HMH Publishing Co. v. Oldham

• Decision Date: 15 October 1969
• Docket Number: No. 69-28-Civ.,69-28-Civ.
• Parties: HMH PUBLISHING CO., Inc., a Delaware corporation, and Independent News Co., Inc., a New York corporation, Plaintiffs, v. Gordon G. OLDHAM, Jr., State Attorney for the Fifth Judicial Circuit of Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

306 F. Supp. 495

HMH PUBLISHING CO., Inc., a Delaware corporation, and Independent News Co., Inc., a New York corporation, Plaintiffs, v. Gordon G. OLDHAM, Jr., State Attorney for the Fifth Judicial Circuit of Florida, Defendant.

No. 69-28-Civ.

United States District Court M. D. Florida, Ocala Division.

October 15, 1969.

Jerome J. Bornstein, Bornstein, Petree & Gluckman, Orlando, Fla., for plaintiffs.

Earl Faircloth Atty. Gen., Tallahassee, Fla., for defendant.

ORDER

SCOTT, District Judge.

This cause came on to be heard on October 14, 1969, upon plaintiffs' motion for temporary restraining order, and the Court has considered the same and has heard and considered the evidence adduced at the evidentiary hearing. The complaint and the evidence presented at the hearing have established the following facts:

1. Plaintiffs are the publisher and distributor of the magazine PLAYBOY. Defendant is the State Attorney for the Fifth Judicial Circuit of Florida.

2. The October 1969 issue of PLAYBOY contains a pictorial and textual review of the Broadway musical play "Oh, Calcutta", at pages 166-171, 242-243. On October 2, 1969, the defendant filed a complaint in the Circuit Court of Lake County, Florida, against plaintiff HMH Publishing Company, Inc., and its agents, captioned "Complaint Under Florida Statutes, Section 60.05, F.S.A. to Enjoin and Abate a Public Nuisance and Under the Provisions of Florida Statutes 847 Prohibiting the Sale or Distribution of Obscene Lewd Magazines to Minors". The complaint alleged that pages 166-171 of the October 1969 issue of PLAYBOY are obscene.

3. On October 2, 1969, without notice to plaintiffs, the defendant applied for and was granted, by the Circuit Court of Lake County, Florida, an ex parte injunction against the plaintiffs, their agents, assigns, news stands or other places of business restraining the sale of the October 1969 issue of PLAYBOY unless pages 166-171 were deleted therefrom and restraining any sale of future issues of PLAYBOY "that portrays illicit sex, immorality, or which is obscene, lewd, lascivious, filthy, indecent, immoral, sadistic or masochistic, or any pictures which arouse lust or passion or manifestly tend to corrupt the morals of youth".

* * *

The injunction was applied for and granted without prior notice and without the holding of any prior adversary hearing to determine the obscenity or illegality of the October 1969 issue of PLAYBOY. The cases are legion which hold that a prior adversary hearing must be held and a judicial determination of the question of obscenity must be obtained before law enforcement officers may move to suppress the dissemination of alleged obscene matter. Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Tyrone, Incorporated v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Grove Press Inc. v. City of Philadelphia, 300 F.Supp. 281 (E.D.Pa. 1969); City News Center, Inc. v. Carson, 298 F.Supp. 706 (M.D.Fla.1969); Masters v. Russell, 308 F.Supp. 306 (M.D.Fla. 9/24/69); Morrison v. Wilson, No. PCA 2110 (N. D.Fla. 9/5/69); Carter v. Gautier, 305 F.Supp. 1098 (M.D.Ga. 9/15/69); Mandell v. Carson, No. 69-631 Civ.-J (M.D. Fla. 10/8/69); Delta Books Distributors v. Cronvich, 304 F.Supp. 662 (E.D.La. 1969); Felton v. City of Pensacola, 200 So.2d 842 (1st D.C.A.Fla. 1967). This procedure has been adopted because what is obscene and what is not obscene is sometimes separated by a finely drawn line and the Fourteenth Amendment to the United States Constitution requires that regulation by the states of obscenity conform to procedures that will insure against the curtailment of...