United Artists Corporation v. Wright

• Decision Date: 05 January 1974
• Docket Number: Civ. A. No. 4208-N.
• Citation: 368 F. Supp. 1034
• Parties: UNITED ARTISTS CORPORATION, a corporation, Plaintiff, v. E. L. WRIGHT, Jr., Individually, and as Chief of Police, City of Montgomery, Alabama, Defendant, James H. Evans, as District Attorney for the Fifteenth Judicial Circuit of the State of Alabama, et al., Defendants-Intervenors.
• Court: U.S. District Court — Middle District of Alabama

368 F. Supp. 1034

UNITED ARTISTS CORPORATION, a corporation, Plaintiff, v. E. L. WRIGHT, Jr., Individually, and as Chief of Police, City of Montgomery, Alabama, Defendant James H. Evans, as District Attorney for the Fifteenth Judicial Circuit of the State of Alabama, et al., Defendants-Intervenors.

Civ. A. No. 4208-N.

United States District Court, M. D. Alabama, N. D.

January 5, 1974.

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Thomas S. Lawson, Jr., and Champ Lyons, Jr., Capell, Howard, Knabe & Cobbs, Montgomery, Ala., for plaintiff.

J. Douglas Harris, Harris & Harris, Drayton N. Hamilton, and Joseph D. Phelps, Hill, Robison, Belser, Brewer & Phelps, Montgomery, Ala., for defendant.

William P. Haney, Jr., and John D. Cates, Deputy Dist. Attys., Fifteenth Judicial Circuit of Alabama, Montgomery, Ala., for defendant-intervenor James H. Evans; James H. Evans, pro se.

Richard H. Dorrough, Jones, Murray, Stewart & Yarbrough, Montgomery, Ala., for defendants-intervenors Robert L. Dorrough and Ardith C. Dorrough.

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.

JOHNSON, District Judge:

Plaintiff, United Artists Corporation, brings suit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, seeking to have Chapter 64C of the Alabama obscenity statute, Ala.Code tit. 14, §§ 374(16j)-374(16o) (Supp.1971), declared unconstitutional on its face and as applied. The constitutionality of a statute of statewide application being brought into question, a three-judge district court was convened pursuant to 28 U.S.C. § 2284. The case is submitted upon the pleadings, affidavits, briefs and depositions filed in this cause.

I. Facts

Plaintiff, a film distributor operating nationally, is the owner and distributor of the motion picture "Last Tango in Paris." Defendant E. L. Wright, Jr., is the Chief of Police of the City of Montgomery, Alabama, and is sued in his capacity as such and also individually. Intervening defendant James H. Evans is District Attorney for the Fifteenth Judicial Circuit of the State of Alabama. Intervening defendants Robert L. and Ardith C. Dorrough are citizens of Montgomery, Alabama.

Plaintiff entered into an agreement with a local movie theater for the exhibition of the film "Last Tango in Paris." On October 11, 1973, without any prior administrative or judicial proceeding before a neutral party, the exhibitor received a written notice from defendant Wright that there was reasonable cause to believe that the exhibition of that film would constitute a violation of the Alabama laws regulating obscenity. The written notice pointed out that the exhibitor could seek a declaratory judgment in the proper state circuit court on the obscenity vel non of the film. Defendant Wright, in his written notice, informed the exhibitor that "the exhibition of this movie prior to obtaining the declaratory judgment might result in prosecution." The exhibitor then declined to show "Last Tango in Paris" in his theater. Thereafter plaintiff brought this action, in which he alleges the unconstitutionality of Ala.Code tit. 14, §§ 374(16j)-374(16o) (Supp.1971) on its face and as applied.

II. Standing

Defendants contend that plaintiff lacks standing to prosecute this action because it has not been harassed, arrested, indicted or prosecuted in connection with the subject matter of this action. Plaintiff, however, is in privity of contract with its local exhibitor. Plaintiff's exhibitor has received an explicit threat or warning that, if it proceeds to show the film in question here, prosecution might well ensue. The exhibitor, on account of the threat of prosecution, declines to exhibit the film. Plaintiff alleges that as a direct and proximate result of this written threat, pursuant to the statute alleged to be unconstitutional, it stands to lose approximately $20,000 in anticipated revenues. Whatever value might be put upon First Amendment rights in this case, it is clear that plaintiff alleges financial injury in fact sufficient to confer standing. The alleged financial injury is proximately caused by the action of defendant Wright acting pursuant to the challenged statute. In such cases as this, it is necessary that distributors as well as exhibitors have standing. Interstate Circuit, Inc., v. Dallas, 390 U.S. 676, 691 n. 22, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968).

Furthermore, the threat of arrest in this case is not "imaginary and speculative." Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The existence of a genuine threat of arrest suffices to confer standing. While it is true that defenses premised upon the First Amendment could be raised in a criminal prosecution resulting from an exhibition of "Last Tango in Paris," there is no requirement that citizens must "await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L. Ed.2d 201 (1973). Accord, Wulp v. Corcoran, 454 F.2d 826, 830 (1st Cir. 1972); Thoms v. Smith, 334 F.Supp. 1203, 1207 (D.Conn.1971) (3-judge court), aff'd sub nom. Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973); Anderson v. Vaughn, 327 F.Supp. 101, 103 (D.Conn.1971) (3-judge court). Plaintiff clearly has standing in this cause, and its claim is otherwise justiciable.

III. Comity — The Younger Doctrine

Defendants contend that this Court is precluded by the policy of comity from deciding this case on the merits. Certainly if there were a pending state criminal prosecution against plaintiff, this Court would possibly be precluded from reaching the merits. Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 72-73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Perez v. Ledesma, 401 U.S. 82, 83, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). A similar result could obtain if there were a pending civil process which leads to, or is a part of, a criminal prosecution. Palaio v. McAuliffe, 466 F.2d 1230, 1231-1232 (5th Cir. 1972).

In this case, the letter from defendant cannot be said to constitute a pending criminal prosecution; nor can it be characterized as a pending civil process which leads to, or is a part of, a criminal prosecution. The notice letter here involved is, quite simply, a threat of prosecution. When a state criminal prosecution is only threatened, and not pending, many cases hold that the Younger doctrine does not bar a consideration on the merits of a cause. Courts recognize two reasons for so holding. First is the language in Younger noting that

there may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.

Younger v. Harris, 401 U.S. 37, 53, 91 S.Ct. 746, 755, 27 L.Ed.2d 669 (1971). Applying this language, some courts have held that the absence of a pending prosecution, the imminence of a threatened prosecution, and a First Amendment challenge combine to form "extraordinary circumstances" within the meaning of Younger. Wulp v. Corcoran, 454 F.2d 826, 831 n. 6 (1st Cir. 1972); Anderson v. Vaughn, 327 F.Supp. 101, 103 (D.Conn.1971) (3-judge court).

Second, some courts have applied in cases like this what is termed a "pending/threatened" distinction, in holding that the Younger doctrine is inapplicable to situations in which a state prosecution is merely threatened. Thoms v. Heffernan, 473 F.2d 478, 483 (2d Cir. 1973); Lewis v. Kugler, 446 F. 2d 1343, 1347 (3rd Cir. 1971); Hull v. Petrillo, 439 F.2d 1184, 1186 n. 1 (2d Cir. 1971). The United States Court of Appeals for this circuit has adopted a further refinement of the pending/threatened distinction. If a state statute is attacked upon grounds of its unconstitutionality as applied, and no prosecution is pending, plaintiff must allege and prove bad faith prosecution or harassment. Becker v. Thompson, 459 F.2d 919, 923 (5th Cir. 1972), cert. granted sub nom. Steffel v. Thompson, 410 U.S. 953, 93 S.Ct. 1424, 35 L.Ed.2d 686 (1973). Accord, Milner v. Burson, 470 F.2d 870, 874 (5th Cir. 1972). However, when a plaintiff attacks the facial constitutionality of a state statute, and there is no pending state criminal prosecution, a three-judge court is not foreclosed by Younger from a decision on the merits, even absent an allegation of bad faith or harassing official conduct. Jones v. Wade, 479 F.2d 1176, 1182 (5th Cir. 1973).

Applying these principles to this case, this Court holds that plaintiff's claim is not barred by the doctrine of comity, since a prosecution is merely threatened and since plaintiff alleges the unconstitutionality of the obscenity statute upon its face. Since it is not necessary for this Court to consider the unconstitutionality of the statute as applied (i. e., the obscenity vel non of the movie), we do not need to consider whether there was in this case bad faith or harassing conduct by defendants. And, since we recognize and apply the "pending/threatened" distinction as declared by the Fifth Circuit, it is not necessary to consider the applicability of the "extraordinary circumstances" exception to Younger.

IV. Abstention

Defendants also contend that this Court should, by reason of the abstention doctrine, decline to decide this case upon the merits. The doctrine of abstention, first espoused in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), is a judge-made doctrine to be used only in very limited circumstances. Congress has endowed the federal judiciary with power to render declaratory judgments. When a plaintiff chooses a federal forum for the adjudication of his case, the federal court is not obliged to dismiss the case merely because plaintiff could have brought his action in a state court. Kusper v. Pontikes, 414 U.S. 51, 94 S. Ct. 303, 38 L.Ed.2d 260 (1973); Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). To dismiss this case at this point, and to send plaintiff into state...