Astro Cinema Corp. Inc. v. Mackell

• Decision Date: 24 February 1970
• Docket Number: No. 462,Docket 34025.,462
• Citation: 422 F.2d 293
• Parties: ASTRO CINEMA CORP. INC., John Justin and Jess Rockman, Appellants, v. Thomas J. MACKELL, District Attorney of Queens County, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

422 F.2d 293 (1970)

ASTRO CINEMA CORP. INC., John Justin and Jess Rockman, Appellants, v. Thomas J. MACKELL, District Attorney of Queens County, Appellee.

No. 462, Docket 34025.

United States Court of Appeals, Second Circuit.

Argued January 15, 1970.

Decided February 24, 1970.

Eleanor Jackson Piel, New York City, for appellants.

Mortimer Sattler, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen. of the State of New York, for appellee.

Before KAUFMAN and FEINBERG, Circuit Judges, and PALMIERI,^* District Judge.

IRVING R. KAUFMAN, Circuit Judge.

On May 7, 1969, acting pursuant to a warrant issued earlier the same day, police seized the motion picture film "The Odd Triangle" and arrested the projectionist and threatre manager at the Hollis Cinema Theatre, in Queens, New York, charging them with violation of New York's obscenity statute, Penal Law, McKinney's Consol.Laws, c. 40, § 235.05. Appellants, Astro Cinema Corp. Inc., owner of the theatre, John Justin and Jess Rockman, company president and theatre manager, respectively, brought an action in federal court, and moved to convene a three-judge district court to declare the New York obscenity statute unconstitutional, to enjoin State prosecutions under it and to order return of the film. Judge Dooling denied the motion, but also denied a cross-motion to dismiss, reading plaintiff's paragraph 5 as attacking lawless local action, a matter appropriate for a one-judge court.

This case is almost precisely on all fours with Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969), which was not decided until after the able district judge entered the judgment below. There, as here, the judicial officer who issued the warrant first viewed the very same film, and determined to his satisfaction that it was obscene. In Bethview, as here, apparently only one print of the film was seized. There, as here, obscenity was not in issue; the theatre owner claimed only that he should have been afforded an adversary hearing before the film was seized. The relief sought by the theatre owner in Bethview — return of the film — was granted; we reach the same result here on that portion of the prayer for relief. However, in view of the other claims for relief urged, as well as the uncertainty that has arisen over the proper procedures to be followed in seizures of items allegedly protected by the First Amendment, we believe a more extended discussion appropriate.

No serious dispute exists over the proposition that the First Amendment protects motion pictures as well as books, newspapers, and the like. See, e. g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). The difficulty has been in transferring doctrines announced in cases that frequently involve printed material to the often different factual situations presented when films are seized. Several general principles may, however, be distilled from recent Supreme Court opinions. Pursuant to a vague warrant, issued ex parte, police in Missouri seized approximately 11,000 copies of 280 different publications. In striking down the seizure, the Court found that the warrants issued left too broad a discretion in the police officers who executed the warrant, for they were permitted, in effect, to seize anything they considered obscene. Marcus v. A Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The Court renounced the principle

"that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene." 367 U.S. at 735-736, 81 S. Ct. at 1718. See also A Quantity of Books v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964).

Marcus instructed that seizures of allegedly obscene material before an adversary hearing on obscenity would be struck down if they were overbroad; A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) condemned seizure of all copies of a relatively narrow class of publications, pursuant to an ex parte order by a judge who had read several exemplars. Where Marcus concentrated on the breadth of the seizure, A Quantity of Books focused on its effect on a single class of publications; in both cases the Court condemned substantial restraints prior to an adversary hearing on the rationale that the procedures employed did not afford "a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public." 378 U.S. at 211, 84 S.Ct. at 1726, quoting 367 U.S. at 736, 81 S.Ct. 1708. See also Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); accord Teitel Film Corp. v. Cusak, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed. 2d 966 (1968) (per curiam).

Both Marcus and A Quantity of Books dealt with publications; in each the police seized so many of one variety, or so many varieties, that they restrained communication of the material contained therein to a substantial audience. The State contends that seizure of this single film is clearly distinguishable; rather than seizing all copies from the distributor, they argue, they took only the one copy that he was prepared to show, and they are holding it only for the purpose of introducing it in evidence at a criminal prosecution of the theatre manager and the projectionist. The difficulty with the State's position, however, is that it does not distinguish, as we did in Bethview, a single copy of a book from a single copy of a film. The restraint involved in seizing a single copy of a book is exceedingly small; the dealer will usually have additional copies that can be sold. Indeed, as is often the case, it is far easier for the police to purchase one copy of the charged writings, and then introduce it into evidence.

A film, however, is not directed to a single purchaser; it is aimed at all those who would be in the audience on the days that the film is scheduled to be shown. We are not told the size of the Hollis Cinema Theatre; but assuming it to have been no larger than the Bethview Theatre (300 seats), it could have had a potential audience of 4000 persons a week "assuming half of the seats to be occupied for four showings of a film each day for a week." See Bethview Amusement Corp. v. Cahn, 416 F.2d 410, 412 (2d Cir. 1969). Preventing this number of persons from viewing a film is certainly equivalent to seizing all copies of a book from the newsdealers involved in A Quantity of Books; in the functional terms we must use to balance the interest in suppressing obscenity against that of ensuring distribution of nonobscene views, the restraint here and in Bethview is, if anything, more substantial than the seizure of less than 2000 books. It is no answer to urge, as the State does, that the Hollis Cinema might have been able to procure another copy of the film; by the same token, another shipment of the magazines or books in Marcus and A Quantity of Books might have been obtained from the distributor or publisher. The point in each instance is that if the State wishes to interfere substantially with distribution of films or books, it must first provide, as we have been instructed, an adversary hearing capable of affording a "reasonable likelihood" that nonobscene films or books will reach the public. Marcus v. A Search Warrant of Property, 367 U.S. 717, 736, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); A Quantity of Books v. Kansas, 378 U.S. 205, 211, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964).

In United States v. Wild and Corrado, (2d Cir. Oct. 29, 1969) 422 F. 2d 34, 39, rehearing denied (2d Cir. Feb. 2, 1970), allegedly obscene color slides were seized upon the arrest of defendants after indictment, but without a prior adversary hearing; some of these slides were introduced into evidence in the subsequent criminal trials of defendants for violations of 18 U.S.C. § 1461. On appeal from conviction, defendants argued that "any seizure" of allegedly obscene material — even a sample seized for evidentiary purposes as incident to a lawful arrest — is illegal if not preceded by an adversary hearing and therefore the convictions had to be reversed. The panel in Wild rejected that contention. On rehearing, the panel made clear that because the argument was "belated" and the record "inadequate," it specifically did not address itself to the further argument that the seizure of the slides in that case was so vast as to be similar in constitutional effect to the "massive seizures" of books involved in Marcus and A Quantity of Books. United States v. Wild and Corrado, supra, 422 F.2d at 34, 39. We view Wild as merely saying that a particularized search for specific samples of slides or publications, designed to provide evidence for a subsequent obscenity prosecution, and not substantially restraining distribution of the material involved, does not violate Marcus or A Quantity of Books. See United States v. Marti and Saks, 421 F. 2d 1263 (2d Cir. Feb. 3, 1970). In any event, we find it clearly inapplicable to the seizure of a film which is to be shown to a large public audience, which we hold must be preceded by an adversary hearing. We are buttressed in our view by 208 Cinema, Inc. v. Vergari, Docket No. 33997 (2d Cir., reversed in open court Oct. 9, 1969), a case, likeBethview, involving seizure of a film, and in which we ordered the film returned. Accord, Tyrone Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Cambist Films, Inc. v. Illinois, 292 F.Supp. 185 (N.D.Ill.1968); Cambist Films, Inc. v. Tribell, 293 F. Supp. 407 (E.D.Ky.1968). But see Commonwealth v. State Amusement Corp., 69 Mass.Adv.Sh. 1003, 248 N.E.2d 497 (1969), criticized in Monaghan, First Amendment "Due Process," 83 Harv.L. Rev. 518, 535 n. 65 (1970).

While the weight of logic and authority clearly direct us to order return of the film to those from whom it...