Postscript Enterprises, Inc. v. Whaley

• Citation: 658 F.2d 1249
• Decision Date: 14 September 1981
• Docket Number: No. 80-1987,80-1987
• Parties: POSTSCRIPT ENTERPRISES, INC., Appellant, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A. Schicker, Eugene Camp, Capt. Earl Halveland, Sgt. Vincent Stehlin, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1249

658 F.2d 1249

POSTSCRIPT ENTERPRISES, INC., Appellant, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A Schicker, Eugene Camp, Capt. Earl Halveland, Sgt Vincent Stehlin, Appellees.

No. 80-1987.

United States Court of Appeals,

Eighth Circuit.

Submitted June 16, 1981.

Decided Sept. 14, 1981.

Janet Benshoof, Reproductive Freedom Project, American Civil Liberties Union Foundation, Abigail A. Jones, New York City, Cooperating Atty., American Civil Liberties Union Foundation, for amicus curiae American Civil Liberties Union Foundation and American Civil Liberties Union/Eastern Missouri.

Thomas A. Connelly, City Counselor, Judith A. Ronzio, Asst. City Counselor, Stephen Kovac, Asst. City Counselor, argued, St. Louis, Mo., for appellees.

Murry A. Marks, Clayton, Mo., argued, for appellant.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and LARSON, ^* Senior District Judge.

STEPHENSON, Circuit Judge.

Plaintiff-appellant Postscript Enterprises, Inc. brought action seeking monetary and injunctive relief against the enforcement of a St. Louis municipal ordinance restricting the sale of "any contraceptive or sex-inciting device or contrivance, or any prophylactic rubber goods or prophylactic membranes." The district court ¹ granted defendants-appellees' motion for summary judgment and denied appellant's motion for summary judgment, upholding the ordinance against appellant's contention that it was unconstitutional on vagueness, free speech, and right of privacy grounds. Postscript appeals and we now reverse.

I. BACKGROUND

Appellant operates an adult book store in St. Louis, Missouri, and several times between 1977 and 1979 appellant's employees have been arrested for violating Chapter 772, Revised Code of the City of St. Louis. The ordinance prohibits the sale of any contraceptive or sex-inciting device or contrivance, or prophylactic rubber goods or prophylactic membranes, except by registered and licensed physicians, pharmacists, and wholesale druggists or manufacturers. ²

Appellant's lawsuit seeks to enjoin the enforcement of the ordinance and have it declared unconstitutional. Further, it seeks monetary relief under 42 U.S.C. § 1983 for damages allegedly resulting from appellees' actions.

The district court determined that appellant had standing to challenge the validity of the ordinance and further concluded the ordinance was a proper exercise of the city's police power and not unconstitutional as enacted or applied. On appeal it is argued that the district court erred in not holding that the ordinance (1) violated a constitutionally protected right of privacy; (2) was unconstitutionally vague in its regulation of "sex-inciting devices or contrivances"; and (3) violated appellant's First Amendment rights.

We conclude that chapter 772 violates the right of privacy which an individual has in making decisions regarding contraception. Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). To the extent that the part of the ordinance restricting the sale of "sex-inciting devices or contrivances" is severable from the parts regulating contraceptives and prophylactics, we conclude the phrase "sex-inciting device or contrivance" is unconstitutionally vague. We do not reach appellant's other challenges to the ordinance.

II. ANALYSIS

A. Standing

We agree with the district court that appellant has standing to challenge the validity of chapter 772. Appellant has standing not only in its individual capacity but also has standing to assert the rights of its present and potential customers. Carey v. Population Services International, supra, 431 U.S. at 683, 97 S.Ct. at 2015; Craig v. Boren, 429 U.S. 190, 192-97, 97 S.Ct. 451, 454-56, 50 L.Ed.2d 397 (1976). Chapter 772, like the statutes in Carey and Craig, inflicts on appellant "injury in fact" that satisfies Article III's case-or-controversy requirement since the legal duties created by the ordinance are addressed directly to vendors such as appellant. It is obliged either to heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of its market, or to disobey the statutory command and suffer legal sanctions. See Carey v. Population Services International, supra, 431 U.S. at 683, 97 S.Ct. at 2015 (quoting Craig v. Boren, supra, 429 U.S. at 194, 97 S.Ct. at 455).

The only arrests of appellant's employees have been for the sale or offering for sale of sex-inciting devices. Appellees argue appellant therefore does not have standing to challenge the validity of the contraceptives and prophylactics portions of chapter 772. We disagree. Affidavits filed with the motion for summary judgment in this case state that appellant is offering contraceptives and/or prophylactics for sale. The parties have stipulated that the Vice Division of the St. Louis City Police Department has as one of its functions the enforcement of chapter 772. Appellant is under a realistic threat of arrest and prosecution.

B. Right to Privacy

The validity of chapter 772's prohibition on the sale of contraceptives and prophylactics, except by registered and licensed physicians and pharmacists, is governed by Carey. The district court in this case distinguished Carey:

(I)n Carey, the Supreme Court found a New York statute unconstitutional which sought to restrict distribution of contraceptives to persons under sixteen years of age. The ordinance in question here makes no distinction based on either marital status or age. Indeed, Chapter 772 does not restrict by any classification those persons who may wish to purchase or use the articles enumerated in Section 772.010. Chapter 772 only regulates the method of distribution and the professional competency of the distributors of these products. This is a valid exercise of the municipality's police power.

Postscript Enterprises, Inc. v. Whaley, 499 F.Supp. 646, 649-50 (E.D.Mo.1980).

It is our view that Carey cannot be so limited. The first issue addressed by the Supreme Court in Carey is nearly the precise question we face today: "We consider first the wider restriction on access to contraceptives created by (the statute's) prohibition of the distribution of nonmedical contraceptives to adults except through licensed pharmacists." Carey v. Population Services International, supra, 431 U.S. at 686, 97 S.Ct. at 2016.

The Court in Carey noted that one aspect of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment is "a right of personal privacy, or a guarantee of certain areas or zones of privacy." Id. at 684, 97 S.Ct. at 2015 (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973)). The Court then concluded "(t)hat the constitutionally protected right of privacy extends to an individual's liberty to make choices regarding contraception * * *." Carey v. Population Services International, supra, 431 U.S. at 685, 97 S.Ct. at 2016.

The Court in Carey held the right to access of contraceptives was essential to the exercise of this constitutionally protected right and therefore restrictions on access could be upheld only if they serve a compelling state interest. Id. at 688, 97 S.Ct. at 2017. ³

Thus the Supreme Court found no compelling state interest for the provision restricting the sale of contraceptives in Carey. Id. at 690-91, 97 S.Ct. at 2018-19. We do not find any reasons proferred by appellees in the instant case which were not rejected in Carey. The ordinance's restriction on the sale of contraceptives and prophylactics is therefore unconstitutional.

C. Sex-inciting Devices or Contrivances

Appellees argue that even if the restrictions on the sale of contraceptives and prophylactics are invalid, nevertheless they are severable from the restriction on the sale of sex-inciting devices or contrivances. Appellees therefore contend chapter 772 is valid insofar as it prohibits the sale of sex-inciting devices or contrivances except by duly registered and licensed physicians and pharmacists.

Appellant argues that the single sentence prohibition in section 772.010 first restricting the sale of contraceptives, then sex-inciting devices or contrivances, and finally prophylactic rubber goods or membranes so closely ties together the items that chapter 772 is not severable and therefore unconstitutional in its entirety. Clearly if the phrase refers only to contraceptives or prophylactics which have "sex-inciting" characteristics, ⁴ this restriction is invalid for the reasons set forth in Part II B supra.

A federal court is without power to remedy defects in an ordinance by giving it constitutionally precise content. Hynes v. Mayor of Oradell, 425 U.S. 610, 622, 96 S.Ct. 1755, 1761, 48 L.Ed.2d 243 (1976). However, we are obliged to favor an interpretation which renders the statute constitutional, The Casbah, Inc. v. Thone, 651 F.2d 551 at 558 (8th Cir. 1981); Turchick v. United States, 561 F.2d 719, 723-24 (8th Cir. 1977). We therefore assume the phrase "sex-inciting device or contrivance" includes items which have no contraceptive or prophylactic characteristics. As so interpreted, an issue raised is whether the entire chapter is defeated because of the invalidity of the provisions restricting the sale of contraceptives and prophylactics.

We do not reach the close question of severability. ⁵ To the extent that the restriction in chapter 772 on the sale of sex-inciting devices or contrivances can stand alone, the ordinance is unconstitutionally vague.

The doctrine of vagueness is embodied in the Due Process Clauses of the Fifth and Fourteenth Amendments. Due process incorporates notions of fair notice or warning. ⁶ Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974). We have recently discussed the standards applied in deciding whether an ordinance is unconstitutionally vague on its face. We stated...