Bazzell v. Gibbens

• Decision Date: 09 December 1969
• Docket Number: 168.,Civ. A. No. 69-167
• Parties: Charles E. BAZZELL, Jr. and William R. Irving v. Ben D. GIBBENS and Sargent Pitcher, Jr. EVE PRODUCTIONS, INC. v. Ben D. GIBBENS and Sargent Pitcher, Jr.
• Court: U.S. District Court — Eastern District of Louisiana

306 F. Supp. 1057

Charles E. BAZZELL, Jr. and William R. Irving v. Ben D. GIBBENS and Sargent Pitcher, Jr.

EVE PRODUCTIONS, INC. v. Ben D. GIBBENS and Sargent Pitcher, Jr.

Civ. A. Nos. 69-167, 168.

United States District Court E. D. Louisiana, Baton Rouge Division.

December 9, 1969.

Lawrence A. Durant, Mengis & Durant, Baton Rouge, La., for plaintiffs, Charles E. Bazzell, Jr. and William R. Irving and Eve Productions, Inc.

Frierson M. Graves, Jr., Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., for plaintiff, Eve Productions, Inc.

Sargent Pitcher, Jr., Ralph L. Roy, Baton Rouge, La., for defendants.

WEST, Chief Judge:

Plaintiffs bring these consolidated actions seeking (1) injunctive relief from the seizure of a motion picture film and from State prosecution for alleged violation of a State obscenity statute, (2) a declaratory judgment declaring the seizure of the film to be unlawful, and (3) a declaratory judgment declaring Sections 106(2) and 106(3) of Title 14 of the Louisiana Revised Statutes to be unconstitutional insofar as their application to the public exhibition of the film in question is concerned. The actions seek to redress alleged deprivation, under color of State law, of rights, privileges and immunities, and particularly the right of freedom of expression secured to plaintiffs by the First Amendment to the United States Constitution.

Jurisdiction is asserted under 28 U.S. C.A. §§ 1343(3), 1343(4), and 42 U.S.C. A. § 1983.

The pertinent parts of the State statute involved read as follows:

"§ 106. Obscenity

A. Obscenity is the intentional:

* * * * * *

(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.

(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.

* * *." LSA-R.S. 14:106.

The statute makes no provision for the seizure or destruction of the material alleged to be obscene. It merely makes "obscenity" a crime, defines the crime of "obscenity," and then provides for the penalty in terms of fine and imprisonment in case of violation. Seizures of evidence, such as the one made in this case, are not made pursuant to any license granted by the statute but instead are made pursuant to the laws of Louisiana pertaining to searches and seizures made with or without search warrants. The seizure made in the present case was made not pursuant to any provision of the statute in question but pursuant to a warrant duly issued upon a showing of probable cause.

The corporate complainant in Civil Action 69-168, Eve Productions, Inc., is the owner of all copies of a motion picture film entitled "Finders Keepers, Lovers Weepers." The individual complainants in Civil Action 69-167 are the owners and operators of the Regina Theater, Baton Rouge, Louisiana, at which theater "Finders Keepers, Lovers Weepers" was being shown to the public on July 22, 1969, and indeed had been shown at the same location for some weeks previous thereto. Individual defendants in both suits are, respectively, an investigator in the office of the District Attorney, East Baton Rouge Parish, Louisiana, and the District Attorney for the same Parish.

On July 22, 1969, the individual plaintiffs were arrested by defendant, Ben D. Gibbens, and charged with violating Louisiana's obscenity statute, LSA-R.S. 14:106, by unlawfully exhibiting a "lewd, lascivious, filthy and sexually indecent motion picture film with the intent to primarily appeal to the prurient interest of the average person." Coincidentally with plaintiffs' arrest, and pursuant to a search warrant signed by the Honorable John S. Covington, Judge, Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, defendants seized complainants' copy of "Finders Keepers, Lovers Weepers." The arrest and search warrant were dated July 22, 1969, but plaintiffs allege, and defendants admit, that whether or not the film was obscene as defined by the pertinent Louisiana statute had not been determined in an adversary hearing prior to its seizure. The State Judge's issuance of the warrant was in accordance with Louisiana law, based upon defendant Gibbens' affidavit alleging that he had probable cause to believe that plaintiffs had violated the obscenity statute.

All of the relief here sought by the plaintiffs revolves not around the question of whether or not the film in question is, in fact, obscene, but rather around the seizure of the film. We have for decision only the narrow question of whether or not the Constitution of the United States compels, in all cases, an adversary hearing on the question of obscenity prior to seizure of the thing alleged by the State to be obscene. We answer that question in the negative. Under the particular circumstances of this case, it is the opinion of this Court that the film in question was properly seized and held as evidence to be used in the criminal prosecution which the State expects to follow. It is well settled that neither motion pictures nor any other mode of expression may rely on the First and Fourteenth Amendments to justify and protect a public display of properly defined obscenity from permissible federal or state regulation. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Thus, if the State statute which these plaintiffs have been charged with violating is not itself constitutionally defective, neither the First nor the Fourteenth Amendment constitutes any obstacle to the further prosecution of the criminal charges brought pursuant thereto. The question before us now is not whether the plaintiffs can be prosecuted under that statute but whether or not the State, through its District Attorney, had a right to seize the film in question prior to holding an adversary hearing on the question of its obscenity. The Court is not unmindful of the decision in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.Ed.2d 809 (1964), wherein the United States Supreme Court held that the seizure there involved did violence to the First Amendment and that thus, in the absence of a pre-seizure adversary hearing, the seizure in that particular case was constitutionally impermissible. This Court is also cognizant of the fact that the Fourth and Seventh Circuit Courts of Appeal in Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (CA 4-1969), and Metzger v. Pearcy, 393 F.2d 202 (CA 7-1968), saw fit in those particular cases to conclude that the decision in A Quantity of Books was controlling. I do not so find in the present case. I find nothing in the case law to indicate that in every case where a seizure of alleged obscene material is to be made, a pre-seizure adversary hearing is constitutionally required. Whether or not such a hearing is required must depend upon the nature and purpose of the seizure. If the seizure is made for the purpose of destroying the thing seized and for the purpose of preventing the dissemination of the material involved, then A Quantity of Books teaches that an adversary hearing prior to the seizure and/or destruction of the material is required in order not to fun afoul of the First Amendment guarantee to the right of freedom of expression. But where, as here, a...