Grove Press, Inc. v. Bailey

• Decision Date: 14 August 1970
• Docket Number: Civ. A. No. 69-770.
• Citation: 318 F. Supp. 244
• Parties: GROVE PRESS, INC., a New York Corp. v. Melvin BAILEY, Sheriff of Jefferson County, Alabama, David Orange, Deputy Sheriff of Jefferson County, Alabama, Earl Morgan, District Attorney of Jefferson County, Alabama, Harry Pickens, Deputy District Attorney of Jefferson County, Ala., and Jay W. Morris, Chief of Police of the City of Midfield, Ala.
• Court: U.S. District Court — Northern District of Alabama

318 F. Supp. 244

GROVE PRESS, INC., a New York Corp. v. Melvin BAILEY, Sheriff of Jefferson County, Alabama, David Orange, Deputy Sheriff of Jefferson County, Alabama, Earl Morgan, District Attorney of Jefferson County, Alabama, Harry Pickens, Deputy District Attorney of Jefferson County, Ala., and Jay W. Morris, Chief of Police of the City of Midfield, Ala.

Civ. A. No. 69-770.

United States District Court, N. D. Alabama, S. D.

August 14, 1970.

COPYRIGHT MATERIAL OMITTED

Douglas Corretti, Corretti, Newsom, Rogers & May, Birmingham, Ala., H. Powell Lipscomb, Lipscomb & Lipscomb, Bessemer, Ala., for plaintiff.

Norman K. Brown, Harry E. Pickens, Bessemer, Ala., for defendants.

Before RIVES, Circuit Judge, and ALLGOOD and McFADDEN, District Judges.

MEMORANDUM OPINION

PER CURIAM.

This cause is before the Court upon petition of plaintiff for declaratory judgment and injunctive relief. The jurisdiction of this Court is based upon diversity of citizenship and a federal question.

The events which led to the filing of this petition are as follows: On November 21, 1969, plaintiff's motion picture film, "I Am Curious (Yellow)", was being shown for the first time in the State of Alabama at the Midfield Theatre in Midfield, Alabama, by its licensee Halmark Cinemas of Birmingham, Inc. This motion picture had been booked into the Midfield Theatre by the licensee to be exhibited therein on November 21, 1969 and for an indefinite period of time thereafter. At 2:00 P.M. on November 21, 1969, the time scheduled for the first exhibition, a number of uniformed and plain-clothes law enforcement officers of Jefferson County, Alabama, including the defendants, entered the Midfield Theatre—some of them paying the regular admission charge, and some of them requesting to be admitted on passes—and viewed the motion picture film "I Am Curious (Yellow)". Approximately 45 minutes after completion of the first showing one of the defendants, Sheriff Melvin Bailey, Sheriff of Jefferson County, Alabama, stated to Mrs. Kathryn C. Cooper, Manager of the Midfield Theatre, that if the motion picture "I Am Curious (Yellow)" was exhibited at the next scheduled showing, 7:30 P.M., that she would be placed under arrest for violation of the State of Alabama's newly enacted obscenity law, Act No. 698, p. 1252,¹ passed by the last regular session of the 1969 Alabama Legislature. Simultaneously, Mrs. Cooper was served by defendants Sheriff Melvin Bailey and Harry Pickens, Deputy District Attorney of Jefferson County, Alabama, with their respective written notices, as required under Section 4 of Act No. 698, which stated in substance that after having viewed the motion picture "I Am Curious (Yellow)" it was their opinion that the movie was obscene, and that further showings thereof would constitute a violation of Act No. 698 for which arrests would be made. Section 4 of Act No. 698 reads in its entirety as follows:

Section 4. (a) No prosecution may be commenced against any person for violating Sections 2 and 3 of this Act unless the accused is first served with prior written notice that there is reasonable cause to believe the material upon which such prosecution is based violates this Act, and the accused has, after receiving such notice violated this Act.

(b) The written notice provided for in paragraph (a) of this Section 4 may be given by only the following officials: the State Attorney General and any Assistant Attorney General; the district attorney, county solicitor, their assistants and deputies, or any person whose office and duty is to prosecute criminal actions before any state, county or municipal court; the sheriff; the chief of police of any municipality or town; and the duly authorized law enforcement employees of the Department of Public Safety.

(c) Any person receiving such written notice provided for in paragraph (a) of this Section 4 shall have the right within 30 days from such notice to file an appropriate action for declaratory judgment to determine the validity of such written notice, but no such action shall, by reason of the commencement thereof, stay or in any way delay or postpone any prosecution for the violation of this Act.

Upon receipt of these notices, Mrs. Cooper discontinued further exhibition of the motion picture during the remainder of that day.

The following day, Mrs. Cooper filed a bill of complaint in the Circuit Court of the Tenth Judicial Circuit of Alabama, Bessemer Division, In Equity, seeking a temporary Writ of Injunction restraining the defendants herein and all persons acting in concert with them from arresting the complainant or any of the employees of Midfield Theatre for exhibiting the motion picture film "I Am Curious (Yellow)." On the day of filing, the Circuit Court granted the temporary Writ of Injunction and dissolved it four days later on November 26, 1969. The Court in its decree stated:

* * * the Court, having looked at and viewed this picture film (I Am Curious Yellow), the Court is of the opinion that respondents Motion to Dissolve and Motion to Discharge should be granted and it is the opinion of the Court that the movie is obscene according to the community standards of the Bessemer Division of the County.

That same day plaintiff herein filed this action.

On December 15th and 17th the matter was set down for special hearing before a single judge, McFadden, J., of this Court, on plaintiff's application for a temporary restraining order pending the impaneling of the requested three-judge court. Having received the testimony of the parties the Court entered the following order:

It is ORDERED that the prayer of the plaintiff for such restraining order be, and the same is hereby, denied. However, plaintiff is entitled to have possession of its property, the film, and the defendants are hereby directed not to interfere with the peaceful possession of said film by the plaintiff.

Plaintiff is hereby directed not to make any alterations, changes, deletions or additions to said film and to preserve it intact for production on the order of the Court.

The case was then set down for hearing on February 2, 1970, before this three-judge court.

The jurisdiction of this Court is invoked pursuant to Tit. 42 U.S.C. § 1983, Tit. 28 U.S.C. §§ 1331, 1332, 1343 and 1343(4), and Tit. 28 U.S.C. § 2281, et seq.

INJUNCTIVE RELIEF

Plaintiff in its complaint asks this Court to enjoin the defendants, and all persons in active concert with them, from seizing any of the prints of the motion picture film "I Am Curious (Yellow)", or threatening to do so, or arresting the theatre manager or other employees of the Midfield Theatre, or otherwise threatening or interfering with the showing of said motion picture; further, to enjoin the defendants from seizing any similarly-rated motion picture film arbitrarily and without a prior bona fide adversary hearing on the question of obscenity vel non. In support of its application for injunctive relief, plaintiff in substance contends that:

(1) the motion picture film "I Am Curious (Yellow)", as a matter of law, is not obscene and is Constitutionally protected material;

(2) the defendants have by the issuance of their respective written notices of November 21, 1969 to the manager of the Midfield Theatre, and by their threats to arrest her and seize the print of the motion picture film "I Am Curious (Yellow)", acted in bad faith and for the purpose of interfering with the distribution and exhibition of said motion picture film;

(3) the defendants have by their conduct acted contrary to the rights, privileges and immunities guaranteed plaintiff by the First, Fourth and Fourteenth Amendments to the Constitution of the United States, and as a proximate result thereof have unconstitutionally applied Act No. 698 in this case;

(4) plaintiff has by virtue of the said conduct of defendants, and by virtue of defendants' labeling and characterizing the motion picture film "I Am Curious (Yellow)" as obscene, caused plaintiff to suffer irreparable injury and damage in that plaintiff will be prevented from the free and uninterrupted dissemination and exhibition of said motion picture film as guaranteed by the Constitution;

(5) said threats of arrest and seizure have produced a chilling effect on the Constitutionally protected rights of the plaintiff and members of the public over 18 years of age;

(6) the said motion picture film produces revenue for the plaintiff and its licensees totaling in excess of $4,000 per day; and

(7) the conduct of the defendants has caused a large number of adult members of the public not to attend the showing of said motion picture, thereby depriving plaintiff of large gains and proceeds.

Plaintiff relies on Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), which held that the petitioners therein were entitled to an injunction to prevent state law enforcement officers from prosecuting them or threatening to prosecute them under a State statute which was held to be so broad and vague that it interfered unconstitutionally with First Amendment rights. Dombrowski was an attack upon Louisiana statutes on subversive activities and the "Communist Propaganda Control Law." Plaintiffs were active in the Negro Civil Rights movement and claimed the threatened prosecutions did not really seek convictions but were designed to harass and limit their right to free speech. The Dombrowski doctrine, as it is now referred to by Professor Wright,² establishes the rule that federal courts will grant injunctive relief only in exceptional circumstances "to prevent irreparable injury which is clear and imminent." These special circumstances have been held to be a showing of clear and irreparable injury, inadequacy of state remedies, or the circumstances set out in the Dombrowski case— invalid State laws and/or bad faith enforcement of valid State laws to restrict the exercise of valid First Amendment rights. The Court stated that the prospect of a...