M.S. News Co. v. Casado, 80-2093
| Decision Date | 16 November 1983 |
| Docket Number | No. 80-2093,80-2093 |
| Citation | 721 F.2d 1281 |
| Parties | M.S. NEWS COMPANY a Kansas corporation, Plaintiff-Appellant, v. Antonio CASADO, Mayor of the City of Wichita, Kansas; Robert C. Brown, Robert Knight, Gary Porter, and Connie Peters, members of the Board of Commissioners of the City of Wichita, Kansas, Richard LaMunyon, Chief of Police of the City of Wichita, Kansas, and John Dekker, City Attorney for the City of Wichita, Kansas, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert C. Brown of Smith, Shay, Farmer & Wetta, Wichita, Kan. (Jack Focht, Wichita, Kan., was also on brief), for plaintiff-appellant.
Stanley A. Issinghoff, Wichita, Kan. (Thomas R. Powell, Wichita, Kan., was also on brief), for defendants-appellees.
Robert T. Stephan, Atty. Gen. of Kan., and Thomas D. Haney, Deputy Atty. Gen. of Kan., Topeka, Kan., filed a brief for the State of Kan. as amicus curiae in support of defendants-appellees.
Before SETH, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
Plaintiff M.S. News Company (News), is a wholesale and retail distributor of periodicals and publications in Wichita, Kansas. 1 It appeals from dismissal of its action for injunctive and declaratory relief against enforcement of a portion of a Wichita ordinance. The ordinance, Number 36-172, amended sections 5.68.150 and 5.68.155 of the Code of the City of Wichita and created 5.68.156. This section prohibits the promotion of sexually oriented materials to minors. It is the sole portion of the ordinance The Wichita ordinance is designed to prevent minors from being exposed to sexually oriented materials that are harmful to them. The ordinance defines "harmful to minors" and makes it an offense to display such material to minors if, as a part of the invited general public, they will be exposed to it. It further proscribes, inter alia, selling, furnishing or presenting to minors any material or performance that is harmful to them.
at issue in this action, and it is reproduced as an appendix to this opinion.
The controlling facts are not in dispute. By early August 1979, plaintiff News became aware of the impending passage of the subject ordinance. On August 20, News brought this action against all members of the Board of Commissioners, the Chief of Police, and the City Attorney of Wichita. It sought a declaratory judgment that Section 5.68.156 "is unconstitutional on its face and as applied," and injunctive relief restraining the defendants from enforcing the section. The district judge promptly issued a temporary restraining order.
Defendants filed a motion to dismiss with a supporting brief claiming, inter alia, that the complaint failed to state a cause of action. News then filed a reply brief contesting the motion. The district court held a hearing to consider plaintiff's request for a permanent injunction and the defendants' motion to dismiss, heard argument, and took the matter under advisement. The judge shortly thereafter dissolved the temporary restraining order, denied the request for preliminary and permanent injunctive relief and granted defendant's motion to dismiss. Plaintiff appeals.
Plaintiff makes four main arguments on appeal, contending that the ordinance: (1) goes beyond the permissible scope of Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and is overbroad and vague both on its face and as applied; 2 (2) violates the Equal Protection Clause of the Fourteenth Amendment; (3) creates a prior restraint in violation of the First Amendment; and (4) deprives defendants of their Sixth Amendment right to a jury trial. We will consider each of these contentions in turn. 3
Plaintiff News challenges the ordinance for overbreadth and vagueness. It essentially says that the realistic effect of the ordinance will be to limit, by its overbroad application, the access of adults, and minors approaching adulthood, to constitutionally permissible material. News further argues that the ordinance is vague in that it neither affords fair warning to those within its reach, nor provides explicit standards for those who enforce it. Brief of Appellant at 17.
Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), rejected a vagueness challenge to a New York statute similar to the Wichita ordinance. The Supreme Court there held that it is constitutional to proscribe the sale of "girlie magazines" to minors, where the magazines contained defined forms of sexually oriented material, even though such material was not obscene for adults. The Wichita ordinance at issue is almost identical to the There are two principal differences between the Wichita ordinance and the statute in Ginsberg that are relevant to the constitutionality of the Wichita ordinance on its face. First, the Wichita ordinance uses the Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity test, 4 and second, it proscribes not just the dissemination of material harmful to minors, as Ginsberg did, but also the display of such material. 5 We find no constitutional infirmity in the ordinance resulting from either of these changes, or in any of the prohibitions of display, sale or presentation of proscribed materials to minors.
statute upheld in Ginsberg. Ginsberg, supra, 390 U.S. at 645-47, 88 S.Ct. at 1283-84. Plaintiff attempts to distinguish Ginsberg by pointing out differences between the two laws.
We are unable to discern any substance to plaintiff's argument that replacing the Memoirs test with the Miller test creates either an overbreadth or vagueness problem. The ordinance in Ginsberg prohibited distribution to minors of material that was "harmful to minors." In defining "harmful to minors," the Memoirs obscenity test was adapted so that material could not be distributed to minors if it: (1) appealed to the prurient interest of minors; (2) was patently offensive to what the adult community believed was suitable for minors; and (3) was utterly without social importance for minors. Ginsberg, supra, 390 U.S. at 646, 88 S.Ct. at 1284. The Wichita ordinance is virtually identical to that upheld in Ginsberg except that the Miller obscenity test is used rather than the Memoirs test. Although the ordinance alters the Miller test so that it can be used for determining what material is harmful to minors, this is precisely what the ordinance in Ginsberg did with the old Memoirs test. We reject the argument that the use of the Miller test
rendered the ordinance overbroad or vague. 6
The Wichita ordinance prohibits (a) displaying material "harmful to minors," (b) selling, furnishing or presenting such material to minors; and (c) presenting to a minor any "performance" harmful to him. We feel that Ginsberg has already upheld all such prohibitions except that of display. We therefore focus on the overbreadth and vagueness challenges to the display prohibition.
The ordinance prohibits displaying materials harmful to minors when minors "as a part of the invited general public, will be exposed to view such material." The ordinance provides that such material is not displayed if it is "kept behind devices commonly known as 'blinder racks' so that the lower two-thirds of the material is not exposed to view." We believe this provision is neither vague nor overbroad.
Although First Amendment challenges to legislation under the overbreadth and vagueness doctrines are related, 7 they are distinct. The vagueness doctrine is anchored in the Due Process Clauses of the Fifth and Fourteenth Amendments, 8 and protects against legislation lacking sufficient clarity of purpose and precision in drafting. See Erznoznik v. City of Jacksonville, supra, 422 U.S. at 217-18, 95 S.Ct. at 2276-77; Grayned v. City of Rockford, 408 U.S. 104, 108-14 & n. 5, 92 S.Ct. 2294, 2298-302 & n. 5, 33 L.Ed.2d 222 (1972). Overbroad legislation need not be vague, indeed it may be too clear; its constitutional infirmity is that it sweeps protected activity within its proscription. See Erznoznik v. City of Jacksonville, supra, 422 U.S. at 212-13, 95 S.Ct. at 2274-75; Grayned v.
City of Rockford, supra, 408 U.S. at 114, 92 S.Ct. at 2302. We consider the overbreadth and vagueness issues separately. 9
As noted, plaintiff News argues that the Wichita ordinance is overbroad, restricting the access of adults and minors approaching adulthood to constitutionally permissible publications. Brief of Appellant at 17. News says that as commercial enterprises seek to avoid violating the ordinance, the natural tendency will be to limit materials available for view by anyone. Id. at 13.
We disagree. First, as noted, with respect to the sale or distribution of materials "harmful to minors," the ordinance has a clear and acceptable standard that will permit sale or distribution to adults of such materials. Second, the portion of the ordinance dealing with display of material "harmful to minors" is reasonably structured. It is true that compliance with the ordinance will to some degree restrict the viewing by adults of materials which are, as to adults, constitutionally protected. However, the restriction is reasonable and does not offend the First Amendment.
Reasonable time, place and manner regulations are permissible where the regulations are necessary to further significant governmental interests, Young v. American Mini Theatres, 427 U.S. 50, 63 & n. 18, 96 S.Ct. 2440, 2448 & n. 18, 49 L.Ed.2d 310 (1976) (plurality), and are narrowly tailored to further the State's legitimate interest. Grayned v. City of Rockford, supra, 408 U.S. at 116-17, 92 S.Ct. at 2303-04. 10 We find Young, supra, instructive. In Young the plurality held that Detroit zoning ordinances providing that an adult theatre may not be located...
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