The opinion
THORNBERRY, Circuit Judge,
dissenting in part, concurring in part:
In Part I of its opinion, the majority avoids what it admits to be “serious first amendment questions” by creating legislative intent from non-existent legislative history and by taking an abstruse view of relevant Supreme Court cases. Because a plain reading of the applicable Texas statutes and of those cases calls for a result contrary to that reached by the majority, I respectfully dissent. Moreover, while I concur in the result reached in Part II of the opinion, I cannot subscribe to the majority’s use of a judicial shotgun when a small-caliber rifle would have sufficed. 1
Taking the two portions in reverse order, I agree with the majority that bad-faith harassment is indeed “ample grounds for affirming the trial court’s holding” in Dexter v. Butler. Ante at 1297. I would go no further, simply because such an excursion requires the Court to “decide” issues not essential to the disposition of the case before it. 2
Part I of the opinion, however, necessitates more elaborate discussion. Article 4666 of the Texas statutes provides that upon “reliable information” that a nuisance exists, the attorney general, district attorney, or county attorney shall bring suit in the name of the State to abate or enjoin the nuisance. If the State is successful, there follows, as the majority aptly describes it, the “rather draconian remedy” of closing the premises for one year, unless the owner posts a penal bond of not less than $1,000 or more than $5,000 against future nuisance *1302 law violations. Article 4667, as amended in 1973, defines the commercial manufacture, distribution or exhibition of obscene material as a “public nuisance” and also sets forth a list of other nuisances, including gambling, prostitution, and bull fighting. The statute further provides that such activities “shall be enjoined at the suit of either the State or any citizen thereof.”
In reversing the district court in King Arts Theatre, Inc. v. McCrea, the majority concludes that the one-year closing remedy provided in Article 4666 is inapplicable to obscenity and that the injunctive remedy under Article 4667 is “the exclusive procedure for abating obscene exhibitions as nuisances.” Ante, at 1290. This strained interpretation ignores the plain language of the two statutes, and the majority is forced to support its conclusion with suppositions about what the Legislature may have intended. 3
In my view, Articles 4666 and 4667, taken together, allow the state to close, for one year, a theatre that has exhibited obscene films. Unless the bond is posted, the showing of any motion picture is punishable by contempt of court; thus, future conduct— which may fall within the purview of the First Amendment — is absolutely prohibited after a finding of undesirable and unprotected present conduct. It was precisely this practice that was condemned by the Supreme Court in the landmark case of Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 (1931). Of course, the theatre owner may post the bond and show films, but he forfeits that bond if one of the films he has selected is deemed obscene. The line between obscenity and protected speech is an extremely fine one, so fine that it is “dim and uncertain.” Bantam Books v. Sullivan, 372 U.S. 58, 66 , 83 S.Ct. 631 , 9 L.Ed.2d 584 (1963). As Justice Black pointed out:
[N]o person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of “obscenity.”
Ginzburg v. United States, 383 U.S. 463, 480-81 , 86 S.Ct. 942, 952 , 16 L.Ed.2d 31 (1966) (Black, J., dissenting). This particular dilemma has led Justice Brennan to observe:
The essence of our problem in the obscenity area is that we have been unable to provide “sensitive tools” to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into suppression of the latter.
Paris Adult Theatre v. Slaton, 413 U.S. 49, 79-80 , 93 S.Ct. 2628, 2645 , 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). Few of us, perhaps only Justice Stewart and Kurt Vonnegut’s fictional Senator Rosewater, 4 can escape from this definitional quagmire, and this statutory scheme obviously encourages a theatre owner to steer wide of the danger zone by avoiding borderline films that are nonetheless protected under the First Amendment. This is self-censorship, a particularly subtle and most insidious form of censorship. Cf. New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964).
Even more troubling is the majority’s conclusion that the injunctive procedure contained in Article 4667 satisfies the requirements of Freedman v. Maryland, 380 *1303 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965), reaffirmed in Southeastern Productions v. Conrad, 420 U.S. 546 , 95 S.Ct. 1239 , 43 L.Ed.2d 448 (1975). The essence of these cases, as the district court pointed out, is that initial suppression of allegedly obscene material is permissible only for a brief, fixed period of time until a judicial determination is made and that final suppression is allowable only after a judicial determination of obscenity in an adversary context. The Texas injunction procedures, which would apply to an action brought under Article 4667, do not provide for a short, fixed period of time in which a final determination of obscenity can be made and are thus inadequate under Freedman . As the district court wrote:
Pursuant to [Rules 680-693a of the Texas Rules of Civil Procedure], the state could obtain a temporary restraining order lasting up to ten days, ex parte. As soon as, possible, within that ten days, however, a hearing on a temporary injunction is obtainable. The temporary injunction is not a final adjudication on the merits but, once it is obtained, there is no provision for treating the [obscenity] case any differently from any other civil case. The lack of a provision for a swift final adjudication on the obscenity question raises ■serious doubts of the constitutional usability of the injunction process in Texas for an obscenity situation.
404 F.Supp. at 46.
The majority attempts to distinguish this process from Freedman by labeling Freedman as an “administrative” case in which the Court was dealing with a “tentative administrative determination.” That is a distinction without a difference, for the Court’s overriding concern in Freedman was the evil caused by the state’s indefinite suppression of potentially protected speech without a judicial determination of whether the material is obscene. Here the evil lies in the fact that, under Texas procedure, the temporary injunction is tentative — not a ruling on the merits — and Freedman requires procedural safeguards that include, inter alia, the assurance of prompt judicial review on the merits.
Because I would affirm the district court’s holding that the statutory scheme embodied in Articles 4666 and 4667 are unconstitutional insofar as they concern obscenity, I respectfully dissent from Part I of the majority opinion. I concur in the result reached in Part II, and, with the exception stated in footnote 1 of this opinion, I concur in Part III.
. At this point I should add that I concur in Part III of the opinion, although in my view King Arts also is entitled to a remand for a determination of attorneys’ fees.
. The majority as much as concedes that its discussion of the adversary hearing question is dictum when it states that “we do not reach the precise factual question of [the] sufficiency [of the hearing].” Ante, at 1299.
. For example, the majority states that “[p]erhaps the legislature foresaw the constitutional implications . . and to avoid potential trenching upon the first amendment, chose to authorize only the lesser constraint of an injunction against future exhibitions of unprotected obscene matter . . Ante at 1291. This is nothing more than conjecture, for as anyone familiar with Texas government is acutely aware, there is no such thing as a “legislative history” for acts of the legislature.
. Justice Stewart, of course, knows obscenity when he sees it. Jacobellis v. Ohio, 378 U.S. 184, 196-97 , 84 S.Ct. 1676 , 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). Senator Rosewater’s primary accomplishment was a statute making the publication or possession of obscene materials a federal offense. The statute, Vonnegut wrote, “was a masterpiece because it actually defined obscenity.” The definition: “Obscenity is any picture or phonograph record or any written matter calling attention to reproductive organs, bodily discharges, or bodily hair.” K. Vonnegut, God Bless You, Mr. Rosewater 85 (Delta ed. 1965).