Paris Adult Theatre v. Slaton District Attorney

The legal push and pull that has existed since the inception of the motion picture between freedom of speech and the right of a jurisdiction to regulate what is shown to its constituents is given clarity in this case. The Court's decision that pornography is not protected under the First Amendment simply because the existence and viewing of pornography by adults is legal is the most straightforward stance taken by the government on this issue by this time.

In 1973, the U.S. Supreme Court had a flurry of pornography cases on its docket and a growing unease regarding the way that obscenity was legally defined. Some members of the Court pushed to abolish all bans on pornographic material due to the difficulties encountered in enforcing them or even in determining what constituted obscene material. Still, the more conservative members lobbied instead for a stricter definition of pornography and for rights to be given to individual states to ban works that it felt would be considered offensive to those who lived there. Justice Brennan wrote:

As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal Courts. That is not to say that these Courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court.

One of these cases began on 28 December 1970 when the Paris Adult Theatres (two theatres linked with a shared lobby and box office) in Atlanta, Georgia, were showing the films "Magic Mirror" and "It All Comes Out in the End." The theatres billed themselves as "adult theatres" and had signs outside says "Adults Only," "You Must be 21 and Able to Prove It," and "If the Nude Body Offends You, Do Not Enter." Although there were no signs outside giving further information about the particular films that were being shown, it seemed clear that these were indeed films of a graphic sexual nature.

Two criminal investigators paid $3 each to enter the theatre. The district attorney's office filed a complaint against each of the films seeking to have them declared obscene and to have them banned from being shown. The complaints charged that the films constituted

a flagrant violation of Georgia Code Section 26-2101 in that the sole and dominant theme(s) of the said motion picture film[s] considered as a whole and applying contemporary community standards [appeal] to the prurient interest in sex, nudity and excretion, and that the said motion picture film[s are] utterly and absolutely without any redeeming social value whatsoever, and [transgress] beyond the customary limits of candor in describing and discussing sexual matters.

The district attorney's office could have brought criminal charges against the theatre since they were "knowingly distributing obscene material." Instead, they sought only to have the films judged obscene and to stop the theatres from showing them. Both sides waived their rights to a jury trial and agreed that the findings of the court on whether the films were obscene or not would be the final decision. It was never stipulated by the state whether they would pursue further legal action should the films be deemed obscene. When the complaint was filed, a hearing was set and the court barred the theatre from "concealing, destroying, altering or removing" the movies, but not, surprisingly, from showing them.

The court viewed the films along with photos showing the signs outside the theatre banning minors and stating the nature of the films. They interviewed witnesses and heard nothing to lead them to believe that minors were allowed in, although they also found no system in place to bar them. The court found that the films were indeed obscene "[a]ssuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately," but also found that the theatre had a right to show them so long as they did not allow minors into the theatre and they stated up-front, the nature of the films.

In appeal to the Supreme Court of Georgia, the decision was reversed based on United States v. Reidel. The court stated:

In [Reidel] the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution by limited to willing recipients who state that they are adults, and further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material . . . Those who choose to pass through the front door of the defendant's theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there.

In other words, while the patrons of the theatre had every right to watch the films under the First Amendment, the theatre was not similarly protected to show them.

The theatre appealed the decision to the U.S. Supreme Court, which upheld the decision that the distribution of pornographic material is not protected under the First Amendment. Writing for the majority, Chief Justice Burger wrote "The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined since their exhibition is not protected by the First Amendment."

Further, the Court agreed with the Georgia Supreme Court when it ruled that just because the theatre barred minors, that still did not given them legal protection to show obscene material. Berger wrote "In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and passersby." The possible link between pornography and violence was enough, he wrote, to warrant states to act to protect the social climate in their jurisdiction. Acting as a type of parent, Burger concluded that sometimes, government needs to step in to protect the rights of the many over the wishes of the few. "Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual `free will,' but impose regulation to protect both public health and the appearance of public places."

Still, it was not the existence of the films or of the rights of an individual to watch them that was the focus of the Court's debate, but whether the theatre was guaranteed the right to show them. Justice Burger wrote:

Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a `live' theatre stage, any more than a `live' performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.

The more liberal members of the Court did not feel that the case was so clear-cut however. Writing for the minority, Justice Douglas disagreed that obscene material was not protected under the First Amendment simply because it was judged to be obscene. And he was not even comfortable that a piece of work could be judged obscene categorically. He wrote:

Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that `obscenity' was not an exception to the First Amendment. For matter of taste, like matter of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply . . .

The dissenting opinion was that people are often offended by many things. Actions taken by the government, articles and opinions read in newspapers, ideas put forth on television all run the risk of offending segments of the population. That a group of people take offense at them, does not make them obscene or wrong. Justice Douglas further wrote:

There are regimes in the world where ideas `offensive' to the majority (or at least to those who control the majority) are suppressed. There, life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion.

Douglas continued to say that he had never found himself to be coerced into reading or viewing something that he found offensive. Understandably, one might ban their children from viewing something that they found unfit, but he found that it was not in the government's place to judge the "tastes or beliefs" of an individual so long as it did not result in actions that infringed on the rights of another. In fact, he wrote that the entire nature of the First Amendment rested on the fact that an individual had the freedom to choose his own beliefs.

When man was first in the jungle he took care of himself. When he entered a societal group, controls were necessarily imposed. But our society--unlike most in the world- presupposed that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world.

Nonetheless, the Court's decision took the stance that material is covered by the First Amendment when the content of that material is not of an obscene nature. That the distribution of this material and any measures taken to insure that its audience is not inappropriate was determined inconsequential, set a strong precedent for the rights of states to decide what they best feel serves their jurisdictions as well as for a conservative leaning on the meaning of free speech.