Poulos v. Rucker

• Decision Date: 10 July 1968
• Docket Number: Civ. A. No. 2625-N.
• Citation: 288 F. Supp. 305
• Parties: Theodore A. POULOS, Jr., Plaintiff, v. Jack B. RUCKER, Commissioner of Public Affairs, Drue H. Lackey, Jr., Chief of Police, City of Montgomery, Ralph M. Hammonds, Detective, City of Montgomery, Defendants.
• Court: U.S. District Court — Middle District of Alabama

288 F. Supp. 305

Theodore A. POULOS, Jr., Plaintiff, v. Jack B. RUCKER, Commissioner of Public Affairs, Drue H. Lackey, Jr., Chief of Police, City of Montgomery, Ralph M. Hammonds, Detective, City of Montgomery, Defendants.

Civ. A. No. 2625-N.

United States District Court M. D. Alabama, N. D.

July 10, 1968.

J. Paul Lowery, Montgomery, Ala., for plaintiff.

Ira DeMent, Montgomery, Ala., for defendants.

MEMORANDUM OPINION

JOHNSON, Chief Judge.

Plaintiff, the operator of a news and magazine stand in Montgomery, Alabama, seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, as to the obscenity, vel non, of certain publications¹ admittedly seized by the defendants in the enforcement or attemped enforcement of the Montgomery obscenity ordinance² and as to certain other publications³ plaintiff allegedly felt required to remove from his place of business under threat of criminal prosecution. Plaintiff further alleges that the seizure and the threat of seizure were arbitrary and constituted "on-the-spot" determinations by nonexpert police officials of the obscenity of the publications. Plaintiff seeks an injunction against further seizure of these materials and against further seizure of any materials using unconstitutional methods. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331.

Their motion to dismiss having been denied, the defendants joined issue in their answer and, in addition, counterclaimed, asking this Court (1) to determine that the publications submitted by plaintiff are obscene either when sold or distributed to adults or minors, or both, and (2) to enjoin the further sale or display of said publications either to adults or minors, or both. Defendants further cross-claim and ask for a determination of obscenity and an injunction against the further display, distribution and sale of certain additional publications.⁴

This cause is submitted upon the pleadings, the testimony of numerous witnesses and the library of exhibits submitted in connection with that testimony. This Court now proceeds to make appropriate findings of fact and conclusions of law.

It is now basic in our law that obscenity is not within the area of protected speech or press. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498. However, "constitutionally protected expression * * * is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584. No single standard has yet been evolved for distinguishing protected from unprotected speech.

In cases where the sole issue is obscenity, vel non, Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, states the controlling legal principles. After outlining the diverse views of the individual justices,⁵ the Court held that "whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand." Redrup, supra at 771, 87 S.Ct. at 1416. One month after Redrup the Court reversed per curiam 13 state and federal court judgments finding material obscene without waiting for briefs and arguments.⁶ The Court simply granted certiorari and reversed, citing Redrup. This Court interprets these decisions as indicating that it is indeed a rare book that, solely on the basis of its content, is not entitled to constitutional protection. The Ninth Circuit, Grant v. United States, 380 F.2d 748, and the Eighth Circuit, Luros v. United States, 389 F.2d 200 (slip opinion dated Feb. 7, 1968), have also taken this view of the recent cases.

This is not to say that the First and Fourteenth Amendments preclude all limitations on the distribution and sale of dirty, filthy and sordid books. The Court in Redrup noted that:

"In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of `pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31." Redrup, supra 386 U.S. at 769, 87 S.Ct. at 1415.

By clear implication, the presence of these issues would make a difference. The Supreme Court has recently reaffirmed its willingness to tolerate greater limitation when distribution to minors is involved. Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) upholds on its face a New York criminal obscenity statute which prohibits the sale to minors under 17 years of age of material defined to be obscene on the basis of its appeal to them, whether or not it would be obscene to adults.

Mr. Justice Stewart, concurring in Ginsberg, provides us with what should become a classic statement of the Court's present operative theory:

"The First Amendment guarantees liberty of human expression in order to preserve in our Nation what Mr. Justice Holmes called a `free trade in ideas.' To that end, the Constitution protects more than just a man's freedom to say or write or publish what he wants. It secures as well the liberty of each man to decide for himself what he will read and to what he will listen. The Constitution guarantees, in short, a society of free choice. Such a society presupposes the capacity of its members to choose." Id. at 1285 of 88 S.Ct. (Footnotes omitted.)

The Supreme Court, then, has increasingly been focusing on and giving content to "the liberty of each man to decide for himself what he will read and to what he will listen." Regulation limited to children may be justified on the theory that they lack the capacity for full choice. "Pandering," "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers," Roth v. United States, 354 U.S. 476, 495-496, 77 S.Ct. 1304, 1315 (concurring opinion), may still be regulated on the theory that it is conduct —conduct which ordinarily is not necessary to the effective choice of the reader. In such situations books are not on trial.

Having examined the material involved and listened to the testimony of qualified experts,⁷ this Court concludes, on the basis of the authority outlined above, that none of the submitted material is obscene for adult readers. Rather, as to them, such material is entitled to the full protection of the First and Fourteenth Amendments to the Constitution. It follows that the Montgomery obscenity ordinance cannot be applied constitutionally to their sale or distribution to adults. That is the limit of this Court's holding on this issue. The ordinance was not attacked on its face. No issue of pandering was raised. Defendants did raise by their pleading the obscenity, vel non, of this material for minors. It was, however, the uncontradicted testimony of plaintiff that it is his policy not to sell to persons under 21 years of age, and that in furtherance of that policy he requires identification of any person of doubtful age. It would be premature, therefore, to resolve this issue about which there is not involved the "actual controversy" required by 28 U.S.C. § 2201. Nor would it be appropriate at this time to decide whether the ordinance as written could be applied constitutionally to the sale or distribution to minors of material found obscene as to them. Suffice it to note that while the statute is not drawn to deal specifically with minors as was the one upheld in Ginsberg, it does borrow heavily from the language of Supreme Court opinions and could perhaps be judicially construed to include the concept of variable obscenity adopted in Ginsberg. It might very well be appropriate at this time for the Montgomery, Alabama, authorities— or the Alabama legislative authorities, to give some serious consideration, by appropriate ordinances or statutes, to implementing Ginsberg v. New York, supra, for the protection of minors.

Because defendants proceeded against materials found by this Court to be constitutionally protected, it becomes particularly important to examine the methods used by defendants in determining that the materials were not thus protected.

The evidence for this aspect of the case, by stipulation of the parties, is drawn primarily from a transcript of the proceedings in the case of The City of Montgomery v. Theodore A. Poulos in the Municipal Court for the City of Montgomery, Alabama.

Defendant Rucker testified that in his capacity as Commissioner of Public Affairs he was in charge of directing the policies of the City Police Department and that in that capacity he initiated a so-called clean-up campaign concerning alleged obscene literature on the newsstands of Montgomery. Defendant Lackey, the Chief of Police, superintended the execution of the enforcement program. Defendant Detective Hammonds was the operative agent behind the events leading to the arrest of plaintiff and the seizure of some 90 copies of five titles on October 30, 1967.

Defendant Hammonds testified that several days previous to the arrest he went to plaintiff's newsstand and examined a number of publications, including those seized. A subordinate testified that he received an interoffice memorandum instructing him to go to another bookstore (not Poulos') and purchase copies of the above-mentioned five titles, which he did. Detective Hammonds procured a warrant for plaintiff's arrest. No titles were specified in the warrant. At some subsequent point plaintiff was told that he must remove...