306 F.Supp. 1363 (D.Mass. 1969), Civ. A. 69-665, Karalexis v. Byrne

Docket Nº:Civ. A. 69-665
Citation:306 F.Supp. 1363
Party Name:Karalexis v. Byrne
Case Date:November 28, 1969
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 1363

306 F.Supp. 1363 (D.Mass. 1969)

Serafim KARALEXIS et al., Plaintiffs,

v.

Garrett H. BYRNE, as he is the duly elected District Attorney for Suffolk County, City of Boston, Commonwealth of Massachusetts, Defendant.

Civ. A. No. 69-665-J.

United States District Court, D. Massachusetts

Nov. 28, 1969

Stay Granted Dec. 15, 1969.

See 90 S.Ct. 469.

Page 1364

Herbert Swartz, Mack Roberts, Brookline, Mass., for plaintiffs.

Robert H. Quinn, Atty. Gen., Theodore Glynn, Jr., Ruth Abrams, Lawrence P. Cohen, Asst. Attys. Gen., Louis M. Nordlinger, Boston, Mass., for defendant.

Alan M. Dershowitz, Cambridge, Mass., for intervenor, Grove Press Inc.

Before ALDRICH, Circuit Judge, and JULIAN and PETTINE, District judges.

ALDRICH, Circuit Judge.

This is a three-judge district court action in which a frontal attack is made upon a state obscenity statute, based upon the Court's recent decision in Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. In that case the Court reversed a state conviction for possession of a concededly obscene moving picture film, found in the home of the defendant. We are asked to rule that this decision extends to a case where the possessors permitted a number of consenting adults or, more exactly, paying adult members of the public, to view their possibly obscene picture in a moving picture house.

Briefly, the facts are these. Plaintiffs Karalexis et al. are the owners and operators of a moving picture theatre which has been engaged in showing a film, owned and leased by Grove Press, Inc., 1 entitled 'I Am Curious (Yellow).' The named defendant is the county district attorney who has charged plaintiffs

Page 1365

with violation of Mass.G.L. c. 272 § 28A 2 as a result of their exhibiting the film, but notice has been given, 28 U.S.C. § 2284, and an assistant attorney general has conducted the defense throughout. Plaintiffs seek a declaration that the statute is unconstitutional and an injunction against prosecution thereunder. Because of the fact that the original indictments were defective, the proceedings sought to be enjoined postdate the assumption of jurisdiction by this court, and no question arises under 28 U.S.C. § 2283, the anti-injunction, or what is sometimes called the comity, statute.

Defendant's broad motion to dismiss tests the substance of plaintiffs' case. Our present question, however, is only whether we shall issue a temporary injunction pending final disposition, there being possible reasons to withhold the making of a final decision, which we have not yet fully explored. Alternatively, there is the question whether we should abstain altogether, without granting temporary relief. With respect to the first question the issues, of course, are whether there is a probability that plaintiffs will ultimately prevail, Automatic Radio Mfg. Co. v. Ford Motor Co., 1 Cir., 1968, 390 F.2d 113, cert. denied 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653, and the adequacy of the remedy at law.

The following facts appear by stipulation of counsel or otherwise. Plaintiffs have sufficiently indicated to the viewing public the possible offensiveness of the film, so that no patron will be taken unawares and his sensibilities offended. On the other hand, the film is not advertised in any pandering manner within the stricture of Ginsburg v. United States, 1966, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31. Finally, it is conceded that the theatre is policed, so that no minors are permitted to enter.

For purposes of this case we assume that the film is obscene by standards currently applied by the Massachusetts courts. 3 In this connection we note that the Superior Court of Massachusetts, in the recent case of Commonwealth v. Karalexis, has found that 'the dominant theme of the film * * * is its appeal to prurient interest in sex * * *. (The film) is patently offensive to the average person and an affront to community standards * * * (It) is utterly without redeeming social value.' Except insofar as it found statements in the opinion favorable to its conclusions in other respects the Superior Court disposed of Stanley v. Georgia by stating it to be 'irrelevant.'

In Stanley Mr. Justice Marshall wrote the opinion of the Court in which four others joined. Mr. Justice Black concurred in the result because, in his mind, no case-by-case reasoning is needed in the area of obscenity; all is permissible. 4 The remaining three justices concurred

Page 1366

on Fourth Amendment grounds, 5 stating that the obscenity question should not have been reached. The Court held that in certain circumstances possession of a moving picture film is constitutionally protected even though by contemporary standards the film is obscene. We do not consider this irrelevant.

The question is, how far does Stanley go. Is the decision to be limited to the precise problem of 'mere private possession of obscene material,' 394 U.S. at 561, 89 S.Ct. at 1245; is it the high water mark of a past flood, or is it the precursor of a new one? Defendant points to the fact that the Court in Stanley stated that Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, was 'not impaired by today's holding,' and in the course of its opinion recognized the state's interest there upheld in prohibiting public distribution of obscenity. Yet, with due respect, Roth cannot remain intact, for the Court there had announced that 'obscenity is not within the area of constitutionally protected speech or press,' 354 U.S. at 485, 77 S.Ct. at 1309, 6 whereas it held that Stanley's interest was protected by the First Amendment, and that the fact that the film was 'devoid of any ideological content' was irrelevant. 394 U.S. at 566, 89 S.Ct. at 1248.

Of greater importance, a need for affirmative proof that obscenity raises a 'clear and present danger of antisocial conduct or will probably induce its recipients to such conduct,' rejected in Roth, was stated in Stanley to have been rejected in the area of 'public distribution.' The obverse is apparent. Of necessity the Stanley court held that obscenity presented no clear and present danger to the adult viewer, or to the public as a result of his exposure. Obscenity may be offensive; it is not per se harmful. 7 394 U.S. at 567, 89 S.Ct. 1243. Had the Court considered obscenity harmful as such, the fact that the defendant possessed it privately in his home would have been of no consequence.

In recognizing that public distribution differed from private consumption, the Court in Stanley gave two examples. In the case of public distribution, 'obscene material might fall into the hands of children * * * or * * * it might intrude upon the sensibilities or privacy of the general public.' 394 U.S. at 567, 89 S.Ct. at 1249. To these examples, which were the extent of the Court's discussion, it can be said, equally with Stanley, 'No such dangers are present in this case.'

We confess that no oracle speaks to Karalexis unambiguously. Nonetheless, we think it probable that Roth remains intact only with respect to public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned. It is difficult to think that if Stanley has a constitutional right to view obscene films, the Court would intend its exercise to be only at the expense of a criminal act on behalf of the only logical source, the professional supplier. 8 A constitutional

Page 1367

right to receive a communication would seem meaningless if there were no coextensive right to make it. Cf. Griswold v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. If a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theatre or library. We see no reason for saying he must go alone. 9

So much for the probability of success. We do not agree with defendant's contention that there is no indication of irreparable injury. Even if money damages could be thought in some cases adequate compensation for delay, this defendant will presumably be immune. We agree with plaintiffs that the box office receipts, if there is a substantial delay, can be expected to be smaller. A moving picture may well be a diminishing asset. 10 It has been said, also, that in assessing injury the chilling effect upon the freedom of expression of others is to be considered. See Dombrowski v. Pfister, 1965, 380 U.S. 479, 486-489, 85 S.Ct. 1116, 14 L.Ed.2d 22.

This leads us to defendant's contention that we should, nevertheless, abstain until the Massachusetts Supreme Judicial Court has considered this question, since plaintiffs can raise it in their appeal from their Superior Court convictions. However, if our interpretation of Stanley is correct, we find it difficult to think the Massachusetts statute susceptible to a construction which would save it from overbroadness. Hence we must regard abstention as improper. Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. In the field where Congress has established a three-judge district court, abstention may still be warranted if there is a reasonable likelihood that the state court may construe its statute so as to avoid constitutional issues, but abstention is not appropriate simply to allow the state court to be the one to decide the statute's basic conflict with the federal constitution. 11

We do understand, however, certain apprehensions voiced by the defendant. We note, accordingly, that this is a decision of probability, not a final holding that the Massachusetts statute is unconstitutional. Much less is it a decision that one who distributes to children, or who creates a clear public nuisance, has standing to raise the contention that the statute is overbroad. 12 The preliminary

Page 1368

injunction presently to issue will be restricted to, and conditioned upon, plaintiffs' adherence to the restrictions described...

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39 practice notes
  • 18 Cal.App.3d 172, 19410, People v. Stout
    • United States
    • California California Court of Appeals
    • June 18, 1971
    ...Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969); United States v. Lethe, 312 F.Supp. 421 (E.D.Cal.1970); and Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969). The decisions of lower federal courts are, of course, not binding on either the California Supreme Court or this court (People ......
  • 50 F.R.D. 34 (S.D.N.Y. 1970), 69 Civ. 3541, United States v. One (1) Carton Containing: 35mm Motion Picture Film Entitled "Venus in Furs"
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • February 10, 1970
    ...States v. 37 Photographs, 309 F.Supp. 36 (C.D.Calif., 1970), to declare Section 305 unconstitutional. Cf. also Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass., 1969). A three-judge Court in this district is presently considering this very claim in a case entitled United States v. Various Arti......
  • 312 F.Supp. 496 (E.D.Wash. 1970), 3300, Grove Press, Inc. v. Brockett
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • April 1, 1970
    ...1116, 14 L.Ed.2d 22 (1965), would perhaps make unnecessary the decision of a difficult constitutional issue, cf. Karalexis v. Byrne, 306 F.Supp. 1363 (D. Mass. 1969), I believe abstention is the proper course. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.......
  • 310 F.Supp. 308 (D.Mass. 1970), Misc. Civ. 70-7, Palladino v. McBrine
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • March 6, 1970
    ...is a legal question and must be made by the Court based upon an examination of the material itself.' [3] See Karalexis v. Byrne, 306 F.Supp. 1363, D.C.Mass., 1969, (dissenting opinion)....
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39 cases
  • 18 Cal.App.3d 172, 19410, People v. Stout
    • United States
    • California California Court of Appeals
    • June 18, 1971
    ...Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969); United States v. Lethe, 312 F.Supp. 421 (E.D.Cal.1970); and Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969). The decisions of lower federal courts are, of course, not binding on either the California Supreme Court or this court (People ......
  • 50 F.R.D. 34 (S.D.N.Y. 1970), 69 Civ. 3541, United States v. One (1) Carton Containing: 35mm Motion Picture Film Entitled "Venus in Furs"
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • February 10, 1970
    ...States v. 37 Photographs, 309 F.Supp. 36 (C.D.Calif., 1970), to declare Section 305 unconstitutional. Cf. also Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass., 1969). A three-judge Court in this district is presently considering this very claim in a case entitled United States v. Various Arti......
  • 312 F.Supp. 496 (E.D.Wash. 1970), 3300, Grove Press, Inc. v. Brockett
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of Washington
    • April 1, 1970
    ...1116, 14 L.Ed.2d 22 (1965), would perhaps make unnecessary the decision of a difficult constitutional issue, cf. Karalexis v. Byrne, 306 F.Supp. 1363 (D. Mass. 1969), I believe abstention is the proper course. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.......
  • 310 F.Supp. 308 (D.Mass. 1970), Misc. Civ. 70-7, Palladino v. McBrine
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • March 6, 1970
    ...is a legal question and must be made by the Court based upon an examination of the material itself.' [3] See Karalexis v. Byrne, 306 F.Supp. 1363, D.C.Mass., 1969, (dissenting opinion)....
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