
    Clarence B. GIARRUSSO v. EXCALIBER BOOKS, INC., et al.
    No. 6205.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1974.
    Blake G. Arata, City Atty., Joel P. Loef-felholz, Charles C. Foti, Jr., New Orleans, for plaintiff-appellee.
    Michael Silvers, New Orleans, for defendants-appellants.
    Dodd, Hirsch, Barker, Meunier, Boud-reaux & Lamy, C. Paul Barker, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This cause was tried in the district court on a petition for injunction under the Abatement of Public Nuisances Act. LSA-R.S. 13:4711-13:4717. After trial on July 13, 1973, judgment was entered for the plaintiff on the single ground of the existence of obscenity as defined in LSA-R.S. 14:106 on the premises of defendant.

On December 13, 1973, the Supreme Court in Gulf States Theaters of Louisiana, Inc. et al. v. Richardson, La., 287 So. 2d 480, 493 stated:

“ * * * We are of the opinion that R.S. 13:4711-13:4717 are unconstitutional insofar as they attempt to regulate obscenity.
“The plaintiffs, defendants in reconvention, also attack these statutes and the injunction issued against them on the ground that R.S. 14:106A(2) is unconstitutional. The argument is that obscenity referred to in the nuisance statutes is, by those statutes, defined by the “Criminal Laws of this State”, (R.S. 14:106) and, therefore, if R.S. 14:106A(2) is unconstitutional, the nuisance statutes are unconstitutional and the injunction issued against them is illegal, void and of no effect. We have considered the constitutionality of R.S. 14:106A(2) and (3) in State v. Shreveport News Agency, Inc., La., 287 So.2d 464 (La.1973), and State v. McNutt, La., 287 So.2d 478 (La.1973).
“For the reasons assigned in State v. Shreveport News Agency, Inc., and State v. McNutt, plaintiffs’ allegation of unconstitutionality here is supported and, pursuant to the clear pronouncement by the United States Supreme Court, we have declared R.S. 14:106(2) and (3) to be unconstitutional.”

Gulf States was recently reaffirmed in State of Louisiana v. Gay Times, Inc., Louisiana Supreme Court, 294 So.2d 496 (1974).

Plaintiff initiated this suit prior to the decisions of the Supreme Court in the cited cases. Since plaintiff filed no brief or appeared for oral argument, it is apparent that plaintiff is of the correct opinion that we can do nothing but abide by the decisions of the Supreme Court.

The judgment of the trial court is reversed. Plaintiff is to pay the costs of this appeal.

REDMANN, J., dissenting.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge

(concurring with written reasons).

An appeal was taken by defendant from an injunction in favor of plaintiff providing as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be affirmative judgment in favor of the plaintiff and against the defendant, Excaliber Books, Inc., prohibiting the sale of obscene books, as defined by Louisiana law, from the location of 3813 Tulane Avenue, after July 20, 1973, at 5:00 P.M., under penalty of contempt of court.”

Defendant has appealed on the basis of Gulf States Theatres of Louisiana, Inc. v. Richardson, La.Sup.Ct.1973, 287 So.2d 480.

Plaintiff has filed no brief in this Court and made no appearance when the case was scheduled for oral argument.

When these proceedings were initiated the only legal definition of obscenity available to the parties • was that found in LSA-R.S. 14:106A(2). But this statute was specifically declared unconstitutional by our Supreme Court in the cited case.

While it is crystal clear to anyone that the material described in plaintiff’s petition and in the trial judge’s reasons for judgment in this case is unmitigated filth whose characterization as obscene is the only conclusion reasonable minds can reach, and for the purpose of which characterization legal definitions hardly seem necessary, the fact remains that the plain wording of this injunction depends upon the existence of such a legal definition and no such viable definition now exists in our law.

The curtailing of traffic in the type of garbage, which is the subject of this case, is a matter which cries out to the legislature for immediate remedial action. The fiber of our society can certainly be damaged by this trash being sold in the market place. But until the legislature acts, these purveyors of filth will be able to operate without restraint in the sale of materials which constitute yile perversions of human love and sexuality.

Happily, the legislature is now in session and can remedy this situation even by means of emergency legislation if they see fit to do so.

I concur in the result.

REDMANN, Judge

(dissenting).

Defendant appeals from an injunction “prohibiting the sale of obscene books” under penalty of contempt of court. We might amend this injunction to specify the prohibited books (by title or magazine issue number) and photographs (e. g., “penis in mouth”, as the trial judge described them), and thus cure the vagueness and overbreadth of the order. But the Louisiana Supreme Court, in Gulf States Thea-tres of La. Inc. v. Richardson, 1973, 287 So.2d 480, in voiding the enjoining of the film “Last Tango in Paris”, has reasoned that the civil statute authorizing the enjoining of obscenity is unconstitutional. The question presented here is whether any authority remains in lower courts to enjoin constitutionally suppressible obscenity.

The question whether suppressible obscenity should be suppressed is for a state’s legislature to decide. The Louisiana Legislature has decided that suppression should occur (and this is not the place to philosophize agreement or disagreement with that legislative decision). But our statute has, Gulf States reasons, gone beyond constitutional limits in authorizing not only suppression of unprotected obscenity but also suppression of some expression whose freedom is constitutionally guaranteed.

According to the petition defendant exhibited for sale magazines picturing “sexual activity between man and woman, man and man, woman and woman, and woman and animals where the sex organ of one or both of the participants was used . consisting of acts of fellatio, cunnilingus, sodomy, buggery, copulation and various homosexual and lesbian activity.”

The judgment appealed from is not a criminal sentence resulting from a criminal prosecution. It does not condemn defendants to prison or fine them. Properly amended by us, it would merely order them not to sell such materials, specifically described, in the future.

Gulf States discusses at length the constitutional intolerability of prior restraint of expression, which it found present in both the injunction without hearing and the padlocking of the premises which are in terms allowed by La.R.S. 13:4711-13:4717. (However, neither of these devices was in fact there present, and neither is here present.) Gulf States further reasoned that the unenforceability as criminal law of the criminal obscenity statute, R.S. 14:106(2) and (3), was an additional reason to reject the civil statute authorizing injunction' against obscenity, since R.S. 13 :4711-13:4717 employed the criminal law as the definition of obscenity.

On its facts, Gulf States reversed an injunction against showing the film “Last Tango in Paris”. From descriptions of that controversial film in the news media, one might suppose that, despite some simulated sexual representations, the film did offer something dramatic besides sex to its viewers. It might therefore be questioned whether that film, “taken as a whole, do[es] not have serious literary, artistic, political or scientific value”, Miller v. California, 1973, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419. Thus, presumably, Gulf States might havé reached the conclusion that “Last Tango” was not within the constitutionally-permissible scope of a civil obscenity suppression statute. (I repeat that the court expressly declined to so limit its reasoning.)

Our petition alleges no “Last Tango”. Its allegations suggest the total absence of serious value of the items sought to be enjoined. If there does remain — as the United States Supreme Court in Miller affirms —any matter not protected by constitutional freedom, the allegations of our petition indicate that unprotected matter is the object of this injunction.

Nevertheless this court is bound by the ruling of the Louisiana Supreme Court, and that court has “declare[dj R.S. 13:4711-4717 unconstitutional, insofar as they attempt to declare obscenity a public nuisance.” 287 So.2d at 493. But because that decision was in fact a ruling on a film which at least may have serious value, and the matter here involved seems to have no such pretension, I would, on the possibility that Gulf States might be distinguished, certify to the Louisiana Supreme Court, La.Const, art. 7, § 25, the questions:

First. Does Gulf States inescapably annul the entirety of La.R.S.•• 13:4711-13:4717, so that photography, including close-up detail, of even the most wanton and perverse sexual congress may be displayed and sold free from the injunctive power of the courts? Or, may the lower courts of this state construe the binding authority of Gulf Stales (despite its broad language) as limited to its facts, and therefore not controlling in cases of indefensibly explicit coition?

Second. If Gulf States may be so limited, may a criminal obscenity statute that has been declared unconstitutionally vague or overbroad for purposes of criminal prosecution of past action nevertheless suffice as a definition of the area within which civil injunction may prohibit future action, if the enjoined future action is specifically set forth in the injunction? For civil purposes only, may vagueness or ov-erbreadth in the statutory definition of obscenity be made immaterial by the court’s specific wording of an injunction to inform a party precisely, in unmistakable language, of the constitutionally-unprotected behavior enjoined in the future ?  