MAGTAB PUBLISHING CORPORATION v. Howard, Civ. A. No. 7222-7227.

Citation169 F. Supp. 65
Decision Date09 January 1959
Docket NumberCiv. A. No. 7222-7227.
PartiesMAGTAB PUBLISHING CORPORATION et al. v. W. L. HOWARD and James C. Kelly, Jr. HMH PUBLISHING COMPANY, Inc. v. W. L. HOWARD and James C. Kelly, Jr. PICTURES MAGAZINES, INC., et al. v. W. L. HOWARD and James C. Kelly, Jr. BANNER MAGAZINES, INC. v. W. L. HOWARD and James C. Kelly, Jr. DELL PUBLISHING COMPANY, Inc. v. W. L. HOWARD and James C. Kelly, Jr. GREENLEAF PUBLISHING COMPANY v. W. L. HOWARD and James C. Kelly, Jr.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana

Thomas W. Davenport, Monroe, La., for plaintiffs.

Haynes L. Harkey, Jr., Hayes, Harkey & Smith, Monroe, La., for defendants.

BEN C. DAWKINS, Jr., Chief Judge.

This is another of the many controversies arising from the well-intentioned efforts of local governmental authorities to cleanse the newsstands of morally objectionable magazines so as to protect young people from exposure to obscene, indecent, immoral, filthy, lewd, sexually indecent, or lascivious influences. As is almost always the case, the actions of those so worthily motivated have evoked charges here, from the publishers of the magazines under attack, that their rights under the First Amendment— freedom of the press—and the Fourteenth Amendment—to due process of law—have been violated by a "previous restraint".

These identical actions, brought by the publishers of twelve magazines1, are for preliminary injunctions against such previous restraint—the unilateral administrative determination by defendants, the Mayor and Chief of Police of Monroe, Louisiana, in advance and without hearing of any kind, that certain issues of complainants' magazines are in violation of Monroe's "Obscenity" Ordinance,2 with non-prosecutive censorial action allegedly having been taken to suppress them. The suits also claim damages in the sum of $25,000 in each case for defendants' purportedly wrongful conduct.

Upon application, and having noted plaintiffs' sworn averments that irreparable injury was about to be done to their property rights, we issued temporary restraining orders in each case, ordering defendants to cease and desist from their allegedly unlawful conduct, until a hearing could be had upon the merits of the applications for injunctions. By agreement of counsel, these restraining orders were continued in force to the date of the hearing, and thereafter while the matter was held under advisement. Rules nisi were issued, the cases were consolidated for all purposes, and trial without jury was held on November 24th, 1958. Motions to dismiss, filed in each case, were referred to the merits. After study of the record and briefs, we now have arrived at our findings of fact, as to which there is no dispute, and conclusions of law as follows:

Not long prior to October 20th, 1958, (the exact dates not being shown by the record), the Mayor of Monroe, having received numerous complaints from citizens, employed someone to purchase from newsstands in the City any magazines deemed to be in violation of the City's Obscenity Ordinance. Some forty or fifty of these thus were bought and delivered to him. After examining them, he called in an informal advisory committee of ministers, and together they concluded that some fifteen of the publications were obscene.

On October 20th, Joe T. Murray, owner of Red River News Company, Inc., which distributes about 98% of all magazines offered for sale in Monroe, together with most or all of the retail dealers, were invited to a meeting at the Mayor's office. Also present were the Chief of Police and some or all of the ministers.

The Mayor opened the meeting by telling them its purpose; the Ordinance was read aloud; and they were advised that the twelve magazines here involved, plus three others not the subject of these suits, were considered to be in violation of the Ordinance. It was explained to those present that the Mayor and his advisory committee recognized the distributor and retailers to be upright, reputable businessmen, who probably did not realize they were violating the law. For that reason, they were told that they would not be prosecuted, provided the objectionable publications were removed from their stands by November 1st. Some of the retailers requested that they be furnished with a list of the magazines, so, on October 23rd, the Mayor and Chief of Police had uniformed policemen to serve upon the retailers identical copies of the following:

"Notice! Notice! Notice!

Concerning The Sale or Distribution of Lewd or Obscene Literature
"In compliance to Section 10-44 of the City of Monroe Code titled `Obscenity' passed under Ordinance 3004 November 29th, 1952, entered July 2nd, 1958; effective July 10th, 1958, making it unlawful to commit an act of obscenity in the production, sale, exhibition, possession with the intent to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description;
"The Community Literature Improvement Committee, composed of a large group of citizens of the City of Monroe, having examined many of such magazines and, after careful consideration, has judged to the best interest of the community that the following list of magazines shall be removed from all places of business that handle the sale of such literature or any place of business distributing such literature:

"True Confessions Mr Modern Romances Dude Police Dragnet Guy Sir! Gala Good Photography Rogue Scope The Lowdown Playboy Brigitte Man To Man "(Signed) Rabbi Jack Lantz "Rabbi Jack Lantz Chairman "Community Literature Improvement Committee "(Signed) Mike John, Jr. "Mike John, Jr., Co-Chairman "(Signed) W. L. Howard "W. L. Howard, Mayor City of Monroe, Louisiana "JL:MJ:WLH/mw"

Following this action, these suits were filed on October 31st, 1958, one day prior to the effective date of the notice. Meantime, some of the retail dealers had removed the proscribed publications from their stands; and following the issuance of our restraining orders, most, if not all, of them again were placed on sale.

Plaintiffs do not challenge the constitutionality of the Ordinance. They do not argue that its language is void for vagueness, nor do they contend that it cannot be readily understood, conceding that it conveys a definite warning as to the conduct prohibited. They admit that obscenity is not within the protection of the First or Fourteenth Amendments; and, at the trial, their counsel stated that he did not dispute that the publications here involved were obscene, within the meaning of the Ordinance.

Plaintiffs do urge, however, that defendants are public officials whose powers are strictly limited by statute and that no statute gives them the right to judge the merits of publications, nor the right to delegate it to others on a committee to do so; that no statute gives them the right to ban publications by the issuance of an edict or letter in which they require the removal of certain magazines from places of business handling such literature. They further contend that the unilateral action of defendants here was in violation of the First and Fourteenth Amendments, depriving plaintiffs of freedom of the press and of property without due process of law, and contravening their civil rights, in violation of 42 U.S.C.A. § 1983; that courts will issue injunctive relief where valuable property rights are faced with damage and destruction, threatened or resulting from arbitrary action by public officials acting without due process of law. They urge that the sole question here involved is one of law, namely, whether defendants' conduct, as described, amounts to an unauthorized prior restraint.3

For their part, defendants contend that obscenity is not within the protection of the First Amendment to the Constitution, guaranteeing freedom of speech and press, and, therefore, may be proscribed;4 that statutes and ordinances which convey sufficiently definite warning as to the conduct which is proscribed are not unconstitutional because of vagueness;5 that statutes and ordinances proscribing obscene, lewd, lascivious, filthy, and sexually indecent publications are readily understood and convey definite warning as to the conduct prohibited;6 and that Section 10-44 of the City of Monroe Code proscribing the sale or exhibition of any "obscene, lewd, lascivious, filthy or sexually indecent" matter, is not vague and indefinite and is not, therefore, an unconstitutional invasion of the freedoms of speech and press.7 Defendants further contend that only in exceptional circumstances may the equity powers of a Federal Court be invoked to interfere with the enforcement, or threatened enforcement, of a criminal statute or ordinance, even though unconstitutional;8 that no citizen is immune from criminal prosecution, or the threat thereof, in good faith, and imminence of such prosecution, even though unauthorized, is not alone ground for relief in equity by way of injunction.9

Against this background of recognized constitutional principles, defendants chiefly urge that the constitutional protection against previous restraint is not absolutely unlimited, the most notable exception being in cases of enforcement, or threatened enforcement, of statutes and ordinances proscribing obscene matter, Near v. State of Minnesota, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Kingsley Books, Inc. v. Brown, 1957, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed. 2d 1469. Consequently, their ultimate contention is that the threatened enforcement of a City ordinance proscribing the sale of any "obscene, lewd, lascivious, filthy, or sexually indecent" matter is not a previous restraint prohibited by the freedom of speech and press clauses of the Constitution.

We find it unnecessary to engage in extended discussion of the constitutional questions thus presented, because...

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3 cases
  • Brown v. Board of Education of City of Chicago, 71 C 694.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 6, 1974
    ...an injunction when the alleged illegal activity has stopped and there is a bona fide intention not to resume it. Magtab Publ. Corp. v. Howard, 169 F.Supp. 65 (D.La.1951); see also, Wright & Miller, Federal Practice and Procedure § 2942 at Vol. 11, pp. Additionally, as Chief Justice Burger s......
  • Bantam Books, Inc v. Sullivan, 118
    • United States
    • United States Supreme Court
    • February 18, 1963
    ...297 (D.C.D.Conn.1962); Dell Publishing Co. v. Beggans, 110 N.J.Eq. 72, 158 A. 765 (Chancery 1932). See also Magtab Publishing Corp. v. Howard, 169 F.Supp. 65 (D.C.W.D.La.1959). None of the foregoing cases presents the precise factual situation at bar, and we intimate no view one way or the ......
  • Familias Unidas v. Briscoe
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 16, 1976
    ...... Magtab Publishing Corp. v. Howard, 169 F.Supp. 65 ... 10 Cf., Petersen v. Talisman Sugar Corporation, 478 F.2d 73 (5 Cir. 1973), at 78. . 11 The ......

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