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MOVIES, INC. v. CONLISK

July 7, 1971

MOVIES, INC., AN ILLINOIS CORPORATION, ET AL., PLAINTIFFS,
v.
JAMES CONLISK, INDIVIDUALLY AND AS SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, ET AL., DEFENDANTS. LEO WEINTRAUB AND RENE NAWODYLO, PLAINTIFFS, V. WILLIAM J. SCOTT, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS.



Before Pell, Circuit Judge, Marovitz and Lynch, District Judges.

The opinion of the court was delivered by: Lynch, District Judge.

MEMORANDUM OF DECISION

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).

In both matters action was begun in this court after the State of Illinois had commenced several criminal proceedings for violation of Ill.Rev.Stat., Ch. 38, § 11-20 against each of the plaintiffs in No. 70 C 1235. Similar charges are pending against some of the plaintiffs in No. 70 C 2051.

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 state tribunals.

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 stating:

  [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.

Thus, the Illinois Supreme Court both acknowledges and applies the tripartite test contained in Memoirs, supra. See City of Blue Island v. DeVilbiss, 41 Ill.2d 135, 242 N.E.2d 761 (1969). City of Chicago v. Geraci, 46 Ill.2d 576, 264 N.E.2d 153 (1970).

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 stated:

  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
  ...

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