In re Louisiana News Company

• Decision Date: 12 July 1960
• Docket Number: Civ. A. No. 9853.
• Citation: 187 F. Supp. 241
• Parties: In re LOUISIANA NEWS COMPANY; Jerome Molasky and Allan Molasky, Individually and as Trustees and as Partners v. Provosty A. DAYRIES, Individually and as Superintendent of Police of the City of New Orleans; Joseph I. Giarrusso, Individually and as Deputy Superintendent of Police of the City of New Orleans; Joseph H. Murry, Individually and as a Lieutenant assigned to the Public Relations Division of the New Orleans Police Department; Joseph Battaglia, Individually and as a Patrolman of the New Orleans Police Department; Richard A. Dowling, Individually and as District Attorney for the Parish of Orleans; Richard S. McBride, Jr., Individually and as Assistant District Attorney for the Parish of Orleans.
• Court: U.S. District Court — Eastern District of Louisiana

187 F. Supp. 241

In re LOUISIANA NEWS COMPANY; Jerome Molasky and Allan Molasky, Individually and as Trustees and as Partners v. Provosty A. DAYRIES, Individually and as Superintendent of Police of the City of New Orleans; Joseph I. Giarrusso, Individually and as Deputy Superintendent of Police of the City of New Orleans; Joseph H. Murry, Individually and as a Lieutenant assigned to the Public Relations Division of the New Orleans Police Department; Joseph Battaglia, Individually and as a Patrolman of the New Orleans Police Department; Richard A. Dowling, Individually and as District Attorney for the Parish of Orleans; Richard S. McBride, Jr., Individually and as Assistant District Attorney for the Parish of Orleans.

Civ. A. No. 9853.

United States District Court E. D. Louisiana.

July 12, 1960.

William M. Lucas, Jr., Morey L. Sear, New Orleans, La., for plaintiff.

Stanley Fleishman, Hollywood, Cal., for plaintiff.

Alvin J. Liska, City Atty., Ernest L. Salatich and Beuker F. Amann, Asst. City Attys., Henry B. Curtis, Special Counsel for City Atty., James David McNeill, Walter Doane, Richard A. Dowling, Richard S. McBride, New Orleans, La., for defendants.

Before WISDOM, Circuit Judge, and CHRISTENBERRY and WRIGHT, District Judges.

WISDOM, Circuit Judge.

The plaintiffs¹—all of the partners of the Louisiana News Company—filed a complaint against the Superintendent of Police of the City of New Orleans, the Orleans Parish District Attorney, and others.² The Louisiana News Company is the sole wholesale distributor of magazines and periodicals in the New Orleans area. Among the publications the Company distributes are (1) certain "pin-up" or "girlie" magazines, the archetype of which is probably Playboy, and (2) certain magazines purporting to promote the cult of nudism. According to the complaint, the defendants, under color of the Louisiana Obscenity Statute, LSA-R.S. 14:106, declared war against the distribution and sale of these publications in the New Orleans area. The record shows that the campaign opened with exhortations, progressed to threats, was brought to a climax by wholesale seizures of the complete stock of each allegedly obscene periodical,³ and culminated in the arrest and prosecution of the Company's manager.

The plaintiffs contend that the publications under attack enjoy constitutional protection under the First and Fourteenth Amendments; that the Louisiana Obscenity Statute is unconstitutional;⁴ that the seizures were arbitrary and in disregard of due process; that the effect of defendants' threats and the seizure of the publications is to impose a prior restraint or censorship⁵ and a secondary boycott of the distributor and its retailers. The plaintiffs ask for an injunction: (1) requiring the return of all publications seized and restraining the defendants from future seizures of any publications, except those numbers of each title, not to exceed five copies of each, needed to facilitate the prosecution of the Company or its agents and employees; (2) restraining the defendants from "interfering with the business operations of or threatening distributor, Louisiana News Company, or any of its agents or employees, or any of its customers, to-wit: retail outlets for magazines, books and periodicals, with a criminal prosecution and thus imposing a prior restrain or censorship on magazines, books and periodicals, and from encouraging primary and/or secondary boycotts of the distributor or the retailers of magazines, books and periodicals in the New Orleans Area and its environs". The plaintiffs ask that the court declare that they have the right to distribute and sell all publications free of threats, coercion, and harassment, and free of primary or secondary boycotts against the Company or the Company's customers. They ask that the court enjoin defendants from interfering with the distribution of publications transported in interstate commerce; from unlawful seizures of vast quantities of magazines; and from preventing the free distribution of any or all publications. The plaintiffs ask the court to declare the Louisiana Obscenity Statute unconstitutional and enjoin defendants from enforcing the pertinent provisions of the Act. The plaintiffs assert a claim of $100,000 for actual damages and $50,000 for exemplary damages.

Diversity of citizenship, the existence of a federal question, and the deprivation of civil rights are invoked as grounds of jurisdiction. 28 U.S.C.A. §§ 1331, 1332, 1343. This court therefore has jurisdiction of the complaint.

The statute is attacked on several grounds. First, it is said to condemn mere possession of an obscene publication without knowledge of its offensive character, in contravention of the rule laid down in Smith v. People of State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In Smith v. People of State of California the Supreme Court held that such enactments violate the freedom of the press safeguarded against state infringement by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Second, the statute is assailed as constitutionally inadequate in the absence of supplementing "censorship standards" established by legislative or judicial declaration, under Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Finally, the claim is advanced that the Louisiana Supreme Court's ruling in State v. Christine, 239 La. 259, 118 So.2d 403, 412, on rehearing, holding paragraph (3), LSA-R.S. 14:106, void as "too vague and indefinite" under the state constitution, invalidates the entire statute, including paragraph (2) invoked here by the defendants.⁶

It is unnecessary to decide these constitutional questions. Adequate justice may be done without passing on the validity of the statute. And, in view of the pending state court prosecution, which we are not asked to stay, where the same constitutional issues are being raised, we consider it proper at this point not to attempt an interpretation of the challenged provision. This limited abstention is especially appropriate when, without denying substantial relief to those who invoke our intercession, we may avoid decision on constitutional questions or at least defer decision until the Louisiana courts have spoken authoritatively on the Act. Accordingly, for the present, we shall assume, without deciding, that the Louisiana Obscenity Statute is constitutional and otherwise valid.

But so assuming, it does not follow that the acts done, particularly the seizures made, under the purported authority of the statute were proper. The record shows that the defendants resorted to a number of methods to deter the distribution and sale of certain magazines showing cartoons and photographs of women in various stages of dress and undress. The defendants' most effective weapon, of course, was the seizure, wholesale, of all copies found of the particular issue of an allegedly offensive publication. The seizures were made sometimes under a warrant, sometimes not. That does not concern us here. Nor need we consider the validity of the claim that obscene publications are subject to seizure as "contraband" or as "instruments of crime". As we see it, however well meaning may be the purpose of the seizure,⁷ no seizure is valid if it is the product of an arbitrary, unreasonable rule of thumb.

The validity of the seizures is governed by the standard employed. Here, the Superintendent of Police and his Deputy instructed the police officers that the sole test to determine if a publication was obscene was whether the publication contained a picture showing "bare breasts or bare buttocks".⁸ Books containing photographs of the paintings of Cranach, Rubens, and Botticelli would flunk this test flat. So would Gray's Anatomy, the Encyclopedia Brittannica, and the National Geographic Magazine. The standard is arbitrary, unreasonable, and in disregard of the criteria of obscenity as established in the courts.

It may well be, as plaintiffs argue, that the magazines seized are not "sexually indecent" within the meaning of the Louisiana Statute and that defendants' acts, therefore, were unauthorized under state law.⁹ But, as we have already said, it is unnecessary to decide that question. It suffices that the criterion used by the police officers to judge obscenity, for purposes of seizure, does not meet federal constitutional due process requirements and that the application of that criterion by public officials of the state results in infringing plaintiffs' constitutionally protected rights. Such a finding alone compels action by the court, irrespective of whether the publications seized are or are not obscene under state law. Iowa-Des Moines National Bank v. Bennett, 1931, 284 U.S. 239, 245-247, 52 S.Ct. 133, 76 L.Ed. 265; Home Telephone & Telegraph Co. v. City of Los Angeles, 1912, 227 U.S. 278, 33 S. Ct. 312, 57 L.Ed. 510.

Obscenity is not protected under the First Amendment. But the Constitution does protect the free circulation and distribution of publications, no matter how objectionable to certain groups in the community unless "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." It is not sufficient that an "isolated excerpt" is obscene or even that the publication as a whole might have a "deleterious effect upon youth," or any group of particular susceptibility.¹⁰ Roth v. United States 1957, 354 U.S. 476, 488-89, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498; Butler v. State of Michigan, 1957, 352 U.S. 380, 383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412.

Here, the "rule of thumb" went far beyond permissible limits in labelling obscene the publications in suit. First of all, the defendants concededly were not looking for pornographic material. Defendants were after borderline material. According to their instructions, a magazine was over the line, not if the magazine as a whole...