PBIC, INC. v. Byrne

• Decision Date: 22 May 1970
• Docket Number: Civ. A. No. 70-508-G.
• Citation: 313 F. Supp. 757
• Parties: P. B. I. C., INC., Natoma Productions, Inc., Frank Butler, Marjorie Dunaway, Jory Richardson, Brooke Lappin, Morton L. Leavy, Donald Francis Tirabassi, and Marlena Langston, Plaintiffs, v. Garrett H. BYRNE, Defendant.
• Court: U.S. District Court — District of Massachusetts

313 F. Supp. 757

P. B. I. C., INC., Natoma Productions, Inc., Frank Butler, Marjorie Dunaway, Jory Richardson, Brooke Lappin, Morton L. Leavy, Donald Francis Tirabassi, and Marlena Langston, Plaintiffs, v. Garrett H. BYRNE, Defendant.

Civ. A. No. 70-508-G.

United States District Court, D. Massachusetts.

May 6, 1970.

Stay Denied May 22, 1970.

COPYRIGHT MATERIAL OMITTED

Gerald A. Berlin, Harold Katz, Henry Monaghan, Boston, Mass., for plaintiffs.

Joseph Nolan, Asst. Dist. Atty., Lawrence Cohen, Asst. Atty. Gen., Boston, Mass., for defendant.

Before COFFIN, Circuit Judge, and GARRITY and BOWNES, District Judges.

Stay Denied May 22, 1970. See 90 S.Ct. 1718.

OPINION OF THE COURT

COFFIN, Circuit Judge.

On February 22, 1970, the live theater production "Hair" opened at the Wilbur Theater in Boston, Massachusetts for an indefinite run. A few days later, the District Attorney of Suffolk County advised various persons responsible for and engaged in the Boston production that the performers and the producers would be prosecuted under sections 16¹ and 32² of Chapter 272 of the Massachusetts General Laws if certain conduct occurring in the play was not discontinued. Plaintiffs³ immediately sought injunctive and declaratory relief from a single Justice of the Massachusetts Supreme Judicial Court. Hearing was promptly held, at which time evidence was taken which included the script of "Hair", the favorable testimony of two drama critics concerning the importance and artistic merit of the play, and three generally non-condemnatory reports of a police officer who had observed both the New York and Boston productions. The case was reserved to the full court.

The court's decision was rendered on April 9 1970, after each participating Justice had observed the Boston production as a member of the regular nightly audience. Their decision, set forth in toto in the appendix to our opinion, decreed that injunctive relief against prosecution under the aforementioned statutory provisions would only be ordered if certain portions of the play were modified or excised.⁴ The rationale for such decision seems to have been that the acts in question were "lewd and lascivious" and that persons who perform such acts are not entitled to equitable relief under Massachusetts law, notwithstanding the fact that such acts are performed as a part of a play which is not otherwise "lewd and lascivious", let alone constitutionally "obscene". Plaintiffs' Motion for Clarification of the court's opinion was denied without comment by the court on the same day. On April 10, 1970, the cast and producers chose to close the show rather than make the modifications indicated by the court's opinion or risk criminal prosecution by continuing to present the production without modification.

On April 13, the plaintiffs filed suit in the federal district court, seeking injunctive relief pursuant to 42 U.S.C. § 1983 against the promised state prosecution by defendant District Attorney of Suffolk County if the play continues unexpurgated, and a declaratory judgment pursuant to 28 U.S.C. § 2201 that the statutes herein involved are unconstitutional on their face or as applied. Pursuant to 28 U.S.C. § 2281 et seq., this three-judge court was convened to consider the issues presented by plaintiffs' suit. We find, on the basis of our discussion infra, that we have jurisdiction because of the substantial federal question here presented. 28 U.S.C. §§ 1331, 1343(3).

The hearing before us revealed, inter alia, that the defendant promises to prosecute if the show reopens without meeting the conditions in the Supreme Judicial Court's opinion; he will not limit himself to one test case and can give no assurance as to the number of prosecutions. Of critical importance, however, defendant now assures us that the promised prosecutions will not be founded on section 32 but rather on section 16 and the common law of indecent exposure. For their part, the performers do not wish to risk repeated fines and jail sentences, nor do they wish to make the required alterations, for they view their so doing as compromising the integrity of the production. In the meantime, the production is losing weekly box office gross receipts of about $70,000, is making refunds or exchanges for tickets already sold, and is no longer making advance sales. They had anticipated a lengthy run in Boston, having at the time of filing this suit advance ticket sales of approximately $600,000.

We are urged not to proceed to the merits of this dispute on the grounds that such consideration is prevented by the principles of res judicata, the Supreme Judicial Court having already decided the critical issues here presented. We disagree. The only issue clearly resolved by the court involved the availability of injunctive relief under Massachusetts law; any finding with regard to the severability of the acts in question relates only to the practical feasibility of the relief ordered. We admit to considerable uncertainty whether the court also determined that section 16 applies to live theater productions and should be interpreted to proscribe "lewd and lascivious" acts performed in such productions. Suffice it to say that there is no indication whatever that the Supreme Judicial Court held that section 16 is constitutional as applied to live theater productions. We therefore are not barred by res judicata from considering that question.⁵

The Constitutional Issue

This brings us to a consideration of the basic constitutional issue presented by plaintiffs' request for declaratory relief: whether a "lewd and lascivious" statute and the common law crime of indecent exposure may be used as weapons to root out of a live theater production some allegedly objectionable conduct. We begin with the proposition that live theater productions, like movies,⁶ are within the ambit of protection of the First Amendment. People v. Bercowitz, 308 N.Y.S.2d 1 (N.Y.C. Crim.Ct., Feb. 25, 1970); Barrows v. Municipal Court of Los Angeles Jud. Dist., 1 Cal.3d 821, 83 Cal.Rptr. 819, 821, 464 P.2d 483 (1970); Dixon v. Municipal Court of City & County of San Francisco, 267 Cal.App.2d 789, 73 Cal. Rptr. 587, 589 (1968). That the Supreme Court has not recently had occasion to so hold cannot alter the unassailable fact that the stage has been a traditional and important medium for the presentation and expression of ideas. Our problem is to determine the extent of the protection afforded by the First Amendment. Roth v. United States, 354 U.S. 476, 481-485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), established the basic doctrine that "obscenity is not within the area of constitutionally protected speech or press", but that which falls short of it is.⁷ The years since Roth have witnessed sporadic efforts to obtain a consensus on what is "obscene".⁸

More recently, however, the Court has held that the mere private possession of obscene matter cannot constitutionally be made a crime, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), thus establishing—contrary to Roth—that obscenity in some contexts is protected by the First Amendment. A three-judge court in Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969) (Julian, J. dissenting), temporary injunction stayed pending disposition of appeal, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (1969), prob. juris. noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (March 23, 1970), read Stanley to suggest that a state may not proscribe "obscenity" in a movie theater, if the public is forewarned of the character of the presentation in a manner which does not constitute pandering, if adolescents are excluded, and if such obscene presentation does not generate a clear and present danger of illegal anti-social conduct.

Plaintiffs argue that Karalexis applies a fortiori to our case. However, adolescents were not excluded here; rather, persons who inquired concerning the admissibility of minors were advised to acquaint themselves with the play's content and nature before bringing the child. Secondly, plaintiff's "a fortiori" argument relies on the premise that movies and live plays are indistinguishable for purpose of the "obscenity" issues presented here, which premise we do not feel compelled to accept as a matter of law. The impact on the theater patron may well differ depending on whether the acts being viewed are presented on a film screen or are performed or simulated by live persons a few rows in front of him. The immediacy of the live theater, its easy access to the audience, its newly rediscovered capacity for improvisation, and its consequent unpredictability even to an adult and sophisticated play-goer distinguish it from a film production where the possibilities of sexual exhortation and of giving offense are fixed in celluloid.

We therefore resist the temptation to treat Karalexis as dispositive of the constitutional issues here presented. Rather than attempting ourselves to discern what the Stanley decision has to say with regard to live theater productions, we conclude that the instant controversy may be resolved within the post-Roth, pre-Stanley principle that "obscenity" in a First Amendment context is not protected from state regulation but that which falls short of it is.

The Court's efforts to establish a constitutional definition for "obscenity" have, understandably, failed to generate a doctrinal consensus. However, the commonly applied test involves a three-pronged analysis, most clearly articulated in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):

"Three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of

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