Stein v. Batchelor, Civ. A. No. 3-2951.

Citation300 F. Supp. 602
Decision Date09 June 1969
Docket NumberCiv. A. No. 3-2951.
PartiesBrent STEIN, Plaintiff, v. Charles BATCHELOR, Chief of Police, City of Dallas; T. C. Snider, V. D. Monaghan, R. D. Rodgers, and Henry Wade, District Attorney, Dallas County, Defendants.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas

David R. Richards, Austin, Tex., for plaintiff.

Mel S. Friedman, Houston, Tex., amicus curiae.

James M. Williamson, Dallas, Tex., Alex Bickley, City Atty., by Thomas B. Thorpe, Dallas, Tex., Lonny F. Zwiener, Austin, Tex., for defendants.

Before GOLDBERG, Circuit Judge, and HUGHES and WOODWARD, District Judges.

HUGHES, District Judge:

This case involves the constitutionality of Article 527 of the Texas Penal Code, entitled "Acts involving obscene articles, objects, and materials; fines and penalties; exemptions."1 It is a civil rights case brought under authority of 42 U.S. C. sections 1983 and 1985 by Brent Stein, individually and on behalf of the class similarly situated.

Plaintiff Stein is the publisher of an underground, bi-weekly newspaper, known as the "Dallas Notes". The class which he represents is composed of present and future employees of and contributors to the "Dallas Notes" and persons engaged in the distribution of the "Dallas Notes". The defendants, all of whom are sued in their official capacities, are Henry Wade, District Attorney of Dallas County, Charles Batchelor, Chief of Police, City of Dallas, and three members of the Dallas Police Department.

Plaintiff alleges that the Defendant police have engaged in a deliberate course of treatment designed to harass Plaintiff for the purpose of suppressing the dissemination of the "Dallas Notes" and the political views expressed therein. They allege further that as a result of two searches of Stein's residence by the police (a portion of the first floor of his residence is used as a work area) there are presently pending against him two misdemeanor cases in the County Criminal Courts of Dallas County, charging him with possession of obscene "paper" and "pictures" in violation of Article 527 of the Texas Penal Code. Plaintiff alleges that he wishes to continue publication of the "Dallas Notes" and fears future arrests and prosecutions under Article 527 unless the rights of the parties thereunder are declared by this Court.

Plaintiff prays (1) for an injunction against Defendants enjoining them from arresting, presenting for indictment, or prosecuting Plaintiff (with the exception of presently pending causes) under Article 527 of the Penal Code of the State of Texas and (2) for a declaratory judgment declaring Article 527 to be unconstitutional on its face and as applied to Plaintiff. Plaintiff also prays (3) for an injunction against Dallas Police enjoining any arrest of Plaintiff or seizure of his property on the grounds of obscenity without a prior determination of the obscene character of the material in question and requiring the issuance of various instructions to the Police Department.

We find that the prayers for an injunction against any arrest or seizure and for the issuance of instructions are based on the alleged harassment and are not an attack upon the constitutionality of a statute. It is therefore not a subject for a three-judge court.

Therefore, after disposing of the motion for summary judgment this Court will decline to exercise any pendant jurisdiction, which it may have over the remaining claims, and will remand the remainder of the case for determination by a single District Judge.

Plaintiff, pursuant to Rule 56 of the Federal Rules of Civil Procedure, has filed a motion for partial Summary Judgment praying that Article 527 be declared unconstitutional.

All Defendants have filed Motions to Dismiss, relying primarily upon (1) the federal anti-injunction statute 28 U.S.C. section 2283(2) the abstention doctrine and (3) the failure to raise a substantial constitutional question.

Plaintiff contends Article 527 is unconstitutional for the following reasons: (1) that it makes mere possession of obscene material a crime; (2) that it is an overbroad regulation of expression since the definition of obscenity does not require that the material be utterly without redeeming social value; and (3) that it offends the equal protection clause of the fourteenth amendment because Section 5 exempts daily and weekly but not bi-weekly newspapers from the operation of the statute.

An Amicus Curiae filed a brief with the permission of the Court, and, in addition to the contentions of plaintiff, Amicus Curiae contends that the statute improperly limits the geographical area within which contemporary community standards are to be measured and applied and fails to provide certain procedural safeguards.

Considering first Defendants' contentions in their motion to dismiss, we find them without merit. The claim that 28 U.S.C. § 22832 bars injunctive relief is answered in Dombrowski v. Phister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The Supreme Court in that case held the statute did not apply to prosecutions that arise after the filing of the complaint in the district court. The Court declared:

"This statute 2283 and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted. * * * Since the grand jury was not convened and indictments were not obtained until after the filing of the complaint, which sought interlocutory as well as permanent relief, no state `proceedings' were pending within the intendment of 2283". Id. at 484 n. 2, 85 S.Ct. at 1119.

See also Cameron v. Johnson, S.D.Miss. 1966, 262 F.Supp. 873 and Landry v. Daly, N.D.Ill.1968, 288 F.Supp. 200, 221-224. In the case before us Plaintiff is seeking to enjoin only future prosecutions and the anti-injunction statute does not apply.

The second contention of Defendants that this Court should abstain until the State Courts have had an opportunity to pass on the constitutionality of the statute was likewise considered in Dombrowski v. Phister, supra. There Louisiana's Subversive Activities and Communist Control Law was attacked as being unconstitutional. A three-judge court dismissed, holding that the abstention doctrine applied. The Supreme Court reversed, declaring:

"We hold the abstention doctrine is inappropriate for cases such as the present one where * * * statutes are justifiably attacked on their face as abridging free expression". P. 489, 85 S.Ct. p. 1122.

We believe that the case before us is similar to Dombrowski in its attack on the Texas obscenity statute and that we should not obstain.

As to whether a substantial constitutional question is raised, it was held in Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933) "the existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint."

With reference to the allegation in the case before us we cite the case of Phelper v. Decker, 5th Cir. 1968, 401 F.2d 232. Petitioner in that case had been convicted of possessing obscene material in violation of Article 527 of the Texas Penal Code. The Circuit Court, while refusing to consider the constitutionality of the Statute because of the failure of petitioner to exhaust state remedies, declared with reference to its constitutionality at page 240

"Since the Texas Statute is devoid of any language that requires a finding that the material must have no redeeming social value, it may be constitutionally suspect."

In the case before us the constitutionality of the statute is attacked on various grounds which we believe satisfy the requirements of substantiality.

Before discussing the merits of this controversy, we wish to re-emphasize that consideration of the motion for summary judgment does not in any way involve an appraisal of the constitutionality of the application of Article 527 to Plaintiff. Our sole concern is the determination of whether the statute is constitutionally defective on its face.

Section 1 of Article 527 provides:

"Whoever shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, televise, publish, or offer to publish, or have in his possession or under his control, or otherwise distribute, make, display, or exhibit any obscene book, magazine, * * * or other article which is obscene * * *."

In view of Stanley v. Georgia, 89 S.Ct. 1243, the above section is clearly unconstitutional in so far as it makes mere possession of obscene material a crime. A difficult question remains, however, concerning the extent to which Section 1 is affected by Stanley. The State points out that the session law of which Article 527 is the codification (Chapter 461, Acts 57 Leg.R.S.1961, Ch. 461, p. 1041), contains a severability clause. The State argues that only the portion reading "have in his possession or under his control" is affected by the Stanley decision. We do not agree.

Although the narrow holding of Stanley is simply that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime", we think that the case also stands for a broader proposition. Since Stanley involved a direct review of a state conviction for possession of obscene matter, the narrow holding was sufficient to reverse the conviction; thus it was not necessary for the Court to base its decision on a broader ground. It is impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) that "obscenity is not within the area of constitutionally protected speech or press".

In Roth the Supreme Court declared that obscenity is not protected by the First Amendment, whereas non-obscene expression is fully protected, unless excludable because encroachment upon the limited area of more important...

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