Kay v. White
| Decision Date | 16 July 1968 |
| Docket Number | Civ. A. No. 68-887. |
| Citation | 286 F. Supp. 684 |
| Parties | Don KAY; Don Kay Enterprises, Inc. and William J. Erbacker d/b/a Tower Art Theatre, Plaintiffs, v. William J. WHITE, Individually and as Mayor of the City of Gretna; John L. Dulcich, Jr., Individually and as Alderman of the City of Gretna; Eugene Gehring, Individually and as Alderman of the City of Gretna; Louis A. LeBouef, Jr., Individually and as Alderman of the City of Gretna; Anthony Joseph Marchese, Individually and as Alderman of the City of Gretna; Gerard Schexnayder, Individually and as Alderman of the City of Gretna; Beauregard Miller, Individually and as Marshall of the City of Gretna; Danny Braun, Individually and as Police Officer of the City of Gretna; and Frank P. Marchese, Individually and as Tax Collector of the City of Gretna, Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Morey L. Sear, New Orleans, La., for plaintiffs.
Andrew H. Thalheim, Gretna, La., for defendants.
The plaintiffs leased a motion picture theater situated in the City of Gretna, Louisiana, and announced that they intended to re-open it to exhibit motion pictures, limiting attendance to persons over 18 years of age. One week later, and three days before the scheduled opening date, the Board of Aldermen of the City of Gretna, unanimously adopted the following motion:
"On a joint motion by all members of the Board of Aldermen, it was resolved that no movie house be given a permit where only adult films are shown and minors denied admittance, this being discriminating and against public policy and good morals."
Thereafter, a copy of the motion was served upon the plaintiffs by a police officer of the City of Gretna, with a warning that, if the theater opened as scheduled, the plaintiffs and their employees would be arrested. The plaintiffs applied for an occupational license to open the theater, and were denied such a license. They then sought a temporary restraining order, preliminary injunction, and permanent injunction restraining enforcement of the ordinance as unconstitutional.1
The Gretna ordinance purports on its face to serve the cause of good morals. It proposes to accomplish this, however, not directly by prohibiting what is of bad moral character, but indirectly by forbidding a movie house to deny admission to minors. This could further the cause of good morals only if it succeeded in requiring the theater to act as a censor and exhibit nothing but films that its management considered suitable for children. Hence, the ordinance in effect requires the motion picture exhibitor either to limit his program to films suitable for the very young or to display to minors the type of film that he considers unsuitable for them.
That such an ordinance is a restriction on freedom of expression cannot be denied. It could hardly be contended that either Congress or the State of Louisiana could require a book publisher to choose between printing only books that he considered it proper for minors to read or selling unsuitable books to them. The question is whether such a restriction can constitutionally be imposed on the exhibitor of motion picture films.
No anthropologist will ever be able to identify the first censor, for the earliest form of restriction on freedom of expression —the taboo—must have been coeval with man's first social groups. No historian has yet found an early society in which freedom of expression was not limited in some way. The struggle to remove the gag of the censor is an integral part of man's fight for liberty.
The Americans who fought the dominion of a British king sought to protect their freedom against possible encroachment by the republic they established. In the First Amendment to the Constitution they prohibited their own Congress from making any law "abridging the freedom of speech, or of the press."
Mr. Justice Brandeis, concurring in Whitney v. People of State of California, 1927, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095.
"Freedom of speech and of the press * * * are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Gitlow v. People of State of New York, 1925, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138. A statute that operates to suppress an offending newspaper or periodical is unconstitutional, for "it is the chief purpose of the guaranty of the liberty of the press to prevent previous restraints upon publication." Near v. State of Minnesota, ex rel. Olson, 1931, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357.
Motion pictures constitute a form of speech and hence they are protected by the constitutional guarantees that safeguard freedom of speech. Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Kingsley International Pictures Corp v. Regents of University of State of New York, 1959, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512; Interstate Circuit, Inc. v. City of Dallas, 1968, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (U.S. April 22, 1968).
The exhibition of motion pictures may not be forbidden...
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J.M., In Interest of
...1280-82, 20 L.Ed.2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 441, 88 L.Ed. 645; (1944); Kay v. White, 286 F.Supp. 684, 687 (E.D.La.1968); Jane L. v. Rodney B., 108 Misc.2d 709, 438 N.Y.S.2d 726, 728 (Fam.Ct.1981). In addition, in a paternity case involving a min......
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Nationwide Amusements, Inc. v. Nattin
...79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Kay v. White, 286 F.Supp. 684 (E.D.La.1968). 4 We recognize, to say the least, a lack of enthusiasm on the part of the city officials, but plaintiff did not establish that......