Sokolic v. Ryan

• Decision Date: 19 September 1969
• Docket Number: Civ. A. No. 2501.
• Citation: 304 F. Supp. 213
• Parties: Mike SOKOLIC, d/b/a Coastal Book Mart, Plaintiff, v. Leo B. RYAN, Chief, Savannah Police Department, Andrew J. Ryan, Jr., J. Curtis Lewis, Jr., Picot B. Floyd et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

304 F. Supp. 213

Mike SOKOLIC, d/b/a Coastal Book Mart, Plaintiff, v. Leo B. RYAN, Chief, Savannah Police Department, Andrew J. Ryan, Jr., J. Curtis Lewis, Jr., Picot B. Floyd et al., Defendants.

Civ. A. No. 2501.

United States District Court S. D. Georgia.

September 18, 1969.

Supplemental Order September 19, 1969.

Bobby F. Herndon, Savannah, Ga., Robert Eugene Smith, Towson, Md., for plaintiff.

Jack H. Usher, Andrew J. Ryan, III, Savannah, Ga., for defendants.

ORDER

LAWRENCE, Chief Judge.

Petitioner is engaged in the business of selling hardbound and paperback books, newspapers, movie films and a wide variety of magazines. The Coastal Book Mart at 212 West Broughton Street was his outlet in Savannah. The store operated under a business license issued by the Mayor and Aldermen. On July 16, 1969, officers of the Savannah Police Department entered the place and arrested Petitioner's employee who was charged with violation of Title 26-2101 Ga. Code (the obscene literature statute). Large quantities of materials were seized and are still being held by the Police Department. At the time of the seizure and arrest, a thirteen-year-old boy was in the store. In addition to the arrest and seizure of merchandise, Petitioner's business license was removed from the wall by an official in the City Manager's office who accompanied the policemen.

The taking of Petitioner's license was presumably the temporary suspension, pending a hearing on permanent revocation, as authorized by the City of Savanah Revenue Ordinance of 1969, License, Section 1.

On the day following the initial arrest Petitioner, with advice of counsel, reopened the store and did business as before. Shortly, the authorities appeared and re-arrested the employee. He was charged with operating an unlicensed business contrary to Section 8 of the ordinance referred to. The store was padlocked and remains so. Plaintiff has been deprived of access to the materials therein.

Plaintiff alleges that defendants, acting under color of State law in derogation of the Fourteenth Amendment, have deprived him, without due process, of his First Amendment right to freedom of expression by utilizing constitutionally defective criminal and civil procedures calculated to suppress the sale of protected literature. Petitioner asks (1) that this Court hold that Ga. Code, Title 26, § 2101 has been unconstitutionally applied and enjoin all criminal prosecutions arising out of the events of July 16; (2) that it order all materials seized to be returned; (3) that it rule the Savannah licensing ordinance in question to be unconstitutional, reinstate the suspended license and enjoin the prosecution for operating without a license; (4) that it order defendants to refrain from utilizing such procedures in the future; and (5) that the Court award money damages against the defendants. Plaintiff's motion for a temporary restraining order was denied and the matter came on for hearing before this Court on August 5, 1969, on motion for a preliminary and permanent injunction.

Following the hearing, I examined some of the materials taken by the police authorities for evidentiary purposes. All of them are unspeakably obscene — a shameless parade of scatology, lesbianism, homosexuality, genetalia — an alphaomega of prurient appeal to perverted sex appetite. The huge circulation of the mephitic filth flooding this nation is as much an indictment of the gutter instincts of a large segment of the population as it is of the purveyors who blatantly profit from the preoccupation of many Americans with ordure and depravity.

Obscenity is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. But this does not mean that literature (there must be a better word) which is in fact obscene is not entitled to the same procedural safeguards that are thrown around non-obscene materials. Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Tyrone v. Wilkinson, 4 Cir., 410 F.2d 639; Metzger v. Pearcy, 7 Cir., 393 F.2d 202; Central Agency, Inc. v. I. W. Brown et al. (N.D. Ga. No. 13023). One procedural protection afforded publications regardless of the eventual evaluation or characterization of same is the requirement that materials may not be seized prior to a judicially conducted adversary proceeding in which same is found in fact to be obscene. Quantity of Copies of Books, supra; Metzger, supra; Cambist Films, Inc. v. State of Illinois, 292 F. Supp. 185; United States v. 18 Packages of Magazines, D.C., 238 F.Supp. 846; Sherpix, Inc. and Craddock Films, Inc. v. McAuliffe et al. (N.D.Ga.No.13024).

Seizure and confiscation of materials in advance of an adversary hearing on the issue of obscenity is now prohibited by the First Amendment. Whether such protection extends as well to criminal prosecutions is another matter. A criminal proceeding cannot be founded upon evidence obtained by a search conducted prior to the adversary proceeding which is required before a civil seizure and forfeiture. United States v. Brown, D.C., 274 F.Supp. 561; Evergreen Review, Inc. v. Cahn, D.C., 230 F.Supp. 498; Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192 (Cal.1967). However, the courts have not interdicted up to this time the institution of criminal proceedings (and trial) prior to an adversary hearing where the evidence relied on is obtained through purchase or other legal means. For example, in Tyrone Inc. v. Wilkinson, 410 F.2d 639 the Court of Appeals for the Fourth Circuit held the seizure of a motion picture film to be illegal but refused to enjoin a state criminal obscenity prosecution for possessing and showing same where there had been no adversary judicial proceeding. The Court said:

"Comity dictates denial of federal injunctive relief against state prosecutions that challenge First Amendment rights when it does not appear that the accused have `been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford the accused any protection which they could not secure by prompt trial and appeal pursued to this Court.' Douglas v. City of Jeannette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943); cf. Broyhill v. Morris, 408 F.2d 820 (4th Cir. 1969)."

The idea that a criminal prosecution and threats or probability of further prosecutions does not chill one's First Amendment rights is judicial illusion. That fact was recognized in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. There the Supreme Court enjoined prosecutions under Louisiana's Subversive Activities Act where the statute was facially unconstitutional and where the authorities continued to prosecute under it. Dombrowski would not seem to apply to criminal prosecutions commenced under ostensibly valid state statutes whose constitutionality is not challenged. However, an extension of the teaching of that case has been seen in several recent First Amendment cases. In Bee See Books, Inc. v. Leary, 291 F.Supp. 622 a New York District Court recognized that practices short of actual seizure of books may operate to deny constitutional rights and enjoined the defendants in a case where police officers were constantly present in the book store. In Poulos v. Rucker, 288 F.Supp. 305 an Alabama District Court, citing Bantum Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, recognized that criminal prosecution or the threat thereof prior to an adversary determination of obscenity constitutes an unconstitutional burden upon freedom of expression. In that case, however, the controversial materials were declared to be non-obscene and it was therefore unnecessary to enjoin state prosecution.

The most recent case appears to be Delta Book Distributors et al. v. Cronvich et al. (E.D.La. 304 F.Supp. 662). There, Judge Boyle, speaking for a Three-Judge District Court, said: "Since prior restraint upon the exercise of First Amendment rights can be exerted through seizure (with or without a warrant) of the allegedly offensive materials, arrest (with or without a warrant) of the alleged offender or through the threat of either or both seizure and arrest, the conclusion is irresistible in that none of these may be constitutionally undertaken prior to an adversary judicial determination of obscenity."

The Court did not enjoin the state court but indicated that its holding should be sufficient to produce the same result without a restraining order.

I take the same course in the present case. Any criminal prosecution here prior to an adversary hearing and without plaintiff having the subsequent opportunity to refrain from selling materials determined to be obscene is violative of his First Amendment rights. The materials seized were unconstitutionally taken. For all their filth, they must be returned to their pandering vendor.

The question remains as to the business license revocation and the applicability of First Amendment standards to the municipal actions in this case. Plaintiff challenges the constitutionality of the City licensing ordinance which provides for a temporary ex parte suspension by the City Manager and permanent suspension by the Mayor and Aldermen after a hearing in the case of businesses "directly affecting public morals."¹ A municipality's right under its police power to prevent public indecency is vital to local government and the power exists to suspend ex parte a business license in a proper case where public morals are threatened. Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263; Duke v. Mayor and Council of City of Rome, 20 Ga. 635; City of Thomson v. Davis, 92 Ga.App. 216, 88 S.E.2d 300; Jones v. City of Atlanta, 51 Ga. App. 218, 179 S.E. 922. The ordinance in question does not specifically include businesses that come within...