Paper Back Mart v. City of Anniston, Ala., Civ. A. No. 75-G-2075-E.

Decision Date26 January 1976
Docket NumberCiv. A. No. 75-G-2075-E.
Citation407 F. Supp. 376
PartiesThe PAPER BACK MART and Virgo Enterprises, Inc., a corporation, Plaintiffs, v. CITY OF ANNISTON, ALABAMA, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Robert M. Shipman, John S. Somerset, Shipman & Somerset, Huntsville, Ala., for plaintiffs.

Richard B. Emerson, Emerson & Galbraith, Anniston, Ala., for defendants.

MEMORANDUM OPINION

GUIN, District Judge.

The complaint in this cause prays for declaratory and injunctive relief in regard to the ordinance of the City of Anniston, Alabama, Number 75-0-50, dated October 28, 1975, and effective November 3, 1975. The court has conducted a preliminary injunction hearing, and after due notice to the parties, ordered that the trial of the action on the merits be advanced and consolidated with the hearing of the motion for preliminary injunction, in accordance with Rule 65(a)(2), Federal Rules of Civil Procedure.

The complaint challenges the constitutionality of the above-cited ordinance, making it a criminal act to sell or distribute any obscene matter. Plaintiff asks for a declaratory judgment that the ordinance is unconstitutional and to enjoin the enforcement of said ordinance.

The complaint presents, then, a simple question for the court's determination: Is this ordinance unconstitutional? The complaint alleges that the ordinance, as worded, is an unconstitutional prior restraint upon the first, fourth and fifth amendment rights of the petitioners in that the ordinance places the burden of determining what matter is obscene and what matter is not obscene upon petitioners. Plaintiffs further complain that the ordinance is void for vagueness, for "overbreath" (sic), and because the "statute sets forth standards at variance with and insufficient for those minimum standards prescribed by the United States Supreme Court in their rulings in First Amendment matters."

The United States Supreme Court in 1973 made its most significant contribution to the developing law concerning the first amendment status of obscene material. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Court set out its most instructive definition of obscene material. Chief Justice Burger, joined by Justices White, Blackmun, Powell and Rehnquist, stated:

Today, for the first time since Roth . . . a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. 413 U.S. at 29, 93 S.Ct. at 2617.

After noting the danger of regulating any form of expression, the Chief Justice wrote:

We now confine the permissible scope of such obscenity regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to words which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
. . . . .
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 24, 25, 93 S.Ct. at 2615.

The Court established basic guidelines for the trier of fact in determining whether any particular matter is obscene. The guidelines are as follows:

. . . (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interests, citation omitted; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
. . . . .
If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. . . .
413 U.S. at 24, 25, 93 S.Ct. at 2615.

The court in Miller, therefore, established a basic framework for the drafting of statutes or ordinances dealing with obscene materials. Section 3 of City of Anniston Ordinance Number 75-0-50 provides as follows:

It shall be unlawful for any person, with knowledge of its contents, in this City or the police jurisdiction thereof to prepare, sell, exhibit, or distribute or to give away or offer to give away, or to have in his possession with intent to sell, exhibit, distribute, give away, or offer to give away, any obscene matter.

The ordinance defines obscene in the following manner:

"Obscene" means (1) that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest in sex; (2) that the work depicts or describes, in a patently offensive way, sexual conduct hereby defined as (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or (b) patently offensive representations or descriptions of masturbation, excretory functions, or lewd exhibitions of the genitals; and (3) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This court finds that the ordinance in question is in accordance with both the letter and the spirit of the guidelines set out in Miller v. California, supra. This court does not believe that petitioners' attack on the ordinance as unconstitutionally vague or overly broad can be sustained. The ordinance's definition of "obscene" encompasses those elements recognized by the Supreme Court as constitutional. The definition does not go beyond the Miller recommendations. As stated by the Court:

We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. 413 U.S. at 27, 93 S.Ct. at 2616.

The ordinance in question gives the petitioners the same notice that a reading of Miller would provide. The ordinance does not threaten petitioners with any potential for criminal liability greater than a reading of Miller would indicate.

This court concludes that since the ordinance in question so closely follows the guidelines set out in Miller v. California, supra, there is no substance to allegations that the ordinance is vague or overly broad. Plaintiffs' contentions that the ordinance constitutes a prior restraint upon first amendment rights are equally unsustainable. The court finds the following language in the case of Rage Books, Inc. v. Leary, 301 F.Supp. 546 (S.D.N.Y.1969), instructive on plaintiffs' contentions that this ordinance constitutes prior restraint:

The Supreme Court has held that confiscatory seizure of substantial quantities of books or other matter is not permissible unless preceded by an adversary judicial determination of the obscenity of the material. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). See, United States v. Brown, 274 F.Supp. 561 (S.D.N.Y.1967).
An arrest and an accompanying seizure of specimens only of the allegedly obscene materials are another matter entirely. No decision has thus far prohibited the normal police function of effecting an arrest and the seizure of sample evidence of a suspected crime being committed. Such an arrest and a limited supporting seizure are not tantamount to a prior restraint since the jeopardy faced is essentially the restraint of obscenity law itself in respect of the remainder of the wares on
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