ABC Books, Inc. v. Benson

• Decision Date: 15 July 1970
• Docket Number: 5557.,Civ. A. No. 5528
• Citation: 315 F. Supp. 695
• Parties: ABC BOOKS, INC., Harry Heltsley, and C. L. Butler, individually, and as representatives of the class of persons dealing in literature as a business in Tennessee v. Thomas D. BENSON, Commissioner of Revenue of the State of Tennessee; Buford Ellington, Governor of Tennessee; David M. Pack, Attorney General of the State of Tennessee; Thomas H. Shriver, District Attorney General of Davidson County, Tennessee; and Noel R. Bagwell, District Attorney General of Montgomery County, Tennessee, individually, and as representatives of the class of District Attorneys General of the State of Tennessee; James E. Sewell, Jr., an officer of the police department of the City of Clarksville, Tennessee; and Billy W. Watkins, an investigator with the Office of the District Attorney General of Davidson County, Tennessee, individually, and as representatives of the class of police officers of the State of Tennessee. Arthur SPIVAK v. Thomas H. SHRIVER, District Attorney General, and David M. Pack.
• Court: U.S. District Court — Middle District of Tennessee

315 F. Supp. 695

ABC BOOKS, INC., Harry Heltsley, and C. L. Butler, individually, and as representatives of the class of persons dealing in literature as a business in Tennessee v. Thomas D. BENSON, Commissioner of Revenue of the State of Tennessee; Buford Ellington, Governor of Tennessee; David M. Pack, Attorney General of the State of Tennessee; Thomas H. Shriver, District Attorney General of Davidson County, Tennessee; and Noel R. Bagwell, District Attorney General of Montgomery County, Tennessee, individually, and as representatives of the class of District Attorneys General of the State of Tennessee; James E. Sewell, Jr., an officer of the police department of the City of Clarksville, Tennessee; and Billy W. Watkins, an investigator with the Office of the District Attorney General of Davidson County, Tennessee, individually, and as representatives of the class of police officers of the State of Tennessee.

Arthur SPIVAK v. Thomas H. SHRIVER, District Attorney General, and David M. Pack.

Civ. A. Nos. 5528, 5557.

United States District Court, M. D. Tennessee, Nashville Division.

July 15, 1970.

COPYRIGHT MATERIAL OMITTED

Herbert R. Rich, Philip M. Carden, Nashville, Tenn., Stanley Fleishman, Hollywood, Cal., for plaintiffs in Civ. A. No. 5528.

Thomas E. Fox, Paul E. Jennings, C. Hayes Cooney, Asst. Attys. Gen., State of Tennessee, Nashville, Tenn., for defendants Benson and others.

James C. Cunningham, Frank Runyon, Clarksville Tenn., for defendant Sewell.

Lewis D. Pride, Nashville, Tenn., Frierson M. Graves, Jr., Memphis, Tenn., for plaintiff Spivak.

Thomas E. Fox, Paul E. Jennings, C. Hayes Cooney, Asst. Attys. Gen., State of Tennessee, Nashville, Tenn., Albert D. Noe, Asst. Dist. Atty. Gen., Metropolitan Government, Nashville, Tenn., for defendants Shriver and Pack.

Before COMBS,^* Circuit Judge, MILLER,^** Circuit Judge, and GRAY, District Judge.

OPINION

FRANK GRAY, Jr., District Judge.

In these actions plaintiffs seek, inter alia, declaratory judgments that certain Tennessee statutes are unconstitutional and injunctive relief prohibiting their further enforcement. A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, and, since the actions raise substantially similar questions, they were heard together.

Without detailing the factual situation as it pertains to each plaintiff, suffice it to say that one or more of the plaintiffs have standing to challenge T.C.A. §§ 39-3003, 39-3004, 39-3005, and 39-3007, all of which Code sections are portions of Tennessee's obscenity statutes.

Initially, plaintiffs assert that the State of Tennessee has "no power to enact any statute regulating what Tennessee citizens may write, print, distribute, sell, or read." This attack must fail because it is now basic in our law that obscenity is not protected under the First Amendment to the Constitution. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It is a valid exercise of the State's police power to enact legislation regulating the dissemination of obscene matter.

Plaintiffs assert that T.C.A. § 39-3003¹ is unconstitutional on its face on various grounds which are discussed hereinafter. The first alleged facial infirmity is that it does not require a specific scienter, i. e., "particular knowledge of the contents of the particular book," but only requires general knowledge relating to the obscene nature of the material. It will be noted that the statute specifically includes the word "knowingly" and the phrase "with the intent" in making dealings in obscenity a misdemeanor.

Reliance is had on Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed. 2d 205 (1959), in which the Supreme Court held an obscenity ordinance of the City of Los Angeles unconstitutional on its face because it imposed "strict" or "absolute" criminal liability without any requirement of scienter. This reliance is misplaced. In that case, the Court did not define "what sort of mental element is requisite to a constitutionally permissible prosecution" and restricted its holding of invalidity to a criminal obscenity statute "which goes to the extent of eliminating all mental elements from the crime." Emphasis added. Moreover, at page 154, 80 S.Ct. at page 219, the Court said: "Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained * * *."

We recognize that, as the Court said in Mishkin v. New York, 383 U.S. 502, 511, 86 S.Ct. 958, 965, 16 L.Ed.2d 56 (1966), "The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity." We hold that T.C.A. § 39-3003 amply serves these ends and fully meets the demands of the Constitution.²

Plaintiffs also urge that T.C.A. §§ 39-3003 and 39-3005,³ the civil injunction obscenity statute, are unconstitutional on their faces for failure to specifically provide for a prior adversary hearing on the question of obscenity before the dissemination of allegedly obscene materials is disturbed by criminal prosecution or by seizure or suppression, and, ergo, constitute a "prior restraint" and exert a "chilling" effect on the exercise of First Amendment freedoms. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

While the protection against prior restraint is an important right, it is not an absolute one. In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S. Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957), the Court, relying in part on Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), pointed out that protection even as to previous restraint is not unlimited. The Court said: "The phrase `prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test."

In Smith, supra, 361 U.S. at 154, 80 S.Ct. at 219, the Court was more specific when it said: "Doubtless any form of criminal obscenity statute * * * will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene * * *." T.C.A. § 39-3003 specifically provides that it "* * * shall not be construed to permit the seizure or suppression of any material, obscene or otherwise, such seizure or suppression to be lawful only as expressly provided for by law." Neither it nor T.C.A. § 39-3005 prohibit an adversary hearing when constitutionally required prior to either criminal prosecution or seizure or suppression.

When a statute may be constitutionally applied or enforced, that statute must be upheld against a claim of constitutional infirmity on its face. Gable v. Jenkins, 309 F.Supp. 998, 1001 (N.D.Ga.1969); Rage Books, Inc. v. Leary, 301 F.Supp. 546, 548 (S.D.N.Y. 1969); and Stein v. Batchelor, 300 F. Supp. 602, 608 (N.D.Texas 1969). Whatever the constitutional requirements may be insofar as prior adversary hearings are concerned, they are implied in the statutes. Grove Press, Inc. v. Kansas, 304 F.Supp. 383, 390 (D.Kansas 1969).

Accordingly, we hold that the absence of a provision for an adversary hearing before criminal prosecution or seizure or suppression does not invalidate these statutes.

It is further asserted that these two statutes are fatally defective on their faces because they authorize the issuance of an ex parte temporary injunction without providing for notice and a prompt judicial determination of the obscenity vel non of constitutionally suspect materials, thus constituting "prior restraints" on the exercise of First Amendment rights. T.C.A. § 39-3003 provides that, where a temporary injunction is issued under its provisions, an adversary hearing shall be held within two days after joinder of issues, "* * * at which hearing the court will determine whether or not the material in question is, in fact, obscene." T. C.A. § 39-3005 makes mandatory, where a temporary injunction has been issued, a hearing within two days after joinder of issues and a decision by the court within two days after conclusion of the trial.

This court recognizes that neither of the statutes includes a provision for notice before the issuance of the temporary injunctions provided for therein. These provisions do constitute some prior restraint, although the restraint is not unlimited. The seriousness of such restraint was recognized by the Supreme Court in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L. Ed.2d 584 (1963), when it said that "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Prior to the decision in Bantam Books, Inc., the Court had, in Kingsley Books, Inc., supra, sustained, against a like attack, a New York statute which authorized an ex parte temporary injunction and required a trial within one day after joinder of issue and a decision within two days after the conclusion of the trial.

Subsequent to the decision in Bantam Books, Inc., supra, the Court in Freedman v. Maryland, 380 U.S. 51, 58, 85 S. Ct. 734, 739, 13 L.Ed.2d 649 (1965) authorized some limited prior restraint, saying:

"The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. * * * Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."

It is contended here that, to the extent that Freedman authorizes a temporary injunction prior to an adversary hearing, it is modified by Carroll v. President and Commissioners of Princess Ann, 393 U.S. 175, 89 S.Ct. 347, 21 L. Ed.2d 325 (...