APPEAL from the Circuit Court of Cook County; the Hon.
ARCHIBALD J. CAREY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
This appeal raises the issue of whether a theatrical performance, alleged to be obscene, may be enjoined as a public nuisance consistent with the first amendment freedom of speech.
Plaintiff, City of Chicago, brought an action for injunctive relief against defendants, Festival Theatre Corporation and Paul Liang, operator of the theater. According to plaintiff's complaint, defendants used their theater to conduct live stage shows which consist entirely of obscene sexual acts, in violation of section 11-20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-20). Plaintiff requested that this conduct be enjoined. Following a hearing, where several Chicago police officers who witnessed these "shows" testified, the trial court found the "shows" to be a public nuisance, and entered a permanent injunction. On appeal, defendants maintain that obscenity cannot be enjoined as a public nuisance, and, alternatively, that the injunction by the trial court constitutes a prior restraint of free speech in violation of the first amendment to the United States Constitution (U.S. Const., amend. 1) and article 1, section 4 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. 1, § 4).
On July 26, 1978, and August 14, 1978, Chicago police officers, dressed in plainclothes, paid a $5 admission price to enter defendants' theater. On both occasions the officers observed a "live stage show" involving two women. The show opened with both women performing a dance to background music. As they danced they removed their clothing and began kissing and fondling each other. They then engaged in actual or simulated acts of cunnilingus and masturbation. After each "show," the women were placed under arrest.
On August 23, 1978, a Chicago police officer observed a "live stage show" involving a man and a woman at defendants' theater. The "show" began with the woman, fully clothed, dancing alone on stage to background music. As she danced, she began to remove her clothing until she was completely nude. After the dancing finished, she was joined on stage by a partially clothed man. When he removed his clothing, they engaged in actual or simulated acts of sexual intercourse, fellatio and cunnilingus. Both individuals were arrested at the end of the "show."' Colored stage lighting was used in all three "shows," and the genitals of the individuals were visible to the audience.
The stage was not visible from outside the theater, and the audience consisted of adults. The dance portion of the "shows" lasted less than five minutes, appeared rehearsed and, according to one officer, was somewhat artistic. The "shows" received applause from the audience, and no one was seen requesting a refund.
The trial court found these "shows" to be a public nuisance and entered a permanent injunction against defendants. More specifically, the order stated:
"THE COURT DOTH FIND: That the live stage performance, as performed at the Festival Theater, 3912 N. Sheridan Road, Chicago, Illinois, is a public nuisance.
THEREFORE, IT IS HEREBY ORDERED that defendants, Festival Theater Corporation and Paul N. Liang, their employees, agents and representatives, are hereby permanently enjoined and restrained, until further order of Court, from performing or permitting the performance of lewd acts of five persons, in violation of applicable City Ordinance and State Statutes, at 3912 N. Sheridan Road, Chicago, Illinois, for the entertainment, sexual arousal, or viewing by and of members of the public; including, but not limited to, the following of such acts:
1. Actual or simulated stimulation, fondling and/or massage of the genitals of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.
2. Actual or simulated stimulation, fondling and/or massage of the breasts and/or buttocks of one person by another person or by any part of the body of another person or by any part of the body of the first person himself or herself.
3. Conduct amounting to a lewd exhibition of the genitals.
4. Actual or simulated acts of sexual intercourse where the genitals and/or buttocks of one or more of the performers are exposed."
Defendant appeals from the entry of this order.
A threshold issue in this case is whether plaintiff has an adequate remedy at law which would preclude the granting of injunctive relief. Defendants maintain that the criminal laws of this State (Ill. Rev. Stat. 1977, ch. 38, par. 11-20) afford plaintiff an adequate remedy at law by which it may regulate the alleged obscene "shows." We note that where the activity sought to be enjoined affects the public welfare and criminal prosecution has proved ineffective or may in fact be ineffective, a court may enjoin the activity. (City of Chicago v. Cecola (1979), 75 Ill.2d 423, 389 N.E.2d 526; City of Chicago v. Geraci (1975), 30 Ill. App.3d 699, 332 N.E.2d 487; and Toushin v. City of Chicago (1974), 23 Ill. App.3d 797, 320 N.E.2d 202.) The hands of equity will not be bound merely because the activity sought to be enjoined also constitutes a criminal offense. (Toushin.) In the present case, the city seeks to enjoin these "shows" as a public nuisance because of their harmful effect on public morals and welfare. The city asserts that this deleterious effect on society continued to exist despite the arrests made in this case and was only terminated by the injunction issued by the trial court. However, the record, even at this late day, does not disclose the ultimate disposition of those arrests. Consequently, we hold that the criminal laws do not afford an adequate remedy at law in this situation and as a result, equity may provide an available avenue of relief. We must now determine whether injunctive relief may be obtained consistent with the first amendment.
• 1 Our starting point is that theatrical productions, like movies and books, are presumptively entitled to constitutional protection as free speech. (Doran v. Salem Inn, Inc. (1975), 422 U.S. 922, 45 L.Ed.2d 648, 95 S.Ct. 2561; Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239; California v. La Rue (1972), 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390; and P.B.I.C., Inc. v. Byrne (D. Mass. 1970), 313 F. Supp. 757, vacated and remanded (1971), 401 U.S. 987, 28 L.Ed.2d 526, 91 S.Ct. 1222.) Consistent with this proposition, we note that protected speech is not limited solely to the expression and communication of ideas, but may include forms of expression which also entertain. (Winters v. New York (1948), 333 U.S. 507, 92 L.Ed. 840, 68 S.Ct. 665; In re Giannini (1968), 69 Cal.2d 563, 446 P.2d 535, cert. denied (1969), 395 U.S. 910, 23 L.Ed.2d 223, 89 S.Ct. 1743.) Regardless of whether a form of expression entertains or communicates ideas, it falls outside the protective umbrella of free speech if it is obscene. (Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607.) Thus, obscenity, in contrast to protected speech, is a proper subject of State regulation. (Miller, 413 U.S. 15, 18, 37 L.Ed.2d 419, 427, 93 S.Ct. 2607, 2612.) The United States Supreme Court has described the State's interest in regulating obscenity as follows:
"The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the States' `right * * * to maintain a decent society.' Jacobellis v. Ohio, 378 U.S., at 199 (dissenting opinion)." (Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 69, 37 L.Ed.2d 446, 464, 93 S.Ct. 2628, 2641.)
Recognizing that a line exists between protected speech and obscenity and that States do have legitimate interests in regulating obscenity forms the first two analytical steps in this area of first amendment law. The succeeding steps of analysis involve the definitional test of obscenity and methods States may employ to regulate obscenity.
In Miller, the United States Supreme Court announced its latest definition of obscenity. The Miller court stated:
"The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (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 values. * * * If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts> to conduct an independent review of constitutional claims when necessary." (Miller, 413 U.S. 15, 24-25, 37 L.Ed.2d 419, 431, 93 S.Ct. 2607, 2615.)
Sexuality is not synonymous with obscenity, and expression which is sexually oriented, but not obscene, commands full constitutional protection as speech. (See Roth v. United States (1957), 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304; City of Rolling Meadows v. Kohlberg (1980), 83 Ill. App.3d 10, 403 N.E.2d 1040.) Justice Brennan, speaking for the court in Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 66, 9 L.Ed.2d 584, 590, 83 S.Ct. 631, 637, wrote that protected speech is often distinguished from obscenity "only by a dim and uncertain line." In appreciation of the complexity of this determination, the court requires that State procedures employed to ascertain obscenity have the necessary sensitivity to the first amendment values at stake. (McKinney v. Alabama (1976), 424 U.S. 669, 47 L.Ed.2d 387, 96 S.Ct. 1189; Speiser v. Randall (1958), 357 U.S. 513, 2 L.Ed.2d 1460, 78 S.Ct. 1332.) Although the line separating obscenity from protected speech may be elusive and obscure, a court should not hesitate in its duty to decide that issue because of fear of its constitutional significance. When called upon to make such a decision, we will act with the requisite caution and deference for the significant interests involved, but without any unnecessary hesitation or fear. We share Mr. Chief Justice Burger's confidence that the judiciary is capable of distinguishing "commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material." (Miller, 413 U.S. 15, 36, 37 L.Ed.2d 419, 438, 93 S.Ct. 2607, 2621.) However, the present case does not require us to draw the line between obscenity and protected speech. Rather, this case turns on whether the law of public nuisance has the necessary sensitivity to enjoin obscenity.
Civil injunction procedures have been recognized as a permissible means by which to regulate obscenity. (See Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628; Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 1 L.Ed.2d 1469, 77 S.Ct. 1325.) In examining public nuisance law in Illinois, the first question facing us is whether this action is maintainable, if at all, as a statutory action under section 1 of "An Act regarding places used for purposes of lewdness, assignation, or prostitution ...