Delta Book Distributors, Inc. v. Cronvich, Civ. A. No. 68-1927

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: WISDOM, Circuit , and BOYLE and RUBIN
• Citation: 304 F. Supp. 662
• Docket Number: 69-322.,Civ. A. No. 68-1927
• Decision Date: 03 September 1969
• Parties: DELTA BOOK DISTRIBUTORS, INC., Charles S. Rhody, Ronald J. Walker, Fernin J. Farrell, Lawrence P. Pittman, August M. Ledesma, and Harold J. Speiss, Plaintiffs, v. Alwynn J. CRONVICH, Individually and as Sheriff for the Parish of Jefferson, State of Louisiana; Walter Lightell, Individually and as a Captain assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; Willard J. Lemoine, Individually and as a Detective assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; George Frisch, Individually and as a Detective assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; and Salvatore Lentini, Individually and as Marshal of the Town of Kenner, Parish of Jefferson, State of Louisiana, Defendants. August M. LEDESMA, Jr., Harold J. Speiss, and Lawrence P. Pittman, Plaintiffs, v. Leander H. PEREZ, Jr., Individually and as District Attorney for the Twenty-Fifth Judicial District, State of Louisiana; Louis Reichart, Individually and as Captain in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana; George Bethea, Individually and as a Deputy in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana; and Earl Wendling, Individually and as a Deputy in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana, Defendants.

304 F. Supp. 662

DELTA BOOK DISTRIBUTORS, INC., Charles S. Rhody, Ronald J. Walker, Fernin J. Farrell, Lawrence P. Pittman, August M. Ledesma, and Harold J. Speiss, Plaintiffs,
v.
Alwynn J. CRONVICH, Individually and as Sheriff for the Parish of Jefferson, State of Louisiana; Walter Lightell, Individually and as a Captain assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; Willard J. Lemoine, Individually and as a Detective assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; George Frisch, Individually and as a Detective assigned to the Vice Squad of the Sheriff's Office in the Parish of Jefferson, State of Louisiana; and Salvatore Lentini, Individually and as Marshal of the Town of Kenner, Parish of Jefferson, State of Louisiana, Defendants.
August M. LEDESMA, Jr., Harold J. Speiss, and Lawrence P. Pittman, Plaintiffs,
v.
Leander H. PEREZ, Jr., Individually and as District Attorney for the Twenty-Fifth Judicial District, State of Louisiana; Louis Reichart, Individually and as Captain in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana; George Bethea, Individually and as a Deputy in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana; and Earl Wendling, Individually and as a Deputy in the Sheriff's Office in the Parish of St. Bernard, State of Louisiana, Defendants.

Civ. A. Nos. 68-1927, 69-322.

United States District Court E. D. Louisiana, New Orleans Division.

July 14, 1969.

Dissenting Opinion September 3, 1969.

304 F. Supp. 663

COPYRIGHT MATERIAL OMITTED

304 F. Supp. 664

Jack Peebles, Metairie, La., for plaintiffs

A. W. Wambsgans, Metairie, La., James F. Quaid, Jr., New Orleans, La., Charles H. Livaudais, Chalmette, La., for defendants.

Before WISDOM, Circuit Judge, and BOYLE and RUBIN, District Judges.

BOYLE, District Judge:

These actions arise from the arrest by the defendant law enforcement officers in Jefferson¹ and St. Bernard² Parishes, Louisiana, of the individual plaintiffs and the incidental seizures of quantities of publications claimed to be obscene.

Those plaintiffs, residents of the Parishes of Orleans and Jefferson, are the owners and operators of newsstands in both Parishes. The corporate plaintiff, Delta Book Distributors, Inc., is a New York corporation engaged in the business of distributing books and magazines to newsstands, including those of the individual plaintiffs.

Jurisdiction is asserted and exists under 28 U.S.C. §§ 1331, 1343, 2201 and 2281 and 42 U.S.C. § 1983.

The facts in both cases are substantially parallel. In both, the arrests

304 F. Supp. 665

and seizures were made without warrants and without prior adversary judicial hearing on or determination of the claimed obscene character of the seized materials. In both, publications similar to those seized were purchased by the enforcement officers³ prior to the arrests

Following their arrests two-count bills of information were filed against the individual plaintiffs in the Delta Book case⁴ and against only one of the plaintiffs in the Ledesma case, namely, August M. Ledesma, Jr.,⁵ charging violations of the Louisiana obscenity statute. Additionally, Ledesma was charged in two bills⁶ with violations of the St. Bernard obscenity ordinance,⁷ which, prior to the hearing herein, had been nolle prosequied.

The charges⁸ filed against Ledesma in St. Bernard Parish were laid under Louisiana Revised Statutes, Title 14, Section 106, subsections A(2) and A (3).⁹ Those¹⁰ against the Delta Book plaintiffs in Jefferson Parish were brought under the same subsections of the Louisiana statute in addition to subsection A(7).¹¹

Unlike the St. Bernard Parish officers, who seized forty-five publications and a deck of playing cards, while leaving more than three hundred similar publications, the Jefferson Parish officers seized all copies of the alleged offending publications, including multiple

304 F. Supp. 666

copies of some, which could be found on the premises.¹²

In both cases, the Federal constitutional issues raised herein were presented to the respective State Trial Courts in Motions to Quash the bills of information and to Suppress the seized evidence and were decided adversely to the plaintiffs herein.

In view of the result we reach, it is unnecessary in either case to consider whether the seized publications are in fact obscene.¹³

The principal relief prayed for in each case is identical,¹⁴ viz., a declaratory judgment decreeing the Louisiana statute unconstitutional (a) on its face and (b) as applied to the plaintiffs; preliminary and permanent injunctions enjoining the defendants¹⁵ (a) from prosecuting the plaintiffs under the pending charges, (b) from prosecuting them for violation of the statute in the future and (c) from seizing materials in the future (1) without a prior adversary judicial proceeding and (2) without a warrant; the return of the seized materials and damages.

We have for decision all issues, except the issue of damages which was severed and reserved for the single Judge Court.

The guarantee of freedom of speech embodied in the First Amendment to the United States Constitution does not extend to obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Consequently, obscene utterances and materials, properly defined, may be the subject of Federal and State regulation or suppression. However, since "constitutionally protected expression * * * is often separated from obscenity only by a dim and uncertain line,"¹⁶ any attempt, be it Federal or State, to regulate or suppress allegedly obscene material must be closely scrutinized to the end that protected expression is not abridged in the process. Accordingly, "the Constitution requires a procedure `designed to focus searchingly on the question of obscenity' before speech can be regulated or suppressed. Marcus v. Search Warrants, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127," and "the dissemination of a particular work, which is alleged to be obscene, should be completely undisturbed until an independent determination of obscenity has been made by a judicial officer, including an adversary hearing. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211, 84 S.Ct. 1723, 12 L.Ed.2d 809; Metzger v. Pearcy, 7 Cir., 393 F.2d 202,

304 F. Supp. 667

204; United States v. Brown, S.D.N.Y., 274 F.Supp. 561; Cambist Films, Inc. v. Illinois, N.D.Ill., Eastern Div., 292 F.Supp. 185, decided October 21, 1968."¹⁷

Since prior restraint upon the exercise of First Amendment rights can be exerted through seizure¹⁸ (with or without a warrant) of the allegedly offensive materials, arrest (with or without a warrant) of the alleged offender or through the threat of either or both seizure and arrest, the conclusion is irresistible in logic and in law that none of these may be constitutionally undertaken prior to an adversary judicial determination of obscenity.¹⁹

We are mindful of the fact that even attempts to regulate obscenity incorporating procedures for affording the required adversary hearing would themselves constitute prior restraints.²⁰ For example, it might be argued that the expense of legal representation at such hearings, the apprehension as to whether or not the allegedly obscene materials should continue to be sold pending the outcome of the hearing and soforth would serve to "chill"²¹ First Amendment rights. We can readily conceive, therefore, that much litigation would be spawned by the adoption of adversary hearing procedures. Nonetheless, it is apparent that there must be some permissible prior restraint, be it however subtle, if obscenity is not protected by the First Amendment and State attempts to regulate it are to be enforceable. It is left to those states seeking to regulate obscenity to devise constitutionally acceptable procedures for the enforcement of any such regulations. However, these procedures, among others, may have to incorporate provisions immunizing alleged violators from criminal liability for any activities occurring prior to an adversary judicial determination of the fact of obscenity.

Applying these principles to the cases before us, the arrests, as well as the seizures claimed to be incident thereto, are clearly invalid for lack of a prior adversary determination of the obscenity of the materials upon which the arrests and seizures were based. The fact that in each case some materials were purchased rather than seized is of no moment in view of the requirement of an adversary determination of obscenity prior to arrest or threat of arrest.²²

We turn now to the specific relief prayed for in each of the suits.

Initially, we are asked to declare the Louisiana Obscenity Statute²³ unconstitutional on its face and as applied. This same relief is sought with respect to the St. Bernard Parish Obscenity Ordinance.²⁴ Since the Louisiana statute is composed of three lettered paragraphs, with Paragraph "A", defining obscenity, being further subdivided into seven subparts each of which delineates a separate offense, we address ourselves solely to those subsections under

304 F. Supp. 668

which any plaintiff was charged in either of the cases.²⁵ The subsections of Paragraph "A" with which we are concerned are "(2)", "(3)" and "(7)"

The plaintiffs contend that the statute is unconstitutional on its face because it defines obscenity too broadly, affords no ascertainable standard of guilt, and lacks the required element of scienter.

We are aware of the United States Supreme Court's per curiam reversal in Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1967), citing only Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), also a per curiam opinion. In view of the fact that the decision of the Louisiana Supreme Court in Henry (reported at 250 La. 682, 198 So.2d 889) not only upheld the constitutionality of La.R.S. 14:106, subsection...