                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON


STATE OF TENNESSEE, ex rel, )
WILLIAM L. GIBBONS,                      )
                                         )
             Petitioner/Appellee,        ) Shelby Chancery No. 109795-2 R.D.
                                         )
VS.                                      ) Appeal No. 02A01-9710-CH-00247

                                    FILED
                                    October 5, 1999

                               Cecil Crowson, Jr.
                             Appellate Court Clerk
                                     )
SHERROD JACKSON, ROBERT              )
WILLIAMS, NATHANIEL WILLIAMS, )
MIKE WILLIAMS, SHIRLEY BLALOCK )
and STEVEN CRAIG COOPER,             )
                                     )
           Defendants/Appellants.    )


            APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE
               THE HONORABLE FLOYD PEETE, JR., CHANCELLOR


MICHAEL F. PLEASANTS
FRIERSON M. GRAVES, JR.
Memphis, Tennessee
Attorneys for Appellants, Sherrod Jackson,
Robert Williams, Nathaniel Williams and
Shirley Blalock

REX L. BRASHER, JR.
BROWN, BRASHER & SMITH
Memphis, Tennessee
Attorney for Appellant, Steven Craig Cooper

JOHN KNOX WALKUP
Attorney General & Reporter
MICHAEL E. MOORE
Solicitor General
STEVEN A. HART
Special Counsel
Office of the Attorney General
Attorneys for Appellee, State of Tennessee


                                                                               Page 1
Nashville, Tennessee


AFFIRMED IN PART AND REVERSED IN PART



                                                                   ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
     Sherrod Jackson, Robert Williams, Nathaniel Williams, Mike Williams, Shirley

Blalock, and Steven Craig Cooper (collectively “Appellants”) appeal from the Chancery

Court of Shelby County, which granted a temporary injunction, enjoining the Appellants from

permitting “lap dancing” and from permitting employees or independent contractors from

engaging in “lewd and obscene exhibition of genitals.”



                              I. Facts and Procedural History

       Appellants allegedly own and/or operate an “adult cabaret” business in Memphis,

Tennessee named “Pure Passion.” As part of a police operation, members of the

Memphis Police Department visited “Pure Passion” on several occasions wherein they

witnessed various “acts” involving female dancers and male customers. 1 The results of the

investigation formed the basis for an action that the State originally filed in July of 1997 in

the Criminal Court of Shelby County, seeking an abatement (forfeiture and permanent

injunction) of nuisance, and a writ of temporary injunction. Pursuant to local rules, the

Criminal Court entered an order on July 8, 1997, which transferred the case to the

Chancery Court. On September 3, 1997, the State filed a notice of amendment to the

petition for abatement whereby the State dropped any request for forfeiture of real property

and any relief based on public indecency or the common law. Subsequently, the State filed

a First Amended Petition for Abatement of Nuisance with the Chancery Court, which


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incorporated the amendment eliminating the aforementioned claims for relief.


       A hearing was held on September 5, 1997 regarding the temporary injunction. At

that hearing, the Chancellor expressed his reluctance to close down the business. Further,

he expressed a predisposition to enjoin certain acts pending a full hearing. Ultimately, the

final order that is the subject of this appeal was entered on September 26, 1997. In that

order, the Chancellor determined that “lap dancing”2 constituted an act of prostitution, and

he issued a temporary writ of injunction enjoining such activity as a nuisance under T.C.A. §

29-3-105. Additionally, the Chancellor enjoined any “lewd and obscene exhibition of

genitals.”


                                     II. Law and Analysis

       On appeal, the Appellants have raised three issues regarding the Chancellor’s order

enjoining “lap dancing” and “lewd and obscene exhibition of the genitals.” Those issues are:
3


               1) Whether the Chancellor erred in determining that “lap
               dancing” as conducted at the Appellants’ place of business
               constitutes “prostitution,” thereby subject to a temporary writ of
               injunction under T.C.A. § 29-3-105(a);

               2) Whether the Chancellor’s issuance of an injunction against
               future “lewd and obscene exhibition of the genitals” is an
               unconstitutional prior restraint in violation of the First
               Amendment to the United States Constitution or a violation of
               Appellants’ Fourteenth Amendment Due Process rights.

               3) Whether “lewdness” and “obscenity” have been elided from
               the Tennessee Nuisance statute, T.C.A. §§ 29-3-101 et seq.,
               and, if not, whether the inclusion of those terms makes the
               statute unconstitutionally overbroad or void for vagueness.



A.     Prostitution under T.C.A. § 29-3-101

       Tennessee Code Annotated § 29-3-101(2) provides a definition of a “nuisance.”

That definition includes “any place in or upon which . . . , prostitution , . . . are carried on or

permitted, . . . ” Tenn. Code Ann. § 29-3-101(2) (emphasis added). The Code does not,




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however, further define “prostitution” or describe the activities which that term might

encompass. The Appellants do not take issue with prostitution being a triggering event for

the finding of a nuisance. In that regard, they are not challenging the validity of T.C.A. §

29-3-101(2).     Instead, we understand the Appellant’s challenge to rest on two

interdependent grounds: 1) under a proper interpretation, sexual penetration, oral sex, or

homosexual sex is a prerequisite to a finding of “prostitution,” and 2) since there were no

allegations that these acts ever occurred at “Pure Passion,” the Chancellor erred in finding

that prostitution had taken place. To the contrary, the State contends, and the Chancellor

agreed, that “lap dancing” itself, despite the absence of intercourse or penetration,

constitutes prostitution.



       The Appellants challenge both the legal definition of “prostitution” and the factual

application in the present case. The construction of a statute and application of the law to

the facts is a question of law. Beare Co. v. Tennessee Dep’t of Revenue, 858 S.W.2d 906,

907 (1993) (citing Moto-Pep v. McGoldrick, 303 S.W.2d 326, 330 (1957). As such, there is

no presumption of correctness attached to the Chancellor’s decision. Capps v. Goodlark

Medical Center, Inc., 804 S.W.2d 887, 888 (1991) (citing Katz v. Bilsky, 759 S.W.2d 420,

421-422 (Tenn. App. 1988).        We are, therefore, charged with the responsibility of

determining the parameters of the word “prostitution” as used in T.C.A. § 29-3-101(2) and

whether the facts of this case fall within those parameters.



       The standard for determining prostitution has previously been the subject of dispute

in this state. See State v. Boyd, 925 S.W.2d 237 (Tenn. Crim. App. 1995). The court's role

in statutory interpretation is to ascertain and effectuate the legislature's intent.   State v.

Sliger, 846 S.W.2d 262, 263 (Tenn. 1993). The legislative intent should be derived from the

plain and ordinary meaning of the statutory language when a statute's language is

unambiguous. Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d



                                                                                                  Page 4
1, 2 (Tenn. 1993). However, when a statute's language is ambiguous and the parties

legitimately derive different interpretations, we must look to the entire statutory scheme to

ascertain the legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). In the

present case, the parties are entirely reasonable in their alternative positions. The statute

does not provide a clear answer to what acts constitute “prostitution.” As such, we must

undertake to interpret the statute under the recognized rules of statutory construction,

considering the entire statutory scheme.


       In endeavoring to determine the meaning of the term “prostitution,” we can look to

other sections of the Tennessee Code. See Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.

1994) (the construction of one statute, if doubtful, may be aided by the language and

purpose of another statute dealing with the same subject). In their briefs, both parties have

referred to T.C.A. § 39-13-512. This section defines “prostitution” in the criminal context as

“engaging in, or offering to engage in, sexual activity as a business . . . ” Tenn. Code Ann. §

39-13-512(5). “Sexual activity,” in turn, means “any sexual relations including homosexual

sexual relations.” Tenn. Code Ann. § 39-13-512(6).


       We are left with a two-prong analysis. We must first determine what qualifies as a “

sexual activity.” Second, we must determine whether the “sexual activity,” if found to exist, is

conducted as a business. One would hesitate long to argue that the activity in Appellants’

place of business, whatever the nature of that activity, is undertaken as anything other than a

business.   No authority need be cited for the proposition that “lap dancing,” in such

establishments,      will always involve the exchange of money between “customer” and “

dancer.” In this regard, if the “lap dancing” conducted at Appellants’ place of business is

found to constitute “sexual activity,” undoubtedly such would qualify as an act of prostitution

under the statute.


       We note that certain words or terms are defined elsewhere in the Code, but are

conspicuous by their absence in the definition of prostitution. Of particular significance, the


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term “sexual penetration” is not included in the definition of prostitution.     That term is,

however, defined elsewhere as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or

any other intrusion, however slight, of any part of a person's body or of any object into the

genital or anal openings of the victim's, the defendant's, or any other person's body, but

emission of semen is not required.”       Tenn. Code Ann. § 39-13-501(7).          We find no

indication that “sexual penetration” or “sexual intercourse” are applicable to the section at

issue in the present case, namely T.C.A § 39-13-512.          The clear inference is that the

Legislature did not intend for prostitution to be limited to those instances where sexual

penetration or intercourse occurs.      Appellants point out that past prostitution statutes,

particularly the 1943 version, have referred to “sexual intercourse.” Appellants’ Brief at 47.

Additionally, they state that the 1986 version used the terms “sexual intercourse,” “deviate

sexual intercourse,” and “sexual contact.” Appellants assert that by taking out the specific

references to intercourse or “sexual contact,” the Tennessee General Assembly limited the

conduct that would be defined as prostitution.         We disagree.       The fact that such

requirements were previously in the statute but were taken out, shows that the Legislature

intended to expand the definition of prostitution beyond intercourse. We read the statute to

include acts that would not have been included under prior definitions (i.e., acts not involving

intercourse or penetration).    Had the Legislature intended to equate prostitution with

intercourse, we must presume that language expressing such intent would be found. As

such, we reject Appellants’ argument that the current version of the definition of prostitution

should be read to require sexual intercourse, oral sex, or homosexual relations.



       We are not alone in rejecting the interpretation that Appellants thrust upon the term “

prostitution.” In State v. Boyd, the Court of Criminal Appeals, although reversing the

conviction of   two female “dancers” for prostitution, declined to interpret the word “

prostitution” as requiring any sexual penetration. 925 S.W.2d 237 (Tenn. Crim. App. 1995).

In Boyd, the two female defendants were employees of an escort service and had gone to a



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hotel room with an undercover police officer. Id. at 241. There, they removed each other’s

clothing and began to touch each other’s buttocks. Id. One defendant placed her face “near

” the other’s genital area and later proceeded to “suck” the officer’s finger. Id. On appeal,

the defendants argued that the evidence was insufficient to convict them of prostitution. 4 Id.



       The issue in Boyd was whether the prostitution statute gave adequate warning of

what activities or actions were prohibited under the guise of “sexual relations.”5 The court

briefly surveyed the range of activities that might or might not be “sexual relations.” Id. at

243 (citing People v. Love, 111 Cal.App.3d Supp. 1, 168 Cal.Rptr. 591 (Super.Ct. 1980)

(finding the fondling of genitals, buttocks, and breasts to be "sexual relations"); People v.

Hill, 103 Cal.App.3d 525, 163 Cal.Rptr. 99 (1980) (nude modeling held not to be

prostitution)). The Boyd court went on to state succinctly what we believe to be the crucial

issue in the present case: “Although many people would agree that actual intercourse is not

necessary to constitute ‘sexual relations,’ there may be much disagreement as to which

sexually arousing or suggestive acts short of intercourse constitute sexual relations and

which do not.” Id. at 244.


       The Court of Criminal Appeals reversed the conviction of the defendants because, in

essence, the actions of the defendants did not amount to “sexual relations” as the court

interpreted the statute. The court stated:

              There was some contact between the dancers and between the
              dancer and the patron, but there was no touching of the genitals
              between the dancers and only the finger of the patron was
              touched. The question is whether the statute gave the dancers
              adequate warning that their conduct amounted to "sexual
              relations.” While there is no doubt that the dancers intend for
              their act to be sexually arousing and suggestive of more
              intimate acts, we conclude that the language of the statute did
              not give them or anyone else sufficient warning that those acts
              would constitute ‘sexual relations’ such as is prohibited by the
              prostitution statute.

Id.

       While we fully agree with the analysis used by the Court of Criminal Appeals, the


                                                                                                  Page 7
present case presents a distinct factual difference from that dealt with in Boyd. Specifically,

the contact between dancers and customers at “Pure Passion” and the contact in the Boyd

case are clearly distinct. In Boyd, the dancer only sucked the finger of the undercover police

officer. However, in the present case, the record shows that customers were able to touch

the bare breasts and buttocks of the dancers, as well as there being contact between the

customer’s groin area and the dancer’s hands and/or buttocks. In short, the present case is

distinguishable from Boyd in both the quantity of contact and sexual quality of that contact.


       The legislative intent or purpose is to be ascertained primarily from the natural and

ordinary meaning of the language used, when read in the context of the entire statute, and

without any forced or subtle construction to limit or extend the import of the language.

Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977); City of Caryville v. Campbell

County, 660 S.W.2d 510, 512 (Tenn. App. 1983). We must enforce the statute as written.

The statute contains no requirement of penetration or intercourse; therefore, we decline the

opportunity to craft such a requirement. The activities described in the record as taking

place at Appellants’ place of business clearly satisfy the standard of “sexual activity as a

business.” As such, we find no error in the Chancellor’s ruling that “lap dancing,” as

conducted at the Appellants’ place of business, constituted “prostitution” as that term is

used in T.C.A. § 39-13-512. The Chancellor’s issuance of           an injunction against such

activity was proper pursuant to T.C.A. § 29-3-105(a). 6



B.     Lewdness and Obscenity

       The Appellants also argue that the Chancellor erred in granting the temporary writ of

injunction in regards to “lewd and obscene exhibition of the genitals.” This argument is

based upon two points.       First, Appellants assert that the injunction operates as an

unconstitutional prior restraint in violation of the First Amendment to the United States

Constitution. Second, Appellants argue that “lewdness” and “obscenity” have been elided




                                                                                                  Page 8
from the nuisance statute, and if this is not so, they urge this court to strike down those

provisions as overbroad and/or void for vagueness. This second point presents a myriad of

seemingly conflicting case law. See generally Airways Theater, Inc. v. Canale, 366 F.Supp

343 (1973); Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520 (Tenn. 1993); State ex

rel . Webster v. Daugherty, 530 S.W.2d 81 (Tenn. App. 1975); State of Tennessee ex rel .

Dossett v. Richland Bookmart, Inc., 1990 W.L. 209331 (Tenn. App. E.S., Dec. 21, 1990).

We find no need, however, to reach the Appellants’ argument attacking the validity of the

statute on the grounds of vagueness and/or overbreadth. 7 We find the Chancellor’s order in

regards to “lewd and obscene exhibition of the genitals” to be a prior restraint in violation of

the First Amendment to the United States Constitution.


       We begin by recognizing that nude dancing is entitled to some measure of First

Amendment protection. See generally Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct.

2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45

L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342

(1972) . Although we do not consider the extent of that protection to be important to the

present case, the fact that such protection does exist is of vital importance. Based upon the

record, we find no mention of specific activities which were deemed to be “lewd and

obscene.” In fact, the order makes only two references to “lewd and obscene exhibition of

genitals.”8 We realize that the intent of the order was to enjoin specific acts. However, at

present, there is no way to know what those acts might be. Simply stated, the injunction

attempts to prohibit a future undescribed activity. There has been no determination that any

act sought to be enjoined is in fact obscene. More to the point, we do not even know what

those acts might be. As appellants note in their brief, “[a]n injunction which incorporates the

statutory definition of obscenity . . . merely begs the question.” In this case, the Chancellor’s

order merely incorporates the phrase “lewd and obscene.” As such, knowing the specific

acts that are enjoined is impossible. In light of the fact that the Appellants business is




                                                                                                    Page 9
entitled to some measure of First Amendment protection, it appears that the injunction will

infringe on protected rights.



        The United States Supreme Court, in Vance v. Universal Amusement Co., Inc.,

noted that the burden of supporting an injunction against a future exhibition is even heavier

than the burden justifying the imposition of a criminal sanction. 445 U.S. 308, 316, 100

S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980) (citing Bantam Books, Inc. v. Sullivan, 372 U.S.

58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); New York Times Co. v. United States, 403 U.S.

713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe,

402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Comm’rs

of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Near v.

Minnesota ex rel . Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The

present injunction impermissibly places the burden on the Appellants by forcing them to

choose one of two courses of action. They may continue to operate their business in the

same manner as always and risk a contempt proceeding, or, alternatively, they may attempt

to discern the scope of the injunction and limit the activities in their business accordingly.

Either choice presents risks to the Appellants because there is no way to know which acts

will or will not be allowed. In essence, the State becomes the decision-maker as to what is “

lewd and obscene” due to the absence of a judicial determination.



       The Tennessee Supreme Court dealt with a similar issue in News Mart, Inc. v. State

ex rel . Webster, 561 S.W.2d 752 (1978). In that case, the trial court issued a permanent

injunction against the showing of: “(1) the untitled motion pictures ‘described in the

complaint and the affidavit of Captain Roy Whitfield’ filed as an exhibit to the complaint, and

(2) ‘any film, picture, publication, or other matter which depicts explicit acts of fellatio,

cunnilingus, and excretory function of the human body.’” News Mart, 561 S.W.2d at 753.

The Tennessee Supreme Court struck down the injunction pertaining to the future showing of



                                                                                                  Page 10
unnamed and undescribed films finding that such an injunction would be a prior restraint on

the freedom of expression. 9 Id. (emphasis added). We find nothing in the present case to

distinguish the News Mart decision to the extent the present injunction purports to enjoin

future unspecified acts. In fact, the injunction struck down in News Mart was, if anything,

more specific than the injunction in the present case, yet was still found to be an

unconstitutional prior restraint.



        In its present posture, this case presents an unconstitutional prior restraint in

violation of the First Amendment to the United States Constitution. See Near v. Minnesota

ex rel Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); News Mart v. State ex rel

Webster, 561 S.W.2d 752 (1978). Under the injunction, the Appellants could be found guilty

of contempt even though no court had ruled on the lewdness or obscenity of a specific act.

See Freedman v. State of Maryland, 380 U.S. 51, 60, 85 S.Ct. 734, 739, 13 L.Ed.2d 649

(1965) (emphasis added) (citing, with disapproval, the fact that “[u]nder the statute,

appellant could have been convicted if he had shown the film after unsuccessfully seeking a

license, even though no court had ever ruled on the obscenity of the film.”). As such, we find

the deficiency in regard to this issue to be the specificity, or lack thereof, in the Chancellor’s

order as opposed to any statutory problems relating to “lewdness” or “obscenity.” The

Chancellor in this case attempted to prohibit acts that had not yet been declared obscene,

and more importantly, that may ultimately be determined not to be obscene. The justification

for prohibiting such restraints may be summed up in noting that:

               a free society prefers to punish the few who abuse rights of
               speech after they break the law than to throttle them and all
               others beforehand. It is always difficult to know in advance what
               an individual will say, and the line between legitimate and
               illegitimate speech is often so finely drawn that the risks of
               freewheeling censorship are formidable.

Vance, 445 U.S. at 1161, n. 13 (citing Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2

L.Ed.2d 1460 (1958); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559, 95




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S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975).



         Accordingly, we reverse that part of the Chancellor’s order relating to “lewd and

obscene exhibition of the genitals.”



                                       III. Conclusion

       The judgement entered by the Chancery Court is hereby affirmed in part and

reversed in part. Costs of this appeal are taxed one-half to each party, for which execution

may issue if necessary.




                                                  HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.



FARMER, J.




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