MEMORANDUM OPINION
SENTER, District Judge.
The Mississippi Legislature recently enacted House Bill No. 345, an Act proscribing the distribution or possession with intent to distribute obscene materials; the law will become effective on July 1, 1983.
The
plaintiffs have brought this action attacking the statute on a wide range of constitutiorial issues ami request a preliminary injunction restraining the defendants from
enforcing the statute pending a full and complete hearing on the merits of the plaintiffs’ claims. The court having read and considered the affidavits filed by plaintiffs,
together with memoranda of authorities filed by all parties, makes the following findings, to-wit:
At the present stage of the proceedings, the sole inquiries before the court are (1) whether the plaintiffs in this action have standing to challenge the constitutionality of the statute at issue; (2) whether this is a proper case in which .to invoke
Younger
and/or
Pullman
abstention; (3) the proprie: ty of preliminarily enjoining the enforcement of the statute pending a final determination of the merits of plaintiffs’ chutk lenges to the constitutionality of the statute; and (4) whether severance by this court of those words or phrases found repugnant to the Constitution would be appropriate.
I.
The first issue which we must address is whether the plaintiffs have alleged a case or controversy within the meaning of Article ill of the Constitution. A plaintiff who challenges a statute must, in order to invoke the jurisdiction of the court, demonstrate a realistic danger of sustaining a direct injury as a result of the statutes operation or enforcement. Initially, it is important to note that:
[T]he ordinary injury-in-fact requirement for standing is properly relaxed in the case of facial overbreadth challenges “because of the ‘danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping improper application....’” Anticipatory constitutional challenges should not lightly be dismissed for lack of a justiciable controversy because, as our Circuit recently observed, they “play a most vital Pole in modern efforts to enforce constitutional rights....”
Red Bluff Drive-In, Inc. v. Vance,
648 F.2d 1020, 1033 (5th Cir., 1981) (citations omitted). This is not to say, however, that a justiciable controversy is presented by all cases in which the plaintiff alleges that a statute Unconstitutionally deters the exer
cise of a constitutional right. An anticipatory challenge to a statute’s constitutionality must grow out of a “real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.”
Babbitt v. United Farm Worker’s Nat. Union,
442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citations omitted). In order to meet the injury-in-fact requirement, therefore, the plaintiffs in this action must demonstrate a realistic danger of sustaining a direct injury — that is, a realistic, rather than speculative, fear of state prosecution. In all but one instance, the plaintiffs have met this requirement. The verified affidavits of the plaintiffs clearly show that they are all persons engaged in the distribution of sexually oriented materials and that they legitimately fear state prosecutions under the challenged legislation. Thus, the plaintiffs have successfully established a case and controversy sufficient to satisfy the injury-in-fact requirement of Article III of the Constitution insofar as they challenge the statute’s regulation of the distribution of published books, magazines, periodicals, films, video tapes, sexual aids or any other form of processed materials generally distributed, exhibited, sold, or rented. The plaintiffs have, however, failed to show that they are in any way involved in the processing or distribution of undeveloped photographs, molds, printing plates, and the like. As a result, the plaintiffs have failed to show any injury-in-fact which may result to them by H.B. 345 § 2(2)’s inclusion of undeveloped photographs, molds, printing plates, etc., within its definition of obscene material. Any injury which may result to the plaintiffs by the state’s application of this provision is, to say the least, merely speculative. The plaintiffs thus lack standing to challenge the constitutionality of H.B. 345 § 2(2). It should be noted, however, that if plaintiffs were to be joined by persons engaged in the processing or distribution of undeveloped photographs, molds, printing plates, and the like, there is a possibility that they could succeed on their claim that § 2(2) constitutes an impermissible prior restraint.
Near v. Minnesota,
283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). An excellent discussion of this problem can be found in
In re Klor,
51 Cal.Rptr. 903, 415 P.2d 191 (1966).
II.
The next question which this court must address is, in light of the factual situation presented, would it be appropriate to invoke
Younger
or
Pullman
abstention in this action. It is clear that no state prosecutions under H.B. 345 have been brought against any of the plaintiffs, for the statute will not go into effect until July 1, 1983.
Younger
abstention,
Younger v. Harris,
401 U.S. 37, 91 S.Ct. 745, 27 L.Ed.2d 669 (1971), would not, therefore, be appropriate in this instance. “[CJonsiderations of ... comity in our federal system ... have little force in the absence of a pending state proceeding.”
Lake Carriers Association v. MacMullen,
406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). In addition,
Railroad Commission v. Pullman,
312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), counsels in favor of abstention only when there is an unsettled question of state law which promises to dispose of the case without the need for constitutional adjudication. The plaintiffs have not challenged any portion of the statute on the basis of purported ambiguity. Nor have the defendants asserted any ambiguous aspect of this statute that might be saved from possible invalidation by a narrowing judicial construction. Instead, they urge abstention solely on the ground that the Mississippi courts should be given the first opportunity to review the statute. Plainly, abstention cannot be justified “merely because state courts also have the solemn responsibility equally with the federal courts” to hear and decide federal constitutional claims.
Septum, Inc. v. Keller,
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MEMORANDUM OPINION
SENTER, District Judge.
The Mississippi Legislature recently enacted House Bill No. 345, an Act proscribing the distribution or possession with intent to distribute obscene materials; the law will become effective on July 1, 1983.
The
plaintiffs have brought this action attacking the statute on a wide range of constitutiorial issues ami request a preliminary injunction restraining the defendants from
enforcing the statute pending a full and complete hearing on the merits of the plaintiffs’ claims. The court having read and considered the affidavits filed by plaintiffs,
together with memoranda of authorities filed by all parties, makes the following findings, to-wit:
At the present stage of the proceedings, the sole inquiries before the court are (1) whether the plaintiffs in this action have standing to challenge the constitutionality of the statute at issue; (2) whether this is a proper case in which .to invoke
Younger
and/or
Pullman
abstention; (3) the proprie: ty of preliminarily enjoining the enforcement of the statute pending a final determination of the merits of plaintiffs’ chutk lenges to the constitutionality of the statute; and (4) whether severance by this court of those words or phrases found repugnant to the Constitution would be appropriate.
I.
The first issue which we must address is whether the plaintiffs have alleged a case or controversy within the meaning of Article ill of the Constitution. A plaintiff who challenges a statute must, in order to invoke the jurisdiction of the court, demonstrate a realistic danger of sustaining a direct injury as a result of the statutes operation or enforcement. Initially, it is important to note that:
[T]he ordinary injury-in-fact requirement for standing is properly relaxed in the case of facial overbreadth challenges “because of the ‘danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping improper application....’” Anticipatory constitutional challenges should not lightly be dismissed for lack of a justiciable controversy because, as our Circuit recently observed, they “play a most vital Pole in modern efforts to enforce constitutional rights....”
Red Bluff Drive-In, Inc. v. Vance,
648 F.2d 1020, 1033 (5th Cir., 1981) (citations omitted). This is not to say, however, that a justiciable controversy is presented by all cases in which the plaintiff alleges that a statute Unconstitutionally deters the exer
cise of a constitutional right. An anticipatory challenge to a statute’s constitutionality must grow out of a “real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.”
Babbitt v. United Farm Worker’s Nat. Union,
442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citations omitted). In order to meet the injury-in-fact requirement, therefore, the plaintiffs in this action must demonstrate a realistic danger of sustaining a direct injury — that is, a realistic, rather than speculative, fear of state prosecution. In all but one instance, the plaintiffs have met this requirement. The verified affidavits of the plaintiffs clearly show that they are all persons engaged in the distribution of sexually oriented materials and that they legitimately fear state prosecutions under the challenged legislation. Thus, the plaintiffs have successfully established a case and controversy sufficient to satisfy the injury-in-fact requirement of Article III of the Constitution insofar as they challenge the statute’s regulation of the distribution of published books, magazines, periodicals, films, video tapes, sexual aids or any other form of processed materials generally distributed, exhibited, sold, or rented. The plaintiffs have, however, failed to show that they are in any way involved in the processing or distribution of undeveloped photographs, molds, printing plates, and the like. As a result, the plaintiffs have failed to show any injury-in-fact which may result to them by H.B. 345 § 2(2)’s inclusion of undeveloped photographs, molds, printing plates, etc., within its definition of obscene material. Any injury which may result to the plaintiffs by the state’s application of this provision is, to say the least, merely speculative. The plaintiffs thus lack standing to challenge the constitutionality of H.B. 345 § 2(2). It should be noted, however, that if plaintiffs were to be joined by persons engaged in the processing or distribution of undeveloped photographs, molds, printing plates, and the like, there is a possibility that they could succeed on their claim that § 2(2) constitutes an impermissible prior restraint.
Near v. Minnesota,
283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). An excellent discussion of this problem can be found in
In re Klor,
51 Cal.Rptr. 903, 415 P.2d 191 (1966).
II.
The next question which this court must address is, in light of the factual situation presented, would it be appropriate to invoke
Younger
or
Pullman
abstention in this action. It is clear that no state prosecutions under H.B. 345 have been brought against any of the plaintiffs, for the statute will not go into effect until July 1, 1983.
Younger
abstention,
Younger v. Harris,
401 U.S. 37, 91 S.Ct. 745, 27 L.Ed.2d 669 (1971), would not, therefore, be appropriate in this instance. “[CJonsiderations of ... comity in our federal system ... have little force in the absence of a pending state proceeding.”
Lake Carriers Association v. MacMullen,
406 U.S. 498, 509, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). In addition,
Railroad Commission v. Pullman,
312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), counsels in favor of abstention only when there is an unsettled question of state law which promises to dispose of the case without the need for constitutional adjudication. The plaintiffs have not challenged any portion of the statute on the basis of purported ambiguity. Nor have the defendants asserted any ambiguous aspect of this statute that might be saved from possible invalidation by a narrowing judicial construction. Instead, they urge abstention solely on the ground that the Mississippi courts should be given the first opportunity to review the statute. Plainly, abstention cannot be justified “merely because state courts also have the solemn responsibility equally with the federal courts” to hear and decide federal constitutional claims.
Septum, Inc. v. Keller,
614 F.2d 456, 461 (5th Cir.1980) (citations omitted). This is especially true in a suit seeking review of a statute which will purportedly exert a chilling effect on First Amendment rights.
Red Bluff Drive-In, Inc. v. Vance,
648 F.2d 1020, 1032 (5th Cir.1981). This court, therefore, declines the
defendant’s invitation to invoke
Pullman
abstention in this case.
III.
This court has considered plaintiff’s motion requesting a preliminary injunction restraining the named defendants from enforcing H.B. 345. The four prerequisites for issuance of a preliminary injunction are:
(1) A substantial likelihood that plaintiff will prevail on the merits; (2) a substantial likelihood that plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendants; and (4) that granting the preliminary injunction will not disserve the public interest.
Canal Authority
v.
Callaway,
489 F.2d 567, 572 (5th Cir.1979). In determining whether a preliminary injunction should issue, the court must first determine whether the plaintiffs have shown a substantial likelihood of success on the merits. In order to determine the plaintiffs' likelihood of success on the merits of this action, it will be necessary to address briefly each of their constitutional claims.
The plaintiffs allege numerous constitutional infirmities in this statute but for purposes of this preliminary injunction, their attack has focused on the following five claims:
A. The Exemptions Contained Within H.B. 345 § 4(l)(d) Violate the Free Speech and Equal Protection Guaranties of the First and Fourteenth Amendments.
It is well settled that a state has the power to regulate the distribution of obscene materials, for obscenity is not protected by the First Amendment.
Paris Adult Theatre
v.
Slaton,
413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Plaintiffs contend, however, that these exemptions are a form of preferential treatment by government among the different media of communication and are, therefore, suspect and subject to strict scrutiny. (Plaintiffs’ brief at 17.) Strict scrutiny of legislative classifications is, however, required only when the classification impermissibly interferes with the exercise of a fundamental right.
Massachusetts Board of Retirement v. Murgia,
427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). There clearly is no fundamental right involved in the distribution of obscenity. Thus, a legislative classification which differentiates between distributors of obscenity does not interfere with or touch upon any fundamental right. Where, as here, “there is no fundamental right or suspect criteria involved, legislative classifications will be overturned only if no ground can be conceived which will justify the classification.”
Piepenburg
v.
Cutler,
649 F.2d 783, 787 (10th Cir.1981) (holding that similar exemptions contained within the Utah statute did not deny equal protection). The legislature’s belief that the selected uses contained in § 4(l)(a), (b) & (c) are sufficiently important to outweigh enforcement considerations; and its deference to FCC regulation of interstate cable and CATV systems in § 4(l)(d) cannot be said to be either irrational or insufficient to justify such classifications. (Defendants’ brief p. 16.) This court finds, therefore, that there is no substantial likelihood of success on this claim.
B. The “Constructive Knowledge” Provision of H.B. 345 Violates the First and Fourteenth Amendments.
The Supreme Court in
Hamling
v.
United States,
418 U.S. 87, 123, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590 (1973), stated that:
It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is [not] required ... by the Constitution.
The “constructive knowledge” requirement of the Georgia statute, upon which the Mississippi provision is modeled, was subse
quently challenged in
Sewell v. State,
238 Ga. 495, 233 S.E.2d 187, appeal dismissed 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), and
Ballew v. Georgia,
138 Ga.App. 530, 227 S.E.2d 65, cert. granted 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (decided on other grounds), cert. denied 436 U.S. 962, 98 S.Ct. 3083, 57 L.Ed.2d 1129 (1978), as violative of the constitutional requirements of scienter set forth in
Hamling, supra.
In both
Sewell, supra,
and
Ballew, supra,
the Georgia Supreme Court held that the “constructive knowledge” standard of scienter contained within the statute clearly comported with the constitutional requirement of scienter. In light of the Supreme Court’s pronouncement in
Hamling, supra,
and given the Georgia Supreme Court’s holding in
Sewell, supra,
and
Ballew, supra,
this court is of the opinion that the “constructive knowledge” provision contained in H.B. 345 comports with the constitutional requirement of scienter. As a result, we are unable to say that the plaintiff has shown a substantial likelihood of success on the merits of this claim.
C. The Ability Under Mississippi Law of Private Citizens to Compel an Obscenity Prosecution Renders the Act Unconstitutional in Violation of the First and Fourteenth Amendments in That These Sections Mandate Initiation of a Criminal Prosecution Without Any Opportunity For a Determination of Probable Cause by a Neutral and Detached Magistrate. Mississippi Code Annotated, §§ 99-33-1
through -3, must be read in conjunction with Mississippi Code Annotated, § 99-15-5. Section 99-15-5 was recently construed by this court, in
Crouse v. Lowndes County,
EC80-328-LS-P (N.D.Miss., February 1, 1982), to require a finding of probable cause by a neutral and detached magistrate prior to the issuance of a warrant. So read, Mississippi Code Annotated §§ 99-33-1 through -3 do not violate the First or Fourteenth Amendments. The plaintiffs thus stand no substantial likelihood of success on the merits of this claim.
D. The Definition of Prurient Interest Contained in H.B. 345 § 2(l)(a) is Over-broad.
An enactment may be constitutionally overbroad, despite the clarity and precision of its language, if in its reach it prohibits constitutionally protected speech or conduct.
Grayned v. City of Rockford,
408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). The United States Supreme Court in
Roth v. United States,
354 U.S. 476, n. 20, 77 S.Ct. 1304, n. 20, 1 L.Ed.2d 1498 (1957), and
Miller v. California,
413 U.S. 15, n. 2, 93 S.Ct. 2607, n. 2, 37 L.Ed.2d 419 (1973), attributed to the term “prurient interest” a specific judicial meaning — that of a shameful and morbid interest in nudity, sex, or excretion. Additionally, the Court’s decision in
Miller, supra,
clearly established that state statutes designed to regulate obscene materials must be carefully limited in order to prevent intrusion on arguably protected areas of speech. “[Njothing that the Supreme Court has said subsequent to
Roth
would alter the restrictive definition of prurient interest contained in [footnote 20].”
U.S. v. 35 mm Motion Picture Film,
432 F.2d 705, 711 (2nd Cir.1970). Thus “prurient interest” as judicially defined means specifically a shameful and morbid interest.
See Red Bluff Drive-In, Inc. v. Vance,
648 F.2d 1020, 1026 (5th Cir.1981). The definition of “prurient interest” contained within H.B. 345 § 2(l)(a), however, defines prurient interest as “a lustful, erotic, shameful, or morbid interest.” This definition of prurient interest appears clearly to extend the prohibitions of the Mississippi obscenity statute beyond constitutionally acceptable limits. The inclusion of the terms lustful and erotic would permit the application of the statute to arguably protected materials. Such an intrusion into the area of protected speech is impermissible; for the “door barring federal and state intrusion into [the area of the first amendment freedoms] cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”
Roth v. United States,
354 U.S. 476, 488, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (1957). In light of the above discussion, it is clear that the plaintiffs have demonstrat
ed a substantial likelihood of success on the merits of this claim.
E. The Definition of “Patently Offensive” in H.B. 345 § 2(4) Defining That Phrase in Terms of “Community Standards of Decency” Infringes Upon Speech Protected by the First Amendment.
In
Smith v. United States,
431 U.S. 291, 305, 97 S.Ct. 1756, 1766, 52 L.Ed.2d 324 (1977), the Supreme Court stated that “community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community.... ” The line between protected expression and punishable obscenity must be drawn at the limits of a community’s tolerance rather than in accordance with the dangerous standards of propriety and taste.
Red Bluff,
648 F.2d at 1029. As the Fifth Circuit stated in
Rod Bluff Drive-In, Inc.
v.
Vance,
648 F.2d 1020, 1028 (5th Cir.1981), “in its effort to track the contours of permissible state regulation, the ... Legislature deviated subtly but significantly from the Miller formula in modifying the standard that fact finders must apply in deciding whether an item is ‘patently offensive,’ ” The Legislature’s modification of the contemporary community standard test of
Miller, supra,
would bring within the statute’s prohibitions material which is arguably protected by the First Amendment. In light of the Fifth Circuit's statements in
Red Bluff, supra,
it would appear that plaintiffs stand a substantial likelihood of success on the merits of this claim.
From the foregoing discussion, it is clear that plaintiffs have met their burden on two of their five constitutional challenges, for they have demonstrated a substantial likelihood of success on the merits of these two claims. Having established that the plaintiffs have satisfied the first prerequisite to a preliminary injunction under
Canal Authority,
the court must now examine whether or not the remaining three prerequisites have been met.
The complaint and verified affidavits of the plaintiffs clearly demonstrate that the existence of their businesses will be threatened by enforcement of H.B. 845. They have also clearly shown that state prosecutions under this statute will have a chilling effect upon activities in which they engage which are arguably protected by the First Amendment. The plaintiffs have, therefore, met the second prerequisite of
Canal Authority,
for they have shown that they will suffer irreparable injury if the injunction is not granted. Possible interference with the ability to engage in activities arguably protected by the First Amendment constitutes irreparable injury sufficient to justify the grant of a preliminary injunction.
Henry v. First National Bank,
595 F.2d 291, 304-05 (5th Cir.1979).
A showing of irreparable injury is, however, not alone sufficient to justify the issuance of a preliminary injunction, for under the third prerequisite of
Canal Authority,
the plaintiffs must also show that their threatened injury outweighs the threatened harm the injunction inay do to the defendants. Mississippi has not had an ehforceable obscenity statute since 1976 when the Mississippi Supreme Court, in
ABC Interstate Theaters, Inc. v. State,
325 So.2d 123 (Miss.1976), struck down the obscenity statute then in force. During the intervening seven year period, the legislature has made but this one attempt to formulate and enact a statute prohibiting the distribution of obscenity. It would appear, therefore, that little harm will result to the defendants from the issuance of a preliminary injunction pending resolution of the merits of this action. In view of our ruling and in light of the fact that the legislature next meets in about six inonths, the legislature may decide, as a result of such ah injunction, to revise the statute now at issue in order to facilitate the speedy resolution of this controversy and to provide the residents of Mississippi with a constitutionally valid and enforceable statute.
Finally, in order to obtain a preliminary injunction under
Canal Authority,
the plaintiffs must establish that the issuance of an injunction will not disserve the public interest, This the plaintiffs have clearly shown. Both the plaintiffs and the deftírtd
ants agree that the public has a vital interest in the vigorous exercise of First Amendment Rights. This vital interest clearly outweighs any interest which the public may have in regulating the distribution of obscenity. As a result, this court cannot say that the public interest will be disserved by the issuance of such an injunction. The plaintiff has, therefore, met the four prerequisites of
Canal Authority
and is entitled to the issuance of a preliminary injunction pending a full hearing on the merits of their constitutional claims.
IV.
The defendants have argued that in lieu of the issuance of a preliminary injunction, this court should invoke the severability clause contained in H.B. 345 § 6. At this point in the proceedings, such an action would be inappropriate. In fact, it is doubtful that in the context of a state statute, severance would ever be an appropriate action by this court. As the Ninth Circuit stated in
Spokane Arcades Inc.
v.
Brockett,
631 F.2d 135, 137 (9th Cir.1981), “[t]hat the statute has a severability clause does not authorize us to indulge in major revisions to salvage the statute.... We are certain the Legislature ... can do this better than we.”
In summary, this court is not saying that Mississippi cannot have an obscenity statute. We are simply saying that it appears the statute enacted does not pass constitutional muster, and perhaps the Legislature can revise this statute so as to adequately protect first amendment rights while still regulating obscenity.
An appropriate order will be entered.