New Orleans Book Mart, Inc. v. Mitchell

• Decision Date: 16 October 1970
• Docket Number: No. 70-448-Civ-J.,70-448-Civ-J.
• Citation: 318 F. Supp. 352
• Parties: NEW ORLEANS BOOK MART, INC., et al., Plaintiffs, v. John N. MITCHELL, Attorney General of the United States, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

318 F. Supp. 352

NEW ORLEANS BOOK MART, INC., et al., Plaintiffs, v. John N. MITCHELL, Attorney General of the United States, et al., Defendants.

No. 70-448-Civ-J.

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

October 16, 1970.

Norman J. Abood, Abood & Hazouri, Jacksonville, Fla., Robert Eugene Smith, Towson, Md., Jack Peebles, Metairie, La., for plaintiffs.

John L. Briggs, U. S. Atty., by John D. Roberts, Asst. U. S. Atty., Larry E. Butcher, Criminal Division, Dept. of Justice, Washington, D. C., for defendants.

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

OPINION-ORDER

BY THE COURT:

In this action the plaintiffs, all under indictment in various districts for violation of federal obscenity statutes (Title 18, U.S.C. §§ 1461-1465), request injunctive relief prohibiting the prosecution if the pending indictments and the bringing of future indictments against the plaintiffs, as well as a declaration that the above-mentioned statutes are unconstitutional as written and applied.

The defendants move to dismiss the action on the grounds that the plaintiffs have an adequate remedy at law, i. e., the right to raise the attacks here made on the statute in defense to the criminal charges filed against them. We agree and have accordingly determined that the motion to dismiss should be granted. Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324 (1943).

This ruling is not inconsistent with Reed Enterprises v. Corcoran, 1965, 122 U.S.App.D.C. 387, 354 F.2d 519. In that case it was merely held that a three-judge district court was required to be empaneled to consider the claims of the plaintiffs. This we have done.

Having determined that this is not a proper case for injunctive relief, neither are we disposed to make a declaration of rights which cannot be enforced in the instant litigation. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), is not inapposite to our refusal to grant declaratory judgment. That case turned in part on the fact that the denial of declaratory relief would have deprived the plaintiffs the right to have federal rights determined in a federal forum. Such is not the present case, where the plaintiffs have been indicted in courts of the United States.

It should be made explicit that by our refusal to grant declaratory relief we do not intend to preclude the plaintiffs from making future application to an appropriate single judge of a district court for declaratory relief. Title 28, U.S.C., § 2282 only requires the empaneling of a three-judge court to consider a request for injunctive relief against the enforcement of a statute of the United States. A single district judge may interpret a statute of the United States and grant declaratory judgment when injunctive relief is not requested. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Brotherhood of Locomotive Firemen and Enginemen v. Chicago, B. & Q. R. Co., (D.C.D.C.1964) 225 F.Supp. 11, affirmed 118 U.S.App.D.C. 100, 331 F.2d 1020, cert. denied 377 U.S. 918, 84 S.Ct. 1181, 12 L.Ed.2d 187.

Therefore, it is ordered:

1. The defendants' motion to dismiss is granted, and this action is dismissed with prejudice as to the request for injunctive relief, and without prejudice as to the request for declaratory judgment.

2. Costs shall be taxed against the plaintiffs.

WILLIAM A. McRAE, Jr., District Judge (dissenting):

I respectfully dissent from the dismissal, without hearing on evidence or law, of the plaintiffs' prayer for injunctive relief under 28 U.S.C. § 2282 from the operation of federal obscenity statutes, 18 U.S.C. §§ 1461-1465.

The basis for the dismissal of the prayer for injunctive relief is that "the plaintiffs have an adequate remedy at law, i. e., the right to raise the attacks here made on the statute in defense to the criminal charges filed against them," citing Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). It is clear, however, that the "remedy" of a criminal defense is not adequate to afford plaintiffs the relief to which they are entitled if they succeed. The omni-present threat of future prosecutions under this statute, attacked as unconstitutional on its face, will not be alleviated by the knowledge that a criminal defense can repeatedly be made in every case. Moreover, this chilling effect of multiple prosecutions, both present and future in various jurisdictions throughout the country, will inhibit free access by the public to presumptively protected expression, and this chilling effect, per se, constitutes irreparable injury to first amendment freedoms. Sheridan v. Garrison, 415 F.2d 699, 709 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 685, 24 L.Ed.2d 685 (1970).

The lack of an adequate remedy at law in a first amendment case to cure the chilling effects of multiple prosecutions already begun (here there are seven indictments with forty-two counts) or threatened in the future was recognized by the court in Reed Enterprises v. Corcoran, 122 U.S.App.D.C. 387, 354 F.2d 519, 521-522 (1965):

The traditional basis for injunctive relief is, of course, irreparable harm and inadequacy of legal remedies. * *

* * * * * *

Petitioners allege that the multiplicity of legal proceedings which the Government intends to bring will destroy their businesses, exhaust their financial resources, and make it impossible to defend themselves. In argument and brief they point to the fact that they are already under indictment far from their homes and businesses, and cite other cases where a single publisher has been charged under the same statutes in several different places. If these allegations can be supported by evidence,

...