Cinema Blue of Charlotte, Inc. v. Gilchrist

Citation887 F.2d 49
Decision Date30 October 1989
Docket NumberNo. 89-1415,89-1415
PartiesCINEMA BLUE OF CHARLOTTE, INCORPORATED; Jim St. John; Curtis Rene Peterson, Plaintiffs-Appellees, v. Peter S. GILCHRIST, III, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Harold Mitchell White, Jr., Sp. Deputy Atty. Gen. (Lacy H. Thornburg, Atty. Gen., Pittsboro, N.C., Jean A. Benoy, Isham B. Hudson, Sr. Deputy Attys. Gen. and David Roy Blackwell, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief) for defendant-appellant.

Lee J. Klein, Okemos, Mich. (George Daly, Nelson M. Casstevens, Jr., and Calvin Murphy, Charlotte, N.C., on brief), for plaintiffs-appellees.

Before PHILLIPS, MURNAGHAN and WILKINS, Circuit Judges.

PHILLIPS, Circuit Judge:

Peter S. Gilchrist, III, District Attorney for the Twenty-Sixth Prosecutorial District of the State of North Carolina, appeals a district court order awarding preliminary injunctive relief to the plaintiffs, Cinema Blue of Charlotte, Inc., Jim St. John and Curtis Rene Peterson (collectively, "Cinema Blue"), in this action under 42 U.S.C. Sec. 1983. The challenged injunction prohibited "Gilchrist, his officers, agents, servants, employees and attorneys, and those in active concert or participation with him ... from arresting or prosecuting plaintiffs, their attorneys, or any other persons" who might exhibit certain allegedly obscene materials "to adults who consent to view the materials and do view them for the purpose of preparing plaintiffs' defense to felony obscenity charges" which were then "scheduled to be tried on indictments against Cinema Blue in the Superior Court of Mecklenburg County, North Carolina, commencing February 13, 1989." Cinema Blue of Charlotte, Inc. v. Gilchrist, 704 F.Supp. 631, 632 (W.D.N.C.1989).

Because we think that the district court should have abstained from interfering with a pending state proceeding, we vacate its injunction and remand the case for entry of an order dismissing the plaintiffs' claims for injunctive and declaratory relief.

I

The relevant facts are not in dispute. At the time the district court issued the challenged injunction, the appellees were under indictment on multiple charges that they had disseminated various purportedly "obscene" materials, in violation of N.C.G.S. Sec. 14-190.1. The criminal case had not yet gone to trial and the parties were still in the midst of pretrial proceedings. Cinema Blue had already made clear, however, that it would defend the felony charges by, inter alia, presenting expert testimony that the materials described in the indictment were not "obscene" within the meaning of the statute.

The parties' dispute is essentially one over the way in which the appellees intended to lay the foundation for the expert's testimony. Under applicable provisions of the state statute, sexually explicit material constitutes "obscenity" if it is "patently offensive," "appeals to the prurient interest in sex" as judged by "contemporary community standards," and "lacks serious literary, artistic, political, or scientific value." Id. Secs. 14-190.1(b)(1)-(3). On the premise that it would become critical at trial to adduce proof of "community attitudes," therefore, Cinema Blue engaged Dr. Joseph E. Scott, Associate Professor of Sociology at the Ohio State University, as one of their experts. What we are now told is that Professor Scott intended to

develop [his] testimony on whether the materials at issue are obscene, as defined in N.C. [G.S.] Sec. 14-190.1(b), by presenting some or all of the materials to "focus groups" [--] randomly selected groups of Mecklenburg County adults [--] for two main purposes. First, Dr. Scott will assess the attitudes of the focus group members toward the materials and then extrapolate from those findings, using sociological and statistical techniques, to a conclusion as to whether the materials are within the statutory definition of obscenity. Second, Dr. Scott proposes to use the focus groups to validate certain language which specifically describes the nature and content of the sexual activities in the materials at issue. This language then will be used in conducting telephone surveys of community attitudes toward the materials.

Joint Appendix at 79.

On December 5, 1988, shortly before a scheduled hearing on various motions pending in connection with the criminal prosecution, counsel for Cinema Blue informed Gilchrist of the particulars of Dr. Scott's "focus group" proposal. Gilchrist immediately expressed concern that the proposed focus group exhibition would itself constitute a violation of the state obscenity statute. Cinema Blue therefore raised the matter at the motions hearing and asked the state court to enter a protective order enjoining any prospective prosecution of Dr. Scott if he indeed exhibited the materials for the purpose of developing his expert testimony. In response to inquiries from the court, Gilchrist again opined that any such exhibitions would be illegal, and that the state would be entitled to prosecute Scott if he proceeded as planned. Ruling from the bench, the state court in turn denied Cinema Blue's motion for a protective order. 1

On December 22, 1988, the appellees filed the present action under 42 U.S.C. Sec. 1983, seeking both injunctive and declaratory relief. They claimed that, in light of Gilchrist's implied threat to prosecute, Dr. Scott had declined to proceed with his focus group study. As a result, Cinema Blue assertedly could not prepare an adequate defense against the state prosecution. Gilchrist's threats of prosecution--together of course with the state court's refusal to grant the requested protective order--therefore effected an actionable deprivation of the appellees' rights under the Sixth and Fourteenth Amendments to present witnesses on their behalf.

Plaintiffs also claimed that Gilchrist had previously declined to prosecute various anti-pornography groups and educational institutions that had exhibited the materials at issue in the pending state court proceedings against Cinema Blue. Any action ultimately taken against Dr. Scott would therefore constitute an "arbitrary" and "discriminatory" exercise of prosecutorial discretion, hence a per se violation of the equal protection clause of the Fourteenth Amendment.

On January 10, 1989, the district court conducted a hearing on Cinema Blue's motion for a preliminary injunction against the threatened prosecution of Dr. Scott or "any other persons who exhibit the materials [at issue in the state prosecution] ... for the purpose of preparing [Cinema Blue's] defense." Gilchrist conceded at the hearing that the state court had made clear its unwillingness to grant the requested relief, and that Dr. Scott indeed risked prosecution if he conducted the proposed focus group study.

Three days later, the district court issued an order granting Cinema Blue's motion for preliminary injunctive relief. In an accompanying opinion, the court held that " '[t]he defense should be free to introduce appropriate expert testimony' in obscenity prosecutions." Cinema Blue of Charlotte, Inc. v. Gilchrist, 704 F.Supp. 631, 636 (W.D.N.C.1989) (hereinafter Cinema Blue ) (quoting Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973)). Here, Gilchrist's "threatened prosecution of Dr. Scott directly inhibit[ed] plaintiffs' right to develop appropriate expert testimony," and therefore deprived Cinema Blue of its Sixth Amendment right to present an adequate defense. Id., 704 F.Supp. at 636. The court found, moreover, that Gilchrist

ha[d] failed to prosecute a citizens' group, a local educational institution, and law enforcement agencies, who may have disseminated obscene material in an effort to educate the public, while threatening to prosecute persons who exhibit allegedly obscene material in order to "enlighten the judgment of the tribunal" in an obscenity prosecution. This is an unjustifiable standard for the exercise of prosecutorial discretion....

Id., at 637 (quoting Smith v. California, 361 U.S. 147, 164-65, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring)).

In the district court's view, plaintiffs had therefore "raised questions going to the merits" of their claim for declaratory relief that were "so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation." Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189, 195 (4th Cir.1977) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953)). Also present here was a substantial likelihood that, "[i]n the absence of the preliminary injunction sought, plaintiffs [would] suffer irreparable injury," inasmuch as "[w]ith each passing day, measurement of the 'contemporary community standards' which existed ... when plaintiffs disseminated the materials at issue[ ] becomes more difficult." Cinema Blue, 704 F.Supp. at 635. Cinema Blue was therefore entitled to injunctive relief, See Blackwelder, 550 F.2d at 195-96, in the form of an order prohibiting Gilchrist or his "agents" from prosecuting Dr. Scott or others who exhibited the allegedly obscene materials solely for the purpose of preparing the federal plaintiffs' defense.

On January 30, 1989, the district court denied Gilchrist's motion for a stay of the preliminary injunction, this appeal followed, we expedited it, and on February 9, 1989, we stayed the district court's injunction pending the appeal. 2

II

This action sought to raise difficult and important questions respecting the nature and quality of a defendant's right under the Sixth Amendment to present an adequate defense; the limitations on "prosecutorial discretion" impliedly embodied in the equal protection clause of the Fourteenth Amendment; and the circumstances in which the threat of "irreparable harm"...

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