State ex rel. Keating v. Motion Picture Film Entitled "Vixen"

Per Curiam. Although the production, exhibition and distribution of motion pictures is a large-scale business conducted for private profit, the fact that motion pictures are a medium for the expression of ideas accords them the safeguard of the First and Fourteenth Amendments. Kingsley International Pictures Corp. v. Regents of University of the State of New York (1959), 360 U. S. 684, 3 L. Ed. 2d 1512, 79 S. Ct. 1362. The United States Constitution, however, does not ordain absolute freedom for anyone to exhibit any motion picture of any kind at any time or place. Dennis v. United States (1951), 341 U. S. 494, 95 L. Ed. 1137, 71 S. Ct. 857; Beauharnais v. Illinois (1951), 343 U. S. 250, 96 L. Ed. 919, 72 S. Ct. 725; Joseph Burstyn, Inc., v. Wilson (1952), 343 U. S. 495, 96 L. Ed. 1098, 72 S. Ct. 777. Thus, the exploitation, through the medium of a motion picture, of purported acts of sexual intercourse solely for the profit of the producer and exhibitors cannot constitute the communication of an idea or thought protected by the First and Fourteenth Amendments. Chaplinsky v. New Hampshire (1942), 315 U. S. 568, 86 L. Ed. 1031, 62 S. Ct. 766. Having viewed the film and scrutinized the record containing reference to the circumstances surrounding the film, we view its production, dissemination and exhibition against a background of commercial exploitation for the sake of prurient appeal. Defendant’s exhibit 23, an article from the U. C. L. A. Daily Bruin, Friday, July 11, 1969, by Stanley Berkowitz, quotes Eve Meyer, the executive producer of “Vixen,” as saying: “We’re only in it for the money.” This demonstrates the failure of the producers to conceal their attempt to exploit the film on grounds other than the communication of thought. Further evidence supporting the act of commercial exploitation is shown by the number of cities, theaters and states in which the movie has been exhibited. Through February 16, 1970, “Vixen” has played in 673 cities, 46 states, 929 theaters and 1,010 playdates. At this time, no profit [280] figure has been made available. However, with $4,000,000 having already been received and an additional $4,000,000 in accounts receivable, the picture, as of February 16,1970, has grossed $8,000,000. Defendant’s exhibit 18 reveals that: “Meyer budgets his films at around $70,000. His other films, for example, ‘The Immoral Mr. Teas’ (1959) has now grossed $1,200,000 on a $26,500 investment. That’s a 40-1 return . . . second in film history only to ‘Gone With the Wind.’ Meyer’s subsequent films have done nearly as well. Both ‘Lorna’ (1963) and ‘Eve and the Handyman’ (1961) have grossed nearly a million, and not one of his 20 films have failed to return four times its original cost.” There is no reason to assume that “Vixen” will fail to reap the same harvest. “. . . [If evidence as to the] . . . production, sale, and publicity . . . [with respect to the book have been available, such circumstances would have been] . . . relevant in determining whether or not its publication and distribution was constitutionally protected . . . [on the grounds that evidence] that the book was commercially exploited for the sake of prurient appeal to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. “It is not that in such a setting [commercial exploitation] the social value test is relaxed so as to dispense with the requirements that a book be utterly devoid of social value, but rather . . . where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value.” A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts (1966), 383 U. S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975. In describing “Vixen,” we rely on the expertise of various movie critics, whose literary efforts are contained in the record, for their depiction of the characters and events. The principal character, Vixen, is a buxom young wife, whose “square” husband is a combination pilot and [281] fishing guide in the wilderness of British Columbia. His work keeps him away from their home for extended periods of time. Among the other characters are Vixen’s motorcycle hood brother, a Canadian Mountie, with whom Vixen passes the first few minutes of the film, a vacationing couple who are guest-clients of the husband, a black American whom Vixen despises and who has fled the country to avoid the draft, and an Irish communist who attempts at gun-point to force Vixen’s husband to fly him to Cuba. The first four are objects of Vixen’s lechery. The movie is approximately 70 minutes long, out of which approximately one-half deals with incest, adultery, and lesbianism, which are graphically portrayed through facial and bodily expressions indicative of orgasmic reaction. The remaining one-half of the movie leads the viewer through such contemporary issues as racism, anti-militarism, communism and airplane hijacking. It should be noted that, although the players are frequently shown nude and at full length, at no place are their genital parts exposed to the leering lens of the camera. In ascertaining the true character of the film, we pierce the veil of contrived social commentary totally unrelated to the dominant theme of the picture. A similar approach was employed in United States v. Rebhuhn (1940), 109 F. 2d 512. Judge Learned Hand stated, at page 514, that: “The defendants had indiscriminately flooded the mails with advertisements, plainly designed to merely catch the prurient, though under the guise of distributing works of scientific or literary merit. . . . The circulars were no more than appeals to the salaciously disposed, and no [fact finder] could have failed to pierce the fragile screen, set up to cover that purpose.” In Murdock v. Pennsylvania (1943), 319 U. S. 105, 87 L. Ed. 1292, 63 S. Ct. 870, 146 A. L. R. 81, as cited in footnote 17 of Ginzburg v. United States (1965), 383 U. S. 463, 16 L. Ed. 2d 31, 86 S. Ct. 942, the Supreme Court noted that “material sold solely to produce sexual arousal, .. . does not escape regulation because it has been dressed upon as speech. ...” “Vixen” presents to the viewer filmed behavior apart [282] from the advocacy of an idea or program. If picketing may include conduct other than speech, which conduct is subject to restrictive legislation (Giboney v. Empire Storage & Ice Co. [1949], 336 U. S. 490, 93 L. Ed. 834, 69 S. Ct. 684), so may a motion picture presentation. Mr. Justice Douglas, dissenting in Roth v. United States (1957), 354 U. S. 476 at 512, 1 L. Ed. 2d 1498, 77 S. Ct. 1304, 1323, stated: “No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.” Thus, if sexual intercourse on public view is offensively shocking and destructive of public morals, purported sexual intercourse on the screen likewise is subject to legislative regulation. Whether sexual intercourse is committed in a public place or simulated on the screen, conduct, not free speech, is the controlling issue. “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” (Douglas, dissenting in Roth v. United States, supra [354 U. S. 476, 514].) Trans-Lux Distributing Corp. v. Board of Regents of University of the State of New York (1964), 14 N. Y. 2d 88, 198 N. E. 2d 242 (reversed on other grounds, 380 U. S. 259, 13 L. Ed. 2d 959, 85 S. Ct. 952), was a proceeding to review the determination of the state Board of Regents’’ refusal to license a motion picture. This decision speaks to the issue of speech versus conduct in films. In reversing, the Supreme Court merely referred to Freedman v. Maryland (1965), 380 U. S. 51, 13 L. Ed. 2d 649, 85 S. Ct. 734, wherein a Maryland statute was held invalid because of its failure to provide adequate procedural safeguards against undue inhibition of protected expression. Hence, the Supreme Court did not reach the substantive issue of speech versus conduct as applied to films by the New York Court of Appeals. At page 863 in its opinion in Trans-Lux, the New York Court of Appeals stated: “ . . . because the material assigned as obscene ... is not . . . speech as opposed to con [283] duct, it need not come within the test laid down in Roth v. United States, supra (354 U. S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304), that, in speech cases, obscenity must be the dominant theme of the work as a whole. If that requirement were applicable to cases of this nature, the law would be helpless to cope with the grossest imaginable pornography if it were included in a film as an incidental feature, collateral to the main plot, just as a profitable bit of sensationalism.” Assume, hypothetically, that the main character in “The Sound of Music” performs, during one scene, an act of sexual lewdness, could we permit that part of the film to go unregulated merely because the producer had an ‘ ‘ eye on the recent Supreme Court rulings ? ’1 The question supplies its own answer. Neither the First Amendment of the United States Constitution nor the Ohio Constitution will be construed as inhibiting the General Assembly from proscribing the commercial exploitation of a purported act of sexual intercourse. Since the real issue before this court is whether the injunction should be dissolved, or continued in force and effect, E. C. 2905.342 and 2905.353 are applicable at this [284] time notwithstanding their enactment postdates the injunction granted below. Those two sections, now the law of Ohio, when construed together and applied' to the instant facts, effective [285] ly provide that: “No person, with knowledge of the content and character of the . . . motion picture . . ., involved, shall . . . present such motion picture' . . . before an audience which contains a series of displays . . . of . . . sexual intercourse ... the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is . . .. for commercial exploitation. . . .” (Italicized words supplied.) So stated, they proscribe conduct which “bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.” Schneider v. State (1939), 308 U. S. 147, 161, 84 L. Ed. 155, 60 S. Ct. 146, 150. Doubt can no longer remain that the depiction of purported acts of sexual intercourse on the movie screen and the public exhibition thereof “for commercial exploitation rather than for a genuine, scientific, educational, sociological, moral, or artistic purpose” is forbidden by Ohio law. Here, there is no dispute as to the fact that “Vixen” does depict numerous acts of purported sexual intercourse, and obviously it does so for a commercial purpose. No useful purpose could be served by remanding the cause to a lower court for consideration of the impact of those two statutes. "We have the authority to “render such judgment as . . . [the lower court] should have rendered.” Paragraph two of the syllabus in Peltz v. South Euclid (1967), 11 Ohio St. 2d 128; and paragraph three of the syllabus in Neil v. Neil (1883), 38 Ohio St. 558. It follows that we have authority to render such judgment as the lower court would now be required to render, if the cause were remanded. Such authority is specifically given in Section 2(B)(1)(f), Article IV, Ohio Constitution. Therefore, where scenes in a motion picture film depict purported acts of sexual intercourse and are exhibited for commercial exploitation, those scenes are violative of E. C. 2905.34 and 2905.35, constitute a “nuisance” within the meaning of E. 0. 3767.01, and their exhibition may be enjoined as provided in E, C, 3767,02 et seq. [286] Insofar as it upholds the injunction against the exhibition of those portions of “Vixen” which depict actual or purported acts of sexual intercourse, the judgment of the Court of Appeals is affirmed. Judgment accordingly. O’Neill, C. J., Schneider, Hekbebt, Stern and Leach, JJ., concur. DuNCAN and CorrigaN, JJ., dissent. Footnotes [1] Defendant’s exhibit 17, a film review from the Chicago Sun Times, Monday, February 24, 1969 by Roger Ebert states, “Meyer is also heavy on the redeeming social value department, no doubt with an eye on the recent Supreme Court rulings that make ‘Vixen’ possible.” [2] R. C. 2905.34: “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, [284] 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. “(B) ‘Nudity’ means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering or any portion thereof below the top of the nipple, or of covered male genitals in a diseernibly turgid state. “(C) ‘Sexual excitement’ means the condition of human male or female genitals when in a state of sexual stimulation or arousal. “(D) ‘Sexual conduct’ means masturbation, homosexuality, lesbianism, sadism, masochism, natural or unnatural sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, a breast. “(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.” [3] R. C. 2905.35: “No person, with knowledge of the content and character of the obscene material or performance involved, shall make, manufacture, write, draw, print, reproduce, or publish any obscene material, knowing or having reasonable cause to know that such material will be sold, distributed, circulated, or disseminated; or sell, lend, give away, distribute, circulate, disseminate, exhibit, or advertise any obscene material; or write, direct, produce, present, advertise, or participate in an obscene performance; or possess or have in his control any obscene material with intent to violate this section; or offer or agree to do any act in violation of this section, or cause any such act to be done by another. “Whoever violates this section shall be fined not more than five thousand dollars or imprisoned not more than one year, or both, for a first offense, and for each subsequent offense shall be fined not more than ten thousand dollars or imprisoned not less than one nor more thpn seven years, or both,”