HMH Publishing Co. v. Garrett

• Decision Date: 16 April 1957
• Docket Number: Civ. No. 2146.
• Citation: 151 F. Supp. 903
• Parties: HMH PUBLISHING CO., Inc., an Illinois Corporation v. Robert GARRETT and Metro Holovachka.
• Court: U.S. District Court — Northern District of Indiana

151 F. Supp. 903

HMH PUBLISHING CO., Inc., an Illinois Corporation v. Robert GARRETT and Metro Holovachka.

Civ. No. 2146.

United States District Court N. D. Indiana, Hammond Division.

April 16, 1957.

Friedman, Zoline & Rosenfield, Chicago, Ill., Roth, Wechsler & Dreyfus, Gary, Ind., for plaintiff.

George Cohan, Robert J. Addison, Gary, Ind., for defendants.

SWYGERT, Chief Judge.

The plaintiff HMH Publishing Co., Inc., is an Illinois Corporation. The defendant Metro Holovachka is the Prosecuting Attorney for Lake County, Indiana, and defendant Robert Garrett is his Deputy for the City Court of Gary, Indiana. This is a suit for injunctive relief and damages. The defendants filed a motion to dismiss the complaint for failure to state a claim and the plaintiff filed a motion for a preliminary injunction. Both motions were heard, at which time evidence was submitted on the motion for a preliminary injunction.

The HMH Publishing Co., Inc. publishes a monthly magazine known as Playboy. The publication is circulated nationally through the mails and by magazine distributors and dealers. The K and H News Service, located in Gary and operated by one L. L. Henderson, distributes the magazine in and about Lake County, Indiana.

On December 3, 1956, Henderson was convicted in the Gary City Court of violating the Indiana Pernicious Literature Statute, Burns' Indiana Stat.Anno. § 10-2805, (1956 Repl.), for distributing an edition of Modern Man magazine and was fined. Immediately thereafter the attorney who represented Henderson requested of Deputy Prosecutor Garrett a list of magazines being distributed by the K and H News Service which he, Garrett, considered to be in violation of the pernicious literature statute. On December 4, 1956, Garrett in his capacity as deputy prosecutor directed a letter to Henderson's attorney which read in part as follows:

"Pursuant to our conversation relative to the matter of pernicious literature, I have noted the magazines currently displayed in the Gary Bus Station and consider them to be in violation of the pernicious literature statute.

* * * * * *

(Then follows a list of twenty-four magazines, including Playboy, and their publishers)

"For the benefit of your client perhaps you might forward to him this list."

Immediately upon receipt of the letter Henderson ceased distributing Playboy. He stated that he took this action because he did not wish to be prosecuted. He so informed the plaintiff by letter. Subsequently the plaintiff instituted this action.

The Indiana Pernicious Literature Statute is a penal statute which proscribes the sale or circulation of any book or periodical "the chief feature or characteristic of which is the record of commission of crime * * * or pictures of criminals, desperadoes or of men or women in lewd and unbecoming positions or improper dress * * *."

The plaintiff has not raised any question of the constitutionality of this statute or the authority of a prosecuting attorney to prosecute violations of the statute. Indeed, it is his duty to prosecute such violations. Furthermore, this case does not involve the question whether, as a matter of fact, any issue of Playboy magazine comes within the scope of the statute. No determination of that question is made and the parties have acknowledged tacitly, at least, that such a determination is not relevant to the question that is presented for decision.

The deputy prosecuting attorney's action in furnishing a list of magazines to Henderson's attorney is not authorized by the pernicious literature statute or by any other law of Indiana. It constituted an informal method of law enforcement which is clearly beyond the scope of any authority given the prosecuting attorney. But this factor, in itself, does not entitle the plaintiff to the injunctive relief which it seeks. Relief can be granted only if this informal and unauthorized action of the prosecuting attorney violated the Constitutional rights of the plaintiff.

The practical effect of the deputy prosecutor's action in furnishing the list of magazines to Henderson's attorney has been to place a ban upon the future distribution of Playboy by K and H News Service. This is demonstrated by the letter written to the plaintiff by Henderson. It reads as follows:

"Received notice from the Prosecuting Attorney of Lake County, Indiana that the following magazines are banned in Gary and are to be taken off sale immediately.

"Inasmuch as I was arrested for circulating three other magazines and fined $100.00 and costs, I do not want to infuriate the local officers by leaving same on sale.

"We are pulling these magazines off sale. Advise of their disposal. Should you have any different ideas about this, would appreciate you letting us know at once." * * * (Then follows a list of magazines, including Playboy.)

The prosecutor's action in issuing a list of magazines that he considered to be pernicious was accompanied by an implied threat of prosecution. His action amounted to censorship, and it was effective. The blacklisted magazines were immediately withdrawn from sale. Thus, the prosecutor brought about a "previous restraint" of the circulation of the magazine published by the plaintiff.

A previous restraint of the publication or circulation of printed...