Essex Theatre Corp. v. Police Commissioner

Wilkins, J.

The plaintiff filed a bill in equity for declaratory relief against the police commissioner of the city of Boston seeking a declaration that three named motion pictures were not obscene and that their exhibition was protected under the First Amendment to the Constitution of the United States and not in violation of G. L. c. 272, §32.

Each of the films showed “explicit sexual congress.” A controversy existed between the parties because the defendant had indicated that any film which showed explicit sexual congress was obscene and a showing of it would violate G. L. c. 272, § 32. After viewing the films and hearing testimony, including evidence from experts, the judge made extensive findings and rulings in January, 1973, applying then existing constitutional law principles as he interpreted them. He ruled that the films were “not utterly without social redeeming value” and that they did not “affront the current community standards of candor in depicting sexual material.” A final decree was entered declaring that the showing of the films in the downtown or entertainment district of Boston, clearly rated “X” and restricted to adult patrons, and without provocative advertising, was constitutionally protected. Additionally, the defendant was enjoined from prosecuting, as violating G.L. c. 272, § 32, any theatre owner exhibiting the films under the conditions described in the decree.

In this appeal by the defendant, concerned with future showings of the films, the parties have urged us to decide whether after the decision in Miller v. California, 413 U. S. 15 (1973), the showing of any of the films would constitute a violation of the Massachusetts obscenity statutes. Our decisions of today in Commonwealth v. Horton, ante, 164 , and in Commonwealth v. Capri Enterprises, Inc., ante, 179, which hold that G. L. c. 272, §§ 28A and 32, are unconstitutional and unenforceable, demonstrate that the controversy which was the basis of the bill for declaratory relief can no longer properly exist. There is no reason for declaratory relief or for the continuance of the order against the defendant enjoining him from prosecuting the plaintiff under G. L. c. 272, § 32, for showing any of the three films.

The final decree is reversed and a new final decree shall be entered dismissing the bill.

So ordered.