Star v. Preller

Decision Date03 October 1972
Docket NumberCiv. No. 72-27-Y.
Citation352 F. Supp. 530
PartiesAl STAR, as manager and operator of Gayety Books, Inc. and Fayette News Center, Inc., Petitioner, v. David PRELLER et al., Defendants.
CourtU.S. District Court — District of Maryland

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Burton W. Sandier and William E. Seekford, Towson, Md., for petitioner.

Francis B. Burch, Norman Polovoy, Thomas G. Young, Baltimore, Md., for defendants.

Before SOBELOFF, Senior Circuit Judge, and YOUNG and BLAIR, District Judges.

MEMORANDUM OPINION

JOSEPH H. YOUNG, District Judge.

Plaintiff, seeking both injunctive1 and declaratory2 relief, challenges the constitutionality of the Maryland motion picture censorship statute, Article 66A, §§ 1-26, Annotated Code of Maryland, on its face and as applied to him. For reasons to follow, we find no merit in plaintiff's contentions and thereby deny his claim for relief. The essential facts have been stipulated by the parties.

Plaintiff, Al Star, at all material times, was an owner having a financial interest in Gayety Books, Inc. and Fayette News Center, Inc., and was engaged in the commercial dissemination of adult material, specifically motion picture film in coin-operated machines shown privately to individuals in booths intended for a single viewer, the machines being activated by the deposit of coins therein. The customer is at liberty to terminate the viewing at any time.

Defendants, David Preller, Margery Shriver and Mary Avara, are members of the Maryland State Board of Censors; defendant, Donald Pomerleau, is the Commissioner of the Baltimore City Police Department (BCPD); defendant, Colonel Maurice duBois, is the Chief of the Criminal Investigation Division, BCPD; defendant, Detective Sgt. Michael Gray, is a member of that division; defendants, Marvin Mandel and Francis Burch, are Governor and Attorney General, respectively, for the State of Maryland.

Jurisdiction is claimed and exists under 28 U.S.C. § 1343(3). Since a substantial constitutional question is herein involved, a three-judge court was convened pursuant to 28 U.S.C. § 2281 et seq.

On September 10, 1971, November 30, 1971, and January 6, 1972, pursuant to duly executed warrants authorizing the search of and seizure from plaintiff's premises of materials being exhibited in violation of Article 66A, twenty-four (24) reels of film were seized by Baltimore City Police officers during raids on the Gayety3 and Fayette4 stores because of plaintiff's failure to submit these films to the Maryland State Board of Censors for licensing as required by Article 66A and because none of the films bore a Censor Board seal as provided in Article 66A. No member of the Censor Board was present at the time of the three raids or at the issuance of the warrants prior to the raids. As a result of these raids, the two stores were closed for approximately one hour during each of the raids, and the coin-operated film machines remained closed for an additional period of time following the raids until plaintiff obtained more film. The films seized remain in the custody of the BCPD or the Supreme Bench of Baltimore City. There are no state criminal prosecutions pending against plaintiff as a consequence of the raids and his failure to submit the seized films for licensing.5

Plaintiff has unleashed a legal broadside against Maryland's Motion Picture Censorship statute by alleging that numerous statutory provisions6 and enforcement practices violate his First Amendment freedom of speech as protected by the Fourteenth Amendment. While this Court will attempt to answer all of plaintiff's contentions, the primary issue presented for our determination is whether the amendments to Section 19 of Article 66A enacted by the Maryland Legislature in April, 1965, after the Supreme Court's decision in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), meet the constitutional requirements for film censorship statute set forth in Freedman.

I.

As a threshhold matter, we must consider plaintiff's standing to challenge the various statutory provisions he condemns. In Freedman, supra, the Supreme Court, in denying the State's contention that appellant had standing to attack only that section of the Act he had violated, stated at page 56, 85 S.Ct. at page 737:

"In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. `One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to produce it.'"

This Court's reading of Freedman gives plaintiff standing to contest those sections of the Maryland statute which lead up to and result in a license being initially granted or denied and which set forth the Board's enforcement power.7 However, plaintiff does not have standing to challenge those provisions which are in no way involved in the present controversy and whose resolution would require us to engage in speculation on matters too contingent for judicial determination. This includes those portions of § 7 dealing with the replacement of "lost, mutilated or destroyed" seals and the revocation of previously awarded seals; § 15, concerning obscene, indecent advertisements;8 and § 21, which sets forth penalties for "misbranded" films, films bearing false seals, and the exhibition of obscene advertising matter. We do not wish to foreclose arguments by future litigants on matters not squarely before us.

II.

In Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A.2d 317 (1966), the Court of Appeals of Maryland construed the term "film" used in § 1 of Article 66A to include films shown in coin-operated machines to individuals in a booth, often referred to as "peep shows." Such films must, therefore, be submitted to the Censor Board for licensing prior to being exhibited to the public commercially for profit. Article 66A, § 2, Annotated Code of Maryland. While plaintiff argues that the question of submission of films for examination or censorship prior to their public exhibition has not been decided by the Supreme Court, we are satisfied that the Court has indeed sanctioned such state provisions as not void on their face in violation of the First and Fourteenth Amendments in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961).

Plaintiff contends that the seizure of his films prior to an adversary hearing on the question of obscenity was unconstitutional under the authority of A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); and Adler v. Pomerleau, 313 F. Supp. 277 (D.Md.1970). The cases relied on by plaintiff, however, dealt with the seizure of allegedly obscene materials prior to an adversary hearing. In this case we need not consider the issue of obscenity since the films were seized, not for their allegedly obscene content, but because they had not been submitted for approval to the Board of Censors and did not bear the required seal. Thus each film constituted a distinct violation of Maryland's motion picture censorship statute and was seized for that reason rather than for violating the State obscenity law, Article 27, § 417, Annotated Code of Maryland. The Supreme Court in Times Film and Freedman made clear the fact that a state may require an exhibitor to submit a film for examination or censorship prior to its public viewing, which plaintiff failed to do. Article 66A does not, on its face or as applied here, constitute an "end run" around the preseizure adversary hearing requirement established in the cases relied on by plaintiff because films are seized, not for their alleged obscenity, but because, in this case, they have not been submitted for examination by the Board and do not bear the required seal. Plaintiff's claim that he is denied equal protection of the law because films and not literature must be submitted to the Board of Censors for approval is similarly without merit. No materials protected by the First and Fourteenth Amendments, including films, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), may be seized for their allegedly obscene content prior to an adversary hearing on the question of obscenity. Tyrone, Inc. v. Wilkinson. However, the Supreme Court in Joseph Burstyn, at 503, 72 S.Ct. 777, and in Times Film, 365 U.S. at 49, 81 S.Ct. at 395, recognized that for censorship purposes motion pictures are not "necessarily subject to the precise rules governing any other particular method of expression." Thus, it is not unconstitutional for Maryland to create a Board of Censors for films but not for other means of expression.

In Freedman v. Maryland, supra, the Court held the Article 66A, § 2 requirement of prior submission of films to the Board to be an invalid previous restraint because the Maryland statutory scheme, particularly § 19, did not contain adequate "procedural safeguards designed to obviate the dangers of a censorship system." Id. 380 U.S. at 58, 85 S.Ct. at 739. As a guide to the Maryland legislature, the Court set forth the following procedural requirements:

"First, the burden of proving that the film is unprotected expression must rest on the censor. . . . Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a film constitutes protected expression. The teaching of our cases is that, because only a
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