Kucharek v. Hanaway

• Decision Date: 12 July 1990
• Docket Number: No. 89-2885,89-2885
• Parties: 60 Ed. Law Rep. 404 William H. KUCHAREK; Shangri-La Enterprises, Inc., doing business as Denmark Bookstore; and Paradise One, Inc., doing business as Paradise Video Store, Plaintiffs-Appellees, v. Donald HANAWAY, Attorney General of Wisconsin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 513

902 F.2d 513

60 Ed. Law Rep. 404

William H. KUCHAREK; Shangri-La Enterprises, Inc., doing business as Denmark Bookstore; and Paradise One Inc., doing business as Paradise Video Store, Plaintiffs-Appellees, v. Donald HANAWAY, Attorney General of Wisconsin, Defendant-Appellant.

No. 89-2885.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 21, 1990.

Decided May 7, 1990.

Rehearing and Rehearing En Banc Denied July 12, 1990.

Stephen M. Glynn, James A. Walrath, Shellow, Shellow & Glynn, Milwaukee, Wis., for plaintiffs-appellees.

Thomas Balistreri, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendant-appellant.

James P. Mueller, Phoenix, Ariz., for amicus curiae.

Before POSNER and EASTERBROOK, Circuit Judges, and MOODY, District Judge. ^*

POSNER, Circuit Judge.

The Attorney General of Wisconsin appeals from an order declaring--at the behest of several purveyors of sexually explicit books, magazines, and videotapes--Wisconsin's obscenity statute unconstitutional, and enjoining its enforcement. 714 F.Supp. 1499 (E.D.Wis.1989). The statute, Wis.Stat. Sec. 944.21, was enacted in 1988, after eight years in which Wisconsin had no obscenity statute, the predecessor to section 944.21 having been held to violate the First Amendment in State v. Princess Cinema, Inc., 96 Wis.2d 646, 292 N.W.2d 807 (1980). Passage of a successor statute was stubbornly resisted by booksellers and publishers but eventually the differences between proponents and opponents were compromised by the enactment of a statute considerably less severe than authorized by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As the plaintiffs concede, Wisconsin could cure the infirmities that the district judge found in the statute by replacing it with one that went to the limits permitted by Miller, and such a statute would fence the plaintiffs in more tightly than the present one does. But the plaintiffs hope that if the Wisconsin legislature were faced with a choice between a stricter statute and no statute, it would choose no statute, in which event the plaintiffs would be under no state-law constraints at all and would therefore be even better off than they are under the present statute. This explains the paradox of pornographers' arguing that an anti-pornography statute is unconstitutional because too lenient, but it does not explain why the argument persuaded the district judge.

The statute defines obscene material as "a writing, picture, sound recording or film" which appeals to the prurient interest, describes or shows sexual conduct in a patently offensive way, and lacks any redeeming social value. Anyone who sells such material "with knowledge of [its] character and content" is guilty of a crime, but there are exemptions for contract printers and also for officers and employees of public, and accredited private, schools and public libraries. The district judge concluded, in a thoughtful opinion, that the statute is unconstitutionally vague, and therefore denies due process, insofar as it fails to indicate clearly whether simulations of sexual conduct as distinct from depictions or descriptions of actual sexual conduct are comprehended within the definition of "obscene," but not insofar as it fails to specify whether videotapes are included within the definition of "material." The judge thought it plain that videotapes are included--the statute would be senseless otherwise--although the plaintiffs renew in our court their argument that the statute is hopelessly vague in this respect also. The judge further held that the statute denies the plaintiffs equal protection of the laws by arbitrarily exempting schools, libraries, and contract printers. He invalidated the statute in its entirety because he did not think that its vagueness could be cured by interpretation, but he added that the statute's severability clause would have allowed him to lop off the exemptions without invalidating the rest of the statute if they alone had been unconstitutional.

Although there have been as yet no prosecutions--of the plaintiffs or of anyone else--for violation of Wisconsin's new obscenity statute, it is early days, and the plaintiffs have made an adequate showing that they want to sell materials which the statute actually or arguably prohibits and that they are deterred from doing so by a reasonable fear of prosecution. So there is a real controversy between them and the state, and the suit can be maintained in a federal court without violating Article III of the Constitution. Bowers v. Hardwick, 478 U.S. 186, 188, 106 S.Ct. 2841, 2842, 92 L.Ed.2d 140 (1986); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); Alleghany Corp. v. Haase, 896 F.2d 1046, 1049 (7th Cir.1990). The existence of an actual controversy is much clearer than in Bowers. Obscenity laws are enforced, though erratically and ineffectively; sodomy laws are not enforced. The plaintiff in Bowers had been arrested for committing sodomy, but he had not been prosecuted; nor had anyone else during the preceding forty years. Yet the plaintiff was held to have standing to sue to enjoin the enforcement of the state's sodomy statute.

The plaintiffs have not attempted to show that the libraries, schools, or contract printers exempted by the statute are actual or potential competitors of theirs in the sale of pornographic materials and hence that the plaintiffs are being forced to compete with entities upon which the statute has conferred a privileged status. The lack of such a showing may appear to cast another shadow over the plaintiffs' standing to challenge the exemptions, but the appearance is deceptive. A person is allowed to point to the existence of an exemption in order to demonstrate the irrationality of a prohibition to which he is subject, even if the exemption itself does not harm him by conferring an advantage on a rival. That is a common way of making an equal protection challenge. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); Orr v. Orr, 440 U.S. 268, 272-73, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979). It does no violence to the concept of standing. It is true that the harm to the plaintiffs that is essential to their right under Article III to maintain this suit comes not from the exemptions but from the threat of prosecution of the plaintiffs, who are not exempt. But because there is a harm to them that emanates from the statute, they have standing to maintain this suit without running afoul of Article III's limitation of the jurisdiction of the federal courts to actual cases. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1525-26 (7th Cir.1990). The question whether the exemptions are so unreasonable as to deny the plaintiffs equal protection of the laws is a question about the merits of the constitutional challenge rather than about their right to mount such a challenge.

The state argues that the district judge should not have reached the merits--that he should have abstained under the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to enable the Wisconsin courts to give the statute an interpretation that might eliminate constitutional doubts. The district judge rejected the argument in part because he could imagine no saving interpretation and in part because--a related point--he felt capable of interpreting the statute himself. Certainly from an intellectual standpoint the judge was capable of interpreting the statute, but an important difference between interpretation of a state statute by a federal court and by a state court is that only the latter interpretation is authoritative. If the district judge had read Wisconsin's new obscenity statute so narrowly as to obviate all constitutional questions, it would still be possible for the state to prosecute people for violating the statute as broadly construed, because the enforcement of the statute would not have been enjoined. And, conversely, in a case such as this in which the district judge, having interpreted the statute, enjoins it in its entirety, he deprives the state courts of an opportunity to save at least a part of the statute by a narrowing interpretation. As a matter of comity, states ought to have that opportunity--even at the price of some delay in the winding up of litigation as the parties adjourn the federal suit to seek the guidance of the state court--unless the statute simply is not susceptible of a narrowing interpretation.

Judge Stadtmueller thought this such a case; we need not decide whether he was right. For if a challenged statute is unproblematic from a federal constitutional standpoint no matter how it is (within reason) interpreted, then there is no point in the federal district court's wasting the time of the parties and of the state court system by abstaining. American Booksellers Ass'n, Inc. v. Hudnut, supra, 771 F.2d at 327; Mazanec v. North Judson-San Pierre School Corp., 763 F.2d 845, 848 (7th Cir.1985). This is such a case, and we therefore agree, though for a reason different from that of the district judge, that abstention was not required.

The plaintiffs conceded at argument that Wisconsin's obscenity statute raises no problems under the First Amendment. That is not because the statute forbids less obscenity than the state could get away with forbidding without violating the First Amendment as construed in Miller v. California. It is easy to imagine a statute that would not exert the state's full power over obscenity yet would violate the First Amendment. A statute forbidding the sale of obscene books unless the book confined its depictions to...