Allied Artists Pictures Corp. v. Alford

• Decision Date: 13 February 1976
• Docket Number: No. C-74-533.,C-74-533.
• Citation: 410 F. Supp. 1348
• Parties: ALLIED ARTISTS PICTURES CORPORATION et al., Plaintiffs, v. Ronald S. ALFORD et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

410 F. Supp. 1348

ALLIED ARTISTS PICTURES CORPORATION et al., Plaintiffs, v. Ronald S. ALFORD et al., Defendants.

No. C-74-533.

United States District Court, W. D. Tennessee, W. D.

February 13, 1976.

COPYRIGHT MATERIAL OMITTED

Walter P. Armstrong, Jr., Memphis, Tenn., Barbara Scott, Motion Pictures Ass'n of America, New York City, for plaintiffs.

Ross B. Clark, II, Charles V. Holmes, Asst. City Atty., Memphis, Tenn., for defendants.

MEMORANDUM OPINION

WELLFORD, District Judge.

In August, 1968, the City of Memphis enacted an ordinance which both defines what is "obscene to juveniles" and prohibits generally the dissemination to juveniles (defined as less than eighteen (18) years of age) of material which falls within that definition. The ordinance is similar to a New York statute which was approved by the Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Since 1968, the ordinance has been amended several times adding a section on "excess violence"¹ and a section dealing with "patently offensive language,"² and it is now codified in the code of ordinances of the City of Memphis, §§ 22-23.1 through 22-23.4.

The Memphis Board of Review (hereinafter referred to as "The Board") was established in 1969. Shortly thereafter, two of the Board's original members, attorneys, drafted legislation formally establishing the Board and defining its duties and powers. The ordinance is now codified in the Code of Ordinances of the City of Memphis, §§ 31-11.1 through 31-15.

The Board's jurisdiction is limited to the control of the dissemination to juveniles of material obscene as to them defined in § 22-23.1. The Board is empowered, however, to bring suits to enjoin such dissemination (§§ 31-12, 31-13; § 31-13 requires that "on any application for a temporary injunction, the Board of Review shall give notice to the theatre owner of its intention to apply for an injunction"). The Board may investigate complaints of such dissemination and report the results to the police department or attorney general (§ 31-14.1). In addition, § 31-13 provides that "nothing in §§ 31-11.1 through 31-15 shall prevent voluntary conferences between the board of review and exhibitors concerning the exhibition of any motion picture film". The Board is thus, in effect, one of the governmental agencies concerned with and about the enforcement of the Memphis "Ginsberg" Ordinance dealing with obscenity and juveniles.

In purported compliance with its obligations, the Board has established a procedure whereby it screens any film to be exhibited to juveniles in Memphis in order to determine whether it believes the film to be obscene to juveniles within the meaning of the Ordinance in question. The Secretary of the Board attempted to have at least three members at the screening.³ There were occasions, however, when less than three attended. Immediately following the screening, the members viewing the screening informed the Secretary whether or not in their opinion the film violated the Memphis Ordinance in question and was, therefore, obscene as to juveniles within the meaning of the Ordinance. This information, including the specifics of the purported violation, was recorded in the Board's records. Board members are generally required to submit written forms on each film screened by them.

If a violation was reported, the Secretary immediately sent a form letter to Memphis exhibitors, informing them that the Board had found the film to be in violation of the Ordinance and that it must be shown on a restricted basis (minors not to be permitted into the theatre unless accompanied by a parent or legal guardian). Copies of these letters, as indicated, were sent to the City Attorney's office and the Director of Police. These letters were sent out immediately upon receipt of appropriate information from the screening committee, although the Board, as a whole, did not actually vote on a film until the next regular meeting following the screening. Usually the entire Board approved the opinion of and action initiated by the screening committee.

Upon receipt of such a "violation" letter from the Board, exhibitors sometimes called the Board Secretary for more specific information. Based on information furnished, the Secretary usually was able to tell the exhibitor exactly what words and/or scenes were found to offend the Ordinance. To avoid restricting the film, the Memphis exhibitor often informed the Secretary that the offending scenes or words would be deleted. It was understood that after the required deletions were made, films could be exhibited on an unrestricted basis. This became a "fairly common and accepted practice" as expressed by several members of the Board.

After a film was opened for public exhibition, exhibitors were to continue to comply with the Board's recommended action. If the Secretary found, through checking newspaper advertisements or otherwise, that a film found to be in violation by the Board was not restricted by the exhibitor, she notified the Chairman. The exhibitor was usually then reminded of the Board's opinion and recommendation. If a film continued to play to an unrestricted audience, Board members were requested to reschedule a screening of the film in question. Board members did, moreover, attend public exhibitions on their own initiative and report violations to the Board and they sometimes spoke directly to exhibitors reminding them that a film had been thought to be in violation of the Ordinance. Occasionally, they informed exhibitors of their intention to call the police should they refuse to comply with Board recommendations.

This suit, filed pursuant to 42 U.S.C. § 1983, challenges, on asserted First Amendment grounds, this Ordinance of the City of Memphis and the actions of defendant Board members under color thereof which assertedly create a system of prior restraint on the exhibition of motion pictures in Memphis. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1343(3) and (4), 2201 and 2202.

Plaintiffs are eight major distributors of motion picture films for exhibition by individual theatres across the United States, including Memphis, exhibited pursuant to individual license agreements between plaintiffs and individual theatre exhibitors, pursuant to which agreements plaintiffs receive as their license fees a percentage of the gross box office receipts. Plaintiffs neither own nor themselves operate theatres in Memphis.

Defendants are sixteen individuals who have comprised the membership of the Board of Review of the City of Memphis, together with the Memphis Board of Review and the City of Memphis, a municipal corporation. As a result of defendants' actions, it is complained that many of the films distributed by plaintiffs have not been exhibited to minors in Memphis theatres unless accompanied by a parent, guardian or spouse eighteen (18) years old or over, or else have been unrestrictedly exhibited to minors only after portions thereof have been deleted. Plaintiffs assert that the restrictions imposed on the admission of minors to view certain films, and/or the deletion of portions of other films, have been accomplished wholly without judicial superintendence, and they claim these actions have diminished the income which plaintiffs might otherwise have received as license fees, but have also deprived them of a First Amendment right.

Presently before the Court on cross motions for summary judgment, the action, after a hearing on the motions and consideration of the pleadings, briefs, and much discovery evidence filed, presents no substantial contested issue of material fact and is in a proper posture for disposition on the merits.

The ordinances in question provide criminal penalties for dissemination to juveniles of "obscene" material, and Sections 31-11.1 through 31-15 establish and define the authority of the Memphis Board of Review as, generally, to investigate complaints of dissemination to juveniles of matter deemed "obscene" and to report the results of its investigation to either the police department or the attorney general (§ 31-14.1), and to seek injunctions restraining the presentation to juveniles (age of eighteen) of "obscene" motion pictures.⁴

PRIOR RESTRAINT

Motion pictures are a form of "expression" within the ambit of the First Amendment. Interstate Circuit v. Dallas, 390 U.S. 676, 682, 88 S.Ct. 1298, 1302, 20 L.Ed.2d 225, 230 (1968); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). First Amendment freedoms are made applicable through the Fourteenth Amendment to the states, and thereby to municipal ordinances; thus actions of officials pursuant thereto are under color of state law. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); 42 U.S.C. § 1983.

As the Supreme Court recently reiterated in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448, 459 (1975), in the context of a Tennessee municipality's denial of use of municipal facilities for a theatrical performance, "prior restraints are not unconstitutuional per se" but "any system of prior restraint . . . `comes to this court bearing a heavy presumption against its constitutional validity.'"

The ordinances in controversy seek to impose some regulation upon the distribution of certain films and forms of expression to juveniles. The Supreme Court itself has recognized that motion pictures may have a particularly pernicious effect upon youth, Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. page 502, 72 S.Ct. page 780, 96 L.Ed. page 1106, and that ". . . because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults." Interstate Circuit v. Dallas, supra, 390 U.S. page 690, 88 S.Ct. page 1306, 20 L.Ed.2d page 235, citing ...