P. B. I. C., Inc. v. Byrne

tyрe grouping entering cas- In into one of contract possible A third case, which, suppliers fall with commercial another like this and includes those es recognition type of com- contract construction union between somewhere cogent panies, recognizes the union itself we have a situa Here arbitration. and treating recognized an economic reasons for the two union and in which a engaged dispute overi kinds business as dissimilar. employer are in a ought govern which of two contracts From in- consideration these a all rights The union of the workmen. continuity, I that River- dicia conclude nonsign against seeking is enforce gate is not Pioneer’s a continuation of ing employer more favorable contract ought not to business and bound the union than the contract into contract entered between Local kind, prefers. employer In case and Pioneer. ought to be the conflict the resolution of functionally findings opinion This shall serve the reasonable related fact and of law under Fed.R. conclusions parties. expectations of the business 52(a). pre Civ.P. The defendants will pare judgment with the accordance some reason the absence of findings and conclusionsabove. veil, legitimate piercing entity changes in business entities entitled there

to be taken at face value. Here a valid economic reason discon operations. tinuing Pioneer’s business corporation the union had

The with which longer original is no made contract perform new contract. The

able to entity no made such contract. business C., INC., Inc., Productions, P. B. I. Natoma Rivergate has an owner-man While agement Butler, Jory Marjorie Dunaway, Frank person played had role one Richardson, Lappin, L. Brooke Morton owner-management part in the old an Leavy, Tirabassi, Donald Francis truly Rivergate entity, a new business Plaintiffs, Langston, Marlena entity ownership merely the old in a new form. BYRNE, Garrett H. Defendant. end-product opera- the business The Civ. A. No. 70-508-G. management com- tion under the new Court, gravel. end-prod- United States mercial sand District D. Massachusetts. included uct of the old business com- gravel, May includ- mercial sand and but also 1970. highways. paved ed These streets and Stay May 22, Denied end-prоducts required latter more far See complex operations than does busi- selling gravel. ness range sand great- of skills of work force is ly organization as restricted in the new compared required to that the old. smaller, super-

The work force

vision is narrower. reasons much higher enjoyed by pay for the rate workers,

construction travel job sites,

distant nature the seasonal work, wage paid other crafts rates job, like, do

on the same not ex- degree in the ist same or even similar gravel operation commercial

new firm. Berlin, Henry Katz,

Gerald A. Harold Monaghan, Boston, Mass., plaintiffs. Atty., Joseph Nolan, Law- Asst. ‍‌​‌‌​‌​‌‌‌​‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‍Dist. Boston, Cohen, Atty. Gen., Asst. rence Mass., for defendant. COFFIN, Judge,

Before Circuit BOWNES, District GARRITY Judges. OF THE COURT OPINION COFFIN, Judge. Circuit February On the live theater opened production “Hair” at the Wilbur Boston, for an Massachusetts Theater later, days A run. indefinite few County Attorney ad- of Suffolk District persons responsible for vised various engaged Boston in the The court’s was decision rendered on producers April performers participating and the each after prosecuted produc- would be sections 16 Justice had the Boston observed regular nightly Chapter and 322 of 272 of the Massa- of the member dеcision, if certain conduct chusetts General Laws audience. Their set forth occurring play appendix opinion, was not discontin- toto in the our de- 3 immediately sought injunctive against pros- in- ued. Plaintiffs creed that relief declaratory junctive relief ecution under the aforementioned statu- single tory provisions Justice Massachusetts Su- be ordered Hearing preme portions was certain were Court. modi- held, promptly time evidence fied for such at which The rationale excised.4 script taken the acts which included decision have been seems to “Hair”, testimony question of two favorable “lewd and lascivious” were concerning importance perform persons drama critics acts and that play, equitable and artistic the and three relief merit of are not entitled to non-condemnatory reports notwithstanding generally law, of a the Massachusetts police performed both the officer who had observed fact as such acts productions. play and not New York Boston is otherwise lascivious”, court. was to the full let alone constitu- case reserved “lewd and picture 1. motion theatre, provided Mass.Gen.Laws Ann. c. 272 show exhibited in § 16 said who, operator, “A man and woman other, operator, lewdly or married to each assistant has and no financial las- civiously picture togeth- interest associate and the motion cohabit theatre er, woman, employed.” or a man or wherein he sois married or unmarried, gross guilty open who is of and P.B.I.C., Inc., Productions, 3. and Xatoma behavior, lewdness and lascivious Inc., corporations duly organized both punished by imprisonment shall be Illinois, under the the laws of State of prison the state for not more than Butler, Marjorie Jory Richardson, Frank Dunaway, years jail three or in for not more Lappin, Brooke and Morton years by than two or a fine of not Leavy, partners L. are all associated in more than three hundred dollars.” partnership operating a limited under the (Supp. Ann. c. 32§ Mass.Gen.Laws stylo name and “The NTew of 1-Iair Com 1969) pany”, Inc., Productions, of which Xatoma “Whoever, owner, manager, direc- partner. general is the Plaintiff agent tor, any capacity, or in other presently Donald Francis Tirabassi is prepares, advеrtises, gives, presents or employed by partnership the above and participates lewd, any obscene, inde- acting manager assistant the cent, impure immoral or show or en- stage production musical “Hair”. Plain any or tertainment. show or enter- Langston tiff Marlena is a member of suggestive lewdness, tainment ob- ; the cast of she on “Hair” sues behalf scenity, indecency, immorality or im- n ofherself and all members of the cast. purity, any inor or show entertain- injunctive Specifically, manifestly tending corrupt ment to the relief the was youth, punished upon by morals of “conditioned excision shall be forthwith imprisonment specified (a) the for not lewd features more than two so years by or a fine of not have each member of the more than cast dollars, five thousand or clothed to a reasonable extent at all both. The provisions times, (b) completely ap- of this section shall and eliminate ply picture operator, to motion all sexual simulation of intercourse or or operator, assistant licensed under deviation.” sec- seventy-five “specified seventy-six tions and lewd features” referred chapter forty-throe, involving nudity one to two hundred “in- scenes respectively, employed jury who is cidental a mo- which a could action picture clowning tion theatre licensed under conclude was sec- intended to simu- eighty-one tion one hundred and late sexual The intercourse deviation.” chapter forty Attorney interpreted one hundred and sec- District has thirty-four chapter prosecute tion one hundred this as a mandate if forty-three, specific played. in connection with a one of seven scenes is weekly meantime,, production losing tionally Motion the Plaintiffs’ “obscene”. opinion gross receipts $70,- box office of the court’s about for Clarification by 000, making exchanges the refunds denied without comment already April sold, longer day. tickets making and is On no court the same They producers chose advance sales. had antici- cast pated lengthy Boston, having run in rather than make the show close filing by court’s time of this suit advance tick- indicated' modifications by approximately $600,000. prosecution et opinion sales or risk criminal continuing present urged proceеd areWe not to without modification. dispute merits on the plaintiffs April 13, filed suit On grounds pre that such consideration is court, seeking in- district in the federal by principles judicata, vented res pursuant junctive to 42 U.S.C. § relief having Judicial Court al prosecu- against promised ready decided critical here issues Attorney defendant District disagree. presented. only We issue County continues Suffolk clearly resolved the court involved the declaratory judg- unexpurgated, injunctive availability of relief under pursuant 2201 that to 28 ment U.S.C. § law; any finding Massachusetts are uncon- statutes herein involved regard severability to the the acts applied. or as on their face stitutional question practical relates seq., 2281 et Pursuant 28 U.S.C. § feasibility of the relief ordered. We ad three-judge to court convened this uncertainty mit to considerable whether presented by plain- consider the issues determined that section 16 the court also find, the basis our tiffs’ suit. on We applies productions to live theater jurisdic- infra, that discussion we interpreted proscribe should be to “lewd federal tion of the substantial because performed in such and lascivious” аcts presented. question 28 here U.S.C. §§ say productions. Suffice it to that there 1331, 1343(3). that no whatever the Su is preme indication revealed, hearing inter before us Court held that section promises alia, to defendant that the applied to live constitutional as reopens prosecute if the show productions. We therefore are theater meeting the conditions judicata from consid res barred opinion; he will not Judicial Court’s ering question.5 that and can limit to one test case himself give no as the number of assurance to Issue The Constitutional importance, prosecutions. Of critical brings however, us to considera us that This defendant now assures issue promised prosecutions will not be the basic constitutional tion of presented the request by plaintiffs’ de on founded on 32 but rather sec- section claratory a “lewd relief: 16 and the common law indecent whether perform- law part, the common exposure. For their the lascivious” statute used repeated exposure do to fines indecent ers not wish risk crime of they sentences, jail weapons to a live theater nor wish root out оf do to they objectionable alterations, allegedly required the some make doing begin proposition compromising the the their We view integrity so conduct. like production. productions, In the of the that theater live Indeed, mind, opinion tlmt the fact to less reasonable than reflects our (lid e., did, merely it i. briefed and ar- it what it said issues were constitutional plaintiffs asserting required gued wash their “reason- the extent applicability invoking office of before hands able doubts” compulsion constitutionality ap- lVc feel no its Chancellor. 16 and section adjudication opinion plicable. draw the inference read into To question. light background, important court, constitutional an of this implication is, point by on ruled either (March protec 25 L.Ed.2d 394 90 S.Ct. movies,6 the ambit are within suggest 23, 1970), Stanley People read First Amendment. tion of the “obscenity” (N.Y.C. proscribe in a Bercowitz, N.Y.S.2d theater, public 25, 1970); if the is fore- Barrows movie Crim.Ct., Feb. presenta- Angeles warned of character Jud. Municipal of Los Court Cal.Rptr. tion in a does not consti- Dist., manner which 1 Cal.3d pandering, (1970); tute cluded, if adolescents are ex- Mu Dixon v. P.2d 483 presentation County and if such obscene nicipal of San & Court generate present does not clear and Francisco, Cal.App.2d 73 Cal. illegal danger of conduct. (1968). anti-social Rptr. the Su That recently preme had occa has not Court argue Plaintiffs that Karalexis hold alter the unassail sion to so cannot However, applies a fortiori to our case. a tradi able fact that the has been here; adolescents were not excluded important tional and presentation medium for concerning rather, persons inquired expression of ideas. admissibility of minors were advised problem extent Our is to determine the acquaint play’s themselves with the protection the First afforded bringing content and nature before States, Amendment. Roth v. United Secondly, plaintiff’s child. “a fortiori” 476, 481-485, 1309, 1 argument premise relies on the L.Ed.2d 1498 established the ba indistinguish plays movies and live are “obscenity sic doctrine that not within purpose “obscenity” able for is constitutionally protected the area of presented here, premise sues speech press”, but that which falls compelled accept do not feel as а mat years short of it is.7 Roth since impact ter of law. The patron may on the theater sporadic have witnessed efforts to obtain depending well differ a consensus on what is “obscene”. whether the acts are viewed recently, however, More the Court has presented per on a film screen private held possession that the mere persons formed or simulated live constitutionally obscene matter cannot few in rows front of The immedi him. crime, Stanley Georgia, be made a 394 v. acy theater, easy of the live its access to 557, 1243, U.S. 89 22 542 S.Ct. L.Ed.2d audience, newly its rediscovered ca establishing contrary thus to — pacity improvisation, conse its obscenity Roth—that in is some contexts quent unpredictability to an adult even protected by the First Amendment. A sophisticated play-goer distinguish three-judge Byrne, court in Karalexis v. pos it from a film where the F.Supp. (D.Mass.1969) (Juli- 306 an, 1363 sibilities of sexual exhortation and of dissenting), injunction temporary J. giving offense fixed in celluloid. stayed pending disposition appeal, 396 976, 469, 447, tempta U.S. 90 S.Ct. 24 L.Ed.2d We therefore resist the (1969), prob. juris, noted, dispositive tion to 486 treat Karalexis as 397 U.S. Joseph Wilson, though Burstyn, may 6. short of Inc. v. such material fall 343 York, 495, 777, Ginsberg New U.S. 72 S.Ct. 96 1098 “obscene”. v. L.Ed. (1952); 629, 1274, Kingsley Corp. 634-643, Re 390 S.Ct. Pictures v. U.S. 88 gents, 684, 1362, (1968). However, 360 20 it is U.S. 3 L.Ed.2d 195 79 S.Ct. may (1959); Ohio, equally L.Ed.2d 1512 well settled that a state Jacobellis v. 184, 1676, population to those 378 U.S. 84 S.Ct. 12 L.Ed.2d confine its adult plays per- (1964); books, movies, Maryland, 793 Freedman which are v. 380 51, 734, consumption. adolescent U.S. 85 S.Ct. 13 L.Ed.2d 649 missible 380, (1965); Circuit, g., Michigan, Inc. v. E. Butler 352 Interstate v. U.S. Dallas, 676, 1298, (1957). 1 412 88 77 S.Ct. L.Ed.2d U.S. S.Ct. (1968). 20 L.Ed.2d 225 Dallas, Circuit, Interstate Inc. v. 704-707, (opinion It has been settled that a state U.S. at S.Ct. regulate Harlan, collecting prior presentation J., deci- Court distribution sions). of offensive material adolescents even to spect presented. to the nature of the material here issues the constitutional question, Ginzburg States, dis- attempting v. United ourselves than Rather L.Ed.2d Stanley has decision cern what produc- (1966). say regard theater to live with con- tions, instant conclude that we These enunciations of the rele troversy may within resolved vant constitutional standard were set principle that post-Roth, pre-Stanley involving printed forth in materi cases con- “obscenity” Amendment in a First appears It that that same standard al. regula- protected state text is not applies also determination it is. falls short tion but that which although “obscene”,9 whether a movie is a con to establish efforts Court’s agree with the recent decision “obscenity” definition for stitutional application Second Circuit generate understandably, have, failed take the test to different media should However, the a doctrinal consensus. inherent account of the differences three- commonly applied involves test v. A Motion those media. United States clearly ‍‌​‌‌​‌​‌‌‌​‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‍analysis, articulat pronged most “I am Curious- Picture Film Entitled Yellow”, Cleland’s “John ed A Book Named (2d 196, 198, 203 Cir. 404 F.2d v. Pleasure” Memoirs of a Woman 1968). Attorney Massachu of Com. General setts, same “ob We conclude that this (1966): 16 L.Ed.2d reg scenity” applies standard also it coalesce: must elements “[T]hree productions ulation of theater live —ac (a) the domi- must be established Court, Municipal su cord: Barrows v. as a material taken theme of the nant pra; Bercowitz, People supra; Dixon appeals prurient interest whole Court, supra again Municipal with — patently sex; (b) of- the material understanding factors that the four contempo- it affronts fensive because rary community light pаrticu must be assessed relating standards pro impact lar made a live theater description representation of Confining interference duction. matters; (c) material sexual theater to that with live redeeming utterly social im the fundamental “obscene” reflects portance value.” at First Amendment which the expression analysis con- a fourth taches to the unencumbered To was added analy recognize sideration, our cases evidence ideas. We close judgment, probative re- pandering a delicate sis involves Cal.1966); Films, question Tri Inc. v. 9. The in Inter Cambist reached bell, F.Supp. 407, (E.D.Ky. Dallas, 410 293 state Circuit Inc. 390 U.S. at v. Cinema, Vergari, 686-687, However, 1968); 15, 298 Inc. v. 208 n. 88 S.Ct. 1298. 1175, (S.D.N.Y.1969); F.Supp. 1179 numerous recent lower court decisions analysis Film A Motion Picture have focused on Memoira United v. States F.Supp. Evil”, assessing “obscenity” 304 motion Entitled “Pattern 197, picture. (S.D.N.Y.1969); g., 201 United States E. v. State Commonwealth 330, (D. Apple, F.Supp. Corp., 331-332 v. 305 Amusement 248 N.E.2d 497 (4th aff’d, Md.1968), (Mass.1969); F.2d 417 1070 States v. Car United One Weddle, 1969); F. 307 Ratner v. ton Positive Motion Film En Cir. Picture 471, Supp. “491”, (2d (C.D.Cal.1968); McGrew F.2d Cir. 472 titled 889 367 F.Supp. Jackson, Miss., 1966); 307 Motion Pic v. States v. A United (S.D.Miss.1969). 754 ture Film Entitled “I am Curious-Yel ap 196, (2d low”, 199, Memoir» been standards have 404 203 F.2d Cir. plied protect 1968); Arnebergh, еntertain other forms of F. 258 Schackman v. States, 991-992, g., Supp. 983, (C.D.Cal.1966), E. Hudson v. United ment. 995 427, (bur (Dist.Col.App.1967) appeal dismissed, 234 A.2d 903 87 S.Ct. show); Giannini, reh'g lesque 1622, (1967), 69 Cal.2d re de 18 865 L.Ed.2d 655, Cal.Rptr. nied, 446 P.2d 535 19 L.Ed. 72 389 dance). (“topless” Arnebergh, (1968) (1967); Pinkus 2d 204 v. (C.D. F.Supp. 996, 1001, 1002, 1005 258 764 229, 231, (1930). story may protected in book N.E. 506 form, exposure inor movie crime form not in movie of indecent is “offensive * * * ap- ly exposing An form theater. without but not live [oneself] analysis with-

plication necessity excuse, the Memoirs reasonable regard differences way produce alarm,” out to the obvious such as to Com among Warded, result media could the various monwealth v. 128 Mass. limita- (1880); all media confined but see Bish Commonwealth v. imposed op, in which the medium tions on N.E.2d Mass. of- particular presentation most (1937): enough is “It is if it in be an hand, enunci- the other exposure, fensive. On tentional act of lewd offensive every ation of a different standard persons.” pro to one or more These only com- would medium scriptions obviously conceivable apply to a broad pound ameliorat- range the confusion generally of lewd conduct. See judgments delicacy ing of the basic (1964) (Indecent 94 A.L.R.2d 1348 Ex required posure). standard. They hаve not been need not be limited to constitutional “obsceni Having that the concluded Con ty” activity imposed when the on the regulat prevents stitution a state unsuspecting public. say To ing production unless it a live theater common apply law crime and the statute constitutionally “obscene”, now ask we nudity stage, to all however, on the “closely or the whether either section 16 ignore both the fact that the audi inde crime of common law similar”10 willing ence is forewarned,12 exposure applied live to the cent can be pose, other lighting, factors as an offending that Constitu theater without gle of vision, mobility, audience and dra dealing arewe tional limitation.11 Since matic context. See United A States v. protected the First with a medium Motion Film, Picture 404 F.2d at 199. “pre Amendment, keep in mind A dim silhouette of a naked form would regulation touch cision of must be punishable be as as the most blatant Dallas, 390 stone.” Interstate Circuit Similarly, eroticism. vulnerability U.S. at 88 S.Ct. at to a “lewd and lascivious behavior” stat ute of all simulations of sexual deviation activity obvious kind of equally would be indiscriminate, barring purview ly of section within the even portrayal the muted of a deviate imposition of lewdness or might when such be essential to a dra person, unwilling unsuspecting an ma. escape We cannot the conclusion Dickinson, g., e. Commonwealth 767, apply that to the standards of the street 202 N.E.2d Mass. marketplace Cummings, world 273 Mass. behind Commonwealth v. supra. Angeles, Broadland, Los The ancestor 10. Commonwealth v. 315 Mass. and, 20, 22, (1943). 16 was section first enacted 51 N.E.2d More re know, cently, far as we has not until now re so Court perform- involving been used to a dramatic lied in on a a con case i>olice ance. viction the common law offense sustain a conviction for a violation of overturning court deter- three lower 16, indicating interchange section “obscenity”, the Court minations ability Supreme with which the York, 767, 769, Redrup v. New Court views the two offenses. Common 18 L.Ed.2d 87 S.Ct. Dickinson, wealth v. Mass. significance (1967), attached to the fact (1964). N.E.2d 240 that fifty cases] 1 1. “In the three was [of Tlie fact that all stat none states have any suggestion of an assault there utes similar and often identical to sec publication upon privacy by that individual these have almost en escaped tirely challenge it to make in a manner so obtrusive as forсe when loses impossible unwilling they ap for an individual told not we are that been exposure plied performances. to avoid to it.” to theatrical See specifically Municipal Barrows v. Court tions, contrary footlights progeny. to a censor to its be sanction Roth and would proport Moreover, present judgments dragnet ship of unconstitutional upon apply- to courts are called make in ions.13 ing “obscenity” principle to works recognized by the problem was This expression enough artistic are difficult construing Court California conditioning without criminal convic- statute conduct dissolute” a “lewd and judgments by tions on further as courts theater: ‍‌​‌‌​‌​‌‌‌​‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‍inapplicable live to as culpability to dramatic relevance. Were a differ- are unlawful “acts which depend ability to on a defendant’s con- circumstance, place, context, or ent vince a court that there awas “reason- incorporated ain depicted or be every able excuse” for scene which and come presentation or screen might questioned, chilling be effect First protection within generаlly age on theater of ice be losing protection Amendment, that proportions. We conclude that Massa- obscene.” if to be found proscrip- chusetts’ “lewd and lascivious” prosecution promised could the Nor given tion cannot constitutionally be 16 and the under section theater live permissible interpretation in the live pass exposure consti- crime of indecent retaining theater context while its much envisaging a double muster tutional proscription broader non-speech for e., pro- provisions, i. for those standard scribing conduct, forms of running lewd range public a broad afoul of requirement the constitutional applied First Amend- outside the when speech-related that limitations on activi- at the same time mak- context and ment narrowly ties must be drawn so not ing operative “ob- much narrower legitimate to chill expression. Zwickler per- scenity” proscription of conduct Koota, If theater. Massachusetts formed in the 19 L.Ed.2d 444 and cases cited. distinctly to attribute such were allowed Lest interpretations we understood different to the same statute, saying helpless protect that words in the same there would state having against portions be little at sense statute itself obscene a live This, however, precisely all. production, point what our theater we out that dissenting anticipates pandering provide brother can basis state —that Massachusetts courts would take into ac- intervention admission regulated. Beyond that, count the dramatic determine context to minors can be “necessary whether there is a play may reason- isolated acts domi be so able excuse” an incident pervade which would nant or offensive dis “lewd, whole, otherwise thereby lascivious” behav- tort the as a bringing iour. The short is that such in- pow answer within the state’s terpretation proscribe would still allow the “obscenity,” toer as was held presenta- Bercowitz, supra.15 interfere case, with non-obscene In such a 13. Our concern can bo illustrated sec excised. also See section 30 of Chapter Chapter 272, surely tion 53 of 272 of the Massachu of dubious constitu- which, alia, Laws, tionality applied setts General inter to the live theater. prohibits lewd, wanton and lascivious Giannini, Cal.Rрtr. 14. In re speech promises or behavior. Defendant Municipal Court, followed in Barrows prosecute section, al Cal.Rptr. at 825. though suspects he first act (cid:127) of “Hair” much discussing Bereowitg, contains indicta 15. "While our dis- ap senting ble under it. He does not “the significance fear brother attaches plication tests”, speech performers of free but he the fact there were sensibly, might guilty violating add —that found believes — a “lewdness” rational communication can survive However, resort statute similar to section 16. epithet Legally, finding and invective. made, how without discus- plays ever. “Hair” and are, sion, only not few other after the court had concluded theory, subject on this as a whole was obscene offending language closed down if the 766 portions court. See n. 4. Thus would Massachusetts however, offensive single reasonably expect 16 we cannot not in isolation —as section viewed be only test case to the contours permit settle would —but whole, Compare law. v. Beale Missouri Pacific accordance as a RR, 45, 418, “obscenity” 312 61 U.S. 85 L.Ed. prevailing stand- S.Ct. with (1941). contrary, 577 On the each ards. night’s performanсe offer the will Dis- carry Attorney opportunities Relief

Injunctive trict new Moreover, his out declared intent. there 16 section Since variety conceivably are a lewd scenes exposure em indecent law common play, solemn, bump- in this some some unnecessarily sweep ploy which “means tious, date, open, some some covert. To thereby area invade broadly and Attorney the District identified has sev- freedoms,” Ala v. NAACP protected en acts which in his mind violate 1302, 307, 288, 84 S.Ct. bama, 377 U.S. Acquittal participation statute. (1964), abstention 1314, 325 12 L.Ed.2d prosecution one of acts these does bar v. inappropriate. Zwickler be conduct in another different scene. Pfister, supra; Koota, v. Dombrowski expect multiple prose- We therefore 1116, 14 489-490, 479, 85 S.Ct. 380 U.S. against cutions members of the cast. Bullitt, Baggett (1965); v. 22 L.Ed.2d Byrne Karalexis, 976, See v. 396 U.S. 1316, 360, L.Ed.2d 12 84 S.Ct. 377 U.S. 983, 469, 90 447, 24 S.Ct. L.Ed.2d 486 question (1964). more difficult (Opinion (1969) Stewart, J.). plaintiffs those have shown is whether justify “special which circumstances” implications light uncertain good with a state’s interference federal opinion Supreme Court’s criminal laws. its faith enforcement might Attorney interpret as the District Douglas Pfister, supra; v. Dombrowski prosecutions multiple it, the threat Jeannette, 157, City 63 S. v. might justify federal intervention alone (1943).16 877, We 87 L.Ed. Ct. rights. to vindicate constitutional Cf. comity recognize exer restrains the 123, Young, 147, parte Ex U.S. power, equitable Dom cise of federal (1908); 52 L.Ed. Okla S.Ct. supra Pfister, at U.S. v. browski Operating Love, homa Co. U.S. injunctive and that 85 S.Ct. 336-337, L.Ed. 596 granted on a show relief should (1920). have an In our case we addi ing great immedi “both of harm chilling factor, a effect tional on the Jeannette, supra ate,” Douglas v. right plaintiffs, First Amendment at 63 S.Ct. engaged in the theater in others Massa showing requisite has conclude that chusetts, going public and the theater been made this case. England New area. actors decision. Two factors influence our up “Hair” face either must sentences of Attorney First, the District has declared years or, to three for sex offenses if the duty prosecute he feels bound closes, show their loss livelihood. presented “Hair” when fail Plaintiffs’ dilemma cannot influ making by the the deletions indicated producers, espe- ence other actors unprotected. and thus Whatever has alluded Defendant Anti- Injunction said for statute, the view that stat- “lewdness” § 28 U.S.O. aрplied pro- utes can be to live apply theater This statute does not in this case. judged Only proceeding, which are first “obscene” ductions one court ac- whole, injunction, as a it seems clear those pending, tion for an is still prerequisite spe- having yet statutes without no final been order entered cifically incorporated are overbroad Judicial Court. Our applied stay proceedings the live theater. Zwickler See order will not those supra Koota, any way. prosecutions 389 U.S. at yet 391 and cited therein. cases we are concerned have been in- stituted.

767 may ski, discussing patrons cially of- take bad theater whether since scenes, admittedly variety pro- faith enforcement an valid from a thus fense shop- long justify injunction. viding prosecutor statute would an Johnson, supra prosecutor Cameron v. ping When faced with a U.S. at list. 390 618-619, Moreover, 88 extirpating lewdness in accord- S.Ct. 1335. intent on issue which both Cameron ance with the mandate and Dom it, browski actors and Court as he sees address is whether constitution rights al producers irrepara alto- are will either Boston threatened with аvoid gether will clear of the forbid- injury. steer ble We see little difference be by excising constitutionally den zone injury tween multiple inflicted protected material order to avoid prosecutions brought to harass and the year prison Either of a three term. risk injury by multiple prosecutions caused to Amend- result is offensive the First motivated a sincere desire enforce to ment. chilling protect the law. The effect on these While factors themselves consti expression ed the same in either ease. injury”, “irreparable tute Dombrowski We therefore conclude that the threat of supra 486, 85 Pfister, at S. U.S. 380 multiple prosecutions overly under an plaintiffs we also Ct. note regulating speech broad statute is suffi face a substantial financial loss even justify cient equitable federal re persist pros they multiple face lief. Accord: Films, Cambist Inc. v. present, prevail. ecutions At Illinois, F.Supp. 185, 292 (N.D.Ill. 189 majority of advance ticket holders are 1968) ; Younger, Harris v. F.Supp. 281 willing forego hope refunds (C.D.Cal.1968), 510 restored to cal again that “Hair” will in Boston. show endar, 23 agree But we with the court Karalex (1969); L.Ed.2d Maraist, Federal Byrne, F.Supp. Injunctive Against Relief State Court expected receipts can to be box office Proceedings: Significance of Dom delay, in the event smaller substantial browski, 48 Texas L.Rev. n. disruption or, add, substantial (Feb.1970). performances. there scheduled We sum, productions theater live are plaintiffs dem fore conclude that good prosecu- insulated from faith grave onstrated the kind of threat passes tion under a statute which consti- expression justifies protected fed tutional muster. But at the m'oment the equitable eral intervention as an alterna people of Eng- Boston much New repeated prosecutions. tive opportunity land denied are judge the merits of “Hair” them- We conclusion de reach this selves, it because be obscene but spite prosecutor in this fact promise prosecution because of the subjective shown no faith. case has bad section 16 and the common law Bradley, F.Supp. In Robinson v. exposure. crime of indecent All we hold (D.Mass.1969), opin the author of this greater those laws authorize ion commented in dicta that Dombrow state interference with the live thеater offspring, ski and its Cameron v. John than the First Amendment allows. son, L. < enjoined agents Ed.2d 182 could read re his Defendant and quiring facially both a either prosecuting invalid statute “Hair” under justify faith in bad order to federal law inde- section the common consideration, injunction intervention. to issue exposure, On further cent give defendant, he better view seems to should be that either in one week emphasize desire, apply opportunity is sufficient. Cameron does stay. the elements of bad faith Dombrow- Circuit Justice 768 Giannini, (cf. performances 69 matic Re APPENDIX 655, Cal.Rptr. 563, 570-577, Cal.2d 72 of Court Supreme Judicial Opinion of whether, ap 535), and so 446 P.2d plied, C., al et Inc. Massachusetts, I. P. B. may unconstitu statutes be these Attorney of Suffolk District v. Alegata tionally vague. v. Common See 9, County, April 1970 293, wealth, 287, N.E.2d 231 353 Mass. given, but, Injunctive 201. relief will reported case, and reserved In this by analogy principle that to the he justice, single in by a decision without injunc equity equity, do seeks must against prose sought junctive relief is court, tion, county framed in the to be of members producers and cution upon forth conditioned excision shall be “Hair,” called performance cast of a specified lewd features so with of the 272, 16 and §§ G.L. c. for violation (a) each of the cast to have member prosecu sought Declaration 32. to a extent all clothed reasonable constitu various contravene times, (b) completely and to eliminate partici justice provisions. Each tional all or simulation of sexual intercourse performance at pating has seen Nothing opinion deviation. in this shows parties. One scene request any injunction preclude prosecution is to facing nude cast members flag, misuse of the national a performer male nude One audience. argued not matter us. stage. incidental There is on is bathed jury conclude could a action which Judge (dissent- GARRITY, District clowning sex to simulate intended ing). ap This or deviation. ual intercourse majority. I agree the con than pears to less realistic with the I do not Bercowitz, People trend to- believe, recent v. duct discussed in in view (Cr.Ct.N.Y.). performance of sexual and 308 N.Y.S.2d ward may respects stage, offensive arise will be that an occasion in various acts constitutes, persons. prosecution how Mass.G.L. It under tо some in which

ever, degree, 16,1 may and an form obscure be warranted some c. § conflicting brought protest protected First apart from the Amendments Amendment. Viewed and Fourteenth First above, specific it is States. incidents mentioned of the United the Constitution lascivious, whatever other not lewd and Boston Whether objections inci presents be to it. The there such an occasion is “Hair” separable dents, already controlling specific mentioned are Under issue. to, from, wholly unnecessary granted three-judge jurisdiction what dis- disorganized per noisy, the court ever theme this court U.S.C. trict § Discretionary eq constitutionality formance have. on the has ruled jurisdiction, infrequently produc- applied uitable exer to theatrical statute cised, generally enforcement of exists restrain on the merits or tions an (accordingly unconstitutional criminal statute “Hair” at the demerits of application hearing plaintiffs’ valid unconstitutional in- the court declined show). my opin- statute. See Slome Chief Police v. vitation to see the Fitchburg, 187, 188, proscribing open N.E. ion, 304 Mass. the statute 133; Kenyon Chicopee, gross susceptible 2d Mass. con- v. to a lewdness is 528, 531, 535, 70 N.E.2d 241. Reason the Massachusetts courts struction able doubts are asserted whether the would save it from overbroadness application applied theatre, statutes cited have to dra- v. Karalexis t purpose by discussing body balcony 1. No will be served Ids nude in a Coven separately opinion people. in this the common law a number Le Garden before exposure, Roy Sidley, Eng.Reprint crime of indecent which dates Sid. controlling back at least to 1663 when a defendant considerations showing was indicted at common lav/ for the same. seem to be assemblage group F.Supp. call for a D.Mass., Byrne, special procedures, ‍‌​‌‌​‌​‌‌‌​‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‍set of and the dif- therefore ab- the court should response ruling ference between collective constitution- on its stain Jeannette, response an individual is not ality. Douglas degree, of kind. 157, 162-165, one one if aff’d magazine. protection long tre. ticular method of Woman of Pleasure” v. Yellow”, Cir., 1968, be sexual dissenting in United States v. A Motion theatrical L.Ed. mined al of as States, 1966, relevant. the First Joseph transcend the bounds of constitutional 87 L.Ed. 343 U.S. Picture Film Entitled “I Am Curious- Cal.App.2d 820, Cal.Rptr. “Because of the nature of this 16 L.Ed.2d 31. It is clear that the opinion Named It cursory given qualified by Ginzburg protection 413, 418, is, per curiam, obscenity Com. 1098, only by application of the three- scenes Burstyn, I shall assume “John L.Ed.2d 1317 to certain 495, 502-503, and Fourteenth As productions are consideration must therefore course, indisputable that live Cf. Landau same and 383 U.S. stated Massachusetts, may Cleland’s Memoirs before a frank test stated S.Ct. a motion Inc. v. scenes expression aspects ordinarily be deter by 404 F.2d (1967).” purposes that the 72 S.Ct. Attorney Lumbard, Wilson, Amendments, Fording, 16 L.Ed.2d protected picture may of the thea in A Book v. United 1966, medium, scope book Specific descrip of this 777, (1966), Gener highly C. 1952, par by J., impact tley, (1957), it cate, in lic nature. Other works of art locked room behind drawn blinds. be formance is people lief and unreal. executants— ence, this double scoundrels A theatrical it is considered be exhibitor, “These two collective characteristics But the essence of a dramatic provide for us. heightened reality any other, and body “We are innocent ^[******] private. enjoyed passed the theatre —thе audience The who are actresses, staying at the upon and hence described strange who are Art of the be It disbelief; everything looking daughters from hand a from the not is this produce character; Failing read poem production has a also farmers’ beautiful light only by individuals, audience. J. it known I call dramatic it socially unacceptable, subversive at and that we know be or a follows: experience, unlike and shadow Theatre exists they a public.” a big city. Every- on the Dramatist, 5, 10 to publisher displayed third: they are seen painting may hand. belong us listening rich or B. as actors Midland, and its experi- special indeli- Pries Or, glossy of be- or an in a to a pub- may per- but to if unique Live theatre is ****** medium of expression, quite different from litera- “Anybody pure thought in search of ture, painting, music, movies and televi- will be well advised not to sit in a building by sion. Rice, As stated Elmer The Na- people, with a thousand other Living ture of Theatre, Theatre in The large company actors, or- and an 27-28 chestra; quiet better find a corner at “Books, pictures, statutes ad- are home read a few books. Even a solitary dressed to playwright catering reader or view- Marxist for a er; performed music dealing en- Marxist audience is by joyed thought and, indeed, why one or two But individuals. should he — plays they agreement are written be communicated when are in all and he group gathered anything to a numerous in one they cannot tell them did place organization Nobody at one time. know before? senses his usually go goes freely theatre to told what come and to the the rela- enjoy privacy theatre we in the tive semidarkness of think. What experience playhouse. typical I particular kind movie is that theatre experience, patron, perhaps price to which call dramatic influenced by allowing paid our minds he contribute has his ticket and reluctant persons at the on two different levels to disturb function next to and behind him, stay normally time.” will least same progress. end act in proximity and access The theatre’s immediacy Young people ever ex- and un- are seldom and its audience audiences, they from theatre predictability noted cluded have been seeing “X” or rated are movies majority opinion. features Thеse picture productions, motion an association of “R” in some modern enhanced producers good example. producers. At the Boston “Hair” is of which a faint ef- production of “Hair” made audience.2 comes into the the cast times by discourage chil- the attendance During calls at the end of fort curtain encouraged at them. I come to exclude but none all dren the audience average very pa- stage much cast. the to dance with the doubt the onto of the improvised. “Hair” forewarned often There tron of is as The action is willing “Hair”, script the and as in of show the content no indication plaintiffs stage direc- it as assume—the numerous witness which contains point collection of tions, and this was a the cast evidence on will disrobe generalities. phrased facing in the end critical reviews audience at the stand act; scene, probably is of the at in did He aware the which first act, original not of the appear in the end of the first or so-called the show, the in which nude each second act “Cheetah” of the scene nor the of the cast himself male is bathed and fondled member decides for performance and unnatural simulated sex or at each whether herself several or and acts.4 There is reason to believe that many not to disrobe face the audience.3 stage immediacy presentations the customers are drawn music. distinguishes alleged obviously paragraph from As com- the theatre songs pro- plaint, “Two of from the other media convey only which the communication repre- description “the or contemporary duction have clas- become matters,” Book sentation of sexual A sics, Age having Aquarius’ ‘The been Memoirs Named “John Cleland’s key by the as a Peace utilized theme Attorney Woman of Pleasure” v. General public activities, Corps in its relations Massachusetts, supra Com. of song In’ the ‘Let the hav- Sunshine at at 977. ing adopted for the theme been Summerthing City Festival 1970 for patrons captive Theatre form a audi- songs Both are re- of Boston. of these comparable extent ence to an air, pro- peatedly played used as may put over who readers aside a book moviegoers magazine or even to and are on duction numbers on television g., type spontaneously 2. E. an actor would en- clad a tank that actual sex bathing performance.” persons suit climbs over the realism of their hance stops audience and in front of a woman certainly be said The same almost patron, spreading legs sitting his and half song: g., language, e. of much lap. in her Pederasty Cunnilingus “Sodomy Fallatio appears AVhy improvisation The ultimate Sound so do these words Father Nasty? produc- Join to have been be fun authorized Masturbation Can everyone” “Che”, People Bercowitz, holy orgy ers of Kama sutra 1, p. 7, Crim.Ct., N.Y.S.2d Feb. the weather NYC the conversation about 25, 1970, appears stage in which a six direction the word “fuck” permitted perform any the cast “to sex in six lines. times stage they time, act on felt generally attempt por- their rec- dress of current lists best seller various sociological nography philosophi- in Newsweek review ords.” The critical garments. magazine stated, cal Thus Fortune Eyes prison, Men’s is set in a and its large of ad- “Coupled doses with homosexuality scenes and masoch- music, Galt publicity, it is vance presented plea prison ism are as a amalgam pounding McDermot’s reform.” melody, Broadway has rock preac- its wide propelled into ‘Hair’ producers Whether theatrical and ac already nine eeptance. There are charged constitutionally tors can be groups LP’s and ‘Hair’ gross “open and lewdness and lascivious songs that are show recorded behavior” under Mass.G.L. c. § round the world.” broadcast take into account whether the should applicability issue show involved obscene open punishing productions of statutes Memoirs-Ginzhurg is, If it test. then gross moment lewdness is more stage, expression, conduct even if ago years it would have been few than protected by is not the First Four “off-Broad- the current or even before way” teenth Amendments and no suffi I see when in New York season why cient the defendants should reason Merrick, group plays David led charged in addition not be with lewdness producer, an article to write renowned alternatively obscenity. to or This is March, edition of The deny cogent not to that a reason Digest entitled, “Must Smut Reader’s barring proseсu advanced for lewdness part: Stage?” stating in Smother the viz., obscenity, tions even in cases of availability and that the mere ten men the statute “In Oh! Calcutta! “chilling stripped in out some case will a ef women and acted have naked fect”, Note, Chilling Puppy Dog in perversions. The Effect Con sexual And Law, Tails, homosexuals, a stitutional Colum.L.R. 808 about had a (1969), upon vapid story expression freedom of in an ex- line used as persuaded. go together, the But I theatre. am not cuse to have men to bed all, proscribed by giving After the lewdness the brief § audience a view dirty sugges genitals. not mean or does words their curtain When the gestures. exposing up Eyes tive It the means went on Fortune and Men’s genital parts necessary night, opening or on rea the audience was sight sonable Commonwealth War of man defecat- excuse. treated ing. a dell, 1880, Any play by 128 Mass. This scene in was followed wrights desiring convey rapes their ideas boy which one nude another in a by exposure any shower, by means of and then a scene which ac in willing boy listening tors and actresses undress masturbates while completely public place drafty in a boy he loves the sounds easily a theatre whipped. will not be chilled. days when Romans were “Since writer, producer, The actors and set by perform- entertained hired actors designer “off-Broadway” play ing incest, sodomy, rape scenes were, People Bercowitz, in “Che” su the theater has labored to shed the an- pra (308 p. 12), N.Y.S.2d convicted stigma Only immorality. cient violating a statute5 substan lewdness past within the few has that decades tially the same as the Massachusetts now, battle And this! been won. law, having also been convicted violat possibility public ing McKinney’s Law, Consol.Laws, “Alert to the Penal outrage, producers dirty 235.05, obscenity shows c. statute. § Law, tentionally private exposes New York Penal Public 245.00 “§ inti- person guilty public parts body Lewdness. A is mate of his in a lewd manner public when, place, lewdness in a he in- or commits other lewd act.” helpful They in a never into their charac- vanish York statutes The New location ters. Like the God respect their Christian who is in broader three-in-one, every actor two-in-one. statutes is among criminal numerous gives It distinc- is double existence that by indicates enacted prо- authenticity him his His public interests as actor. tion between obscenity very role in our theatre is not differ- laws. two tected primitive ent from that of his coun- appears Article 235 entitled in section terpart, is once dancer and “Obscenity Offenses” Related god. Against sexuality permit- Little overt is M—Offenses part of “Title is onstage lewd- ted because the audience and Morals.” Health Public happens 245 enti- knows what appears Article char- in ness section háppens Against acter also to the actor. Sensibili- One Public tled “Offenses why physical can understand N—Offens- violence “Title which is ties” feigned stage: obliga- Order, is on there are Against Public Sensi- Public es performance. Privacy.” Right This tions to tomorrow’s But bilities and why nudity view, may distinction, my and lovemak- under some in contempo- ing? simply circumstance, prior It cannot that hu- given undependa- obscenity, response man sexual is an finding warrant raneous Greeks, ble mechanism. The who ac- public vindication. distinct cepted sexuality both public re particular interest life, public maintained a strict deco- stricting dis theatre lewdness tragedies. rum in their It is that obscenity controlling tinguished stage performance always on the has not other art forms literature and verge tumbling from art back into judicial opinions. analyzed It been life.” Pornography Schechner, R. has been Assuming that a theatre Expression, in Public Do the New obscene, problem obviously main, Essays Theatre, complex specifically more and is treated stating (1969) part: majority opinion. Is an isolated bring our “In culture we (i. e., “separable wholly from and unnec- family or thea with us to the movies essary to the theme themes of the say dramas, tre, and our wildest even performance”) lewd act in an otherwise Balcony, essentially are Lear and The reassuring play necessarily protected non-obscene passive produce and as we expression under First and Four- go them. Were we to the movies or teenth It is Amendments? assumed depositing theatre ourselves without production as a whole not is protective envelope in fami “utterly redeeming social value” ly, rapidly our drama become or that “the dominant theme of the ma- orgiastic. and A like sexualized appeals terial taken as a wholе” to some Mamt/Sade, it was Peter Weiss’ as prurient other than interest interest in by Royal Shakespeare produced majority question sex. The answers moving Company, is in this direction. affirmatively. would not. the as- I On But taboos continue in the the scenic sumptions stated, the act would not be film) go letting (less atre because “protected” integral part because an dangerous; perform would be too whole; production “ex- as nor traditionally ance which included has pression” because not communicative. and would soon be actors audience accept ap- view that “We cannot an come, dance, as in a unified tribal one variety parently can limitless of conduct activity. ‘speech’ person be labeled whenever the engaging thereby thing theatre, unique “The the conduct intends about express course, an idea.” is the actors are there. United States v. context, “family” by 6. In this been tlie others who are lias author “a few emo- defined tionally close us.” difficulty One in de- O’Brien, obvious source 1968, 391 U.S. ciding questions raised in case this L.Ed.2d 672. existing standards have object, everything might done But, one dealing in cases and evolved books perform during a theatrical magazines and, extent, to a limited mov- whole and an artistic ance is ies. The fixed of these media of forms qualified judges to overrule expression being ap- their necessitate producers to what is playwrights praised entirety. in their No such ne- integral part production and of a an cessity respect exists with to theatrical I communicative. conduct whether productions, given which are trial runs suggest are no more decisions that such frequently by revised the addition required of courts those than difficult lines, or excision of actions or en- even obscenity existing tests as to change- tire This scenes. feature of the theme”, “community stand “dominant ability separability parts Whether ex value.” ards” “social production may theatrical serve to shield permit isting the excision of standards against censorship. Indeed, it the avail- sexuality added to and overt ability prosecution of criminal for lewd- except purpose production for no ness in the theatre was mentioned question. offend, is another shock by George connectiоn Bernard Film A Motion Picture United States v. Shaw, preface play, to his Curious-Yellow”, supra, “I Am Entitled Shewing-up “The Blanco Posnet” they 199, says it do but 404 F.2d length (1909), inquiry discussed at an how, say applying the short of does not censorship by into a Select Committee three-pronged Memoirs test to the bal Shaw, both Houses Parliament. In ance of Plays Ten Short the noted isolated, presumably nudity is irrelevant playwright commented as follows about given evidence before the committee picture in a motion “The exhibition Sir William Gilbert when asked whether inter- an isolated instance sexual impropriety a law sufficient to restrain nudity, which course or of irrelevant impropriety books would also restrain public equivalent to would indeed plays: display, under the es- be halted could standards, just could sim- tablished say replied: T should William “Sir print.” appeared in if it ilar material very be- wide distinction there is authority precedent what is seen. cited is read and or other tween what No my “Eliza proposition read that stated. one the court for the a novel dressing-gown stripped her au off unaware Other courts seem any existing thority stepped standards tо treat into her under bath” differently harm; from I think if were the isolated conduct stage production. contrary, presented it would be On on the the whole existing stupid shocking.’ applying the All the inconsid- standards the finding eagerly il- on tendency people a this be of seized seems to that a erate any nonprurient re if it were a successful dominant theme as lustration deeming prove cen- attempt a that without a in a as social value pre- inquiry sorship the offen should unable to must into be whole end during appearing any particular naked of the vent from act siveness actresses fact, stage. presentation, if isolated on whether or the As a matter performance. persuaded to do from the an actress could be remainder thing g., Giannini, (and See, Cal.2d it would be about e. In re a persuade bishop’s Cal.Rptr. easy P.2d a wife to Municipal appear Court of in church in the same condi- Dixon v. Francisco, police simply County tion) San would arrest & charge exposure. (Cal. Cal.App.2d 789, Cal.Rptr. her indecent on App.1968). obvious to which this safe- extent guard merely taken was overlooked naked fоrms silhouetted and thoughtlessness plain of the unnatural acts executed view. a measure setting, duration, stage frivolity lighting of the excuses made for the Its on added.) censorship.” (Emphasis circumstances, and other attendant well as consideration claimed ex- indication no Finally, has been there pressive elements, might all combine apply courts will Massachusetts “necessary furnish or reasonable ex- automatically § Mass.G.L. c. my understanding cuse.” is not on blindly every episode of constitutionally ‍‌​‌‌​‌​‌‌‌​‌​​‌‌‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​​​‌​‌​‌​‌‌‌‌‍over-broad standard rescript opinion stage. Boston very when considered terms of the in the Supreme Court range applicability. limited of its As recognized explicitly rel- “Hair” case talking above, only noted we are about segregat- issues constitutional evant possible that wee area First Amend- special incidents consideration ed protection alleged ment which finds its unnecessary wholly “separable expressive exposition outlet on a performance. It is of the theme to” the person’s private parts. theatre must be a state statute well settled consistently court construеd interpreted it. decisions which Utah, 1948, 333 U.S. Musser v. According 397, 92 L.Ed. 562. supra, Wardell, v.’ to Commonwealth does occur unless violation § necessary exposure “without reasonable excuse.”

There is then sound in the Mas- basis anticipating law for sachusetts TUYAGDA ALUMINUM PRODUCTS will construe CORP., Judicial Court § applicability depend 16 so that its will alleged relationship viola- HULL FORD, DOBBS 65TH INFANTRY the theme or of the themes whole Popular INC. and Banco De P.R. integral performance. part If an of the whole, a violation could occur FORD COMPANY, Party MOTOR Third existing whole should be obscene under Defendant. integral part, If not an standards. a vi- Civ. No. 872-69. depend simply upon proof olation Court, United States District the essential elements the offense. D. Puerto Rico. relationship This determination of the May 27, 1970. alleged pro- violation to the whole closely duction would involve a test anal- ogous to first or theme” “dominant three-pronged test ob- scenity existing standards. But if determined this test to be isolated production, from the balance of the inquiry

court’s into the essential ele- proceed

ments of the offense would explore need to and evaluate “contemporary such considerations

community “redeeming standards” social value.” Even as to an isolated al-

leged violation, surely there is room for

distinctions be drawn between scenes

Case Details

Case Name: P. B. I. C., Inc. v. Byrne

Court Name: District Court, D. Massachusetts

Date Published: May 6, 1970

Citation: 313 F. Supp. 757

Docket Number: Civ. A. 70-508-G

Court Abbreviation: D. Mass.