Star v. Preller, Civ. No. 72-27-Y.

• Decision Date: 14 May 1974
• Docket Number: Civ. No. 72-27-Y.
• Citation: 375 F. Supp. 1093
• Parties: Al STAR et al. v. David PRELLER et al.
• Court: U.S. District Court — District of Maryland

375 F. Supp. 1093

Al STAR et al. v. David PRELLER et al.

Civ. No. 72-27-Y.

United States District Court, D. Maryland.

May 14, 1974.

William E. Seekford, Towson, Md., for plaintiffs.

Francis B. Burch, Atty. Gen., State of Maryland, and Thomas G. Young, Asst. Atty. Gen., for defendants.

Before WINTER, Circuit Judge, YOUNG and BLAIR, District Judges.

JOSEPH H. YOUNG, District Judge.

The petitioner is the owner of two establishments in the City of Baltimore in which are operated a number of so-called "peep shows." Peep shows are individual viewing machines, showing portions of adult motion pictures and activated by the frequent deposit of coins in the machine. On three different occasions in late 1971 and early 1972, the two businesses were raided by officers of the Baltimore City Police Department acting pursuant to a warrant. The manager was arrested for failure to have submitted the peep show films to the Maryland State Board of Censors for review and licensing as required by the Maryland Code Anno. Art. 66A §§ 1-26. A quantity of unlicensed films were seized, and the establishments were closed down temporarily until new films were obtained.

Petitioner thereafter sought the convening of a three-judge court to enjoin the enforcement of Article 66A on the grounds of its alleged unconstitutionality.¹ The Court ruled adversely to petitioner, see Star v. Preller, 352 F. Supp. 530 (D.Md.1973), and he appealed to the Supreme Court under 28 U.S.C. § 1253. The Supreme Court remanded the case for reconsideration, 413 U.S. 905, 93 S.Ct. 3054, 37 L.Ed.2d 1016 in light of its recent decisions in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L. Ed.2d 757 (1973); Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed. 2d 993 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. 12 200-Foot Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). See Star v. Preller, supra.

It must be noted at the outset that the original opinion in Star v. Preller did not deal with the possible obscenity of the films seized. The films were seized for their lack of a Censor Board license, and the films could have been innocuous so far as this Court is aware. At no point in the proceedings have the films been viewed. The only mention of the now obsolete test for obscenity established by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), is in footnote 10 of Star v. Preller, supra at 537, where the Court noted the adoption of this test by the Maryland Court of Appeals in Sanza v. Maryland State Board of Movie Censors, 245 Md. 319, 226 A.2d 317 (1966).

What was at issue was whether the statutory scheme for the pre-exhibition review and licensing of motion pictures provided by Article 66A violated petitioner's constitutional rights. In particular, the Court was concerned with the question of whether the 1965 amendments to Article 66A had remedied the defects which had led the Supreme Court to find the statute unconstitutional in Freedman v. Maryland, 380 U. S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The Court dealt with a multitude of constitutional claims, and sustained the constitutional validity of the statute.

By contrast with the pre-1965 statute, the amended statute provides for a prompt judicial determination of obscenity by a court of equity after an adversary hearing before final denial of a license by the Censor Board. Furthermore, the Board now must bear the burden of proof at all stages of the proceeding.² We held that this procedure complied with the requirements of Freedman v. Maryland, supra. The provision for a hearing before an equity court without a jury was specifically approved in reliance upon Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).

No right to privacy was found to attach to the patrons of the two establishments even though peep shows were generally viewed in relative privacy. Although a right to view obscene materials in the privacy of one's own home has been recognized, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), Cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the extension of such a right to the patrons of a business open to the public would be unwarranted. The State has a valid interest in regulating the public, commercial display of films so long as adequate procedural safeguards of constitutional rights are provided.

The warrants by which the raids were authorized were found to have issued upon probable cause.³ There was no necessity for a prior viewing of the films as the warrants were directed to the display of films without a Censor Board license.

The petitioner raised numerous other constitutional claims which were not in any way affected by Miller v. California, supra, and its companions. The Court overruled challenges alleging that the statute was unconstitutionally vague, that it arbitrarily exempted newsreels and non-commercial showings of educational, charitable and religious films from licensing requirements, that it arbitrarily excluded some types of employees from criminal liability, that the Baltimore City Police Department lacked statutory authority to conduct the raids, that the raids were conducted in bad faith, that the licensing fees were an unreasonable burden on First Amendment rights, that criminal penalties were improper, that the members of the Censor Board were unqualified, and that the legislature could not have restricted venue to the courts of Baltimore City. See Star v. Preller, supra, at 540-544.

In Miller et al., the Supreme Court attempted to delineate the substantive and procedural guidelines which should govern the enforcement of the obscenity laws. We will consider each case in its turn.

a. Miller v. California, supra. The Court found it necessary to reject the three-part test for obscenity provided by Roth v. United States, supra, and more particularly by Memoirs v. Massachusetts, supra, which had proved to be unsatisfactory. The concern in Miller was to develop workable standards for the definition and determination of obscenity by the state legislature and by the trier of fact.

Henceforth, state statutes regulating obscene materials must be limited by the state legislature, or by an authoritative state court decision, to works depicting sexual conduct "which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value." 413 U.S. at 24. The trier of fact must find that a work satisfies the following guidelines: (1) that the average person applying contemporary community standards would find that the work taken as a whole appeals to prurient interest; (2) that the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) that the work taken as a whole lacks serious literary, artistic, political or scientific value. The trier of fact is to apply a contemporary, local community standard. Although the term "local" is not explicitly defined, it seems clear that a statewide community is intended. See, e. g., Kaplan v. California, supra. The Court went on to note several examples of material which a state legislature or court could properly define as obscene.

b. Paris Adult Theater I v. Slaton, supra. This case was remanded to the state court of Georgia for reconsideration in light of the new standards enunciated in Miller. However, the Court indicated its approval of the procedure in Georgia whereby a civil injunction could be secured against the showing of obscene materials after a full adversary hearing and final determination of obscenity by the state supreme court.

The Court also held that Stanley v. Georgia, supra, and Griswold v. Connecticut, supra, provided no protection for the commercial distribution of obscene materials, even to consenting adults. Neither created a zone of privacy that follows a consumer of obscene materials, but are based upon the traditional feeling that a "man's home is his castle."

c. Heller v. New York, supra. A judge of the New York State Criminal Court viewed a performance of an obscene film accompanied by a police inspector. Immediately after the viewing, the judge issued a warrant authorizing the police inspector to seize the films for the purpose of a criminal prosecution. The Court held that the procedure was proper since a prior adversary hearing is required only for a final restraint on display. No such hearing is required for an initial procedure if a warrant has been issued following a finding of probable cause by a neutral magistrate and if a prompt judicial determination of obscenity in an adversary proceeding is available at the request of any interested party.

d. Roaden v. Kentucky, supra. A sheriff arrested the manager of a theater where the sheriff had just viewed a film which he determined to be obscene. The sheriff seized the films without a warrant on the theory that the seizure was incident to a lawful arrest. The Supreme Court held that the seizure was unlawful. The seizure of materials at least colorably protected by the First Amendment calls for a higher standard in the evaluation of reasonableness. No exigent circumstances existed in this case which would justify a warrantless seizure. Absent such circumstances, a seizure could take place only when a magistrate has had an opportunity to "focus searchingly on...