BOYLE, District Judge:
These actions arise from the arrest by the defendant law enforcement officers in Jefferson
Those plaintiffs, residents of the Parishes of Orleans and Jefferson, are the owners and operators of newsstands in both Parishes. The corporate plaintiff, Delta Book Distributors, Inc., is a New York corporation engaged in the business of distributing books and magazines to newsstands, including those of the individual plaintiffs.
Jurisdiction is asserted and exists under 28 U.S.C. §§ 1331, 1343, 2201 and 2281 and 42 U.S.C. § 1983.
The facts in both cases are substantially parallel. In both, the arrests
Following their arrests two-count bills of information were filed against the individual plaintiffs in the Delta Book case
Unlike the St. Bernard Parish officers, who seized forty-five publications and a deck of playing cards, while leaving more than three hundred similar publications, the Jefferson Parish officers seized all copies of the alleged offending publications, including multiple
In both cases, the Federal constitutional issues raised herein were presented to the respective State Trial Courts in Motions to Quash the bills of information and to Suppress the seized evidence and were decided adversely to the plaintiffs herein.
In view of the result we reach, it is unnecessary in either case to consider whether the seized publications are in fact obscene.
The principal relief prayed for in each case is identical,
We have for decision all issues, except the issue of damages which was severed and reserved for the single Judge Court.
The guarantee of freedom of speech embodied in the First Amendment to the United States Constitution does not extend to obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Consequently, obscene utterances and materials, properly defined, may be the subject of Federal and State regulation or suppression. However, since "constitutionally protected expression * * * is often separated from obscenity only by a dim and uncertain line,"
Since prior restraint upon the exercise of First Amendment rights can be exerted through seizure
We are mindful of the fact that even attempts to regulate obscenity incorporating procedures for affording the required adversary hearing would themselves constitute prior restraints.
Applying these principles to the cases before us, the arrests, as well as the seizures claimed to be incident thereto, are clearly invalid for lack of a prior adversary determination of the obscenity of the materials upon which the arrests and seizures were based. The fact that in each case some materials were purchased rather than seized is of no moment in view of the requirement of an adversary determination of obscenity prior to arrest or threat of arrest.
We turn now to the specific relief prayed for in each of the suits.
Initially, we are asked to declare the Louisiana Obscenity Statute
The plaintiffs contend that the statute is unconstitutional on its face because it defines obscenity too broadly, affords no ascertainable standard of guilt, and lacks the required element of scienter.
We are aware of the United States Supreme Court's per curiam reversal in Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1967), citing only Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), also a per curiam opinion. In view of the fact that the decision of the Louisiana Supreme Court in Henry (reported at 250 La. 682, 198 So.2d 889) not only upheld the constitutionality of La.R.S. 14:106, subsection A(2) and (3) as not being violative of freedom of speech or vague, but, in addition, erroneously
A study of subsections "(2)" and "(3)" convinces us that neither subsection is unconstitutional on its face. Subsection "(3)" incorporates the standards of obscenity contained in subsection "(2)". We find that these subsections define obscenity in terms substantially similar to those approved in Roth v. United States, supra, in that expression regulated by the statute is that intended "to primarily appeal to the prurient interest of the average person." As was the court in Cambist Films, Inc. v. Tribell, supra, we are aware of the language of Mr. Justice Brennan in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) to the effect that material may not be legally adjudged obscene unless it meets each of the following three tests: "(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." And, we concur in the statement of the Court in Tribell, supra, that "[i]n listing these three elements, Mr. Justice Brennan was not making additional requirements, but was merely explaining the Roth test." Therefore, we find that subsections (2) and (3) of Paragraph A of La.R.S. 14:106, while not explicitly inclusive of the tripartite test enunciated by Mr. Justice Brennan, do, if judicially interpreted and applied in light thereof, satisfy constitutional requirements.
Plaintiffs' charge that the statute is vague is without merit in so far as subsection A(2) and (3) are concerned. The definition of obscenity through the aid of adjectives such as "lewd," "lascivious" and "filthy" and the adjectival
Finally, plaintiffs' attack upon the statute for lack of the required element of "scienter" is without merit. The use of the word "intentional" and the phrase "with the intent" in the statute satisfy the requirements for "scienter" set forth in Smith v. People, supra. Indeed, we concur in the following statement of the Supreme Court of Louisiana in State v. Roufa, 241 La. 474, 129 So.2d 743 (1961): "We conclude that the word `Intentional' and the phrase `With intention' (sic) in the Louisiana Obscenity Statute mean that knowledge is implied where one has criminal intent. It leaps to the mind that knowledge is necessary to intention and that one cannot have intention without knowledge. We find that Paragraph Two of LSA-R.S. 14:106 meets the requirements laid down in the Smith case * * *." (Citations and footnote reference omitted.)
Subsection "(7)" of Paragraph A is unconstitutional on its face as plaintiffs contend. A simple reading of this subsection reveals that by its terms it is overbroad.
We, here, note that the fact that subsection "(7)" of Paragraph A of the statute is unconstitutional, is not fatal to the entire statute in light of the severability clause found in Section 2 of Act 647 of 1968.
We find a total lack of evidence to support the contention that La.R.S. 14:106 is unconstitutional as applied to the plaintiffs.
The plaintiffs in the case arising from St. Bernard Parish were charged under the St. Bernard Obscenity Ordinance as well as under the State statute. Subsequently, but prior to the hearing in this court, the charges under the ordinance were nolle prosequied. However, we are asked to pass on the constitutionality of this ordinance
Assuming that this ordinance was constitutional or that a constitutional replacement therefor was enacted, local authorities in the enforcement thereof would be bound by the same requirement of an adversary hearing as State authorities are with respect to the enforcement of State statutes.
Plaintiffs seek to enjoin the defendants from proceeding with the prosecutions pending against them, as well as from instituting any new prosecutions and undertaking any further seizures or arrests. We decline to grant any injunctive relief in either of the cases before us.
In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials,
Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing:
1. That all seized materials be returned, instanter, to those from whom they were seized,
2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs,
3. That the preliminary and permanent injunctions prayed for be denied, and
BOYLE, District Judge.
For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing:
1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional.
2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.
§ 106. Obscenity
A. Obscenity is the intentional:
(1) Exposure of one's person in a public place in such manner that any part of a sex organ may be seen by another person, with the intent of arousing sexual desire.
(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.
(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.
(4) Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indecent dancing, lewd, lascivious or sexually indecent posing, lewd, lascivious or sexually indecent body movement.
(5) Solicitation or attempt to entice any unmarried person under the age of seventeen years to commit any act prohibited by this section.
(6) Requirement by a person, as a condition to a sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to a purchaser or consignee, that such purchaser or consignee receive for resale any other article, book or publication reasonably believed by such purchaser or consignee to contain articles or material of any kind or description which are designed, intended or reasonably calculated to or which do in fact appeal to the prurient interests of the average person in the community, as judged by contemporary community standards, or the denying or threatening to deny any franchise or to impose any penalty, financial or otherwise, by reason of the failure of any person to accept such articles or things or by reason of the return thereof.
(7) Display of nude pictures of a man, woman, boy or girl in any public place, except as works of art exhibited in art galleries.
B. In prosecutions for obscenity, lack of knowledge of age or marital status shall not constitute a defense.
C. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both.
When a violation of Paragraphs (1), (2), (3), and (4) of Subsection (A) of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than one thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.
Amended by Acts 1958, No. 388, § 1; Acts 1960, No. 199, § 1; Acts 1962, No. 87, § 1; Acts 1968, No. 647, § 1, emerg. eff. July 20, 1968, at 1:30 P.M.
ST. BERNARD PARISH
St. Bernard Courthouse Annex
EXTRACT OF THE OFFICIAL PROCEEDINGS OF THE POLICE JURY OF THE PARISH OF ST. BERNARD, STATE OF LOUISIANA, TAKEN AT THE REGULAR MEETING HELD IN THE POLICE JURY ROOM OF THE COURTHOUSE ANNEX, AT CHALMETTE, LOUISIANA, ON NOVEMBER 2, 1960, AT ELEVEN O'CLOCK (11:00) A.M.
On motion of Celestine Melerine, secondee by Joseph V. Papania and upon recommendation of the District Attorney of the Parish of St. Bernard, the following Ordinance was adopted:
Offense of obscenity defined and prohibited.
BE IT ORDAINED, by the Police Jury of the Parish of St. Bernard that obscenity is prohibited and is hereby defined as the intentional.
BE IT FURTHER ORDAINED, that public personal exposure of the female breast or the sexual organs or fundament of any person of either sex.
BE IT FURTHER ORDAINED, that production, sale, exhibition, possession with intent to display, or distribution of any obscene, lewd, lascivious, prurient or sexually indecent print, advertisement, picture, photograph, written or printed composition, model, statute, instrument, motion picture, drawing, phonograph recording, tape or wire recording, or device or material of any kind.
BE IT FURTHER ORDAINED that tho performance of any dance, song, or act in any public place, or in any public manner representing or portraying or reasonable calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual intercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animals.
OR FURTHER, the performance in any public place, or any public manner of any obscene, lewd, lustful, lascivious, prurient or sexually indecent dance, or the rendition of any obscene, lewd, lustful, lascivious, prurient or sexually indecent song or recitation.
BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT to display, exhibition, distribution, or sale of any literature as defined herein containing one or more pictures of nude or semi-nude female persons, wherein the female breast or any sexual organ is shown or exhibited, and where, because of the number or manner of portrayal in which such pictures are displayed in such literature, they are designed to appeal predominantly to the prurient interest.
BE IT FURTHER ORDAINED, that persons convicted of an attempt to violate this section shall be sentenced to not more than one-half of the maximum penalty prescribed, or pay not more than half of the maximum fine or both, as set forth above.
This Ordinance having been submitted to a vote, the vote thereon was as follows:
And the Ordinance was declared adopted on this, the 2nd day of November, 1960.
RUBIN, District Judge (dissenting):
I respectfully dissent from that portion of the decision that holds it unconstitutional for the state to arrest a defendant on a charge of violating a valid statute punishing the crime of selling pornographic literature, and from the suggestion that, to be constitutional, a state statute "may have to incorporate provisions immunizing alleged violators from criminal liability for any activities occurring prior to an adversary judicial determination of the fact of obscenity."
My brothers and I agree that we are bound by the principle "that obscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 1957, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498. Adhering, as we must, to the repeated decisions of a majority of the Supreme Court, we unanimously reject the dissenting view of Justices Black and Douglas that both federal and state governments are "without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind * * *." Ginzburg v. United States, 1966, 383 U.S. 463, 475, 86 S.Ct. 942, 950, 16 L.Ed. 2d 31.
But the majority of this court suggests that, in order to exercise its constitutional power, the state must adopt a procedure unprecedented in criminal law and incapable of effective enforcement. For, if their view is correct, no prosecution could be commenced under this statute that we all agree is constitutional unless the state first holds a separate adversary proceeding against every single news dealer for each item of pornography that he might choose to sell at any time. Even though a court might have decided that a dealer on one street was violating the law by selling a work that had been held pornographic, a dealer on the next street could not be prosecuted until he also had been afforded a "prior adversary hearing" concerning the self-same item. And after it had been determined that the current issue of "Spread Eagle," consisting of photographs proclaimed to be for "Adults Only" (State Exhibit 7), violated the statute, the defendant would be free (by simply substituting one model for another) to sell another issue of that prurient publication containing photographs having identical pornographic content.
The Constitution forbids a statute that would punish a dealer for innocently selling pornographic material. The
"In considering searches incident to arrest, it must be remembered," Justice White said in his dissent in Chimel v. California, 1969, 395 U.S. 752, 782-783, 89 S.Ct. 2034, 2050-2051, 23 L.Ed.2d 685, "that there will be immediate opportunity to challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search * * * and having been arrested, he will soon be brought into contact with people who can explain his rights. * * * An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding."
That in my view is all that the state is required to do. It is no longer an acceptable proposition in tort law that a dog is entitled to one free bite
Never has the Supreme Court intimated such a requirement. It gave no hint of it when, without exacting any adversary hearing prior to prosecution, it upheld the conviction of a defendant under a New York statute for a sale of obscene materials to minors, in Ginsberg v. New York, 1968, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, or when it upheld another conviction under the New York statute for "hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them." Mishkin v. New York, 1966, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56. It is obviously impossible to hold a "prior adversary hearing" with respect to the offense of hiring someone to prepare an obscene book and difficult to conceive that it would be practical to hold one for the offense of publishing them. Nor is the rule this Court now adopts consonant with the conviction affirmed in Ginzburg v. United States, 1966, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, under an indictment charging violations of the federal obscenity statute.
In Near v. Minnesota, 1931, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, the Court said, "* * * [T]he protection even as to previous restraint is not absolutely unlimited. * * * [T]he primary requirements of decency may be enforced against obscene publications.
Concurring in the result in Roth and its companion case, Alberts v. California, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, Chief Justice Warren spoke in terms that are applicable here: "The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct." 354 U.S. at 495, 77 S.Ct. at 1315.
The enactment of a criminal statute is intended to deter unlawful conduct. But any possibility of some other kind of state action against the individual is likewise a possible deterrent. The fainthearted may be discouraged from pursuing a course of conduct by the possibility of an order to appear in court. Many a man will flinch from any kind of a controversy with the state. Even the threat of facing a judge may be a potential prior restraint, and it is conceivable that some news dealers might be willing to run the risk of a fine rather
Were the existence of any touch of "prior restraint" the tincture by which state conduct is stained unconstitutional, then presumably the existence of the possibility of an adversary hearing, or (in other contexts) the possibility of prosecution for criminal libel, or of the filing of a civil suit for libel, would color unlawful all government action in these areas. And it would mar the arrest, without a prior proceeding, of a defendant for violating the federal statute prohibiting the knowing use of the mails to transmit "every obscene, lewd, lascivious, indecent, filthy or vile article," 18 U.S.C. § 1461; as well as for transgressing the law that makes it a crime to mail matter containing "upon the envelope or outside cover * * * language of an indecent, lewd, lascivious or obscene character," even though the contents are "otherwise mailable by law"; 18 U.S.C. § 1463; and the provision that makes it a crime knowingly to import such material, 18 U.S.C. § 1462. And such a requirement would apparently dye entirely unconstitutional 18 U.S.C. § 1464, which makes it a criminal offense to utter "any obscene, indecent, or profane language by means of radio communication," because there would be no way to have a prior adversary hearing with respect to such "one shot" utterances unless all radio communication were required to be previously transcribed.
The procedure suggested in the majority opinion comes almost full cycle to the censorship condemned in Near, supra, in 1931. "This is the essence of censorship," the court there said, with regard to a procedure whereby the state might bring a publisher before a judge on a charge of conducting the business of publishing obscene, lewd and licentious matter and obtain an injunction against further publication.
Despite the allegations of the petition, the court does not find that the defendants have harassed the plaintiffs, or that they have employed threats of prosecution to chill freedom of speech, or that there has been any other kind of misuse of the processes of state criminal justice. If there were proof of such facts, a different case would be presented. But the court, in action from which I do not dissent, refrains even from issuing an injunction. It merely declares the state's procedure constitutionally infirm on its face.
When the Supreme Court, only a few weeks ago, held it unconstitutional to make private possession of obscene material a crime it said, "Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home." Stanley v. Georgia 1969, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542. If this be true, the Constitution does not deny the state the power to arrest a person on a charge of selling pornography that appeals only to pruriency, affronts all community standards, and completely lacks social worth without first haling that person into
In case No. 17-086, it is charged that Ledesma "did possess" rather than "did produce" the objects described [in the information in No. 17-085] in violation of R.S. 14:106, subsection A(3).
Also in the Delta Book case, "samples" of the seized publications were received in evidence subject to plaintiffs' objection of irrelevancy.
In the Ledesma case, all of the seized materials were received in evidence subject also to the plaintiffs' objection of irrelevancy.
But since the majority does not reach these questions, it is needless to comment on them. Indeed, these might be matters for a single judge to decide after resolution of the questions involving constitutionality of the state statute.
Nor is there need for comment about the nature of the publications. Although they are unfit for publication in the published reports, I attach for the record xerox copies of the covers of five of them. The covers alone show that they proclaim the "leer of the sensualist," Ginzburg, 383 U.S. at 468, 86 S.Ct. 942, and that no dealer could fail to recognize the likely pornography of the contents.