Grove Press, Inc. v. Flask

fоregoing appro- reasons an For denying priate be entered order will dismiss, defendants' motions requiring plaintiff to amend

complaint the names all to disclose parties in interest.”

the real deny reasons, will

For these we grounds but on these

Motion to Dismiss complaint

require an amendment par- of all real names

to disclose the in interest.

ties filed Motion for has also Defendant However, un-

More Definite Statement. plead- System of notice Federal der the complaint ing, that the court finds allega- enough in its than definite more negligence. Fed. Form See tions Civ.Procedure, page 85 of Title Rules Civ.Procedure. Fed.Rules of foregoing, light need we question this time consider un- sustainable the action is whether 402(a), of Torts. We Restatement

der § completion of discov-

will await have

ery development of the factual full making that determina- before

situation

tion. PRESS, INC., Plaintiffs, al.,

GROVE et

Anthony al., B. FLASK et Defendants.

No. C 69-735. Court,

United States District Ohio, N. D.

Eastern Division. 10, 1970.

March (Yellow),” “I film Am Curious

has contracted with exhibitors several cities for the United States ex- film; State-Youngstown hibition of the corporation Corporation, Theater an Ohio operates which The- and the State owns ; Horne, ater and Mrs. an Patricia adult Youngstown rеsident of Ohio Greater pic- frequently area who attends motion Kancelbaum, Berkman, & Gordon opportu- tures to the and would like have Cleveland, Ohio, plaintiffs. for nity challenged film in the see the Mahoning Gilmartin, Coun- E. Vincent Youngstown original area. In the com- Ohio, Youngstown, for de- ty Prosecutor, plaint Mrs. Horne was as seek- described fendants. ing relief on behalf of herself as an in- Judge, CELEBREZZE, Circuit Before representative dividual and as a of a class Judge, BATTISTI, and District Chief similarly of all others situated. No evi- Judge. GREEN, District prove dence was introduced to the exist- 23, ence a class. Rule Rules Federal Judge. CELEBREZZE, Circuit of Civil Procedure. in originally Defendants this ease are on the State filed This action was Ohio, represented Mahoning de- seek September 1969. Plaintiffs County Prosecuting constitutionality Attorney, the Law claratory on relief City Youngstown, injunctive Director of the act- statutes, re- of certain state ing private Mahoning allegedly conduct citizen of unlawful lief from County, regard Mayor and the and Chief of public with of certain officials Youngstown. City (Yellow),” film, and Police of the While “I Am Curious judgment declaratory complaint in the Gilmartin, initial Messrs. Vincent Mellilo, Anthony B. protected matter. Patrick Flask, Terkesky John filing petition, the After the par- respectively, the named defendants sought tempo- immediate an stipulated that three substitu- ties have restraining disposi- rary pending order result of successions tions be made as a case, denied. The was tion of the which Manos, in office: Nicholas Law Messrs. September District Court set Hunter, Mayor; Director; Jack C. hearing application for for Baker, Police. Chief of Donald injunction. preliminary After initial summary, stipulated. arguments, facts are was dismissed oral the cаse State-Youngstown Corpora- Theater prejudice for failure to seek without three-judge Press, conformity Inc. to tion contracted with Grove District Court (Yel- film, “I exhibit the low)” Am Title with 2284 of Sections Youngs- Theater State On October the United Code. States town, Ohio, period com- an indefinite Appeals for the Sixth the Court of mencing September 1969. The con- dis- Circuit reversed the District Court specifically provided that tract the State- missal, 417 F.2d remanded Youngstown Corporation Theater would “proceed with case with instructions persons under admittance to all refuse dispatch” pursuant to on an action Sec- age years refrain from adver- tions 2284 of Title 28 of the United tising pander- counsel, the film a lascivious By stipulation States Code. ing manner. quo preserved the status “until was three-Judge Court has determined September 1969, the On State the case.” Mayor Theater a letter from the received City Youngstown and the Ma- Plaintiffs this matter are several: honing County Inc., expressing Press, corpora- Prosecutor Grove New York opinion tion their movie “I Am which is Curi- owner and distributor * * * indecent, lewd, (Yellow) enumer- situations too numerous to ous the Ohio ate.” and that and obscene” lascivious 3767.01, 3767.03 Code Revised §§ statutory Appropriate relief an to abate a action 3767.06 “authorize sought alleged nuisance abate the owner, against agent, or les- nuisance in- exhibition of an obscene any nuisance.” interest see cluding restraining parte ex order the “dire conse- letter indicates removing, prevent person us- “from quences the exhibi- follow” ing, interfering inor manner indecent, lewd, “any lascivious tion of personal property contents under the aforemen- obscene films” parte re- thе State Theater.” The ex statutory authority. con- tioned hearing straining A order was denied. publicized tents of that letter were concerning possible was set issuance the news media. temporary injunction Septem- of a September the ber 1969. On 17, 1969, day September after On- one hearing September continued until was this action been in the District had filed the in that case 29 because defendants Youngstown City Court the en Council given had the neither been nor waived a to acted series of ordinances directed days’ by required full five notice the regulation obscenity wards the of within hearing September statute. The for set including jurisdiction, Ordinance No. agreement of was not because of had 79703. quo pend- counsel to maintain the status very day, film, That “I Am the Curi- ing the decision of this Court. (Yellow)” sep- ous on was exhibited two gen- September for a trial arate Also set was occasions to members of the brought charges public, police eral on the criminal under and certain of officers Youngstown defendants, including Mahoning City the of ordinances the against County Attorney. projectionists Prosecuting the two arrested At the City exhibition, pro- at the Theater. of conclusion of each the State jectionist Youngstown agree to a of the film under refused to con- was arrested though authority the the tinuance on that matter of even Ordinance Youngstown police suits under the nuisance statutes each oc- Ohio officers. On casion, pending Septem- on were the docket for reels of seized Youngstown Municipal police pursuant 29. The retained to each ber arrest, grant a continu- Court also refused to but without search or warrant judicial ance; authority. other the trial not had because agreed counsel to maintain the status September On State quo pending the resolution Court. Mahoning County Ohio Prosecu- statutory jurisdiction This Court has ting Attorney, and the Law Director of in- consider their claims constitutional City Youngstown, acting as a they sofar as constitute an actual fed- private Mahoning County citizen of filed justiciable controversey. eral 28 U.S.C. statutes, suit under the nuisance Ohio 2202; 2284; §§ U.S.C. §§ seq., Ohio Revised Code 3767.01 et § 42 U.S.C. § the Court of Common Pleas of Mahon- ing County. petition alleged: Their I (Yellow)’ “that the T am Curious primary contention lewd, lascivious, indecent and ob- un- the Ohio nuisance laws are depicts

scene in that said film several ap- on their face and as constitutional unimpeded depicting clear and views plied regulation to the mat- acts of sexual a intercourse between ter. Ohio 3767.01- Revised Code §§ female, male and a depicting a scene 3767.11. cunnilingus fellatio; and a fan- tasy depicting castration, scene as well a Ohio Revised establishes Code regulation numerous other statutory sordid and obscene scheme for the (1957) nuisances, including places lewd the United States in which making pun- pro- federal statute held that a It films exhibited. or obscene mailing up- injunctive temporary relief ishable for vides ** filthy “obscene, lewd, hearing or lascivious with- application and after on publications char- of indecent filing It other days of a suit. after in ten “sufficiently precise” to meet judge an ex acter” was permits to “issue also proc- restraining order, of due ‍‌‌​‌​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​‌​​​​‌‍restraining standards parte observed, words,” “These the Court persons from re- ess. defendant all interfering according proper “applied stand- moving manner or in * * *, give judging property ard for personal contents ”*** pro- adequate warning ma- the conduct place. And if ** * trial, ‘boundaries scribed and mark after terial found to be obscene judges sufficiently Fur- injunction distinct permanent issue. may ap- juries fairly ther, the law’.” penal provisions to administer certain special including, levying While ply: leases; admittedly im- liens; voiding nuisance statute is taxes and precise closing administer places nuisances tool with where and the year, regulation obscenity, up sub- the definition one are committed modify- “lewd, indecent, ject ameliorating or obscene lascivious to certain including ing “good does provisions faith” films” contained within statute Roth, not, place. in “offend O.R.C. the words § of the owner against safeguards con- constitutional 3767.01-11. material, upon protected victions based allege de- Plaintiffs six interrelated give acting adequate no- or fail to men in statutory for the in fects Ohio’s scheme prohibited.” tice of 354 what U.S. prevention nuisances and abatement of 492, at 1313. The Ohio stat- 77 S.Ct. problem of applied as to the delicate overly utes are not broad. determining consti- whether material allege Second, plaintiffs tutionally that protected. statutory is unconstitutional scheme allege First, plaintiffs statute that lacking may in that it scienter: “lewd, prohibits the exhibition ingredient governmental essential in the films,” indecent, or obscene lascivious regulation obscenity. Cali v. Smith overly Code § broad. Ohio Revised 215, fornia, 147, L. 4 361 U.S. 80 S.Ct. “that must assume 3767.01. We necessary, (1961). Ed.2d 205 If the Ohio prosecutors con- observe courts will may as nuisance statutes be construed expounded as stitutional limitations requiring scienter. The State Su Ohio Supreme] Court.” [the United States preme re indicated it will Court has 479, Pfister, 85 Dombrowski v. 380 U.S. any quire statute scienter 1116, (1943). In a S.Ct 14 L.Ed.2d 22 penalties. imposing v. criminal State involving prosecution recent criminal 136, Mazes, 725 218 N.E.2d 7 Ohio St.2d “obscene, construction of the lewd words Marshall, (1966); City v. of Cincinnati or lascivious” the Ohio 280, (1961). N.E.2d 178 172 Ohio 175 St. held lan- itself bound to construe the Thus, may fairly that assume we guage prevailing consistent with con- “in a be construed constitu statute will authority stitutional of A Book Named and that courts tional sense” Ohio “John Cleland’s Memoirs of a Woman prosecutors expected to “observe 413, Massachusetts, Pleasure” v. 383 U.S. expounded as limitations 975, (1966), 86 S.Ct. 16 L.Ed.2d 1 State York, Redrup v. New this Court.” Mazes, 136, v. 218 N.E.2d 7 Ohio St.2d 1414, 767, 769, L. 18 386 87 S.Ct. N.S. (1966) 2905.- 725 Ohio Revised Code § (1967); Named “John A Book Ed.2d 515 of Pleas of a Woman Cleland’s Memoirs 418, 413, Massachusetts, States, ure” 383 v. U.S. 354 Roth v. United (1966); 975, Dom- 476, 1304, 86 S.Ct. 1498 U.S. 1 L.Ed.2d 77 S.Ct.

579 485, 479, Pfister, statutory provides 85 The Ohio 380 U.S. scheme browski v. (1966); hearing adversary prior 22 a full 14 L.Ed.2d S.Ct. Douglas Jeannette, injunction. City preliminary issuance of v. (1943). hearing spe- Prior to the does 87 L.Ed. thе statute 63 S.Ct. cifically provide parte for an “ex re- allege Third, plaintiffs that straining prevent order” to “defend- unlawfully places the burden the statute persons removing ants or other from non-obscenity ma proof interfering per- manner with the Revised terial on the accused. Ohio property place sonal and contents of the While Code 3767.06. 3767.04 §§ alleged.” where such nuisance is Ohio nui prior convictions statute makes Revised Codo 3767.04-.05. stat- §§ prima of nuisance sance facie evidence utory parte scope “ex order” is limited action, subsequent we do not believe prevent being destroyed evidence from language applied to a that proceeding will be quo pending and to retain the status nuisance attacked when hearing. It is not to be used an in- materials. is the exhibition junction against exhibition, as the Ohio courts assume that Ohio’s state We shall Court of Common Pleas demonstrated so construe the statute. Zwickler will construing regarding when the statute Koota, U.S. very film, the exhibition of this “I Am (1967). L.Ed.2d (Yellow).” Mahoning County Common Pleas Court Case No. allege Fourth, that September 18, 1969. an ex be restrained parte injunction against nuisances with Fifth, plaintiffs allege adversary prior out a determination statutory the Ohio scheme is deficient Any “precensorship” obscenity. it fails to amake distinction be questionable. Tei materials would be “private possession” “public tween Cusack, Corp. Film tel dissemination” of obscene- matter. To (1968). 88 19 L.Ed.2d 966 S.Ct. the extent that the do nuisance statutes imposed in advance of “[RJestraint literally apply equal vigor “pri to judicial the mer final determination on possession” “public vate and dissemina * * * preser its must be limited matter, they tion” of obscene аre incon quo of the status for the shortest vation holding Stanley sistent with the ju period compatible fixed with sound Georgia, 557, 1243, 394 U.S. 89 22 S.Ct. Mary dicial resolution.” Freedman v. land, (1969). language may L.Ed.2d 542 This 739, 59, 734, 51, 85 380 U.S. S.Ct. be severed. Ohio Revised Code i.13. § only “ju (1965). And 13 L.Ed.2d 649 statutory The scheme should be forth adversary pro in an dicial determination consistently with construed with the hold sensitivity ceeding necessary ensures ing Stanley possession by that “mere * * * expression freedom privacy individual in the of one’s impose a 380 valid final restraint.” home” of obscene matters is a constitu 58, 85 739. Bantam U.S. Books, S.Ct. tionally protected activity. Sullivan, 58, 83 Inc. v. 631, Sixth, (1963); plaintiffs A S.Ct. L.Ed.2d 9 584 attack the Kansas, Quantity statutory Copies state imposing of Books v. scheme as un 205, 1723, necessarily sweeping penalties 378 12 broad U.S. L.Ed.2d and Warrants, (1964); 809 etc., Marcus distribution of v. Search obscene matter in 1708, order 367 81 6 L.Ed. to chill the U.S. S.Ct. dissemination of bor (1961). protected disagree. 2d 1127 hоw derline Ohio statutes materials. permit parte injunctions penalties do ever not “ex in the instant scheme are against only imposed adversary nuisances” to issue be without after a full hearing opportunity adversary judicial prior for a hear determination on ing. penalty imposed the merits. No will Ohio Revised Code 3767.04. § 580 adjudicated plaintiffs’ are or We determine

unless the materials chal- lenges requisite validity to the admitted to be obscene present. Code scienter Ohio Ohio Revised 3767.01-3767.- Revised Code §§ 3767.06, California, 361 11 are U.S. unwarranted. Ohio nuisance § Smith v. (1961); applied suppression 80 4 L.Ed.2d 205 statutes as S.Ct. Mazes, allegedly 218 N. State v. 7 Ohio obscene materials do over- St.2d (1966); guarantees. City E.2d 725 Cincinnati v. reach federal constitutional Marshall, N.E.2d 172 Ohio 175 St. II (1961). major plain- The second thrust of the by plaintiffs inap The cases cited arguments tiffs’ local law enforce- рosite. Books, Sullivan, Bantam Inc. v. authorities, joined by ment en- law 9 L.Ed.2d S.Ct. authorities, engaged forcement have Randall, (1963); Speiser 357 U. faith bad threats and harassments S. suppress “I exhibition (1958). of these cases Each involves (Yellow)”, Am Curious without like- penalties being placed or burdens ad lihood ultimate success the court- upon ministrative an individual bodies room. Two of unconstitutional forms exercising rights. his First Amendment bad faith harassment specifically requires The Ohio statute (1) were offered into the let- evidence: adversary hearing judicial and a deter threatening prosecution ters sent any speech mination or material before Mayor Mahoning County Prosecutor enjoined any penalties or im (2) passage and enforcement

posed. Youngstown City There- Ordinance.1 1. “79703 AN ORDINANCE: SECTION SECTION SECTION 3. PRESUMPTION: SECTION 2. scene.” or offer to ter ‍‌‌​‌​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​‌​​​​‌‍DISTRIBUTION, prints, ED or distribution or distribute; knowledge to be “Every persоn in the LEWD EXPOSURE OR SIMULAT- causes SCENE MATTER: “Every person or State either is portance ance which should be abated.” matter of state contemporary considered as appeal “(a) ^[*] ***** ^[*****] trier is ACTS intent A brought, guilty exhibits, to community matter and constitutes a 4. ^[*] without be distribute; or fact to distribute or GENERAL Definitions: of a OF sent, community (1) prepares, publishes, PARTICIPATION (2) who into this State for sale distributes, public policy, obscenity whole, is ‘OBSCENE’ may is exhibition; ^[*] has redeeming standards SEXUAL INTER- misdemeanor.” or and what knowingly presumed ETC. OF declare PENALTY brings interest. standards, his ^[*] obscene mat- SALE predominent public or offers to possession social im- or causes inor to sends or to have exhibit be if, by As ^[*] nuis- exist jury OB- this OR ob- IN SECTION whom tion deliver found control rest thorized to gaged such its, the exhibition of a motion SCENE MATTER AUTHORIZED: “Every person vision guilty tercourse reproduction containing demeanor. sels, under Section 132.11 of human exposure COURSE OR public picture, PART course of a exhibition, Code of “(a) Every (b) Every person ***** be or any or assists conduct, taken.” of a misdemeanor.” would be production AOF of the procures, the same this ordinance television Ordinances, interested offstage person conduct, engages 11. or mechanical simulated play, nightclub act, seize PLAY, person perversion, person or who possession who any person PERVERSION AS SEIZURE OF OB- subject so counsels or or offscreen and in who production, person, is arrested ETC. so who, other knowingly authorized act of guilty such conduct is procures, arrested is which, or or court picture, to reproduction Youngstown viola- for a equally during prosecution mechanical under sexual assists engage of a mis- or required matter motion and to before if exhib- to ar- coun- lewd tele- au- en- in- A nearly they fore, preme are еn- identical overruled claim obscenity judicial prosecutions made construction to have the state titled enjoined. that a courts book Massachusetts harassments appeals prurient interest and “which may (1) con- Public officials patently need be shown offensive” authority stitutionally of their use the “unqualifiedly in liter- to be worthless” of valid to threaten enforcement office ary, artistic or scientific value to be ob- statutes, prosecution if such threats Brennan, Mr. who an- scene. Justice Douglas See, “good made in faith.” judgment of stat- nounced the the Court City Jeannette, at 310 U.S. opinion: ined his (Yellow)” is 877. “I Am Curious S.Ct. being challenged around courts “A, proscribed book cannot be unless country explicit de- on its the basis of Utterly it is found to without re- be variety piction episodes in a of sexual deeming social This is so even value. variety of condi- manners under a though possess the book found to fellatio, only coitus, cun- Not tions. requisite appeal prurient and to be sodomy nilingus suggested acts patently offensive. Each the three depicted during the of the course federal criteria is to be film not reach the tract. While dowe applied independently; the social value point, we issue be- at weighed neither book can prosecution threats of based lieve against prurient nor its canceled alleged obscenity of this film can- appeal patent or offensiveness.” 383 any hope not be considered as “without (Empha- U.S. at of ultimate Pfister, success.” added) Dombrowski sis 85 S.Ct. at City Ordinance enacted facts, good pub- On faith Youngstown give independ- does not beyond lic An officials’ threats is cavil. weight importance” ent the “social warning honest valid law that a challenged work, “value” of a rather it invoked constitutional. patently assumes that offensive works (2) Youngs- allege that the Plaintiffs appeal whose dominant be to the City town is unconstitutional Ordinance prurient interest are “as a matter of addition, allege they on its face. public policy” obscene. Such double arrests and seizures of proscribe criminally ordinance would pursuant made Ordinance punish the dissemination of matter in applied. are agree. unconstitutional significant contributions to artis- tic, literary, political scientific spheres may integrally be entwined and defines “obscene” Ordinance patently related material. offensive necessarily in such a in manner as to Ohio, 184, 191-192, Jacobellis v. proscriptions clude within constitu (1966)). tionally protected materials. Or Further, the ordinance seems to inter- dinancе states: twine into independ- one element the two if, by “A matter is contem- ‘obscene’ appeal ent elements of Memoirs that the porary standards, community and con- of the dominant be to theme whole, ap- predominant sidered as a interest patently in sex and that the is peal tois interest. As a mat- by judged offensive as commun- public policy, obscenity ter of is state ity standards. redeeming without im- social portance public and constitutes a nui- In addition the Ordinance as sance which should be abated.” applied allegedly to seizures of obscene In A pursuant Book Named “John Cleland's Mem- materials an arrest to is uncon oirs of a police unquestionably Woman of v. Pleasure” Massa- stitutional. While chusetts, 413, 975, right 383 86 16 U.S. S.Ct. have the to incident to an arrest (1966), 1 L.Ed.2d the United States Su- seize evidence in the commission of used

582 rights act, are a de- allegedly are The Plaintiffs entitled to an criminal claratory judgment scope. on the Cali- not Chimel v. unlimited City ordinances, 752, invalidity 2034, fornia, Zwick- 89 23 of the S.Ct. 395 U.S. 241, 391, Koota, power (1969). to ler 88 v. 389 U.S. S.Ct. A state’s L.Ed.2d 685 suppress (1967), an as is limited 19 L.Ed.2d well as matter 444 obscene injunction safeguard prevent har- faith or procedural to bad of an adver- Having- assing sary searchingly application of hearing that law. “focused question found the constitutional, State nuisance statutes obscenity.” Ohio Marcus v. Search 732, en- Warrants, etc., 717, are not 81 S. 367 U.S. good injunction against (1961). 1708, 1716, titled to an Ct. L.Ed.2d 6 1127 prosecution, or actual may A faith threats of to state not issue warrant seize prosecution, solely statutes. allegedly under those materials based obscene upon complaint police verified parte upon

officer ing an hear- ex based Ill allegedly ma- which the obscеnity. turn We issue terial was “scrutinized” the District consider this issue reluctant Judge application for a whom war- pending there are state actions Quantity Copies rant was made. A whole, part, whose resolution Kansas, of Books 378 U.S. 84 S. may depend as to upon a determination See, (1964). Ct. film, obscenity Am “I Curious of the Theatre, Virginia, Lee Art Inc. v. 392 (Yellow)”. actions, how None of these U.S. 20 L.Ed.2d 1313 ever, pending at the time federal (1968). holding, ‍‌‌​‌​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​‌​​​​‌‍so Court observ jurisdiction initially invoked in Copies Quantity Books, ed in A Also, September action on present joins party case as a Grove precedes an of books “[I]f seizure Press, Inc., Am of “I adversary national distributor determination of their ob- controversy be abridgment Curious.” actual scenity, danger there Press, light tween the defendants and Grove public in a free this film to be society whether Inc., circulation unobstructed n nonobscenebooks.” 378 shown without harassment certain U.S. being city is not cdh state and officials 84 S.Ct. at 1727. any tested in action and is suffi challenged criminal ordi jurisdiction cient to invoke under permits allegedly nance the seizure of ob Judgment Declaratory Act. 28 U.S.C. § pursuant scene matter an arrest under right 2201. “We have to decline * * * city No ordinances. warrant need be jurisdiction the exercise of issued, prior adversary judicial no de rights may simply asserted because provided termination is for under the adjudicated in some forum.” Further, multiple ordinance. allegedly seizures Koota, Zwickler 88 obscene material be made S.Ct. 391, (1967). before warrant has issued or film, “I Am As whether the adversary hearing has occurred. In the (Yellow)” constitutionally protected case, arresting instant authorities util matter or is obscene and ized authority by their seizing broad on regulated by statute, guided we arе separate prints two occasions of the con a surfeit of Court standards. tested both seizures without prevailing “elabora- standard judicial authority of a warrant or an determining tion” the test adversary hearing. multiple Seizures of in Roth established v. United copies yet of a film not found to be ob States, 1304, ju scene and without resort to normal (1957). “prevailing L.Ed.2d That safeguards harassing dicial is and un expressed standard” Book was in A enforcing constitutional manner of the Named Cleland’s of a “John Memoirs Youngstown City in Ordinance. Woman of Pleasure” v. Massachusetts

583 beyond of the materials face ed the announced Brennan which Mr. Justice themselves; the Court judgment of the Court the join in an unable to members were “Opinion has Court in which this “In the case separate Three Court.” obscenity questions since decided independently: coalesce regarded factors must Roth, the materials has it the in themselves as sufficient the “(a) theme the dominant question. In the the determination of appeals to a whole taken as material however, prosecution present case, the sex; (b) the in interest charged in the context the offense patently offensive because is material sale, production, circumstances the community contemporary it affronts that, stand- publicity and assumed description relating to the standards ing publications themselves the alone, matters; representation of sexual agree might that not be obscene. We utterly (c) without the material is obscenity question include the redeeming at value.” 383 U.S. social setting which in consideration of the 418, 86 S.Ct. at 977. presented publications as an the prevailing modified standard is This determining question of aid substantially by dicta which follows deciding obscenity, without and assume it, prosecution not have that could at succeeded otherwise.” premise, no we have “On at assess, has Memoirs that occasion to prurient appeal requisite Ginzburg to note that went on only offensive, patently purveyor but has expressed intention of value, circum- graphic minimum of social emphasize materials sale, production, appeal stances sensual detail “an sexual determining publicity relevant in curiosity” an damn otherwise publication or dis- whether or not the permissible work: is constitution- tribution ally protected. book publications, its “Like the other that the book Evidence pervasive and sexual treatment sex commercially exploited was for the rendered it available matters prurient appeal, exclu- sake of make exploitation those who would might values, justify sion of all pandering wide- a business ‘the the conclusion that the book was spread titillation weakness utterly redeeming im- without social ex- pornography.’ Petitioners’ own portance. It think, agreed, correctly pert we setting value test is relaxed the social object a work] ‘[i]f [of dispense require- so with the through gain creator for the ment that a book be devoid curiosity appeal to the sexual value, that, social but rather as we pornographic. appetite,’ the work is Ginzburg elaborate United animating words, sensual In other States, 470-473, pp. 86 U.S. give publication a sala- detail 31,] S.Ct. L.Ed.2d where 969, [16 cast, petitioners what cious reinforced purveyor’s emphasis sole to be is conceded the Government sexually provocative aspects his conclusion.” an otherwise debatable publications, accept his court could U.S. at S.Ct. evaluation at its face value.” 383 U.S. Ginzburg concluding passage, In 86 S.Ct. at 978. analogized decision to the concur- rence of Chief Justice Warren This dicta was into the transformed Roth “Opinion Ginzburg of the Court” in obscenity States, [upholding United “Nor should Ginzburg, enterprise (1966). inhibit the convictions] scope seeking through others serious endeav- evidence which knowledge expand- considers or to human or un- cases was advance 584 derstanding science, Stanley Georgia, or literature And in v. United again Supreme All will have been deter- States once

art. that Court questionable publications mined that focused attention on the audience is perceives allegedly are obscene context obscene which brands overturning materials them obscene as that term criminal is defined private posses- conviction in Roth bаsed on mere a use inconsistent with allegedly held, sion of claim to obscene matter the shelter the First Amendment. ‘The nature may prohibit no more “[T]he course, is, materials as an relevant possession mere matter on obscene conduct, attribute of the defendant’s ground may that it lead to anti- placed materials are thus may prohibit than it social conduct they context from which draw color possession chemistry books wholly and character. A different ground they may manu- that lead to the might result reached in a different spirits. facture of homemade setting.’ States, Roth v. United 354 It is true that in Roth this U.S., (Warren, at 77 1304 S.Ct. that, rejected necessity proving J., concurring). C. exposure to obscene material would important “It to stress that danger present create a clear and analysis simply elaborates the test probably conduct or would antisocial which the vel non of the ma- recipients induce its to such conduct. judged. terial must be ex- Where an 486-487, at 354 U.S. 77 S.Ct. ploitation of interests in titillation public But that case dealt with pornography respect is shown with distribution of obscene material lending exploita- material itself to such subject such distribution is to differ- through pervasive tion treatment or objections. example, ent For there is description matters, of sexual such evi- always danger that obscene may support dence the determination might material fall into the hands of the material is obscene even children.” though in other contexts the material escape would Perhaps compelling the most differ- condemnation.” private U.S. at posses- ences between “mere “public sion” of obscene matter Subsequent Ginzburg, the United exhibition” are in of it the audieficеs Supreme States Court has focused on public which will A view the film. such factors as the character gathers together large exhibition num- permitted, audience or likely, to view a persons, intensifying bers of hence film and the method in which the stimulating one’s than emotional —rather purveyed public in deter Further, contemplative responses. mining whether protected — likely composed audience of those or Ginsberg obscene. York, v. New who have or induced been stimulated 88 S.Ct. 20 L.Ed.2d 195 to attend as (1968); of media communica- result Stanley Georgia, advertising. tion or “word of mouth” (1969). Thus, the audience which a movie views Ginsberg v. New York, the United public in a that movie exhibition sees States legisla- Court held that a prestimulated certain set ture reasonably conclude that “the conceptions. induced It when * * ethical and development moral purveyоr allegedly ma- youth” requires pornog- “in the sale of expectations terial to induce such seeks raphy special children standards, mind of the of erotic tension broader than legisla- those embodied in consumer, United States Su- tion aimed controlling dissemination preme a state look Court has said of such People materials adults.” unobjec- beyond otherwise debatable Kahan, 15 N.Y.2d 258 N.Y.S.2d prohibit dis- their (1965). N.E.2d tionable materials 390 U.S. at 640- they 88 S.Ct. at 1281. and exhibition because tribution lover, incongruous “pandering” “titil- purveyed a as well how in are political philosophies. lating her and sexual manner.” bound, however, by are the We film, “I the have We viewed prevailing Supreme Court United States entirety. (Yellow)” in its Am Curious what standards on the definition of testimony expert of the heard have We protected re That standard matter. and viewed for the Plaintiffs witnesses coalescing quires independent of the of Upon all of a review their exhibits. three elements: believe, of its evidence, in view we the ' (a) patently offensive the material “pull[ing] down widespread publicity as community * * stand- * it affronts because sex barrier”2 outermost the relating rep- description of ards to the activity and depiction of sexual in the matters; and of sexual resentation factors, pub- the associated certain other (b) ma- film, of the the dominant theme “I Am Curious of the lic exhibition appeals ma- a taken a (Yellow)” may terial as whole as obscene be curbed sex; in terial, by Amend- interest unprotected the First ment. (c) re- the without deeming social value. (Yel- tract, “I Am Curious The film searchings pres- of of low)” depicts We hold each factors to the curious these personally in young attempting to ent the instant case. woman a political, sоcial her existence to relate (a) expert witnesses called democ- Swedish and sexual currents of to “com- Plaintiffs who testified as relating complex of real racy. munity certain conceded that standards” imagined composed her which and forces explicit depictions referred sexual democracy, of heroine in a life departure” from to above were a “new engaged in normal film numerous today and constituted the “outer limit episodes, which each of abnormal sexual activity” depiction in of sexual portrayed to graphically the viewer. was judged by typical community standards. depiction prepa- explicit equality of find that of heroine’s ‍‌‌​‌​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​‌​​​​‌‍search Our coitus, engagement democracy ration for and in was rights in a women’s fellatio, cunnilingus suggested helpless sub- ironically acts portrayed her sodomy “patently young man of a are when offensive” advances of mission to the gain open shown in the film exhibition of a father had “loaned” her $90 who Thereafter, general public years to the over 18 of to her home. entrance age. contempt express his director chose having institutions for established (b) publicity attendant engage in his lead actors coitus general mag- exhibition has movie Palace in National balastrade importance nified the themes sexual guard national as the Swedish front in the film aas whole. This is so even acrobatically played, and anthem then though the exhibitor and distributor of engage tree in the oldest coitus prevent the film have contracted to ad- ceremony religious Europe while vertising pandering in a manner background. Subse- portrayed graphic content of this film and to limit cunnilingus fellatio, coitus, quent acts of years age. admittance those over suggested sodomy were acts frankly expert One admitted including couple, depicted between drawing card of its sexual this film is “re- at a violent moments some rather depictions. Thus, the audiences which array explicit retreat, ligious” and an coming together view film settings variety after in a sexual acts public place joint expectation with the reaped tragically how self- being our heroine pornography titillated and of being by depictions defeating relationship patently her was with offended her Press, Sjoraen, Vilgot (Yellow), York I Am Grove New film, sexual rela- go anything and that the beyond shown within ever tionship director to general tension of the release. prevalent his was a sub-theme heroine mag- likely only Not is the audience focusing Similarly, up film. closе nify appeal importance constantly used to rein- the camera was also the sexual themes actors, particu- of force innuendoes the production indicates that context of its suggestions. larly in their sexual pervasively theme was to be a sexual upon graphically impressed publicity the view- and Thus we conclude that the film, production technique, the director of the er of film. In that the its the exponent director, (Yellow)” reputation is an “I Am of its the content subject with certain surrealistic and its cinema- cinema of its matter verite experts, impulses, graphic techniques the includ- dominant several create a ing contemporary appeals prurient art of in- the curator of theme which to the taking Art, terest, the Museum of Cleveland believed the movie as a whole shockingly explicit graphic that sеx- and (c) Similarly, if scenes the sexual even fitting very episodes ual are much tangential relationship have some to the style. competence his and with artistic political expressed in and social themes film, however, The general was be shown unrelenting picture, graphic the the and not to museum cura- audiences suggestion repetition of sexual ac tors, professors of the cinema tivity impose not fail to can shock and sophisticated the reviewers of cinema upon the sensibilities the viewer verite. Many, perhaps persons, the film. most leading the characterizations of who see this movie attend the movie heightening expectation seeing the sexual actors direct the episodes. such sexual appeal theme and film. As C. expectations of the Dr. a Such create DeLeon, practicing psychiatrist A. and psychology of titillation in the viewers professor causing at Reserve ob- perceive Case Western them to fail whatever served, large study part may this film is in purport social the movie value severely person convey. of a film, whose disturbed hold “I that the Am symp- aberrant was (Yellow)” utterly sexual behavior Curious deeming re without general tomatic her sicknesses. We social value. general exposing believe that audience finding Apart from our this film tract by explicit twenty portrayal to twelve is obscene the three-fold standard under minutes of the sexual activities two Memoirs, challeng- we believe that concededly engaging persons abnormal patently ed film is so in char- offensive shockingly of- is so behavior community’s acter as to desensitize the fensive that these sexual themes of moral ethical stаndards values. said to be of the the dominant theme This Court does not subscribe film, taken as a whole. theory utterly obscene materials Also, we not unmindful fact are of the incorporated patriotic when into a the use of cinematic episode gain camera and historical First Amendment heighten techniques sensory impact protection any attaching more than George the sexual Washington Valley themes in the film. scene Forge at constantly audience wholly pornographic reminded that to a film they seeing transfigure tract was a it into historical would setting As the United States Court has social “It not that in such a held, “[B]y animating dispense sensual details to relaxed so as to value test is give publication cast, requirement a salacious de- that a book be petitioners value,” reinforced what is conceded but that a court of social void accept emphasis purveyor’s Government to be an otherwise debat- sole Ginzberg able conclusion.” v. United face value. States, 383 U.S. at 86 S.Ct. at 948. at Memoirs, that, And the Court observed sodomy as as documentary. ribbon others coitus from can tie blue One posterior position. ‘hard core’ a film tract which around pornography. it still pornography, privileges First not Amendment film is in of this Proof Inherently, the exercise or absolutes. seeing. privilege use of a First Amendment right responsibility testimony plaintiffs’ own By bears correlative from to on experts, which contains consider the effect of such use totally Thus, right pri- twenty ex- others. to own minutes of twelve scenes, goes upon any- property further than vate does confer plicit sexual right pollute depiction atmosphere To sex. one the in the poison village wells, only it has reached or to can state that the First this we portrayal upon anyone of normal in the Amendment does not confer the ultimate right pollute The film relations. or to the sensi- and abnormal sexual shock man, society. reduces from and of soul bilities reasonable removes him animal status. to producer and of “I director considering appeal, If, prurient this its testimony (Yellow),” am as the Curious to the con- can to conform film be said reflects, familiar with the stand- were community, temporary standards enjoyment ards met for of constitu- Country look a hard this should take then protection tional in United States. long itself, Republic not will this “prurient appeal” To “re- evade the and if it undermine continues endure deeming aspects social value” those of its moral worth of citizens. standards, Supreme set forth as States, specific nuisance stat- the Ohio of the United sex hold that Court utes, depicted 3767.01- acts in such fashion Ohio Revised Code §§ 3767.11, their face on means are constitutional make a social statement regulation alleg- applied coitus were sexual act. acts of and as materials, design- techniques edly and surrounded obscene cinema (the Youngstown City protest political is uncon- ed to bal- Ordinance indicate applied to episode), and as stitutional on its face listrade and derision estab- (the regulation and con- exhibition lished social institutions norms activity allegedly materials. episode), obscene oldest tree also sexual fiscation seemingly “I Am incorporated humor- find into We further (Yellow)” (the and not ous and unrealistic circumstances constitutionally episodes). protected pond matter. retreat and water house totally transparent indirect These Judge (concurring). BATTISTI, Chief attempts consequences of to avoid the conclusions, majority’s I concur what devoid is otherwise regard my but wish views with ought redeeming value not to be social obscenity question. protection. afforded constitutional industry, as other as well The movie cunnilingus scene has and fellatio communication, only a is not forms justification on rational no whatever expression medium of artistic and other designed to This standards. scene was individuals; particular it com- (as reflect moment “tenderness” fact, powerful, pervasive prises, in it) couple’s expert puts one within persuasive within institution educative entirely porno- sordid affair. love It society. responsibility must our It bear nature, appeal, graphic prurient power. This commensurate with of reasonable shocks the sensibilitiеs film, purporting artistic and to be both minds. educative, depicts, explicitly or creates Pornography First can never meet the explicitly depicting, acts the illusion by the standards formulated coitus, Amendment of cun- commencement of nilingus, It fellatio, States. ending United and an artistic, no it contains is not considered interpreted some act which value, redeeming social appeal. do not hesitate As we

pierce corporate deal veil in order to indirectly fairly corruption with official out, so we should

conceived and carried pierce attempt to raise hesitate

pornography to the of constitution- level explicit depic- protection

al where the coitus, otherwise hard-core tions po-

pornography, are humorous veiled against pres- significance, protests litical ent-day norms, feigned con-

social siderations of that “tenderness” genuine

always affair. exist in love objectives of the real motives or

When discerned, con- it must be

demned. society only can exist within

Civilized inhibition. of reasonable framework regresses,

When reasonable inhibition society disintegration of civilized

commences; if allowed general ‍‌‌​‌​‌​​​​​​‌​‌‌‌‌​‌​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​‌​​​​‌‍adult circulation so-called

audiences, will a landmark constitute

this connection. COM-

SECURITIES AND EXCHANGE Plaintiff, MISSION,

CONTINENTAL TOBACCO COMPANY INC., CAROLINA, OF SOUTH al., et Defendants. No.

Civ. 67-1156. Court,

United States District

D.S. Florida.

May 12, 1971. Knott, Miami, Fla.,

Roderick plaintiff. Fla., Tew, Miami,

Jeffrey Allen defendants.

Case Details

Case Name: Grove Press, Inc. v. Flask

Court Name: District Court, N.D. Ohio

Date Published: Mar 10, 1970

Citation: 326 F. Supp. 574

Docket Number: C 69-735

Court Abbreviation: N.D. Ohio