Pollitt v. Connick

• Decision Date: 19 October 1984
• Docket Number: Civ. A. No. 83-3794.
• Citation: 596 F. Supp. 261
• Parties: Barb POLLITT, et al. v. Harry CONNICK, et al.
• Court: U.S. District Court — Eastern District of Louisiana

596 F. Supp. 261

Barb POLLITT, et al. v. Harry CONNICK, et al.

Civ. A. No. 83-3794.

United States District Court, E.D. Louisiana.

October 19, 1984.

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H. Louis Sirkin, Cincinnati, Ohio, Ronald J. Rakosky, New Orleans, La., for plaintiffs, Barb Pollitt, et al.

William Campbell, Jr., and Thomas W. Milliner, New Orleans, La., for defendants, Harry Connick, et al.

ROBERT F. COLLINS, District Judge.

This matter is before the Court on motion for summary judgment, filed by plaintiffs. By this motion, plaintiffs request the Court to declare LSA-R.S. §§ 14:106 and 13:4711-4716 unconstitutional.

Plaintiffs contend that LSA-R.S. § 14:106 suffers from four constitutional infirmities and that LSA-R.S. §§ 13:4711-4716 suffer from one constitutional infirmity. First, plaintiffs contend that LSA-R.S. § 14:106 is unconstitutionally vague and overbroad and, therefore, violates the first, fifth, and fourteenth amendments to the United States Constitution. Second, plaintiffs contend that paragraph D of LSA-R.S. § 14:106, which exempts certain categories of institutions and their employees and all projectionists from prosecution, violates the equal protection clause of the fourteenth amendment to the United States Constitution, and paragraph D is not severable. Third, plaintiffs contend that paragraph F of LSA-R.S. § 14:106, which requires an adversarial hearing prior to the issuance of an arrest warrant in some instances of alleged obscenity violations but not in others, violates the equal protection clause of the fourteenth amendment to the United States Constitution, and paragraph F is not severable. Fourth, plaintiffs contend that LSA-R.S. § 14:106 constitutes an impermissible prior restraint and has a chilling effect on presumptively protected conduct, because violation of the statute is in all instances a felony carrying cruel, unusual and excessive punishment. Finally, plaintiffs also contend that LSA-R.S.. §§ 13:4711 through 4716, as they relate to obscenity, impose a prior restraint upon presumptively protected activity and, therefore, must be declared unconstitutional.¹ The Court will address each of plaintiffs' five contentions seriatim.²

I. LSA-R.S. § 14:106 Not Vague or Overbroad

The Court disagrees with plaintiffs' first assertion that LSA-R.S. § 14:106 is unconstitutionally vague and overbroad. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court set forth the basic guidelines to be applied in the determination of obscenity. The precise language used in the Miller definition has been incorporated into Louisiana's obscenity statute — LSA-R.S. § 14:106. See State v. Walden Book Co., 386 So.2d 342, 344 (La.1980). Therefore, in light of this Court's duty to follow majority positions of the United States Supreme Court, LSA-R.S. § 14:106 simply cannot be considered either vague or overbroad.

II. Paragraph D of LSA-R.S. § 14:106 Unconstitutional But Severable

Plaintiffs next contend that paragraph D of LSA-R.S. § 14:106 denies them the equal protection of the laws insofar as it exempts listed institutions and their employees, and also exempts movie projectionists, from prosecution for the criminal offense of obscenity.³ In State v. Luck, 353 So.2d 225 (La.1977), the Supreme Court of Louisiana declared that paragraph D's exemption of particular institutions and their employees from prosecution under LSA-R.S. § 14:106 was unconstitutional. The Luck court stated that:

"The nonexempt persons or entities are deprived of the equal protection of the laws by a classification so made without rational basis for differentiation reasonably related to a valid governmental purpose. Louisiana has no legitimate interest in allowing a college, etc., to sell pornography for commercial gain, while prosecuting a commercial establishment next door for the same activity."

This Court agrees with the Louisiana Supreme Court's ruling in Luck, and, therefore, this Court finds that paragraph D of LSA-R.S. § 14:106 violates the constitution to the extent that it exempts certain categories of institutions and their employees. However, to the extent that paragraph D exempts projectionists, it does not violate the equal protection clause of the United States Constitution. There is a definite distinction between the duties and relationship to the public of a projectionist as compared to the duties and relationship to the public of, e.g., a cashier in a bookstore. The projectionist merely changes motion picture reels, which have previously been selected by the manager, runs the projector, and is generally isolated from theater customers. On the other hand, the cashier in a bookstore is frequently in direct contact with customers and, by his actions, allows the material he sells to be taken out of the store and circulated unchecked among the public at large. The legislation sub judice draws upon this distinction in duties and relationship to the public by imposing criminal liability only upon those persons truly responsible for the unrestrained dissemination of obscene material to the public at large. Therefore, the Court finds that subsection D of the statute does not, in this respect, deny plaintiffs' the equal protection of the law, since there does exist a rational relationship between the statutorily created distinction and the State's legitimate interest in the social welfare of its citizens. See, e.g., People v. Victoria, 96 Misc.2d 926, 409 N.Y.S.2d 937, 938 (N.Y.Crim.Ct.1978).

Although the Court finds that paragraph D is unconstitutional to the extent that it exempts from its strictures certain categories of institutions and their employees but not to the extent that it exempts projectionists, the Court does not agree with plaintiffs' contention that this judicial determination of invalidity as to a portion of the statute so eviscerates the legislation that it must fall as a whole. On the contrary, this Court finds that the repugnant portion is severable from the remainder of the statute, which therefore must be upheld.

The constitutional portion of a statute is separately enforceable if it is independent from the unconstitutional portion, forms a complete act within itself, and after separation is reasonable in light of the act as originally enacted. "`The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.'" State v. Johnson, 343 So.2d 705, 708 (La. 1977) (quoting 2 Sutherland, Statutes and Statutory Construction, §§ 44.04 at 341-42 (Sands 4th ed. 1973)). This test is primarily one of ascertaining legislative intent by determining the main or dominant purpose of the enactment. "`Where the purpose of the statute is defeated by the invalidity of part of the act, the entire act is void. Conversely, when the general object of the act can be achieved without the invalid part, the act will be upheld.'" Id. at 709 (quoting 2 Sutherland, Statutes and Statutory Construction, §§ 44.07 at 347 (Sands 4th ed. 1973)).

The obscenity statute was originally enacted by Act No. 274 of the 1974 regular session of the legislature. Louisiana legal scholars recognized that it was designed to fill the void created by two 1974 Louisiana Supreme Court decisions⁴ invalidating the state's then existing obscenity statutes, as mandated in light of the United States Supreme Court's landmark decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See Highlights of the 1974 Regular Session, 35 La.L.Rev. 597, 601-05 (1975). Both the title⁵ and the text of the 1974 act indicate that the main purpose of the legislation was to provide the state with an obscenity statute that would be valid and enforceable in light of Miller. The legislature attempted to accomplish this purpose by adopting the Miller definition of obscenity and by specifying the types of depictions or descriptions of sexual conduct that could constitute obscenity under the act.

The Court is convinced that the principal purpose of LSA-R.S. § 14:106 will not be defeated by the invalidation of that portion of paragraph D not concerning projectionists. The practical impact of eliminating paragraph D will be almost nil, because the types of institutions explicitly exempted by paragraph D will be effectively exempted anyway, under the definition of obscenity itself, found at LSA-R.S. § 14:106 A(2) and (3), since such institutions will rarely display hard core sexual material that "taken as a whole lacks serious literary, artistic, political, or scientific value," and even more rarely display such material "for its own sake, and for ensuing commercial gain." Without the invalid portion of paragraph D, LSA-R.S. § 14:106 forms a complete act within itself, and is reasonable in light of the act as originally enacted. Since the principal purpose of LSA-R.S. § 14:106 was and is to provide the state with a valid and enforceable obscenity statute, this Court concludes that the legislature would have passed the statute had it been presented with the invalid portion of paragraph D removed.⁶ Accordingly, the Court finds that, although the portion of paragraph D exempting the enumerated institutions and their employees is unconstitutional, the invalid portion of paragraph D is severable from the remainder of paragraph D and from the remainder of LSA-R.S. § 14:106.

III. Paragraph F(1) of LSA-R.S. § 14:106 Does Not Deny Plaintiffs The Equal Protection Of The Laws

Plaintiffs' third contention is that paragraph F(1) of LSA-R.S. § 14:106 denies them the equal protection of the laws, because it grants a pre-arrest adversarial hearing, to determine if the material involved is obscene, to all purveyors of allegedly obscene material except those purveying material that shows "actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, closeup depiction of human genital organs so as to give the...