Videophile, Inc. v. City of Hattiesburg

S.D. Mississippi

Videophile, Inc. v. City of Hattiesburg

601 F. Supp. 552, 1985 U.S. Dist. LEXIS 23425

CourtDistrict Court, S.D. Mississippi

DecidedJanuary 15, 1985

DocketCiv. A. H84-0237(L)

StatusPublished

Cited by4 cases

This text of 601 F. Supp. 552 (Videophile, Inc. v. City of Hattiesburg) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Videophile, Inc. v. City of Hattiesburg, 601 F. Supp. 552, 1985 U.S. Dist. LEXIS 23425 (S.D. Miss. 1985).

Pincite

Opinion

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of the plaintiff, Videophile, Inc., to enjoin enforcement of the obscenity ordinance recently enacted by the defendant, the City of Hattiesburg (City), 1 pending a trial on the merits. The court, having reviewed the memoranda with attachments submitted by the parties and having heard oral argument on the issues, is of the opinion that the plaintiff’s motion is well taken and should be granted.

The criteria for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must demonstrate:

1. A substantial likelihood that the movant will prevail on the merits;

2. A substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

3. That the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

4. That granting the preliminary injunction will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). A preliminary injunction is extraordinary relief and should only be granted upon a clear showing by the plaintiff. Id.

To prevail on its motion for the preliminary injunction, the plaintiff must demonstrate a substantial likelihood of success on the merits of its claim. The plaintiff first argues that the City is not authorized to enact the obscenity ordinance. In Mississippi, a municipality is empowered to “enact ordinances for the purposes provided by law where same are not repugnant to the laws of the state.” Miss.Code Ann. § 21-17-5 (1972). A municipality’s powers, accordingly, are limited to those expressly delegated. See Hattiesburg Firefighters v. City of Hattiesburg, 263 So.2d 767, 769 (Miss.1972); City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120, 121 (1960). The parties have not identified any specific authorization enabling a municipality to enact an obscenity ordinance. Counsel for the City cited the municipality’s police power as the source of its authority. Under Mississippi law, however, express authorization is required, as “powers of a municipality are to be construed most strongly against an asserted right not clearly given and cannot be extended by mere implication.” Hattiesburg Firefighters v. City of Hattiesburg, 263 So.2d 767, 769 (Miss.1972). Accordingly, this court cannot infer the City’s authorization, especially since the state has enacted compre *554 hensive obscenity legislation. 2 Enforcement of the state statutes was preliminarily enjoined in Goldstein v. Allain, 568 F.Supp. 1377, 1387 (N.D.Miss.1983), but the legislation has not been held unconstitutional. Since the issuance of the preliminary injunction, the legislature has met, yet did not alter the statutes. The legislature’s action must be interpreted as preempting the field and, therefore, the City is without power to enact its obscenity ordinance.

Additionally, the City’s ordinance differs from the statutes enacted by the legislature. The changes were made, according to the City, to correct the possible constitutional flaws identified by the court’s opinion in Goldstein v. Allain. The result of the alterations is an ordinance that conflicts with the state statutes. Since the City’s power is limited to the enactment of ordinances “not repugnant to the laws of the state,” this court is of the opinion that the ordinance exceeds the defendant’s statutory authority. The plaintiff has, therefore, shown a substantial likelihood of success on the merits of its preemption claim.

The plaintiff has also raised claims regarding the constitutionality of the ordinance. 3 In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court established a tripartite test for determining whether material is obscene and, therefore, whether it can be regulated without violating the first amendment.

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.

Miller, 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted).

The City's ordinance adopts the Miller test in its definition of obscene material. The entire Miller test, however, is not applied in determining whether a performance is obscene. 4 Performance is defined by the ordinance as “a play, motion picture, dance or other exhibition performed before an audience.” Plaintiff sells video tapes which, when shown to an audience, are potentially within the reach of the definition of performance in the ordinance. Motion pictures and video tapes are clearly entitled to the protection of Miller, see Jenkins v. Georgia, 418 U.S. 153, 157-58, 94 S.Ct. 2750, 2753-54, 41 L.Ed.2d 642 (1974), and the ordinance, in failing to provide those safeguards, does not satisfy the constitutional requirements.

In Mississippi, portions of an ordinance are severable “where the provisions of an ordinance are severable, and it may fairly be presumed that the municipal council would have enacted one part without the other.” Day v. Klein, 225 Miss. 191, 82 So.2d 831 (1955). The ordinance does not include a severability provision and the court cannot infer the City’s intent to delete portions in order to preserve the remainder of the ordinance. Accordingly, the plaintiff has also established a substantial *555 likelihood of prevailing on the merits of its constitutional claim. 5

At the hearing, counsel for the defendant conceded the plaintiffs arguments on the final three prongs of the Canal Authority test. The court has reviewed the applicable law and is of the opinion that the threatened deprivation of first amendment rights clearly outweighs any harm the injunction may cause the City. See Goldstein v. Allain, 568 F.Supp. 1377, 1386 (N.D.Miss.1983). In addition, the public interest is best served by the “vigorous exercise of first amendment rights.” Goldstein, 568 F.Supp. 1386-87.

For the reasons expressed herein, it is ordered that the plaintiff’s motion to enjoin enforcement of the obscenity ordinance of the City of Hattiesburg is hereby granted.

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