United Artists Corporation v. Gladwell, Civ. No. C 73-487.

• Decision Date: 11 March 1974
• Docket Number: Civ. No. C 73-487.
• Parties: UNITED ARTISTS CORPORATION, Plaintiff, v. Harold GLADWELL, Individually and as Sheriff of Erie County, Ohio, Defendant.
• Court: U.S. District Court — Northern District of Ohio

373 F. Supp. 247

UNITED ARTISTS CORPORATION, Plaintiff, v. Harold GLADWELL, Individually and as Sheriff of Erie County, Ohio, Defendant.

Civ. No. C 73-487.

United States District Court, N. D. Ohio, W. D.

March 11, 1974.

Arnold F. Bunge, Jr., Toledo, Ohio, George A. Howells, Sandusky, Ohio, William M. Pinzler, New York City, for plaintiff.

David C. Gibbs, Jr., Fairview Park, Ohio, John E. Shepherd, Rocky River, Ohio, for defendant.

MEMORANDUM

DON J. YOUNG, District Judge:

This matter was heard on a motion for a preliminary injunction in an action for declaratory judgment as to the applicability of certain sections of the Ohio Revised Code, and as to their constitutionality if applicable, to a motion picture "Last Tango in Paris." This picture is being distributed by the plaintiff. The defendant, who is the Sheriff of Erie County, Ohio, threatened to file criminal charges against any motion picture exhibitor who dared to exhibit the picture in his bailiwick. As a result of the defendant's threats, a scheduled exhibition of the motion picture was cancelled, and no exhibitor has been willing to risk the defendant's ire by showing the picture.

A temporary restraining order was refused, because of the complexity of the problems involved, and the matter was heard upon plaintiff's motion for a preliminary injunction. At or immediately before the time of hearing on the motion, the defendant filed a motion to dismiss upon the ground that the complaint fails to state a cause of action.

The evidence at the hearing was for all practical purposes without conflict. It demonstrated that plaintiff had contracted with a local film exhibitor to exhibit "Last Tango in Paris." Before doing so, a private showing of the film was arranged, to which the defendant and other local officials, including the Prosecuting Attorney and the Police Prosecutor, were invited. The prosecutors attended, but the defendant did not, although he sent a deputy. After the showing, the prosecutors made public statements that the picture did not violate the state obscenity statutes, but the defendant made public statements that it did.

On the evening of the first scheduled showing of the film, the defendant and a deputy came to the theatre and told the manager that he (the defendant) did not appreciate the showing of the film, and if the manager exhibited it, a complaint would be filed with the Prosecuting Attorney. The manager consulted by telephone with his superior, refunded their admissions to the patrons already seated in the theatre, and did not show the film.

The defendant continued his public denouncements of the film as obscene.

The Prosecuting Attorney did not testify, but the Police Prosecutor, who would be responsible for prosecuting the misdemeanor charge, the only charge the defendant could have filed under the Ohio law, testified that while he did not believe the film was obscene, if the defendant filed a complaint, he would prosecute it.

The evidence showed that the plaintiff could have expected to realize earnings of approximately fifteen thousand dollars from the exhibition of the picture in Erie County; that such films were "wasting assets," in that the longer the interval between the original release and the date of exhibition, the less the revenue that would be realized.

Although the plaintiff had produced a large number of witnesses to testify as to the matter of the obscenity of the film, the Court declined to hear them, but did permit both plaintiff and defendant to file depositions of experts concerning this matter. The Court declined to hear testimony on this matter because it is clear that under the decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), there could be no reasonable contention that the work, taken as a whole, lacks serious literary or artistic value. This is clearly demonstrated by the testimony of the two expert witnesses. Both of them obviously considered the work as a serious artistic effort. Plaintiff's expert testified that it was not obscene, because the director of the picture succeeded in attaining his artistic purpose. Defendant's expert testified that it was obscene, because the director failed to attain his artistic purpose. Both thus agree that the picture did have a serious artistic purpose. Obviously, whether the artist succeeds or fails in achieving his purpose is no test of the seriousness of the work or its purpose. The picture involved here is a highly controversial one. The First Amendment is designed to protect the right to be controversial, and to let the public, and not some censor, resolve the controversy.

In addition to this, the defendant has cited no ruling of any court holding the film to be obscene although the plaintiff has cited several that it was not. Neither has defendant disputed plaintiff's assertion that the picture has been exhibited in numerous theatres in Ohio, and throughout the country.

Thus we are presented with a case in which the defendant, by virtue of the power of his office, is able to deny the plaintiff its right to exhibit, and the public its right to see, a controversial motion picture.

In his motion to dismiss, the defendant spins a web of sophistry in his arguments that the complaint should be dismissed. His first claim is that any citizen could file a complaint, and he as sheriff has no higher standing than any other citizen if he files a complaint, since whether, or how, the complaint will be prosecuted is the responsibility of the prosecutor.

Not only does the evidence give the lie to this contention, for the Police Prosecutor stated that any complaint filed by the sheriff would be prosecuted, while the same complaint filed by a private citizen might not be, but the Supreme Court has previously addressed itself to this argument,

"People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around . . ." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68, 83 S.Ct. 631, 638, 9 L.Ed.2d 584 (1963).

There was nothing thinly veiled about the defendant's threats. They were direct and positive. The evidence made it clear that at the very least, any exhibitor of motion pictures in Erie County would have to defend litigation, to his expense and trouble, if he dared to exhibit the plaintiff's film.

The defendant's contention that the facts here do not constitute a controversy can...