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City of Delavan v. Thomas

AUGUST 30, 1975.

THE CITY OF DELAVAN, PLAINTIFF-APPELLEE,

v.

CHARLES THOMAS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. WILLIAM J. REARDON, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant Thomas was convicted of operating a motion picture theatre without a license in violation of a municipal ordinance after his license had been revoked for permitting an obscene motion picture to be shown. On appeal from his conviction, defendant contends that the licensing ordinance was unconstitutional.

Delavan ordinance No. 73-6, section 4, provides:

"It shall be unlawful to permit any person to offer or present any motion picture or performance which is obscene.

For the purpose of this Ordinance a motion picture or performance is obscene if, whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests, that is, a shameful or morbid interest in nudity, sex or excretion, and it goes substantially beyond limits of candor in description or representation of such matters."

Section 12 of the ordinance authorizes revocation of licenses as follows:

"The Mayor shall have the power to revoke any license issued under the provisions of this Ordinance for good and sufficient cause. If at any time after the granting of any license, any licensee shall have violated any of the provisions of this Ordinance or any of the statutes of the state in the conduct of his business, the Mayor may revoke the license therefor."

Section 13 provides for notice of revocation to be given the licensee, and, if the licensee submits a request for hearing within 5 days, the revocation shall be suspended until the city council grants a special hearing, after which the council may affirm or overrule the revocation.

In addition, section 11 provides for a fine of not less than $100, nor more than $500 upon conviction for violation of any provision of the ordinance.

After the mayor and members of the city council viewed the movie in question, defendant's license was revoked by the mayor for showing obscene motion pictures, and, following a hearing, the revocation was affirmed by the city council. Ten days later defendant was charged with operating a movie theatre on three occasions without a valid license in violation of Ordinance 73-6, was found guilty by the court, and fined $100 on each of the three charges.

Defendant's first contention is that the definition of obscenity contained in the ordinance fails to meet constitutional standards as defined by the courts. In Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973), the Supreme Court of the United States set out the following definition of obscene material:

"(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * *, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S. 15, 24, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607, 2614.

Thereafter the Supreme Court of Illinois upheld the constitutionality of both the State obscenity statute (Ill. Rev. Stat. ch. 38, § 11-20) and a City of Moline ordinance under the standards required in the Miller decision. In People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264 (1974), the court held that both the city ordinance and the State statute included parts (a) and (b) of the Miller test. The court then ruled that the Illinois and Moline requirement that the work be "utterly without redeeming social value" was more restrictive than part (c) of the Miller test, and must be used by Illinois courts rather than the Miller standard. People v. Gould, 60 Ill.2d 159, 324 N.E.2d 412 (1975).

• 1 The Delavan ordinance, section 4, defines obscenity in approximately the same language as the statute and ordinance construed in Ridens, except that the ordinance here does not provide that the motion pictures must be "utterly without redeeming social importance." (Ill. Rev. Stat., ch. 38, § 11-20(c).) Neither does the ordinance contain a provision that the film, "taken as a whole, lacks serious literary, artistic, political or scientific value," as required by Miller. In fact, there is nothing in the ordinance to protect films having social or cultural value from classification as obscene. As Miller and Ridens clearly hold, regulation of forms of expression that are within the First Amendment free speech protection cannot be unnecessarily broad, and must give adequate notice of what is prohibited. Furthermore, it has been ...


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