State v. Gulf States Theatres of Louisiana, Inc.

287 So. 2d 496 (1973)

STATE of Louisiana and the Parish of Caddo v. GULF STATES THEATRES OF LOUISIANA, INC., et al.

No. 52132.

Supreme Court of Louisiana.

December 3, 1973.

Rehearing Denied January 11, 1974.

Arthur R. Carmody, Jr., John M. Madison, Jr., Wilkinson, Carmody & Peatross, Shreveport, Hopkins P. Breazeale, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for defendants-applicants.

William J. Guste, Jr., Atty. Gen., Harry Howard, LeRoy A. Hartley, Asst. Attys. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiffs-respondents.

Sanders, C.J., Summers, and Marcus, JJ., dissented from denial of rehearing.

CULPEPPER, Justice Ad Hoc.

The State of Louisiana and the Parish of Caddo initiated proceedings seeking to enjoin the exhibition of the motion picture "The Stewardesses" under the Abatement of Nuisances Statute, R.S. 13:4711-17, alleging the film to be obscene.

Defendants challenge the constitutionality of the statute under which the suit was instituted and deny that the film is obscene.

After hearing and rehearing in this Court, judgment was entered permanently enjoining defendants from showing any version of the motion picture within Caddo Parish, 264 La. 44, 270 So. 2d 547. Certiorari was granted by the United States Supreme Court, 413 U.S. 913, 93 S. Ct. 3063, 37 L. Ed. 2d 1037. Thereafter, that Court *497 issued its mandate which ordered our judgment vacated and remanded the cause to us for further consideration in the light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973); United States v. 12 200-ft. Reels of Super 8 mm Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S. Ct. 2674, 37 L. Ed. 2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2d 993 (1973).

A hearing has been held in this Court on the remand. Defendants again urge the unconstitutionality of R.S. 13:4711-17 and assert that our prior holding anent obscenity is erroneous.

We have, this date, declared R.S. 14:106 A(2) unconstitutional as violative of the First and Fourteenth Amendments of the Constitution of the United States and Article I, Sections 2 and 3 of the Constitution of the State of Louisiana in the cases of State v. Shreveport News Agency, Inc., 287 So. 2d 464 (La.1973) and State v. McNutt, 287 So. 2d 478 (La.1973); and R.S. 13:4711-4717 unconstitutional insofar as the provisions therein attempt to regulate obscenity in the case of Gulf States Theatres of Louisiana Incorporated v. Richardson, 287 So. 2d 480 (La.1973).

It necessarily follows for the reasons assigned in those cases that the judgment of this Court previously rendered enjoining defendants from showing "The Stewardesses" in Caddo Parish must be reversed and set aside.

For the reasons assigned, the judgment of this court rendered on rehearing on December 18, 1972 is set aside; and plaintiffs' suit is dismissed.

SANDERS, C.J., dissents for the reasons assigned by him in Gulf States Theatres of Louisiana, Inc. v. Richardson, No. 54,044, 287 So. 2d 481.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice (dissenting).

I dissent, adhering to the reasons assigned in the original opinion of this Court. See also State v. Rhodes, 283 So. 2d 351 (Fla.1973), and my dissent in State v. Shreveport News Agency, Inc., 287 So. 2d 464, rendered December 3, 1973.