United Artists Corporation v. Harris

363 F. Supp. 857, 1973 U.S. Dist. LEXIS 12188

• Court: District Court, W.D. Oklahoma
• Decided: August 23, 1973
• Docket: Civ. A. CIV-73-498-D
• Status: Published

Opinions

MEMORANDUM OPINION AND JUDGMENT

HOLLOWAY, Circuit Judge.

This is an action for injunctive and declaratory relief against seizure of the film “Last Tango in Paris” (Tango) and prosecution under the Oklahoma obscenity statutes for its exhibition.¹ The plaintiff United Artists Corporation (United), as distributor of the film, claims that the statutes violate the First and Fourteenth Amendments to the Federal Constitution. Among other things United specifically says that the statutes fail to comply with requirements for valid obscenity laws, recently spelled out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. The defendant Harris, or someone acting at his instance, is alleged to have communicated to the film’s exhibitor that he was preparing a warrant to seize the film and intended to initiate criminal proceedings against the exhibitor, resulting in the showing being halted. Claiming violation of paramount rights under the First Amendment and irreparable injury by the threatened enforcement of the allegedly invalid statutes, United asks declaratory and injunctive relief.

The presiding District Judge denied an application for a temporary restraining order on July 27, 1973, advising the parties that an early hearing before a three-judge panel would be held. A three-judge court was constituted on July 30, 1973, and a consolidated hearing on the application for a preliminary injunction and on the merits was held August 6, 1973.

The essential facts are not in dispute.² On May 9, 1973, Oklahoma Cinema Theatres, Inc. (Cinema) entered into an agreement with United for the exhibition of Tango in Oklahoma City. Its showing commenced on July 18, 1973, at 1:00 p. m. and continued until the end of the second show at 5:45 p. m. that day.

Before the exhibition, defendant Harris had stated through the news media that representatives of his staff and the Oklahoma City Police Department would view the film and if it were their opinion that it was obscene, criminal charges would be filed. At about 4:00 p. m. on July 18, Cinema’s attorney was told by the Police Department that a search warrant for seizure of the film and a criminal complaint against Cinema’s general manager were being prepared.

The attorney recommended withdrawal of the film in view of the circumstances and the threat of prosecution. The Police Department was advised by the attorney that the film would be closed on completion of the showing at 5:45 p. m. On brief, the defendant essentially agrees that although no prosecutorial action was taken, the mere threat of such action caused the exhibitor to remove Tango from exhibition in Oklahoma City.

The uncontradicted affidavits also establish that ticket sales were discontinued at Cinema’s Plaza Theatre; that the usual pattern would be exhibition at approximately 6 to 8 theatres in the surrounding 25-mile area, including 3 in Oklahoma County, which will not exhibit the film because of the threatened action against Cinema’s general manager. The proof is that the defendant’s actions, if allowed to continue, will cause loss to United of approximately $55,000.00.

We turn from these undisputed facts to the principal legal issues. It is convenient to examine first the new constitutional decisions on obscenity handed down by the Supreme Court in June, 1973.³

(1) The new constitutional requirements for valid obscenity statutes.

Of course, it has long been recognized that motion pictures are within the free speech and free press guaranty of the First and Fourteenth Amendments. Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098. However, obscenity is not protected by the First Amendment, Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304,1 L.Ed.2d 1498, and within carefully defined limits, the states may prohibit dissemination of obscenity. In this case we must determine whether the efforts to prohibit exhibition of the film are within those permissible limits.

The Supreme Court on June 21, 1973, decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607; 37 L.Ed.2d 419. A conviction for mailing unsolicited obscene material under the California Penal Code was vacated and the case remanded for further proceedings not inconsistent with new First Amendment standards established by the opinion. In announcing the standards the Court stated, 413 U.S. at 23, 93 S.Ct. at 2614:

“State statutes designed to regulate obscene materials must be carefully limited. . . . As a result we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value.” (emphasis added) (footnote omitted)

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“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,or scientific value If a state law that regulates obscene material is thus limited as written or construed, the First Amendment values applicable to the states through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.”

It is against these explicit new standards established by Miller v. California, supra, that we must consider the challenged Oklahoma statutes.

(2) The Oklahoma Criminal Obscenity Statutes

At the consolidated hearing the defendant asserted that two Oklahoma criminal obscenity statutes apply directly, 21 O.S.A. § 1040.8 and § 1040.51. The defendant also says that consideration must be given to the statutory definitions provided in 21 O.S.A. § 1040.12.

(a) 21 O.S.A. § 1010.8

Section 1040.8 essentially provides that it is unlawful to exhibit any obscene motion picture film, image, etc. which is obscene, filthy, etc., as defined in 21 O.S.A. § 1040.12, among other things. Section 1040.12, the definitional statute, says that “obscene” means that to the average reader, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

United argues that § 1040.8 fails to meet any of the Miller standards. Through the definitions of § 1040.12, however, the statute seems to comply with the requirement of appeal as a whole to the prurient interest. However, on its face the statute fails to have terms meeting the requirements of portraying in a patently offensive way specifically defined sexual conduct. The section also contains no limitation to matter which, taken as a whole, does not have serious literary, artistic, political, or scientific value.

Thus two of the express requirements appear not to be met by the terms of § 1040.8. However, the Miller opinion says, after specifying the several requirements, that First Amendment values are adequately protected “ [i] f a state law that regulates obscene material is thus limited, as written or construed. .” (emphasis added.) And the opinion earlier refers to state law “as written or authoritatively construed.” (emphasis added). 413 U.S. at 24, 93 S.Ct. at 2615.

We have, therefore, examined Oklahoma cases including Cherokee News and Arcade, Inc. v. State, 509 P.2d 917, 921-922 (Okl.Cr.) which construed § 1040.8 and related statutes. In the Cherkokee News case the court upheld the statute as valid under the requirements of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 498, and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. The statute was sustained although the redeeming social value and national contemporary community standards were “not literally incorporated into the statutes, since the full constitutional standard is to be implied whenever the statutes are applied.” 509 P.2d at 922.

It is apparent that under the earlier constitutional standards the Oklahoma Court made a saving construction. However, it is also clear that the Miller opinion will require a significant new decision on construction of the State’s obscenity laws. At the least, § 1040.8 must be construed to determine whether specifically defined descriptions of sexual acts should be implied into the statute in line with the examples stated in •the Miller opinion. 413 U.S. at 25, 93 S.Ct. 2607.

We discuss below our reasons why we conclude that this significant decision should be left to the State courts. At this point it is apparent, however, that without a new authoritative construction as to the possible implication of the Miller limitations into it, § 1040.8 cannot be upheld.

(b) 21 O.S.A. § 1040.51 '

The other criminal obscenity statute relied on by the defendant is § 1040.51. Among other things, this section declares any person guilty of a felony who knowingly buys, traffics in, or causes to be delivered or transported in Oklahoma any moving picture of any person in an act of sexual intercourse or unnatural copulation.

Section 1040.51 on its face seems to comply with that requirement of the Miller opinion for limitation to matter depicting or describing sexual conduct, specifically defined by the applicable state law. This much United also concedes.⁴ However, on the face of the statute there is no limitation protecting matter having serious literary, artistic, political, or scientific value, and no limitation to matter portraying sexual conduct in a patently offensive way.

Again, a significant decision on construction of the statute would be required before § 1040.51 could be upheld. Cherokee News & Arcade, Inc. v. State, supra, did not involve § 1040.51 and, as noted, dealt only with earlier constitutional requirements. It must now be decided whether § 1040.51 will be construed so as to imply the critical new limitations which are distinct from those applied before the Miller decision.

(3) Abstention to permit authoritative state court construction On our own motion we have raised the question whether the court should abstain from adjudging the constitutionality of the Oklahoma obscenity statutes until an authoritative state court construction of them under Miller v. California occurs. United opposes abstention and maintains that this court should declare the statutes invalid because they fail to comply with the Miller standards as the statutes are presently written and authoritatively construed. The defendant Harris argues that the statutes are valid and that we should so hold. The Attorney General maintains that the statutes as written and construed comply with the Miller requirements, relying principally on Cherokee News & Arcade, Inc. v. State, supra.

Before any constitutional decision on the obscenity statutes can be made, we feel there must be an authoritative construction of them by the state courts — a function that we cannot undertake. The Supreme Court has clearly recognized that the federal courts “. . . lack jurisdiction authoritatively to construe state legislation.” United States v. 37 Photographs, 402 U.S. 363, 369, 91 S.,Ct. 1400, 1405, 28 L.Ed.2d 822; Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222. In the recent obscenity opinions themselves, the Supreme Court observed again that “we must leave to state courts the construction of state legislation. . . .” United States v. 12 200-Ft. Reels, 413 U.S. 123, 130, 93 S.Ct. , 2670 n. 7, 37 L.Ed.2d 500. These recent decisions gave us new limitations for constitutional obscenity laws. We therefore cannot agree that older state court decisions can be treated as giving authoritative construction under the new limitations.

We have examined Gordon v. Christenson, 317 F.Supp. 146 (D.Utah) and Cambist Films, Inc. v. Tribell, 293 F. Supp. 407 (E.D.Ky.). In these cases 3-judge federal courts upheld the Utah and Kentucky obscenity statutes under the prior law, saying that the earlier constitutional limitations would be implied into the statutes. However, these opinions do not discuss the problem of whether the federal courts should undertake construction of state statutes, and they came before the Supreme Court’s recent decisions reemphasizing that we may not authoritatively do so. We are satisfied that, at least in our circumstances, we should exercise our discretion not to undertake the function of construction of the statutes under the new obscenity decisions.

We realize First Amendment claims are involved in this case and that a problem thus arises as to whether abstention is proper. It has been held that the abstention doctrine is inappropriate where statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities. Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 14 L.Ed.2d 22; see also Cherokee News & Arcade, Inc. v. Field, 311 F.Supp. 1194,1195 (W.D.Okl.), and other cases there cited.

We are, however, persuaded that discretion may be properly exercised to abstain here under the decisions of the Supreme Court and to await authoritative state court construction of the Oklahoma obscenity statutes. In the very recent obscenity cases themselves, which were fought out under the First Amendment, the Supreme Court did not decide the constitutionality of the state statutes but sent the cases back for authoritative state court constructions. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745. We are persuaded by the decision to abstain in United Artists Corporation v. Proskin, 363 F.Supp. 406 (N.D.N.Y.) (decided July 31, 1973). There in a case involving this same film, the court abstained to permit a state court interpretation of the New York obscenity laws expected in the near future from the remand of the Heller case. But see Hamar Theatres, Inc. v. Cryan, 365 F.Supp. 1312 (D.N.J.) (decided July 26, 1973).

Thus we cannot agree that the claim of First Amendment rights deprives us of discretion to abstain to permit state court construction. And since the recent Supreme Court obscenity opinions point clearly to abstention, we feel we should abstain here and permit the Oklahoma courts to construe the statutes authoritatively. See Lake Carriers Association v. MacMullan, 406 U.S. 498, 510-511, 92 S.Ct. 1749, 32 L.Ed.2d 257; Fornaris v. Ridge Tool Co., et al., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174; United Artists Corporation v. Proskin, supra; Henrie et al., v. Derryberry, 358 F.Supp. 719 (N.D.Okl.); compare Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (decided May 7, 1973).

We note that there are procedures where such state court construction may occur. The Oklahoma Declaratory Judgments Act, see 12 O.S.A. §§ 1651 and 1653, provides for determination of the construction or validity of any statute of the State, among other things. See Oklahoma Alcoholic Beverage Control Board v. Central Liquor Co., 421 P.2d 244, 245 (Okl.). We are satisfied that in such a civil proceeding, as well as in possible criminal proceedings, the authoritative construction of the statutes can be obtained. See A.L.I., Study of the Division of Jurisdiction Between State and Federal Courts 289 (1969).

(4) Interlocutory Relief

The question remains whether any interlocutory relief should be granted by this court while the parties proceed in the state courts to obtain an authoritative construction of the statutes. The plaintiff has a considerable burden in justifying a preliminary injunction. The court must address itself to two relevant factors in weighing the equities: first, the plaintiff’s possibility of success on the merits; and second, the possibility that irreparable injury would result, absent interlocutory relief. Brown v. Chote, 411 U.S. 452, 98 S.Ct. 1732, 36 L.Ed.2d 420 (decided May 7, 1973). Also, if the showing of probable success is limited but the plaintiff raises substantial and difficult issues meriting further inquiry, we should consider whether the harm to him outweighs the injury to others if relief is denied. See Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct. 256, 73 L.Ed. 972; Cohen v. Price Commission, 337 F.Supp. 1236, 1239 (S.D.N.Y.), and cases there cited; see also Associated Securities Corporation v. S.E.C., 283 F.2d 773 (10th Cir.).

We realize that paramount values under the First Amendment are involved. Cf. United States v. 37 Photographs, 402 U.S. 363, 367, 91 S.Ct. 1400, 28 L.Ed.2d 822; Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 27 L.Ed.2d 498; Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649. And it is true that other exhibitors as well as Cinema are being deterred from exhibiting the film and this will likely continue until an authoritative constitutional decision on the Oklahoma statutes. These circumstances, in addition to the financial loss to United, do favor interlocutory relief.

We must, however, consider the probability of the plaintiff prevailing and the public interest as well. Cherokee News & Arcade v. State, supra, is a fairly clear indication of a policy of statutory interpretation that may bring a saving construction. The Staté decisions do not lend strong support to the claim that the sentences must be invalidated. We also must recognize the public interest in the sense that the Oklahoma Legislature has declared a firm public policy in the criminal obscenity statutes. An injunctive order that would interfere with their enforcement without a clear justification is undesirable. After weighing the equities and these factors we cannot say that a sufficient showing for a preliminary injunction has been made.

(5) Alternative relief on the claim that the film is not obscene under any permissible constitutional standard.

In addition to the constitutional claims asserted by it United asks for a declaration that the film is not obscene, regardless of what constitutionally permissible test of obscenity is applied to it. This claim is similar to an alternate one made by United in United Artists Corporation v. Proskin, 363 F.Supp. 406 (N.D.N.Y.), and on which we are advised that relief was granted.

The majority of the court concludes that we should reach and consider this alternate claim. In view of this determination the entire three-judge panel viewed the film on August 22, 1973, with counsel. However the views expressed on this claim and in Part 5 of this opinion are those of Judge Eubanks and Judge Holloway only. Chief Judge Daugherty’s views are expressed in his dissent.

The majority concludes that the issue to be decided on the alternate claim is a narrow one. We feel it is whether the film can, as a matter of law, be held not to be obscene under the constitutional standards laid out in Miller v. California. We are convinced and hold that it cannot. Under each of the separate parts of the limitations spelled out in Miller, and as to each of them separately, we hold that the film cannot be determined not to be obscene, as a matter of law. Instead we believe the nature of the film presents a question of fact for the trier of the facts — court or jury — as to whether the film is obscene under standards that are permissible under Miller.

Accordingly it is ordered and adjudged that the application for a preliminary injunction is denied; that the court abstains from adjudging the constitutionality of the Oklahoma obscenity statutes in issue, or granting any relief on the ground of their alleged invalidity, to afford opportunity for construction of the statutes by the courts of the State of Oklahoma; that relief is denied on the claim discussed in Part 5 of this opinion; and that jurisdiction for final disposition is retained. See Harrison v. N.A.A.C.P., 360 U.S. 167, 179, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Zwickler v. Koota, 389 U.S. 241, 244 n. 4, 88 S.Ct. 391, 19 L.Ed.2d 444.

This Memorandum Opinion and Judgment will constitute the findings of fact and conclusions of law of the court.

1 . Relief is sought against 21 O.S.A. 1971, §§ 1021, 1040.8, 1040.9, 1040.10, 1040.12, 1040.-13, 1040.51, and 1040.52.

2 . The facts as stated are admitted in the pleadings or are established by the uncontradicted affidavits of Messrs. Shanbour, Scott, and Mound, admitted without objection at the.consolidated hearing on August 6.

3 . Tlie principal decision ror our purposes is Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (decided June 21, 1973). In June, the Court also decided Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (decided June 21, 1973) ; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (decided June 21, 1973) ; United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (decided June 21, 1973) ; United States v. Orito, 413 U.S'. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (decided June 21, 1973) ; Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (decided June 25, 1973) : Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (decided June 25, 1973) ; Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed. 2d 993 (decided June 25, 1973).

4 . United’s brief concedes that § 1040.51 complies with two requirements of the Miller opinion as they are analyzed in the brief; (1) that the statutes be limited to those that describe sexual conduct and (2) that the descriptions of prohibited sexual conduct must be specifically defined by applicable state law (plaintiff’s brief, p. 6.).