New American Library of World Literature v. Allen

• Decision Date: 05 August 1953
• Docket Number: Civ. No. 30167.
• Citation: 114 F. Supp. 823
• Parties: NEW AMERICAN LIBRARY OF WORLD LITERATURE, Inc. v. ALLEN et al.
• Court: U.S. District Court — Northern District of Ohio

114 F. Supp. 823

NEW AMERICAN LIBRARY OF WORLD LITERATURE, Inc. v. ALLEN et al.

Civ. No. 30167.

United States District Court N. D. Ohio, E. D.

August 5, 1953.

COPYRIGHT MATERIAL OMITTED

Parker Fulton (of Burgess, Fulton & Fullmer) Cleveland, Ohio, and Murray Gartner, New York City, for plaintiff.

H. Herschel Hunt, Law Director of City of Youngstown, Ohio, and P. Richard Schumann, Asst. Law Director of Youngstown, Youngstown, Ohio, for Chief Allen and other defendants.

McNAMEE, District Judge.

In this action the plaintiff, the New American Library of World Literature, Inc., seeks recovery of damages and a permanent injunction against the defendant, Edward J. Allen, Jr., Chief of Police of the City of Youngstown, Ohio. Plaintiff's claims for relief are grounded upon the alleged unlawful suppression of the distribution and sale of certain of plaintiff's books in the City of Youngstown. This cause was assigned for hearing upon plaintiff's motion for a preliminary injunction. However, by agreement of the parties and with the approval of the court, a final disposition of plaintiff's claims for injunctive relief will be made upon the evidence adduced at the hearing and the briefs and arguments of counsel.

Plaintiff's claims for damages are reserved for final determination on a trial by jury.

Plaintiff is a New York corporation and a publisher of paper-bound pocket-size editions of books, both fiction and non-fiction. As indicated, defendant Allen is Chief of Police of the City of Youngstown, Ohio. Inasmuch as the controversy is essentially one between plaintiff and Allen, identification of or further reference to the other defendants is unnecessary. Virtually all the plaintiff's books are paper-bound pocket-size reprints of de luxe or "hard-cover" editions of books heretofore published by the leading publishing houses of the country. Plaintiff distributes these books nationally through Fawcett Publications of New York. The local distributor of Fawcett in Youngstown, Ohio is the Mahoning Valley Distributing Company, of which Bernard Bloch is the President. The local distributor sells and delivers the books to retail outlets in Youngstown, Ohio. During the year 1952 plaintiff's sales of pocket-size reprints in the country were in excess of forty-million copies.

Early this year the Mahoning Valley Distributing Company removed several of plaintiff's books from the newsstands in Youngstown. Plaintiff alleges this was done by reason of the unlawful conduct of Allen in submitting to Bloch a list of 108 reprints, including eleven of plaintiff's books which Allen considered to be obscene, and threatening Bloch with arrest if these books were not removed from the stands.

In its Complaint plaintiff alleges that the ordinance under authority of which Allen purported to act is unconstitutional as being vague and indefinite; that Allen transcended his powers as Chief of Police, that he misapplied the ordinance in an unlawful and unconstitutional manner; and that plaintiff has been deprived of its property without due process of law; that it has been denied the equal protection of the laws and its right of freedom of the press.

Notwithstanding the multiple claims seriously urged by plaintiff it will be sufficient for the purposes of this proceeding to determine, first, whether the ordinance is constitutional, and, second, if it is, whether Allen acted outside the scope of his powers as Chief of Police to the injury of plaintiff's property rights and civil rights.

Although copies of the eleven books of plaintiff have been received in evidence, the parties have agreed that it is unnecessary for the court to determine whether these books are obscene or immoral in violation of the ordinance.

The Facts.

There is in effect in the City of Youngstown an ordinance which in substance defines the sale or distribution of obscene and immoral books as a misdemeanor and prescribes a fine and thirty days imprisonment for its violation.

Early in 1953 Chief Allen inaugurated a campaign against the sale of lewd and indecent literature. On January 5 he wrote a letter to Bernard Bloch in which he commented upon the discussions between them since 1948 and Bloch's expressed willingness to remove "objectionable literature and pictures." Reference was also made in this letter to Bloch's agreement to "permit us to act as censors but only to a degree." The letter, which is quite lengthy, contains additional matter, including the following:

"These books include almost all of the so-called paper backed `pocket-book' type of magazine, which as a matter of policy, glorify and dwell upon immorality. Admittedly, there are some few which are not in this category, yet so few are they in number that their publication would seem to be a subterfuge designed to whitewash the great bulk of these publications.

* * * * * *

Such periodicals must be removed, and failure to act in this matter will result in arrest and prosecution, under the law, and final disposition by the court."

This letter was released for publication in the Youngstown Vindicator. Although in the above-quoted portion of the letter reference is made to pocket-type magazines, Allen testified that by this language he meant "paper-backed books". Immediately upon reading the letter, Bloch communicated with Allen and later made several visits to the office of the Chief of Police. The burden of the conversations between them was that Bloch considered Allen's objection to be too general and that compliance with the directions in the letter would require the removal of practically all paperbacked books. Bloch requested Allen to specify the titles which the Chief considered to be obscene. Thereupon the defendant, assisted by members of his vice squad, commenced an examination of the books. Only a few of the books were read in their entirety by the Examiners. The defendant stated that in forming his opinion he was influenced by the illustrations on the covers of the books and by the content of the "advertising blurbs", and that blasphemy and detailed description of sexual acts— and violation of the second Commandment of God—were among the standards employed by him to determine whether a book was within the proscription of the ordinance. Allen and the vice squad compiled a list of 108 books and 33 magazines. On January 15, 1953 he forwarded this list to Bloch together with a letter requesting that they be removed from the newsstands. Upon receipt of the letter Bloch suggested to Allen that the letter be made "stronger" so that the publishers would understand fully the position in which Bloch was placed. Accordingly, on January 16, 1953 Allen sent another letter to Bloch in which he stated that a failure to comply with the request to remove the books and magazines on the list on or before January 29, 1953 would result in arrest and prosecution of the distributor or any dealers who "display or sell their periodicals." On several occasions between January 5 and January 15, 1953 Allen orally notified Bloch that he would be arrested unless all obscene books and magazines were removed. Bloch brought the letters of January 15 and 16, together with the list of 108 books, to the attention of the publishers in New York. On January 28, 1953 lawyers representing several of the publishing houses, including plaintiff, met with Chief Allen at his office in Youngstown. Counsel for Bloch was also present at this meeting. These representatives denied that any of the books on the proscribed list were obscene and attempted to persuade Allen to an acceptance of this view. Counsel for Bloch suggested that a test case be filed. To this Allen agreed. But because of the unwillingness of any distributor or dealer to submit to arrest, nothing came of this suggestion. The lawyers for the publishing houses also suggested "an area of compromise" which contemplated the withdrawal from sale of some of the books on the list. This suggestion was rejected by Allen. However, Allen did indicate that he would re-examine the list and give the publishers time in which to submit "materials" in support of their contention that the books were not obscene. Within a week after the meeting with counsel for the publishers Allen 'phoned Bloch and said that he was not going to permit the publishers to select a certain number of books,—"This sort of compromise thing that they talked about— and still leave some on that we felt were in violation." Allen stated: "In other words, I wanted every book that we felt violated the law taken off." Thereupon Bloch informed the publishers that he was removing the books from his dealers' stands. The 108 books, including the eleven published by plaintiff, were thereupon withdrawn from sale. Since that time none of the 108 books have been sold in Youngstown.

At the time he wrote the letters of January 15 and January 16 Allen was not prepared to arrest and prosecute if his demand for the removal of the books was rejected. He stated that the "prosecution stage" had not been reached and that if and when it became necessary to prosecute, he would obtain the advice of the city prosecutor before proceeding. It should be noted that on several occasions before the books were removed, Bloch told Allen that only a court had the right to determine whether the books were obscene or immoral.

Allen learned of the work being done by Inspector Case of Detroit, Michigan in connection with the prevention of the sale of obscene literature in that city. On January 26, 1953 Allen wrote to Case asking for advice and assistance and for a copy of any "lists of magazines, comic books and pocket-size books that we could peruse." In this letter Allen also made reference to the Youngstown list which he had prepared, and in connection therewith stated: "We have tentative list prepared which the vice squad has cited as obscene in their opinion. The list is not all-inclusive and indeed there may be some listed that do not warrant...