Meyer v. Austin, No. 69-678-Civ.-J.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: PER CURIAM
• Citation: 319 F. Supp. 457
• Parties: Russ MEYER, Eve Productions, Inc., Jack Vaughan and Jack Vaughan Productions, Inc., Plaintiffs, v. T. Edward AUSTIN, as State Attorney for the Fourth Judicial Circuit in and for the State of Florida, and Dale Carson, as Sheriff of Duval County, Florida, Defendants.
• Decision Date: 14 August 1970
• Docket Number: No. 69-678-Civ.-J.

319 F. Supp. 457

Russ MEYER, Eve Productions, Inc., Jack Vaughan and Jack Vaughan Productions, Inc., Plaintiffs,
v.
T. Edward AUSTIN, as State Attorney for the Fourth Judicial Circuit in and for the State of Florida, and Dale Carson, as Sheriff of Duval County, Florida, Defendants.

No. 69-678-Civ.-J.

United States District Court, M. D. Florida, Jacksonville Division.

July 22, 1970.

Dissenting Opinion July 23, 1970.

As Modified on Denial of Rehearing August 14, 1970.

319 F. Supp. 458

COPYRIGHT MATERIAL OMITTED

319 F. Supp. 459

Robert P. Smith, Jr., Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, Fla., and Elmer Gertz, Chicago, Ill., for plaintiffs

Charles W. Arnold, Asst. State Atty., Jacksonville, Fla., for defendants.

Edward M. Booth, Jacksonville, Fla., for amicus curiae, Citizens for Decent Literature.

Before SIMPSON, Circuit Judge, and McRAE and YOUNG, District Judges.

OPINION

WILLIAM A. McRAE, Jr., District Judge:

Plaintiffs have brought this action seeking injunctive, declaratory, and other relief, and in particular challenging the constitutionality of the Florida obscenity statute, section 847.011.¹ A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284, and evidence was taken at the hearing held January 17, 1970. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1332, 1343, 2201, and 42 U.S.C. § 1983, and it finds that abstention is not appropriate because of the authoritative rulings of the Florida state courts² and because of the substantial first amendment claims raised here. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

The parties have stipulated to the facts relevant to the seizure of the film "Vixen" at about 3:00 P.M. on October 3, 1969. (See Appendix II). Criminal prosecution of the exhibitor following that seizure was enjoined by this Court in the case of Mandell v. Carson, 309 F.Supp. 326 (M.D.Fla., 1969) (temporary restraining order) because no prior adversary hearing had been obtained. A civil proceeding against the exhibitor Mandell and against the film followed in state court seeking, under section 847.011, a temporary restraining order against the further showing of the film until a final determination of the state proceeding, and seeking to have the film declared obscene and to have it confiscated and destroyed. Florida ex rel. Austin v. Mandell, No. 69-8106-H (4th Judicial Cir.Ct., Duval Cty., Fla.). A petition for removal of that suit on diversity grounds is presently pending in

319 F. Supp. 460

this Court, No. 69-679-Civ-J (M.D.Fla.). (The state circuit court permitted the intervention of Jack Vaughan, a Georgia citizen, and Jack Vaughan Productions, Inc., a Georgia corporation, and defendant Mandell abandoned the suit).³ The present suit was filed at the same time as the petition for removal, on October 30, 1969. Subsequently, on November 17, 1969, a temporary restraining order was entered against further acts by defendants to enforce section 847.011 against the film "Vixen" pending consideration by this Court

Plaintiff Russ Meyer is the director and producer of "Vixen" and principal stockholder and chief executive officer of plaintiff Eve Productions, Inc., owner of the print involved. Jack Vaughan is the sole stockholder and chief executive officer of plaintiff Jack Vaughan Productions, Inc., which distributes the film in Florida, Georgia, Alabama, and Tennessee. Defendant T. Edward Austin is the State Attorney for the Fourth Judicial Circuit of Florida, and defendant Dale Carson is the Sheriff of Duval County, Florida. Following the hearing, Citizens for Decent Literature, Inc., an Ohio corporation, was permitted to file an extensive amicus curiae brief on February 13, 1970, and a supplement thereto on March 18, 1970.

FINDINGS OF FACT

In addition to the facts stipulated regarding the initial seizure without a prior adversary hearing (Appendix II), and the subsequent history of this case detailed above, it was conclusively proven at the hearing that the statewide distribution and exhibition of the film was severely "chilled" and ultimately halted as a result of the state's seizure on October 3, 1969, and the subsequent prosecutions.

At the hearing, testimony indicated that by October 3, 1969, approximately 225,000 persons had seen the film in the four-state area served by plaintiff Jack Vaughan Productions, Inc. In Jacksonville, some 23,000 persons of the age of eighteen or over had seen the film at the Five Points Theatre during the five weeks before its confiscation on October 3. Following the injunction of state prosecution, the film was shown to 7,000 additional patrons in six days. The exhibitor stated that the film rated as one of the three or four most financially successful films of the year. At the time of the Jacksonville seizure, three theatres in Miami and one in Gainesville were showing the film.

Although there had been no outright cancellations before October 3—the date of the seizure—a four-week booking, made final only the day before, at the Florida Theatre in Tampa was cancelled on the afternoon of October 3 because of the Jacksonville seizure. Theatres in Jacksonville (besides the Mandell theatre) and Winter Park cancelled availability play dates because of the seizure, and theatres in Daytona Beach and Key West cancelled October bookings for the reason that the film had been seized in Jacksonville and because the exhibitors did not wish to find themselves in legal difficulties. A Neptune Beach theatre did not show the film as scheduled; and three theatres in Miami cut short otherwise successful runs, and another cancelled a booking for October 16-22. A Lake City theatre was allegedly threatened with prosecution by the state's attorney and cancelled a November booking. Thus, in the entire state, only theatres in Melbourne and Cocoa Beach risked playing a full run between the seizure and the January hearing. One showing in Gainesville, begun before the hearing, finished without

319 F. Supp. 461

interruption.⁴ Subsequent attempts by plaintiffs, before the hearing, to book the film were unsuccessful, except that, at the time of the hearing, a date was scheduled to begin in late February, 1970, at four Wometco theatres in Miami. However, on February 9, Wometco cancelled with the comment "* * * waiting for the Jax decision." Exhibit 8 shows that as many as 34 play dates in one week were cancelled during the month of October alone. In all, at least eleven different theatres cancelled because of the seizure. The inherent flexibility of theatre booking arrangements makes it difficult to determine exactly how many play dates were lost after the month of October. In light of the apparent commercial success the film enjoyed until October 3, however, it is reasonable to infer that the pronounced chilling effect of the prosecution caused a loss of numerous other booking opportunities after October. For the reason that interest in a film is a perishable commodity, irreparable damage may have occurred to plaintiff Russ Meyer's first amendment right of unfettered expression as creator and distributor of the film and to the other plaintiffs' constitutional rights as well.⁵ Further, it is notable that most of these cancellations were precipitated by the initial unconstitutional seizure in the criminal prosecution before the state attempted, on October 9, 1969, to proceed in a civil action by conducting a prior adversary hearing.⁶

CONCLUSIONS OF LAW

Plaintiffs claim that defendants, acting under color of the Florida obscenity

319 F. Supp. 462

statute, have severely chilled the exercise of their first amendment rights by impairing the distribution and exhibition of "Vixen" within the Fourth Judicial Circuit and elsewhere in Florida, see, e. g., Note, The Chilling Effect in Constitutional Law, 69 Colum.L.Rev. 808 (1969), and, furthermore, make five specific challenges to the Florida statute⁷: (1) the Florida statute is unconstitutional because it authorizes seizure of matter conceived by the state to be obscene before a prior, judicially supervised, adversary proceeding is held on the question of obscenity; (2) the Florida statute is unconstitutional because, as authoritatively interpreted by Florida courts, it prescribes an inappropriate local standard for the identification of obscenity; (3) the Florida statute is unconstitutional because neither it nor any other Florida statute, rule or practice, assures a prompt final judicial determination of "obscenity" on appeal; (4) the Florida statute is unconstitutional because it is overbroad in that it does not contain the requirement that material be without redeeming social value; and (5) the State of Florida has no legitimate interest in the suppression of allegedly obscene movies, shown exclusively to adults who, though not pandered to, are first informed of the content.⁸

This Court finds the Florida obscenity statute, section 847.011, unconstitutional in its entirety for the first three contentions made by plaintiffs; the fourth claim we find to be not an unconstitutional defect, but one which it is desirable to correct if a subsequent statute should be enacted; and the Court finds it unnecessary, in light of the ruling made here, to consider plaintiffs' fifth contention at this time.

Standing

Defendants have suggested in their trial brief, p. 16, that plaintiffs cannot claim a full measure of first amendment protection because their interests are diminished by being primarily commercial and private, instead of being personal and public, citing Carter v. Gautier, 305 F.Supp. 1098 (M.D.Ga., 1969) (denying an injunction of a pending state criminal prosecution as opposed to the relief sought here, declaratory judgment). This suggestion is inapplicable to plaintiff Meyer who asserts personal first amendment rights as the creator of "Vixen." As to the other plaintiffs, it is also without merit. The Fifth Circuit Court of Appeals stated persuasively, in...