Universal Amusement Co., Inc. v. Vance

• Decision Date: 18 December 1978
• Docket Number: No. 75-4312,75-4312
• Citation: 587 F.2d 159
• Parties: 4 Media L. Rep. 1929 UNIVERSAL AMUSEMENT CO., INC., et al., v. Carol VANCE et al. KING ARTS THEATRE, INC., Plaintiff-Appellee, v. George E. McCREA et al., Defendants, the State of Texas, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 159

587 F.2d 159

4 Media L. Rep. 1929

UNIVERSAL AMUSEMENT CO., INC., et al., v. Carol VANCE et al.

KING ARTS THEATRE, INC., Plaintiff-Appellee, v. George E. McCREA et al., Defendants, the State of Texas, Defendant-Appellant.

No. 75-4312.

United States Court of Appeals, Fifth Circuit.

Dec. 18, 1978.

Max P. Flusche, Jr., Asst. Atty. Gen., John L. Hill, Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Joe B. Dibrell, Lonny F. Zwiener, Asst. Attys. Gen., Austin, Tex., for State of Texas.

Douglas C. Young, Keith W. Burris, Asst. Crim. Dist. Atty., San Antonio, Tex., for Butler.

Edgar Pfeil, Asst. City Atty., Jane Haun Macon, City Atty., San Antonio, Tex., for Peters.

Steven Arronge, San Antonio, Tex., for appellant.

Frierson M. Graves, Jr., Memphis, Tenn., Gerald Goldstein, San Antonio, Tex., for R. C. Dexter & Southland.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. ^*

THORNBERRY, Circuit Judge:

This Texas obscenity case has had a long and somewhat unusual history. Originally filed on November 12, 1973, in the Northern District of Texas under the caption King Arts Theatre, Inc. v. McCrea, it was subsequently consolidated by the Chief Judge of this Court with other obscenity cases pending before a three-judge court sitting in the Southern District of Texas. That court had initially been constituted to hear a single case, Universal Amusement Co. v. Vance, the caption of which graces this opinion.

The consolidated cases eventually mushroomed to twenty, and the three-judge court selected for trial three representative cases: King Arts Theatre, Inc. v. McCrea, Dexter v. Butler, and Ellwest Stereo Theatre, Inc. v. Byrd. The district court's opinion is reported under the caption Universal Amusement Co. v. Vance, 404 F.Supp. 33 (S.D.Tex.1975). A panel of this Court affirmed the district court's decision in Dexter but reversed its ruling in King Arts Universal Amusement Co. v. Vance, 559 F.2d 1286 (5 Cir. 1977). The Ellwest Stereo case was not appealed.

This court ordered the two cases reheard En banc and subsequently severed and renumbered them, although both will continue to carry the Universal Amusement caption. This opinion thus treats only the appeal in King Arts, No. 75-4312, ¹ and for the reasons stated below, we reverse the panel and affirm the judgment of the district court.

The facts can be briefly summarized. In 1973, King Arts Theatre, Inc. was operating an indoor, adults-only motion picture theatre in San Angelo, Texas, that showed sexually explicit films. On October 30 of that year, the landlord from whom the theater building was rented gave notice to King Arts that its lease was to be terminated as of November 15. According to the notice County Attorney George E. McCrea had informed the landlord that he intended to obtain an injunction to abate the theater as a public nuisance in order to prohibit the future showing of allegedly obscene motion pictures.

King Arts filed suit on November 12 in the Northern District of Texas seeking injunctive and declaratory relief from any action by the county attorney under the Texas nuisance statutes. ² The case was then transferred to the three-judge court, and the parties agreed to maintain the status quo until the case could be decided. The district court found that the landlord was terminating King Arts' lease "at the suggestion" of the county attorney, and that he intended to seek an injunction based on the nuisance statutes and to pursue cancellation of the lease. ³

The district court concluded that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not preclude granting the requested relief since no prosecution either civil or criminal was pending. It also found that a proceeding under the nuisance statutes would not cause irreparable injury and, accordingly, declined to grant injunctive relief. Reaching the merits of King Arts' claims, the court held that Texas courts would construe the phrase "obscene material" in the applicable Texas nuisance statute as the phrase was defined in the state's penal code and upheld that definition against a claim of unconstitutional vagueness. However, the court held that the Texas nuisance statutes, construed together, constituted an unconstitutional prior restraint on the distribution of materials not yet judicially determined to be obscene. In addition, the court expressed serious doubts about the validity of the Texas injunction procedures as applied in the obscenity context.

The state of Texas ⁴ appealed from the district court's judgment that the nuisance statutes were unconstitutional. King Arts did not appeal from the court's denial of injunctive relief or its upholding of the state's obscenity definition. Because this is an appeal from the grant of declaratory relief alone, the Supreme Court is without jurisdiction to hear a direct appeal under 28 U.S.C. § 1253, and the appeal is properly before this Court. Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974); Beal v. Doe, 432 U.S. 438, 443, 97 S.Ct. 2366, 53 L.Ed.2d 464 n.5 (1977). ⁵

I.

The only issue on appeal ⁶ is the constitutionality of the Texas nuisance statutes as applied to obscenity, although this question requires three separate but related inquiries. At the outset, we stress that while obscenity is not within the purview of the first amendment, Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), state regulation must not be permitted to impinge upon "speech that matters." Justice Brennan eloquently expressed this important concept in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963):

(T)he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. "(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated . . . is finely drawn. . . . The separation of legitimate from illegitimate speech calls for . . . sensitive tools."

Id. at 66, 83 S.Ct. at 637 (citations and internal quotations omitted). ⁷

Our initial concern is whether the Texas statutory scheme operates as an unconstitutional prior restraint by allowing the state to close, for one year, an establishment that has exhibited obscene films or sold obscene printed matter. Although the instant case involves motion pictures, our analysis is equally applicable to printed material.

Article 4666 of the Texas Revised Civil Statutes ⁸ provides for suits in the name of the state to enjoin a nuisance. If an establishment is deemed a nuisance, there exists the rather Draconian remedy of closing the establishment "for one year from the date of said judgment," unless the operator posts a penal bond ranging from $1,000 to $5,000 against future violations of the nuisance laws. Article 4664 ⁹ defines three types of establishments as "common nuisances," and the proprietor of such an establishment is guilty of "maintaining a nuisance": gambling houses, houses of prostitution, and places where intoxicating liquors are illegally kept, manufactured, sold, or given away. ¹⁰

Article 4667 ¹¹ defines the commercial manufacture, distribution, or exhibition of obscene material as a "public nuisance" and also sets forth a list of other nuisances, including gambling, prostitution, and bull fighting. The statute further provides that such activities "shall be enjoined at the suit of either the State or any citizen thereof."

The Texas courts have not examined the relationship between Articles 4666 and 4667. Compare State ex rel. Ewing v. "Without a Stitch," 37 Ohio St.2d 95, 307 N.E.2d 911, 917-18 (1974), App. dism'd, 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82 (1975) (interpreting one-year closing provision of state nuisance statute). The plain language of the statutes suggests that obscenity, which is defined as a nuisance under Art. 4667, is thus subject to the one-year closing provisions of Art. 4666. So read, the statutes would be patently unconstitutional insofar as they pertain to obscenity.

A prior restraint of expression comes before this court with "a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, supra 372 U.S. at 70, 83 S.Ct. at p. 639; New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Read together, Articles 4666 and 4667 clearly create a prior restraint. The statutes allow the state to close, for one year, a theatre that has exhibited obscene films. Unless a bond from $1,000 to $5,000 is posted, the showing of Any motion picture is punishable by contempt of court. Thus, future conduct that may fall within the purview of the first amendment is absolutely prohibited after a finding of unprotected present conduct. It was precisely this practice that was condemned by the Supreme Court in the landmark case of Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed 1357 (1931). Moreover, although a theater operator may post the bond and show films, he forfeits that bond if one of the films he has selected is deemed obscene. This statutory scheme obviously encourages a theater operator to steer wide of the danger zone by avoiding borderline films that are nonetheless protected under the first amendment. The line between obscenity...