Astro Cinema Corp. v. Mackell

• Citation: 305 F. Supp. 863
• Decision Date: 19 August 1969
• Docket Number: No. 69 C 778.,69 C 778.
• Parties: ASTRO CINEMA CORP., Inc., John Justin and Jess Rockman, Plaintiffs, v. Thomas J. MACKELL, District Attorney of Queens County, Defendant.
• Court: U.S. District Court — Eastern District of New York

305 F. Supp. 863

ASTRO CINEMA CORP., Inc., John Justin and Jess Rockman, Plaintiffs, v. Thomas J. MACKELL, District Attorney of Queens County, Defendant.

No. 69 C 778.

United States District Court E. D. New York.

August 19, 1969.

Eleanor Jackson Piel, New York City, for plaintiffs.

Mortimer Sattler, New York City, (Louis J. Lefkowitz, Atty. Gen., of counsel) for defendant.

MEMORANDUM and ORDER

DOOLING, District Judge.

Plaintiffs had been concerned during the week commencing May 4, 1969, in the public exhibition of a motion picture film entitled "Odd Triangle" at the Hollis Cinema Theatre (operated by the corporate plaintiff). By May 7, 1969, plaintiffs had interrupted their planned one-week run of "Odd Triangle," and they were exhibiting another film, "The Singles." That fact was evident from the marquee advertising. Nevertheless, on May 7, 1969, the print of "Odd Triangle" was still in the theater, and on that day plaintiff Rockman was arrested on an obscenity charge under Penal Law, McKinney's Consol.Laws, c. 40, § 235.05, and the print of "Odd Triangle" was seized under a warrant issued pursuant to Code of Criminal Procedure § 791 et seq. When the present action was commenced and the present motion made, plaintiff Rockman was awaiting further hearing in Queen's Criminal Court on the misdemeanor charge of Section 235.05. It appears that another print of the "Odd Triangle" was seized in Nassau County from a different theater on the preceding night and it is indicated that the Nassau arrest and seizure influenced plaintiffs to interrupt their showing of the film.

By the present action plaintiffs seek the return of the print of "Odd Triangle," an injunction against the state prosecution, and a declaration that Penal Law § 235.05 is invalid in terms and as applied to plaintiff in connection with Code of Criminal Procedure § 791 et seq. Plaintiffs now move for a preliminary injunction requiring return of the film, and restraining the defendant from prosecuting plaintiffs and others similarly situated and from seeking to enforce Penal Law § 235.05. A three judge court is sought under 28 U.S.C. § 2281. The complaint suggests that the defendant is embarked on a course of action designed to deprive plaintiff and others of their rights of free speech, but no facts are referred to that could give support to the charge other than the present arrest and seizure following on the heels of an arrest and seizure in Nassau County.

The point presented is that as a matter of constitutional principle no print of a film may be seized until after there has been an adversary hearing (see, e. g. Metzger v. Pearcy, 7th Cir. 1968, 393 F.2d 202), and that, in consequence the use of the search warrant statute to support the seizure of the present film in aid of the prosecution under Penal Law § 235.05 is constitutionally impermissible conduct which may and must be enjoined. It is not contended at this stage that there was any departure from the strict procedures enjoined by Code of Criminal Procedure § 791 et seq. It is not contended that the statute as applied to matters other than books and films is open to any challenge. And it is not at this stage argued that the evidence on which the warrant issued failed to meet statutory or constitutional requirements if it can ever be lawful to seize a film on an ex parte showing that it is obscene within the meaning of Penal Law § 235.00, subdivision 1, and is in course of a guilty use described in § 235.05. The proposition is that any ex parte seizure of a film is a forbidden prior restraint because it utterly arrests the further publication of that film to the innumerable patrons of the theater who would otherwise have seen it. It is— it is argued—by its very nature not an evidentiary but a communication-stifling seizure, and it is, therefore, it is urged, forbidden by the settled principle that the power to search for and seize contraband and evidence cannot be used against books or films in such manner that it operates as a prior-restraint upon their publication or as a suppression of their publication before there has been an adversary hearing on the obscenity issue. Marcus v. Search Warrants, 1961, 367 U.S. 717, 724, 729-730, 736-738, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Quantity of Copies of Books v. Kansas, 1964, 378 U.S. 205, 210, 84 S.Ct. 1723, 12 L.Ed.2d 809; Mishkin v. New York, 1966, 383 U.S. 502, 512-514, 86 S.Ct. 958, 16 L.Ed. 2d 56; Evergreen Review, Inc. v. Cahn, E.D.N.Y. 1964, 230 F.Supp. 498; United States v. Brown, S.D.N.Y.1967, 274 F.Supp. 561, 565; United States ex rel. Mishkin v. Thomas, S.D.N.Y.1968, 282 F.Supp. 729, 740-742; People v. Rothenberg, 1967, 20 N.Y.2d 35, 281 N.Y.S. 2d 316, 228 N.E.2d 379; People v. Kozak, N.Y.Co.1968, 56 Misc.2d 337, 288 N.Y.S. 2d 692. Plain it certainly is that the state can explicitly halt the dissemination of books and films only after a judicial determination in an adversary proceeding, Kingsley Books, Inc. v. Brown, 1957, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, and that the procedure must be so designed that delays in court can not in real substance suppress the publication. See Freedman v. Maryland, 1965, 380 U.S. 51, 60, 85 S.Ct. 734, 13 L.Ed.2d 649.

Here, however, the substantive statute involved is as assuredly valid as a statute can be when it must be drafted in the light of the First Amendment. Mishkin v. New York, 1966, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56; Ginsberg v. New York, 1968, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195; People v. G.I. Distributors, Inc., 1967, 20 N.Y. 2d 104, 281 N.Y.S.2d 795, 228 N.E.2d 787; see People v. Quentin, Nassau Co. 1968, 58 Misc.2d 601, 296 N.Y.S.2d 443; cf. Redrup v. New York, 1967, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; Rabeck v. New York, 1968, 391 U.S. 462, 88 S.Ct. 1716, 20 L.Ed.2d 741; People v. Marzano, 3rd Dept. 1968, 31 App.Div.2d 52, 295 N.Y.S.2d 228; People v. Stabile, N.Y.Co.1969, 58 Misc.2d 905, 296 N.Y.S. 2d 815. As in the case of books, films may be found to be obscene and therefore unprotected by the First Amendment. Cf. Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 505-506, 72 S.Ct. 777, 96 L.Ed. 1098; Times Film Corporation v. City of Chicago, 1961, 365 U.S. 43, 49-50, 81 S.Ct. 391, 5 L.Ed. 2d 403; Jacobellis v. Ohio, 1964, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Freedman v. Maryland, 1965, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. And, as the cited cases indicate, the nature of films and their exhibition can authorize appropriate adversary procedures for halting in its incipiency an exhibition that will be criminal if it occurs, so long as the procedure provides "adequate safeguards against undue inhibition of protected expression."

It follows that if the present film is found obscene, its exhibition will have been criminal misconduct and punishable if it occurred in the circumstances set out in Section 235.05 and if guilt is adequately proved at a trial. The State, however, must prove its case, and it cannot do so without proving the content of the film. The film, then, could well be both the "property used * * * as the means of committing an alleged crime" and the "property constituting evidence of the alleged crime," and, for purposes of the present case, it must be assumed that the Criminal Court Justice had probable cause to believe that the film was obscene by the statutory definition and was at the place of search, and that its exhibition was criminal. Cf. Code of Criminal Procedure §§ 792, 793. As the case has been presented, there can be no contention here that the film was such that a magistrate could not constitutionally find that there was no probable cause to believe it obscene. Contrast Redrup v. New York, supra, 386 U.S. at 771, 87 S.Ct. 1414.

The seizure in this case was the minimum seizure needed to support prosecution of the precise alleged offense. Contrast People v. Rothenberg, supra, 20 N.Y.2d at 39, 281 N.Y.S.2d 316, 228 N.E.2d 379. Its legality flows from the substantive validity of the obscenity statute, and the constitutional validity of the New York search warrant statutes in the generality of the instances of their application. The substantive and the procedural statutes can not be so joined in any particular application that they become an instrument for suppressing constitutionally protected communication, nor can the issue of whether or not they have been so used ever be insulated from appellate and—ultimately—federal scrutiny of the constitutional sufficiency of the evidence of obscenity to establish that the utterance is not entitled to First Amendment protection. But that does not signify that a federal court is authorized to interfere in advance with an orderly state prosecution on the ground that the state may err and the federal authority ought, therefore, to decide the matter in the first instance. Douglas v. City of Jeanette, 1943, 319 U.S. 157, 163-164, 63 S.Ct. 877, 87 L.Ed. 1324; see Dombrowski v. Pfister, 1965, 380 U.S. 479, 484-486, 85 S.Ct. 1116, 14 L.Ed.2d 22; cf. City of Greenwood, Miss. v. Peacock, 1966, 384 U.S. 808, 828-830, 86 S.Ct. 1800, 16 L.Ed.2d 944. Jurisdiction, here, is rested on the...