Club Cinema v. City of Farmdale

___S. CT ____ (2012)

Tom Friendly was a successful entrepreneur who lived in the city of Farmdale, a medium sized town in the southern portion of California’s “Inland Empire.” He also produces (provided the money for) a number of well crafted erotic and hard core pornographic movies. He was, however, not your average “purveyor of smut,” as some of his detractors described him. He was well respected in the community, a member of several charitable boards, and a member of the local school board. If he was anything at all, he was a sexual libertarian, believing that adult men and women had the right to explore and discover their one sexuality. This view was shared by Jane, his wife of fifteen years. Early in their relationship, they began to enjoy watching “erotic” movies together and now this ritual had become an integral part of their love making. They were rather conservative in their viewing however, preferring movies that were as much “erotic” as “pornographic, and carefully avoiding movies depicting violence against women and sex among minors. As a matter of fact, it was Jane who sparked the idea of Club Cinema.

At a “viewing” in their home, Jane had said to a few friends Jane had remarked: “The trouble is not there is too much pornography as much is there is a lack of responsible pornography, especially that which reflects the views of women.” A friend then opined that it was a shame there was no public place in Farmdale where consenting adults could view “responsible” porn. Charlie Goodnight, a business associate of Tom’s said that his company owned a run down movie theater in down town Farmdale and was looking to unload the property at rock bottom price. A consortium of friends was formed and the theater was purchased. Club Cinema would be a private, non-profit club to which individuals, couples, and even businesses could by membership. “Guest passes” might also be provided.

In applying for a permit for the necessary renovation of the building, Tom, fearing a backlash from the ever growing Christian Right movement, had declared the purpose of the construction to be “private cinema.” The permit was granted without question. When renovation was nearly finished, the group produced an add and membership app to mail to a group of affuent residents. The add read: “Join Club Cinema, a private cinema for discriminating adults who enjoy erotic and pornographic films Business memberships and guest passes available. Among the attractions listed were a multiplex theater, a dessert bar and an adult toy shop. Memberships sold for $700 for singles, $1,000 for couples, and $1500 for businesses.

It so happened one of these mailers fell into the hands of I B Prude, president of the city council. Realizing that Club Cinema was something other than described in the permit, Prude called a press conference where he proclaimed;” A high priced smut shop for the rich is about to open. Good Christians everywhere should do all they legally can to put pressure on the mayor and police to prevent the opening of this establishment which will make Farmdale the Sodom and Gomorrah of the Inland Empire!!” At the next council meeting he introduced an ordinance creating a “Movie Review Board” and requiring that “all movies advertised by any establishment within the city limits as depicting a sexual theme, as erotic, or as pornographic shall prior to the time of showing be submitted to the Board to see if it has some redeeming social value and does not appeal to “prurient interests.” If it passes the criteria, it may be shown; if not, those who show it shall be subject to criminal penalty. Any who show such filme prior to submission shall also be subject to penalty.” Knowing this issue would be part of a heated electoral campaign, the Council passed the ordinance 3 – 2, with Prude casting the deciding vote. Fearing for his own political life, Mayor I M Pleasant reluctantly agreed to enforce the statute.

Renovation complete, the Club planned its gala opening. Two classics Deep Throat and Behind the Green Doors, along with a Friendly production, From the Viewpoint of a Woman, would be shown. The evening would be capped with a performance by The Magnificent Male Dance Troupe, who had promised “The Full Monte!” Knowing they would probably be arrested, Tom, Jane and friends did not submit the movies for review.

Indeed the arrests came. An opening night raid was planned, but knowing some of Farmdale’s most prominent citizens were in attendance, the police waited till after the festivities were over and these citizens had gone home before making their move. Tom, Jane and a few associates were charged with three counts of violating the ordinance. (No mention was made of the Magnificent Males.) They pled Not Guilty, though freely admitting they had shown the movies without submitting them to the Board. They were convicted and given the maximum penalty.

On appeal, their lawyers argued that the ordinance was unconstitutional in that it “violated defendants’ rights to associational privacy, sexual privacy, and property rights protected by the U S Constitution and applied to state and local government by the 14’th Amendment.” To bolster the argument they cited Griswold v Connecticut (381 U S 145), Stanley v. Georgia (394 U S 561), Moore v. City of East Cleveland (431 U S 494, Cohen v, California (401 U S 15), and United States v Williams (06-694 {2008}) In rebuttal, the City argued that because the Club provided guest passes and sold sex toys, the Club was private, non profit in name only, and that as such the defendants had no reasonable expectation of privacy. Furthermore, the City had met the prevailing community standards test as announced in Miller v. California (413 U S 12.) Club Cinema was no different from the entities government had the right to regulate as perParis Adult Theater 1 v. Slaton (413 U S 49), Ferber v. 458 U S 747), and Barnes v. Glenn Theatre Inc. 111 S. Ct. 2456).

The case found its way to the California Supreme where in a split decision the Ciurt upheld the City’s argument. One dissenting judge, however, vigorously argued that “This is a voluntary associationn of individuals joined together to share a common interest in erotic and pornographic films, no different from a group of friends watching these movies in a home. The Club is not open to the general public, and as such, the proprietors and members enjoy a reasonable expectation of privacy. The privacy right in this case is broader than the liberty interest in the private noncommercial viewing of erotic and pornographic films. It is also about the liberty interest in in the privacy to define the means by which individuals can express and satisfy themselves sexually as long as the means chosen does not harm the individuals involved.”

Tom, Jane, et.al. petitioned for cert in this court. Certiorari was granted.