Penthouse Intern., Ltd. v. Meese
| Decision Date | 24 September 1991 |
| Docket Number | No. 90-5181,90-5181 |
| Citation | 939 F.2d 1011 |
| Parties | , 60 USLW 2100 PENTHOUSE INTERNATIONAL, LTD., Appellant, v. Edwin A. MEESE, III, Attorney General of the United States, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Jeffrey H. Daichman, with whom Thomas V. Marino was on the brief, New York City, for appellant. Peter D. Isakoff, Washington, D.C., also entered an appearance for appellant.
John P. Schnitker, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Leonard Schaitman and Barbara L. Herwig, Attys., Dept. of Justice, were on the brief, Washington, D.C., for appellees.
Before SILBERMAN, WILLIAMS, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Appellant Penthouse International, Ltd. (Penthouse) brought this action against then Attorney General Edwin Meese, III and the members of the Attorney General's Commission on Pornography (Commission), seeking equitable and monetary relief for alleged violations of Penthouse's First Amendment rights. The district court granted appellees' motion for summary judgment, dismissing appellant's damages action as barred by qualified immunity and appellant's claims for declaratory and injunctive relief as moot. We affirm.
Concerned with what he perceived as a serious problem of pornography in American society, President Reagan requested that the Attorney General establish a commission to study the matter and advise the Department of Justice as to appropriate remedies. The Attorney General, accordingly, created the Commission on Pornography in 1985, pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C.App. 2 Secs. 1-15, "to determine the nature, extent, and impact on society of pornography in the United States, and to make specific recommendations to the Attorney General concerning more effective ways in which the spread of pornography could be contained, consistent with constitutional guarantees." The Commission took testimony from some 200 witnesses at a series of six public hearings around the country, followed by a number of meetings, open to the public, at which Commission members reviewed the testimony, determined the contents, and discussed drafts of the Commission's final report.
One of the witnesses, Reverend Donald Wildmon, Executive Director of the National Federation of Decency, accused a number of well-known corporations of distributing pornography. Reverend Wildmon submitted a written statement entitled "Pornography in the Family Marketplace," setting forth his views about the role of corporations that were "household names" in selling pornographic films, television, and magazines. He asserted that the 7-Eleven national chain of convenience stores was "the leading retailer[ ]" of Penthouse and Playboy, which he termed "porn magazines," and predicted that the withdrawal of this major sales outlet would financially "cripple" both magazines. After discussion whether to include Reverend Wildmon's testimony in the report, the Commission decided to send a letter to the corporations named by Reverend Wildmon, asking for a response to the accusation. The letter, dated February 11, 1986, which was sent to 23 corporations, included a copy of Reverend Wildmon's testimony, but failed to identify him as its author. The letter stated:
Authorized Representative:
The Attorney General's Commission on Pornography has held six hearings across the United States during the past seven months on issues related to pornography. During the hearing in Los Angeles, in October 1985, the Commission received testimony alleging that your company is involved in the sale or distribution of pornography. The Commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.
You will find a copy of the relevant testimony enclosed herewith. Please review the allegations and advise the Commission on or before March 3, 1986, if you disagree with the statements enclosed. Failure to respond will necessarily be accepted as an indication of no objection.
Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if you have any questions.
Thank you for your assistance.
Truly yours,
s/Alan E. Sears
Alan E. Sears
Executive Director
enc.: Self-Addressed
The response varied. Time Inc. called the "accusations" "outrageous" and chastised the Commission for relying on "uncorroborated, gratuitous statements" from unidentified sources in what it characterized as a "slipshod and misguided effort." Southland Corporation, owner of the 7-Eleven chain, on the other hand, wrote that since the corporation had decided to stop selling adult magazines in light of the public concern about the effects of pornography it "urge[d] that any references to Southland or 7-Eleven be deleted from [the Commission's] final report."
Southland's decision, Penthouse alleges, was influenced by a telephone call from one of the members of the Commission to the General Counsel and Vice President of Southland, John H. Rodgers. 1 Rodgers declined to identify the Commission member with whom he spoke, but alleged that he or she told him that the Commission believed that Playboy and similar magazines were linked to child abuse and the Commission intended to publish this finding in its report. Southland, which had been leading a national campaign to fight child abuse, believed that if the Commission published those views on the connection between magazines sold by Southland and child abuse, the resulting publicity would be embarrassing to Southland, whether or not there was in fact such a link. Penthouse alleges that the Commission member's information was false in two respects--the Commission had found no causal connection between Playboy or other such magazines and child abuse, and it had no intention of discussing any such link in its report. Penthouse also claims that the Commission member deliberately spread these allegedly false allegations to Southland with the intention of inducing the company to withdraw as a distributor of Penthouse.
Playboy Enterprises, Inc. and Penthouse sought a preliminary injunction against publication of any "blacklist" of corporations which distributed their respective publications and an order withdrawing the Commission's letter, as well as other relief, including a statement from the Commission that it did not view their magazines as obscene. The district court granted preliminary relief. See Playboy Enters. v. Meese, 639 F.Supp. 581 (D.D.C.1986). The court determined that Playboy had shown that it was likely to prevail on the merits in establishing that the Commission's actions amounted to an informal scheme of government censorship constituting a prior administrative restraint. The court therefore granted a preliminary injunction, requiring the Commission to send a follow-up letter to the named corporations, withdrawing the first letter and stating that no reply to it would be necessary as the Commission had already decided that no corporations would be named in the final report. The Commission complied. The court refused, however, to be drawn further into the dispute--by considering whether or not the publications were obscene or pornographic or preventing the Commission from doing so--and therefore refused further injunctive relief.
The two publications persisted in their claims for permanent injunctive and declaratory relief, as well as with a Bivens claim for damages, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Defendants at that point moved for summary judgment asserting the claims for equitable relief were moot and that the damages claim was barred by the doctrine of good faith or qualified immunity because the Commission's action did not violate any clearly-established First Amendment right. Plaintiffs contended that defendants' conduct is unconstitutional under the principle established in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), and alternatively argued that summary judgment was improper before plaintiffs had the opportunity for discovery regarding defendants' allegedly "unconstitutional motives," to demonstrate that defendants acted with the intent to violate plaintiffs' constitutional rights. Discovery was also necessary, in plaintiffs' view, to resolve the material dispute as to the continuing harm from defendants' letter. The district court granted summary judgment to defendants on all grounds. Penthouse alone appeals the judgment.
Appellant, of course, wishes a determination from the judiciary that the government's conduct was unlawful. Such an opinion, appellant believes, will enable it to persuade retailers who have discontinued selling Penthouse to change their minds, and prevent a similar effort in the future which might threaten appellant's circulation. Appellant's primary claim, designed to gain such a determination, is its Bivens claim for damages. It is asserted that the Commission sought to prevent ("chill") the distribution of constitutionally protected speech and thereby violated appellant's First Amendment rights. The government has no right to prohibit adult pornography that does not qualify as obscenity, and, in any event, the government may not impose a prior restraint on the distribution even of arguably obscene materials.
Penthouse, as we mentioned, relies on Bantam Books to support its claim. In that case, however, the Rhode Island Commission to Encourage Morality in Youth had the...
To continue reading
Request your trial
-
Community Housing Trust v. Dept. of Consumer/Regulatory Aff., Civil Action 01-02120 (D. D.C. 4/16/2003)
...coffers are concrete, traceable to defendants' conduct, and curable by the monetary relief demanded. Cf. Penthouse Int'l Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991). Thus, plaintiffs' facial and as-applied challenges are justiciable and may proceed; consequently, defendants' supplem......
-
Farrell v. Pompeo
...declaratory relief would benefit the plaintiff, which also weighs against granting declaratory relief. See Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1020 (D.C. Cir. 1991) ("Where it is uncertain that declaratory relief will benefit the party alleging injury, the court will normally ref......
-
Aulenback, Inc. v. Federal Highway Admin.
...from the FHWA's charges of misconduct, which they have acknowledged by acceding to the consent agreements. See Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C.Cir.1991), cert. denied, 503 U.S. 950, 112 S.Ct. 1513, 117 L.Ed.2d 650 (1992). The carriers offer no reason why, if the res......
-
Rappa v. Hollins
...into an action which violates a clearly established right. See Anderson, 483 U.S. at 639.8 See also Penthouse International, Ltd. v. Meese, 939 F.2d 1011, 1016-1017 (D.C.Cir.1991) (discussing Anderson's The Third Circuit Court of Appeals has decided the law may be clearly established even i......
-
CHAPTER 9 APA LITIGATION: PROCEDURAL MECHANISMS THAT FOCUS ENVIRONMENTAL CONTROVERSIES
...case is moot only where no effective relief for the alleged violation can be given.") (emphasis added); Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991) (noting that "[i]n all the cases in which this court . . . has found that the effects of an alleged injury were not er......