McGrew v. City of Jackson, Mississippi

al., Plaintiffs, et Irene McGREW MISSISSIPPI, JACKSON,

CITY OF

Defendants.

Civ. A. No. District

United States Mississippi, S. D.

Jackson Division.

Dec. Atty. Gen., Wells, Asst. Robert

Will S. City Jr., Atty., Nichols, Pros. E. W. G. Stennett, Countiss, City Atty., R. John (Special Counsel), Thomas III H. Wat- Miss., (Special Jackson, Counsel), kins for defendants. RIVES, Judge,

Before Circuit Judges. NIXON, COX and District COX, WILLIAM HAROLD District Judge: plaintiffs, operators mo- picture Jackson, Mississip-

tion show brought against pi, this suit the defend- enjoin ants to the enforcement of a state obscenity against public show- ing of a called Pox'.” proceeding criminal be- was instituted police justice municipali- fore the of the ty as an ex officio Justice the Peace in such state case. The state Missis- sippi party is not made a to this suit. areWe not confronted in this problems raised cases involving of books and written materials. The state of Missis- sippi simply instituted a criminal action against public for show- ing moving pic- as entertainment of a synchronized dialogue ture show with the characters on the screen with accom- panying sound effects. first filed suit enjoin prose-

this Court for declara- cution tory judgment the state court and damages. hearing Court, Upon a full temporary denied and was appeal plain- Thereupon was taken. Jr., Thomas, Alston, Earl T. A. applied Alex for tiffs leave Davis, Coleman, seeking R. Thomas complaint Charles Jackson, Miss., A. file amended plaintiff. for on have this state statute1 declared void pro Any pei'Son, purposes. 1. Section 2286 Code 1942 firm tional or cor- any per owning poration operating vides : “It shall be unlawful for or mov- owning son, corporation, op picture ing picture moving firm or or show or es- erating any moving state, violating or mov show tablishment ing picture establishment, state, guilty of a misdemeanor section shall show, punished or view on a exhibit conviction shall be otherwise, twenty-five obscene, screen or inde fine less than cent, picture, drawing immoral or more than hundred dol- dollars nor one provided picture, drawing print, lars, by imprisonment for not more n being print days sixty exhibited under than both.” auspices of health authorities educa- injunc- applied; thorizes an officer to make an arrest and for face or against prosecu- for a misde time without a warrant such criminal tive relief Acc presence.2 or tion, declaratory as meanor in his committed and for a dingly, police duly premises ar rights and for officers to their right damages. to file rested the for this misdemean- redress granted presence complaint after committed such amended viewing film, three-judge promptly the entire and seized was and this validity organized. instrument, designated The film as an of the vehicle and obscenity violating offense for this statute. non of this state statute vel charged plaintiffs promptly in of this decision. the threshold' lies Magistrate’s violation character of this exhibi- court with a The nature and obscenity impact upon plaintiffs de- this statute. tion and its natural abiding good citi- a of this were convicted of violation cent audience law Magistrate’s distinguishes readily a from statute in court on itself zens plea principles relied of nolo contendere from which and contentions the upon vigorously by plaintiffs they appealed and of conviction throughout County pressed upon County this Court of Hinds the Court where the was tried anew on its case. case resulting jury, a in a merits before judgment police offi- On November two acquittal of individual city attorney prosecuting cers and the plaintiffs corpo and a mistrial as to the guests public paid visited the plaintiff. plaintiffs rate seek by plaintiffs film as “The of the known complaint equity their in a this court of theater; Fox” in a local and at the con- this vindication of their defiance of showing, police offi- clusion of the operation of state criminal in statute plaintiffs cers arrested the individual business, their return to seek a the entire film without seized upon them of film taken from them Mississip- warrant arrest seizure. Signifi their arrest for such offense. pi any statutory provision does cantly, plaintiffs no effort to made censorship, licensing mo- for of such prove in that the not act defendants did picture as a condition tion films making perfect good in arrest faith According- showing. precedent to their consequent seizure this film and ly, predetermination there no guilt trial to determine or inno any judicial officer, body Fox” viewed cence. The Court obscenity, There was or not this film. entirety in film its in furtherance made, granted likewise no and sur desire to know all facts for the of a warrant issuance search rounding in a full-scale circumstances prerequisite with its incidental determi- Mississippi trial of this before it on its merits. nations. The statute au- 2. Section such arrest must inform the accused of the Code 1942 (Chapter object except 1968) arrest, 355 Laws Arrests —-when and cause of the provides: “An in made without when he is the actual commission of the warrant — private offense, pursuit. person may officer or arrest or is arrested on person “Any warrant, for officer ar- without an indictable enforcement charge committed, any person offense est on a misdemeanor or a breach of having posses- peace attempted pres- in threatened or in without a warrant his his ; person outstand- ence or when a has committed sion when warrant is in fact though presence; felony, ing person’s of- for that arrest and the his knowledge through felony committed, chan- or when a ficer has official has been outstanding ground suspect he has nels that the warrant reasonable cases, person’s person proposed In all believe the arrest. such arrested charge, making it; inform the arrest must to have or on a the officer commited cause, person at the time of the arrest made reasonable of the com- such person felony by object party proposed If the mission and cause therefor. requests, the warrant shall to be And in all cases of ar- arrested so arrested. making practicable.” person warrant, him shown to as soon rests without dealing with outset, and untenable. are not We finds the Court At the licensing statute, censorship or a stat- testimony undisputed and evidence suppose and any respect ute as seem is not this case obscenity contrary, On the contend. defendants case.3 The a Dombrowski sexy clearly applies per- to this Fox contrary statute acted this case on the proscribes display arresting plain- good faith in fect such an obscene tiffs, seizing offending these plaintiffs by picture. this suit charging and in voluntarily assumed this Court violation com- incident to their public showing burdens at this that film extraordinary plaint from this theater Jackson as did. prosecution al- reason of present There is in this case leged damages. Yet, irreparable intimidation, pressure, dis- trace of plaintiff testify in to this case bothered designed or crimination or other action clearly that he did not understand or she abridge deny, any con- calculated to exactly obscenity pro- what this statute right any plaintiff herein. stitutional scribed in connection with the Dombroivski, obscenity stat- Unlike this Surely, of this Fox no informed film. void, it has been and ute never declared person seriously a would contend that not in offi- is shown this these that obscenity criminal valid statute to be expectation of cers no reasonable had precisely crime, has to describe the and prosecution of- for such success incorporate judicial all of the tests for a fense; any it and shown that was not guilt, proper as determination to the solely action in this case was motivated of the offense. That not innocence part an intent on offi- the these office, or the function of a harass, oppress cers and to intimidate simply a im- statute. Such statute criminal, plaintiffs by these this action. warning part sufficient notice and ques- The decision of this Court on the the the a crime to accord offender as unanimous, tions before it not a person opportunity to reasonable majority judges the of this Court are duly avoid its commission. That was obscenity opinion the case, statute in done and such fact is not constitutional, questioned. on face denied or in suit is wise both The rule is that statute must applied. as language sufficiently couched definite validity of this statute convey warnings proscribed to to con- vagueness assailed for and overbroad as measured duct common understand- ing practice. ness. Those tenuous contentions are That is Roth rule.4 etc., Dombroski, Pfister, al. v. S.Ct. 1877. 3. et words, according applied proper 1116, 14 S.Ct. to the 380 U.S. already judging obscenity, standard for 2d 22. discussed, give adequate warning of the ‘ * * * proscribed States, mark In v. United 354 U.S. conduct 4. Roth sufficiently judges 1 L.Ed.2d 1498 said: boundaries distinct recognized juries fairly “Many to administer law decisions * * marginal obscenity That there statutes are not *. these terms Court, precise. however, has con in which to deter 'This eases it difficult par sistently precision is mine side the line on which a held that lack requirements situation no to ticular falls sufficient offensive fact itself ‘ * * * language ambigu process. hold The Constitu reason too due * * impossible require stand ous to a criminal tion does offense define page Id., page 7, required ards;’ at at is that 332 U.S. sufficiently language ‘conveys also v. Har definite See United States riss, proscribed warning note conduct to the Boyce 808, 815, Motor 98 L.Ed. common understand measured when * * Lines, States, ing practices United Inc. United 1, 7-8, Petrillo, 96 L.Ed. States v. however, plaintiffs contend, the Su rules announced Under it con governing statute is void because a decision that the preme Court requirement cases, as to scienter. obscenity under tains statute vague, justly idea is derived from the to be attack cannot be said obscenity on for sale crimi statutes to books The fact that overbroad. Surely, if this shelf dealer. built-in not contain nal statute does case, obscenity sim were such a Court would guidelines, or definitions as necessity ply jury instruct principle of due does not offend joint union and intent of action test stated process, every average per A dealer criminal case as it does. Roth is: “Whether reasonably expected community son, could not be applying contemporary his each standards, know contents of book the dominant theme of the sale, shelf for would and it be incumbent appeals material taken as whole knowledge prove guilty (354 prurient interest” sex. his such obscene material one of page page 77 S.Ct. at precedent as a to convic books condition relatively simple would be matter good good tion. That is com try a criminal case sense, mon but it does establish proper instructions which would define found contention such detail be necessary give tests offense in the statute itself. These applied to be determination as inferentially contending are that The not offense. the existence or of the guilty knowledge obscenity had no of the jury in such a case would instructed revolting depicted some of scenes three ele must establish that picture. people simply in this of prove of the ments to the existence guilt conceal cannot their behind elements fense and that those three sham aof calloused and conscience base co-exist, (1) the domi That must viz: decency propriety. of common sense and taken as nant the matter theme of obscenity This state neither prurient appeals interest whole vague nor The it overbroad. fact that patently (2) sex; material That the applies in the delicate area of freedom contempo it affronts offensive because speech under the First Amendment relating rary community certainly standards cau- invokes extreme care and proper representation application, tion in its sex but does description proper not forestall conviction in a (3) matters; material That ual proper case applied where the tests are redeeming value.5 utterly social without thereto.6 Ragen, 367; v. 314 States U.S. United pi 378, 374, prohibiting 513, 523-524, 86 L.Ed. Code 1942 62 S.Ct. one to: unreasonably Wurzbach, 383; 280 States “Obstruct v. interfere with United 508; ingress egress” 396, 167, L.Ed. free from build- 50 S.Ct. 74 U.S. Sherman, ings vague Hygrade 266 Co. v. was Provision neither nor overbroad. 497, 141, quoting L.Ed. The Court 69 further said in from U.S. Washington, Louisiana, 559, 236 U.S. Cox v. v. 379 U.S. Fox State 476, 383, 481, 273, Nash L.Ed. at “A L.Ed.2d 487 S.Ct. that: subject States, dealing valid law with U.S. v. United conduct regulation important so 1232.” vindicate society interests and the fact that speech intermingled Memoirs free 5. A Book Named “John Cleland’s with such con- Attorney bring duct does not A Pleasure” v. with it Of Woman Of constitution- protection.” Massachu- al The General Court said that of Commonwealth vague setts, S.Ct. statute was not so men necessarily intelligence common L.Ed.2d 1. guess meaning and differ as to its rejected application, was and is the test. 6. That contention made which Johnson, etc., present any Cameron, v. This case does not et al. novel questions purely simply 20 L.Ed.2d of law. S.Ct. and Mississip- plain- § held that 2318.5 another case wherein these which fully arresting case this case.7 here ex- officers ploited salacious charac- did obscene and viewed entire Court, picture. néwspa- impact ter of of its the full The local and received it, pers would not advertise the no- sordid bizarre character when but showing required patron tice of its the sur- viewed context with rounding call the theater details children facts and circumstances years skillfully age inescapable seventeen of' so inferences jected picture admitted These surround- into show. visual ing digestion. simply auditory facts and circumstances are all ele- Such action ments for compared consideration the Court cannot be with a case involv- ing only connection the fact the book obscene literature. vastly on im- which it is based does contain here is more dramatic objectionable pressionable material. It is skill- and is driven home consequence picture acting of no entire effects leave ful and sound obscene, nothing imagination. is not several scenes The statute being extremely repulsive condemning and offensive acceptable entire- propriety contaminate show as an within standards of ty. Ginzburg States, decency vague, et al. United over- is neither nor L. Code broad. Section 2286 says: perceive Ed.2d 31 “We threat a valid stat- 1942 is and constitutional guarantees thus ute, applied First Amendment and as both its face Pennsyl plight escape Murdock wealth of Common their tiffs seek to claiming from vania, First Amendment sensitive rights speech. 146 A.L.R. 81 held that free There not one hand bill unconstitutional. ordinance record in this entire word plaintiffs Yet, as the said Zwickler free to show this Court what Koota, pandering speech involved “Comity revolting 444: between the 19 L.Ed.2d these films with their sex scenes. Pennsylvania was and federal courts and seems to be standard hue That the justify cry always injected to the deemed sufficient reason as a defense in this holding case, pronounce the ren that ‘in view of decision the kind of and even * * * today find in Murdock we dered in these are al ments of the cases Court ground supposing ways sought by the inter no those of different view court, say points position, in to vention federal order and interest and to rights, petitioner’s constitutional secure mo it contained some extraneous ” necessary appropriate.’ tivating influence, will be either or or that did Court question. have this or that not before it Spock, interposed In United States of America v. sort of was in That defense (1CA), 165, postal of 416 F.2d the Court said a Roth case involved vio which 462(a), (defining Appendix lation, 50 U.S.C.A. but State of Alberts v. California penalties Roth), reported (a companion under uni offenses in case to Act) Military Training 476, 1304, versal Service 1 L.Ed.2d 354 U.S. 1498, provides who as a crime: “Or which was a case which came criminal knowingly counsels, aids, opin or abets another state from the of California and registration refuse or or service evade in this case an an ion of Court was or re forces in armed of the Court nouncement of the rules, quirements title, of this or said First That case involved the entire case. regulations directions, etc.,” rights. is not or The Cameron case Amendment vague. or First overbroad this Court likewise involved from vagueness rights, doc Amendment (2CA), theory Rebhuhn United States v. lev and the overbroad was trine 512, statute, 514, in denied in F.2d certiorari a state each eled at upheld Rosen stance extraordinary statute was injunction States, 161 U.S. 606; from a v. United charge Significant 480, 40 L.Ed. denied. United States criminal was Jeannette, Cir., Douglas, City Roth, ly, F.2d affirmed et al. v. States, Roth v. United S.Ct. et. Mishkin v. First L.Ed.2d delicate involved York, day rights. On the same State New Amendment decision, Supreme in L.Ed.2d nicety holding That cases evidence scene.” of characterization in close simply respect description fit probative with does not as a pandering question in lurid and carnal scenes in Fox” “The the nature of the material pro- satisfy which so far exceeded all bounds of Roth test.” thus decency priety and common of “The theme The dominant Fox” a standards. classic case a a state Fox” film is sex in raw pornography sex is hard wherein core producers product at which the pandered solely profit. just up tempted to whitewash clean injunctive sufficiently escape re possibly seek condemna enjoin de Supreme from lief this Court tion utter filth. prosecuting materials, fendants does not but censor proceeding against necessarily this ob one them each examine scenity 2283— ob statute. U.S.C.A. for itself as to its § them to determine stay proceedings provides: case, scenity In the Roth or not. may not “A court the United not to the States test as to whether or grant stay injunction proceedings contemporary an average person, applying except expressly standards, community State court au dominant Congress, thorized Act or where as a the material taken whole theme of necessary jurisdiction, aid of its appeals prurient Ob or to interest. to the protect judgment.” or scenity effectuate constitutional excluded from Congress syntheti expressly authorized has protection. film is “The Fox” injunc designed cally in this An case. not to deal and intended necessary ideas, in aid of tion is manner to advocate in a sex jurisdiction, protect, way literary, Court’s ef or sci that has Lit fectuate its entific, value other form case. or artistic erally exception employed there importance, existence but of social sex is Congressional solely to this mandate as a box office exception morbidly If to its Court. be an pitch there curious decency, involves where suit of common breach of rules dignity overriding right, propriety. Amendment human First depicted Dombrowski, question is addressed to as is upon particular local commu L.Ed.2d test based society nity standards, emphatically Dombrowski at most not a large general. people not a shred evidence and the case. There is expression in the deli case show An Court before the this Court to any rights any damage irreparable of kind cate area of First Amendment that plaintiffs a constitutional of free ex will be visited these wherein limits vary very extraordinary pression of relief. in the nation denial this cannot with any by a It a First determined not where Amend state lines. must be is ease deferred, rights chilled, employs standard will be or test a national ment which enjoyment by requiring subject postponed prop or can be is not a which witness, erly expert people their to stand trial to but these addressed an to guilt reposi of this offense a to or innocence is addressed the Court as jury. tory responsibility. The a There for the incident state court before before protected of dearth of evidence film v. State an absolute Jacobellis plaintiffs Ohio, are L. To show that this Court: (“The any injury Lovers”), other than Ed.2d reviewed threatened with any Supreme Court, to criminal action that incidental which said guilt brought good a faith determine reel between woman to involved affair marriage innocence; or the existence her had aban to show bored who impairment loss, any younger man doned her substantial husband for a awaiting severely any freedom criti First Amendment the last reel most disposition of the case simply displayed explicit love cized state court “an any any proof, experienced such these appeal; to show on ultimate review intelligent people could contingencies exist have come for- to imponderables or proof. of ward with at least some such full exercise inhibit would which litigant duty during aWhen has the crim- freedoms Amendment First ability cogent to come forth with more finds prosecutions. inal convincing proof pro- more than is plaintiffs not shown these Court, pre- duced exist- before it must be preponderance of evidence proof non-existent, sumed that such fact, circumstance ence any proof question if injunction entitling to an them condition to available them that it es- would have been does not The evidence in this case. produced, but for any irreparable the fact that it would the existence tablish have been hurtful to them. entitling plaintiffs ex- injury to injunction. traordinary relief It must be borne in mind throughout this case that suit this character The nature and protection not within the plaintiffs the First mind. These must be borne Amendment to enjoin the United States Consti equity bring this suit tution under all of authorities. of a criminal enforcement have no Amend only First vindication seek state and rights accused, ment display filth they and hard wrong of which pornography general core to the the instruments a return of but seek as entertainment. Yet, There of these trace of not a one offense. anything anywhere artistic stand and found take the bothered Congress obscene film. or cir- testify fact has under oath as enacted 2283 of the them Code § vindicate a declara which would cumstance public policy tion of wrong. in all followed this Congress plain- United States courts. has suit case, is a civil where expressly proof injunction authorized an the burden of have assumed tiffs weight greater showing by facts and circumstances convincing record. An stat- here not neces more evidence that sary jurisdiction protect to aid attributes its of all of or to ute is devoid Yet, validity. support in this case. would general case, rule in such neither of these has said of which statute, Congress rescript, solemn act of word in this record to assail this is a general right prosecution, uphold imminence even under the though alleged in this case to show this to be in violation con rules of law plaintiff guarantees ground public. dis- stitutional When so is not a mally attempt fails shoulder since lawfulness proof, constitutionality his bear burden of this Court of the statute on which they nothing prosecution must assume that have done is based be determined readily to that end could because not do so. the criminal inas Surely, anybody produced if injunction.8 could have suit Spielman Co., Dodge 8. showing Motor Sales Inc. v. circumstances and a clear that an (1935), 89, 678, injunction necessary 295 U.S. 55 S.Ct. 79 is in order to af says: 1322, general adequate protection L.Ed. “The rule is ford of constitutional equity prevent rights. that Thompson, will not interfere See Terrace v. 263 197, 214, 15, enforcement of a criminal U.S. 44 S.Ct. 68 L.Ed. though Hygrade 255; Banton, 140, even unconstitutional. Packard v. 264 U.S. Sherman, 497, Tyson 143, 257, 596; Provision Co. v. 266 U.S. 44 S.Ct. 68 L.Ed. 500, 141, See, 45 S.Ct. 69 L.Ed. 402. & Bros. United Theatre Ticket Offices also, Sawyer, 200, Banton, 418, 428, In re 124 U.S. 209- 273 U.S. 47 S.Ct. 211, 482, 402; 426, 718, 1236; 8 S.Ct. 31 L.Ed. Davis L.Ed. A.L.R. 71 58 Manufacturing [City Dairy Co., 445, & Farnum Co. v. v. Frink Cline 274 U.S. Angeles, 207, 217, 452, 1146; 681, of] Los 189 U.S. 23 Ex 47 S.Ct. 71 L.Ed. 498, justify parte Young, 123, 161, 162, S.Ct. 47 L.Ed. 778. To such 209 U.S. 28 exceptional 441, 714, L.R.A.,N.S., interference there must be 13 S.Ct. 52 L.Ed. lodged by Constitution, trol questions and the determination of 932, 14 Ann.Cas. 764. We have said liability under state law fed- appear danger that it must that ‘the equity justified only eral courts of can be irreparable great loss is both im- exceptional circumstances, in most mediate;’ otherwise, the accused should showing injunction clear that an is up court, first set his defense in the state necessary prevent irreparable in order to though validity even of a statute injury. Hygrade Cf. Provision Co. v. challenged. ample opportunity is There Sherman, supra; Dairy Cline v. Frink for ultimate review fed- Court of Co., supra; Spielman Motor Sales Co. v. questions. Boykin, eral Fenner v. Dodge, supra. inAnd exercise 240, 244, 243, 492, 493, U.S. 46 S.Ct. discretion, guides sound which the deter- L.Ed. 927.” equity, scrupulous mination of courts of Corporation, Missouri Beal v. Pac. R.R. regard rightful must be had for the (1940) 45, 418, 312 U.S. 61 S.Ct. dependence governments of and a says: “It L.Ed. 577 is a familiar rule remedy infringing independence equity ordinarily courts of do might given otherwise be should be prosecutions. restrain criminal In re sought slight withheld if incon- Sawyer, 200, 211, 482, 124 U.S. 8 S.Ct. sequential grounds. Di Giovanni v. Cam- 488, 402; 31 L.Ed. Davis Farnum & Association, [Fire] den Insurance Mfg. [City Angeles, of] Co. v. Los 64, 73, 1, 5, 47, U.S. 56 S.Ct. 80 L.Ed. 207, 498, 778; U.S. Hygrade S.Ct. 47 L.Ed. and cases cited.” Sherman, Provision Co. v. (1941), Watson v. Buck 313 U.S. 497, 500, 45 S.Ct. 69 L.Ed. 61 S.Ct. 85 L.Ed. 1416. Federal 402. No citizen or member of the com- injunctions against state criminal stat- munity prosecution, is immune from utes, entirety either in their re- or with good faith, alleged for his criminal acts. spect separate pro- to their and distinct prosecution The imminence of such a even hibitions, granted are not to be as a mat- though alleged to be unauthorized and course, ter of even if such statutes are ground hence unlawful is not alone unconstitutional. “No citizen mem- equity which exerts its ex- community ber of the immune from traordinary powers only prevent ir- prosecution, good faith, alleged for his injury reparable plaintiff to the who criminal acts. The imminence of such a Thompson, seeks its aid. Terrace v. prosecution alleged though even to be 197, 214, 15, 17, 44 S.Ct. L.Ed. unauthorized and hence unlawful is not 255; Banton, Packard v. 264 U.S. ground equity alone for relief in which ex- 257, 258, 44 S.Ct. 68 L.Ed. extraordinary powers only erts Tyson & Bro. [United Theatre Ticket prevent irreparable injury plain- Banton, 418, 428, Offices] 273 U.S. tiff who seeks its aid.” Beal v. Missouri 426, 427, 71 L.Ed. A.L.R. Corp., 45, 49, Pacific Railroad 312 U.S. Dairy Co., Cline v. Frink 418, 420, 85 L.Ed. 681, 682, general rule is that will especially the case where prevent interfere to the enforcement only prosecu- threatened action though of a criminal statute uncon- even tion in the state courts state officers * * * justify stitutional. To alleged law, of an violation of state exceptional interference there resulting final and authoritative de- circumstances and a clear disputed question termination necessary in order complained whether the act law- ' adequate protection afford of constitu- Wadley, ful or unlawful. Harkrader v. * * * rights. tional We have said 172 U.S. 43 L.Ed. appear that, danger it must ‘the 399; Spielman Motor [Sales] Co. irreparable great loss is both and im- Dodge, ; otherwise, mediate’ the accused should 1322. The federal courts up court, first set his defense in the state jurisdiction try alleged are without though validity of a statute is criminal violations of state statutes. The challenged. ample opportunity There is state courts are the final arbiters of their for ultimate review this Court of fed- meaning appropriate application, sub- questions.” Spielman eral Motor Sales ject only to review if such Dodge, 89, 95, 96, Co. v. appropriate- construction or 79 L.Ed. 1322. ly challenged grounds. on constitutional Hygrade Sherman, Douglas City Provision (1943), Co. v. v. of Jeannette 319 supra; Boykin, 240, 157, 877, Fenner v. 271 U.S. U.S. 63 S.Ct. L.Ed. 1324: 87 492, power 46 L.Ed. inter- S.Ct. 70 927. Hence “The reserved to the states proeessses provide

ference with the of the crim- the Constitution to for the de- courts, inal law in state in con- whose termination of controversies in their

763 simply are place, In first these this There is valid statute. circumstance, fact, clean hands. in this court with or reasonable support principle fore- of law which would ference That existence right dis- injunctive any later under the stall relief will be case of Dombrowski nothing surrounding simply in There is cussed. facts and circumstances by Surely every evidence offered these scene in case. damages objectionable, looking irreparable within show Fox” is not recognized of that term. definition under all as a whole of inescapable stated, conclusion tests nothing in this record There is authorize, justify portrays pornogra- this Court core would is that it hard taking prosecution, indisputa- phy oth- over this That entertainment. against from ble fact removes this case prosecution sordid er the state any possible of consideration favorable of for violation danger supported only on a of injury great irreparable im- of ‘both may by be restricted federal dis- courts Spielman v. mediate.’ Motor Sales Co. only trict gressional legislation in obedience to courts Con- 678, 89, Dodge, 95, 295 U.S. conformity cited; 1322, 680, cases 79 L.Ed. Judiciary Article of the Constitution. Corp., Missouri 312 Beal v. Pac. R.R. by Congress, legislation, adopted has 45, 49, 418, 420, L. U.S. S.Ct. policy, with certain well defined stat- 577; cited; v. Ed. and cases Watson generally utory exceptions, leaving of Buck, 962, 387, 61 313 U.S. S.Ct. criminal the state courts the trial of Miller, 1416; U.S. Williams v. L.Ed. arising laws, subject cases under state 599, 258, L.Ed. 489.” by to review this Court of federal “****** jegg ghouid a feder- Far Hence, questions of involved. courts attempt envisage equity court of al equity in the of their discre- exercise could advance all the diverse issues which tionary powers should conform to this engage the attention of state courts by policy refusing to interfere with or prosecutions for of Jehovah’s Witnesses proceedings embarrass threatened in state present ordinance, as- violations of the exceptional save in those cases courts to a the deter- sume to draw federal court interposition for the a court which call advance, mination of those issues in irreparable prevent injury equity to saying in what circumstances decree equita- imminent; which is clear and city or- conditions the infringing independence ble remedies abridge mil be deemed dinance free- though they might other- of the states — religion.” speech To the same dom given if wise be sought be withheld —should Co., Spielman Inc. v. Motor Sales effect inconsequential slight on Dodge, 295 U.S. (Citations grounds.” omitted) “It Cleary Bolger, 1322; v. L.Ed. equity rule that courts of do not familiar 390; Beal S.Ct. 9 L.Ed.2d ordinarily prosecutions. restrain criminal Corp., 312 v. Missouri Pacific Railroad prosecution person is No immune 577; S.Ct. alleged good criminal acts. faith his Koota, S.Ct. Zwickler v. 389 U.S. though imminence, alleged to be Its Buck, Watson 19 L.Ed.2d v. guaran- violation of constitutional in tees, 313 U.S. equity ground is not relief since constitutionality the lawfulness or Cleary Bolger (1963), prose- on which the statute or ordinance says: “Courts is based 83 S.Ct. 385 cution determined refused, except traditionally readily rare in a suit have enjoin in the criminal ease as prosecutions. (Citations omitted). injunction. instances, criminal for an impressively prosecution principle reinforced ‘is Where the threatened merely alleged between co the relations when not state officers for violations law, but between coordinate final courts the state courts are the ordinate meaning application, political are in issue.’ Stef authorities of its arbiters subject only Minard, review anelli v. has grounds appropriately 96 L.Ed. asserted. federal in numerous decisions manifested the federal courts been Hence the arrest involving enforce processes a State’s the criminal law within Pugach g., states, law. E. ment of its determination and the Dollinger, liability questions under state of criminal City Douglas Jean- equity, L.Ed.2d federal court shocking rights significant to asserted. him. It is First Amendment injunction likewise record in this permanent will case shows The offensive theme in this film is nowhere denied. found in book entitled declaratory plaintiffs seek a The Fox” on it which When this was based. rights in case. judgment this as their film is viewed and heard and considered denied though injunctive relief be Even all of ef- its overtones and sound is attacked the statute in a where case fects, inescapable the conclusion is vagueness being for unconstitutional as vi- all of the tests that it obscene overbroadness,9 enti plaintiffs are Mississippi olates the subject. statute on that declaratory as tled to guilty plaintiffs The of are any. rights, their if pandering com- these obscene for scenes Mississippi Code Section gain profit. plaintiffs mercial The Mississippi sub rights no First Amendment obscenity. ject administration Consequently, pornography. hard core abide must that criminal statute power, this Court does not have the va constitutional tests its the three lidity authority (or desire) in the ex- principles to survive. judicial ercise sound discretion extensively stated have been issue an this case. presented ex further and will not be plaintiffs prepon- have not shown duly On November two tended. derance of the evidence the existence acting police of appointed, qualified and any irreparable injury justi- that would Jackson, Mississippi entered ficers of extraordinary fy the issuance of such guests paid where local theater as danger process in this case. There pic moving showing plaintiffs any irreparable of great loss is either which That “The Fox.” ture film known as or immediate presen very offensive film a dull and denial which will befall them un life two of the illicit love tation junctive relief. These are male and an unmarried married females are this Court with clean hands average Court, an person. To as offering equity, not here to do contemporary person applying communi boldly come into this Court standards, ty that the domi it is found wrong. seeking vindication of their film in this the material nant theme That is a of the state function prurient appeals to the a whole taken as jury toas with a lawful to determine patently material is in sex. interest guilt violation of the or innocence contempo affronts it because offensive rary accordingly of this statute. relating community standards matter finds as a fact and as a concludes matters representation of sexual of law that these redeeming val utterly social without guilty of viola- before the hear this One see and ue. of the criminal statute tion of valid sound effects its incidental with all clearly pro- fully grasp hard core portrayals to picture; of such scribes the as film pornography entrenched complaint is and that shown acceptable entirety. artis has no testimony devoid (Lew and evidence to be own witness Plaintiffs’ tic value. any equity is) obscene merit. describes injunctive though broadness, nette, 319 U.S. duty Buck, denied, court has the the district 313 U.S. Watson v. appropriateness mer- and the Beal decide irrespective declaratory request Co., its R. v. Missouri Pac. propriety of the conclusion L.Ed. 577.” injunction. Zwickler issuance being Koota, is attacked 9. Where a statute vagueness and over- L.Ed.2d unconstitutional a requested The defendants innocence of ABC Thea- Mid-South jury for the Amend tres, Inc.; trial of Seventh here, plaintiff and as to that rights questions were and all such ment a mistrial was declared. officers by expressly for de reserved Court the lawfully the arrested disposition of after the termination a viewing the Fox entire film for a viola- equity aspects Court. of this case obscenity gtatute tion of this in their charges complaint answer and the presence. arrest, Pursuant to such valid Theatres, that denies ABC Mid-South peace right these had officers the lawful possession of these six Inc. entitled to they to seize this film as did as an in- is no of film of “The Fox.” There reels strument crime. The defendants testimony, be in the record or evidence right in evi- have to use that plaintiffs’ fore to establish proof dence as of this crime. None of though But, in thereto. claim standing have acquitted a dividual this Court under the clean hands doc- charge County jury in the successfully recovery obscenity statute, trine to a violating seek guilt, that agree film.10 jury as to was unable to Mfg. Accordingly Co., 78 L.Ed. 293. one’s miscon- al. v. 10. Precision Instrument necessarily Co., Machinery duct need not have been of Automotive Maintenance punishable such a to be nature as as a 65 S.Ct. justify legal proceedings provides: guiding crime or as to doctrine Any equitable of cerning character. willful maxim that act con- right- equity the cause of action come into ‘he who comes fully transgress equitable far can be maxim said to This with clean hands.’ banality. standards of conduct is cause It a self- sufficient more a mere than imposed for the invocation of the maxim the doors that closes ordinance Moreover, equity chancellor. where suit tainted with one of a court equity inequitableness concerns interest as well bad faith relative litigants private relief, as the interests of the he how in which seeks the matter improper may this doctrine assumes even wider and have been behavior ever significant proportions. more if an is root For That doctrine of the defendant. properly concept equity court uses the maxim historical ed equity affirmatively withhold its assistance in such a case it en as a vehicle only wrongdoer prevents forcing requirements en- not of conscience joying transgression presupposes good his re the fruits of This faith. injury public. part averts an ‘the abetter to be fusal on its Heath, the maxim should iniquity.’ determination when 6 How. Bein v. applied type ‘equity thus be to bar this of suit Thus while 12 L.Ed. 416. significance. Mor- vital See becomes of suitors shall does demand Suppiger Co., Loughran lives,’ S. ton Salt Co. G. led blameless have Loughran, 492-494, 788, U.S. 684, 689, other mat 86 L.Ed. 363.” as to L.Ed. require Stiegele To the same effect Karl E. ters, shall it does Speidel Corp. Import- fairly v. J. M. Moore de fraud or and without acted Key (2CA), Export Co., controversy Inc. 312 F.2d in issue. as to the ceit Giants, Los New York Football Inc. v. v. General Excavator Driller Co. stone Co., Chargers Club, Angeles 240, 245, Inc. Football (5CA), said: 291 F.2d the Court Yellow Johnson v. 78 L.Ed. considering legal 383, 387, Co., issues “Without Transit Cab Pomeroy, merits, judgment 622, 624, we affirm the (5th Ed.) Jurisprudence We so Equity do 397- trial court. §§ overlooked, age-old, necessarily gives but sometimes wide maxim equity comes into ‘he who range of dis doctrine use court’s ” refusing must come with clean hands.’ the unclean to aid cretion v. Farm- Hanson & Associates litigant. formula Earle It. bound is ‘not Cooperative Creamery Company of by any tends ers limitation or restrained Lake, (8CA), just F.2d Wisconsin exercise Clear the free trammel “ provides: Keystone ‘The misconduct need Driller Co. discretion.’ actually supra, Co., be of such nature General Excavator legal 147, 148, or constitute a basis fraudulent finally plaint plain- consequence that the clean will be dismissed It is of accordingly pled tiffs’ costs. A doctrine hands days presented mer- within five after on its This case decided case.11 permanent under the rules of this Court. application for date its on junction temporary where NIXON, Judge, District concurs. finality. In previously denied with was judicial discre- of a sound the exercise RIVES, sep- Judge, Circuit dissents and circum- of the facts tion under all opinion. arate case, it is the considered stances judgment the claim of of this Court RIVES, Judge (dissenting): Circuit law- of such plaintiffs for a return the majority If decision is correct the fully mer- likewise without film is seized Judges Rives, then Grooms Johnson plaintiffs’ The denied. it and will be deciding erred in Entertainment Ven- entirety is without in its equity claim Inc., (M.D. tures, Brewer, et al. v. finally dismissed be merit plaintiffs’ will Ala.1969), F.Supp. 306 adhere 802. I obviate That will costs. expressed the views in Entertainment jury necessity for the intervention briefly Ventures, a few which I re- claim which Amendment Seventh litigation. applied present the state as complaint. will fall with the Wiley deposition Lew- The of Thomas I. is, entered in evidence III will be Mississippi transcript of I think that The the applicable Plaintiffs’ Exhibit 3. obscenity County con- proceedings in the statute1 fails to meet the the requirements Mis- stitutional first the cases with the state of guaranteeing sissippi irrelevant and immate- fourteenth there is amendments therego objection expression. be rial, freedom of will The statute was 1920,2 long sustained; transcript enacted in deci- and that will before the only validity upholding sion in Roth.3 In Exhibit 4 Plaintiffs’ marked statute,4 Mississippi of a related Su- identification. preme adopted a much broader findings fact and conclusions obscenity promul- definition than that herein are sufficient contained gated Roth: requirements of Civil all of the meet * * * complaint necessary “It 52(a). its entire- to notice the Rule appellant ty contention all affirmative effect merit and is without declaratory charges crime, relief, except relief herein be- statute - specif com- granted, cause denied the word ‘obscene’has no will grant plaintiff party re he shall relief denied which the action. entitled, been uncon whose favor it is his conduct has rendered lief where motive, party even if the of a bad has reason not demanded scionable pleadings.” his conduct in his result induced where either bene be unconscionable will injury 2286, Mississippi others.' 1. Section Code himself fit quoted majority opin- Freberg, Minn. in footnote 1 to Johnson (1929). ion. Precision Cf. N.W. Mfg. Mainte Automotive Co. v. Inst. Mississippi Co., 2. Laws ch. 213. Mach. nance Pope (1945); Jeffery Mfg. Co., Gormully States, 1957, Mfg. 3. Roth v. United & Co. 236-237, L.Ed.2d Mississippi (1892); A Vent Metal later follows Kool obscenity. Bottom, Roth Corp. Awning definition America Section Annotated, Mississippi 2674-21, 1953).” (8 Code Cir. F.2d Recompiled (1968 supp.). “Except 54(c) provides: Rule 11. Civil Annotated, judgment against party Section Code whom a to a recompiled. every by default, final entered obscene, City meaning. must, contended were how- which ic We definite jury upon this and the instructed as counsel follows: ever, differ Quoting question. from Words NO. 3 “INSTRUCTION Series, p. Phrases, 672: Second jury “ “The Court instructs used, “obscene,” when ‘The word . State that this case is one statute, describe volving speech expres- freedom of book, pamphlet, or character of sion; therefore, test containing immodest paper, means average person, is not whether to the reading matter, and indecent applying community contemporary tendency to whereof would standards, the dominant theme of the corrupt deprave the minds film, whole, appeals taken as a publica- hands the into whose those prurient patently interests or is offen- fall, might minds whose tion utterly redeeming without sive so- open influences’— immoral to such importance value, cial but is one (D.C. citing Moore United v. States volving portrayal on the screen of 159, 161; United Mo.) Fed. 129 conduct; beyond and, you if believe (D.C.Mo.) 38 Fed. States v. Clarke reasonable doubt and to a moral cer- 732. tainty, portrayals that certain con- “Again: duct contained in this film would “ performed public obscene if or on of- means ‘The word “obscene” public streets, you then find will senses; repulsive; dis- fensive charged.” guilty the Defendant foul; gusting ; filthy; offensive decency; modesty impure; un- light In the of the definition of “ob- citing indecent; ; already adopted by Mississip- chaste scene” lewd’— State, Ga.App. 47, 62 pi Supreme Court, Holcombe v. and of construc- S.E. 647. tion statute State Missis- sippi trial court the criminal case char- definitions like “See other against present plaintiffs, I cannot acter therein contained.” agree majority with the that the obscen- Miss.1923, State, 94 So. Williams v. ity ap- test stated in Roth will can be 882, 883, 884. plied so as to make the State statute “any constitutional. When statute,5 those phrase used considered, cases are the statute is picture obscene, * * indecent, or immoral clearly any more unconstitutional than the can be construed mean held unconstitu- 1909 Alabama statute in motion film frame or scene Ventures, Inc., tional Entertainment print of, re- as the Roth test instead Brewer, al., supra, et al. v. quires, theme ma- dominant “the Louisiana declared unconstitu- terial taken as whole.” 354 U.S. Dist., Inc. tional Delta Book v. 489, Cron- at 1311. that was 77 S.Ct. Indeed F.Supp. 662, vich, E.D.La.1969, 304 669.6 position prosecuting at- taken torneys crimi- and the trial II. against present plaintiffs. nal arguendo Assuming that, despite expert In the of that case the wit- trial holdings, majori- question earlier nesses State court on the ty pertinent can life three isolated scenes breathe into restricted to the admittedly majority opin- Quoted 1 to cution for obscene 5. in footnote paying film a threatre to adult ion. been audience which had warned Byrne, 28, Indeed, 1969 a three- film’s nature. Karalexis v. on November judge court, basing 1363; temporary D.C.Mass., F.Supp. its decision district Byrne Georgia, 1969, stayed pending appeal, Stanley v. 542, 976, Karalexis, 22 L.Ed.2d held v. prose- (Dec. 15, 1969). forbids L.Ed.2d the first amendment statute, Mississippi obscenity it nonethe entirely arrests clear that the seems less Mary Lafayette Elizabeth SHORT and the seizure of the Short, Plaintiffs, Art Lee were unconstitutional. v. Theatre, Virginia, v. Inc. GRANGE MUTUAL CASUALTY COM- 1313; L.Ed.2d PANY, corporation, Defendant. Metzger Pearcy, F.2d 7 Cir. v. Civ. A. No. 1154. Brown, Agency, N. 202; Inc. v. Central United States District Court [Aug. F.Supp. D.Ga.1969, Virginia, S. D. West W.D.Tex.1969, Dial, 1969]; Fontaine v. Bluefield Division. 436; Dist., F.Supp. Inc. Delta Book Dec. F.Supp. E.D.La.1969, Cronvich, Wilkinson, 662; Tyrone, E.D.Va. Inc. v. aff’d, F.Supp. 410 F.2d 12/15/69, denied cert. L.Ed.2d Cam E.D.Ky.1968, Films, Tribell, Inc. bist Films, F.Supp. Inc. Cambist Illinois, N.D.Ill.1968, F.Supp. S.D.N.Y.1967, Brown, United States v. F.Supp. Entertainment Ven supra, Brewer, al.,

tures, Inc., et et al. v. News, Henry C. Morrison Peachtree Inc., Ray Wilson, et N.D.Fla.1969 Arnow, (Carswell, and Krentzman Cir.J. t.J.), F.Supp. 196 [Dec.

Dis

1969].

III.

Following precedent in Enter- set Inc., Ventures, Brew-

tainment er, et al. v. pre- al., supra, I would have simply

ferred tionality the constitu- rule pertinent state stat- constitutionality

ute and

arrests of the and of might seizure of the then film. We foregone viewing How-

have ever, the movie. have now since we witnessed the my express film, I would

agreement Chief with the declaration of

Judge Ready William C.

“That the motion ‘The Fox’ obscene, hereby declared not to be law,

in fact or in accordance

controlling decisions, particularly Roth America, United States [77 1304] Ohio, [84

Jacobellis v. " * * * L.Ed.2d 793 1676].

J. A. Lan- Camise C. J. Collier v. P. Douglas, N.D.Miss., 3,

ier No. Dec.

EC 6872-K. reasons, respect- foregoing I

For

fully dissent.

Case Details

Case Name: McGrew v. City of Jackson, Mississippi

Court Name: District Court, S.D. Mississippi

Date Published: Dec 31, 1969

Citation: 307 F. Supp. 754

Docket Number: Civ. A. 4384

Court Abbreviation: S.D. Miss.