Cinema I Video, Inc. v. Thornburg , 320 N.C. 485 ( 1987 )

358 S.E.2d 383 (1987) 320 N.C. 485

CINEMA I VIDEO, INC. d/b/a Cinema I Video et al.,
v.
Lacy H. THORNBURG, Attorney General of the State of North Carolina, et al.,
NORTH AMERICAN VIDEO, LTD. OF DURHAM, d/b/a North American Video, et al.,
v.
Lacy H. THORNBURG, Attorney General of the State of North Carolina, et al.,
NORTH CAROLINA ASSOCIATION OF FAMILY ENTERTAINMENT CENTER, INC.
v.
Lacy H. THORNBURG.
PARKER NEWS, INC., a North Carolina Corporation, et al.,
v.
Lacy H. THORNBURG, Attorney General of the State of North Carolina, et al.

No. 49A87.

Supreme Court of North Carolina.

July 28, 1987.

Kirby, Wallace, Creech, Sarda, Zaytoun & Cashwell by David F. Kirby and Robert E. Zaytoun, Raleigh, for plaintiff-appellants Cinema I Video, Inc., et al., North American Video, Ltd., et al. and North Carolina Association of Family Entertainment Centers, Inc.

Whitley, Coley and Wooten by Everette L. Wooten, Jr., Kinston, for plaintiffs-appellants Parker News, Inc., et al.

Lacy H. Thornburg, Atty. Gen. by Andrew A. Vanore, Jr., Chief Deputy Atty. Gen., Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., and Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for defendants-appellees.

North Carolina Civil Liberties Union Legal Foundation by William G. Simpson, Jr., Greensboro, and M. Jackson Nichols, Raleigh, amicus curiae.

North Carolina Academy of Trial Lawyers, PHE, Inc., and Philip Harvey, Washington, D.C., by David S. Rudolf, Chapel Hill, and Bruce J. Ennis, Washington, D.C., amici curiae.

WHICHARD, Justice.

Plaintiffs brought this declaratory judgment action seeking to have amendments to North Carolina's obscenity laws declared facially unconstitutional and further seeking to enjoin defendants from enforcing the statutes against them. These amendments were enacted on 11 July 1985 as House Bill 1171, entitled "AN ACT TO STRENGTHEN THE OBSCENITY LAWS, TO PROTECT MINORS FROM HARMFUL MATERIAL THAT DOES NOT RISE TO THE LEVEL OF OBSCENITY, AND TO STOP THE SEXUAL EXPLOITATION AND PROSTITUTION OF MINORS." This bill amended N.C.G.S. 14-190.1, repealed N.C. G.S. 14-190.2, and added N.C.G.S. 14-190.13, -190.16, and -190.17. These provisions became effective 1 October 1985.

On 30 September 1985 plaintiffs in case 85CVS6750 (Cinema I Video) filed a complaint and motions for injunctive relief from the enforcement of the statutes, naming as defendants North Carolina's Attorney General and the district attorneys for each judicial district of the state. Plaintiffs alleged that because they "are in the business of selling and renting video tapes, including tapes which are sexually explicit, they will be the target of defendants' intended enforcement of N.C.G.S. secs. 14-190.1, 14-190.13, 14-190.16, and 14-190.17." They claimed that these statutes abridge their rights and the rights of their customers under the first, fifth, eighth, ninth, and fourteenth amendments to the United States Constitution and article I, sec. 27 of the Constitution of North Carolina. Plaintiffs further alleged that the amended statutes are vague in their terms and substantially overbroad. Plaintiffs have averred, as irreparable injury, the prospect of severe financial loss or ruin and possible criminal prosecution pending a determination of the case on its merits.

On 2 October 1985 plaintiffs in case 85CVS1796 (Parker News) filed a similar complaint in superior court, Wayne County. Plaintiffs in case 85CVS6850 (North American Video) filed a complaint in superior court, Wake County, on 3 October 1985, and plaintiffs in case 85CVS8071 (North Carolina Family Entertainment Center, Inc.) filed their complaint in superior court, Wake County on 15 November 1985. These cases also challenged the constitutionality of the statutes cited above.

In an order filed 3 October 1985 the temporary restraining orders prayed for in cases 85CVS6750 and 85CVS6850 were issued, pending a hearing on plaintiff's motions for preliminary injunctions. The motions for preliminary injunctions were denied, however, on 4 October 1985. Plaintiffs then sought appellate review of the denial of their motions for preliminary injunctions by filing petitions for a writ of certiorari, a writ of supersedeas, and a temporary stay with the Court of Appeals. These petitions were denied, and the actions proceeded in the trial court.

Defendants filed their answers and motions for summary judgment in cases 85CVS6750 and 85CVS6850 on 23 October 1985 and in case 85CVS1796 on 1 November 1985. On 5 November 1985 plaintiff in case 85CVS1796 filed a motion for summary judgment on its prayer for a permanent injunction. This motion was denied.

On 5 December 1985 plaintiffs in case 85CVS1796 made a motion to remove and continue the case in Wake County. The motion was allowed on 20 December 1985. By consent of the parties all four cases were consolidated. In an order filed 13 January 1986, defendants' motions for summary judgment were granted and plaintiffs' complaints were dismissed. Plaintiffs appealed.

The Court of Appeals affirmed the summary judgment holding the statutes constitutional under both the North Carolina and United States Constitutions. Cinema I v. Thornburg, 83 N.C.App. 544, 351 S.E.2d 305 (1987). Judge Becton concurred in part and dissented in part. Plaintiffs appeal.

For the reasons stated in the opinion by Johnson, J., the decision of the Court of Appeals is affirmed. As stated in that opinion, "our opinion is limited to the constitutionality of the statutes as drawn and we have no basis for deciding the constitutionality of the present applications of the statutes in pending cases." Cinema I Video v. Thornburg, 83 N.C. App. 544, 552, 351 S.E.2d 305, 311 (1986) (emphasis in original). Fact situations are readily conceivable in which the statutes at issue, if improperly applied, would be unconstitutional. Circumspect application is thus advisable. Mere potential for overbreadth is not dispositive, however; "the overbreadth involved [must] be ``substantial' before the statute involved will be invalidated on its face." New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361, 73 L. Ed. 2d 1113, 1130 (1982). The statutes here, while potentially beyond constitutional bounds if improperly applied, are not so substantially overbroad as to require constitutional invalidation on their face.

AFFIRMED.