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Cinema pub LLC v. Petilos

United States District Court, D. Utah

March 21, 2017

CINEMA PUB, LLC, d/b/a BREWVIES, Plaintiff,
v.
SALVADOR D. PETILOS, Director; CADE MEIER, Deputy Director; NINA MCDERMOTT, Director of Compliance, Licensing Enforcement, Utah Department of Alcoholic Beverage Control, in their official capacities; JOHN T. NIELSEN, Chairman; JEFFREY WRIGHT; KATHLEEN MCCONKIE COLLINWOOD; OLIVIA VELA AGRAZ; STEVEN B. BATEMAN; S. NEAL BERUBE; AMANDA SMITH, Members, Utah Alcoholic Beverage Control Commission, in their official capacities, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [44] DEFENDANTS' MOTION TO EXCLUDE EXPERT OPINIONS AND DENYING [45] PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY

          DAVID NUFFER DISTRICT JUDGE.

         Plaintiff Cinema Pub and defendants filed motions to exclude each other's experts.[1] In general, all the experts were asked to offer opinions related to the defendants' anticipated argument that the statute in question is not unconstitutional because it is intended to avoid the negative secondary effects that flow from showing certain images. Defendants' motion is GRANTED, but Cinema Pub's motion is DENIED.

         Table of Contents

Nature of Issues in this Case...........................................................................................................2

Motions Presented...............................................................................................................4

Discussion.......................................................................................................................................5

1. Bishop's report and opinion is excluded.................................................................7

a. Bishop is not qualified to testify regarding secondary effects, but he is qualified to testify regarding DeadpooVs tone, content, artistic value, or comedic message........................................................................................9

b. Bishop's opinions related to value or obscenity are not reliable..............10

2. Parker's report and opinion is excluded in part....................................................11

a. Parker is qualified to testify regarding secondary effects.........................12

b. Parker's report is not reliable....................................................................13

3. George's testimony is not excluded......................................................................14

a. George is qualified to testify regarding relevant secondary effects..........15

b. George's methods are reliable..................................................................16

c. George's opinions are relevant.................................................................16

4. Linz's supplemental report is excluded................................................................17

Order ...........................................................................................................................................19

         NATURE OF ISSUES IN THIS CASE

         This action stems from defendants' agency action taken under Utah Code § 32B-1-504 against Cinema Pub, d/b/a Brewvies, for showing the movie Deadpool. Cinema Pub seeks declaratory and injunctive relief from the enforcement of Utah Code § 32B-1-504.[2] In relevant part, Section 32B-1-504 states The following attire and conduct on premises or at an event regulated by the commission under this title are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: .... (7) showing a film, still picture, electronic reproduction, or other visual reproduction depicting:

(a) an act or simulated act of:
(i) sexual intercourse;
(ii) masturbation;
(iii) sodomy;
(iv) bestiality;
(v) oral copulation;
(vi) flagellation; or
(vii) a sexual act that is prohibited by Utah law;
(b) a person being touched, caressed, or fondled on the breast, buttocks, anus, or genitals;
(c) a scene wherein an artificial device or inanimate object is employed to depict, or a drawing is employed to portray, an act prohibited by this section; or
(d) a scene wherein a person displays the genitals or anus.

         Cinema Pub alleges that the defendants violated their First Amendment rights of freedom of speech by enforcing Section 32B-1-504.[3]

         In City of Renton v. Playtime Theatres, Inc. , [4] the Supreme Court carved out a narrow exception from the Constitution's generally unlimited protection of free speech. The Court (as clarified by the 10th Circuit[5]) determined that if a statute or regulation "merely aimed to impose time, place, or manner restrictions on account of [a] theaters' 'secondary effects, ' meaning effects other than communicative impact on the audience, " the statute or regulation is valid.[6] A statute or regulation attempts to mitigate secondary effects when, "by its terms[, it] is designed to prevent crime protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life, not to suppress the expression of unpopular views."[7] If the regulation is intended to mitigate these secondary effects, intermediate scrutiny is the appropriate standard.[8] The Court stated the standard for intermediate scrutiny in United States v. O'Brien.[9]

[A] government regulation is sufficiently justified if it is [1] within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.[10]

         The secondary effects listed above may establish the important or substantial governmental interest required under the second part of the four-part O'Brien test for validity of restrictions on speech.

         Motions Presented

         Defendants move to exclude Dr. Kyle Bishop's report and opinions, Bruce Parker's report and opinions, and Dr. Daniel Linz's supplemental report, [11] Bishop was asked "to render [his] expert assessment of the film Deadpool... in terms of its alleged obscene content, its artistic/literary value, and its potential to elicit 'negative secondary effects' when viewed by those consuming alcohol."[12] Parker was asked to direct his opinion "at identifying any negative secondary effects resulting from Cinema Pub . . . serving alcohol to customers while screening G, PG, PG-13, and R-rated movies that may violate Utah Code §32B-l-504(7)."[13] And Linz's supplemental report was allegedly provided to give "further information regarding the secondary effects issues relevant" to this case.[14] Plaintiff Cinema Pub responded in opposition.[15] Defendants replied in support of their motion.[16]

         Cinema Pub moves to exclude Dr. William H. George's testimony, [17]George opined on "[w]hat is understood-scientifically speaking-to be the nature of the relationship between alcohol consumption and exposure to sexual content[; whether] joint exposure to both alcohol consumption and sexual content foster or contribute to the occurrence of adverse secondary effects[; and whether] the former (what is understood scientifically about the alcohol-sexuality link) inform the latter (joint alcohol-sex exposure and adverse secondary effects)."[18] Defendants responded in opposition.[19] Cinema Pub replied in support of its motion.[20]

         For the reasons stated below, Defendants' Motion is GRANTED and Cinema Pub's Motion is DENIED.

         DISCUSSION

         Federal Rule of Evidence 702 addresses the standard for the admissibility of expert testimony.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.[21]

         "Under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."[22] The inquiry of scientific reliability is flexible and focuses on principles and methodology.[23] The Supreme Court has offered several non-exhaustive factors that a court may rely on for determining reliability such as, whether the testimony can be tested, has been peer reviewed, has a known or potential rate of error, and has attracted acceptance in the relevant scientific community.[24]

         District courts are tasked with the responsibility of serving as the gatekeepers of expert evidence, and must therefore decide which experts may testify and present evidence before the jury.[25] Courts are given "broad latitude" in deciding "how to determine reliability" and in making the "ultimate reliability determination."[26] The Federal Rules of Evidence, however, generally favor the admissibility of expert testimony.[27] Excluding expert testimony is the exception rather than the rule, [28] and often times the appropriate means of attacking shaky but admissible evidence is through vigorous cross-examination, and the presentation of contrary evidence.[29] "[T]he Federal Rules of Evidence favor the admissibility of expert testimony, and [courts'] role as gatekeeper is not intended to serve as a replacement for the adversary system."[30]

         The inquiry into whether an expert's testimony is reliable is not whether the expert has a general expertise in the relevant field, but whether the expert has sufficient specialized knowledge to assist jurors in deciding the particular issues before the court.[31]

         Expert testimony is subject to Federal Rule of Evidence 403. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."[32]

         In determining whether expert testimony is admissible the first step is to determine whether the expert is qualified, and then if the expert is qualified determine whether the expert's opinion is reliable by assessing the underlying reasoning and methodology.[33] If the expert is qualified and the opinion reliable, the subject of the opinion must be relevant; i.e. the opinion must "help the trier of fact to understand the evidence or to determine a fact in issue.'''[34] "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful."[35]

         1. Bishop's report and opinion is excluded.

         Bishop's report supports three opinions:

It is my opinion as an expert in popular culture and film that Deadpool 1. is not obscene, nor should it be considered pornographic or even "adult entertainment, " as demonstrated by its having received an "R" rating from the Motion Picture Association of America (MPAA) (a "restricted" film, but one nonetheless accessible to viewers under 17 if accompanied by an adult parent or guardian) and its being a comedic, action-adventure movie; 2. has literary and artistic merit, thus offering the film Constitutional protection as an example of "free speech" as described in the First Amendment; and 3. would not directly encourage any of its viewers to threaten the health, peace, safety, welfare, or morals of the community, whether screened while consuming alcoholic beverages or not.[36]

         Defendants argue that Bishop's report and opinion[37] should be excluded because, as an English professor, he "is not qualified to opine that viewing Deadpool and consuming alcohol would not lead to negative secondary effects."[38] To be qualified to make those opinions, defendants argue, Bishop would need to be "a psychologist, criminologist, or statistician."[39] Additionally, defendants argue that Bishop's opinion is not reliable because he does not support his opinions with anything other than "his assumptions."[40] And finally, defendants argue that Bishop's report and opinion on whether the movie is obscene "as the term has been defined by the courts"[41] should be excluded as unnecessary.

         Cinema Pub responds that Bishop "is qualified to opine regarding the tone, content and artistic value of Deadpool, and particularly, the comedic intent of the messages conveyed in the scenes that Defendants allege violate" the implicated Utah statute.[42] Regarding Bishop's qualifications for opining on the "lack of negative secondary effects resulting from viewing Deadpool"[43]Cinema Pub seems to concede that Bishop lacks expertise to opine on secondary effects as defined by case law.[44] However, Cinema Pub argues that Bishop is qualified to opine on the primary "communicative impact on the audience from viewing the sexual content in Deadpool while drinking alcohol."[45] This testimony is necessary, Cinema Pub argues, because the defendants' expert witness George implicitly makes this an "obscenity" case by "opining that certain scenes in Deadpool appeal to the viewer's prurient interest."[46] Regarding his methods, Bishop states that he "look[s] at narrative works of fiction very closely, taking both formalist approaches . . . and more theoretical approaches ... to try to discern what those texts say, tell, or teach about the society that produced them."[47]

         a. Bishop is not qualified to testify regarding secondary effects, but he is qualified to testify regarding DeadpooPs tone, content, artistic value, or comedic message.

         Bishop has a B.A., M.A., and Ph.D.; all three degrees are based in the humanities.[48] Bishop's master's thesis "addressed the social and cultural value of film comedies."[49] And his dissertation "explored the cultural history of zombie films and argued for the social value of such narratives."[50] Bishop is currently "the Director of the Honors Program and an associate professor of English literature and film at Southern Utah University."[51] From 2004 to the present, Bishop has published many articles and book chapters relating to pop culture. His focus has been primarily on "zombies."[52] Bishop has also participated in numerous presentations with themes similar to his publications.[53] Bishop summarizes his work in the following way: "I have made a career of exploring what works of art say about the society that produces them."[54]

         The defendants are correct. Nothing in Bishop's "knowledge, skill, experience, training, or education"[55] suggests he is qualified to testify regarding the question of "whether the prohibition against serving alcohol while showing sexually explicit films is supported by the important government interest stated in the statute of reducing adverse secondary effects."[56] Any portion of his report and opinion that relates to this question is excluded.

         Bishop would, however, be "qualified to opine regarding the tone, content and artistic value of Deadpool, and particularly, the comedic intent of the messages conveyed in" the relevant scenes to this litigation.[57]

         b. Bishop's opinions related to value or obscenity are not reliable.

         While Bishop may be qualified to opine "regarding the tone, content and artistic value of Deadpool" his opinion is not reliable. The statute at issue does not implicate the value of the film, or challenge its primary effect, but simply prohibits showing films portraying specified types of conduct. The conduct prohibited in films is consistent with live conduct that is prohibited on premises regulated by the Utah Alcoholic Beverage Commission.[58] No expert testimony is necessary to determine whether the film at issue violates the statutory standard.

         Bishop's opinion on obscenity amounts to a review of Deadpool through the lens of Miller v. California's definition of obscenity. As Bishop proceeds through an inventory of various scenes in Deadpool, he offers legal conclusions such as "I personally don't see how the lighthearted and humorous montage [of simulated sexual encounters] could possibly appeal to a prurient interest."[59] Bishop comes to these personal opinions stated in legal terms without employing an "empirical test";[60] without any indication that his "theory or technique" has or, as it now stands, even could be "subjected to peer review";[61] and without any indication that his exegesis is a generally acceptable[62] way of determining obscenity.

         Determining whether a work is obscene is necessarily a soft analysis, but even if the question of obscenity were relevant, the finder of fact would need a great deal more than what Bishop provided. A central question would be whether Deadpool was obscene as defined by contemporary community standards.[63] And the fact finder would need to know what ...


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