Graham v. HillGraham v. Hill
MEMORANDUM OPINION AND ORDER
This is а suit by the owner and manager of a movie theater and bookstore in Amarillo, Texas, against various local and state officials, involving claims for injunctive relief, declaratory relief, and damages pursuant to
Background
Jay Battershell is the owner of a combination motion picture theater and bookstore known as the Mini-Vue Theater in Amarillo, Potter County, Texas. Prior to October, 1976, the Theater was owned and operated by Theaters of America, Inc., a New Mexiсo corporation of which Jay Battershell was the president. Since that time, Battershell has operated his business as a sole proprietorship. The Mini-Vue Theater manager at all times pertinent hereto has been Robert Graham. On August 26, 1977, the Grand Jury of Potter County returned an indictment against Graham, alleging that Graham had violated Texas Penal Code § 43.-25. 2
The criminal action against Graham is currently pending before the 47th Judicial District Court of Potter County, in Cause No. 18,125-A on that Court’s docket. Tom Curtis, tjie District Attorney for Potter County and the Defendant in this federal suit against whom declaratory relief is sought, is primarily responsible for the prosecution of the criminal case. Jay Battershell was not made a defendant in the criminal action against Graham, and no criminal charges under § 43.25 are currently pending against Battershell.
On September 29, 1977, the present suit was filed by Battershell, Graham, and The
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aters of America, Inc., seeking a variety of relief.
3
Plaintiffs alleged,
inter alia,
that the criminal prosecution of Graham was instituted and was being maintained by Tom Curtis in bad faith, and Plaintiffs requested an injunction against the ongoing prosecution of Graham. Plaintiffs have since conceded that such relief clearly is precluded by the federal abstention doctrine set forth in
Younger v. Harris,
The criminal trial of Graham in the 47th Judiciаl District Court originally was set for Monday, January 9, 1978. However, on January 6, the date set for argument in state court on Graham’s motion to quash the indictment, District Attorney Curtis and counsel for Graham agreed to request the state court to defer to this Court with regard to a ruling on the constitutionality of § 43.25, and the state court acquiesced in the postponement of the trial pending a ruling by this Court on Battershell’s Motion for Summary Judgment.
With that background, the Court now proceeds to consider the legal issues raised by Plaintiff’s motion.
Standing
Although Battershеll’s Motion for Summary Judgment seeks only declaratory relief, this Court cannot, of course, exercise jurisdiction unless there is presented an actual live “case or controversy” for adjudication.
Defendant Curtis initially contested the standing of Jay Battershell to challenge the constitutionality of Texas Penal Code § 43.25. Curtis asserted that Plаintiff has failed to show an immediate threat of prosecution under § 43.25, and that therefore no live case or controversy is presented. However, by agreeing on January 6 of this year to postpone the criminal trial of Robert Graham until this Court has ruled on the statute’s constitutionality, Defendant apparently has retreated somewhat from his objection to Battershell’s standing. An agreement by the parties to litigate a question in federal court cannot of itself confer jurisdiction or create a сase or controversy where one does not otherwise exist, but the parties’ desire to have an authoritative constitutional determination in the federal forum mitigates against the strictest interpretation of the standing requirements.
See Craig v. Boren,
Furthermore, apart from any agreement among the parties, the Court believes that Plaintiff Battershell clearly has standing to challenge § 43.25 on over-breadth grounds. The courts consistently have recognized an individual’s standing to attack an allegedly overbroad statute which inhibits or chills conduct protected by the First Amendment, without regard to whether the Plaintiff’s own conduct could be regulated or prohibited by a more narrowly drawn statute.
Bigelow v. Virginia,
Still, in order to establish standing, a Plaintiff must present more than just allegations of a “subjective chill”, and must present a claim of specific present objective harm or a threat of specific future harm from the prohibitions of the statute under attack.
Bigelow v. Virginia, supra,
Under the circumstances, the Court is of the opinion that Plaintiff Battershell demonstrates the requisite threat of harm to establish a live case or controversy, and that he has standing to seek a declaratory judgment on the constitutionality of § 43.-25.
Abstention
As an alternative to his challenge to Plaintiff’s standing, Defendant has contended that this Court should abstain from ruling on the constitutional question by virtue of the
Younger
doctrine.
Younger v. Harris, supra.
The
Younger
doctrine, where appropriate, applies even though only declaratory relief, rather than an injunction against the enforcement of the state statute, is sought in the federal lawsuit.
Samuels v. Mackell,
As noted already, District Attorney Curtis and counsel for the Plaintiffs herein have advised the state court that they will defer further action in Robert Graham’s criminal ease until this Court has ruled on the present motion for summary judgment. Since the state officials and the state court have agreed to have the federal question heard first in federal court, the equitable basis for
Younger
abstention, which is based on considerations of comity and deference to state court adjudication, no longer is present.
See Ohio Bureau of Employment Services v. Hodory,
Even in the absenсe of an agreement to litigate in this forum, the Court is not convinced that abstention would be proper in this case. Jay Battershell is not currently a party to any pending state court litigation concerning the constitutionality of § 43.25. Defendant argues that since Graham is employed by Battershell, the criminal proceed
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ing against Graham should be imputed to Battershell for
Younger
purposes. The Supreme Court, however, consistently has upheld the right of one not a party to state court proceedings to challenge the constitutionality of a state statute by seeking declaratory relief in federal court, even though another person may be able to raise the constitutional issue as a defense to the state’s enforcement action.
Steffel v. Thompson,
In support of his “imputation” theory, Defendant relies on dicta from
Allee v. Medrano,
None of the cases cited by Defendant is apposite here. This Court is not confronted with a situation where an association or a corporate Plaintiff is being used as a vehicle to circumvent Younger. Jay Battershell is an individual person, and as an individual he seeks declaratory relief from the threat of prosecution and disruption of his business by the chilling effect of an allegedly unconstitutional statute. His individual constitutional rights should not have to await the outcome of a criminal prosecution of someone else. In this Court’s view, Steffel and Doran are controlling here, and the Younger doctrine does not stand as a bar to consideration of Plaintiff’s constitutional challenge.
The Constitutionality of § 43.25
Texas Penal Code § 43.25 4 provides as follows:
“(a) A person commits an offense if, knowing the content of the material, he sells, commercially distributes, commercially exhibits, or possesses for sale, commercial distribution, or commercial exhibition any motion picture or photograph showing a person younger than 17 years of age observing on [sic] engaging in sexual conduct.
(b) It is an affirmative defense to prosecutiоn under this section that the obscene material was possessed by a person having scientific, educational, governmental, or other similar justification.
(c) An offense under this section is a felony of the third degree.”
Section 43.25 was hurriedly enacted by the Texas legislature in the Spring of 1977. On May 21 the section was passed by the House of Representatives and on May 27 by the Senate. It was approved on June 10 and made effective the same day because it was declared to be emergency legislаtion.
Plaintiff claims that § 43.25 violates the First Amendment because it is overbroad. A statutory enactment, though it be clear and precise as to the conduct proscribed, nonetheless must be struck down on overbreadth grounds if in its reach it forbids expression which is protected by the Constitution.
Grayned v. City of Rockford,
In reaching this determination with regard to § 43.25, the Court does not take lightly the prospect of declaring invalid a statute duly enacted by the state’s legislative body. As the Supreme Court has stated:
“This Court has long recognized that a demonstrably overbroad statute or ordinance may deter the legitimate exercise of First Amendment rights. Nonetheless, when considering a fаcial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program. In accommodating these competing interests the Court has held that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts . . . and its deterrent effect on legitimate expression is both real and substantial.”
Erznoznik v. City of Jacksonville, supra,
At the same time, it is the Court’s duty closely to scrutinize any legislation which purports to limit or prohibit free speech or expressive conduct, whether the expression be by means of a book, magazine, photograph, newspaper, pamphlet, or motion picture. In this area, the Court must be vigilant to safeguard legitimate First Amendment rights, even if to do so may in some cases be a distasteful task.
As already noted, the commercial sale or exhibition of motion pictures is a form of expression which is strictly protected by the First Amendment.
Joseph Burstyn, Inc. v. Wilson, supra; Intеrstate Circuit, Inc. v. Dallas,
“We acknowledge, however, the inherent dangers of undertaking to rеgulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. . . . As a result, we now confine the permissible scope of such regulations to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.”
Id.,
at 23-4,
“(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.” 5
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The Court further indicated in
Miller
that it is only the depiction of “hard core” sexual conduct which may constitutionally be prohibited.
Id.,
at 27,
In light of the Miller requirements, it is this Court’s opinion that Texas Penal Code § 43.25 plainly is overbroad. The statute makes it a felony 6 offense for a person commercially to possess, exhibit, distribute or sell “any motion picture or photograph showing a person younger than 17 years of age observing [or] engaging in sexual conduct.” (emphasis added) The statute fails to include the most basic requirement — that to constitute an offense the photograph or motion picture must be obscene. 7 As a result, the statute would permit the suppression of a motion picture, and the imprisonment of a theater manager or owner, regardless of whether or not, taken as a whole, the work is obscene. Counsel for Plaintiff Battershell suggests in his brief, for example, that by failing to require that the picture be obscene, § 43.25 would prohibit the commercial exhibition of a major motion picture concerning the psychological effect on a teen-ager who happens inadvertently to view his parents engaged in sexual conduct. A ten-second sequence in such a film would render the exhibitor subject to felony prosecution, notwithstanding that the film as a whole did not appeal to a prurient interest, did not depict sexual conduct in a patently offensive way, and did not lack serious literary, artistic, political, or scientific value.
In fact, the statute literally makes it unlawful to exhibit a movie which “shows” a person under 17 years of age “observing . sexual conduct” even if the conduct being observed is never itself depicted on the film. Such a film clearly would not be obscene.
The Court need not continue to cite possible applications of § 43.25 to protected forms of expression. It is apparent that the statute could be applied to a variety of works which, taken as a whole, very plainly would not be the type of “hard core” pornography referred to in the Supreme Court’s opinion in Miller.
The Court dоes not believe, either, that § 43.25 could pass constitutional muster as written on the justification that it is a measure to protect the safety and welfare of minors, or to prevent their exploitation and abuse. If the statute were limited to prohibiting the depiction of minors actually engaging in sexual conduct, or even if the statute merely prohibited the observance of actual sexual conduct by minors, the Court would likely have no hesitation in declaring its constitutionality.
See Ginsberg v. New York,
Defendant suggests that the deficiencies in § 43.25 could be circumvented because the term “obscene” as used in § 43.25 is defined in § 43.21(1), and that the two sections should be read together to insure compliance with Miller standards. However, Defendant apparently ignores the fact that the only reference to “obscene” material in § 43.25 is found in part (b) of the section, which sets forth an affirmative defense to prosecution under pаrt (a). The term does not appear at all in part (a) which establishes the offense. 8 Moreover, the defense set forth in § 43.25(b) by its very terms applies only to possession of the prohibited material. The commercial exhibition, distribution, or sale of the material made unlawful by § 43.25(a) is not subject to the affirmative defense.
If by referring to “the obscene material” only in the affirmative defense section of the statute the Texas legislature intended to create a presumption that all material prohibited by § 43.25(a) is obscene, then the statute clearly is defective and invalid, for a motion picture or photograph cannot be presumed to be obscene. See Miller v. California, supra.
Still, before declaring § 43.25 unconstitutional, it remains for this Court to consider whether the statute is “readily subject” to a narrowing construction by the state courts which would render it constitutional. Erznoznik v. City of Jacksonville, supra. The only narrowing construction which suggests itself to the Court would be, as Defendant contends, to read into § 43.25(a) the requirement that to constitute an offense the material must be obscenе under the terms of § 43.21(1). The state courts have not had to address the statute to date, and the state district court has consented to defer to this Court, but it is not inconceivable that if the Texas courts were faced with the question, they would insert such a requirement rather than strike down the statute in its entirety.
However, in
Erznoznik v. City of Jacksonville, supra,
the Supreme Court was faced with a facial overbreadth challenge to a city ordinance which made it a nuisance for any employee of a drive-in theater to exhibit any motion picture containing sсenes of nudity if the picture were visible from a public street. In holding the ordinance unconstitutionally overbroad, the Supreme Court considered the possibility that the ordinance could be justified as an exercise of the police power to protect children, by construing it as limited to movies which are obscene as to minors. The Court rejected that narrowing construction because a rewriting of the ordinance would be necessary to reach that result.
Erznoznik, supra,
at 217, n. 14 and n. 15,
This Court is now faced with a similar situation, thоugh the statutory infringement on protected conduct may well be less egregious here than in Erznoznik. Nevertheless, the Court is of the opinion that the only narrowing construction reasonably available to the state courts would necessitate a rewriting of the statute, and that under the reasoning of Erznoznik the statute is not readily subject to a narrowing construction. The Court feels that the following passage from the Supreme Court’s opinion in Erznoznik is appropriate here:
“We hold only that the present [statute] does not satisfy the rigorous constitutional standаrds that apply when government attempts to regulate expression. When First Amendment freedoms are at stake we have repeatedly emphasized that precision of drafting and clarity of purpose *594 are essential. These prerequisites are absent here.”
The Court notes that this decision will not necessarily preclude the state courts from placing their own construction on § 43.25. A federal court’s declaratory judgment of unconstitutionаlity does not have the disruptive effect on state regulation that would be created by a broad injunction against enforcement of the statute; in fact, the declaratory relief granted in this case cannot directly affect or interfere with the state’s enforcement of the statute except with respect to Jay Batter-shell, the federal Plaintiff involved in this ruling.
See Doran v. Salem Inn, Inc., supra,
The Court would add that this holding does not leave Texas without a means of dealing with the problem of child pornography, quite apart from enforcement of § 43.25. Other of the state’s criminal obscenity statutes are addressed to the exploitation of minors in the creation of pornographic materials, and the state has the authority under those laws to prosecute persons who actually use minors in the production or dissemination of obscene materials or performances. 9
The Court having determined that Texas Penal Code § 43.25 is unconstitutionally overbroad, it is accordingly
ORDERED, ADJUDGED, and DECREED that Plaintiff Jay Battershell’s Motion for Summary Judgment be, and hereby is, GRANTED.
Notes
. For the text of the statute, see infra, “Constitutionality of § 43.25.”
. The indictment alleges that Graham did “knowingly and intentionally sell and possess for sale a motion picture, knowing the content of the motion picture. Said motion picture showing a person younger than seventeen years of age engaging in sexual conduct . . ”
. At the time this suit was filed, the Mini-Vue Theater had been completely shut down and the property and assets of the Theater had been seized by a receiver appointed by a state district court in Austin. The receiver was appointed at an ex parte hearing in a suit filed by the State of Texas against Theaters of America, Inc., purportedly to collect delinquent corporate franchise taxes. Finding that the receivership was instituted by state officials in bad faith, this Court enjoined the receiver from closing Plaintiffs’ Theater. See this Court’s orders of September 30, 1977, and October 28, 1977.
. H.B.No.1269, 1977 Vernon’s Texas Session Law Service 1035.
. In 1975, Texas amended the definitional section of its obscenity statutes in an effort to comply with Miller. Texas Penal Code § 43.21 provides in part:
*592 “(1) ‘Obscene’ means having as a whole a dominant themе that:
(A) appeals to the prurient interest of the average person applying contemporary community standards;
(B) depicts or describes sexual conduct in a patently offensive way; and
(C) lacks serious literary, artistic, political, or scientific value.
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(6) ‘Sexual conduct’ means:
(A) any contact between any part of the genitals of one person and the mouth or anus of another person;
(B) any contact between the female sex organ and the male sex organ;
(C) any contact between a person’s mouth or genitals and the anus or genitals of an animal or fowl; or
(D) patently offensive representations of masturbation or excretory functions.”
. Under Texas law, a third-degree felony is punishable by a prison term of not more than ten years or less than two years, and a fíne of up to $5,000. Texas Penal Code § 12.34.
. The statute does not require that the work be obscene even as to minors.
See Ginsberg v. New York,
. Nor does the indictment against Robert Graham allege that the material he is charged with selling is obscene. See Note 2, supra.
. See Texas Penal Code § 43.23(a)(3) and § 43.24(b)(3).