Cornflower Entertainment, Inc. v. Salt Lake City Corp., C 79-0276.

Decision Date27 March 1980
Docket NumberNo. C 79-0276.,C 79-0276.
PartiesCORNFLOWER ENTERTAINMENT, INC., a Utah Corporation, and Randy Taylor, Plaintiffs, v. SALT LAKE CITY CORPORATION, a Municipal Corporation in the State of Utah; Roger Cutler, City Attorney of Salt Lake City, State of Utah; Bud Willoughby, Chief of Police of Salt Lake City, Utah; Board of Commissioners of Salt Lake City, State of Utah, including Ted Wilson, Mayor; Glen N. Greener, Jennings Phillips, Jr., Jess Agraz and David C. Campbell, Commissioners, Defendants.
CourtU.S. District Court — District of Utah

John H. Weston and G. Randall Garrou, Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., and Jerome H. Mooney, Mooney & Jorgensen, Salt Lake City, Utah, for plaintiffs.

Paul G. Maughan, Asst. City Atty., Salt Lake City, Utah, for defendants.

ORDER GRANTING DECLARATORY RELIEF

(Final Judgment)

ALDON J. ANDERSON, Chief Judge.

In this action the plaintiffs seek declaratory relief and a permanent injunction against Salt Lake City as a result of the City's order revoking the motion picture and business licenses of the plaintiff Cornflower Entertainment, Inc. based on violations of obscenity laws by employees of Cornflower. The parties have waived final argument and have submitted the disputed issues to the court for final resolution. The court has carefully reviewed the briefs and the stipulated statement of facts and is now ready to rule.

I.

Cornflower Entertainment, Inc. (Cornflower), operates an adult motion picture theatre in Salt Lake City known as Studio Theatre. During the period of May, 1978, to September, 1978, movies were shown at Studio Theatre which resulted in four employees of Cornflower either pleading guilty or being convicted of distributing obscene material in violation of state or municipal law. As a result of their violations, Salt Lake City had served on Cornflower an order to show cause why its motion picture, general business and soft drink licenses should not be revoked pursuant to local ordinances permitting revocation or suspension of licenses for such violations.1 On May 4, 1979, a hearing was held before a hearing officer wherein evidence and arguments were presented by the parties. On May 8, 1979, the plaintiffs initiated this action which at that time sought a temporary restraining order to prevent any attempts to revoke the plaintiffs' licenses. This court denied the motion for a temporary restraining order after oral argument on May 9, 1979.

On June 7, 1979, the Salt Lake City Board of Commissioners adopted the hearing officer's findings of fact and conclusions of law and ordered that the three licenses mentioned above be revoked for a period of one year. The City subsequently agreed that the revocation order would not be enforced until the court ruled on its validity. Plaintiffs were to seek an expedited hearing on the merits. The movie theatre has remained open during these proceedings.

II.

The plaintiffs claim that the order is unenforceable because the ordinances authorizing the revocation of theatre licenses for past obscenity convictions constitute an unconstitutional prior restraint of free speech. The defendants respond, first, that the court should abstain from even considering the plaintiffs' claims on the ground that the state court is the only proper forum to hear them and, second, that the revocation order in this case is constitutional. Thus, the first question is whether or not the court should even hear the case. If abstention is not proper, the next question is whether or not motion picture materials are constitutionally protected free speech. If they are, the court must decide whether the ordinances under attack operate as a prior restraint. Finally, if the ordinances are found to result in a prior restraint, are they unconstitutional under controlling precedent of the United States Supreme Court?

III.

There are two instances where the abstention doctrine may be applied to enable the court to avoid adjudicating a dispute otherwise justiciable and thereby permitting the state courts to resolve it. First, a federal court should generally abstain from a controversy when there is a pending state action or there has been a failure to exhaust appellate remedies. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 699 (1971). Second, they should ordinarily refrain from ruling on the constitutionality of a state statute if the state law is unclear and is capable of construction by state courts in a manner that would avoid the constitutional question. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

The court is convinced that neither situation is present here. After the City Board of Commissioners issued its order, there was no pending state proceeding. Nor was there a provision providing for an appeal. The plaintiffs had the choice of initiating an equity suit in state court or activating the suit in federal court that had originally sought a temporary restraining order. There is no present possibility of this court's enjoining a pending state action or annulling the results of a state proceeding for failure of the plaintiffs to pursue an appeal in the state court system. Accordingly, the principles articulated in Younger and Huffman do not allow the court to abstain from adjudicating the parties' controversy.

That part of the abstention doctrine stemming from the Pullman decision is equally inapplicable. The ordinances attacked are clear on their face; the court fails to see how a limiting construction could avoid the constitutional issues. Moreover, the Utah Supreme Court recently reviewed one of the ordinances involved in a similar factual setting, and the ruling did not provide a limiting construction to free the ordinance from constitutional attack. Under these circumstances, when a federal court is presented with the question of the constitutionality of a state law that is clear and certain, abstention is not appropriate. 1A Moore's Federal Practice ¶ 0.2031, at 2106-08 (2d ed.). The court therefore should not abstain from adjudicating the plaintiffs' constitutional claim presented here. Other courts in similar factual situations have reached the same conclusion. E. g., Natco Theatres, Inc. v. Ratner, 463 F.Supp. 1124, 1127-28 (S.D.N.Y.1979).

IV.

The question whether motion pictures are a form of expression entitled to first amendment protections has been resolved by the Supreme Court. Its decisions clearly hold that motion pictures are entitled to all the constitutional protections accorded other kinds of speech.2E. g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952). The fact that people pay to view movies and a profit is thereby obtained does not alter the protected status of motion pictures. Id. Included in the constitutional protections extended to motion pictures is the general prohibition against prior restraint. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Therefore, if a prior restraint is present in this case, the mere fact that commercial motion pictures are involved will not be a basis to uphold the ordinances.

V.

The starting point for a serious examination of whether or not an ordinance acts as a prior restraint is the landmark case of Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). There the trial court found a newspaper to be in violation of a nuisance statute that prohibited "the business of regularly and customarily . . publishing . . . a malicious, scandalous and defamatory newspaper." As a remedy, the court enjoined the newspaper "from further conducting said nuisance under the name and title of said The Saturday Press or any other name or title." Id. at 706, 51 S.Ct. at 627. The United States Supreme Court held that the injunction constituted a "previous restraint." Drawing from the historical meaning of the term previous restraint in past decisions, the Supreme Court held that restraining future publications as a result of the content of past publications is clearly a previous restraint.

The similarity between Near and the present case indicates that the ordinances under review operate as a prior restraint. In both cases, as a result of the content of past material, future expression was sought to be halted. Subsequent Supreme Court decisions on prior restraint reinforce such a conclusion. These cases hold that any restraint of future expression because of the content of either past or anticipated future expression constitutes a prior restraint. In Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), the Court considered a Chicago ordinance directed at motion pictures. The ordinance required that a permit for the public exhibition of a motion picture be obtained. A permit could only be received by submitting the motion picture to an examining board which had authority to refuse a permit when certain decency standards were not met. A denial of a permit would therefore be content-based and restrain future showings. The Court treated the ordinance as a prior restraint. Id. at 48-49, 81 S.Ct. at 394. See also Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), the Court held a practice by a Rhode Island commission to be a prior restraint. The Rhode Island legislature created a commission whose practice was to review books and magazines to determine their appropriateness for people under eighteen years of age. The commission would then inform the dealers of the objectionable materials of the commission's findings, request their cooperation and advise them that it was the commission's duty to recommend prosecution of distributors of pornography. The court found that the commission's practice severely intimidated the distribution of...

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