abatement of Nui-

sances,” is not an easy statute to comprehend. Besides

obscenity, it deals with places used for purposes of “assigna-

tion, prostitution, gambling, illegal possession or sale of

intoxicating liquors [and] illegal possession or sale of narco-

tic drugs .. .” G.S. 19-1(a). It is, in other words, a general

nuisance abatement statute. One of the key methods of

abatement it seems to contemplate is the closing of the place

where the nuisance is maintained. See G.S. 19-2.1, 19-5,

19-6, 19-7. Insofar as these closing provisions might be

applied to a place that disseminates printed material or

motion pictures, there are, it is conceded, serious constitu-

tional questions. See State v. A Motion Picture Entitled “The

Bet,” 219 Kan. 64, 547 P. 2d 760 (1976); General Corporation

v. Sweeton, 294 Ala. 657, 320 So. 2d 668 (1975).

There are however, other remedies provided under the

statute against one maintaining a nuisance. It is one of these

other remedies that is involved here. In addition to the

abatement of the nuisance by closing, G.S. 19-2.1 provides

for a suit “perpetually to enjoin all persons from maintaining

the same, and to enjoin the use of any structure or thing

adjudged to be a nuisance under this Chapter . . .” The sta-

tute’s primary remedial provisions are set out in G.S. 19-5,

as follows:

“Content of final judgment and order. — If the exis-

tence of a nuisance is admitted or established in an action

as provided for in this Chapter an order of abatement

shall be entered as a part of the judgment in the case,

which judgment and order shall perpetually enjoin the

defendant and any other person from further maintaining

the nuisance at the place complained of, and the defendant

from maintaining such nuisance elsewhere within the

jurisdiction of this State. Lewd matter, illegal intoxicat-

ing liquors, gambling paraphernalia, or substances pros-

cribed under the North Carolina Controlled Substances

Act shall be destroyed and not be sold.

“Such order may also require the effectual closing of

the place against its use thereafter for the purpose of

conducting any such nuisance.

“The provisions of this Article, relating to the clos-

ing of a place with respect to obscene or lewd matter,

shall not apply in any order of the court to any theatre or

motion picture establishment which does not, in the reg-

ular, predominant, and ordinary course of its business,

show or demonstrate lewd films or motion pictures, as

defined in this Article, but any such establishment may

be permanently enjoined from showing such film judi-

cially determined to be obscene hereunder and such film

or motion picture shall be destroyed and all proceeds and

moneys received therefrom, after the issuance of a pre-

liminary injunction, forfeited.” (Emphasis supplied.)

Under this provision the question whether the injunction

here is authorized boils down to what is meant by enjoining

the defendant or any other person from “further maintain-

ing the nuisance” and from “maintaining such nuisance

elsewhere.” This language implies a limitation on the scope

of injunctive relief to materials before the court at the time of

the determination that a nuisance exists. The acts that can

be enjoined are “further maintaining the nuisance” or

“maintaining such nuisance elsewhere.” The General As-

sembly has chosen at those two points in this provision to use

quite specific language. This language must refer to the

particular materials found by the trial court to be “lewd

matter” and on which it must have based its determination

that a nuisance existed. Thus, a defendant can under the

statute be enjoined from restocking the same materials that

have once been judicially determined obscene. The statute

does not, however, give the court power to enjoin a defendant

from selling or showing other materials that are not before

it.

In addition to avoiding a serious constitutional ques-

tion, see In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977);

In re Dairy Farms, 289 N.C. 456, 223 S.E. 2d 323 (1976),

interpreting the statute in this fashion would make it com-

patible with our criminal obscenity statutes. See G.S. 14-

190.1 through 14-190.8. Under those statutes, there is pro-

vided “an adversary determination of the question of

whether books, magazines, motion pictures or other mate-

rials are obscene prior to their seizure or prior to a criminal

prosecution relating to such materials.” G.S. 14-190.2(a).

Thus under our criminal statutes, no one can be prosecuted

for selling, showing, distributing or disseminating any

material until it has first been determined to be obscene.

Where the General Assembly has not spoken more clearly, it

is reasonable to assume that it intended this related nui-

sance statute, which carries with it a possibility of contempt

punishment, see G.S. 19-4, to follow a similar procedure.

I think the injunction is broader than permitted by the

statute and should not be upheld in its entirety. Further-

more the majority’s contrary interpretation renders the

statute unconstitutional insofar as it permits an injunction

against future expression.

The trial judge enjoined defendants from “possessing for

exhibition to the public” and “possessing for sale and selling”

various kinds of “lewd matter.” This “lewd matter” was

described generically in the injunction itself in terms of the

statutory prohibition. See G.S. 19-1.1(2). The injunction thus

seeks to proscribe categories of expression rather than any

particular film or publication which has been specifically

and judicially declared violative of the statute. It prohibits

the future possession of unnamed films, magazines, books

and papers and subjects defendants to possible fines and

imprisonment prescribed in G.S. 19-4 if they should violate

it by possessing any of these generically described items

which might later be judicially determined in a contempt

proceeding to fit within its proscription.

Insofar as the statute authorizes this kind of injunction I

believe it and, therefore, the injunction itself contravenes

the freedom of speech and freedom of the press clauses of the

First Amendment as applied to the states under the Four-

teenth Amendment. To me this is the kind of prior restraint

against future expression which the United States Supreme

Court has consistently and rightly determined to be incon-

sistent with the guarantees of the First Amendment. The

highest courts of at least three other states have found orders

virtually identical to the one here to be unconstitutional

prior restraints. Parish of Jefferson v. Bayou Landing Ltd.,

Inc., 350 So. 2d 158, 165-68 (La. 1977); Mitchem v. Schaub,

250 So. 2d 883 (Fla. 1971); New Rivieria Arts Theatre v.

State, 219 Tenn. 652, 412 S.W. 2d 890 (1967). In addition, in

a carefully considered opinion, Judge Franklin T. Dupree,

Jr., an able jurist noted for his industry and scholarship, has

held that insofar as G.S. 19-5 allows an injunction against

distribution of materials not previously adjudged obscene, it

is unconstitutional. Fehlhaber v. State, 445 F. Supp. 130

(E.D.N.C. 1978). Examination of the relevant constitutional

doctrines as applied by the Supreme Court leaves no doubt

that these results were correct.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973),

Georgia state prosecutors had filed civil complaints against

an Atlanta theater alleging that it was exhibiting two

obscene films contrary to a Georgia statute. The complaint

prayed that the two films be declared obscene and that the

theater be enjoined from exhibiting them. At a non-jury

trial, the judge assumed that the films were obscene but

ruled that inasmuch as the theater took reasonable precau-

tions against permitting minors to enter and view the films

it was constitutionally impermissible to enjoin their further

showing. The Georgia Supreme Court reversed. It described

the films as “hard core pornography” leaving “little to the

imagination” and held that their further exhibition should

have been enjoined. Slaton v. Paris Adult Theatre I, 228 Ga.

343, 347, 185 S.E. 2d 768, 770 (1971). The United States

Supreme Court in a 5-4 decision essentially approved the

Georgia civil injunction procedure. It remanded the case,

however, for reconsideration by the Georgia Supreme Court

in light of the new definitions of obscenity contained in

Miller v. California, 413 U.S. 15 (1973), decided the same

day. In approving the use of injunctive action, however,

Chief Justice Burger, writing for the majority, was careful to

note, 413 U.S. at 55:

“Here, Georgia imposed no restraint on the exhibition of

the films involved in this case until after a full adversary

proceeding and a final judicial determination by the

Georgia Supreme Court that the materials were con-

stitutionally unprotected. Thus the standards of Blount

v. Rizzi, 400 U.S. 410, 417, 27 L.Ed. 2d 498, 91 S.Ct. 423

(1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-

142, 19 L.Ed. 2d 966, 88 S.Ct. 754 (1968); Freedman v.

Maryland, 380 U.S. 51, 58-59, 13 L.Ed. 2d 649, 85 S.Ct.

734 (1965); and Kingsley Books, Inc. v. Brown, supra, at

443-445, 1 L.Ed. 2d 1469, were met. Cf. United States v.

Thirty-seven Photographs, 402 U.S. 363, 367-369, 28

L.Ed. 2d 822, 91 S.Ct. 1400 (1971) (opinion of White, J.).”

In Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957),

the Court approved a New York procedure “authorizing the

chief executive, or legal officer, of a municipality to invoke a

‘limited injunctive remedy,’ under closely defined pro-

cedural safeguards, against the sale and distribution of writ-

ten and printed matter found after due trial to be obscene,

and to obtain an order for the seizure, in default of surrender,

of the condemned publications.” Jd. at 437. Justice

Frankfurter, writing for the majority of five, again, was

careful to point out that the procedure under consideration

“studiously withholds restraint upon matters not already

published and not yet found to be offensive.” Jd. at 445. On

this basis he distinguished the procedures then before the

Court from those which had been earlier condemned in Near

v. Minnesota, 283 U.S. 697 (1931).

In Near v. Minnesota, the leading case on the constitu-

tionality of injunctions against future expression, the Court

had before it a Minnesota statute which provided in perti-

nent part as follows:

“Section 1: Any person who ... shall be engaged in

the business of regularly ... producing, publishing or

circulating, having in possession, selling or giving away,

(a) an obscene, lewd and lascivious newspaper,

magazine, or other periodical, or

(b) a malicious, scandalous and defamatory news-

paper, magazine or other periodical,

is guilty of a nuisance, and all persons guilty of such

nuisance may be enjoined, as hereinafter provided.” Jd.

at 702.

The statute further authorized the county attorney or any

citizen to maintain an action for the injunction authorized by

the statute. A proceeding for an injunction was brought in

the Minnesota state courts against Near and other defen-

dants. At trial it was found as a fact that the defendants had

published various editions of a periodical known as “The

Saturday Press” from 24 September 1927 to 19 November

1927 and that these editions were “chiefly devoted to mali-

cious, scandalous and defamatory articles.” It was further

found that the defendants ““‘did engage in the business of

regularly and customarily producing, publishing and cir-

culating a malicious, scandalous and defamatory news-

paper” and that such publications constituted a public nui-

sance. The trial court thereupon enjoined the publication of

“The Saturday Press” and perpetually enjoined defendants

from publishing “‘any publication whatsoever which is a

malicious, scandalous or defamatory newspaper, as defined

by law.” Id. at 706. The Supreme Court, with Chief Justice

Hughes writing for a majority of five, concluded that the

injunction was “the essence of censorship” and constituted

the kind of prior restraint on expression that was violative of

the freedoms of press and speech guaranteed by the First

Amendment and made applicable to the states through the

Due Process Clause of the Fourteenth Amendment. The

Court said in meeting the arguments of the State of Min-

nesota:

“Nor can it be said that the constitutional freedom

from previous restraint is lost because charges are made

of derelictions which constitute crimes.

“Equally unavailing is the insistence that the sta-

tute is designed to prevent the circulation of scandal

which tends to disturb the public peace and to provoke

assaults and the commission of crime. Charges of rep-

rehensible conduct, and in particular of official malfea-

sance, unquestionably create a public scandal, but the

theory of the constitutional guaranty is that even a more

serious public evil would be caused by authority to pre-

vent publication.” Jd. at 720, 721-22.

Thus, the Court in Near made it clear that the truth or falsity

of the charges contained in the particular periodicals under

consideration was immaterial to the constitutional question

of whether future publications could be enjoined.

Relying on Near,the Court in Organization for a Better

Austin v. Keefe, 402 U.S. 415 (1971), struck down an Illinois

state court injunction against “‘passing out pamphlets, leaf-

lets or literature of any kind, and from picketing, anywhere

in the city of Westchester, Illinois.” The trial court found

that the persons enjoined had, through the distributions of

certain pamphlets, accused a real estate broker in Westches-

ter, Illinois, of arousing fears of local white. residents that

negroes were moving into the area and thereafter exploiting

their reactions to bolster his real estate business. The trial

court found that the pamphleteers’ activities in Westchester

had invaded the real estate agent’s right of privacy and had

caused irreparable harm and that he was without an

adequate remedy at law. The Supreme Court in an opinion

by Chief Justice Burger struck down the injunction saying:

“It is elementary, of course, that in a case of this kind

the courts do not concern themselves with the truth or

validity of the publication. Under Near v. Minnesota,

283 US 697, 75 L Ed 1357, 51 S Ct 625 (1931), the

injunction, so far as it imposes prior restraint on speech

and publication, constitutes an impermissible restraint

on first Amendment rights. Here, as in that case, the

injunction operates, not to redress alleged private

wrongs, but to suppress, on the basis of previous publica-

tions, distribution of literature ‘of any kind’ in a city of

18,000.” Id. at 418-19.

In New York Times Co. v. United States, 403 U.S. 713,

(1971), the United States government sought to enjoin the

New York Times and the Washington Post from publishing

contents of a classified study entitled “History of U.S. Deci-

sion-Making Process on Viet Nam Policy” (the Pentagon

papers). District courts for the Southern District of New

York and the District of Columbia and the Court of Appeals

for the District of Columbia Circuit had refused to issue an

injunction against the newspapers. The Court of Appeals for

the Second Circuit held, however, that the injunction should

issue. The United States Supreme Court in a per curiam

opinion concurred in by six justices concluded that the in-

junction should not issue notwithstanding that in the

opinions of the various concurring justices the Pentagon

papers, if published, would have “serious impact” on the

national security, would “do substantial damage to public

interest” and might even constitute a violation of federal

criminal law. This case is significant in the area of the

permissible limits of restraint on expression in that the very

materials sought to be restrained were before the Supreme

Court for review. Here, by contrast, the restraint is against

materials yet to be seen or even published.

Any restraint against future expression, the Supreme

Court has repeatedly said, comes “bearing a heavy pre-

sumption against its constitutional validity.”” Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975), and

cases there cited. The reason is that there often is a finely

drawn line between protected speech under the First

eS eee ee awe |

Amendment and that which is not so protected. This is par-

ticularly true in the area of obscenity. There are, of course,

many items which are clearly on one side or the other of that

line. Defendants here concede that all items now before the

court are obscene. Under the statute they can be seized and

destroyed. There is no contest in this case as to them. On the

other hand there are many forms of expression upon which

reasonable persons differ regarding whether they are

obscene, or lewd, within the statutory definition of those

terms. Examples abound in our literature, cinematic and

otherwise. One is found in Yeager v. Neal, 26 N.C. App. 741,

217 S.E. 2d 576 (1975). That case concerned the film,

“Memories Within Miss Aggie” which the state sought to

have declared obscene as that term was defined in a criminal

statute, G.S. 14-190.1.? At the adversary hearing required

by G.S. 14-190.2, over which I, as trial judge presided, the

1Masturbation, homosexuality and sadism are depicted in a recently

released film, “Midnight Express,” which has nevertheless been critically

acclaimed and could hardly be said to lack serious literary, artistic and

educational value. See Newsweek, 16 October 1978, at 76, 81; Time, 16

October 1978, at 111-12; Vogue, September 1978, at 62.

Sodomy per anum was graphically depicted in the critically acclaimed

film, “Last Tango in Paris.” See Newsweek, 12 February 1973, at 54-58.

The works of Henry Miller, Tropic of Capricorn and Tropic of Cancer,

were once widely considered obscene, but are now highly regarded as

literary pieces. See Gordon, The Mind and Art of Henry Miller (1967). The

same can be said of D. H. Lawrence’s Lady Chatterly’s Lover. See Sanders,

D.H. Lawrence: The World of the Five Major Novels, at 172-205 (1973). See

generally Rembar, The End of Obscenity (1968).

*The applicable parts of the statute are as follows:

“(b) For purposes of this Article any material is obscene if:

(1) The material depicts or describes in a patently offensive way

sexual conduct specifically defined by subsection (c) of this section;

and

(2) The average person applying contemporary statewide com-

munity standards relating to the depiction or representation of sexual

film was shown and various witnesses testified about it. All

of the witnesses by reason of training and background pos-

sessed some expertise in the field of literary criticism. All

felt that the film was clearly a serious literary and artistic

work. There was no testimony to the contrary. Finding on

the evidence presented including the film itself that the film

did have serious literary and artistic value, I determined

that it could not be declared obscene. The Court of Appeals

affirmed on the basis of this finding which was not excepted

to by the state although according to a vigorous dissent by

Brock, C.J., a member of the panel who also viewed it, they

all agreed that “the film depicts in a patently offensive way

portrayals of actual sexual intercourse, normal and per-

verted, anal and oral, and a lewd exhibition of uncovered

genitals in the context of masturbation.” Jd. at 745.

The difficulty of defining obscenity in the abstract has

long been anathema to legislatures and courts. Some judges

have conceded that efforts to do so must ultimately fail.®

matters would find that the material taken as a whole appeals to the

prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, educa-

tional or scientific value; and

(4) The material as used is not protected or privileged under the

Constitution of the United States or the Constitution of North

Carolina.

(1) Patently offensive representations or descriptions of actual

sexual intercourse, normal or perverted, anal or oral;

(2) Patently offensive representations or descriptions of excretion

in the context of sexual activity or a lewd exhibition of uncovered

genitals, in the context of masturbation or other sexual activity.”

Miller v. California, supra, 413 U.S. 15, 37 (Douglas, J., dissenting);

Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 73 (Brennan, J.,

dissenting); see also Smith v. United States, 431 U.S. 291, 311 (1977)

(Stevens, J., dissenting in a federal criminal obscenity prosecution, sus-

tained by the majority on the ground that “the line between communica-

tions which ‘offend’ and those which do not is too blurred to identify

Other judges, however, assert that they know obscenity

when they see it.‘ If this is so, then a corollary must be that

judges cannot know it until they see it. Even if obscenity can

be defined in the abstract, it cannot be so enjoined in keeping

with the First Amendment. To be dealt with judicially it

must first be judicially seen.

Thus the Supreme Court has consistently insisted that

criminal conduct.” Jd. at 316.) The majority opinion, I fear, does not fully

represent Justice Stevens’ position in this area. He said, id. at 318-21:

“It seems to me ridiculous to assume that no regulation of the display

of sexually oriented material is permissable unless the same regula-

tion could be applied to political comment. On the other hand, I am not

prepared to rely on either the average citizen’s understanding of an

amorphous community standard or on my fellow judges’ appraisal of

what has serious artistic merit as a basis for deciding what one citizen

may communicate to another by appropriate means.

“I do not know whether the ugly pictures in this record have any

beneficial value. The fact that there is a large demand for comparable

materials indicates that they do provide amusement or information,

or at least satisfy the curiosity of interested persons. Moreover, there

are serious well-intentioned people who are persuaded that they serve

a worthwhile purpose. Others believe they arouse passions that lead

to the commission of crimes; if that be true, surely there is a mountain

of material just within the protected zone that is equally capable of

motivating comparable conduct. Moreover, the dire predictions about

the baneful effects of these materials are disturbingly reminiscent of

arguments formerly made about the availability of what are now

valued as works of art. In the end, I believe we must rely- on the

capacity of the free marketplace of ideas to distinguish that which is

useful or beautiful from that which is ugly or worthless.” (Emphasis

supplied.)

4*T have reached the conclusion, which I think is confirmed at least by

negative implication in the Court’s decisions since Roth and Alberts, that

under the First and Fourteenth Amendments criminal laws in this area

are constitutionally limited to hardcore pornography. I shall not today

attempt further to define the kinds of material I understand to be em-

braced within that shorthand description; and perhaps I could never

succeed in intelligibly doing so. But I know it when I see it, and the motion

picture involved in this case is not that.” Jacobellis v. Ohio, 378 U.S. 184,

197 (1964) (Stewart, J., concurring.)

SES ee ae Oe

states in their efforts to regulate prohibited forms of expres-

sion adopt procedures which are sensitive to the constitu-

tional mandate that protected expression be in no wise

threatened:

“{ T]he line between speech unconditionally guaran-

teed and speech which may legitimately be regulated,

suppressed, or punished is finely drawn... . The separa-

tion of legitimate from illegitimate speech calls for sensi-

tive tools. . . .Speiser v. Randall, 357 US 513, 525, 2 Led

2d 1460, 1472, 78 S Ct 1332. It follows that, under the

Fourteenth Amendment, a State is not free to adopt

whatever procedures it pleases for dealing with obscen-

ity as here involved without regard to the possible con-

sequences for constitutionally protected speech.” Marcus

v. Property Search Warrant, 367 U.S. 717, 731 (1961);

accord, Southeastern Promotions, Ltd. v. Conrad, supra,

420 U.S. 546.

The majority relies on the proposition that an injunction

against future expression which, by definition, will be viola-

tive of the law is no greater threat to protected speech than a

statute which imposes criminal sanctions against one who

engages in such expression. Since the United States Sup-

reme Court has approved such criminal sanctions against

obscenity, the majority contends, it ought to approve these

kinds of junctions. This argument is an old one. It was made

and had to be faced in Near v. Minnesota. There the Supreme

Court, recognizing that libel could be punished criminally,

nevertheless struck down a civil injunction against it. The

Court there said, 283 U.S. at 713-14:

“The liberty deemed to be established was thus described

by Blackstone: ‘The liberty of the press is indeed essen-

tial to the nature of a free state; but this consistsin laying

no previous restraints upon publications, and not in free-

dom from censure for criminal matter when published.

DL 0 PE Dr p hal On ag Binnsnith 4

Every free man has an undoubted right to lay what

sentiments he pleases before the public; to forbid this, is

to destroy the freedom of the press; but if he publishes

what is improper, mischievous or illegal, he must take

the consequence of his own temerity.’ 4 Bl. Com. 151, 152;

see Storey on the Constitution,, §§ 1884, 1889.”

The Supreme Court rejected the argument then and has

consistently rejected it since. The Court said in Southeastern

Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 558-59:

“The presumption against prior restraints is

heavier — and the degree of protection broader — than

that against limits on expression imposed by criminal

penalties. Behind the distinction is a theory deeply

etched in our law: a free society prefers to punish the few

who abuse rights of speech after they break the law than

to throttle them and all others beforehand. It is always

difficult to know in advance what an individual will say,

and the line between legitimate and illegitimate speech

is often so finely drawn that the risks of freewheeling

censorship are formidable.”

The reason for this distinction is thus that in a free

society restraints on expression not yet uttered are totally

antithetical to any notion of free speech largely because of

the then uncertainty of what might be said. Once the expres-

sion is made it is an accomplished fact upon which it is

permissible for courts to act as in other criminal cases. If the

expression be illegal those responsible can be held accounta-

ble. This notion unheres elsewhere in the law in the familiar

doctrine of admittedly uneven application that equity will

not enjoin a proposed criminal act on the ground that there is

a complete remedy at law if the act is committed. See Mills v.

Cemetery Park Corp., 242 N.C. 20, 86 S.E. 2d 893 (1955);

Dare County v. Mater, 235 N.C. 179, 69 S.E. 2d 244 (1952).

Another distinction is that in a criminal action various

procedural safeguard are present, for example, entitlement

to a jury trail. Alleged violations of the kind of injunction

issued in this case may be tried and punished by the presid-

ing judge.5

Furthermore it is well to note again that in North

Carolina one may not be criminally prosecuted for dealing in

obscene materials unless he deals in material which has first

been judicially declared to be obscene in an adversary hear-

ing conducted prior to the criminal prosecution. G.S. 14-

190.2. There seems to be no constitutional requirement for

such an adversary proceeding prior to criminal prosecution,

Miller v. California, supra, 413 U.S. 15, but our General

Assembly has deemed it appropriate to provide such protec-

tion.

The construction which I feel should be given this legis-

lation does not render the state powerless to deal with the

problem of obscenity. The legislature could, if it thinks such

action necessary, amend its criminal statutes, G.S. 14-190. i,

et seq., so as to eliminate the requirement of an adversary

hearing prior to criminal prosecution or provide penalties for

the violation thereof which would serve to deter violators.

Even under the civil nuisance proceeding as I would inter-

pret it, the remedies against dissemination of obscene mate-

rial are formidable. Once such materials are located an ex

parte judicial order may issue forthwith placing substantial

5G.S. 19-4 provides:

“Violation of injunction; punishment. — In case of the violation of any

injunction granted under the provisions of this Chapter, the court, or, in

vacation, a judge thereof, may summarily try and punish the offender. A

party found guilty of contempt under the provisions of this section shall be

punished by a fine of not less than two hundred ($200.00) or more than one

thousand dollars ($1,000), or by imprisonment in the county jail not less

than three or more than six months, or by both fine and imprisonment.”

limitations on trafficking in the material. G.S. 19-2.3. If,

thereafter, the material is judicially determined or admitted

to be obscene it can be confiscated and destroyed. G.S. 19-5.

All monies paid in consideration for the sale of abscene

material after the ex parte order has issued must be ac-

counted for, and if these monies are thereafter determined to

have been paid in consideration of obscene material they

may be forfeited to the local government. G.S. 19-6. Evenifa

defendant, determined to violate these statutes, replenishes

his stock with items different from those previously confis-

cated under prior orders, it would seem that only a few

successive confiscations of his stock ina campaign of zealous

law enforcement would render his unsavory business so un-

profitable that he would have to quit.

For the reasons stated I vote to vacate so much of the

trial court’s order as seeks to enjoin defendants from dealing

in items not yet published or possessed by them.

I HEREBY CERTIFY that on this 23rd day of February, —

1979, I have served a copy of this Brief upon Counsel for

Appellant by mailing copy thereof, postage prepaid, addres-

sed to:

Arthur M. Schwartz, Esq.

The Market Center

1650 Market Street

Denver, Colorado 80202

Deborah G. Mailman &

Sharon Thompson

Post Office Box 868

Raleigh, North Carolina 27602

JACOB L. SAFRON

Special Deputy Attorney General

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.