Penthouse Intern., Ltd. v. McAuliffe

• Decision Date: 07 July 1978
• Docket Number: Civ. A. No. 77-1974A,77-1998A and 77-1999A.
• Parties: PENTHOUSE INTERNATIONAL, LTD. v. Hinson McAULIFFE. PLAYBOY ENTERPRISES, INC. v. Hinson McAULIFFE. PLAYBOY PUBLICATIONS, INC. v. Hinson McAULIFFE.
• Court: U.S. District Court — Northern District of Georgia

454 F. Supp. 289

PENTHOUSE INTERNATIONAL, LTD. v. Hinson McAULIFFE.

PLAYBOY ENTERPRISES, INC. v. Hinson McAULIFFE.

PLAYBOY PUBLICATIONS, INC. v. Hinson McAULIFFE.

Civ. A. Nos. 77-1974A, 77-1998A and 77-1999A.

United States District Court, N. D. Georgia, Atlanta Division.

July 7, 1978.

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James L. Paul, Gambrell & Mobley, Atlanta, Ga., Norman Roy Grutman, Eaton, Van Winkel, Greenspoon & Grutman, New York City, for plaintiff in Civ. A. No. 77-1974A.

Warren C. Fortson, Smith, Cohen, Ringel, Kohler & Martin, Atlanta, Ga., Neil H. Adelman, Devoe, Shadur & Krupp, Chicago, Ill., for plaintiffs in Civ. A. Nos. 77-1998A, 77-1999A.

Leonard W. Rhodes, Asst. Sol. Gen., State Court of Fulton County, Atlanta, Ga., for defendant.

ORDER

RICHARD C. FREEMAN, District Judge.

These are actions brought for declaratory and preliminary as well as permanent injunctive relief¹ concerning the consequences of the arrest of Atlanta magazine retailer Albert Battle and the issuance of accusations against the corporate and individual publishers of plaintiffs' respective publications.² In each instance, the Solicitor of Fulton County, Georgia, contended that the parties in question had violated the Georgia obscenity statute, Ga.Code § 26-2101³ by vending obscene material in Fulton County, Georgia. The substantive federal claims which plaintiffs presently bring before this court arise under the First and Fourteenth Amendments to the United States Constitution as well as under 42 U.S.C. § 1983. The jurisdiction of this court is properly predicated upon 28 U.S.C. § 1331 and 1343(3).

Each plaintiff's complaint raises two similar if not identical claims. First, each plaintiff seeks declaratory and injunctive relief with respect to what it contends are unconstitutional procedures followed by the Solicitor's office which have resulted in the commencement of improper criminal proceedings against the publishers and in the imposition of a prior restraint against their publications. Second, each plaintiff seeks a declaration that several monthly issues of the respective publications are not obscene within the meaning of the constitutional standards enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and subsequently codified in Ga. Code § 26-2101.⁴ Before proceeding to the merits of plaintiffs' claims, a recapitulation of the history of litigation between these parties as well as the operative facts presently before this court is warranted.

In late July of last year, an action filed in this court by Penthouse International Ltd. and several other publishers not parties to the instant action against defendant McAuliffe. Penthouse International, Ltd., et al. v. McAuliffe, 436 F.Supp. 1241 (N.D.Ga. 1977) hereinafter "Penthouse I". In that action, the federal plaintiffs argued that through a series of eight carefully timed arrests coupled with repeated threatening visits to retailers and threatening comments in the press, defendant avoided a binding adjudication among all of the allegedly injured parties concerning the obscenity vel non of the subject publications while erecting a system of prior restraint which effectively eliminated the availability of plaintiffs' publications in the Fulton County area. Id. at 1244. The evidence in that action clearly demonstrated that in each instance no arrest warrant based upon probable cause and issued by a neutral and detached magistrate, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), was obtained before the arrest was made. Rather, the arresting officer himself made the determination that the subject material, which was presumptively protected by the First Amendment, Cinema Classic Limited v. Burch, 339 F.Supp. 43 (C.D.Cal.), aff'd, 409 U.S. 807, 93 S.Ct. 105, 34 L.Ed.2d 66 (1972), was obscene and therefore that the vendor could be arrested for committing the offense of vending obscene material in the presence of the officer. In our order of August 24, 1977, we agreed with plaintiffs that their magazines had been "constructively seized", see Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), Sokolic v. Ryan, 304 F.Supp. 213 (S.D.Ga.1969); Delta Book Distributors v. Cronvich, Inc., 304 F.Supp. 662 (E.D.La.1969) (three-judge court); Cambist Films, Inc. v. State of Illinois, 292 F.Supp. 185 (N.D.Ill.1968) numerous arrests chilling further sales and creating a prior restraint, from the newsstand by the series of arrests effected without any threshold judicial intervention. Accordingly, we declared that defendant McAuliffe's enforcement activities under color of Ga. Code § 26-2101, consisting of numerous and harassing arrests with or without a warrant prior to a final adjudication upon the issue of obscenity vel non at an adversary hearing constituted a prior restraint violative of the First and Fourteenth Amendments to the United States Constitution, Penthouse International, Ltd. v. McAuliffe, supra at 1256. We also ruled that the August, 1977 issue of Penthouse magazine was not obscene within the meaning of Miller v. California, supra and Ga.Code § 26-2101, and permanently enjoined defendant from making further arrests for the sale of the August, 1977 issue of any of the subject publications without first obtaining arrest warrants. The stage was then set for the further theatrics which have given rise to this litigation.

On August 25, 1977, defendant McAuliffe telephoned J. Kirk Quillian, an attorney who represents Atlanta News Agency,⁵ and informed Quillian that he considered the September, 1977 issue of Penthouse to be obscene. On August 26, 1977, at Mr. Quillian's suggestion, McAuliffe agreed to submit the subject magazine informally to Judge Daniel Duke of the State Court of Fulton County arguably in order to determine: (1) whether it was obscene or whether it could properly be distributed; and (2) whether its distribution would violate Judge Duke's probationary order entered with respect to Atlanta News Agency after its plea of nolo contendere to obscenity charges on August 23, 1977. Judge Duke advised Mr. McAuliffe and Mr. Quillian that, taken as a whole, he did not consider the September "Penthouse" to be obscene.

Thereafter, between December 8 and 13, 1977, Mr. Quillian and Mr. McAuliffe candidly discussed ways to expeditiously obtain a resolution of the obscenity issue with respect to publications vended by Atlanta News without subjecting Mr. Edward Elson, President of Atlanta News Agency, to further arrests.⁶ Defendant McAuliffe indicated that he would give Quillian notice if he were about to arrest someone for the sale of a magazine known to be distributed by Atlanta News. In addition, Mr. McAuliffe and Quillian discussed a "stripped down" state court declaratory judgment procedure whereby an arguably obscene magazine could be taken to a Superior Court judge and if it was ruled obscene Atlanta News would not sell it. Conversely, if the judge ruled that it was not obscene, Mr. McAuliffe would not arrest for its sale. However, the parties could not agree on Mr. McAuliffe's suggestion that the procedure would entail no expert testimony and no appellate rights. In addition, Judge Sam Phillips McKenzie of the Fulton Superior Court advised the parties that there were no adequate procedures to deal with the contemplated plan and that he did not believe that the judges of that court would look favorably upon an attempt to create some. Accordingly, no procedure was ever agreed upon.⁷

On November 23, 1977, Mr. Leonard Rhodes from Mr. McAuliffe's office took copies of several magazines purchased by investigator Hartley to the chambers of Chief Judge Camp of the State Court of Fulton County. On the same day, Mr. McAuliffe's office telephoned Mr. Quillian and told him that a purchase had been made of the December Penthouse which Mr. McAuliffe considered to be obscene. Quillian was pledged to keep this information confidential.⁸ On November 30, six John Doe arrest warrants were issued in connection with the sale of "Chic", "Playboy", "Oui", "Raw Lust", "Hustler" and "Penthouse" and Albert Battle was arrested. Quillian was given notice of the arrests. Battle's attorney waived a preliminary hearing on December 1, 1977. The next day Leonard Rhodes notified Quillian of the waiver and that Mr. McAuliffe's office considered the waiver to be an initial determination that the magazine was obscene. It is unclear when during the period the accusations were issued against the instant plaintiffs and Guccione, Filipacchi and Hefner. In any event, Quillian told Elson of the conversation and Elson ordered Atlanta News to immediately "pick up" from their retailers all of the December issues of the subject publications. During the period of December 6, through December 8, 1977, defendant McAuliffe and Mr. Rhodes had conversations with Quillian concerning the arguable obscenity of the January issues of plaintiff's publications. However, on December 9, 1977, this action was filed and defendant McAuliffe agreed to make no further arrests until the issues herein presented were decided.

Although expedited discovery was granted and this court remained ready to hear this action at several junctures, the parties could not resolve pre-trial disputes until early May. The action was then heard on May 17 and 18, 1978, and post-trial briefs were filed, the last of which was received by this court on June 26, 1978. The issues presented finally appear ripe for adjudication.

STANDING

Defendant has argued that plaintiffs do not have standing to complain about the prosecution of Albert Battle, apparently because such a right is personal to Mr. Battle. This argument misconstrues plaintiffs' position. The gravamen of the publishers' contentions is that Battle's arrest had a constitutionally impermissible effect upon the sale and distribution of their magazines. Without expressing any view at...