648 F.2d 1020 (5th Cir. 1981), 79-3182, Red Bluff Drive-In, Inc. v. Vance

Docket Nº:79-3182, 79-3570.
Citation:648 F.2d 1020
Party Name:RED BLUFF DRIVE-IN, INC., Etc., et al., Plaintiffs-Appellants, v. Carol VANCE, Harris County District Attorney, et al., Defendants-Appellees. CRYSTAL THEATER, INC., a Texas Corporation, et al., Plaintiffs-Appellants, v. Henry WADE, District Attorney for Dallas County, Texas in representative capacity only, et al., Defendants-Appellees.
Case Date:June 23, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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648 F.2d 1020 (5th Cir. 1981)

RED BLUFF DRIVE-IN, INC., Etc., et al., Plaintiffs-Appellants,


Carol VANCE, Harris County District Attorney, et al.,


CRYSTAL THEATER, INC., a Texas Corporation, et al.,



Henry WADE, District Attorney for Dallas County, Texas in

representative capacity only, et al., Defendants-Appellees.

Nos. 79-3182, 79-3570.

Unit A

United States Court of Appeals, Fifth Circuit

June 23, 1981

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Marian S. Rosen, Houston, Tex., for Adonis Adult News, et al.

Clyde W. Woody, Houston, Tex., Beverly Hills, Cal., for Academy Theatres, et al.

John H. Weston, principle counsel, David M. Brown and Robert A. De Piano, on the brief, Beverly Hills, Cal., for Starbase Publishing Co.

Mike Aranson, Dallas, Tex., for appellants in 909 Congress Corp. Action.

Arthur M. Schwartz, Denver, Colo., JoAnn Doughtie, Terrence A. Gaiser, Houston, Tex., for 909 Congress Corp. et al.

Clyde F. DeWitt, III, Houston, Tex., for Carol Vance and John Holmes.

Wm. Torrance Fiddes, Jr., Houston, Tex., for H. D. Caldwell and City of Houston.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for Glen King.

James R. Ansell, Galveston, Tex., for James F. Hury, Jr.

Paul C. Isham, Fort Worth, Tex., for H. F. Hopkins.

Robert C. Story, Bill M. White, Jay R. Miller, San Antonio, Tex., for Bill M. White.

Edgar A. Pfeil, Steven W. Arronge, San Antonio, Tex., for Emil E. Peters.

Russell Bailey, James L. McMurtry, Austin, Tex., for Ronald Earle and Raymond Frank.

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Frederick M. Schattman, Thomas E. Myers, Fort Worth, Tex., for Tim Curry and Lon Evans.

John W. Fainter, 1st Asst. Atty. Gen., Ted L. Hartley, W. Barton Boling, Gerald C. Carruth, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for Mark White.

Sue La Garde, Asst. Dist. Atty., Dallas, Tex., for Henry Wade.

Mark White, Atty. Gen., pro se.

Frederick M. Schattman, Asst. Dist. Atty., Fort Worth, Tex., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Appeal from the United States District Court for the Northern District of Texas.


JERRE S. WILLIAMS, Circuit Judge:

In 1979 the Texas Legislature rewrote the state's penal code provisions defining and regulating obscene materials and performances. 1 Shortly before the statute was due to go into effect, entrepreneurs in the "adult entertainment" business brought

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several separate suits against Texas law enforcement officials to enjoin prosecutions under the revised statute. The suits also sought declaratory judgments that the statute was unconstitutional. In two separate memorandum opinions, federal district courts for the Northern and the Southern Districts of Texas denied the requested relief. The appeals from these rulings were consolidated for oral argument and for our decision here.

The able trial judges, facing the task of adjudicating challenges to the constitutionality of a state statute, were confronted in these cases with a multiplicity of parties, threshold procedural niceties, and substantive legal theories. 2 Both judges determined that jurisdiction lay in their respective courts and both declined invitations to invoke abstention. Each judge parsed the statute passage by passage and determined that the Texas Legislature's effort to regulate commercial "obscenity" consistent with constitutional guarantees of liberty passed muster.

We affirm the judgments below in all but three particulars. The portions of each judgment upholding the constitutionality of § 43.21(a)(4), § 43.21(a)(5), and § 43.23(e) & (f) are vacated. We determine that, although each of these provisions presents a troublesome question of constitutional law, a decision on the merits would be inappropriate at this time. 3 The present posture of this case counsels abstention on our part pending an opportunity for narrowing and clarifying state court construction. Therefore, we vacate the judgments below as to these three provisions and dismiss the claims raised against them without prejudice. 4


Plaintiffs attack the challenged statutes from several angles. They maintain that

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some provisions are unconstitutionally vague or overbroad or both. They complain that certain provisions threaten those charged under the statute with denials of procedural due process and that other provisions infringe upon fundamental rights of expression and personal autonomy. They assert that the statute, by outlawing the sale or possession in quantity of sexually stimulative materials and devices, denies equal protection of the laws to handicapped persons dependent on these items for sexual gratification.

The district courts rejected each of these assaults on the statute. Except for the modifications we discuss, infra, regarding §§ 43.21(a)(4), 43.21(a)(5), and 43.23(e) & (f), we affirm the judgments below. Most of the statute is firmly grounded in language prescribed or approved in prior Supreme Court obscenity decisions.

Section 43.21(a)(1) defines obscenity with language drawn directly from the Supreme Court's landmark Miller decision. 5 The section recites, with little variation, the familiar three-part Miller test for determining the boundary between protected expression and regulable obscenity. Under the Miller test, expression goes beyond the limits of First Amendment protection if it: (1) taken as a whole, appeals to the prurient interest; (2) depicts or describes specified sexual conduct in a patently offensive way; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. 2614. Except for §§ 43.21(a)(4), 43.21(a)(5), and the presumptions contained in § 43.23(e) & (f), the Texas statute's deviations from the Miller standard are constitutionally unobjectionable. We review them briefly.

§ 43(a)(1)(A) The plaintiffs ("Red Bluff") complain of the statute's lack of a definition for the term "prurient interest" in § 43.21(a)(1)(A). Noting that jury charges in Texas obscenity cases customarily repeat the statutory language verbatim, Red Bluff expresses concern that juries will decide these cases without the benefit of an instruction defining "prurient interest in sex" as "a shameful or morbid interest." See Miller v. California, 413 U.S. at 16 n.1, 93 S.Ct. at 2611 (1973) (quoting the definition of prurient interest in California Penal Code § 311(a) (1969). Yet, the lack of a definition for the term "prurient interest" does not render the statute constitutionally deficient. Many jurors may find it helpful to learn that "prurient interest" means shameful and morbid, but no conviction has, to our knowledge, been overturned for the trial court's failure to so instruct a jury. Moreover, Texas courts construing the provision are obliged to apply any "technical or particular meaning" the term has acquired from prior judicial review. See Texas Penal Code § 1.05(b); Tex.Rev.Civ.Stat.Ann. art. 5429b-2, § 2.01 (Vernon Supp.1980).

§ 43.21(a)(1)(B)(i) Red Bluff objects on vagueness and overbreadth grounds to the statute's specification of "sexual intercourse, sodomy, and sexual bestiality" as varieties of sexual conduct whose patently offensive depictions or descriptions may be found obscene. The list of potentially "patently offensive" acts in Miller did not include these three examples of sexual conduct, 413 U.S. at 25, 93 S.Ct. at 2615, but the Miller list was not intended to be exhaustive. Hamling v. United States, 418 U.S. 87, 114, 94 S.Ct. 2887, 2906, 41 L.Ed.2d 590 (1974). These additional terms yield a plain, ascertainable meaning; their addition reduces rather than increases the vagueness of the Texas statute. Nor by these additions to the Miller catalogue of forbidden depictions of sexual acts does the Texas statute sweep too broadly. Subsection 43.21(a)(1)(B)(i) is not constitutionally objectionable.

§ 43.21(a)(1)(B)(ii) This subsection specifies "sadism, masochism, lewd exhibition

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of the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs" as subjects whose patently offensive representations or depictions may be found obscene. Miller does not explicitly authorize this formula, but it does require specific definition of sexual conduct and offers "lewd exhibition of the genitals" as a generic example of a potentially obscene subject. 413 U.S. at 24-25, 93 S.Ct. at 2614-2615. The Texas statutory language focusing on stimulated, aroused, or turgid genitals follows the Oregon and Hawaii obscenity statutes cited although not expressly approved in Miller as examples of acceptable state regulation. 413 U.S. at 24 n.6, 93 S.Ct. at 2615 n.6 citing Or.Rev.Stat. §§ 255(5) & (11); Hawaii Penal Code § 712-1210(8). The Supreme Court has subsequently approved the inclusion of representations of sado-masochistic conduct as potentially obscene. Ward v. Illinois, 431 U.S. 767, 773, 97 S.Ct. 2085, 2089, 52 L.Ed.2d 738 (1977). The addition of masturbation aids does not significantly expand the Miller court's list of potentially obscene subjects, which included masturbation. 413 U.S. at 25, 93 S.Ct. at 2615. None of these deviations from the language in Miller constitutes a facial encroachment on Red Bluff's constitutional liberties.

§ 43.21(a)(1)(C) To be obscene under Miller, expression must lack "serious literary, artistic, political, or scientific value." 413 U.S. at 24, 93 S.Ct. at 2614 (emphasis added). To be obscene under the Texas obscenity statute, expression must lack "serious literary, artistic, political and...

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