MEMORANDUM OPINION
PER CURIAM.
The plaintiff is the producer of a play called “The Beard”, which at the time this action was commenced was playing in Hollywood, despite the fact that a city permit required by the provisions of § 103.114 of the Los Angeles Municipal Code had been denied. The police undertook to stop the play by making nightly arrests of the plaintiff and the two actors in the play, charging them with violation of the Municipal Code and also California Penal Code, § 647 (a) (making lewd and dissolute conduct a misdemean- or) and § 311.6 (making the speaking of obscene words in a public place a misdemeanor).
Plaintiff brings this action seeking a judgment declaring that these provisions of the Municipal Code and the California Penal Code are unconstitutional in that they violate the guarantees of the First and Fourteenth Amendments, and also seeking an injunction against their enforcement. Plaintiff made an application for a preliminary injunction and for an empaneling of a statutory three judge court. Plaintiff's request for a temporary restraining order during the empaneling of the three judge court was denied, but, the district court did subsequently restrain the police from making further arrests and from demanding further bail pending a determination of plaintiff’s application for a preliminary injunction by this panel. A three judge court was then constituted before which plaintiff’s motion for preliminary injunction was heard, this being the only matter before us.
It now appears that, subsequent to the filing of this action, a state court has declared the provisions of the Los Angeles Municipal Code invalid as applied to the plaintiff here and that all efforts on the part of the defendants to enforce the ordinance as against the plaintiff have been abandoned. We therefore consider the question of the constitutionality of the city ordinance moot, and we do not here consider it. [576] This leaves for our determination the validity of §§ 647(a) and 311.6 of the California Penal Code in the light of the constitutional guarantees set forth in the First and Fourteenth Amendments.
Section 647(a) makes lewd and dissolute conduct in a public place a misdemeanor.1 Defendants contend that this section applies to lewd conduct whether it occurs on the street or upon the stage in the theater and that since the conduct alleged to be lewd did occur upon the stage in this instance, an arrest under this section was proper. The plaintiff contends that, so construed, this section is overbroad, vague and ambiguous, without ascertainable standards of guilt and abridges the exercise of freedom of speech. We abstain from deciding this issue.
We believe that, under the circumstances existing here, this court should not exercise its jurisdiction to enjoin the enforcement of a state statute which has not been authoritatively construed by the state court, and which in all probability, when so construed, will be deemed inapplicable to the conduct here involved thereby mooting the constitutional issues. The relevant principles of abstention are set forth in Harrison v. N.A.A.C.P., 360 U.S. 167 at 176-177, 79 S.Ct. 1025, at 1030, 3 L.Ed.2d 1152.
This now well-established procedure [of abstention] is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interferenee a “scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,” Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447, as their “contribution * * * in furthering the harmonious relation between state and federal authority * * *.” Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See, e. g., Railroad Commission of Texas v. Pullman Co., supra; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Government & Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894. This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares [577] the federal courts of unnecessary constitutional adjudication. See City of Chicago v. Fielderest Dairies, Inc., supra, at pages 172-173, 62 S.Ct. at page 988.
Justice Harlan’s opinion stresses that it was not entirely clear how the Virginia courts would, in fact interpret the statutes. They might have been construed narrowly to avoid constitutional difficulties on their face, or in such manner as to be entirely inapplicable to the N.A.A.C.P. Harrison v. N.A.A.C.P., supra, at 177-178, 79 S.Ct., at 1030-1031.
Section 647(a) can, and most likely will, be construed by the California courts in such a manner as to be free from constitutional objections. Abstention in such a case is proper. Zwickler v. Koota, 389 U.S. 241 at 249, 88 S.Ct. 391, 19 L.Ed.2d 444. See also Baggett v. Bullitt, 377 U.S. 360 at 376, n. 11, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) quoting United States v. Livingston, 179 F. Supp. 9 (D.C.E.D.S.C.) aff’d 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719. Harman v. Forssenius, 380 U.S. 528 at 535, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION
PER CURIAM.
The plaintiff is the producer of a play called “The Beard”, which at the time this action was commenced was playing in Hollywood, despite the fact that a city permit required by the provisions of § 103.114 of the Los Angeles Municipal Code had been denied. The police undertook to stop the play by making nightly arrests of the plaintiff and the two actors in the play, charging them with violation of the Municipal Code and also California Penal Code, § 647 (a) (making lewd and dissolute conduct a misdemean- or) and § 311.6 (making the speaking of obscene words in a public place a misdemeanor).
Plaintiff brings this action seeking a judgment declaring that these provisions of the Municipal Code and the California Penal Code are unconstitutional in that they violate the guarantees of the First and Fourteenth Amendments, and also seeking an injunction against their enforcement. Plaintiff made an application for a preliminary injunction and for an empaneling of a statutory three judge court. Plaintiff's request for a temporary restraining order during the empaneling of the three judge court was denied, but, the district court did subsequently restrain the police from making further arrests and from demanding further bail pending a determination of plaintiff’s application for a preliminary injunction by this panel. A three judge court was then constituted before which plaintiff’s motion for preliminary injunction was heard, this being the only matter before us.
It now appears that, subsequent to the filing of this action, a state court has declared the provisions of the Los Angeles Municipal Code invalid as applied to the plaintiff here and that all efforts on the part of the defendants to enforce the ordinance as against the plaintiff have been abandoned. We therefore consider the question of the constitutionality of the city ordinance moot, and we do not here consider it. [576] This leaves for our determination the validity of §§ 647(a) and 311.6 of the California Penal Code in the light of the constitutional guarantees set forth in the First and Fourteenth Amendments.
Section 647(a) makes lewd and dissolute conduct in a public place a misdemeanor.1 Defendants contend that this section applies to lewd conduct whether it occurs on the street or upon the stage in the theater and that since the conduct alleged to be lewd did occur upon the stage in this instance, an arrest under this section was proper. The plaintiff contends that, so construed, this section is overbroad, vague and ambiguous, without ascertainable standards of guilt and abridges the exercise of freedom of speech. We abstain from deciding this issue.
We believe that, under the circumstances existing here, this court should not exercise its jurisdiction to enjoin the enforcement of a state statute which has not been authoritatively construed by the state court, and which in all probability, when so construed, will be deemed inapplicable to the conduct here involved thereby mooting the constitutional issues. The relevant principles of abstention are set forth in Harrison v. N.A.A.C.P., 360 U.S. 167 at 176-177, 79 S.Ct. 1025, at 1030, 3 L.Ed.2d 1152.
This now well-established procedure [of abstention] is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interferenee a “scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,” Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447, as their “contribution * * * in furthering the harmonious relation between state and federal authority * * *.” Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See, e. g., Railroad Commission of Texas v. Pullman Co., supra; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Government & Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894. This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares [577] the federal courts of unnecessary constitutional adjudication. See City of Chicago v. Fielderest Dairies, Inc., supra, at pages 172-173, 62 S.Ct. at page 988.
Justice Harlan’s opinion stresses that it was not entirely clear how the Virginia courts would, in fact interpret the statutes. They might have been construed narrowly to avoid constitutional difficulties on their face, or in such manner as to be entirely inapplicable to the N.A.A.C.P. Harrison v. N.A.A.C.P., supra, at 177-178, 79 S.Ct., at 1030-1031.
Section 647(a) can, and most likely will, be construed by the California courts in such a manner as to be free from constitutional objections. Abstention in such a case is proper. Zwickler v. Koota, 389 U.S. 241 at 249, 88 S.Ct. 391, 19 L.Ed.2d 444. See also Baggett v. Bullitt, 377 U.S. 360 at 376, n. 11, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) quoting United States v. Livingston, 179 F. Supp. 9 (D.C.E.D.S.C.) aff’d 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719. Harman v. Forssenius, 380 U.S. 528 at 535, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965).
We are aware of the limitations upon the abstention doctrine invoked by Baggett v. Bullitt, supra, and Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. Justice Brennan’s majority opinion in Dombrowski, supra, suggests that abstention is improper where a statute regulating speech is not unreasonably claimed to be void on its face and where, although state construction of the statute might modify the constitutional question or make its resolution unnecessary, such construction can be definitely established only by a series of state decisions. He suggests further, however, that abstention is proper if a “readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution * * Dombrowski, supra, at 491, 85 S.Ct., at 1123.
In the case before us there is a strong likelihood that a single prosecution, one already commenced and now ready for trial, the very prosecution which we are being asked to enjoin, will result not only in § 647(a) being held inapplicable to plaintiffs’ conduct, but also in an across the board rule being announced that § 647(a) is not applicable to plays or other conduct where such conduct is employed as a media of expression and therefore entitled to the First Amendment protections.
The reasons for the limitations upon the doctrine of abstention suggested in Dombrowski, supra, and Baggett, supra, relate essentially to the “chilling effect” upon the exercise of First Amendment rights, which resulted from the special circumstance present in each case.
Dombrowski has been construed by the Court in Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182, April 22, 1968 (in which the court held the doctrine of abstention applicable)
* * * to be a case presenting a situation of the “impropriety of [state officials] invoking the statute in bad faith to impose continuing harassment in order to discourage appellants’ activities * * 380 U.S., at 490, 85 S.Ct., at 1123. In contrast, the District Court expressly found in this case “that there was no harassment, intimidation, or expression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike.” * * *
Any chilling effect on the picketing as a form of protest and expression that flows from good-faith enforcement of this valid statute would not, of course, constitute that enforcement an impermissible invasion of protected freedoms. * * *
As in Cameron we find that there is presently no harassment, intimidation or oppression of this complainant, nor is any likely or contemplated in his efforts to exercise his constitutional rights. He has been arrested and he is being prose[578] cuted in good faith for his deliberate violation of the statute. This is, therefore, not a case in which a federal court of equity by withdrawing the determination of guilt from state courts could rightly afford petitioner any protection which he could not secure by prompt trial and appeal pursued to the Supreme Court of the United States. Douglas v. City of Jeannette, 319 U.S. 157 at 164, 63 S.Ct. 877, 87 L.Ed. 1324; Cameron v. Johnson, supra.
We have abstained from considering plaintiff’s constitutional objections to § 647(a) because the very emergence of such a question depends on interpretation of the statute, which we think should be properly left to the state courts.
However, plaintiff’s challenge of § 311.6 comes under a different light. Here the alleged offenses for which the plaintiff is being prosecuted clearly come within the ambit of the statute, accordingly, we think plaintiff is entitled to a ruling upon the federal questions raised by the challenge.
Section 311.6, California Penal Code, makes it a misdemeanor to sing or speak any obscene song or other words in any public place.2
Plaintiff first contends that the theater, and particularly where the audience pays to be admitted, is not a public place within the meaning of the statute. It does not appear that courts of California have had an occasion to place an interpretation upon this statute. It seems fair to assume, however, that the statute should and will be construed to apply to theater performances. A former version of section 311 clearly applied to the theater for it made specific reference to the manner in which the section was to apply to actors and actresses in performances, acts, plays, dramas, exhibitions or entertainment. In the overall revision of the section, specific reference to actors and actresses has been omitted, but there has been no indication that the Legislature intended to alter, in this regard, the scope of the statute. Moreover, the very nature of the statute by its reference to songs and ballads and its adoption of the Supreme Court’s standard for obscenity suggests a desire to reach the theater, cabaret, and other entertainment spots. We conclude, therefore, that section 311.6, California Penal Code, covers theater performances.
Petitioner next contends that section 311.6 of California Penal Code is unconstitutionally vague and overbroad and is accordingly invalid on its face. Its definition of obscenity, however, is precisely the same as the test established in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), which was at the time the statute was drafted the most recent Supreme Court pronouncement on the question. Essentially, this still remains the test, although the Supreme Court has subsequently spoken to clarify and elaborate on what it meant in Roth v. United States, supra [see A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966)]. It seems clear that [579] the California Legislature intended the word “obscene” in section 311.6 to take on the meaning accorded to it by the Consitution, as interpreted by the United States Supreme Court, and so construed the statute cannot be deemed vague, nor can it be said to be overbroad or to threaten constitutionally protected conduct because of uncertainty.
We find, therefore, that section 311.6 of the California Penal Code is constitutionally valid on its face.
We now come to the question of whether this court, in the exercise of its equity powers, should enjoin the state from prosecuting the plaintiff under this section upon the facts now before us.
Having determined that this section is constitutional on its face, we find no “special circumstances” here which require or justify this court in going further. The same reasons which we have given for abstaining in our consideration of § 647(a) would be equally applicable here.
We find, therefore, that the plaintiff has failed to show such irreparable injury as will entitle him to an injunction enjoining his prosecution under this section of the California Penal Code.
We, therefore, conclude that plaintiff’s application for preliminary injunction against further prosecution under both §§ 647(a) and 311.6 of the California Penal Code is denied.
Defense counsel will prepare the appropriate order.
Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
(b) Who solicits or who engages in any act of prostitution. As used in this subdivision, “prostitution” includes any lewd act between persons of the same sex for money or other consideration.
(c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.
(e) Who loiters or wanders upon the streets or from place to place without apparent reason or business * * *.
As used in this chapter:
(a) “Obscene” means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
(b) “Matter” means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
§ 311.6 Singing or speaking obscene song, ballad, etc., in public place
Every person who knowingly sings or speaks any obscene song, ballad, or other words, in any public place is guilty of a misdemeanor.