Carter v. Gautier, Civ. A. No. 2422.

• Decision Date: 15 September 1969
• Docket Number: Civ. A. No. 2422.
• Citation: 305 F. Supp. 1098
• Parties: Robert R. CARTER, Albert Weis, Andrew W. Nobles, Raymond A. Bedgood and Weis Drive-In Theater, Inc., a Georgia Corporation, Plaintiffs, v. Honorable Jack J. GAUTIER, District Attorney for the Macon Judicial Circuit, State of Georgia; Honorable J. E. Bloodworth, Sheriff of Bibb County, Georgia; Honorable Raymond L. Wilkes, Deputy Sheriff of Bibb County, Georgia; and Honorable Harry L. Harris, Deputy Sheriff of Bibb County, Georgia, Defendants.
• Court: U.S. District Court — Middle District of Georgia

305 F. Supp. 1098

Robert R. CARTER, Albert Weis, Andrew W. Nobles, Raymond A. Bedgood and Weis Drive-In Theater, Inc., a Georgia Corporation, Plaintiffs, v. Honorable Jack J. GAUTIER, District Attorney for the Macon Judicial Circuit, State of Georgia; Honorable J. E. Bloodworth, Sheriff of Bibb County, Georgia; Honorable Raymond L. Wilkes, Deputy Sheriff of Bibb County, Georgia; and Honorable Harry L. Harris, Deputy Sheriff of Bibb County, Georgia, Defendants.

Civ. A. No. 2422.

United States District Court M. D. Georgia, Macon Division.

September 15, 1969.

T. Reese Watkins, John D. Comer, Macon, Ga., for plaintiffs.

Wallace Miller, Jr., Jerome Strickland, Manley F. Brown, Macon, Ga., for defendants.

Before BELL, Circuit Judge, and BOOTLE and ELLIOTT, District Judges.

OPINION AND ORDER

BOOTLE, District Judge:

The plaintiffs are identified as follows: Weis Drive-In Theater, Inc. (the corporation) owns and operates a public drive-in movie theater near Macon, Georgia; Albert Weis is president of the corporation; Robert Carter is its Macon manager; Raymond A. Bedgood is the theater manager, and Andrew W. Nobles is the projectionist operating the movie projectors at the theater.

The defendants are sufficiently identified in the caption.

Prior to and on January 16, 1969, the corporation had acquired the right to exhibit or show a movie entitled "Vixen" and on January 16, 1969 all of the plaintiffs were in lawful possession of the film to said movie.

On the evening of January 16, 1969, defendants Wilkes and Harris, as Deputy Sheriffs, entered the projection room of said theater, arrested plaintiffs Nobles and Bedgood and seized said film. These actions were performed without a warrant having been previously issued, after said Deputies had conferred with the defendant Gautier, the District Attorney, and after said two Deputies had viewed approximately one-third of said film, and without any adversary hearing or proceeding having been previously conducted on the question of obscenity. These acts of the two Deputies were performed under the direction of and pursuant to instructions from defendant, Gautier, the District Attorney, and defendant Bloodworth, the Sheriff. All of the defendants acted in good faith in the premises.

The defendants have refused to return the file to the plaintiffs and two of the plaintiffs, Carter and Albert Weis, were subsequent to the film's seizure, indicted by the Bibb County Grand Jury for an alleged violation of Georgia Code Section 26-6301 in that they did possess and exhibit said obscene matter, namely the said film entitled "Vixen".

Predicating jurisdiction of this court upon 28 U.S.C.A. § 1343 and 42 U.S.C.A. 1983 and praying for a three-judge court under 28 U.S.C.A. § 2281 et seq., the plaintiffs attack the seizure of the film as illegal because of the absence of a prior to seizure adversary hearing on the question of obscenity, attack the constitutionality of two Georgia statutes 26-6301 and 27-301 upon grounds hereinafter stated, and pray for the following relief:

(1) the immediate return of the film,

(2) that defendant Gautier be enjoined from prosecuting the plaintiffs for the offense of possessing and exhibiting said film,

(3) that defendant Gautier be enjoined from using said film or any copies thereof as evidence in any criminal prosecution of the plaintiffs, and

(4) that Georgia Code Section 26-6301 as amended (Acts of the General Assembly of Georgia 1963, pages 78-79) be declared unconstitutional as violative of the First, Fourth and Fourteenth Amendments to the Constitution of the United States in that the standards set forth therein do not conform to the standards required by the First and Fourteenth Amendments to the Constitution of the United States in that among other reasons the statute omits the essential requirements that material to be obscene must be utterly without redeeming social value and in that such statute does not afford plaintiffs the equal protection of the laws of the State of Georgia and of the United States as required by the Fourteenth Amendment to the Constitution of the United States; and that Georgia Code Section 27-301 (Acts of the General Assembly of Georgia 1966, page 567) be declared to be unconstitutional as violative of said Amendments to the Constitution of the United States insofar as the same purports to authorize seizure of moving picture films without a prior adversary hearing having been held in which a determination had been made that such film is obscene.

The original complaint contained a prayer for damages but by amendment that prayer was deleted.

The parties have been heard through evidence in the form of depositions and through extensive written briefs and oral arguments and the case is now ready for decision.

Under the law as now established by the Supreme Court we are convinced that it is illegal for officers to seize a movie film unless and until there has been held a prior adversary judicial hearing upon the question of obscenity. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). By the First Amendment to the Constitution of the United States Congress is prohibited from making any law abridging the freedom of speech. The Fourteenth Amendment has the effect of placing a similar prohibition upon the States. Thornhill v. State of Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093, 1098 (1940). Thus all citizens of the United States are guaranteed freedom of expression. This freedom, of course, does not extend to obscenity. Obscenity is not protected because it is "utterly without redeeming social importance." Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 1507 (1957). The difficulty arises from the fact that what is obscene and what is not obscene is sometimes separated by a line which is "finely drawn." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460, 1472 (1958). Accordingly, "the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line." Bantam Books v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584, 590 (1963). The seizure of "Vixen" was constitutionally deficient because its owners and possessors were not first allowed an adversary hearing on the question of its obscenity. Cases so adjudicating following A Quantity of Copies of Books, supra, are fast accumulating. Among them, see Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir.1968).

This, of course, does not mean that courts, either Federal or State, desire to protect obscenity. It does mean that the Supreme Court has decided that lest the non-obscene and the constitutionally protected be suppressed it is better that some judicial officer—in cases arising as this one did we think preferably a State judicial officer—first after hearing competent evidence judicially determine that the challenged matter is obscene before its seizure. Nor is it any reflection upon law enforcement officers who deserve our thanks and support in greater measure than sometimes received to suggest that a judicial officer trained in the process of weighing evidence and making decisions is better equipped than they to pass upon the important and sometimes difficult question of obscenity. This is so because "The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L. Ed.2d 1460, 1472 (1958).

We must decline the request to enjoin the State Court prosecution and the request to enjoin the District Attorney from attempting to use the film or copies thereof as evidence. Our declination rests we think upon a firm foundation. We need not in this case explore fully the depth and breadth of 28 U.S. C.A. § 2283, which says:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. June 25, 1948, c. 646, 62 Stat. 968."

We need not here inquire as to the bare power of a court of the United States to enjoin proceedings in a State Court. It has been held that in certain narrowly defined areas such power exists. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965); Machesky v. Bizzell, 5 Cir.1969, 414 F.2d 283; Sheridan and Townley v. Garrison, 5 Cir.1969, 415 F.2d 699. Nor need we attempt here to answer the apparently heretofore unanswered question whether 42 U.S.C.A. § 1983 is an express exception to § 2283. Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715; Cameron v. Johnson, 390 U.S. 611, 613, 88 S.Ct. 1335, 20 L.Ed.2d 182, 186, Footnote 3 (1968). This anti-injunction statute, 28 U.S.C.A. § 2283, regardless of the ultimate extent of its reach is at least and unquestionably a rule of comity. It evidences the historic concern of Congress over "the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law * * *." Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138, 142 (1951). We may go back even further than that. There is a maxim that equity will not enjoin a criminal prosecution. The maxim obtains generally even as between courts of equity and courts of law performing under the same sovereign and it "summarizes centuries of weighty experience in Anglo-American law." Stefanelli, supra, at 120, 72 S.Ct. at 120. Moreover, this maxim "is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue." Stefanelli, supra, at 120, 72 S. Ct. at 120. For the purpose of this case we may lay to...