United Artists Corporation v. Harris, Civ. A. No. CIV-73-498-D.

• Citation: 363 F. Supp. 857
• Decision Date: 23 August 1973
• Docket Number: Civ. A. No. CIV-73-498-D.
• Court: U.S. District Court — Western District of Oklahoma
• Parties: UNITED ARTISTS CORPORATION, Plaintiff, v. Curtis P. HARRIS, Individually and as District Attorney for Oklahoma County, Oklahoma, Defendant.

363 F. Supp. 857

UNITED ARTISTS CORPORATION, Plaintiff, v. Curtis P. HARRIS, Individually and as District Attorney for Oklahoma County, Oklahoma, Defendant.

Civ. A. No. CIV-73-498-D.

United States District Court, W. D. Oklahoma.

August 23, 1973.

Edward E. Soule, James C. Chandler, and Peter T. Van Dyke, Oklahoma City, Okl., and William M. Pinzler, New York City (Louis Nizer, Gerald F. Phillips and Phillips, Nizer, Benjamin, Krim & Ballon, New York City, and Lytle, Soule & Emery, Oklahoma City, Okl., on the brief), for plaintiff.

Curtis P. Harris, Dist. Atty., for Oklahoma County, for defendant.

Fred H. Anderson, Asst. Atty. Gen. for The Honorable David Hall, Governor of the State of Oklahoma, and Larry Derryberry, Atty. Gen., of the State of Oklahoma.

Before HOLLOWAY, Circuit Judge, DAUGHERTY, Chief Judge and EUBANKS, District Judge.

MEMORANDUM OPINION AND JUDGMENT

HOLLOWAY, Circuit Judge.

This is an action for injunctive and declaratory relief against seizure of the film "Last Tango in Paris" (Tango) and prosecution under the Oklahoma obscenity statutes for its exhibition.¹ The plaintiff United Artists Corporation (United), as distributor of the film, claims that the statutes violate the First and Fourteenth Amendments to the Federal Constitution. Among other things United specifically says that the statutes fail to comply with requirements for valid obscenity laws, recently spelled out in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419. The defendant Harris, or someone acting at his instance, is alleged to have communicated to the film's exhibitor that he was preparing a warrant to seize the film and intended to initiate criminal proceedings against the exhibtor, resulting in the showing being halted. Claiming violation of paramount rights under the First Amendment and irreparable injury by the threatened enforcement of the allegedly invalid statutes, United asks declaratory and injunctive relief.

The presiding District Judge denied an application for a temporary restraining order on July 27, 1973, advising the parties that an early hearing before a three-judge panel would be held. A three-judge court was constituted on July 30, 1973, and a consolidated hearing on the application for a preliminary injunction and on the merits was held August 6, 1973.

The essential facts are not in dispute.² On May 9, 1973, Oklahoma Cinema Theatres, Inc. (Cinema) entered into an agreement with United for the exhibition of Tango in Oklahoma City. Its showing commenced on July 18, 1973, at 1:00 p. m. and continued until the end of the second show at 5:45 p. m. that day.

Before the exhibition, defendant Harris had stated through the news media that representatives of his staff and the Oklahoma City Police Department would view the film and if it were their opinion that it was obscene, criminal charges would be filed. At about 4:00 p. m. on July 18, Cinema's attorney was told by the Police Department that a search warrant for seizure of the film and a criminal complaint against Cinema's general manager were being prepared.

The attorney recommended withdrawal of the film in view of the circumstances and the threat of prosecution. The Police Department was advised by the attorney that the film would be closed on completion of the showing at 5:45 p. m. On brief, the defendant essentially agrees that although no prosecutorial action was taken, the mere threat of such action caused the exhibitor to remove Tango from exhibition in Oklahoma City.

The uncontradicted affidavits also establish that ticket sales were discontinued at Cinema's Plaza Theatre; that the usual pattern would be exhibition at approximately 6 to 8 theatres in the surrounding 25-mile area, including 3 in Oklahoma County, which will not exhibit the film because of the threatened action against Cinema's general manager. The proof is that the defendant's actions, if allowed to continue, will cause loss to United of approximately $55,000.00.

We turn from these undisputed facts to the principal legal issues. It is convenient to examine first the new constitutional decisions on obscenity handed down by the Supreme Court in June, 1973.³

(1) The new constitutional requirements for valid obscenity statutes.

Of course, it has long been recognized that motion pictures are within the free speech and free press guaranty of the First and Fourteenth Amendments. Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098. However, obscenity is not protected by the First Amendment, Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1 L.Ed.2d 1498, and within carefully defined limits, the states may prohibit dissemination of obscenity. In this case we must determine whether the efforts to prohibit exhibition of the film are within those permissible limits.

The Supreme Court on June 21, 1973, decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. A conviction for mailing unsolicited obscene material under the California Penal Code was vacated and the case remanded for further proceedings not inconsistent with new First Amendment standards established by the opinion. In announcing the standards the Court stated, 413 U.S. at 23, 93 S.Ct. at 2614:

"State statutes designed to regulate obscene materials must be carefully limited. . . . As a result we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works 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." (emphasis added) (footnote omitted)

* * * * * *

"The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value . . . If a state law that regulates obscene material is thus limited as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary."

It is against these explicit new standards established by Miller v. California, supra, that we must consider the challenged Oklahoma statutes.

(2) The Oklahoma Criminal Obscenity Statutes

At the consolidated hearing the defendant asserted that two Oklahoma criminal obscenity statutes apply directly, 21 O.S.A. § 1040.8 and § 1040.51. The defendant also says that consideration must be given to the statutory definitions provided in 21 O.S.A. § 1040.12.

(a) 21 O.S.A. § 1040.8

Section 1040.8 essentially provides that it is unlawful to exhibit any obscene motion picture film, image, etc. which is obscene, filthy, etc., as defined in 21 O.S.A. § 1040.12, among other things. Section 1040.12, the definitional statute, says that "obscene" means that to the average reader, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

United argues that § 1040.8 fails to meet any of the Miller standards. Through the definitions of § 1040.12, however, the statute seems to comply with the requirement of appeal as a whole to the prurient interest. However, on its face the statute fails to have terms meeting the requirements of portraying in a patently offensive way specifically defined sexual conduct. The section also contains no limitation to matter which, taken as a whole, does not have serious literary, artistic, political, or scientific value.

Thus two of the express requirements appear not to be met by the terms of § 1040.8. However, the Miller opinion says, after specifying the several requirements, that First Amendment values are adequately protected "if a state law that regulates obscene material is thus limited, as written or construed. . . ." (emphasis added.) And the opinion earlier refers to state law "as written or authoritatively construed." (emphasis added). 413 U.S. at 24, 93 S.Ct. at 2615.

We have, therefore, examined Oklahoma cases including Cherokee News and Arcade, Inc. v. State, 509 P.2d 917, 921-922 (Okl.Cr.) which construed § 1040.8 and related statutes. In the Cherkokee News case the court upheld the statute as valid under the requirements of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 498, and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. The statute was sustained although the redeeming social value and national contemporary community standards were "not literally incorporated into the statutes, since the full constitutional standard is to be implied whenever the statutes are applied." 509 P.2d at 922.

It is apparent that under the earlier constitutional standards the Oklahoma Court made a saving construction. However, it is also clear that the Miller opinion will require a significant new decision on construction of the State's obscenity laws. At the least, § 1040.8 must be construed to determine whether specifically defined descriptions of sexual acts should be implied into the statute in line with the examples stated in the Miller opinion. 413 U.S. at 25, 93 S.Ct. 2607.

We discuss below our reasons why we conclude that this significant decision should be left to the State courts. At this point it is apparent, however, that without a new authoritative construction as to the possible implication of the Miller limitations into it, § 1040.8 cannot be upheld.

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