Pocket Books, Inc. v. Walsh

• Decision Date: 13 April 1962
• Docket Number: Civ. A. No. 9245.
• Citation: 204 F. Supp. 297
• Court: U.S. District Court — District of Connecticut
• Parties: POCKET BOOKS, INC., a New York corporation, Plaintiff, v. John A. WALSH, Superintendent of Police of the City of Bridgeport, Connecticut, John Carroll, Captain of the Police Department of the City of Bridgeport, Connecticut, and Joseph Guilfoile, Superintendent of Police of the City of Waterbury, Connecticut, Defendants.

204 F. Supp. 297

POCKET BOOKS, INC., a New York corporation, Plaintiff, v. John A. WALSH, Superintendent of Police of the City of Bridgeport, Connecticut, John Carroll, Captain of the Police Department of the City of Bridgeport, Connecticut, and Joseph Guilfoile, Superintendent of Police of the City of Waterbury, Connecticut, Defendants.

Civ. A. No. 9245.

United States District Court D. Connecticut.

April 13, 1962.

George F. Lowman, Samuel V. Schoonmaker, Cummings & Lockwood, Stamford, Conn., for plaintiff.

Harry F. Spellman, John D. Mahaney, Waterbury, Conn., Hugh C. Curran, Bridgeport, Conn., for defendants.

CLARIE, District Judge.

The plaintiff, Pocket Books, Inc., seeks damages and injunctive relief against the defendant-police officials. The claims for relief are based on the alleged unlawful suppression of the distribution and sale of a book published by the plaintiff and distributed for sale in the cities of Bridgeport and Waterbury. The allegations of the complaint are broad enough to encompass at least two possible theories of recovery: (1) common law tort of interference with a business relation and (2) an action based on the Civil Rights Act, 42 U.S.C.A. § 1981 et seq. The case is presently before the court on a motion for a preliminary injunction.

At a hearing on this motion the following facts were educed: The plaintiff, a New York publishing corporation, published a fictional book written by Harold Robbins, entitled "The Carpetbaggers". It is the sole publisher of the paperbound or pocket-size edition of the book; however, there is a more expensive hardbound edition which it does not publish. In Connecticut, most of the plaintiff's books are distributed by "wholesale jobbers" who deliver the books to retail stores and news stands for sale to the general public.

The Fairfield County News Company of Bridgeport distributed the book in the Bridgeport area. It acquired its supply of this book from Select Magazines, Incorporated.¹ Fairfield County News does not have an exclusive distributorship and copies of the book are distributed to larger outlets and chain stores by other distributors.

A complaint was received by the Bridgeport Police Department to the effect that the book was obscene. Pursuant to this complaint, Captain John Carroll and Joseph Walsh (also known as John A. Walsh), the Superintendent of Police, read the book and concluded that it was obscene. Connecticut has a statute C.G.S.A. § 53-243) which makes it a criminal offense to sell or possess any book containing obscene, indecent or impure language. Captain Carroll telephoned Mr. Salvatore Grosso, manager of Fairfield County News, explained that the police believed that the book was obscene, and requested that he remove it from his stands. Grosso sent a notice² to the retail outlets serviced by the Fairfield County News Company calling for the return of all copies of the book. The Fairfield County News has refrained from distributing copies of the book in the City of Bridgeport since Grosso's conversation with Captain Carroll.

Similar events ensued in the City of Waterbury. The Fare News Company distributed the book in that city. As a result of complaints, Joseph Guilfoile, the Superintendent of Police, read the book and notified the Fare News Company that in his opinion the book was "pretty rough". He requested that they cease to distribute it. Mr. Archie Mintz, the manager of Fare News, sent out a notice³ recalling all unsold copies and has likewise ceased further distribution.

The plaintiff seeks a preliminary injunction restraining the defendant-police officers, their successors and their agents from suppressing or interfering with the sale of the book other than as expressly permitted by the laws of the State of Connecticut.

The granting or denial of a motion for preliminary injunction rests largely in the judicial discretion of this court.⁴ "The award of a preliminary injunction is an extraordinary remedy which will not be granted unless upon a clear showing of probable success and possible irreparable injury to the plaintiffs, lest the proper freedom of action of the defendant be circumscribed when no wrong has been committed." Societe Comptoir De L'Industrie, etc. v. Alexander's Dept. Stores, 299 F.2d 33, 35 (2 Cir. 1962). It is a cardinal rule of equity that a preliminary injunction should not issue in a doubtful case.⁵ Although it is not the function of the court at this time to decide this case on its merits, the claims of the plaintiff must be carefully examined to determine their propriety.

With respect to the possible liability of the defendants under a common law theory of a "business tort", the plaintiff must show, in order to succeed, that the defendants without privilege intentionally interfered with the plaintiff's business relations with Fairfield County News Company and/or The Fare News Company.⁶ If the defendant-police officers acted in good faith believing that the book was obscene and a violation of the Connecticut Obscenity Statute, their actions were privileged and in no way tortious under a common law theory of liability. At the hearing on the motion for preliminary injunction, there was not a scintilla of evidence that the defendants acted in bad faith or with an intention to injure the plaintiff. The book was not put in evidence by either party nor was the question of its obscenity raised. However, there was testimony that the police officials acted pursuant to complaints and only after having read the novel. They believed that they had authority to act and that it was their duty to call this book to the attention of the News Companies and warn them that in the opinion of the police the book was obscene.

Turning to the possible liability of the defendants under the Civil Rights Act, has the plaintiff shown that there is a reasonable probability that he will succeed in this action? The plaintiff does not challenge the constitutionality of the Connecticut Obscenity Statute. Rather, it claims that defendants have exceeded their powers. The Connecticut statute⁷ provides in pertinent part: "Any person who buys, sells, advertises, * * * or has in his possession with intent to sell, * * * any books * * * containing obscene, indecent or impure language * * * shall be (guilty of an offense against the laws of the State of Connecticut)". The Supreme Court of Errors in construing the predecessor of this statute has held that proof of knowledge that the article is obscene or indecent is a necessary element for a conviction.⁸ In effect what the defendants did here was to call to the attention of the Wholesale Distributors the opinion of the police that this book was obscene. Such appears to be a...