
    Clarence B. GIARRUSSO v. D’IBERVILLE GALLERY et al.
    No. 6168.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1974.
    
      Milton P. Masinter, New Orleans, for defendant-appellant.
    Blake G. Arata, City Atty., Charles C. Foti, Jr., and Joel Loeffelholz, Asst. City Attys., for plaintiffs-appellees.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   PER CURIAM.

The owner of a building has appealed from a judgment ordering his premises closed for a period of one year, pursuant to the authority of R.S. 13:4714. The trial court found that the owner’s lessee had exhibited obscene films on part of the premises.

In Gulf States Theatres of La., Inc. v. Richardson, La., 287 So.2d 480 (1974), the Supreme Court of Louisiana declared R.S. 13 :4711-13:4717 unconstitutional insofar as those statutes attempted to regulate obscenity.

Accordingly, that portion of the judgment of the trial court which ordered the closing of 519-521 Iberville Street for one year is reversed, and judgment is rendered dismissing plaintiff’s demand for the closing of the building.

Reversed and rendered.

LEMMON, J., concurs and assigns reasons.

BOUTALL, J., concurs and assigns reasons.

SCHOTT, J., concurs and assigns reasons.

LEMMON, Judge

(concurring).

This court is only bound by the authority of the holdings of higher courts. I do not believe that the holding in the Gulf States case rendered R.S. 13:4711-4717 unconstitutional in their entirety, as the entirety of those statutes was not before the court.

Obscene expression is not protected by the First Amendment, and the states have a legitimate interest in regulating the exhibition of obscene materials. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Although obscenity has been defined in various terms, no decision of the Supreme Court of the United States has ever classified hard core pornography as protected expression.

Under any definition pronounced in a long line of obscenity cases, the movies involved in this case are obscene. Although R.S. 14:106A(2), defining obscenity as a crime, has been declared vague and over-broad and therefore unconstitutional for purposes of criminal prosecution, State v. Shreveport News Agency, Inc., La., 287 So.2d 464 (1974), that definition can still serve as a basis for a civil obscenity suppression statute. Inasmuch as the Miller case reiterates that hard core pornography is not protected expression, I believe that the most recent holdings of the state and federal supreme courts do not prevent this court from affirming a civil suppression of hard core pornography under R.S. 13:4711-13:4717.

Nevertheless, the effectual closing to future legal uses of a building where obscenity has been exhibited in the past amounts to prior restraint of speech and expression and is violative of the state and federal constitutions. Just as it is constitutionally impermissible to prohibit future use of a printing press which had been used previously to print obscene literature [see Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), as explained in Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957)], a statute cannot constitutionally prohibit an owner’s legal use of his building in the future because of past use by a lessee for obscenity purposes, especially when the statute does not require and the complainant does not prove that the lessor had knowledge of or participated in that use. See also Society to Oppose Pornography, Inc. v. Thevis, 255 So.2d 876 (La.App. 4th Cir. 1971), cert. den. 260 La. 706, 257 So.2d 158 (1972).

I therefore concur in result with the majority decision, although I do not believe that result is compelled by the authority of the Gulf States holding, since the padlocking feature was not present in the Gulf States factual situation.

BOUTALL, Judge

(concurring in result) .

I concur in the reversal of the trial court judgment solely because the Louisiana Supreme Court has declared the Abatement of Public Nuisances Statute, R.S. 13:4711-13:4717 unconstitutional in Gulf States Theatres of La., Inc. v. Richardson, 287 So.2d 480 (1973) holding as follows:

“For that reason and for other reasons herein presented, we hereby declare R.S. 13:4711-4717 unconstitutional, insofar as they attempt to declare obscenity a public nuisance.” ' 287 So.2d 493.

Although I do not subscribe to the views expressed therein, this court is required to follow this holding. While we cannot breathe life into a dead statute, nevertheless we should express our opinion with a view to limitation of the extent of that holding.

Basically, I believe the decision to be incorrect for the reasons expressed by the dissents therein, and see no reason to repeat them. I would point out that the nuisance to be abated in R.S. 13:4711 is “. . . obscenity as now defined or as may hereafter be defined by the Criminal Laws of this State, . . .” Having found the obscenity law [R.S. 14:106A(2) and (3)] upon which the Gulf States proceedings was based to be unconstitutional in State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973), the court was not required to declare upon the constitutionality of R.S. 13:4711 but simply to declare it inapplicable to the factual situation there presented. Instead the court chose to examine R.S. 13:4711 — 13:4717 section by section and declare each section unnconstitu-tional despite the lack of issue of a number of those sections in the proceedings before them.

In so doing the court attempted to make a distinction between the results that should flow from a violation of the obscenity laws as opposed to the prostitution laws, based upon the freedom of speech guaranteed under U.S. Constitution Art. I and La. Constitution, Article I, Section 3. No one has an unlimited right of freedom of expression and certainly he is responsible for abuses of that right. The legislature has decided that one penalty for such abuse is loss of use of the building and contents for up to one year. If the State may imprison a person for violation of a criminal law, may it not also curb the use of the instrumentalities used in the violation? If not, then the State cannot legally declare forfeit any instrumentality used in commission of crime, but which has ordinarily permissible uses, for example, a vehicle used to transport illegal narcotics. I suggest that the application of this statute is based on penalty for illegal use, not prior restraint of a possible future permissible use.

I make these comments with the view that the Court in Gulf States did not have before it an issue concerning the enjoining of the use of the premises, simply enjoining of showing of a particular motion picture.

SCHOTT, Judge

(concurring in result).

This suit was initiated and concluded with a judgment in the trial court on the basis of LSA-R.S. 13:4711 to 13:4717 which has since been specifically declared unconstitutional by the Supreme Court in Gulf States Theatres of La., Inc. v. Richardson, 287 So.2d 480.

The plaintiff has not formally abandoned his appeal in this case but in view of the fact that he has filed no brief and has not appeared for oral argument he evidently recognizes that there is nothing we can do but to abide by the cited opinion. 
      
      . For instance, the trial court in Gulf States had neither issued an injunction without hearing nor padlocked the premises.
     