Petition for Writ of Certiorari — Bouye v. South Carolina

Supreme Court, U.38.

FILED

962021 JUN 231997

OCCICe Of Tie 7

eee)

Poet

In the .

Supreme Court of the Ubnited

States

October Term, 1997

DICKIE BOUYE and WILLIAM BOUYE,

Petitioners,

V.

STATE OF SOUTH CAROLINA

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SOUTH CAROLINA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

ROBERT E. HOSKINS

Counsel of Record

Foster & Foster, L.L.P.

601 E. McBee Avenue

Post Office Box 2123

Greenville, S.C. 29602

(864) 242-6200

SUZANNE E. COE

COE & HOPKINS, CHARTERED

408 N. Church Street, Suite C

Greenville, S.C. 29601

(864) 235-4505

QUESTION PRESENTED

Whether Section 16-15-365 of the South

Carolina Code, which prohibits “lewd and lascivious

conduct” is unconstitutionally overbroad where “lewd

and lascivious” is deemed anything which causes

sexual arousal and there are no protections for

expression protected by the First Amendment of the

United States Constitution?

PARTIES TO THE PROCEEDING

The Petitioner and the State of South Carolina,

represented by the South Carolina Office of the

Attorney General are the only parties to this

proceeding. Through the involvement of the South

Carolina Office of the Attorney General, South

Carolina requirements of notification when

challenging the constitutionality of a state statute have

been satisfied.

ERT Win TE

EIS Be LE

TABLE OF CONTENTS

QUESTION PRESENTED. ,

PARTIES TO THE PROCEEDING li

TABLE OF CONTENTS ; iii

APPENDICES . : ; , il

TABLE OF AUTHORITIES _. iV

OPINIONS BELOW _..

JURISDICTION ;

CONSTITUTIONAL PROVISONS

INVOLVED

nN

tw

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT 4

[. The South Carolina Supreme Court has

decided an important and recurrent issue of First

Amendment federal law in a manner which conflicts with

decisions by the Highest Courts of sister states and prior

federal rulings. . , 4

CONCLUSION. 7

APPENDICES

APPENDIX A: Opinion of the South Carolina Supreme

Court dated February 18, 1997 . la

APPENDIX B: Form/Letter Order by South Carolina

Supreme Court denying request for rehearing

dated March 20, 1997 . Ib

iV

TABLE OF AUTHORITIES

Page(s)

CONSTITUTIONAL PROVISIONS AND

STATUTES

U.S. Constitution, Amendment I. passim

U.S. Constitution, Amendment XIV . passim

S.C. Code Annot. Section 16-15-365

(Supp. 1995) . passim

CASES

Barnes v. Glen Theatre, Inc. 501 U.S. 560,

111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). 4

City of Columbia v. Martha Deese 280 S.C.

135, 311 S.E.2d 920 (S.C. 1983) 4

City of Revere v. Alfonso Aucella 338 N.E.2d 816,

369 Mass. 138 (MA 1975) 6

Commonwealth v. Sefranka 414 N.E.2d 602,

382 Mass. 108 (MA 1980) 6

District of Columbia v. Garcia 335 A.2d 217

(D.C. 1975) cert. den. 423 U.S. 894,

96 S.Ct 192,42 L.Ed. 2d 125. : 6

Frznoznik v. City of Jacksonville

422 U.S. 205 (1975) 5

In the Interest of L.G.W. 641 P. 2d 127 (Utah 1982) 6

PBIC v. Byrne 313 F. Supp. 757 (D.Mass. 1970). 6

Pennsylvania v. McDonald 347 A.2d 290,

SLC ie BOE ee

<LI EP A Inc OO hi RI ae ni Ml nid

464 Pa. 435 (1975) ; 6

Pryor v. Municipal Court for Los Angeles 599

P.2d 636, 647, 25 Cal. 3d 238 (Ca. 1979). 6

Salem Inn, Inc. v. Frank 381 F. Supp. 859 (1974). 5

Southeastern Promotions, Ltd. v. Atlanta

334 F, Supp. 634 (N.D. Ga. 1971) , 6

State v. Hardee 279 S.C. 409,

308 S.C. 2d 521 (S.C. 1983). 4

State v. Morley 317 P.2d 317, 63 N.M. 267 (NM 1957) 6

Triplett Grille, Inc. v. City of Akron

40 F.3d 129 (CA6 1994) é 4,5

In the

Supreme Court of the Ubnited

States

October Term, 1997

DICKIE BOUYE and WILLIAM BOUYE,

Petitioners,

V.

STATE OF SOUTH CAROLINA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE SOUTH

CAROLINA SUPREME COURT

Petitioners Dickie Bouye and William Bouye ask that a writ of certiorari

issue to review the decision of the South Carolina Supreme Court on

February 18, 1997. A timely Petition for rehearing was denied on March

20, 1997.

OPINIONS BELOW

The opinion of the South Carolina Supreme Court is reported at 484

S.E.2d 461 (S.C. 1997) and is annexed to this petition as Appendix A.

The Petition for Rehearing was denied by unpublished form letter and is

attached as Appendix B.

JURISDICTION

Petitioners invoke this Court’s jurisdiction under 28 U.S.C. Section

1257(a). The highest Court in South Carolina has ruled in this case

regarding the validity of a state statute which Petitioners contend is

unconstitutional.

Ce

tw

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No state shall make or enforce any law which shall abridge the

privileges or immunities 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.

The First Amendment to the United States Constitution provides in

pertinent part:

Congress shall make no law....abridging the freedom of

speech...

STATEMENT OF THE CASE

Dickie Bouye and William Bouye were charged and convicted of

violating S.C. Code Section 16-15-365 prohibiting “lewd and lascivious”

exposure of bodily parts by virtue of their managerial/ownership

interests in a topless bar. The dancers were not charged. Petitioners

asserted at all times prior to being convicted, and on appeal, that S.C.

Code of Laws Section 16-15-365 is patently overbroad both as written

and as applied.

S.C. Code Section 16-15-365 reads as follows:

Any person who willfully and knowingly exposes the private

parts of his person in a lewd and lascivious manner and in the

presence of any other person, or aids or abets any such act, or

who procures another to perform such act, or any person, who

as owner, manager, lessee, director, promoter, or agent, or in

any other capacity knowingly hires, leases, or permits the land,

building, or premises of which he is owner, lessee, or tenant, or

over which he has control, to be used for purposes of any such

act, is guilty of a misdemeanor and, upon conviction, must be

3

imprisoned for not more than six months or fined not more than

five hundred dollars, or both.

Since Petitioners are the manager and owner of a topless establishment,

they were basically charged with aiding and abetting lewd conduct.

Prior to their arrests, the Sheriff of Spartanburg County rounded up all

the owners of topless clubs and told them they were in violation of this

Statute (Supreme Court Record, hereinafter “R.” p. 224). When club

owners asked how to remedy their conduct and remove it from the above

all-inclusive statute, the Sheriff told them to ask their lawyers, close their

establishments or put clothes on the girls (R. p. 211).

After this meeting, Petitioners and other club owners were

arrested. Petitioner Dickie Bouye was found guilty of two violations of

the Statute and Petitioner William Bouye was found guilty of one

violation. The State presented no testimony placing either Petitioner

inside the club at the time these alleged “lewd” performances occurred.

Appellants presented testimony of the standards in the industry, the

house rules of their establishment and the disciplinary process which

occurs for infractions.

Petitioners initially raised the issue of the Statute being

unconstitutional via a motion to dismiss. Petitioners renewed the issue

in requesting a directed verdict. The trial court refused to rule on either

Motion until immediately prior to charging the jury, whereby the judge

found the statute constitutional (R. p. 234). While Petitioners requested

that the definition of “lewd and lascivious” be narrowed to comply with

federal precedent (R. p. 24), the Court refused.

After the court charged the jury, Petitioners renewed their

Motions regarding overbreadth and unconstitutionality (R. p. 256) and

following the verdict motioned for a new trial and directed verdict on

these same grounds (R. p. 258). On appeal, the Supreme Court of South

Carolina upheld the trial judge’s finding that the above statute was not

overbroad and was constitutional. Unlike other states, South Carolina

has not judicially construed the above Statute to protect speech covered

under the First Amendment of the United States Constitution.

4

REASONS FOR GRANTING THE WRIT

I.

The South Carolina Supreme Court has decided an important and

recurrent issue of First Amendment federal law in a manner which

conflicts with decisions by the Highest Courts of sister states and

prior federal rulings.

Section 16-15-365 operates to ban any conduct deemed “lewd

and lascivious” regardless of literary, artistic or overriding constitutional

protections. The common! definitions of “lewd” in South Carolina

means “vulgar, indecent, tending to arouse sexual desire or imagination

and lacking moral discipline or sexual restraint” (R. p. 248).

“Lascivious” is defined as “lustful or tending to invite lust or tending to

deprave the morals in respect to sexual relations”(R. p. 248). Under

South Carolina law, words are to be given their “common meaning”

where not specifically defined. State v. Hardee 279 S.C. 409, 308 S.C.

2d 521 (S.C. 1983); City of Columbia v. Martha Deese 280 S.C. 135,

311 S.E.2d 920 (S.C. 1983)2. However, by simply outlawing anything

that causes “sexual arousal”, South Carolina has effectively ignored First

Amendment protections and ruled in a manner completely contrary to

similar cases decided by sister states or by Federal Courts.

In Barnes v. Glen Theatre, Inc. 501 U.S. 560, 111 S.Ct. 2456,

115 L.Ed.2d 504 (1991) this Court, while finding Indiana’s public

indecency law constitutional, reaffirmed that nude (not even topless-as in

the case sub judice) dancing was expressive conduct marginally within

the outer perimeters of the First Amendment. Considering an argument

similar to Petitioners, the Sixth Circuit Court of Appeals struck down

Akron’s public indecency Ordinance in Triplett Grille, Inc. v. City of

Akron 40 F.3d 129 (CA6 1994). In doing so, the Court did an analysis of

current federal law regarding overbreadth and concluded that since the

Ordinance at issue prohibited all public nudity “including live

performances with serious literary, artistic, or political value” it was

unconstitutional as overbroad. /d. at p. 135. Additionally, the Court

noted:

' Dictionary definition

? South Carolina Supreme Court held that the term “lewd” should be given its “plain and

ordinary meaning” and was not overbroad.

5

fhe Ordinance makes no attempt to regulate only those

expressive activities associated with harmful secondary effects

and includes no limiting provisions. Instead, Akron’s wide ban

on public nudity sweeps within its ambit expressive conduct not

generally associated with prostitution, sexual assault, or other

crimes. /d.

Like the Akron Ordinance, South Carolina’s statute, simply read

verbatim and given the common definitions of “lewd” and “lascivious”,

outlaws the following conduct:

(a) sexual relations between ANY two people, including

husband and wife. The statute does not exclude private

places or personal relations which are afforded privacy

protections under the United States Constitution. Under this

Statute, any landlord or person renting, leasing or permitting

their property to be used for this “lewd” act would also be

guilty;

(b) theatrical performances, television programs, videotapes,

Internet clips, and other non-live productions which contain

nudity which causes sexual arousal, regardless of its literary

or artistic merit. Under the Statute, any person aiding or

abetting, renting, promoting, directing or managing any such

production or performance are also guilty.3

(c) nudes posing for pictures or art, as long as they are deemed

sexually arousing;

(d) Michelangelo’s famed statute “David”-if it causes arousal in

the jurors or stimulates sexual imagination.

Petitioners assert that South Carolina’s law is overbroad and vague and

flies in the face of other federal and state decisions.

Numerous other Courts have struck down as overbroad statutes

or ordinances which attempt to eliminate topless or nude dancing, but

effectively prohibit other conduct undoubtedly protected by the

Constitution. See: Erznoznik v. City of Jacksonville 422 U.S. 205

(1975); Salem Inn, Inc. v. Frank 381 F. Supp. 859 (1974)-which struck

> Although South Carolina has a perfectly valid obscenity Statute which does

contain constitutional safeguards, the “lewd and lascivious” statute makes the

Obscenity Statute meaningless by outlawing anything causing sexual arousal

without concern for any constitutional protections which are violated.

6

down ordinance meant for topless dancing but in essence could be

applied to communicative dancing that involved nudity, such as “Hair”.

Additionally, other cases have held that in similar circumstances

and as applied to nudity in live contexts, punishment based on general

“lewd and lascivious” behavior was unconstitutional where there is no

imposition of the lewd or lascivious behavior on an unwilling person.

See: PBIC v. Byrne 313 F. Supp. 757 (D. Mass. 1970); Southeastern

Promotions, Ltd. v. Atlanta 334 F. Supp. 634 (N.D. Ga. 1971).

Further, the highest state courts of Utah, California, Michigan,

District of Columbia, Alaska, New Mexico, Massachusetts and

Pennsylvania, in considering similar legislation regarding “lewd”

conduct, has judicially limited such legislation to comport with

constitutional safeguards4. In District of Columbia v. Garcia 335 A.2d

217 (D.C. 1975) cert. den. 423 U.S. 894, 96 S.Ct 192, 42 L.Ed. 2d 125,

this Court denied cert. where the Court of Appeals construed a law

involving “lewd” conduct to only prohibit proposals to commit sodomy,

indecent exposure or sexual proposals to children.

There is unquestionably an important federal issue at stake—

whether citizens of South Carolina are entitled to the constitutional

safeguards of free speech protection that Federal Courts have served the

vanguard of. While citizens of other sister states have been spared this

“mushroom cloud” prohibition on nudity causing arousal, South

Carolinians may face jail time for exercising rights protected by the First

Amendment. Under these circumstances, Petitioners beseech the

intervention of this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

* See: In the Interest of L.G.W. 641 P. 2d 127 (Utah 1982); Pryor v. Municipal

Court for Los Angeles 599 P.2d 636, 647, 25 Cal. 3d 238 (Ca. 1979); State v.

Morley 317 P.2d 317, 63 N.M. 267 (NM 1957); City of Revere v. Alfonso

Aucella 338 N.E.2d 816, 369 Mass. 138 (MA 1975); Commonwealth v. Sefranka

414 N.e.2d 602, 382 Mass. 108 (MA 1980); Pennsylvania v. McDonald 347

A.2d 290, 464 Pa. 435 (1975).

ROBERT E. HOSKINS

Foster & Foster, L.L.P.

601 E. McBee Avenue

Post Office Box 2123

Greenville, S.C. 29602

(864) 242-6200

SUZANNE E. COE

COE & HOPKINS, CHARTERED

408 N. Church Street, Suite C

Greenville, S.C. 29601

(864) 235-4505

June 18, 1997

7

Respectfully Submitted,

APPENDIX A

Opinion of the

South Carolina Supreme Court

484 S.E. 2d 461

State of South Carolina, Respondent

V.

Dickey Bouye and William Bouye, Appellants.

Appeal From Spartanburg County

J. Derham Cole, Judge

Opinion No. 24577

Heard December 4, 1996 - Filed February 18, 1997

AFFIRMED

Suzanne E. Coe, of Arnold & Coe, L.L.P., of Greenville,

for the appellants.

Charles Molony Condon, Attorney General, John W.

McIntosh, Deputy Attorney General, Salley W. Elliott,

Assistant Attorney General, all of Columbia, and Holman

C.Gossett, Jr., Solicitor, Seventh Judicial Circuit, of

Spartanburg, for respondent.

WALLER, A.J.: Appellants Dickey and William

Bouye were convicted of violating S.C. Code Ann. Sec.

16-15-365 (Supp. 1995), a statute which generally

prohibits certain “lewd and lascivious” behavior.! Their

' Section 16-15-365 provides:

Any person who willfully and knowingly exposes the

private parts of his person in a lewd and lascivious manner and

in the presence of any other person, or aids or abets any such act,

or who procures another to perform such act, or any person, who

as owner, manager, lessee, director, promoter, or agent, or in any

other capacity knowingly hires, leases or permits the land,

co |

convictions were based on the conduct of dancers in the

Gold Nugget, a topless dancing establishment owned by

Dickey and managed by William. They have appealed,

arguing the statute is unconstitutionally overbroad. We

disagree and affirm.

FACTS

Between November 1994 and July 1995,

undercover police officers with the Spartanburg County

Sheriff's Department visited the Gold Nugget posing as

patrons. They wore an eight- millimeter camera concealed

under their shirts which recorded everything in front of

them. Following is a brief summary of the conduct they

observed from the paid dancers.

Various female dancers, while wearing only a G-

string, would perform dance routines on a stage in front of

customers. The dancers were observed repeatedly having

physical contact with the customers. This physical contact

included one or more dancers (1) rubbing their bottoms

over men’s crotches while performing private dances off-

stage; (2) putting their faces toward men’s crotches and

dancing against them; (3) touching a customer’s head with

bare breasts; (4) sitting in a customer’s lap “in a kind of

rotating manner” before standing back up; (5) removing a

man’s glasses and ;lacing them in her G-string; and (6)

grabbing a man by the collar and pushing him toward her

bare breasts. One officer testified that while receiving a

private dance the dancer “sat straddle me and pushed my

shoulders back with her hands to where she was, I guess

grinding her pelvic area against my stomach and my groin.

She also in the course of that dance while she was leaning

forward. . . rubbed one of her nipples across my lips.”

Another testifies that “one female put a leg on each one of

my shoulders and was moving her vagina in a rotating

manner right in front of my face.” While dancing the

building, or premises of which he is owner, lessee, or tenant, or

over which he has control, to be used for purposes of any such

act, is guilty of a misdemeanor and, upon conviction, must be

imprisoned for not more than six months or fined not more than

five hundred dollars or both.

;

;

- Re re enero eee Se a

BR 0 Ret ORO NEE wate BR Es ow

bea «is.

dancers rubbed their breasts, put their hands on their

shoulders and pushed their breasts in customer’s faces,

and made motions toward customers with their genital

areas.

Following these observations, Appellants were

charged with and subsequently convicted of violating

section 16-15-365.

DISCUSSION

Appellants argue the statute under which they

were convicted violates Due Process because it prohibits

constitutionally protected speech and is thus overbroad.

Initially, we point out that Appellants have conceded that

the conduct of the dancers in this case is not

constitutionally-protected.2 They are arguing that the

statute is facially overbroad because it can be applied to

other conduct not extant in this case that is constitutionally

protected.3 “When the issue is the constitutionality of a

statute, every presumption will be made in favor of its

validity and not statute will be declared unconstitutional

unless its invalidity appears so clearly as to leave no doubt

that it conflicts with the constitution.” “Home Health

Serv.. Inc. v. S.C. Tax Comm’n, 312 S.C. 324, 440 S.E. 2d

2See, e.g.. Hang On. Inc. v. City of Arlington, 65 F.3d 1248 (5”

Cir.1995) (statute prohibiting touching between customer and

dancer not overbroad because touching is not protected at all by

the First Amendment); Hoskins v. Dept. of Business Regulation,

592 So. 2d 1145 (Fla. Dist. Ct. App.), reviewed denied, 601 So.

2d 552 (Fla. 1992) (lap dancing not protected activity); State v.

Private Dancer, 613 N.E. 2d 1066 (Ohio Ct. App. 1992) (lap

dancing not protected expression under First Amendment).

> Normally, we would question whether Appellants had standing

to make this argument. However, in the context of an

overbreadth argument, courts have recognized an exception to

the rules of standing. See SBC Enterprises, Inc. v. City of South

Burlington, 892 F. Supp. 578, 583-84 (D. Vt. 1995) (“The

concern is that an overbroad law may threaten others not before

the court - those who desire to engage in legally protected

expression but who may refrain from doing so rather than risk

prosecution or undertake to have the law declared partially

invalid.”) (internal quotations omitted).

375 (1994). Appellants have the burden of proving the

statute unconstitutional. Id.

“{T]he overbreadth doctrine applies only to First

Amendment cases where the challenged law would have a

“chilling effect” on constitutionally protected forms of

speech.” State v. Tenth Dist. Court of Appeals, 588 N. E.

2d 116 (Ohio 1992). See also City of Portland v.

Jacobsky, 496 A.2d 646 (Me. 1985) (statute is overbreadth

when its language is not only forbids conduct

constitutionally subject to proscription but is so broad that

it ensnares protected conduct as well). The overbreadth

doctrine is considered on of last resort and should be used

sparingly, “especially where the statute in question is

primarily meant to regulate conduct and not merely pure

speech.” Schmitt v. State, 590 So. 2d 404,412 (Fla. 1991),

cert. denied, 503 U.S. 964 (1992). Thus, the threshold

issue is whether the statute in question prohibits

constitutionally protected speech. We hold that it does

not.

The statute prohibits conduct, not speech.

Nonetheless, expressive conduct, or “symbolic speech,” is

entitled to some First Amendment protection under certain

circumstances. See United States v. O’Brien, 311 S.C.

555, 559,430 S.E. 2d 511,514 (1993) (“Conduct may be

sufficiently inbued with elements of communication so as

to fall within the scope of the First Amendment”). Even

assuming that this statute does address certain expressive

conduct, we construe the language of this statute as a

prohibition of obscenity. It is well-settled that obscene

speech is not protected by the First Amendment. See

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

2d 419 (1973); Roth v. United States, 354 U.S. 476 77 S.

Ct. 1304, 1 L. Ed. 2d 1498 (1957). As we stated in

Ramsey, “[a] statute directed at conduct rather than speech

may stand; and a statute reaching a proscribable class of

speech. . . does not infringe on First Amendment rights.”

311 S.C. at 560, 430 S. E. 2d at 514 (citing R.A.V. v. City

of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d

305 (1992)).

Er

This interpretation is abundantly supported.

Initially, the dictionary definitions of “lewd,” “lascivious,”

and “obscene” show that these terms are all synonyms.

See American Heritage Dictionary at 726, 715, 858 (2nd

ed. 1982) (respectively defining lewd in part as obscene;

lascivious in part as lewd; and obscene in part as lewd);

Black’s Law Dictionary at 882, 907 (respectively defining

lascivious in part as lewd and obscene; and lewd in part as

obscene and lascivious). Furthermore, many other courts,

including the Supreme Court, have used these terms

interchangeably and found them to be synonymous.

There are certain well defined and narrowly

limited classes of speech, the prevention of which

have never been thought to raise any

Constitutional problem. These include the lewd

and obscene..... It has been well observed that

such utterances are no essential part of any

exposition of ideas, and are such slight social

value as a step to truth that any benefit that may

be derived from them is clearly outweighed by the

social interest in order and morality... .

Roth, 354 U.S. at 485, 77 S. Ct. at 1309, 1 L. Ed. 2d at

1507. See also Trans Lux Corp. v. State, 366 So. 2d 710

(Ala. 1979); People v. Sarong Gals, 103 Cal. Rptr. 414,

417 (Cal. Ct. App. 1972) (“It is true that nude dancing is . .

. protected by the First Amendment. From this fact, the

defendants make the illogical leap to the conclusion that

lewd, nude entertainment (“dancing”) receives the same

protection. Hardly. Lewdness is lewdness and covering it

with a patina of “free expression” is a fiction which the

law will not tolerate.”); Stall v. State, 570 So. 2d 257 (Fla.

1990), cert. denied sub nom. Long v. Florida, 501 U.S.

1250 (1991); State v. Waller, 621 So. 2d 499 (Fla. Dist.

Ct. App. 1993) (requiring analysis of whether conduct is

lewd to be decided by resort to the three prong obscenity

test established in Miller, 413 U.S. at 15, 93 S. Ct. at 2607,

37 L. Ed. 2d at 419); State v. Crater, 388 So. 2d 802 (La.

1980); 400 East Baltimore St., Inc. v. State, 431 A. 2d 682

(Md. Ct. Spec. App. 1981), cert. denied, 455 U. S. 940

(1982); Blau-Par Corp. v. New York State Liquor Auth.,

482 N.Y.S. 2d 841 (N.Y. App. Div. 1984) (prohibition of

lewd conduct not violate of fee expression because such

conduct maust necessarily be obscene and is thus not

constitutionally protected).

In Vernon Beigay, Inc. v. Traxler, 790 F.2d 1088

(4th Cir, 1986), the Fourth Circuit was called upon to

decide that constitutionality of South Carolina’s obscenity

statutes.4 The statute defined obscenity in part as one

which appealed to the “prurient interest in sex.” “Prurient

interest” was defined as a “shameful or morbid interest in

nudity, sex, or excretion and is reflective of an arousal of

lewd _and_ lascivious desires and thoughts.” (emphasis

added). Appellant argued this emphasized language

rendered the statute overbroad “because materials that

should be protected by the Constitution will be considered

obscene under this definition of prurient interest.” Id. at

1094. Thus, because this statute regulates obscenity,» we

find it does not prohibit constitutionally protected speech.

Appellants also argue that statute is overbroad

because it is not limited to exposure in public places and

therefore could be used to prosecute people for conduct in

the privacy of their homes. Clearly, without such a

limitation, the statute will be overbroad because it

infringes on the constitutionally protected right to privacy.

See e.g., Attwood v. Purcell, 402 F. Supp. 231 (D. Ariz.

1975). “A statute should not be deemed facially invalid

unless it is not readily subject to a narrowing

* The obscenity statutes the court judged were sections 16-15-

260 to -440, which have been replaced with sections 16-15-305

to -445 (Supp. 1995). However, the language referred to in the

text is identical in both statutes. In Traxler, the Fourth Circuit

struck down the former statute as overbroad for reasons

unrelated to the present discussion.

* Obscenity is statutorily defined. See S.C. Code Ann. Sec. 16-

15-305 (B) Supp. 1995) defining obscenity “for the purposes of

this article,” which would include the current statute).

en mca ane ee

Pee ee

DO FRAT Li 1 et aed aS

construction.” Gravely v. Bacon, 429 S.E. 2d 663, 666

(Ga. 1993). Furthermore, in a facial statutory challenge,

the overbreadth complained of must be real and

substantial when judged in light of the statute’s “plainly

legitimate sweep.” State v. Hunter, 550 N.W. 2d 460, 464

(lowa 1996). A party will prevail no a facial attack only

by showing there is “a realistic danger that the statute

itself will significantly compromise recognized First

Amendment protections of parties not before the Court.”

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135

(6th Cir, 1994). Here, there is not realistic danger that this

statute will be applied to people in the privacy of their

own homes. Furthermore, while the statute does not

directly limit its reach to public conduct, we find that from

the language used (extending prohibition to person who

“aids or abets any such act, or who procures another to

perform such act, or any person, who as owner, manager,

lessee, director, promoter, or agent, or in any other

capacity” knowingly allows his or her premises to be used

for the purposes of such an act) the legislature clearly

intended such a limitation.

We find that Appellants have not met their burden

of proving section 16-15-365 of the South Carolina Code

unconstitutional.6 Accordingly, their convictions are

hereby

° We summarily reject Appellant’s further argument that the

statue is unconstitutional as applied to them. Appellants seem to

be basing this claim on their argument that the record contains

no evidence they were aware that offensive conduct was being

performed by the dancers. In other words, appellants are

arguing they did not engage in conduct proscribed by the statute.

Initially, we do not see how this shows unconstitutional

application of the statute. Normally, an “unconstitutional as

applied” argument in the First Amendment context rests on the

assumption that the conduct engaged in would be prohibited by

the statute; however, constitutional right held by the actor. See,

e.g, State v. Perkins, 306 S.C. 353, 412 S.E. 2d 385 (1991)

(disorderly conduct statute was unconstitutionally applied to

defendant not because he did not engage in conduct prohibited

by the statute but because his conduct was protected by the First

AFFIRMED.

FINNEY, C.J., TOAL, MOORE AND BURNETT, JJ.,

concur.

Amendment); City of Columbia v. Brown, 316 S.C. 432,450

S.E. 2d 117 (Ct. App. 1994). Even if they were not the ones

actively engaging in the prohibited conduct, Appellants clearly

have not constitutionally protected right to procure or knowingly

permit other to perform illegal conduct on premises they own or

control. In any event, we find the record contains sufficient

evidence to support Appellants’ convictions under the statute.

Se eee eet et ee <a

APPENDIX B

The Supreme Court of South Carolina

CYDE N. DAVIS,JR. P.O. Box 11330

CLERK OF COURT Columbia, S.C. 29211

BRENDA F. SHEALY (803) 734-1080

DEPUTY CLERK

March 20, 1997

Suzanne E. Coe, Esquire

Arnold & Coe, L.L.P.

408 N. Church St.

Suite C

Greenville, SC 29601

Re: The State v. Bouye, Dickey and William

Dear Ms. Coe:

The Court has issued the following Order on your Petition

for Rehearing in the above matter:

“Petition for Rehearing is denied.

s/_Ernest A. Finney, Jr.C.J.

s/ Jean H. Toal A.J.

s/ James E. Moore A.J.

s/ John H. Waller A.J.

s/_E.C. Burnett, Ill A.J.

March 20, 1997.”

The remittitur in this matter is today being

forwarded to the Clerk of Court of Spartanburg County.

Very truly yours,

CLERK

CND, Jr./adm

cc: Assistant Deputy Attorney General Salley W. Elliott