Summary
In State ex rel. Andrews v. Chateau X, Inc., 296 N.C. 251, 259-60, 250 S.E.2d 603, 608 (1979), the North Carolina Supreme Court identified two factors to be considered in assessing severability: (1) whether the remaining portions of the statute are capable of being enforced on their own; and (2) whether there is legislative intent to enforce the remainder, "particularly... whether that body would have enacted the valid provisions if the invalid ones were omitted."
Summary of this case from Cavanagh v. BrockOpinion
No. 23
Filed 4 January 1979
1. Obscenity 3 — exhibition and sale of obscene matter — nuisance — injunction When a business has been established as a nuisance because of the exhibition or sale of obscene matter, the trial judge is not required by G.S. 19-5 to enjoin the future distribution of any and all obscene matter as defined by G.S. 19-1.1(2) but has the discretion to define what conduct is prohibited as long as it falls within constitutional and statutory mandates, and the court has the duty specifically to warn the defendant of the prohibited conduct.
2. Obscenity 3 — exhibition and gale of obscene matter — nuisance — injunction Where defendants' bookstore was found to be a nuisance because of its exhibition and sale of obscene matter, the trial court was not required to restrain defendants from selling any lewd matter at all, whether or not it made up a large part of the store's inventory, and the trial court's order was not erroneous in enjoining defendants from selling obscene matter only when such matter "constitutes a principal or substantial part of [their] stock in trade."
3. Obscenity 1 — exhibition and sale of obscene matter — nuisance — unconstitutional closing of business — severability of provision Even if G.S. 19-5 unconstitutionally authorizes a judge to close a business after it has been declared a nuisance because of past exhibitions or sales of obscene material, which question is not before the Supreme Court, such provision is severable from the remaining provisions of G.S. Ch. 19 and does not render G.S. Ch. 19 unconstitutional on its face.
4. Obscenity 3 — exhibition and sale of obscenity — nuisance — burden of proof G.S. 19-1.1(2) does not unconstitutionally place the burden of proving nonobscenity on the defendant in a nuisance action; rather, the State is required to prove all the elements of obscenity found in G.S. 19-1.1(2), including proof that the material as a whole lacks "serious literary, artistic, political, educational, or scientific value."
5. Obscenity 3 — exhibition or sale of "illegal lewd matter" — injunction — absence of requirement of patent offensiveness An order enjoining 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 was not fatally defective because it failed to require specifically that the materials enjoined be "patently offensive" in their depiction of the specified sexual conduct, since the court enjoined only the sale of "illegal lewd matter" which is correctly and completely defined in G.S. 19-1.1(2), and it is permissible for an injunction to include terms that are adequately defined in applicable statutes.
6. Obscenity 3 — exhibition or sale of obscene matter — injunction not unconstitutional prior restraint An order restraining defendants from selling or exhibiting any obscene matter in the future which depicts specified sexual conduct does not constitute an illegal prior restraint in violation of defendants' first amendment right of free speech since (1) the injunction is in effect nothing more than a personalized criminal statute against selling certain obscene material that is directed toward defendants because they sold illegal matter in the past, and the legislature could have constitutionally imposed the same restrictions on the public in general; (2) the order is narrowly drawn and the prohibited conduct is specifically defined; and (3) defendants are not subject to criminal sanctions until they sell or exhibit obscene matter in violation of the court's order, and the State would have the burden of proving beyond a reasonable doubt that defendants sold or exhibited illegal lewd matter in violation of the injunction.
7. Obscenity 3 — exhibition and sale of obscene matter — nuisance — injunction — contempt proceedings The plenary proceedings provided for in G.S. 5A-15 apply to contempt actions following a Chapter 19 injunction.
APPEAL by defendants and cross-appeal by the State from Small, J., at the 4 January 1978 Session of ONSLOW Superior Court.
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.
Justices BRITT and BROCK took no part in the consideration or decision of this case.
Justice EXUM dissenting.
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 officers 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 predominant course of business. Among other relief not relevant to this appeal, it prayed that Chateau X be declared a nuisance under Chapter 19 of North Carolina General Statutes. 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 made 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 constitutionality 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 unconstitutional. 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 January 1978.
At trial the State introduced twenty exhibits into evidence 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 that operation on 12 December 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 exhibited and the books distributed and sold were done to consenting 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 obscene. He held that all the above films and magazines are nuisances. 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 unconstitutional.
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 pursuant 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.
This case concerns the statutory construction and constitutionality of Chapter 19 of North Carolina General Statutes. For the reasons set out below, we have determined that Chapter 19 as interpreted and applied in this case is constitutional; therefore, the judgment of the trial court is affirmed.
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 defendants' 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, or
(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 prurient 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."
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 sexual 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). We do not agree.
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 standards, 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 genitals or genital area; 3. Masochism or sadism; or 1. 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.
The trial judge necessarily must be given some discretion in formulating his abatement order. The defendants will be subject to contempt of court if they violate the injunction; therefore, it is necessary that they be put on notice as to 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 by reference to the complaint or other document, the act or acts enjoined."
The Legislature must have intended for judges to have some discretion in abating nuisances. "[L]egislative 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, 372 (1978). (Emphasis deleted.)
Chapter 19 as applied to obscene matter treads near the area of free speech. The sanctions for disobeying an abatement 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 defendant of the prohibited conduct. This assignment 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 principal 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. 19-1.2 defines nuisances in terms of businesses that regularly display or sell lewd material and the obscene matter itself. However, G.S. 19-1.2(5) states that a lewd publication is a nuisance only when "possessed at a place which is a nuisance." In order for a bookstore to be a nuisance, the lewd publications must "constitute a principal or substantial part of the stock in trade."
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 exhibition; (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 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, 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.
Thus, not every isolated obscene publication is a nuisance 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 inventory. 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 constitute illegal prior restraint. We agree. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 29 L.Ed.2d 1, 91 S.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 in 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 business 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 inventory, 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 nauseous." 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 exhibiting the material before the court. In essence, then, the defendants are attacking only the statute itself and that portion 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 Statutes is unconstitutional on its face, thereby invalidating any action taken pursuant to it.
The defendants contend that the act in question is unconstitutional per se in two respects. First, they assert G.S. 19-5 authorizes the complete closing of a business in violation 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. Meyland, 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 business, 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 remaining 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 unconstitutional on its face because it places the burden of proving non-obscenity on a defendant in a nuisance action. They claim that G.S. 19-1.1(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 literary, 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 interpret 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. 19-1.1(2) in a nuisance action, including proof that the material 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 enjoined 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. 19-1.1(2) shows that Chapter 19's definition of "lewd matter" almost exactly tracks the Supreme Court's language 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. 19-1.1(2), it did not specifically state that the sexual conduct being depicted be "patently 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. Wirtz, 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 correctly and completely defined in G.S. 19-1.1(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-recognized 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 exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively." 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 commercial 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 something 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 injunction they are attacking, that remedy automatically constitutes 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 injunction such as this one or that even labelled one a prior restraint.
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 unconstitutional. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 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 solicitation 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 ground 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." Id. 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 would under a usual criminal obscenity statute. It is true that the defendants may be fined or imprisoned if they violate the injunction, but those same consequences could flow from a violation of the criminal law.
In fact, under a Chapter 19 nuisance proceeding, unlike a 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; however, 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 Exclusive Obscenity Nuisance Statute, 44 Chi. L. Rev. 509, 556 (1977).
There is no significant difference procedurally in a criminal 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 imposed 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 authorized 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 nuisance, 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 public officers. The Court, in dealing with the issue of freedom of the press repeatedly emphasized that "[t]hat liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct." Id. at 717, 75 L.Ed. at 1368, 51 S.Ct. at 631.
The difference between trying to limit that type of expression 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, magnitude 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.
"[T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases:
. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. . . . These limitations are not applicable here." Near v. Minnesota, supra at 716, 75 L.Ed. at 1367, 51 S.Ct. at 631. (Emphasis supplied.)
The Minnesota statute in Near also authorized an injunction against obscene publications declared to be nuisances. 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." Id. 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 whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law." The Court noted that "scandalous and defamatory" are broadly defined by law to include publications 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 welfare," 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 violation of the injunction. More importantly, this order is narrowly drawn, and the prohibited conduct is specifically defined.
The defendants assert that the danger here is in self-censorship; they will limit their sale of constitutionally protected 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 recognized in cases like Dombrowski v. Pfister, 380 U.S. 479 [holding that a person can collaterally attack the constitutionality 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 unquestionably 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 afforded 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 BROCK took no part in the consideration or decision of this case.
Justice EXUM dissents.