State Ex Rel. Ewing v. a Motion Picture Film Entitled "Without a Stitch"

This cause is before this court de novo. We have reviewed and weighed the evidence submitted in the court below and in this court. Fortunately, after July 1, 1971, the anomalous practice of one trial and one trial de novo is abolished under Rule 2, Ohio Rules of Appellate Procedure.

The case comes to this court on the complaint of the petitioner for an injunction to enjoin the exhibition of the motion picture film, "Without a Stitch," and to abate the same as a public nuisance in the city of Toledo, Ohio, pursuant to R. C. 3767.01 et seq. Answers were filed by the defendants James Wescott, Art Theatre Guild, Inc., and Tonylyn Productions, Inc. Mr. Wescott is the manager of the theatre. Art Theatre Guild, Inc., is a corporation organized under the laws of Ohio and operates the Westwood Art Theatre and is wholly owned by Louis K. Sher. Defendant Tonylyn Productions, Inc. is a corporation organized under the laws of the state of California and it owns the distribution rights in and to the said film. Although we are to treat this case as if the cause had never been tried below (see Lincoln Properties v. Goldslager (1969),18 Ohio St. 2d 154), we note that the court below permanently enjoined the defendants and all persons acting for them from exhibiting the subject motion picture film, and that the defendants filed an appeal bond in the amount of $20,000 to perfect their appeal on law and fact and also to stay the execution of the lower court's injunction until a final adjudication is made in the appellate courts of this state, including the Supreme Court of Ohio.

The essential issue before this court is whether the film "Without a Stitch" is obscene and, therefore, subject to the provisions of R. C. 3767.01 et seq. To the extent the term "obscene" has been defined or is capable of definition, we look to Roth v. United States (1957), 354 U.S. 476,1 L. Ed. 2d 1498, 77 S. Ct. 1304 and, for further elaboration, to A BookNamed "John Cleland's Memoirs of a Woman of Pleasure" v.Attorney General of Mass. (1966), 383 U.S. 413, 16 L. Ed. 2d 1,86 S. Ct. 975.

After reviewing the varied decisions since Roth, we appreciate the exasperation of some judges and authors when they suggest that the law is in a fragmented state of bewilderment. After such an examination, Justice Stewart's observation that, "but I know it when I see it" takes on new dimensions. It is not the purpose of this opinion to add to the already voluminous array of comment on this subject, but to set forth for properly interested parties our reasoning, findings and conclusions.

In Roth, supra, Mr. Justice Brennan, who delivered the opinion of the court, made the following observations at page 484: "But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." He also said the following at page 485: "We hold that obscenity is not within the area of constitutionally protected speech or press." In Roth, also, was the answer to the argument that the constitution protects the presentation of obscenity in a theatre open only to consenting adults. Mr. Justice Brennan in rejecting this argument said proof of a clear and present danger of antisocial conduct is not required. In support thereof he cited Beauharnais v. Illinois, 343 U.S. 250.

The test laid down by Roth is found at page 489 of the opinion, as follows:

"* * * [w]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. * * *"

The court, in Memoirs, supra, at page 418, seized upon the words of the Roth case, "utterly without redeeming social importance," and fashioned the following definition of obscenity with three elements which must coalesce:

"* * * [I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

This definition was quoted with approval in State v. Mazes,7 Ohio St. 2d 136 at 137 (reversed on other grounds in388 U.S. 453, 18 L. Ed. 2d 1315, 87 S. Ct. 2105).

In close cases, it has been suggested that evidence of pandering may be probative with respect to the nature of the material in question. Ginsburg v. United States (1966),383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31; P. B. I. C., Inc., v.Byrne (D. Mass. 1970), 313 F. Supp. 757.

The case of Stanley v. Georgia (1969), 394 U.S. 557,22 L. Ed. 2d 542, 89 S. Ct. 1243, considered the private possession of obscene material, and the Supreme Court of the United States found that this was a protected activity. The court in that case reiterated that the Roth decision was still the law, however, some scholars and judges, although we do not mean to imply that the two categories cannot coalesce, thought that they noted a hole in the dike. Thereafter, the country was inundated by a flood of obscenity and favorable court decisions. The varied nature of the subject helped to confuse the issues, e. g., private possession, commercial exploitation, method and type of dissemination, e. g., books, pictures, movies, and live presentation. See 50 American Jurisprudence 2d 481, Lewdness, Indecency, and Obscenity, Section 26. The individual positions of the Justices of the Supreme Court, plus a rash of per curiam reversals of state decisions, helped spawn conflicting appellate decisions before and after Stanley, supra. Jacobellis v. Ohio, 378 U.S. 184,12 L. Ed. 2d 793, 84 S. Ct. 1676; United States v. Klaw (C.C.A. 2, 1965), 350 F.2d 155.

Two recent Supreme Court cases have done much to bring some semblance of order to the morass of obscenity decisions. The cases decided after the decision in the Lucas County Common Pleas Court support that decision and they are United States v.Reidel (May 1971), 28 L. Ed. 2d 813, and United States v.Thirty-seven (37) Photographs, Milton Luros, Claimant (May 1971), 28 L. Ed. 2d 822. These cases refuted the argument thatStanley, in effect, emasculated Roth. The principles of Roth are reaffirmed and Stanley is limited to the facts of that case. A "poor Stanley," constitutionally may not have obscenity commercially distributed to him. In Reidel, supra, at page 816, the court said "obscenity is not within the area of constitutionally protected speech or press," and then quotedStanley, at page 817, as follows:

"Roth and the cases following that decision are not impaired by today's holding. As we have said, the states retain broad powers to regulate obscenity. * * *" In reference to the district court, and perhaps other courts which have givenStanley too wide a sweep, see the following from Reidel at page 817:

"* * * To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home aFirst Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion adjured. Whatever the scope of the ``right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here — dealings which Roth held unprotected by the First Amendment."

And at page 818:

"Roth and like cases have interpreted the First Amendment not to insulate obscenity from statutory regulation."

In the concurring opinion by Mr. Justice Harlan, we find the following at page 818:

"Appellee here contends, in effect that the Stanley ``right to receive' language, 394 U.S. at 564-565, 22 L. Ed. 2d at 549, constituted recognition that obscenity was constitutionally protected for its content. Governmental efforts to proscribe obscenity as such would, on this interpretation, not be constitutional; rather, the power of both the state and federal governments would now be restricted to the regulation of the constitutionally protected right to engage in this category of ``speech' in the light of otherwise permissible state interests, such as the protection of privacy or the protection of children.

"That interpretation of Stanley, however, is flatly inconsistent with the square holding of Roth v. United States,354 U.S. 476, 485, 1 L. Ed. 2d 1498, 1507, 77 S. Ct. 1304 (1957): * * *

"Either Roth means that government may proscribe obscenity as such rather than merely regulate it with reference to other state interests, or Roth means nothing at all. * * *"

In United States v. Thirty-Seven (37) Photographs, supra, in reference to the commercial distribution of obscenity, the court's observations at page 834 are appropriate.

"* * * Stanley's emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home. * * * Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution."

With this review, we turn to the question of whether the plaintiff has carried his burden of proof. The evidence consisted of testimony, exhibits, and the viewing of the film by this court at the request of all the parties. Despite this request, the defendants argue that this court cannot consider this film as evidence, but that we must consider the viewing as if it were only a view of the place to enable us to better apply the evidence offered. In short, the defendants say that we cannot believe our eyes, an argument advanced with some success by the weavers of the king's clothes in the tale, The Emperor'sNew Clothes, written by an earlier Danish author, Hans Christian Andersen. This court does not need a little boy's exclamation to establish that the king, in fact, had nothing on.

The cases clearly establish the right, if not the necessity, of the court to view the material; this the court has done. SeeJacobellis v. Ohio (1964), 378 U.S. 184, 12 L. Ed. 2d 793,84 S. Ct. 1676; Womack v. United States (D.C. Cir. 1961),294 F.2d 204; Evans Theatre Corp. v. Slayton (Ga. 1971),180 S.E.2d 712; Kahm v. United States (C.C.A. 5, 1962), 300 F.2d 78.

By any test, medium-core, hard-core, as if res ipsa loquitur, obscenity per se, patently obscene, or screaming obscenity, the film was obscene. See State, ex rel. Sensen-brenner, v. AdultBookstore (1971), 26 Ohio App. 2d 183; Jacobellis v. Ohio (1964), 378 U.S. 184, 12 L. Ed. 2d 793, 84 S. Ct. 1676;United States v. Klaw (C.C.A. 2, 1965), 350 F.2d 155;Morris v. United States (D.C. Cir. 1969), 259 A.2d 337;Womack v. United States (D.C. Cir. 1961), 294 F.2d 204;Dunn v. Maryland State Board of Censors (Md. 1965),213 A.2d 751. However, considering the evidence and applying the tests as enumerated in Roth v. United States, supra, and as further elaborated in Memoirs, supra, we find that to the average person applying national contemporary community standards the dominant theme of the film, taken as a whole, appeals to a prurient interest in sex, that the film goes substantially beyond customary limits of candor and affronts contemporary community standards relating to the description or representation of sexual matters; that the film is utterly without redeeming social value, that the three elements coalesce, and that the film, "Without a Stitch," is obscene. We have also considered as indicative but not conclusive of national standards the laws of the state of Ohio^* and other states. See Roth, supra, page 485.

Briefly, we state that the so-called "plot" is as follows. The principal participant is an unmarried, seventeen and a half year old girl about to be a senior in high school. She finds that when confronted with intimate relations with a male classmate she is frigid. To overcome what she concludes is an unusual attitude, she visits a doctor. The doctor proceeds to effect a cure, which includes a variety of sexual stimulations, including intercourse. Without his white coat and when the doctor was in the nude giving therapeutic treatment his numerous tatoos gave one the impression that his internship was taken with the Danish merchant marine. After treatment, the young girl started on a hitchhiking tour of Europe to further effect her cure. Defendants argue that the scenery and photography was very good and this gives to the picture some redeeming social value. The photography is good and the scenery is interesting, but this is not a travelogue, and when the sun slowly sets in the west, it ushers in another night of sexual excess and aberration. This included nude scenes of vaginal and anal copulation, lesbian relations, participation in a "stag" film, fellatio, cunnilingus, and sex orgies between two women and a male, and two males and the "star" of the production, the display of a dildo, sadism and masochism. All acts were simulated except the fondling and suckling of the patient's breast by the doctor. It is obvious that the presentation was to appeal to titillation, not travel.

As cured, the patient returns to her doctor to exhibit her new found radiant health and peace of mind. We find no redeeming social value in this film. If there is a plot, it was only a facade or pretext to exhibit what for years has been known as a "stag" film.

We find, further, that the defendants were pandering as defined in Ginsburg v. United States, supra. The defendants' sole emphasis was on the sexual, provocative aspects of this film. The advertising and promotional materials were slanted to appeal to the erotic interests of their customers.

Since this action is brought under R. C. 3767.01 et seq., we set forth the applicable provisions.

R. C. 3767.01:

"(C) ``Nuisance' means that which is defined and declared by statutes to be such and also means any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition films, or glass slides either in negative or positive form designed for exhibition by projection on a screen, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose. * * *"

R. C. 3767.02:

"Any person, who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance together with the persons employed in or in control of any such nuisance by any such owner, agent, or lessee is guilty of maintaining a nuisance and shall be enjoined as provided in Sections 3767.03 to3767.06, inclusive, of the Revised Code."

Under the conditions set forth in R. C. 3767.03, any person of the county may bring an action in equity in the name of the state to abate the nuisance. There exists a choice of remedies with injunction being one. See Kingsley Books, Inc., v.Brown (1957), 354 U.S. 436, 1 L. Ed. 2d 1469, 77 S. Ct. 1325;People v. Linn (1941), 18 Cal. 2d 872, 118 P.2d 472; EvansTheatre Corp. v. Slayton (Ga. 1971), 180 S.E.2d 712; 50 American Jurisprudence 2d 464, Lewdness, Indecency and Obscenity, Section 10.

The statute is a constitutionally permissible means of controlling obscenity. See 34 Ohio Jurisprudence 2d 160, Lewdness, Indecency, Obscenity, and Profanity, Section 8; GrovePress, Inc., v. Flask, Civil No. C 69-735, District Court Northern District of Ohio, Eastern Division.

Having found the film obscene, we also find that a nuisance, as defined in R. C. 3767.01, was maintained, and the applicable provisions of R. C. 3767.01 et seq., are invoked and are mandatory. We permanently enjoin the defendants, and each and all persons acting for them from exhibiting the subject motion picture film; the Westwood Art Theatre where the film was exhibited is ordered closed for one year from the date of the judgment entry to be filed in this court (R. C. 3767.06); a tax of $300 is imposed on the defendants and against the real property upon which the Westwood Art Theatre is located (R. C.3767.08 and R. C. 3767.09). The lower court having enjoined the exhibiting of the film and the defendants desiring to stay the execution of the order of injunction in order to continue to exhibit the film while the appeal is pending filed a bond and the court stayed the enforcement. (See 29 Ohio Jurisprudence 2d 410, Injunctions, Section 181, as to the terms and conditions of a decree or order.) The defendants shall now account for the box office receipts arising out of the exhibiting of the motion picture film entitled "Without a Stitch," from the effective date of the Court of Common Pleas order enjoining the presentation of the film, September 19, 1970, up to and including the final performance. The majority of this court are of the opinion that not to sequester the receipts would render the lower court's order a nullity. The box office receipts shall be paid to the Lucas county treasurer, and the costs are assessed against the defendants.

WILEY, J., concurs.

^* Among the laws of Ohio which are indicative are the following. See R. C. 2905.34. Its pertinent parts are as follows:

"As used in Sections 2903.13 to 2903.16, inclusive, and Sections 2905.34 to 2905.39, inclusive, of the Revised Code:

"(A) Any material or performance is ``obscene' if, when considered as a whole and judged with reference to ordinary adults, any of the following apply:

"(1) Its dominant appeal is to prurient interest;

"(2) Its dominant tendency is to arouse lust by displaying or depicting nudity, sexual excitement, or sexual conduct in a way which tends to represent human beings as mere objects of sexual appetite;

"(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;

"(4) It contains a series of displays or descriptions of nudity, sexual excitement, sexual conduct, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than for a genuine scientific, educational, sociological, moral, or artistic purpose.

"* * *

"(E) ``Material' means any book, pamphlet, ballad, printed paper, phonographic record or tape, motion picture film, print, picture, figure, image, description, or other tangible thing capable of being used to arouse interest through sight, sound, or in any other manner.

"(F) ``Performance' means any motion picture, preview, play, show, skit, dance, or other exhibition performed before an audience."

This statute was effective September 15, 1970, after the filing of the complaint, but before the decision in the lower court. The film was exhibited after the effective date, and the trial de novo was held after the effective date of the statute. Other statutes so considered are:

R. C. 2905.08 — Adultery or fornication; R. C. 2905.10 — Inducing illicit intercourse; R. C. 2905.26 — Prostitution, lewdness and assignation defined; R. C. 2905.30 — Indecent exposure; R. C. 2905.31 — Nudism; R. C. 2905.44 — Sodomy.