Shinall v. Worrell

Decision Date18 December 1970
Docket NumberCiv. No. 916.
Citation319 F. Supp. 485
CourtU.S. District Court — Eastern District of North Carolina
PartiesCharles W. SHINALL and Dennis L. Bryant, individually and d/b/a Fayetteville Adult Book Store, Plaintiffs, v. L. F. WORRELL, Chief of Police of the City of Fayetteville, Doran J. Berry, District Solicitor of the Superior Court, Charles G. Rose, III, Chief Prosecutor of the District Court, and Joseph Dupree, District Court Judge, Defendants.

Norman B. Smith, Greensboro, N. C., and Sneed High, Fayetteville, N. C., for plaintiffs.

Robert Morgan, N. C. Atty. Gen., Burley B. Mitchell, Jr., Raleigh, N. C., Staff Atty., for defendants Dupree, Rose and Berry.

Bobby G. Deaver, Fayetteville, N. C., for defendant Worrell.

Before CRAVEN, Circuit Judge, and BUTLER and LARKINS, District Judges.

CRAVEN, Circuit Judge:

This is a suit against the state in the Ex parte Young1 tradition to have a North Carolina Statute of statewide application declared unconstitutional. In addition, plaintiffs seek monetary damages from Cumberland County District Judge Dupree on the theory that he acted in bad faith and ultra vires his judicial office in purported enforcement of the Statute in question.2

The Statute under attack is North Carolina General Statutes § 14-189.1 entitled "Obscene Literature and Exhibitions." We hold the Statute unconstitutional on its face and void because it abridges the Freedom of Speech Clause of the First Amendment made applicable to the states by the Fourteenth Amendment.

Plaintiffs operate the Fayetteville Adult Book Store and are engaged in the sale of books, magazines and exhibition of films in coin-operated moving picture machines. Soon after the store opened in April 1970, a campaign of law enforcement, according to defendants, and harassment, according to plaintiffs, was begun. On April 23, May 23, June 9 and June 16, plaintiff Charles Shinall was arrested. He was twice required to post a bond for his appearance and twice released on his own recognizance. On June 9, the police officers seized six motion picture machines, each with a film in it, and five films that were displayed for sale. On May 13, 1970, Charles Shinall was tried in the District Court Division of the Cumberland County General Court of Justice and found guilty of violating North Carolina General Statutes § 14-189.1 in that he did "purposely, knowingly and recklessly disseminate obscenity by possessing for the purpose of sale and selling an obscene magazine, to wit His and Hers, No. 6—February, March, April, 1970, published by Jaybird Enterprises for the price of three dollars and twelve cents sales tax, total price including sales tax $3.12, said magazine containing various lewd, vulgar, obscene and artless pictures." The state district court judge ordered that Shinall be committed to the custody of the Commissioner of the Department of Correction of North Carolina for a pre-sentence diagnostic study for a period of 60 to 90 days. Shinall was released the next day by a Superior Court judge on a writ of habeas corpus. He has entered notice of appeal to the Superior Court of North Carolina. Subsequently, Shinall was tried in the District Court of Cumberland County on the other warrants and in each instance was convicted and appealed for trial de novo in the Superior Court. The seizure of the questioned films and display machines occurred without any prior judicial determination of obscenity. Recently the state has returned them to Plaintiffs in apparent recognition of the constitutional invalidity of such a seizure. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Compare Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969) affd. 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed. 2d 78 (1970). See Comment, The Requirement and Techniques for Holding an Adversary Hearing Prior to Seizure of Obscene Material, 48 N.C.L.Rev. 830 (1970).


General Statutes § 14-189.1.3

We have carefully considered whether, by interpolation, we may save the Statute in whole or in part, and have decided that it is beyond redemption. We are not so free as are state courts to interpret state statutes nor may we do so with finality. To put into the Statute things that are not there would, we think, be a usurpation of the state legislative process, especially inappropriate for a federal court. This is so even though certain elements must be contained within the Statute in order for it to be constitutional. In Grove Press, Inc. v. Evans, 306 F.Supp. 1084 (E.D.Va.1969), Circuit Judge Butzner notes the unquestioned power of a state's highest court to authoritatively interpret (and interpolate) a state statute and the different result obtained when a three-judge federal court fails and refuses to make a similar interpolation. The Texas obscenity statute was struck down, Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted, 397 U.S. 982 (1969), but the Virginia obscenity statute, similarly defective, was saved by judicial interpolation by Virginia's highest court. House v. Commonwealth, 210 Va. 121, 169 S.E.2d 572 (1969).

For us to judicially amend the Statute would require an assumption, maybe correct and maybe not, that the Legislature intended the term "obscene" to be as expansive as the Constitution permits. Compare A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). We think that we may not properly make such an assumption. Moreover, what the people may want today through their duly elected representatives in the General Assembly may be quite different from that thought to be appropriate and wise in 1957 when the Statute was enacted. Since Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, was decided in 1957 there has been a shift of emphasis and specific recognition of limited state power with respect to the control of obscene material, as well as a narrowing of state power with respect to control of such material within the privacy of one's own home. The Legislature of North Carolina will meet again very soon. It may very well grapple with the problem in a different way and manner than seemed wise and appropriate in 1957. For example, we think it is now clear that the Roth dictum that obscenity is not protected by the First Amendment, 354 U.S. at 485, 77 S.Ct. 1304, is no longer valid. The formula has been that obscenity is not speech within the meaning of the First Amendment. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). See Loewy, Free Speech: The "Missing Link" in the Law of Obscenity, 16 J. Pub.L. 81 (1967). There are several difficulties with such a proposition. In the first place, to say so simply announces a result without analysis of the subject matter. In the second place, no one can quite define obscenity, and it may be that the court, as Mr. Justice Stewart has suggested, has been facing "the task of trying to define what may be indefinable." Jacobellis v. Ohio, 378 U.S. at 197, 84 S.Ct. at 1683. We may know it when we see it—but we are likely to see it differently. Thirdly, the Roth dictum cannot survive Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and its clear holding that admittedly obscene material is protected by the First Amendment from state interference with private possession. Obscenity may be bad speech but it is nevertheless "speech" and thus within the protection of the First Amendment—to an extent not yet entirely clear.

It is reasonably clear that the state may, if it sees fit (a) protect children from exposure to obscene material, (b) prevent assaults upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling adult individual to avoid exposure to it, and (c) punish "pandering" as defined in Ginzburg v. United States, 383 U.S. 463, 465-466, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). At the other extreme, it is equally clear that an adult person may possess obscene material with impunity and beyond the control of the state. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Between these two extremes, the power of the state to censor and proscribe such material has not yet been clearly determined. The en banc district court of Maryland concluded in 1967 that Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), had added to the three-pronged test of Memoirs, other "tests" prerequisite to censorship and control, and that obscene material was fully protected by the First Amendment unless (1) aimed at children or (2) published in such a manner that an unwilling adult could not escape it, or (3) exploited so as to amount to pandering. United States v. 4,400 Copies of Magazines, 276 F.Supp. 902 (D.Md.1967). Although we greatly respect the District Court of Maryland, we agree with the analysis of Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y. 1969) that the so-called additional "tests" of Redrup are only evidentiary factors which may tip the balance toward a finding of obscenity.

There is a danger in the interpolation of criminal statutes—especially in the First Amendment area. To validate a statute that is facially unconstitutional entails a risk of chilling the exercise of First Amendment freedoms. That a statute may not mean what it says and may have been interpreted more narrowly than its terms import (in order to save it) may not be readily apparent to the public or even to an elected state district court judge who is without legal education.4 The people are entitled to know precisely what is prohibited and it is obviously better that they know it from the words of the Statute itself rather than from judicial decisions which are less likely to come to their attention.

For all of these reasons we think it better that the Legislature start...

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