Miller v. Reddin

• Decision Date: 18 November 1968
• Docket Number: No. 68-712.,68-712.
• Citation: 293 F. Supp. 216
• Parties: Marvin MILLER, Covina Publishing, Inc., a corporation, doing business as Collectors Publications, Plaintiffs, v. Thomas REDDIN, James Harvey Brown, United States of America, and its Agents, the Post Office Department and the United States Attorney General, Defendants.
• Court: U.S. District Court — Central District of California

293 F. Supp. 216

Marvin MILLER, Covina Publishing, Inc., a corporation, doing business as Collectors Publications, Plaintiffs, v. Thomas REDDIN, James Harvey Brown, United States of America, and its Agents, the Post Office Department and the United States Attorney General, Defendants.

No. 68-712.

United States District Court C. D. California.

November 18, 1968.

COPYRIGHT MATERIAL OMITTED

Harvey A. Schneider, Beverly Hills, Cal., for plaintiffs.

Roger Arnebergh, City Atty., by John A. Daly, Asst. City Atty., Los Angeles, Cal., for defendant Thomas Reddin.

John D. Maharg, County Counsel, Charles Vincent Tackett, Deputy County Counsel and Robert R. Taylor, Deputy County Counsel, Los Angeles, Cal., for defendant James Harvey Brown.

William Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Larry L. Dier, Asst. U. S. Attys., Los Angeles, Cal., for defendants the United States, and its Agents, Post Office Dept. and U. S. Atty. Gen.

DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER OF DISMISSAL

HAUK, District Judge.

The matter has come on for hearing upon the First Amended Complaint of the plaintiffs and the three Motions To Dismiss filed by the defendants. Collaterally we must also pass upon plaintiffs' Motion For Convocation Of Three-Judge Court and defendants' opposition thereto.

Plaintiffs are publishers and distributors of five books which are the subject matter of criminal complaints and prosecutions against the plaintiffs filed and now in progress in the California State Court (Los Angeles Municipal Court), and in the United States District Court for the Central District of California. The prosecution in the State Court is based on the State Obscenity Laws, California Penal Code Sections 311 and 311.2¹ The prosecution in the United States District Court for the Central District of California is brought under the Federal Obscenity Statutes, United States Code, Title 18, Sections 1461 and 1462.²

The plaintiffs in their First Amended Complaint seek declaratory relief, damages and an injunction against the defendants, alleging that the defendants are conspiring to violate their civil rights by obtaining search warrants, seizing certain materials published by the plaintiffs, and thereafter arresting and prosecuting the plaintiffs and other persons doing business with the plaintiffs. More specifically, the plaintiffs charge that the five books attached to the First Amended Complaint are constitutionally protected material under the "free speech" and "free press" clause of the First Amendment to the United States Constitution,³ and that the State and Federal prosecutions constitute invalid and unconstitutional prior restraints upon plaintiffs' freedom of speech and expression; that the State and Federal obscenity laws and statutes as so applied, are also unconstitutional under the Fifth⁴ and Fourteenth⁵ Amendments to the United States Constitution; and that the prosecutions, therefore, deprive plaintiffs of their civil rights in violation of the Federal Civil Rights Act, 42 United States Code Sections 1981-1985, 1988.⁶

Finally, plaintiffs seek the impanelment of a Three-Judge Federal Court, 28 U.S.C. §§ 2281-2284,⁷ and assert jurisdiction as to all defendants under the Civil Rights and Elective Franchise jurisdiction statute, 28 U.S.C. § 1343,⁸ and as to the Federal defendants—the United States of America, the Post Office Department and the United States Attorney General—under the Federal Administrative Procedure Act and its provisions for judicial review of Government agency actions, 5 U.S.C. §§ 701-706,⁹ and the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201-2202.¹⁰

The defendants are Thomas Reddin, Chief of Police of the City of Los Angeles; the Honorable James Harvey Brown, Judge of the Los Angeles Municipal Court; the United States of America; and its Agents, the Post Office Department and the United States Attorney General.

For the purpose of this hearing we take the factual allegations of the First Amended Complaint as true. Marvin Miller, a United States citizen, is the majority shareholder of Covina Publishing, Inc., incorporated in Arizona, and conducting business in California under the fictitious trade name of Collectors Publications. Marvin Miller is in charge of and solely responsible for all the publications and operations of Covina Publishing, Inc., and Collectors Publications.

The plaintiffs have published and distributed, and apparently still are publishing and distributing, the five specific books which are attached to and made a part of the First Amended Complaint and which, as we have said, are the subject matter of the two prosecutions now under way against the plaintiffs, one in the Los Angeles Municipal Court and the other in the United States District Court for the Central District of California.

These prosecutions, so the plaintiffs allege, are the result of a "conspiracy" or "scheme" between the Los Angeles Police Department under the direction of the Chief of Police and defendant Thomas Reddin, and the United States Post Office Department through Postal Inspector Donald Schouf, whereby the five books were purchased in the open market and then taken before Municipal Judge and defendant James Harvey Brown, who thereupon issued warrants for search and seizure of thousands of these books, as well as other books and records made and used in connection with the publication and distribution of the said five books.

The materials so seized under warrant were then disseminated to appropriate police, prosecution and judicial officers and used in the State and Federal prosecutions of the plaintiffs under the respective State and Federal obscenity laws initiated by District Attorney complaints on the State side and Grand Jury indictments on the Federal side.

Parenthetically, plaintiffs claim that the Post Office Department has failed to utilize certain civil administrative procedures authorized under its regulations to seize "nonmailable matter" after conducting hearings, and further claim that the dissemination of the seized materials has resulted in numerous additional prosecutions of distributors of these five books in other States and other Federal Districts, with the result that these distributors have failed to pay plaintiffs for the copies of the five books shipped to them by plaintiffs.

The five books, listed and attached to the First Amended Complaint, are all imprinted with the name of plaintiff, Collectors Publications, and consist of the following:

1. "The Traveler's Companion" by Akbar Del Piombo.

2. "The Gilded Lily" by Harry Street.

3. "The Misfortunes of Mary" by Arnold Kam.

4. "Restless Love" by S. Maxwell.

5. Female Photographs (no author listed).

Plaintiffs allege that as a matter of law none of the aforesaid works is obscene. They contend, therefore, that each of them is constitutionally protected material under the First Amendment to the United States Constitution; that the California and Federal obscenity laws as applied in these prosecutions are unconstitutional; that a declaratory judgment and injunctive relief should be issued against the defendants pursuant to the Fifth Amendment of the Constitution (as against the Federal prosecutions) and pursuant to the Fourteenth Amendment of the Constitution (as against the State prosecutions) as well as under the Federal Civil Rights Acts; and that a Three-Judge Federal Court should be convened to hear the matter.

Defendants, on the other hand, contend that the five books as a matter of law cannot be held not to be obscene; that they are reasonably within the ambit and purview of the California and Federal obscenity laws; that they constitute "hard core pornography" not within the protection of the "free speech" and "free press" clause of the First Amendment; that each of the defendants for reasons individually distinct as to them, is immune from suit herein; that the California and Federal obscenity laws, as applied to the prosecutions heretofore stated, are constitutional; that no substantial Federal question has been raised by way of deprivation of any civil or constitutional right protected by the Federal Civil Rights Acts or by the First, Fifth or Fourteenth Amendments to the United States Constitution; and that since there is no substantial Federal question, a Three-Judge Court should not be convened but the matter should be determined by the single-judge Court to whom it is now assigned.

We have examined and analyzed the entire record before this Court, which record includes, among other things, the plaintiffs' original Complaint, the First Amended Complaint, the Motion for Convocation Of Three-Judge Court, the points and authorities submitted by the plaintiffs, and the five books in question. In this examination and analysis we have also covered the defendants' Motions To Dismiss, the Opposition to the convocation of a Three-Judge Court and the points and authorities submitted by defendants.

The cause having been submitted, and being fully advised in the premises the Court now renders its Decision, Findings of Fact, Conclusions of Law and Order of Dismissal.

DECISION

THE FIVE BOOKS ARE REASONABLY WITHIN THE AMBIT AND PURVIEW OF THE FEDERAL AND CALIFORNIA OBSCENITY STATUTES AND ARE NOT PROTECTABLE MATERIAL WITHIN THE "FREE SPEECH" AND "FREE PRESS" CLAUSE OF THE FIRST AMENDMENT OR THE DUE PROCESS CLAUSES OF THE FIFTH AND THE FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

The Court has read completely from cover to cover and in their tedious, tiresome and tawdry detail, each and every one of these five books. Without exception each and every one of them is replete with revolting and repulsive repetition of sexual and excremental activities—shocking, degrading, depraved and pounding appeals to the prurient interest of the reader. Each one describes, displays, presents and represents, in virtually photographic (we note that one book consists entirely of photographs: ...