Grove Press, Inc. v. Flask

• Decision Date: 10 March 1970
• Docket Number: No. C 69-735.,C 69-735.
• Parties: GROVE PRESS, INC., et al., Plaintiffs, v. Anthony B. FLASK et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

326 F. Supp. 574

GROVE PRESS, INC., et al., Plaintiffs, v. Anthony B. FLASK et al., Defendants.

No. C 69-735.

United States District Court, N. D. Ohio, Eastern Division.

March 10, 1970.

COPYRIGHT MATERIAL OMITTED

Berkman, Gordon & Kancelbaum, Cleveland, Ohio, for plaintiffs.

Vincent E. Gilmartin, Mahoning County Prosecutor, Youngstown, Ohio, for defendants.

Before CELEBREZZE, Circuit Judge, BATTISTI, Chief District Judge, and GREEN, District Judge.

CELEBREZZE, Circuit Judge.

This action was originally filed on September 16, 1969. Plaintiffs seek declaratory relief on the constitutionality of certain state statutes, injunctive relief from the allegedly unlawful conduct of certain public officials with regard to the film, "I Am Curious (Yellow)," and a declaratory judgment that the film is protected constitutional matter.

After the filing of the petition, the plaintiffs sought an immediate temporary restraining order pending disposition of the case, which was denied. The District Court set September 23, 1969 for a hearing on the application for the preliminary injunction. After initial oral arguments, the case was dismissed without prejudice for failure to seek a three-judge District Court in conformity with Sections 2281, 2284 of Title 28 of the United States Code. On October 20, 1969, the Court of Appeals for the Sixth Circuit reversed the District Court dismissal, 417 F.2d 1062, and remanded the case with instructions to "proceed with dispatch" on an action pursuant to Sections 2281, 2284 of Title 28 of the United States Code. By stipulation of counsel, the status quo was to be preserved "until the three-Judge Court has determined the case."

Plaintiffs in this matter are several: Grove Press, Inc., a New York corporation which is owner and distributor of the film "I Am Curious (Yellow)," and has contracted with exhibitors in several cities in the United States for the exhibition of the film; State-Youngstown Theater Corporation, an Ohio corporation which owns and operates the State Theater; and Mrs. Patricia Horne, an adult resident of Greater Youngstown Ohio area who frequently attends motion pictures and would like to have the opportunity to see the challenged film in the Youngstown area. In the original complaint Mrs. Horne was described as seeking relief on behalf of herself as an individual and as a representative of a class of all others similarly situated. No evidence was introduced to prove the existence of a class. Rule 23, Federal Rules of Civil Procedure.

Defendants in this case are the State of Ohio, represented by the Mahoning County Prosecuting Attorney, the Law Director of the City of Youngstown, acting as a private citizen of Mahoning County, and the Mayor and Chief of Police of the City of Youngstown. While in the initial complaint Messrs. Vincent Gilmartin, Patrick Mellilo, Anthony B. Flask, and John Terkesky were the named defendants respectively, the parties have stipulated that three substitutions be made as a result of successions in office: Messrs. Nicholas Manos, Law Director; Jack C. Hunter, Mayor; and Donald Baker, Chief of Police.

The facts are stipulated. In summary, the State-Youngstown Theater Corporation contracted with Grove Press, Inc. to exhibit the film, "I Am Curious (Yellow)" at the State Theater in Youngstown, Ohio, for an indefinite period commencing September 17, 1969. The contract specifically provided that the State-Youngstown Theater Corporation would refuse admittance to all persons under 18 years of age and refrain from advertising the film in a lascivious or pandering manner.

On September 11, 1969, the State Theater received a letter from the Mayor of the City of Youngstown and the Mahoning County Prosecutor expressing their opinion that the movie "I Am Curious (Yellow) * * * is lewd, indecent, lascivious and obscene" and that the Ohio Revised Code §§ 3767.01, 3767.03 to 3767.06 "authorize an action to abate a nuisance against the owner, agent, or lessee of any interest in such nuisance." The letter indicates the "dire consequences which may follow" the exhibition of "any lewd, indecent, lascivious or obscene films" under the aforementioned statutory authority. The contents of that letter were publicized by the news media.

On September 17, 1969, one day after this action had been filed in the District Court the Youngstown City Council enacted a series of ordinances directed towards the regulation of obscenity within its jurisdiction, including Ordinance No. 79703.

That very day, the film, "I Am Curious (Yellow)" was exhibited on two separate occasions to members of the general public, police officers and certain of defendants, including the Mahoning County Prosecuting Attorney. At the conclusion of each exhibition, the projectionist of the film was arrested under the authority of the Ordinance by Youngstown police officers. On each occasion, the reels of film were seized and retained by the police pursuant to each arrest, but without search warrant or other judicial authority.

On September 18, 1969, the State of Ohio by the Mahoning County Prosecuting Attorney, and the Law Director of the City of Youngstown, acting as a private citizen of Mahoning County filed suit under the Ohio nuisance statutes, Ohio Revised Code § 3767.01 et seq., in the Court of Common Pleas of Mahoning County. Their petition alleged:

"that the film, `I am Curious (Yellow)' is lewd, lascivious, indecent and obscene in that said film depicts several clear and unimpeded views depicting acts of sexual intercourse between a male and a female, a scene depicting cunnilingus and fellatio; and a fantasy scene depicting castration, as well as numerous other sordid and obscene situations too numerous to enumerate."

Appropriate statutory relief was sought to abate the alleged nuisance of the exhibition of an obscene film, including an ex parte restraining order to prevent any person "from removing, using, or in any manner interfering with the personal property and contents of the State Theater." The ex parte restraining order was denied. A hearing was set concerning the possible issuance of a temporary injunction for September 25, 1969. On September 25, the hearing was continued until September 29 because the defendants in that case had neither been given nor waived the full five days' notice required by the statute. The hearing set for September 29, was not had because of agreement of counsel to maintain the status quo pending the decision of this Court.

Also set for September 29, was a trial on the criminal charges brought under the City of Youngstown ordinances against the two projectionists arrested at the State Theater. The City of Youngstown refused to agree to a continuance on that matter even though the suits under the Ohio nuisance statutes were pending on the docket for September 29. The Youngstown Municipal Court also refused to grant a continuance; but the trial was not had because counsel agreed to maintain the status quo pending the resolution by this Court.

This Court has statutory jurisdiction to consider their constitutional claims insofar as they constitute an actual federal justiciable controversey. 28 U.S.C. §§ 2281, 2284; 28 U.S.C. §§ 2201, 2202; 42 U.S.C. § 1983.

I

The primary contention of plaintiffs is that the Ohio nuisance laws are unconstitutional on their face and as applied to the regulation of obscene matter. Ohio Revised Code §§ 3767.01-3767.11.

The Ohio Revised Code establishes a statutory scheme for the regulation of nuisances, including places in which lewd or obscene films are exhibited. It provides for temporary injunctive relief upon application and after a hearing within ten days after filing of a suit. It also permits a judge to "issue an ex parte restraining order, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place. * * *" And if the material is found to be obscene after a trial, a permanent injunction may issue. Further, certain penal provisions may apply: including, the levying of special taxes and liens; the voiding of leases; and the closing of places where nuisances are committed for up to one year, subject to certain ameliorating or modifying provisions including the "good faith" of the owner of the place. O.R.C. § 3767.01-11.

Plaintiffs allege six interrelated defects in Ohio's statutory scheme for the prevention and abatement of nuisances as applied to the delicate problem of determining whether material is constitutionally protected.

First, plaintiffs allege that the statute which prohibits the exhibition of "lewd, indecent, lascivious or obscene films," is overly broad. Ohio Revised Code § 3767.01. We must assume "that state courts and prosecutors will observe constitutional limitations as expounded by the United States Supreme Court." Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct 1116, 14 L.Ed.2d 22 (1943). In a recent criminal prosecution involving the construction of the words "obscene, lewd or lascivious" the Ohio Supreme Court held itself bound to construe the language consistent with the prevailing constitutional authority of A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), State v. Mazes, 7 Ohio St.2d 136, 218 N.E.2d 725 (1966) Ohio Revised Code § 2905.34.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) the United States Supreme Court held that a federal statute making punishable the mailing of material that is "obscene, lewd, lascivious or filthy * * or other publications of indecent character" was "sufficiently precise" to meet the constitutional standards of due process. "These words," the Court observed, "applied according to the proper standard for judging obscenity * * *, give adequate warning of the conduct proscribed and mark * * * `boundaries sufficiently distinct for judges and juries fairly to administer the...