Chemline, Inc. v. City of Grand Prairie

• Citation: 364 F.2d 721
• Decision Date: 08 August 1966
• Docket Number: No. 22254.,22254.
• Parties: CHEMLINE, INC., Appellant, v. CITY OF GRAND PRAIRIE, C. P. Waggoner, H. H. Milling, Aubrey Vickers, James Dee, Roy McGlothin and Fred Conover, Appellees. CITY OF GRAND PRAIRIE, C. P. Waggoner, H. H. Milling, Aubrey Vickers, James Dee, Roy McGlothin and Fred Conover, Appellants, v. CHEMLINE, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

364 F.2d 721 (1966)

CHEMLINE, INC., Appellant, v. CITY OF GRAND PRAIRIE, C. P. Waggoner, H. H. Milling, Aubrey Vickers, James Dee, Roy McGlothin and Fred Conover, Appellees.

CITY OF GRAND PRAIRIE, C. P. Waggoner, H. H. Milling, Aubrey Vickers, James Dee, Roy McGlothin and Fred Conover, Appellants, v. CHEMLINE, INC., Appellee.

No. 22254.

United States Court of Appeals Fifth Circuit.

July 6, 1966.

Rehearing Denied August 8, 1966.

Grover Hartt, Jr., Tobolowsky, Hartt, Schlinger & Blalock, Dallas, Tex., for appellant-appellee.

Jerry D. Brownlow, Grand Prairie, Tex., for appellees-appellants.

Before RIVES, BROWN and MOORE,^* Circuit Judges.

RIVES, Circuit Judge:

Chemline, Inc., owned by Mr. and Mrs. Leroy Fisher, operates two drive-in motion picture theaters in Grand Prairie, Texas, located on parts of the same property between U.S. Highway 80 on the north and Jefferson Boulevard on the south. Grand Prairie is a home rule city, abutting on its eastern limits the City of Dallas. The two theaters are known as the Twin Drive-In Theater. Twin West exhibits motion pictures suitable for general family viewing. Twin East exhibits so-called "art pictures." Mrs. Fisher testified that these include pictures where the nude female body is exhibited to the patrons of the theater as well as being visible from the public highways and streets. They include also movie screen scenes visible to the audience and to the people on the public highways and streets in which a female performer reveals her uncovered breasts. At Twin East only such so-called "adult" films are shown, which Mrs. Fisher conceded are not suitable to show to children.¹

In 1963 Mr. and Mrs. Fisher were charged with the exhibition of an "obscene" motion picture in violation of Vernon's Ann.Texas Penal Code, Art. 527, a copy of which is attached as Exhibit A to this opinion. The case was dismissed because of the exemption written into the act, as follows:

"The provisions of this Act shall not apply to any motion pictures produced or manufactured as commercial motion pictures which (1) have the seal under the Production Code of the Motion Picture Association of America, Inc.; or (2) legally move in interstate commerce under Federal Law; or (3) are legally imported from foreign countries into the United States and have been passed by a Customs Office of the United States Government at any port of entry."

After this dismissal, various groups of citizens in Grand Prairie circulated petitions which read substantially as follows:

"We, the undersigned, do hereby petition the City of Grand Prairie to take necessary action to prohibit the Twin Drive-In Theatres located between Highway 80 and Jefferson Boulevard in east Grand Prairie from showing lewd, obscene, offensive pictures. These pictures are in full view of all persons using the above mentioned traffic routes."

Thereafter, the individual defendants (with the exception of Fred Conover, the Chief of Police), acting as the mayor and city council of Grand Prairie, passed two ordinances numbered 1621 and 1622 A copy of each of these ordinances is attached as Exhibits B and C, respectively, to this opinion.

Chemline, Inc. filed its complaint against Grand Prairie, its Mayor, City Councilmen, and Chief of Police, seeking to enjoin the enforcement of both ordinances, principally upon the ground that they abridge First Amendment freedoms of speech and expression. Grand Prairie and the individual defendants defended, seeking to enforce said ordinances under the general police power of the City and because they claim that the operation of Twin East presents a clear and present danger to the citizens of Grand Prairie.

After a hearing, the district court permanently enjoined the defendants from enforcing paragraphs VIa and VIII of Ordinance 1621. The defendants had earlier admitted that the standards set forth in VIa are too vague and had agreed to abandon that subdivision of the ordinance. Paragraph VIII reads as follows:

"Unlawful to Exhibit Nude or Seminude Pictures on Theatre Screens within View of Public Street or Highway. It shall be unlawful for any licensee, ticket seller, ticket taker, usher, motion picture machine operator and any other person connected with or employed by any licensee to show or exhibit at a theater in the City or to aid or assist in such exhibition any motion picture, slide, or other exhibit which is visible from any public street or highway in which the bare buttocks or the bare female breasts of the human body are shown or in which striptease, burlesque or nudist-type scenes constitute the main or primary material of such movie, slide or exhibit."

The district court denied Chemline's prayer for an injunction against the enforcement of the remainder of Ordinance 1621 and against the enforcement of Ordinance 1622. The City and the individual defendants appeal from that part of the judgment enjoining them from enforcing paragraph VIII of Ordinance 1621. Chemline appeals from that part of the judgment denying its prayer for an injunction against the enforcement of the remainder of Ordinance 1621 and against the enforcement of Ordinance 1622.

CITY'S APPEAL

As has been stated, the appeal of the City and its officers is from that part of the final judgment which enjoins them from enforcing paragraph VIII of Ordinance 1621, which has been quoted.

The City concedes that, "The guarantees of free speech and press set by the First Amendment to the Constitution of the United States and protected by the Fourteenth Amendment to the Constitution of the United States was extended to the motion picture industry in Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 77 777, 96 L.Ed. 1098." It further concedes that the pictures and scenes to which the quoted paragraph of the ordinance applies may not necessarily be "obscene" as defined by the Supreme Court. It emphasizes, however, that the paragraph applies only when the exhibit is visible from a public street or highway, and insists that the paragraph is a reasonable restriction necessary to safeguard the public interest.

The district court held that paragraph VIII violates the First Amendment. It concluded that there was no evidence that the average person from the highway viewing pictures prohibited by the paragraph would be invited to antisocial conduct, that parking cars on the shoulder of the highway in violation of the no parking ordinance presents no clear and present danger, that the evidence of accidents and of possible traffic hazards in the vicinity of Twin East is insufficient to show such a threat to public safety as to create a clear and present danger. The district court defined the test of clear and present danger as follows: "In order to show a clear and present danger, the substantive evil must be extremely serious, and the degree of imminence extremely high before the freedom guaranteed by the First Amendment will be interfered with. Such danger is not shown to exist requiring the enactment of Article VIII of Ordinance 1621."

We think that the district court has fallen into the error of applying the term "clear and present danger" as a mechanical test without regard to the context of its application. See American Communications Association, CIO v. Douds, 1950, 339 U.S. 382, 394, et seq., 70 S.Ct. 674, 94 L.Ed. 925.

It is almost self-evident that a city is well within its legitimate police powers in enacting reasonable ordinances to protect children in its public streets and highways from viewing "bare buttocks" or "bare female breasts" or "striptease, burlesque or nudist-type scenes which constitute the main or primary material." The City introduced witnesses to show that the Twin East screen was clearly and plainly visible for approximately nine-tenths of a mile on U. S. Highway 80, and for about three-tenths of a mile on Jefferson Boulevard. Mr. Burr, Lieutenant of Police, testified to a series of moral offenses on the premises, including the forcible rape of a fourteen-year-old girl and teenagers arrested for illegal possession of alcohol, of lewd material, and caught in the act of masturbation. Dr. Glenn, a psychiatrist, testified as to the harmful effects on children viewing such scenes from the highways.

"A. * * * For instance, a young child who is being brought up in a rather strict home with certain standards that prohibit the discussion of this kind of sexual stimulation — even in the relatively short time that the child was exposed to this might arouse considerable question in their mind and a great deal of concern, and this would range from the age of about four on up to about 12 or 14. By that time they most likely already know most of the facts.

"Q. How might this concern or disturbance manifest itself in children in this age classification?

"A. Well, there are many ways it could manifest itself. It could create doubt in their minds about what their parents are telling them, why haven\'t my parents told me about this kind of thing, and weaken the parental structure. It could encourage fantasies along this line which would be viewed as very forbidden, and generally, a rather undesirable conflict might develop in the child.

* * * * * *

"A. * * * I think if you get a child who has already a somewhat shakey environment and who already has considerable problems in their sexual fantasy area, it might aggravate this quite considerably.

* * * * * *

"Q. What about the adolescent years, Doctor, what effect will we see from the exhibition of this type of thing during the adolescent years?

"A. Shall we say it might heat passions that were somewhat latent or not very active, to try and reproduce what was being shown on the screen."

Lieutenant De Wolfe, the police officer in charge of traffic, testified that he had found it impossible to effectively enforce parking regulations adjacent to the theater.

"Primarily, because of the frequency of the occurrence of parking violations in that area and the shortage of police manpower in the City

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