Gate Film Club v. Pesce

• Citation: 236 F. Supp. 828
• Parties: GATE FILM CLUB, Plaintiff, v. Louis M. PESCE, Defendant.
• Decision Date: 11 June 1964
• Court: U.S. District Court — Southern District of New York

236 F. Supp. 828

GATE FILM CLUB, Plaintiff, v. Louis M. PESCE, Defendant.

United States District Court S. D. New York.

June 11, 1964.

Emanuel Redfield, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen., Albany, N. Y., for defendant; Paxton Blair, Sol. Gen., Ruth Kessler Toth, Asst. Sol. Gen., of counsel.

CASHIN, District Judge.

There are two motions presented to the court for determination in the captioned action. First, plaintiff seeks an order for a preliminary injunction enjoining defendant from interfering with the public exhibition of unlicensed motion picture films, and for the convening of a statutory court of three judges pursuant to 28 U.S.C. §§ 2281, 2284 to determine this application. Second, defendant moves for an order dismissing the complaint.

Prior to any discussion of the motions, a detailed examination of the allegations of the complaint is necessary. Plaintiff, Gate Film Club, is a New York copartnership consisting of James McBride and Jack Baran, doing business under the name of Gate Film Club. Plaintiff is engaged in the business of exhibiting motion pictures to the public, for which service it charges admission fees. Defendant, Louis M. Pesce, is the Director of the Division of Motion Pictures of the Board of Regents of the University of the State of New York.

According to the allegations of the complaint, from January 1964 until the first two weeks in March 1964, plaintiff exhibited films to the public at the Gate Theatre, a theatre in New York City rented by plaintiff for that purpose. Plaintiff had scheduled the showing of four films there for Monday, March 16, 1964, and had advertised the performance.

Prior to that date, however, defendant notified plaintiff and the owner of the theatre that the motion pictures were required to be submitted to defendant for license through the Division of Motion Pictures, pursuant to the provisions of the Education Law of the State of New York. (N. Y. Education Law, McKinney's Consol. Laws, c. 16, §§ 120-132). He also told them that if the films were shown without such license plaintiff and the theatre owner would be prosecuted criminally.

The complaint further alleges that plaintiff objected to this requirement on the ground that it was an invasion of plaintiff's constitutional right of freedom of expression under the First Amendment of the United States Constitution. Plaintiff refused to apply for a license. According to the complaint, defendant repeated his threats to the theatre owner and, as a result, the March 16, 1964 exhibition was forbidden by the owner and the performance cancelled. At about 6 o'clock on the night of the scheduled performance, defendant and a representative of the Department of Licenses of the City of New York appeared at the Gate Theatre and were present when the theatre owner rejected the plaintiff's formal demand to be permitted to exhibit the films. Plaintiff sought other premises for the showing, but lack of sufficient time prevented the performance that day.

The complaint further alleges that plaintiff desires to show the motion pictures in question, and similar ones, without submitting them to defendant for licensing.

The essence of the action, therefore, is that plaintiff is seeking to exhibit to the public for admission prices in New York State, a program of motion pictures without obtaining a license from the Department of Education of the State of New York.

The complaint concludes with a demand for an injunction and a declaratory judgment that the "applicable laws" of New York are unconstitutional, and a demand that a three-judge court be convened to hear the case. Plaintiff has moved for a preliminary injunction, and defendant has moved for dismissal of the complaint.

There is no claim made in the complaint that the administrative procedure for the obtaining of a license does not provide adequate notice or hearing. The effect of the complaint is to make a broadside attack on the constitutionality of a licensing requirement as such. On the allegations of unconstitutionality of the "applicable laws" and the absence of an adequate remedy at law, plaintiff asks this court to initiate the extraordinary procedure provided for in 28 U.S.C. §§ 2281, 2284.

The rules for determining whether the three-judge procedure is warranted were laid down in such cases as Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L. Ed. 800 (1941); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex Parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The three-judge requirement is a technical one and is to be construed narrowly. Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. 480. "It is * * * the duty of a district judge, to whom an application for an injunction restraining the enforcement of a state statute or order is made, to scrutinize the bill of complaint to ascertain whether a substantial federal question is presented * * *." California Water Service Co. v. City of Redding, supra, 304 U.S. at 254, 58 S.Ct. at 866. That a federal question lacks substance "may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this Supreme court as to foreclose the subject." Id. at 255, 58 S.Ct. at 867. See also Flamm v. Hughes, 329 F.2d 378 (2 Cir. 1964).

Applying these standards to this case, plaintiff has not shown any circumstances which would necessitate the convening of a three-judge court. The statute which p...