Delta Book Distributors, Inc. v. Cronvich

304 F. Supp. 662

• Court: District Court, E.D. Louisiana
• Decided: September 3, 1969
• Docket: Civ. A. 68-1927, 69-322
• Status: Published

Opinions

BOYLE, District Judge:

These actions arise from the arrest by the defendant law enforcement officers in Jefferson¹ and St. Bernard² Parishes, Louisiana, of the individual plaintiffs and the incidental seizures of quantities of publications claimed to be obscene.

Those plaintiffs, residents of the Parishes of Orleans and Jefferson, are the owners and operators of newsstands in both Parishes. The corporate plaintiff, Delta Book Distributors, Inc., is a New York corporation engaged in the business of distributing books and magazines to newsstands, including those of the individual plaintiffs.

Jurisdiction is asserted and exists under 28 U.S.C. §§ 1331, 1343, 2201 and 2281 and 42 U.S.C. § 1983.

The facts in both cases are substantially parallel. In both, the arrests and seizures were made without warrants and without prior adversary judicial hearing on or determination of the claimed obscene character of the seized materials. In both, publications similar to those seized were purchased by the enforcement officers³ prior to the arrests.

Following their arrests two-count bills of information were filed against the individual plaintiffs in the Delta Book case 4 and against only one of the plaintiffs in the Ledesma case, namely, August M. Ledesma, Jr.,⁵ charging violations of the Louisiana obscenity statute. Additionally, Ledesma was charged fn two bills⁶ with violations of the St. Bernard obscenity ordinance,⁷ which, prior to the hearing herein, had been nolle prosequied.

The charges ⁸ filed against Ledesma in St. Bernard Parish were laid under Louisiana Revised Statutes, Title 14, Section 106, subsections A(2) and A (8).⁹ Those¹⁰ against the Delta Book plaintiffs in Jefferson Parish were brought under the same subsections of the Louisiana statute in addition to subsection A (7).¹¹

Unlike the St. Bernard Parish officers, who seized forty-five publications and a deck of playing cards, while leaving more than three hundred similar publications, the Jefferson Parish officers seized all copies of the alleged offending publications, including multiple copies of some, which could be found on the premises.¹²

In both cases, the Federal constitutional issues raised herein were presented to the respective State Trial Courts in Motions to Quash the bills of information and to Suppress the seized evidence and were decided adversely to the plaintiffs herein.

In view of the result we reach, it is unnecessary in either case to consider whether the seized publications are in fact obscene.¹³

The principal relief prayed for in each case is identical,¹⁴ viz., a declaratory judgment decreeing the Louisiana statute unconstitutional (a) on its face and (b) as applied to the plaintiffs; preliminary and permanent injunctions enjoining the defendants ¹⁵ (a) from prosecuting the plaintiffs under the pending charges, (b) from prosecuting them for violation of the statute in the future and (c) from seizing materials in the future (1) without a prior adversary judicial proceeding and (2) without a warrant; the return of the seized materials and damages.

We have for decision all issues, except the issue of damages which was severed and reserved for the single Judge Court.

The guarantee of freedom of speech embodied in the First Amendment to the United States Constitution does not extend to obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Consequently, obscene utterances and materials, properly defined, may be the subject of Federal and State regulation or suppression. However, since “constitutionally protected expression * * * is often separated from obscenity only by a dim and uncertain line,”¹⁶ any attempt, be it Federal or State, to regulate or suppress allegedly obscene material must be closely scrutinized to the end that protected expression is not abridged in the process. Accordingly, “the Constitution requires a procedure 'designed to focus searchingly on the question of obscenity’ before speech can be regulated or suppressed. Marcus v. Search Warrants, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127,” and “[t]he dissemination of a particular work, which is alleged to be obscene, should be completely undisturbed until an independent determination of obscenity has been made by a judicial officer, including an adversary hearing. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211, 84 S.Ct. 1723, 12 L.Ed.2d 809; Metzger v. Pearey, 7 Cir., 393 F.2d 202, ; United States v. Brown, S.D.N.Y., 274 F.Supp. 561; Cambist Films, Inc. v. Illinois, N.D.Ill., Eastern Div., 292 F.Supp. 185, decided October 21, 1968.”¹⁷

Since prior restraint upon the exercise of First Amendment rights can be exerted through seizure¹⁸ (with or without a warrant) of the allegedly offensive materials, arrest (with or without a warrant) of the alleged offender or through the threat of either or both seizure and arrest, the conclusion is irresistible in logic and in law that none of these may be constitutionally undertaken prior to an adversary judicial determination of obscenity.¹⁹

We are mindful of the fact that even attempts to regulate obscenity incorporating procedures for affording the required adversary hearing would themselves constitute prior restraints.²⁰ For example, it might be argued that the expense of legal representation at such hearings, the apprehension as to whether or not the allegedly obscene materials should continue to be sold pending the outcome of the hearing and soforth would serve to “chill”²¹ First Amendment rights. We can readily conceive, therefore, that much litigation would be spawned by the adoption of adversary hearing procedures. Nonetheless, it is apparent that there must be some permissible prior restraint, be it however subtle, if obscenity is not protected by the First Amendment and State attempts to regulate it are to be enforceable. It is left to those states seeking to regulate obscenity to devise constitutionally acceptable procedures for the enforcement of any such regulations. However, these procedures, among others, may have to incorporate provisions immunizing alleged violators from criminal liability for any activities occurring prior to an adversary judicial determination of the fact of obscenity.

Applying these principles to the cases before us, the arrests, as well as the seizures claimed to be incident thereto, are clearly invalid for lack of a prior adversary determination of the obscenity of the materials upon which the arrests and seizures were based. The fact that in each ease some materials were purchased rather than seized is of no moment in view of the requirement of an adversary determination of obscenity prior to arrest or threat of arrest.²²

We turn now to the specific relief prayed for in each of the suits.

Initially, we are asked to declare the Louisiana Obscenity Statute²³ unconstitutional on its face and as applied. This same relief is sought with respect to the St. Bernard Parish Obscenity Ordinance.²⁴ Since the Louisiana statute is composed of three lettered paragraphs, with Paragraph “A”, defining obscenity, being further subdivided into seven subparts each of which delineates a separate offense, we address ourselves solely to those subsections under which any plaintiff was charged in either of the cases.²⁵ The subsections of Paragraph “A” with which we are concerned are “(2)”, “(3)” and “(7)”.

The plaintiffs contend that the statute is unconstitutional on its face because it defines obscenity too broadly, affords no ascertainable standard of guilt, and lacks the required element of scienter.

We are aware of the United States Supreme Court’s per curiam reversal in Henry v. Louisiana, 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1967), citing only Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), also a per curiam opinion. In view of the fact that the decision of the Louisiana Supreme Court in Henry (reported at 250 La. 682, 198 So.2d 889) not only upheld the constitutionality of La.R.S. 14:106, subsection A(2) and (3) as not being violative of freedom of speech or vague, but, in addition, erroneously ²⁶ construed the term “contemporary community standards” to embody a purely local, rather than national, norm, we cannot conclude from the per curiam opinion that the Supreme Court of the United States passed upon the constitutionality of La.R.S. 14:106.

A study of subsections “(2)” and “(3)” convinces us that neither subsection is unconstitutional on its face. Subsection “(3)” incorporates the standards of obscenity contained in subsection “(2)”. We find that these subsections define obscenity in terms substantially similar to those approved in Roth v. United States, supra, in that expression regulated by the statute is that intended “to primarily appeal to the prurient interest of the average person.” As was the court in Cambist Films, Inc. v. Tribell, supra, we are aware of the language of Mr. Justice Brennan in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) to the effect that material may not be legally adjudged obscene unless it meets each of the following three tests: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” And, we concur in the statement of the Court in Tribell, supra, that “[i]n listing these three elements, Mr. Justice Brennan was not making additional requirements, but was merely explaining the Roth test.” Therefore, we find that subsections (2) and (3) of Paragraph A of La.R.S. 14:106, while not explicitly inclusive of the tripartite test enunciated by Mr. Justice Brennan, do, if judicially interpreted and applied in light thereof, satisfy constitutional requirements.

Plaintiffs’ charge that the statute is vague is without merit in so far as subsection A(2) and (3) are concerned. The definition of obscenity through the aid of adjectives such as “lewd,” “lascivious” and “filthy” and the adjectival phrase “sexually indecent” embodies an ascertainable standard of guilt when these terms are taken to have their commonly accepted meanings. Furthermore, if the term “obscene” is itself not unconstitutionally vague,²⁷ a fortiori, the term “obscenity” explained by the adjectives used in these subsections is not vague.

Finally, ■ plaintiffs’ attack upon the statute for lack of- the required element of “scienter” is without merit. The use of the word “intentional” and the phrase “with the intent” in the statute satisfy the requirements for “scienter” set forth in Smith v. People, supra. Indeed, we concur in the following statement of the Supreme Court of Louisiana in State v. Roufa, 241 La. 474, 129 So.2d 743 (1961): “We conclude that the word ‘Intentional’ and the phrase ‘With intention’ (sic) in the Louisiana Obscenity Statute mean that knowledge is implied where one has criminal intent. It leaps to the mind that knowledge is necessary to intention and that one cannot have intention without knowledge. We find that Paragraph Two of LSA-R.S. 14:106 meets the requirements laid down in the Smith case * * (Citations and footnote reference omitted.)

Subsection “(7)” of Paragraph A is unconstitutional on its face as plaintiffs contend. A simple reading of this subsection reveals that by its terms it is overbroad.²⁸ A literal application thereof would, for example, make it a criminal offense to display, for any purposes, universally accepted anatomical works or recognized works of art or the like anywhere but “in art galleries.” Such a limitation is patently unconstitutional.

We, here, note that the fact that subsection “(7)” of Paragraph A of the statute is unconstitutional, is not fatal to the entire statute in light of the severability clause found in Section 2 of Act 647 of 1968 ²⁹

We find a total lack of evidence to support the contention that La.R.S. 14:106 is unconstitutional as applied to the plaintiffs.³⁰ To the extent that this contention is based upon the lack of the required procedural safeguards prior to seizure or arrest, it has been disposed of by what we have hereinabove held with respect to the necessity of an adversary judicial determination of obscenity.

The plaintiffs in the case arising from St. Bernard Parish were charged under the St. Bernard Obscenity Ordinance as well as under the State statute. Subsequently, but prior to the hearing in this court, the charges under the ordinance were nolle prosequied. However, we are asked to pass on the constitutionality of this ordinance for the reason that plaintiffs fear prosecution thereunder at some future date.³¹ Accordingly, in order to grant complete relief, we have examined the ordinance and find it to be unconstitutional and unenforceable. The ordinance is poorly drafted and in some respects may be unintelligible and, therefore, is mortally infected with the vice of vagueness. Additionally, the ordinance is too broad, in that it seeks to regulate material protected by the First Amendment as interpreted by recent judicial decisions.

Assuming that this ordinance was constitutional or that a constitutional replacement therefor was enacted, local authorities in the enforcement thereof would be bound by the same requirement of an adversary hearing as State authorities are with respect to the enforcement of State statutes.

Plaintiffs seek to enjoin the defendants from proceeding with the prosecutions pending against them, as well as from instituting any new prosecutions and undertaking any further seizures or arrests. We decline to grant any injunctive relief in either of the cases before us.

In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials,³² the prosecutions should be effectively terminated. We have no reason to question that the defendant law officers and prosecuting attorneys of both Parishes will, in good faith, abide by our rulings herein as to pending or future prosecutions or future arrests and seizures. Doing so will make it unnecessary to issue any injunctions with respect to either, whether under the State statute or the St. Bernard Parish ordinance.³³ However, we retain jurisdiction for the purposes of hereafter entering any orders necessary to enforce the views expressed herein.

Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing:

1. That all seized materials be returned, instanter, to those from whom they were seized,

2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs,

3. That the preliminary and permanent injunctions prayed for be denied, and

4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.

BOYLE, District Judge.

For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing:

1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional.

2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper.

APPENDIX A

§ 106. Obscenity

A. Obscenity is the intentional:

(1) Exposure of one’s person in a public place in such manner that any part of a sex organ may be seen by another person, with the intent of arousing sexual desire.

(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.

(3) Possession with the intent to sell, exhibit, give or advertise .any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.

(4) Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indecent dancing, lewd, lascivious or sexually indecent posing, lewd, lascivious or sexually indecent body movement.

(5) Solicitation or attempt to entice any unmarried person under the age of seventeen years to commit any act prohibited by this section.

(6) Requirement by a person, as a condition to a sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to a purchaser or consignee, that such purchaser or consignee receive for resale any other article, book or publication reasonably believed by such purchaser or consignee to contain articles or material of any kind or description which are designed, intended or reasonably calculated to or which do in fact appeal to the prurient interests of the average person in the community, as judged by contemporary community standards, or the denying or threatening to deny any franchise or to impose any penalty, financial or otherwise, by reason of the failure of any person to accept such articles or things or by reason of the return thereof.

(7) Display of nude pictures of a man, woman, boy or girl in any public place, except as works of art exhibited in art galleries.

B. In prosecutions for obscenity, lack of knowledge of age or marital status shall not constitute a defense.

C. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not more than six months, or both.

When a violation of Paragraphs (1), (2), (3), and (4) of Subsection (A) of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than one thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.

Amended by Acts 1958, No. 388, § 1; Acts 1960, No. 199, § 1; Acts 1962, No. 87, § 1; Acts 1968, No. 647, § 1, emerg. eff. July 20, 1968, at 1:30 P.M.

APPENDIX B

Police Jury

ST. BERNARD PARISH

St. Bernard Courthouse Annex

CHALMETTE, LOUISIANA

EXTRACT OF THE OFFICIAL PROCEEDINGS OF THE POLICE JURY OF THE PARISH OF ST. BERNARD, STATE OF LOUISIANA, TAKEN AT THE REGULAR MEETING HELD IN THE POLICE JURY ROOM OF THE COURTHOUSE ANNEX, AT CHAL-METTE, LOUISIANA, ON NOVEMBER 2, 1960, AT ELEVEN O’CLOCK (11:00) A.M.

On motion of Celestine Melerine, secondee by Joseph V. Papania and upon recommendation of the District Attorney of the Parish of St. Bernard, the following Ordinance was adopted:

ORDINANCE #21-60

An Ordinance known as the Ordinance of St. Bernard Parish, relative to prohibiting and defining the offense of obscenity and indecent literature, adding thereto the offense of “attempt”, and prescribing penalties for the violation thereof.

SECTION 1.

Offense of obscenity defined and prohibited.

SECTION 2.

BE IT ORDAINED, by the Police Jury of the Parish of St. Bernard that obscenity is prohibited and is hereby defined as the intentional.

SECTION 3.

BE IT FURTHER ORDAINED, that public personal exposure of the female breast or the sexual organs or fundament of any person of either sex.

SECTION 4.

BE IT FURTHER ORDAINED, that production, sale, exhibition, possession with intent to display, or distribution of any obscene, lewd, lascivious, prurient or sexually indecent print, advertisement, picture, photograph, written or printed composition, model, statute, instrument, motion picture, drawing, phonograph recording, tape or wire recording, or device or material of any kind.

SECTION 5 (a)

BE IT FURTHER ORDAINED that tho performance of any dance, song, or act in any public place, or in any public manner representing or portraying or reasonable calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual intercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animals.

SECTION 5 (b)

OR FURTHER, the performance in any public place, or any public manner of any obscene, lewd, lustful, lascivious, prurient or sexually indecent dance, or the rendition of any obscene, lewd, lustful, lascivious, prurient or sexually indecent song or recitation.

SECTION 6.

BE IT FURTHER ORDAINED, PRODUCTION, POSSESSION WITH INTENT to display, exhibition, distribution, or sale of any literature as defined herein containing one or more pictures of nude or semi-nude female persons, wherein the female breast or any sexual organ is shown or exhibited, and where, because of the number or manner of portrayal in which such pictures are displayed in such literature, they are designed to appeal predominantly to the . prurient interest.

SECTION 7. BE IT FURTHER ORDAINED, that it shall also be unlawful for any person to attempt to commit any of the violations set forth in this section.

SECTION 8. BE IT FURTHER ORDAINED, that any person upon conviction of a violation of this section shall be sentenced to serve not more than ninety (90) days, or pay a fine of not more than one hundred dollars ($100.00) or both, in the discretion of the Court.

BE IT FURTHER ORDAINED, that persons convicted of an attempt to violate this section shall be sentenced to not more than one-half of the maximum penalty prescribed, or pay not more than half of the maximum fine or both, as set forth above.

SECTION 9. BE IT FURTHER ORDAINED, that the word literature as used herein means and includes a book, booklet, pamphlet, leaflet, brochure, circular, folder, handbill or magazine. The word picture as used herein means and includes any photograph, lithograph, drawing, sketch, abstract, poster, painting, figure, image, silhouette, representation or facsimile.

SECTION 10. BE IT FURTHER ORDAINED, that this Ordinance shall be published in the Official Journal of the Parish, the St. Bernard Voice.

This Ordinance having been submitted to a vote, the vote thereon was as follows:

YEAS: Henry C. Schindler, Jr., Joseph V. Papania, Peter N. Huff, Peter Perniciaro, Louis P. Hunster, John W. Booth, Sr., Claude S. Humphrey, Celestine Melerine, Edward L. Jeanfreau, and Mrs. Blanche Molero.

NAYS: None

ABSENT: None

And the Ordinance was declared adopted on this, the 2nd day of November, 1960.

1 . In Delta Book, the defendant Cronvich is Sheriff of Jefferson Parish, the defendants Lightell, Lemoine and Frisch are his deputies and the defendant Lentini is Marshal of the Town of ICenner, Jefferson Parish.

2 . In Ledesma, the defendant Perez is District Attorney and the defendants Reich-art, Wendling and Bethea are Deputy Sheriffs of the Parish of St. Bernard.

3 . Three by the Jefferson Parish officers ancl four by their St. Bernard Parish counterparts.

4 . The prosecutions instituted in the 24th Judicial District Court for the Parish of Jefferson are styled and numbered as follows: State of Louisiana v. Fernin J. Farrell, No. 113-050; Ronald J. Walker, No. 113-051; Ronald J. Walker and Charles Rhody, No. 113-052; Lawrence P. Pittman, Jr., Harold J. Spiess, Jr. and August M. Ledesma, Jr., No. 113-053; Lawrence P. Pittman, Jr., No. 113-054.

5 . State of Louisiana v. August M. Ledesma, Jr., Nos. 17-085 and 17-086 of the docket of the 25th Judicial District Court for the Parish of St. Bernard.

6 . State of Louisiana v. August M. Ledesma, Jr., Nos. 17-087 and 17-088, 25th Judicial District Court for the Parish of St. Bernard.

7 . No. 21-60.

8 . In case No. 17-085, it is charged that Ledesma, on January 27, 1969, “did produce, sell, exhibit, give or advertise with the intent to primarily appeal to the prurient interest of the average person, lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character * * * ” in violation of R.S. 14:106, subsection A (2).

In case No. 17-086, it is charged that Ledesma “did possess” rather than “did produce” the objects described [in the information in No. 17-085] in violation of R.S. 14:106, subsection A (3).

9 . See Footnote 23.

10 . The bills of information are identical as to all plaintiffs (see Footnote 4) except as to the dates on which and places at which the offenses are alleged to have occurred, and in substance charge that the respective plaintiffs did “ * * * wilfully and intentionally exhibit and possess with intent to display, advertise and/or sell lewd, lascivious and/or sexually indecent magazines * * * ” (Count 1) and did “ * * * wilfully and intentionally exhibit and possess with the intent to display, advertise and/or sell lewd, lascivious and/or sexually indecent magazines and/or books * * * to the general public and/or particularly in the presence of unmarried persons under the age of 17 years * * * ” (Count 2) in violation of subsection A (2), (3) & (7), R.S. 14:106.

¹¹

12 . From the Expressway News Center, 56 magazines were seized on August 23, 1968; from the Veterans Newsstand, 200 and 296 books and magazines were seized on September 6 and October 18, 1968, respectively; and from the Broad Bruxelles Seafood & News Center, 138 and 62 books and magazines were seized on October 3 and 18, 1968, respectively.

13 . In the Delta Book case, the parties stipulated, though subject to the plaintiffs’ objection of irrelevant, that if called as witnesses “men and women from different income levels and various ages, law enforcement personnel, professors, school teachers, ministers, priests and rabbis would testify that in their opinion all of the aforementioned books and magazines are: (a) obscene, in the case of witnesses called by the defendants, and (b) not obscene, in the case of said witnesses called by the plaintiffs.”

Also in the Delta Book case, “samples” of the seized jiublications were received in evidence subject to plaintiffs’ objection of irrelevancy.

In the Ledesma case, all of the seized materials were received in evidence subject also to the plaintiffs’ objection of irrelevancy.

14 . In the Ledesma case, the plaintiffs also seek to have the St. Bernard Parish obscenity ordinance declared unconstitutional.

15 . In Delta Book, the District Attorney for the Parish of Jefferson is not a party defendant. In Ledesma, the District Attorney for the Parish of St. Bernard is a defendant.

16 . Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

17 . Cambist Films, Inc. v. Tribell, 293 F. Supp. 407 (E.D.Ky.1968).

18 . As Cambist Films, Inc. v. Tribell, footnote 17, supra, makes clear, the principles announced in such cases as A Quantity of Books, supra, with respect to searches and seizures in civil forfeiture cases apply with equal, if not greater, force in cases involving searches and seizures incident to criminal prosecutions.

19 . Poulos v. Rucker, 288 F.Supp. 305 (M.D.Ala.1968).

20 . “Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene * * Smith v. People, 361 U.S. 147, 15L-155, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1960).

21 . Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

22 . Of course, the defendants cannot be ordered to return the purchased materials, as in the instance of those seized, since title thereto has passed.

23 . La.R.S. 14:106. See Appendix A.

24 . Ordinance #21-60 of the Parish of St. Bernard. See Appendix B.

25 . This Court declines to render a declaratory judgment concerning the constitutionality vel non of the entire statute in view of the fact that as to those sections or subsections under which plaintiffs have not been charged there is no “actual controversy” as required by 28 U.S.C. § 2201. Although “a request for a declaratory judgment that a state statute is over-broad on its face must be considered independently of any request for injunctive relief” Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) and abstention has been disapproved in cases involving First Amendment rights, nonetheless, the Supreme Court in Zwickler in footnotes 3 and 15 recognized that before declaratory relief is proper the usual prerequisites therefor must be established. Accordingly, as to those sections under which plaintiffs have not been charged, the prayer for doclaartory relief comes prematurely in that there is neither “substantial controversy” nor “sufficient immediacy.” See Machesky v. Bizzell, 5 Cir., 1969, 414 F.2d 283.

26 . Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

27 . Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966).

28 . “The portrayal of sex, e. g. in art, literature and scientific works, is not itself sufficient reason to deny the material the constitutional protection of freedom of speech and press.” Roth v. United States, supra.

29 . La.R.S. 14:106 would appear to he severable even in the absence of a severability clause in view of the fact that each subpart of Paragraph A delineates a separate and independent offense. The act would, with clarity, state an offense notwithstanding total deletion of subpart “(7)” of Paragraph A. Por a comprehensive discussion of the factors to be considered in determining severability see Statutes and Statutory Construction, Sutherland, Vol. 2, Sections 2401 et seq.

30 . We make no finding, however, as to whether the allegedly obscene materials here are protected by the First Amendment, and whether, therefore, the statute would be unconstitutional as applied to them. That question requires the application of the constitutional standard of obscenity to the seized printed matter. We leave the determination to be made in the first instance by the state court after the adversary hearing which we today hold necessary.

31 . Although it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance, as distinguished from statutes of state-wide application, Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), the court takes this opportunity to express its views on the constitutionality of the ordinance in the interest of judicial economy. The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith.

32 . Chimel v. State of California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, decided by the Supreme Court of the United States on June 23, 1969, limits the .area in which a search may be made incidental to a lawful arrest. We need not be concerned with whether Chimel applies to searches and seizures occurring before June 23, 1969. In the light of the absence of any direct controlling expression in Chimel and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968), and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), it would appear that the limiting effect of Chimel would not be held rettrospectively applicable. However, even assuming the contrary, in view of our holding that the lack of a prior adversary hearing taints the warrantless arrests involved here, the searches, whether confined to the limits set by Chimel or not, and the resultant seizures would fall by reason of the unlawful arrests incidental to which the defendants urge they acted in seizing the materials.

33 . See footnote 29, supra.