Before Pell, Circuit Judge, Marovitz and Lynch, District
The opinion of the court was delivered by: Lynch, District Judge.
The plaintiffs, Rene Nawodylo and Leo Weintraub, filed the
complaint in No. 70 C 1235 seeking declaratory and injunctive
relief from this Court. The relief requested contemplated an
attack on constitutional grounds of a statute of statewide
application. Accordingly, pursuant to 28 U.S.C. § 2281 and
28 U.S.C. § 2284, a three-judge Court was requested and
subsequently convened. The plaintiffs, Movies, Inc., et al.
filed the complaint in No. 70 C 2051 seeking both injunctive
and declaratory relief from the same state law attacked in No.
70 C 1235. The matters were consolidated for argument because
of the similarity of the causes.
The central thread of both complaints is a challenge to 38
Ill.Rev.Stat. § 11-20 (Appendix 1), the Illinois law defining
and regulating obscenity. All plaintiffs contend that the law
is vague and over-broad; they contend that it permits a
conviction without a proper showing of scienter; lastly they
contend that it is inimical to rights secured by the first
amendment of the United States Constitution because it does not
require a prior adversary hearing. Additionally, plaintiffs in
No. 70 C 1235 challenge Chicago's obscenity ordinance, § 192.9,
Municipal Code of Chicago (Appendix 2).
Recent decisions of the United States Supreme Court have
circumscribed the jurisdiction of a three-judge court to
entertain constitutional challenges to state criminal statutes
where criminal proceedings pursuant to those statutes are
pending at the time of filing the complaint in federal court.
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669;
Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701;
Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688;
Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781;
Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d
792. This Court believes these rulings compel different
treatment of the pending matters. Accordingly, it will be
necessary to discuss them separately.
The complaint in Movies, Inc., et al. is brought by certain
individuals who were arrested for showing a film that was
judged obscene after a hearing held by a state court
magistrate. The plaintiffs exhibited the film after it was
adjudged obscene. Subsequently warrants were issued for their
arrest and at the time of their arrest certain of the
defendants seized the film, Pornography-Copenhagen '70. The
arrests and seizure are currently on appeal to the Supreme
Court of the State of Illinois. During the pendency of that
appeal those individuals who were arrested brought this action.
They were joined by certain corporate plaintiffs who own the
theatres at which the film was shown. The proceedings here also
seek to protect the rights of one Janice Mooney who purports to
represent a class of individuals who would view
Pornography-Copenhagen '70 were it available.
As noted above the Supreme Court recently decided a series
of cases that redrew the perimeters of a federal court's
jurisdiction when a court is asked to interfere with pending
state court criminal matters. Younger v. Harris, supra, Perez
v. Ledesma, supra.
[A] federal court must not, save in exceptional
and extremely limited circumstances, intervene by
way of either injunction or declaration in an
existing state criminal prosecution. Such
circumstances exist only when there is a threat
of irreparable injury "both great and immediate."
A threat of this nature might be shown if the
state criminal statute in question were patently
and flagrantly unconstitutional on its face,
Younger v. Harris [ante] [401 U.S.], at 53 [91
S.Ct., at 755]; cf. Evers v. Dwyer, 358 U.S. 202
[79 S.Ct. 178, 3 L.Ed.2d 222], or if there has
been bad faith and harassment — official
lawlessness — in a statute's enforcement, Younger
v. Harris [ante, 401 U.S.], at 47-49 [91 S.Ct. at
752-753]. In such circumstances the reasons of
policy for deferring to state adjudication are
outweighed by the injury flowing from the very
bringing of the state proceedings, by the
perversion of the very process which is supposed to
provide vindication, and by the need for speedy and
effective action to protect federal rights. Cf.
George v. Rachel, 384 U.S. 780 [86 S.Ct. 1783, 16
L.Ed.2d 925]. Younger v. Harris, supra, 401 U.S.,
at 56, 91 S.Ct. at 757 (Stewart, J., concurring).
In Perez v. Ledesma, supra, the Supreme Court articulated the
standard that controls this court's intervention with a pending
state court prosecution. "Only in case of proven harassment or
prosecutions undertaken by state officials in bad faith without
hope of obtaining a valid conviction and perhaps in other
extraordinary circumstances where irreparable injury can be
shown is federal injunctive relief against pending state
prosecutions appropriate." 401 U.S. 82, 84, 91 S.Ct. 674, 677.
In Movies, Inc., there is no allegation of harassment or bad
faith prosecution. Nor does there appear to be any other
extraordinary circumstances justifying federal injunctive
relief. Indeed the situation
here appears closely analogous to that which existed in
Perez v. Ledesma, supra.
In Perez the Supreme Court reviewed the holding of a
three-judge court that declared a Louisiana statute permitting
the seizure of allegedly obscene material, without a prior
adversary hearing on the issue of obscenity, violative of
rights secured by the first amendment. Delta Book Distributors,
Inc. v. Cronvich, 304 F. Supp. 662 (E.D.La. 1969), rev'd, sub
nom. Perez v. Ledesma, supra. The lower court was asked to
enjoin pending state criminal proceedings for alleged
violations of the Louisiana obscenity law. The lower court did
not enjoin the state criminal proceedings but did suppress
certain material seized pursuant to the arrest of those
individuals being prosecuted. The result of the order to
suppress was a termination of the state court proceedings. The
Supreme Court reversed the lower court and held that it was
improper for the federal court to interfere with the state
court proceedings. Further, the Supreme Court noted that any
alleged constitutional deficiency in the state court
proceedings could properly be raised and disposed of in the
Applying the holding of Perez to the matters raised in
Movies, Inc., it is apparent that the complaint must be
dismissed. The thrust of the complaint and the relief requested
would require this court to interject itself into matters
currently before the courts of Illinois. It was precisely this
type of interference that was proscribed in Perez, supra.
Further, the complaint in Movies, Inc., contains no allegation
of bad faith, enforcement or harassment upon which this court
might predicate its jurisdiction. Accordingly, the cause in No.
70 C 2051 is dismissed.
Turning next to the complaint in No. 70 C 1235 the court is
faced with a somewhat different situation. Both Weintraub and
Nawodylo have been the subjects of frequent arrests by various
state and local enforcement officials for sale of allegedly
obscene material. Further, the plaintiffs in this matter
assert that the enforcement officials are acting in bad faith
with an intention to harass. Indeed, the single district judge
to whom this matter was originally assigned found that the
pattern of arrests constituted an attempt to harass and
accordingly entered a temporary injunction that subsequently
was dissolved. Thus, in No. 70 C 1235 the allegations of the
complaint appear to assert sufficient facts to permit this
court to entertain jurisdiction of the matter without
contravening the directions contained in Younger, and its
companion cases, supra. We note in passing that we are not
determining that harassment or bad faith prosecution in fact
exists in this matter. We hold only that the allegations of
harassment coupled with the showing of frequent arrests of both
plaintiffs is sufficient to bridge the gap in this court's
jurisdiction created by Younger. Thus, assuming that we enjoy
the rights to interfere with state criminal proceedings where
there are allegations of harassment coupled with some factual
data to support those allegations we turn to the constitutional
challenge of the Illinois obscenity laws.
The plaintiffs' challenge to the constitutionality of
Ill.Rev.Stat., Ch. 38, § 11-20 proceeds along several avenues.
Plaintiff's most ambitious contention strikes at the right of
the state to regulate obscene material, a right long
recognized. Roth v. United States; Alberts v. California,
354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The predicate for
plaintiff's assertion is found in the holding of Stanley v.
Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 wherein
the Supreme Court determined that the first and fourteenth
amendments prohibit making mere private possession of obscene
material a crime. The plaintiffs argue that since the state
cannot prohibit private possession of obscene material, a
fortiori the state cannot prohibit the sale that placed the
individual in possession of that material. The plaintiffs'
assertion is contrary to language in
Stanley itself. In deciding Stanley the Supreme Court clearly
reaffirmed the right of the state to regulate obscene material.
394 U.S. 557, 578, 89 S.Ct. 1243. Additionally, the merit of
plaintiffs' argument is foreclosed by United States v. Reidel,
402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Reidel was
indicted for using the mails for distribution of obscene
material. 18 U.S.C. § 1461. The District Court, relying on
Stanley, declared the statute unconstitutional and dismissed
the indictment. The Supreme Court reversed noting:
The District Court gave Stanley too wide a sweep.
To extrapolate from Stanley's right to have and
peruse obscene material in the privacy of his own
home a First Amendment right in Reidel to sell it
to him would effectively scuttle Roth, the
precise result that the Stanley opinion abjured.
Whatever the scope of the "right to receive"
referred to in Stanley, it is not so broad as to
immunize the dealings in obscenity in which
Reidel engaged here — dealings which Roth held
unprotected by the First Amendment. 402 U.S. 351,
355, 91 S.Ct. 1410, 1412.
Since the rights of a state to regulate obscenity within its
borders are no less narrow than the right of the federal
government, Roth-Alberts, supra, we determine that Stanley does
not effect the right of the state to regulate the sale of
allegedly obscene material.
Plaintiffs also contend that Ill.Rev.Stat., Ch. 38 § 11-20
does not properly define obscenity. Plaintiffs assert that the
definition is vague and overbroad. In Roth-Alberts, supra, the
Supreme Court defined obscene material as those things that "to
the average person, applying contemporary community standards
the dominant theme of the material taken as a whole appeals to
prurient interest." 354 U.S. 476, 489, 77 S.Ct. 1304, 1311.
Further, the court noted that obscene material is not protected
by the first amendment because "implicit in the history of the
First Amendment is the rejection of obscenity as utterly
without redeeming social importance." 354 U.S. 476, 484, 77
S.Ct. 1304, 1309.
The three elements of obscenity suggested in
Roth-Alberts were codified in A Book Named John Cleland's
Memoirs of a Woman of Pleasure, et al. v. Attorney General of
Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. In
Memoirs it was established that proscription of material as
obscene was permissible only when three elements coalesced.
(a) the dominant theme of the material taken as a
whole appeals to 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. 383 U.S. 413,
418, 86 S.Ct. 975, 977.
Each of these three tests is mandatory and must be applied
with equal weight.
Illinois has incorporated into its law regulating obscenity
a statutory definition that adequately treats the first two
tests noted in Memoirs, supra, but has not included in that
definition a statement that obscenity must be utterly without
redeeming social value. (See Appendix 1) The plaintiffs assert
that this omission is fatal to the definition and accordingly
so infects the statute with invalidity that the entire
statutory scheme must fall.
While the language of the Illinois statute does not
incorporate the redeeming social value test, that test is
added to the statute by judicial gloss. In City of Chicago v.
Kimmel, 31 Ill.2d 202, 201 N.E.2d 386 (1964) the Illinois
Supreme Court reviewed the same ordinance of the City of
Chicago challenged here. The City ordinance does not contain
an utterly without redeeming social value test.
Notwithstanding the Supreme Court of Illinois held the
ordinance valid. However, while so holding
the court reversed a conviction for violation of the ordinance
[W]e are unimpressed with the literary merit of
the works before us, we cannot say that they "go
substantially beyond customary limits of candor
in descriptions or representation of such
matters," or that they are "utterly without
redeeming social importance." We accordingly hold
that the jury improperly found the books to be
obscene. 201 N.E.2d 386, 390.
In People of State of Illinois v. Sikora, 32 Ill.2d 270,
204 N.E.2d 768 (1965) the Illinois Supreme Court reviewed the
conviction of a defendant charged under a predecessor of the
current Illinois obscenity law, which defined obscenity as it
is currently defined in Illinois law. In passing upon an
evidentiary standard in the statute that permitted evidence
showing the literary, scientific, artistic, educational or
other merit of the material, the Illinois Supreme Court
Not only is evidence admissible as to the social
importance of the alleged obscene materials, a
determination as to the presence or absence of
social importance is essential to a judgment. And
if, as in this case, no evidence bearing upon
that issue is offered, the determination must be