Penthouse International, Ltd. v. McAuliffe

• Citation: 436 F. Supp. 1241
• Decision Date: 24 August 1977
• Docket Number: 77-1240A,77-1268A,Civ. A. No. 77-1238A,77-1277A and 77-1276A.
• Parties: PENTHOUSE INTERNATIONAL, LTD. v. Hinson McAULIFFE. HUSTLER MAGAZINE, INC. v. Hinson McAULIFFE. HIGH SOCIETY MAGAZINE, INC. v. Hinson McAULIFFE. MONTCALM PUBLISHING CORP. v. Hinson McAULIFFE. EASTWAY ENTERPRISES, LTD. v. Hinson McAULIFFE.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

436 F. Supp. 1241

PENTHOUSE INTERNATIONAL, LTD. v. Hinson McAULIFFE.

HUSTLER MAGAZINE, INC. v. Hinson McAULIFFE.

HIGH SOCIETY MAGAZINE, INC. v. Hinson McAULIFFE.

MONTCALM PUBLISHING CORP. v. Hinson McAULIFFE.

EASTWAY ENTERPRISES, LTD. v. Hinson McAULIFFE.

Civ. A. Nos. 77-1238A, 77-1240A, 77-1268A, 77-1277A and 77-1276A.

United States District Court, N. D. Georgia, Atlanta Division.

August 24, 1977.

COPYRIGHT MATERIAL OMITTED

C. B. Rogers, Rogers & Hardin, Atlanta, Ga., for Hinson McAuliffe.

John Moore, Charles R. Hadaway, Atlanta, Ga., for Montcalm Pub. Co., Eastway Enterprises, Ltd. and High Society Magazine, Inc.

Herald Price Fahringer, Jr., Paul J. Cambria, Jr., Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., for Hustler Magazine, Inc.; Foy R. Devine, Fierer & Devine, Atlanta, Ga., of counsel.

James L. Paul, Gambrell & Mobley, Atlanta, Ga., for Penthouse Intern., Ltd.; Norman Roy Grutman, New York City, of counsel.

ORDER

RICHARD C. FREEMAN, District Judge.

These are actions brought for declaratory and preliminary as well as permanent injunctive relief¹ concerning the consequences of several arrests by the Solicitor General of Fulton County, Georgia, pursuant to Ga.Code § 26-2101,² the Georgia obscenity statute. Plaintiffs are publishers of several monthly magazines³ whose primary local distributor and several local retailers were arrested by agents of defendant McAuliffe between July 18, 1977 and July 29, 1977.⁴ Plaintiffs' substantive claims arise under the First and Fourteenth Amendments to the United States Constitution as well as under 42 U.S.C. § 1983. The jurisdiction of this court is properly predicated upon 28 U.S.C. §§ 1331 and 1343(3).⁵

Although varying somewhat in nonessential respects, each complaint avers in essence that through a "program" of "bad faith and harassment",⁶cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) consisting of arrests, repeated visits to retailers, and threatening comments in the press, defendant avoided a binding adjudication among all of the allegedly injured parties concerning the obscenity vel non of the subject publications while erecting a system of prior restraint which was as insidious and effective as if the subject publications had been seized by authorities for the purpose of destruction. See Marcus v. Search Warrants of Property, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Plaintiff Penthouse International, Ltd. hereinafter "Penthouse" also moves this court for a declaration that the August, 1977 issue⁷ of Penthouse is not obscene. Prior to the trial of these actions, the parties entered into several stipulations restricting the scope of the issues presently before this court. Those stipulations are: (1) that the instant plaintiffs are not presently the subject of any pending proceeding in state court; (2) that an arrestee apprehended during August, 1977, under Ga.Code § 26-2101, who has put up bond and has been released from custody would not come to trial within a six to eight week period following his arrest; (2) that a person arrested under the foregoing circumstances who remained in jail without bond would be tried within one week if a jury was available; (4) that since no criminal trials are held in Fulton County State Court during July or August of 1977, a person charged in June for violation of Ga.Code § 26-2101 would be tried in September; and (5) that the Fulton County Solicitor's office maintains no written procedures with respect to prosecutions under Ga.Code § 26-2101 and no written record concerning complaints about allegedly obscene material. Before proceeding to the merits of plaintiffs' claims, a recapitulation of the operative surrounding factual circumstances is warranted.

Mr. McAuliffe testified that for some time prior to the making of any arrests by his office, he had received complaints from persons using Hartsfield International Airport that "obscene" materials were being vended at the airport newsstands. On July 18, 1977, Mr. Ira W. Brown, an officer from the solicitor's office, and Mr. C. A. Smith, a Fulton County Deputy Sheriff, proceeded to Hartsfield International Airport where they observed two of the nine newsstands selling "Hustler", "High Society", "Oui", "Genesis", "Playboy" and other magazines presumably of a similar character. Mr. Brown bought a "Hustler" magazine from cashier Debbie Hazelrigs and asked her for the manager's name. Ms. Hazelrigs stated that a Mr. Poss was the manager of the stand but that he was away from his desk. Mr. Brown paged Mr. Poss and waited approximately forty-five minutes for his arrival at the stand before observing two newsstand employees removing several of the subject publications from the newsstand racks. Mr. Brown then purchased copies of "Genesis", "Penthouse", and "Oui" from Ms. Hazelrigs. Mr. Poss finally was located in the concourse and was taken to his office where under questioning from Mr. Brown, he stated that he was familiar with the subject magazines but did not read them himself. Mr. Poss was then arrested without a warrant for violation of Ga.Code § 26-2101 and was transported to Fulton County Jail.

On the same day, Mr. Sidney Gordon was arrested without a warrant at Mill's Discount Drugs in Atlanta, Georgia, following a purchase by one of Mr. McAuliffe's agents of a copy of "Hustler" magazine.

On the following day, July 19, 1977, Mr. Asa Hall was arrested without a warrant at Nifty Foods in College Park, Georgia, following the sale to agents of the Solicitor General's office of copies of "Oui", "Genesis" and "High Society." On that date articles appeared in both The Atlanta Constitution and The Atlanta Journal chronicling the arrests and containing quotations from and interpretations of interviews with Solicitor McAuliffe. Ken Willis of The Atlanta Constitution testified that his article correctly quoted Mr. McAuliffe when it credited him with the statement that "if they the retail vendors put them the subject magazines out for sale, we'll get them the vendors and whoever is involved will go to jail." Vicki Brown of The Atlanta Journal testified that Mr. McAuliffe, in the context of a telephonic interview, had suggested to her that if the arguably pornographic magazines being sold in Fulton County were not removed from the newsstands, more arrests would be made.

On July 21, 1977, Mr. Edward Elson, President of Atlanta News Agency, Inc.,⁸ the primary local distributor of the subject magazines, was arrested for the sale of eight enumerated magazines: "The Best of Hustler II", the June, July and August editions of "Hustler", the June and July editions of "High Society", the August edition of "Genesis", and the August edition of "Oui."

No further arrests were made until July 27, 1977. On that date an article appeared in the morning Atlanta newspaper, The Atlanta Constitution, quoting Mr. McAuliffe as stating that "obviously it . . . is working because they the men doing the checking haven't found anything in violation of the law." The article went on to reveal that Constitution investigators had found two newsstands still vending the subject publications: the Eastern Newsstand in Peachtree Center and the Dixie News on Decatur Street. By nightfall the proprietors of both newsstands had been arrested without a warrant for selling, respectively, a copy of "Oui" and copies of "Eros", "Men", and "Masturbation."

A final arrest of Mr. Miller Bright was made on July 29, 1977, without a warrant at Brothers III Package and Grocery Store for the sale of "Best of Guys and Gals" and "Best of Swank." On that day, "Penthouse" and "Hustler" filed their respective actions, and, after an in chambers hearing at which allegations concerning the perishability of the subject publications were made, this court issued a temporary restraining order against defendant McAuliffe. On August 2, 1977 "High Society" filed a similarly styled action followed by "Eros" and "Gallery" on August 4, 1977. The preliminary injunction hearing was originally scheduled for August 8, 1977, but was rescheduled for August 15, 1977, due to the inability of the parties to timely complete expedited discovery. The preliminary and permanent aspects⁹ of these consolidated actions were tried at a hearing commencing on August 15, 1977 and concluding on August 16, 1977. Oral argument was heard on the morning of August 17, 1977. The issues presented are now ripe for adjudication.

STANDING

A threshold issue which bears mention concerns the standing of the instant plaintiff publishers to bring this action. Plaintiffs have vigorously argued that they have the type of concrete interest in the outcome of this litigation upon which the notion of standing is predicated. Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Bantam Books v. Sullivan, supra, the Supreme Court upheld the standing of a publisher to challenge the effective ban of its books under Rhode Island law by a "Commission to Encourage Morality in Youth". In reaching its determination, the Court reflected upon the realities of the publishing world and noted that the financial detriment which retailers suffered by removing a particular publication from their stands is smaller than either the cumulative economic effect experienced by a publisher or the cost of fighting withdrawal of the publication in court.¹⁰ It is equally true in the instant action that plaintiffs are the most financially aggrieved parties and that they alone have the resources to vindicate the arguably infringed rights of the public and of those persons in the chain of distribution. Moreover, although the majority of the testimony of Mr. Guccione, editor and publisher of "Penthouse", and the other publishers went mostly to the allegedly irreparable nature of their injury, it is nevertheless clear that approximately eighty-two thousand¹¹...