*1 B., (10th Cir.1970), R. 429 F.2d 697 and more Circuit,

recently Fourth Air Transit N.L.R.B., (4th

v. Cir.1982), 679 F.2d 1101 sought impose

the Board the same infes

tation on Eleventh Circuit. The effort

is to no avail. the daily lessees are

independent and employees contractors Company finding and contrary

the Board is unsupported by substantial Deaton, Inc., v.

evidence. N.L.R.B.

F.2d support at 1223. The record does not views,” fairly conflicting

“two N.L.R.B. v. Co.,

United Insurance daily

S.Ct. at but one: the lessees

are independent contractors. A fortiori the lessees,

annual over whom Company

concededly exercises even less control and

who a greater have investment entre-

preneurial interest in taxicabs than the

daily independent lessees also are contrac- tors.4 Accordingly, the enforcement of the Lynne, sitting desig- order of the Board is DENIED. nation, dissented opinion. and filed INTERNATIONAL, LTD., PENTHOUSE

Plaintiff-Appellee,

v. McAULIFFE,

Hinson Individually and as County

Solicitor General for the of Ful

ton, State Defendant-Appel

lant.

No. 81-7426.

United States Court of Appeals,

Eleventh Circuit.

April 1983.

Opinion on Granting of En Rehearing

Banc June 1983. therefore, Having unnecessary supervisors reached this result it is would not properly bargaining reach us to issue annual be included in unit. 29 because, supervisors independent 152(3). lessees are U.S.C. § contractors, qualify employees do not *2 Miller,

Grutman, Norman & Schafrann Grutman, City, New York Gambrell & Roy Paul, Atlanta, Ga., L. for Mobley, James plaintiff-appellee. HENDERSON,

Before TJOFLAT *, Judges, and LYNNE Circuit Judge.

TJOFLAT, Judge: Circuit enjoin Penthouse this suit to brought County, General of Fulton Geor- Solicitor prosecuting from gia, Hinson threatening prosecute under the statute, Ga.Code 16-12-80 § (1980), any person who exhibited the movie rights to which Penthouse sought a declaration owns.1 within the is not obscene meaning of that consti- tutionally applied.2 After a trial before the advisory jury, district court and an court declared not obscene under state or federal law. The court denied prayer permanent injunc- Penthouse’s for a declaratory tion it assumed that a judgment practical would have the same injunction restraining effect as an prose- cution ap- or threats thereof. McAuliffe peals entry from the district court’s of de- of Penthouse. claratory relief favor We affirm the district court’s denial of Weaver, Atlanta, Ga., George for injunction, defend- our dif- although ant-appellant. fers from of the district court.3 * Seybourn Lynne, pontificating Honorable H. U.S. District risk of obiter dictum. We believe Judge Alabama, however, necessary, for the Northern District of our for two discussion is sitting by designation. First, reasons. our discussion of the district grant declaratory court’s relief would not be predicated 1. Jurisdiction was on 28 U.S.C. complete of its denial of without a discussion 1343(3) (1976 1980), Supp. through § IV & injunctive Although prayers relief. the two for implemented. which 42 U.S.C. § closely separate, relief are related. typical complaint, the one Penthouse 2. Penthouse makes attack on no the facial va- brings, prayers. both Neither would contain Indeed, lidity Georgia obscenity of the statute. vacuum; profitable should be considered in a such an attack would be frivolous because that comparison results from a discussion of both. explicitly incorporates the constitution- Second, injunctive re- the district court denied al standards in Miller v. enunciated solely declaratory thought lief because it would be sufficient. We now reverse the dis- Ga.Code 16-12-80 § declaratory grant trict court’s relief. Our agreeing district court reasons for with the recognize cross-ap- 3. We that Penthouse never granted injunctive pealed it should not have relief are the district court’s denial of Therefore, we discuss such denial at the The reverse district court’s focus Penthouse’s suit for an on MeAuliffe’s conduct. prayer house’s relief and McAuliffe threatened to enforce a valid remand claim because court erred criminal statute behavior that falls proceeding to a determination the ambit in the sense vel non prosecutor a reasonable could have be *3 complaint The essence of is Penthouse’s probable lieved there was cause that those infringing that McAuliffe is on Penthouse’s who involved in the exhibition of rights by threatening first amendment “Caligula” would violate the Georgia ob prosecute persons in involved statute scenity constitutionally applied. as “Caligula.”4 of that alleges Prosecutorial threats in such circumstances cannot obtain an in County exhibitor Fulton give to no injunct rise cause of action for an prosecu- because McAuliffe’s threats of ion.6 To sustain cause of action for an remedy infringement, tion.5 To injunction, Penthouse would have to show house seeks two remedies: an some sort of “bad-faith” conduct on McAu thereof, against prosecution or threats and part. subjective liffe’s We do not mean “Caligula” declaration that is not obscene. conduct; rather, bad-faith if Penthouse analysis Careful reveals that these two rem- probable could show that no cause reason separate edies are fact based on causes of ably could have existed to believe that those action. who would be involved in the exhibition of Record, 1, complaint so different from that of lower court that vol. at 8-9. Penthouse’s compelled alleges plaintiffs we believe we to státe them. that the in the Southern lawsuit, including District of New York McAu- complaint 4. Penthouse’s describes the threats liffe, sought compel the defendants therein as follows: type prevent to initiate some action to “Caligula” Defendant McAuliffe’s Conduct exhibition distribution of in the 16. United States. Id. at 9. publicly Defendant McAuliffe has an- 5. Caligula We have no reason to nounced that he the district considers to be ob- by findings commencing scene court’s a lawsuit in United McAuliffe has threatened prosecute States District Court for the Southern Dis- and that Penthouse cannot obtain style: County. trict Morality Media, Inc., New York in the name and an exhibitor in Fulton individually; In and Hill, S.J., Morton A. for himself and all others Indeed, has, dicta, Supreme 6. Court ad- similiarly situated; and McAu- [sic] Hinson similar, identical, if dressed not situation. liffe, capacity in his official as Solicitor Gen- Books, Sullivan, Bantam Inc. v. County, Georgia, eral of Fulton himself and holding L.Ed.2d After similarly all others situated v. One Mo- [sic] creating censorship an act commission un- res; tion Picture Film Entitled constitutional, the Court stated: Korman, capacity Edward R. in his official as private suggest do not mean to [W]e Attorney United States for the Dis- Eastern consultation between law enforcement offi- York; Benjamin Civiletti, trict New R. prior cers distributors to the institution capacity Attorney in his official as General of judicial proceeding of a can never be consti- States, the United Civil Action No. 80-0640 tutionally permissible. do not We (hereinafter the “Southern New law enforcement officers must renounce all Lawsuit”). York Defendant al- persons suspected informal contacts with violating legedly capacity in his as Solicitor General prohibiting obscenity. valid laws County, Georgia, part Fulton and as genuinely Where such consultation is under- Lawsuit, Southern District of New York purpose aiding taken the distribu- caused to be issued Clerk said comply pros- tor to with such laws and avoid court, Caligula. for warrant the seizure of them, ecution under it need not retard the full enjoyment of First Amendment freedoms. In the Southern District New York Law- Thus, Id. at 83 S.Ct. at 640. Su- suit initiated Defendant McAuliffe and preme Court has least intimated that there others, alleged Defendant McAuliffe under may problem arising be no constitutional from obscene; Caligula oath that and Defendant obscenity threats enforcement of a valid alleged Caligula McAuliffe that if is exhibited statute conduct that falls County, in Fulton Defendant McAu- reach of the statute. public liffe will commit funds and resources prosecutions Georgia to institute under law. under the first amendment is not stated. “Caligula” violating Georgia Therefore, the district court’s constitutionally ap- we affirm prayer plied, clearly is so not denial of Penthouse’s obscene, objective requisite bad faith

would be shown. claim a de Penthouse’s second seeks claratory judgment is not base this on several Georgia premises. Our initial and most basic obscene under the is that We hold that premise constitutionally applied. under the first Miller v. amendment. See to this relief if it Penthouse is entitled can is not obscene as prove Thus, states a matter constitutional of federal are free to enact statutes present, factual issues are Penthouse’s making the exhibition of obscene matter claim must be denied because the claim *4 (1980). criminal. See Ga.Code 16-12-80 § nothing request more than a that would be premise second is that states may Our en prospec a federal court determine whether force their valid criminal statutes within tive, illegal illegal conduct is in fact possibly constitutional They may charge limits. under a valid state criminal statute. To officials, public certain allow such a claim would be to countenance with the responsibility enforcing such bypass jus the of the entire state criminal premise laws. Our third is that it is funda tice so a federal court could deter system mental that persons may some innocent innocence,” “guilt mine the under a valid statutes, charged violating with criminal proposes state criminal of one who misconduct, and that absent prosecutorial “Caligula.” comity to exhibit Notions of no claim constitutional exists to relieve the preclude recogniz and federalism us from burden on those innocent persons of defend action, ing especially such a cause of in an ing prosecutions. valid criminal We believe community area in which local standards the validity premises of these three is be so crucial. Miller v. 413 See are yond question. We believe also that these 2607, 2618-20, S.Ct. premises inescapably lead to the conclusion contrast, (1973). In if Pent that law enforcement officials must be al prove can that is not ob house lowed the good discretion in faith to do all scene as a matter of federal constitutional that is reasonably necessary to their func law, comity notions of and federalism would laws, enforcing tion of valid the not interfere with a federal court’s first contemplates amendment no other re relief, declaratory granting In the sult. invading federal court would not be factfinder; rather, province of the state We hold that McAuliffe was well a determining would be federal within his in threatening pros discretion to a matter constitutional law as persons ecute showing associated with the Furthermore, Having prove viewed if Penthouse cannot it is clear to us that a prosecutor reasonable is not obscene as a matter law, could have probable believed there was its claim must fail because it would cause prove present controversy. that those who would be involved in not a case or the exhibition of in allegedly protected Fulton Coun The conduct would be ty, Georgia, violating prospective exhibition of a movie under However, obscenity statute ad- constitutionally ap hypothetical conditions. law, plied. Regardless of the vel non the claim as a matter of dressing movie, problem requisite it cannot be contended that no case or contro- clearly complaint the movie is so would exist because the versy obscene acting involving McAuliffe was in “bad faith” in be that the facts the exhi- film, threatening prosecute. e.g., Without such a bition of the where and when shown, showing, injunction we hold a claim for an movie is are irrelevant. The com- regardless of the plaint would be that fac- would have serious shown, artistic, tual context in which movie is literary, political, or scientific val is not obscene as a matter of law. 16-12-80(b) movie ue. Ga.Code See § Thus, nothing prevent a federal questions there can be as a Only if these resolved such a recognizing court from cause ac- matter of federal constitutional law7 does tion. this case dis parallel Steffel. attempt trict court must not to resolve analysis the above is consist- We believe questions they ap these because are more supported by ent a case somewhat and be left to state factfinders propriately one, analagous Thompson, to this Steffel v. circums hypothetical cause involve tances.8 Supreme In Court held Steffel that a claim valid was part; REVERSED AFFIRMED complaint alleged stated when the threats part and REMANDED. prosecution facially under valid crimi- trespass argu- nal conduct dissenting: the first ably LYNNE, under amendment. claim was cognizable stated affirm- In the discussion and my opinion federal court could determine as matter of an district court’s denial ance of the of law whether such threats violated the inappropriate. plaintiffs rights. constitutional No factual cross-ap- ruling by did not contest resolution; pure question issues needed superficial parallelism peal. The presented. ques- law Because was such declaratory re- injunctive and remedies of presented, prohibitive problems tion no was justify consideration lief would not seem to or controversy federalism or case arose. to the former applicable of standards *5 us, the would been a different the before only Steffel have much illuminate issue been the disputed plain- case had it whether of the latter. “knowing” entry tiffs make upon would a I opinion believe the court’s is contrary to within the meaning the defendant’s land of precise holding the of Steffel: the of trespass state statute. Problems fed- controversy that, eralism and case or would have regardless We therefore hold problems then The arose in appro arisen. same whether relief may be priate, this when case the district court determined federal is not the vel The precluded prosecution non when no state is determine following hypo- court to the pending plaintiff had and a federal demon Georgia thetical factual issues under the genuine strates a threat enforcement statute: whether the future disputed of a state criminal “Caligula” would showing predominantly whether an attack made on consti is the appeal prurient the the tutionality to interest of local on or as its face community; 452, 475, the applied. whether 415 U.S. 94 S.Ct. community; offensive to that 39 patently questions 7. Because these refusing must be resolved as abstention. are not to intervene law, jury a matter of protect has no rights; refusing only role these to federal we are determinations. questions. pro- to decide law state We see no deciding “Caligula” pro- hibition on whether is 8. We hold the district court cannot tected as a matter of federal constitutional law question “Caligu- decide the deciding any questions. without law state The la” as a matter of state law. We remand the recognize separate dissent also fails to the na- question case for the court to decide the as a questions. ture of the state and federal For law, just matter of federal constitutional as a example, Georgia obscenity the statute must appellate federal court would if it was review- give protection at least as much to ing jury a state determination. See Jenkins v. amendment, first does the but the statute 153, 161, 2750, 94 S.Ct. may greater protection extend with consistent (“We the film Furthermore, may vary federal state law law, could as a matter of constitutional it, i.e., depending applies on who federal depict patently found to sexual conduct in a judge jury. or a state The should be free state way, offensive is therefore out- interpret long its so own law as that inter- protection side the of the First and Fourteenth pretation is consistent federal constitu- obscene.”). Thus, Amendments it is tional law. holding the dissent our mischaracterizes as one Penthouse demon- in his applied It these standards judge is conceded trial enforcement of threat of genuine findings. strated a own fact a dis- Clearly there is statute. Georgia the agree implica- with the Finally, I cannot may be as to whether pute opinion that the district tion of the Court’s believes “Caligula.” McAuliffe applied question powerless to resolve court was obscene; does not. is is under the Caligula obscene controversy there is a case or Thus the ques- in order to reach Georgia statute Article III of the Constitu- meaning by the protected whether it is tion as to Judgment Declaratory the Federal tion and Amendment; appro- that it is “more First Inc. v. Act, Septum, 28 U.S.C. Sec. left to state factfinders.” priately Cir.1980). Keller, (5th 614 F.2d 456 that under squarely Inc. holds Septum, is of this case abstention the circumstances the com- the averments of Synthesizing factfind- Presumably state order, inappropriate. pre-trial the consolidated plaint, proceed- ers be confined to a criminal would 1981 order May and the transcript, trial approach of this is demon- ing. fallacy The court, apparent it is at once of Steffel: strated the claim asserted gravamen of by the is house is that prosecution pro- state pending [W]hile vides the federal applied States First Amendment with a concrete plaintiff Amendment. Con- through the Fourteenth vindicate his constitutional opportunity to protected. material is not cededly obscene the federal rights, part a refusal on the contermi- three-prong Miller established prose- to intervene when no state courts non obscenity vel nous test to determine may place hapless pending cution in its statute. Georgia incorporated which Scylla of intention- plaintiff between Charybdis and the ally flouting state law contem- average person, applying “the to be con- foregoing what he believes community standards porary [not] activity in order to stitutionally protected whole, [“Caligula”], taken as find that in a criminal becoming avoid enmeshed interest,” the First prurient to the appeals proceeding. applica- insulates it from the Amendment at 1217. to the Appeal statute. tion of of fact. interest prurient respectfully I dissent. States, v. United Smith 1756, 1763-64, 52 L.Ed.2d *6 FOR REHEARING AND ON PETITION FOR REHEARING PETITION suggest that it It would be anomalous to EN BANC possible adjudicate GODBOLD, Before Chief and RO- is obscene under whether material TJOFLAT, HILL, FAY, VANCE, NEY, resolving at Georgia statute without JOHNSON, HENDERSON, KRAVITCH, is protect- time whether such material same CLARK, HATCHETT, ANDERSON within the Mil- ed the First Amendment Judges. Circuit since out of the ler definition of advisory jury arises. Both the facts the law BY THE COURT: that, applying the court found as fact standards, community Cali- contemporary this in active service member of Court inter- prurient to the gula appeal does not having requested poll application on the est. rehearing majority en banc and judges having in active service voted of the Court’s instruc- A careful review banc, en granting rehearing favor of jury reveals that its definition tions to accord with interest was in prurient IT the case shall be IS ORDERED States, 354 Roth v. United teaching reheard en banc with oral Court argument on date hereafter to be fixed. charged the properly The Court briefing schedule specify The Clerk will proof respect jury that the burden filing for the of en banc briefs. a reasonable proof beyond was Alabama, 424 McKinney v. doubt. 684, 96 J., judg- in the (Brennan, concurring that the ment). It to assume is reasonable