Goldstein v. Allain, Civ. A. No. GC83-141-LS-0.

• Decision Date: 20 July 1983
• Docket Number: Civ. A. No. GC83-141-LS-0.
• Citation: 568 F. Supp. 1377
• Parties: Nathan GOLDSTEIN, II; Golden Distributors, Inc., A Mississippi Corporation; T.E. Lloyd; Tom Morrow; C.J. Collier; Starkville Theatres, Inc., A Mississippi Corporation; Juanita Maxey; H.B. Pankey and Terrie Pankey, A General Partnership; Frank Countryman; Richard Heard; Susan Heard; Hill City News and Novelty, Inc., A Mississippi Corporation; C. Kernell Roberts; Vincent P. Clements; Star-Satellite, Inc., A Mississippi Corporation; O.D. York; Fernwood Books and Novelty, Inc., A Mississippi Corporation; Capitol News and Novelty, Inc., A Mississippi Corporation; Louise L. Hazel; and Select Books and Novelty, Inc., A Mississippi Corporation, Plaintiffs, v. Bill ALLAIN, Attorney General of the State of Mississippi, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

568 F. Supp. 1377

Nathan GOLDSTEIN, II; Golden Distributors, Inc., A Mississippi Corporation; T.E. Lloyd; Tom Morrow; C.J. Collier; Starkville Theatres, Inc., A Mississippi Corporation; Juanita Maxey; H.B. Pankey and Terrie Pankey, A General Partnership; Frank Countryman; Richard Heard; Susan Heard; Hill City News and Novelty, Inc., A Mississippi Corporation; C. Kernell Roberts; Vincent P. Clements; Star-Satellite, Inc., A Mississippi Corporation; O.D. York; Fernwood Books and Novelty, Inc., A Mississippi Corporation; Capitol News and Novelty, Inc., A Mississippi Corporation; Louise L. Hazel; and Select Books and Novelty, Inc., A Mississippi Corporation, Plaintiffs, v. Bill ALLAIN, Attorney General of the State of Mississippi, et al., Defendants.

Civ. A. No. GC83-141-LS-0.

United States District Court, N.D. Mississippi.

July 20, 1983.

COPYRIGHT MATERIAL OMITTED

John H. Weston, Robert Sarno, David M. Brown, G. Randall Garrou, Brown, Weston & Sarno, Beverly Hills, Cal., W. Wayne Drinkwater, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for plaintiffs.

Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

SENTER, District Judge.

The Mississippi Legislature recently enacted House Bill No. 345, an Act proscribing the distribution or possession with intent to distribute obscene materials; the law will become effective on July 1, 1983.¹ The plaintiffs have brought this action attacking the statute on a wide range of constitutional issues and request a preliminary injunction restraining the defendants from enforcing the statute pending a full and complete hearing on the merits of the plaintiffs' claims. The court having read and considered the affidavits filed by plaintiffs, together with memoranda of authorities filed by all parties, makes the following findings, to-wit:

At the present stage of the proceedings, the sole inquiries before the court are (1) whether the plaintiffs in this action have standing to challenge the constitutionality of the statute at issue; (2) whether this is a proper case in which to invoke Younger and/or Pullman abstention; (3) the propriety of preliminarily enjoining the enforcement of the statute pending a final determination of the merits of plaintiffs' challenges to the constitutionality of the statute; and (4) whether severance by this court of those words or phrases found repugnant to the Constitution would be appropriate.

I.

The first issue which we must address is whether the plaintiffs have alleged a case or controversy within the meaning of Article III of the Constitution. A plaintiff who challenges a statute must, in order to invoke the jurisdiction of the court, demonstrate a realistic danger of sustaining a direct injury as a result of the statutes operation or enforcement. Initially, it is important to note that:

The ordinary injury-in-fact requirement for standing is properly relaxed in the case of facial overbreadth challenges "because of the `danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping improper application....'" Anticipatory constitutional challenges should not lightly be dismissed for lack of a justiciable controversy because, as our Circuit recently observed, they "play a most vital role in modern efforts to enforce constitutional rights...."

Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1033 (5th Cir., 1981) (citations omitted). This is not to say, however, that a justiciable controversy is presented by all cases in which the plaintiff alleges that a statute unconstitutionally deters the exercise of a constitutional right. An anticipatory challenge to a statute's constitutionality must grow out of a "real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Worker's Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citations omitted). In order to meet the injury-in-fact requirement, therefore, the plaintiffs in this action must demonstrate a realistic danger of sustaining a direct injury — that is, a realistic, rather than speculative, fear of state prosecution. In all but one instance, the plaintiffs have met this requirement. The verified affidavits of the plaintiffs clearly show that they are all persons engaged in the distribution of sexually oriented materials and that they legitimately fear state prosecutions under the challenged legislation. Thus, the plaintiffs have successfully established a case and controversy sufficient to satisfy the injury-in-fact requirement of Article III of the Constitution insofar as they challenge the statute's regulation of the distribution of published books, magazines, periodicals, films, video tapes, sexual aids or any other form of processed materials generally distributed, exhibited, sold, or rented. The plaintiffs have, however, failed to show that they are in any way involved in the processing or distribution of undeveloped photographs, molds, printing plates, and the like. As a result, the plaintiffs have failed to show any injury-in-fact which may result to them by H.B. 345 § 2(2)'s inclusion of undeveloped photographs, molds, printing plates, etc., within its definition of obscene material. Any injury which may result to the plaintiffs by the state's application of this provision is, to say the least, merely speculative. The plaintiffs thus lack standing to challenge the constitutionality of H.B. 345 § 2(2). It should be noted, however, that if plaintiffs were to be joined by persons engaged in the processing or distribution of undeveloped photographs, molds, printing plates, and the like, there is a possibility that they could succeed on their claim that § 2(2) constitutes an impermissible prior restraint. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). An excellent discussion of this problem can be found in In re Klor, 51 Cal.Rptr. 903, 415 P.2d 191 (1966).

II.

The next question which this court must address is, in light of the factual situation presented, would it be appropriate to invoke Younger or Pullman abstention in this action. It is clear that no state prosecutions under H.B. 345 have been brought against any of the plaintiffs, for the statute will not go into effect until July 1, 1983. Younger abstention, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 745, 27 L.Ed.2d 669 (1971), would not, therefore, be appropriate in this instance. "Considerations of ... comity in our federal system ... have little force in the absence of a pending state proceeding." Lake Carriers Association v. MacMullen, 406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). In addition, Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), counsels in favor of abstention only when there is an unsettled question of state law which promises to dispose of the case without the need for constitutional adjudication. The plaintiffs have not challenged any portion of the statute on the basis of purported ambiguity. Nor have the defendants asserted any ambiguous aspect of this statute that might be saved from possible invalidation by a narrowing judicial construction. Instead, they urge abstention solely on the ground that the Mississippi courts should be given the first opportunity to review the statute. Plainly, abstention cannot be justified "merely because state courts also have the solemn responsibility equally with the federal courts" to hear and decide federal constitutional claims. Septum, Inc. v. Keller, 614 F.2d 456, 461 (5th Cir.1980) (citations omitted). This is especially true in a suit seeking review of a statute which will purportedly exert a chilling effect on First Amendment rights. Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1032 (5th Cir. 1981). This court, therefore, declines the defendant's invitation to invoke Pullman abstention in this case.

III.

This court has considered plaintiff's motion requesting a preliminary injunction restraining the named defendants from enforcing H.B. 345. The four prerequisites for issuance of a preliminary injunction are:

(1) A substantial likelihood that plaintiff will prevail on the merits; (2) a substantial likelihood that plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendants; and (4) that granting the preliminary injunction will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1979). In determining whether a preliminary injunction should issue, the court must first determine whether the plaintiffs have shown a substantial likelihood of success on the merits. In order to determine the plaintiffs' likelihood of success on the merits of this action, it will be necessary to address briefly each of their constitutional claims.

The plaintiffs allege numerous constitutional infirmities in this statute but for purposes of this preliminary injunction, their attack has focused on the following five claims:

A. The Exemptions Contained Within H.B. 345 § 4(1)(d) Violate the Free Speech and Equal Protection Guaranties of the First and Fourteenth Amendments.

It is well settled that a state has the power to regulate the distribution of obscene materials, for obscenity is not protected by the First Amendment. Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Plaintiffs contend, however, that these exemptions are a form of preferential treatment by government among the different media of communication and are, therefore, suspect and subject to strict scrutiny. (Plaintiffs' brief at 17.) Strict scrutiny of legislative classifications is, however, required only when the classification impermissibly interferes with the exercise of a fundamental right. Massachusetts Board of...