Grove Press, Inc. v. Evans

• Citation: 306 F. Supp. 1084
• Decision Date: 26 November 1969
• Docket Number: Civ. A. No. 355-69-N.
• Parties: GROVE PRESS, INC., a New York corporation, Kenneth W. Andrews, Calvin Tyrone Gray, and Bill-Ken, Inc., a Virginia corporation, t/a Star Twin Indoor Theatre, Plaintiffs, v. Andre EVANS, Commonwealth's Attorney for the City of Virginia Beach, Virginia, and W. R. Davis, Chief of Police for the City of Virginia Beach, Virginia, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

306 F. Supp. 1084

GROVE PRESS, INC., a New York corporation, Kenneth W. Andrews, Calvin Tyrone Gray, and Bill-Ken, Inc., a Virginia corporation, t/a Star Twin Indoor Theatre, Plaintiffs, v. Andre EVANS, Commonwealth's Attorney for the City of Virginia Beach, Virginia, and W. R. Davis, Chief of Police for the City of Virginia Beach, Virginia, Defendants.

Civ. A. No. 355-69-N.

United States District Court E. D. Virginia, Norfolk Division.

Argued October 20, 1969.

Decided November 26, 1969.

Stanley E. Sacks, Michael R. Caprio, Jr., Sacks, Sacks & Tavss, Norfolk, Va., for plaintiffs.

Robert Y. Button, Atty. Gen., Anthony F. Troy, Asst. Atty. Gen., Richmond, Va., Andre Evans, Commonwealth's Atty. for City of Virginia Beach, Va., for defendants.

Before BUTZNER, Circuit Judge, and KELLAM and MERHIGE, District Judges.

BUTZNER, Circuit Judge:

The owner and exhibitors of the motion picture film, "I Am Curious (Yellow)," seek a declaration that Virginia's obscenity statutes are unconstitutional and an injunction restraining the Commonwealth's Attorney and Chief of Police of the City of Virginia Beach, Virginia, from future prosecutions charging violation of the statutes. The exhibitors originally sued for return of the film, which the Chief of Police had seized, and for an injunction against a pending criminal prosecution. Judge Merhige, acting under 28 U.S.C. § 2284(3) and (5) granted a temporary restraining order prohibiting retention of the film, but he refused to enjoin the pending prosecution in the state court. Cf. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969), cert. denied, 396 U.S. 985, 90 S.Ct. 478, 24 L.Ed.2d 449 (1970). The defendants returned the film, and the parties apparently arranged a mutually satisfactory schedule for the state prosecution. By common consent of the parties, these issues are no longer before us. But this has not mooted the case, for the threat to enforce these allegedly unconstitutional statutes by future prosecutions has such a chilling effect upon the plaintiffs' assertion of their First Amendment rights that they may seek equitable relief in these proceedings. Dombrowski v. Pfister, 380 U.S. 479, 483, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

I.

The following definition of "obscene" is an integral part of Virginia's laws dealing with obscenity:¹

"The word `obscene' where it appears in this article shall mean that which considered as a whole has as its dominant theme or purpose an appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters."

The plaintiffs concede that this definition follows the standard prescribed by Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), but they contend it is deficient because it fails to state that "the material must be utterly without redeeming social value," as explained in A Book Named "John Cleland's Memoirs of a Woman of Pleasure v. Attorney General, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966).

The plaintiffs' attack, however, is foreclosed by the recent decision of House v. Commonwealth, 210 Va. 121, 169 S.E. 2d 572 (1969). There the Supreme Court of Appeals expressly recognized that in determining whether a publication was constitutionally protected, Virginia courts were bound by the Supreme Court's definition of obscenity found in Roth as amplified and explained in Memoirs. Consequently, in a prosecution charging the sale of obscene magazines, the Court found the evidence to be insufficient to support a conviction when measured by the following test:

"Whether to the average person, applying contemporary community standards:

"`(1) The dominant theme of the material taken as a whole appeals to a prurient interest, that is a shameful or morbid interest in nudity and sex;

"`(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and

"`(3) The material is utterly without redeeming social value.'" 169 S.E.2d at 576

The standard approved by the Supreme Court of Appeals follows the teaching of Memoirs 383 U.S. at 418, 86 S.Ct. at 977, where the Court said:

"We defined obscenity in Roth in the following terms: `Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct., at 1311, 1 L.Ed.2d, at 1509. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

We conclude, therefore, that the definition of obscenity adopted by Virginia courts fully complies with the constitutional standards prescribed by the Supreme Court.

Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), on which the plaintiffs rely, does not command a contrary result. There, it is true, a statutory definition of obscenity which omitted to expressly state that the publication must be utterly without redeeming social value was held to be unconstitutional. The crucial difference making that case inapplicable here is the absence of interpretation of the Texas statute by Texas courts.

We are not persuaded by the plaintiffs' suggestion that only the legislature can amend the statutory definition of "obscene." For the purpose of testing the constitutionality of Virginia's statute, the interpretation by the Supreme Court of Appeals is as definitive as if the statute had been amended by the legislature. See Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Nor can we join the plaintiffs in characterizing the Court's language as dictum. It cannot be doubted that the definition of obscenity approved by Virginia's highest court is binding upon the state's trial courts and magistrates. And on well-settled principles, we accept it as the authoritative exposition of Virginia law. Cramp v. Board of Public Instruction, 368 U.S. 278, 285, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961).

II.

In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the Supreme Court held that a statute which punished the private possession of an obscene motion picture film violated the First Amendment as made applicable to the states by the Fourteenth Amendment. The plaintiffs urge that Virginia Code Ann. § 18.1-230 (1960) suffers the same infirmity. This statute provides:

"Every person who knowingly:

"(1) Produces, promotes, prepares, presents, manages, directs, carries on or participates in, any obscene exhibition or performance, including the exhibition or performance of any obscene motion picture, play, drama, show, entertainment, exposition, tableau or scene; or

"(2) Owns, leases or manages any theatre, garden, building, structure, room or place and leases, lets, lends or permits such theatre, garden, building, structure, room or place to be used for the purpose of presenting such obscene exhibition or performance, shall be guilty of a misdemeanor."

The Supreme Court of Appeals has not interpreted this section, so we are compelled to place our own construction on it. Initially it should be noted, the statute on its face does not prohibit the mere private possession of obscene material, and thus it does not literally fall within the ambit of Stanley. Since the statute is susceptible of two interpretations, it is our duty to adopt, if possible, a construction that will avoid a declaration of unconstitutionality. United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909).

The core of the statute is its condemnation of "any obscene exhibition or performance." These words connote public rather than private displays. A common meaning of performance is "a public presentation or exhibition," and exhibition has been defined as "a public show or showing; * * * a display or show where the display itself is the chief object and from which the exhibitor derives or expects to derive a profit."² This well-known usage appears to have guided Virginia law enforcement officers....