Newman v. Conover

• Decision Date: 03 June 1970
• Docket Number: Civ. A. No. 3-3604,Civ. A. No. 3-3134,Civ. A. No. 3-3605,Civ. A. No. 3-3606,Civ. A. No. 3-3766-C.
• Citation: 313 F. Supp. 623
• Parties: Preston NEWMAN et al., Plaintiffs, v. Fred CONOVER et al., Defendants. TEXAS BOOKMARK CORPORATION et al., Plaintiffs, v. Thomas A. CURTIS et al., Defendants. Alton WEST, Plaintiff, v. Blair CHERRY, Jr., et al., Defendants. TEXAS BOOKMARK, INC., et al., Plaintiffs, v. Blair CHERRY, Jr., et al., Defendants. CINNE ARTS THEATRES, INC., et al., Plaintiffs, v. Frank DYSON et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

313 F. Supp. 623

Preston NEWMAN et al., Plaintiffs, v. Fred CONOVER et al., Defendants.

TEXAS BOOKMARK CORPORATION et al., Plaintiffs, v. Thomas A. CURTIS et al., Defendants.

Alton WEST, Plaintiff, v. Blair CHERRY, Jr., et al., Defendants.

TEXAS BOOKMARK, INC., et al., Plaintiffs, v. Blair CHERRY, Jr., et al., Defendants.

CINNE ARTS THEATRES, INC., et al., Plaintiffs, v. Frank DYSON et al., Defendants.

Civ. A. No. 3-3134, Civ. A. No. 3-3604, Civ. A. No. 3-3605, Civ. A. No. 3-3606, Civ. A. No. 3-3766-C.

United States District Court, N. D. Texas, Dallas Division.

June 3, 1970.

Mel S. Friedman, Houston, Tex., Stanley Fleishman, Hollywood, Cal., Harris Hampton, Dallas, Tex., Minor Pounds, Phil Brummett, Lubbock, Tex., for plaintiffs.

N. Alex Bickley, City Atty., Thomas Thorpe, Asst. City Atty., Henry Wade, Dist. Atty., Wilson Johnston, Asst. Dist. Atty., Dallas, Tex., Naomi Harney, County Atty., Amarillo, Tex., J. Blair Cherry, Jr., Dist. Atty., Thomas J. Purdom, County Atty., Lubbock, Tex., Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Jay Floyd, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for defendants.

Before GOLDBERG, Circuit Judge, and HUGHES and WOODWARD, District Judges.

Civ. A. No. 3-3134, Dallas Division. Civ. A. No. 3-3604, Amarillo Division. Civ. A. No. 3-3605, Lubbock Division. Civ. A. No. 3-3606, Lubbock Division. Civ. A. No. 3-3766-C, Dallas Division.

MEMORANDUM OPINION AND JUDGMENT

WOODWARD, District Judge.

Plaintiffs in these cases are seeking declaratory relief and injunctive protection under Section 1983, Title 42, United States Code, which permits civil actions for deprivation of rights. Involved is the constitutionality of Article 527 of the Texas Penal Code, Vernon's Ann., as amended in June of 1969. Revised Article 527 is entitled "Obscene articles" and prohibits, among other things, the distribution of obscene matter to adults.

To consider properly the constitutional questions raised in these cases, a three-Judge Court has been appointed under Section 2284, Title 28, United States Code. The cases have been consolidated and now this Court must examine the request for declaratory relief in the form of constitutional challenges to revised Article 527. After these issues are resolved, other requests for relief can be properly adjudicated. In this regard, Plaintiffs have filed Motions for Summary Judgment praying that revised Article 527 be declared unconstitutional while Defendants have filed Motions to Dismiss urging that no substantial constitutional questions have been raised. To determine the validity of these competing claims, each of Plaintiffs' allegations as to unconstitutionality raised in the motions and pleadings must be examined.

At the outset it should be noted that obscenity may be regulated by the States. The Supreme Court, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), clearly holds so in the following language.

"The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press." (page 481, 77 S.Ct. page 1307)

"We hold that obscenity is not within the area of constitutionally protected speech or press." (page 485, 77 S.Ct. page 1309)

Although some of the Plaintiffs in these cases have questioned the right of the State to regulate obscenity because of the prohibitions of the Constitution, it is clear that the State has such a right, and the questions to be disposed of here are whether such regulation in Texas has been accomplished in a constitutional manner by the enactment of Article 527 of the Texas Penal Code, as amended in 1969. The following portions of this opinion will be addressed to the constitutional questions raised by Plaintiffs.

1.

Plaintiffs assert that Section 3 of revised Article 527 is unconstitutionally overbroad in that it prohibits any person from publishing, preparing, printing, distributing or selling allegedly obscene material to adults for their private use.¹ As authority for this assertion, Plaintiffs cite the recent Supreme Court decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) and contend that such action prohibited above is protected under the guarantees of the First Amendment. Plaintiffs also rely on Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), where the old Texas obscenity law, Article 527 before amended in 1969, was struck down because, under Stanley v. Georgia, the statute was overbroad in that it failed to confine its application to a context of public or commercial dissemination. The prior statute proscribed, for example, the mere private possession of obscene material. After the Stein case was argued, the Legislature tried to correct this infirmity by prohibiting only the sale or distribution of obscene material or the possession of obscene material with the intent to sell or distribute. Possession alone is not an offense under the new statute. Under these circumstances, is Section 3 overbroad and thus constitutionally defective?

By affirming the decision in Gable v. Jenkins, 309 F.Supp. 998 (N.D.Ga., 1969), the Supreme Court has come very close to answering the above question. See 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed. 2d 595 (1970). In the Gable decision, written by a three-Judge Court, the following section from the Georgia statute prohibiting the distribution of obscene materials was challenged:

"A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent to do so." Article 26-2101(a), effective July 1, 1969.

This section of the Georgia statute is very similar to Section 3 of the Texas statute which reads:

"Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares for distribution, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."

In Gable, the Georgia statute was challenged on the ground that it was overbroad under the standard enunciated in Stanley. The Court stated: "Plaintiff divines several situations under which the working of 26-2101 might be overly broad, viz., a husband showing an obscene book to his wife, or consenting adults being prohibited from gathering in a private home to view an obscene film." Gable v. Jenkins, supra, 309 F. Supp. page 1000. Such an argument is rejected by the Court under its reading of Stanley. At page 1000, the Court writes:

"Stanley, supra, gives a comprehensive study of Freedom of Expression guaranteed by the Bill of Rights to the Constitution and the intrusion of obscenity into this almost unlimited freedom. Obscenity, it was stated in Roth, supra, is not within the protected pale of the First and Fourteenth Amendments. However, Stanley tempers this broad mandate by the allowance of the private possession of obscene materials. As Justice Marshall stated in his concluding paragraph in Stanley: `As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.' These words indicate a conscious desire on the part of that Court to keep Stanley limited to its facts and no statements in the body of the opinion could logically be construed to encompass the contention of plaintiff."

After making the above comments, the three-Judge Court in the Gable case upheld 26-2101(a) and found it constitutionally valid by stating: "Without an illogical extension of Stanley, the Supreme Court decisions allowing the regulations of obscenity would appear to demand a holding that Georgia Code 26-2101 is constitutional." Since the Supreme Court affirmed this decision, it would seem reasonable to assume that it approves of the lower Court's construction of Stanley. For a different construction, see Comment, 48 Texas L. Rev. 646 (1970).

The differences in the Georgia and Texas statutes are, at most, minimal. The same challenges leveled against the Georgia statute have been leveled against the Texas statute and there is no reason to reach a result different here from the result reached in Gable. Under the circumstances, Section 3 is clearly constitutional.

2.

Plaintiffs further assert that Section 9 of Article 527 is unconstitutionally void on its face because it specifically authorizes the issuance of ex parte search and seizure warrants and also specifically authorizes seizure of allegedly obscene material without affording the affected party a prior adversary hearing on the issue of obscenity.² In this regard, Plaintiffs cite a recent three-Judge Court decision from the Western District of Texas, Fontaine v. Dial, 303 F.Supp. 436 (1969). In Fontaine, the Court was examining procedures employed to seize a film under the prior Texas obscenity law. Although the procedural section of the statute, Section 6, was not held unconstitutional, the procedures actually used were. The Court stated at page 440 of the opinion, that:

"The procedures defendants used in seizing the motion picture film, trailers, and display posters as evidence for future criminal prosecutions against plaintiff under Article 527, are hereby declared unconstitutional, and defendants are ordered to return the seized

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