Hosey v. City of Jackson, Mississippi

• Court: U.S. District Court — Southern District of Mississippi
• Writing for the Court: RIVES, Circuit , and RUSSELL and NIXON
• Citation: Hosey v. City of Jackson, Mississippi, 309 F.Supp. 527 (S.D. Miss. 1970)
• Decision Date: 22 January 1970
• Docket Number: Civ. A. No. 4423.
• Parties: James Ira HOSEY and ABC Mid-South Theatres, Inc., a Delaware Corporation, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, a municipal corporation, Honorable Russell C. Davis, Mayor of the City of Jackson, Honorable James L. Spencer, Police Justice of the City of Jackson, Honorable Robert G. Nichols, Prosecuting Attorney for the City of Jackson, J. A. Chamblee and Joe Alford, Police Officers of the City of Jackson, Mississippi, Paul G. Alexander, County Attorney of Hinds County, Mississippi and Jack A. Travis, Jr., District Attorney of the Seventh District of the State of Mississippi, Defendants.

309 F. Supp. 527

James Ira HOSEY and ABC Mid-South Theatres, Inc., a Delaware Corporation, Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, a municipal corporation, Honorable Russell C. Davis, Mayor of the City of Jackson, Honorable James L. Spencer, Police Justice of the City of Jackson, Honorable Robert G. Nichols, Prosecuting Attorney for the City of Jackson, J. A. Chamblee and Joe Alford, Police Officers of the City of Jackson, Mississippi, Paul G. Alexander, County Attorney of Hinds County, Mississippi and Jack A. Travis, Jr., District Attorney of the Seventh District of the State of Mississippi, Defendants.

Civ. A. No. 4423.

United States District Court, S. D. Mississippi, Jackson Division,

January 22, 1970.

Alex A. Alston, Jr., Jackson, Miss., for plaintiffs.

A. F. Summer, Atty. Gen., State of Mississippi, Jackson, Miss., Will S. Wells, Asst. Atty. Gen., Jackson, Miss., E. W. Stennett, Robert G. Nichols, Jr., John R. Countiss, III, Jackson, Miss., Thomas H. Watkins, Jackson, Miss., for defendants.

Before RIVES, Circuit Judge, and RUSSELL and NIXON, District Judges.

NIXON, District Judge:

Plaintiffs by this action seek to enjoin the enforcement of a Mississippi obscenity statute against the public showing of the motion picture film entitled "Candy". The statute in question, Section 2286, Mississippi Code Annotated, Recompiled,¹ is alleged to be unconstitutional on its face or as applied. The plaintiffs thus request this three-judge court, properly convened and having jurisdiction over the subject matter herein,² to issue an Order permanently enjoining the defendants from further criminal prosecution, seizures or interferences in connection with the public showing of this film; the suppression of use and the return of one print of this film allegedly unlawfully seized and held by the defendants; a declaratory judgment as to their rights in this case; and a redress for damages.

On January 31, 1969, three police officers, Major John Chamblee, Detective Larry Fisher and Detective Joe Alford, purchased tickets at the Paramount Theater in Jackson, Mississippi and viewed the film "Candy" in its entirety. At the conclusion of this showing, the Manager, James I. Hosey, and the projectionist, Joe Kurgier, were arrested and the print of the film used in the showing was seized. There was no prior judicial hearing as to the obscenity of this film and the arrest and seizure were not made pursuant to any warrant. Subsequently, a general affidavit was signed against ABC Mid-South Theatres, Inc., a Delaware corporation licensed to do business in Mississippi, who was the exhibitor and licensee of the film. All of the plaintiffs herein were convicted in the Municipal Court of the City of Jackson for violating the Mississippi Statute and have appealed to the County Court of the First Judicial District of Hinds County, Mississippi. The parties have agreed to await this Court's ruling before proceeding further in the State Court.

The plaintiffs contend that the Mississippi statute under consideration is vague and overbroad and should therefore be declared invalid. The primary basis for this attack is the failure of the statute to include any definition of the word "obscene." The defendants contend, however, that the inclusion of an obscenity definition within the statute is unnecessary as the standards presently applicable, as enumerated by the Supreme Court, can and will be applied in any criminal prosecution thereunder.

The standard for obscenity, as defined in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), is: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient interest" in sex. A modification or perhaps a clarification of the obscenity definition began with Jacobellis v. Ohio, 378 U.S. 184, 191-192, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) and continued to the present tripartite test enumerated in Memoirs v. Massachusetts.³ There Mr. Justice Brennan, in an opinion joined by then Chief Justice Warren and Mr. Justice Fortas, announced the following standard:

"* * * 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."

In Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) the Supreme Court modified the prurient appeal requirement of Roth to "social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interest of its intended and probable recipient group * * *"

It is thus evident that a precise definition of what actually constitutes obscenity has evolved through a long series of Supreme Court decisions, and to say the evolution is complete would certainly be an unfounded prognostication. The question before the Court is thus whether a criminal obscenity statute must incorporate by legislative act all present and necessarily future tests for obscenity as enunciated by the Supreme Court in order to be valid.

The answer to this query is in the negative. It is neither possible nor is it the function of a criminal statute to set out all the judicial tests for a proper determination of whether a violation of the statute has been committed All that is required is that the statute give adequate notice and warning of what is prohibited in order that one may avoid such conduct. This is done by the Mississippi statute under consideration.

In Roth v. United States, supra, involving the validity of a Federal postal statute, and Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957), a companion case governed by the same decision and involving the validity of a California obscenity statute, the Supreme Court clearly sets forth the correct legal principles as follows:

"It is argued that the statutes do not provide reasonable ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. The Federal obscenity statute makes punishable the mailing of material that is obscene, lewd, lascivious, or filthy * * * or other publications of an indecent character. The California statute makes punishable, inter alia, the keeping for sale or advertising material that is `obscene or indecent.' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.

"Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process.

"* * * The Constitution does not require impossible standards; all that is required is that the language `conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, 1883. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of `* * * the conduct proscribed and mark,' * * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * * Id. 332 U.S. at page 7, 67 S.Ct. at page 1542."

Thus in Roth and Alberts the Supreme Court held that statutes which did not define the word "obscene" were constitutional and then proceeded to define the term as applicable to such statutes.⁴ The definition established in Roth has evolved to the present tripartite standard applicable today under any obscenity statute. It is thus necessary to instruct a jury in any prosecution under an obscenity statute that in order for the state to prove its case the co-existence of the three necessary elements enunciated in Memoirs must be clearly established.

In the case of Great Speckled Bird of Atlanta Co-op. News Project v. Stynchcombe, 298 F.Supp. 1291, 1292 (N.D.Ga., 1969), the Court, in upholding an obscenity statute, the definition of which omitted the "patent offensiveness" and "redeeming social value" elements, states:

"This element, as well as others formulated in other cases elaborating on Roth, supra, are grafted into the Georgia law by virtue of the supremacy of the Constitution of the United States and the binding effect of the decisions of the Supreme Court of the United States in interpreting the Constitution."

The Mississippi statute, unlike the statute upheld in Great Speckled Bird, supra, and in three recent cases from Kentucky, Louisiana and Alabama,⁵ does not contain any elements of the presently applicable obscenity standard. As heretofore noted, the inclusion of any definition of the word "obscene" within the statute is unnecessary. This is the Roth rule. The definition of the word "obscene", as presently defined by the tripartite test of Memoirs and other decisions, is included within the Mississippi statute in light of the Supremacy of the United States Constitution and the binding effect of United States Supreme Court decisions interpreting that Constitution. In Morrison and Peachtree News Co., Inc. v. Ray Wilson et al., 307 F.Supp. 196 (N.D.Fla., 1969) Dec. 5, 1969, a three-judge case, in upholding a Florida obscenity statute which, like the Mississippi statute, did not include a definition of the word "obscene", the Court stated:

"* * * The elements, however, need not be specifically included in the

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