Dykema v. Bloss

• Decision Date: 09 May 1969
• Docket Number: Docket No. 5365,No. 3,3
• Parties: Steven L. DYKEMA, City Attorney of the City of Grand Rapids, Michigan, Plaintiff-Appellee, v. Floyd BLOSS and the Kent County Theater Corporation, a Michigan corporation, their officers, agents, and employees, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 367

169 N.W.2d 367

17 Mich.App. 318

Steven L. DYKEMA, City Attorney of the City of Grand Rapids, Michigan, Plaintiff-Appellee, v. Floyd BLOSS and the Kent County Theater Corporation, a

Michigan corporation, their officers, agents, and

employees, Defendants-Appellants.

Docket No. 5365.

Court of Appeals of Michigan, Division No. 3.

May 9, 1969.

Released for Publication July 30, 1969.

John W. Piggott, Thompson, McCormick, Piggott & Manary, Bay City, for appellants.

Steven L. Dykema, City Atty., Grand Rapids, for appellee.

Before LEVIN, P.J., and HOLBROOK, and DANHOF, JJ.

HOLBROOK, Judge.

This cause was commenced March 7, 1968, by the city attorney of the city of Grand Rapids, Michigan, requesting a permanent injunction restraining Floyd Bloss and the Kent County Theater Corporation, a Michigan corporation, defendants and their officers, agents, and employees from the further sale, distribution and acquisition or possession for sale of certain allegedly obscene booklets or magazines submitted as exhibits A through D with the complaint and exhibits 1 through 15 and exhibit 19 submitted with amended complaints. Further relief was requested for their seizure and destruction.

The cause was heard on March 15 and 16, 1968, at the request of counsel for defendants and stipulation by plaintiff's counsel. On March 18, 1968, the Honorable John T. Letts, presiding judge, filed his written opinion, and in accord with the opinion on the same day a judgment was filed holding all the booklets and magazines in question obscene and enjoining their further sale, distribution and acquisition or possession for sale by defendants. It was also ordered that the copies of these booklets in possession of defendants be delivered to the sheriff and destroyed. The execution of this order was stayed at the request of defendants' counsel. The defendants appeal and raise 2 questions for consideration by this Court, Viz.:

(1) Did the trial court err in determining exhibits 1 through 15 and exhibit 19 obscene?

(2) Did the trial court err in admitting exhibit 19 comprising several booklets taken from defendant's book store by police officers upon authority of and in the presence of the city attorney when they were there for the purpose of serving legal process and a temporary restraining order on defendants and their agents?

This action is authorized under C.L.S.1961, § 600.2938 (Stat.Ann.1962 Rev. § 27A.2938) which provides in pertinent part as follows:

'(1) The chief executive or legal office of any city, village or charter township or prosecuting attorney of the county may institute and maintain an action in the circuit court against any person, firm or corporation to enjoin and prevent the sale or further sale or the distribution or further distribution or the acquisition or possession of any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure or image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which contains an article or instrument of indecent or immoral use or purports to be for indecent or immoral use or purpose. * * *

'(4) A preliminary injunction or restraining order may be issued upon or at any time after the filing of the complaint. The person, firm or corporation sought to be enjoined is entitled to a trial of the issues within 1 day after joinder of issue and a decision shall be rendered by the court within 2 days of the conclusion of the trial.

'(5) If a final order or judgment of injunction is entered in favor of such officer of the city, village or charter township and against the person, firm or corporation sought to be enjoined, the final order or judgment shall contain a provision directing the person, firm or corporation to surrender to the sheriff of the county in which the action was brought any of the matter described in (1) and the sheriff shall be directed to seize and destroy the same.'

Defendants cannot contest the legality of this proceeding under the foregoing statute permitting an injunction to issue and the destruction of copies of the booklets found to be obscene by the court, because in the case of Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, a nearly identical New York State statute was upheld in its entirely as constitutional.

It appears in the facts that the plaintiff is the city attorney of the city of Grand Rapids. Floyd Bloss, defendant is the owner of the Capri Book Store and Library and is also the owner of the corporate defendant that operates the Capri Theater. In effect he was responsible for both the operation of the Capri Theater and the Capri Book Store and Library. The theater shows adult movies and on occasion it advertises and permits admission without charge. There was consistently shown on the screen at the theater a trailer advertising the Carpi Book Store and Library located about a block away. The defendant also maintained in the theater an advertising display for free inspection of the type of material and books for sale at the book store. Some of the booklets found by the trial court to have been obscene were in this display.

All of the exhibits found obscene by the court except exhibit 19 were purchased from the Capri Book Store by witnesses who testified at the trial for plaintiff. The purchase price of these booklets was tremendously in excess of the cost of similar sized conventional booklets or magazines. The booklets comprising exhibit 19 were duplicates of some of exhibits 1 through 15 and other different booklets. These were taken from defendants' book store by the officers and city attorney when they went to the book store to serve defendants and their agents with legal process.

The entrance to the Capri Book Store and Library is in an alcove shared by a branch office of the Secretary of State. Certain of the booklets in the book store can be viewed from the outside.

The plaintiff and defendants have cited in their briefs a great number of cases in support of their positions. They are too numerous to be dealt with individually herein. There are certain cases that are basic to the law of obscenity and essential to be considered and followed in making a correct decision in the instant case.

The cases of Roth v. United States and Alberts v. California (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 were decided together. One required the construction of a federal statute (in Roth) providing that obscene, lewd, lascivious, filthy, or indecent material is not mailable and that whoever knowingly deposits such material for mailing or delivery is criminally punishable. The California statute (in Alberts) makes criminally punishable every person who wilfully and lewdly writes or otherwise produces obscene or indecent material, or who writes or otherwise produces any notice or advertisement of any such material. Both defendants were prosecuted, convicted and appealed their convictions finally to the United States Supreme Court.

In speaking for the majority of the Court, Mr. Justice Brennan stated as follows (pp. 481--492, 77 S.Ct. pp. 1307--1313):

'The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. (Cases cited)

'The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish 'any filthy, obscene, or profane song, pamphlet, libel or mock sermon' in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass. Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.

'In light of this history it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterance are not within the area of constitutionally protected speech. Beauharnais v. People of State of Illinois (1952), 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.

'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:

"The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.' 1 Journals of the Continental Congress 108 (1774).

'All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach...