McGrew v. City of Jackson, Mississippi

• Citation: 307 F. Supp. 754
• Decision Date: 31 December 1969
• Docket Number: Civ. A. No. 4384.
• Parties: Irene McGREW et al., Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

307 F. Supp. 754

Irene McGREW et al., Plaintiffs, v. CITY OF JACKSON, MISSISSIPPI, et al., Defendants.

Civ. A. No. 4384.

United States District Court S. D. Mississippi, Jackson Division.

December 31, 1969.

Earl T. Thomas, Alex A. Alston, Jr., Charles R. Davis, Thomas A. Coleman, Jackson, Miss., for plaintiff.

Will S. Wells, Asst. Atty. Gen., Robert G. Nichols, Jr., City Pros. Atty., E. W. Stennett, City Atty., John R. Countiss, III (Special Counsel), Thomas H. Watkins (Special Counsel), Jackson, Miss., for defendants.

Before RIVES, Circuit Judge, and COX and NIXON, District Judges.

WILLIAM HAROLD COX, District Judge:

The plaintiffs, as operators of a motion picture show in Jackson, Mississippi, brought this suit against the defendants to enjoin the enforcement of a state obscenity statute against a public showing of a film called "The Fox." This criminal proceeding was instituted before the police justice of the municipality as an ex officio Justice of the Peace in such state case. The state of Mississippi is not made a party to this suit. We are not confronted in this case with any of the problems raised in the cases involving the obscenity of books and written materials. The state of Mississippi simply instituted a criminal action against the plaintiffs for a public showing as entertainment of a moving picture show with synchronized dialogue of the characters on the screen with accompanying sound effects.

The plaintiffs first filed this suit in this Court to enjoin this criminal prosecution in the state court and for declaratory judgment relief and damages. Upon a full hearing by the Court, that temporary injunction was denied and no appeal was taken. Thereupon the plaintiffs applied to the Court for leave to file an amended complaint seeking to have this state statute¹ declared void on its face or as applied; and for injunctive relief against such criminal prosecution, and for a declaratory judgment as to their rights in the premises and for redress for damages. The right to file such amended complaint was granted and this three-judge court was promptly designated and organized. The validity vel non of this state statute on obscenity lies at the threshold of this decision. The nature and character of this exhibition and its natural impact upon any decent audience of good law abiding citizens distinguishes itself readily from the principles and contentions relied upon by plaintiffs and vigorously pressed upon the Court throughout this case.

On November 1, 1968, two police officers and the city prosecuting attorney as paid guests visited the public showing by plaintiffs of the film known as "The Fox" in a local theater; and at the conclusion of the showing, the police officers arrested the individual plaintiffs and seized the entire film without any warrant of arrest or seizure. Mississippi does not have any statutory provision for censorship, or licensing of such motion picture films as a condition precedent to their showing. Accordingly, there was no predetermination by any judicial officer, or body as to the obscenity, or not of this film. There was likewise no application made, or granted for the issuance of a search warrant with its incidental prerequisite determinations. The Mississippi statute authorizes an officer to make an arrest at any time without a warrant for a misdemeanor committed in his presence.² Accordingly, these police officers duly arrested the plaintiffs for this misdemeanor committed in their presence after viewing the entire film, and seized the film as an instrument, or vehicle of the offense for violating this statute. The plaintiffs were promptly charged in the Magistrate's court with a violation of this obscenity statute. The plaintiffs were convicted of a violation of this statute in the Magistrate's court on a plea of nolo contendere from which judgment of conviction they appealed to the County Court of Hinds County where the case was tried anew on its merits before a jury, resulting in a judgment of acquittal of the individual plaintiffs and a mistrial as to the corporate plaintiff. The plaintiffs seek by their complaint in this court of equity a vindication of their defiance of this state criminal statute in the operation of their business, and seek a return to them of the film taken from them upon their arrest for such offense. Significantly, the plaintiffs made no effort to prove that the defendants did not act in perfect good faith in making this arrest and seizure of this film and consequent trial to determine their guilt or innocence. The Court viewed "The Fox" film in its entirety in furtherance of its desire to know all of the facts and surrounding circumstances in a full-scale trial of this case before it on its merits. At the outset, the Court finds from the undisputed testimony and evidence in this case that this is not in any respect a Dombrowski case.³ The defendants in this case on the contrary acted in perfect good faith in arresting the plaintiffs, and in seizing the offending film and in charging these plaintiffs with a violation of this obscenity statute by such public showing of that film at this theater in Jackson as they did.

There is not present in this case any trace of intimidation, or pressure, discrimination or other action designed or calculated to deny, or abridge any constitutional right of any plaintiff herein. Unlike Dombrowski, this obscenity statute has never been declared void, and it is not shown in this case that these officers had no reasonable expectation of success in this prosecution for such offense; and it was not shown that any action in this case was motivated solely by an intent on the part of these officers to harass, intimidate and oppress these plaintiffs by this criminal action. The decision of this Court on the questions before it is not unanimous, but a majority of the judges of this Court are of the opinion that this obscenity statute in suit is constitutional, both on its face and as applied.

The validity of this statute is assailed for vagueness and overbroadness. Those contentions are tenuous and untenable. We are not dealing with a censorship statute, or a licensing statute as plaintiffs seem to suppose and contend. On the contrary, this obscenity statute clearly applies to this sexy Fox picture and proscribes a public display by these plaintiffs of such an obscene picture. These plaintiffs by this suit in this Court of equity voluntarily assumed all of the burdens incident to their complaint for extraordinary relief from this criminal prosecution by reason of alleged irreparable damages. Yet, no plaintiff bothered to testify in this case that he or she did not clearly understand exactly what this obscenity statute proscribed in connection with the showing of this Fox film. Surely, no informed person would seriously contend that a criminal obscenity statute to be valid has to precisely describe the crime, and incorporate all of the judicial tests for a proper determination as to the guilt, or innocence of the offense. That is not the office, or function of a criminal statute. Such a statute simply must impart sufficient notice and warning of the crime to accord the offender as a reasonable person an opportunity to avoid its commission. That was duly done in this case, and such fact is not in any wise denied or even questioned. The rule is that the statute must be couched in language sufficiently definite to convey warnings as to proscribed conduct as measured by common understanding and practice. That is the Roth rule.⁴

Under the rules announced by the Supreme Court governing a decision in these obscenity cases, the statute under attack cannot be justly said to be vague, or overbroad. The fact that this criminal statute does not contain any built-in guidelines, or definitions as to obscenity does not offend any principle of due process. The obscenity test stated in Roth is: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest" in sex. (354 U.S. at page 489, 77 S.Ct. at page 1311. It would be a relatively simple matter to try a criminal case under this statute by proper instructions which would define the offense and give the tests necessary to be applied in a determination as to the existence or not of the offense. The jury would be instructed in such a case that the state must establish three elements to prove the existence of the offense and that those three elements must co-exist, viz: (1) That the dominant theme of the matter taken as a whole appeals to the prurient interest in sex; (2) That the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; (3) That the material is utterly without redeeming social value.⁵

The plaintiffs contend, however, that the statute is void because it contains no requirement as to scienter. This idea is derived from the application of obscenity statutes to books for sale on the shelf of a dealer. Surely, if this were such a case, the Court would simply instruct the jury as to the necessity for a joint union of action and intent in every criminal case as it does. A dealer could not be reasonably expected to know the contents of each book on his shelf for sale, and it would be incumbent upon the state to prove guilty knowledge of such obscene material in one of his books as a condition precedent to conviction. That is good law and good common sense, but it does not establish the contention that any such detail be found in the statute itself. These plaintiffs are inferentially contending that they had no guilty knowledge of the obscenity of some of the revolting scenes depicted in this picture. These people simply cannot conceal their guilt behind the sham of a calloused conscience and base sense of common decency and propriety.

This state obscenity statute is neither vague nor...