People Ex Rel. Hicks v. Sarong Gals

Citations: 27 Cal. App. 3d 46; 103 Cal. Rptr. 414; 1972 Cal. App. LEXIS 828Docket: Civ. 11982

Court: California Court of Appeal; August 3, 1972; California; State Appellate Court

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The case involves an appeal from Sarong Gals, a bar known for live entertainment, following a preliminary injunction issued under the Red Light Abatement Law, which prohibits the use of premises for lewd activities. The bar was under police surveillance for several months, during which numerous incidents of explicit sexual conduct were documented, including nude dancers engaging in masturbation and simulating sexual acts. These activities led to arrests for violations of Penal Code sections pertaining to lewd conduct.

The plaintiff, District Attorney Cecil Hicks, filed a complaint under Penal Code sections 11225-11235, resulting in the injunction that prohibited the bar from allowing lewd performances, including any displays of genitalia or anus. The defendants argued that the Red Light Abatement Law should not apply to bars featuring nude dancing, claiming that the law's original intent did not encompass such activities. The court acknowledged that while historical context suggested the law was not designed for modern forms of adult entertainment, lewdness had long been recognized as a public nuisance, thus allowing the application of the law to the case at hand. Previous rulings indicated that lewdness could be addressed even in the absence of prostitution. The appeal challenges the injunction's validity, arguing it restricts the presentation of nude entertainment.

Harmer's assertion that the law does not apply to films is challenged, yet the case's factual basis is affirmed. A theater does not qualify as being "used for the purpose" of lewdness based solely on the presentation of one obscene film or stage show, as established in Perrine v. Municipal Court. A single incident of prostitution is inadequate for invoking the Red Light Abatement Law. However, if there is evidence of ongoing lewd conduct, the law can be invoked without needing proof of prostitution.

Defendants contend that the law does not pertain to "entertainment, lewd or otherwise," but this view is rejected. While nude dancing may be protected under the First Amendment, the same protection does not extend to lewd acts disguised as free expression. Actions such as public masturbation and sexually provocative performances are classified as lewd behavior, intended to sexually arouse the audience rather than express artistic emotion. The law distinguishes between entertainment and activities lacking socially redeeming value; for instance, the historical context of Roman spectacles is cited to illustrate that merely being entertaining does not confer constitutional protection.

Public displays of lewdness are considered traditional public nuisances that the state can regulate without significant First Amendment concerns. The court concludes that the "entertainment" in question is lewd and not protected by the First Amendment, as the acts performed were solely to stimulate sexual desires among patrons. Furthermore, the plaintiff argues that allowing the Sarong Gals Bar to continue nude entertainment would likely perpetuate issues with enforcing regulations against lewd conduct, suggesting that simply requiring performers to wear clothing would complicate enforcement of existing measures.

Current law struggles to align with logical and reasonable standards in cases involving obscenity and free expression. Courts have attempted to balance traditional moral views with modern standards, yet their decisions often lack clarity and consistency. The Red Light Abatement Law can be used to prevent obscene performances, such as graphic sexual depictions, but not to restrict non-obscene expressions. Instances of dancing described in police reports do not meet the legal threshold for obscenity, as mere exposure of genitalia is not sufficient to qualify. 

The law does not permit assuming that a bookseller will repeat past offenses without clear evidence of intent. While the injunction against obscene conduct is valid, the part prohibiting visibility of genitalia in performances infringes upon constitutional rights. Prior restraints on free expression are generally invalid, especially for live performances where content cannot be predetermined. Since only the clearly obscene acts are already addressed by the injunction, any broader prohibition against nude dancing is seen as a violation of First Amendment protections. Consequently, the court modifies the injunction by removing the overly broad restrictions but affirms the remainder of the preliminary injunction. The judges concurred, and petitions for rehearing and Supreme Court review were denied, though some justices believed the petition should have been granted. 

The district attorney noted numerous acts of alleged lewdness, with some not meeting the legal definition. A specific police report illustrated a performance deemed inappropriate for a family-friendly event, highlighting the contentious nature of interpreting obscenity in this context.

Customers at a bar encouraged a dancer to engage in provocative behavior, which included moving her body close to their faces and exposing her genitals. The dancer performed acts such as rotating her bare buttocks near customers' faces, stepping onto the stage railing to expose her vagina, and inserting her finger into her vaginal opening. A customer handed her sunglasses, which she rubbed on her genitals before returning them. She also picked up a dollar bill from the stage while exposing her vaginal area and further spread her labia. The text argues that such behavior raises questions about the limits of First Amendment protections regarding freedom of speech. In a referenced case, *Tarbox v. Board of Supervisors*, it was noted that a theater cannot be considered a public nuisance solely due to patrons' lewd acts, especially if the owner attempts to control such behavior. However, in this instance, the dancer did not attempt to stop inappropriate actions by customers and actively directed her performance toward them.