# Septum, Inc., a Georgia Corporation v. Robert E. Keller, Individually and as District Attorney for Clayton County, State of Georgia

> Court of Appeals for the Fifth Circuit · March 24, 1980 · 614 F.2d 456

URL: https://www.frixlaw.com/law-library/cases/9466456

## Case

- **Full name:** SEPTUM, INC., a Georgia Corporation, Plaintiff-Appellant, v. Robert E. KELLER, Individually and as District Attorney for Clayton County, State of Georgia, Defendant-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 24, 1980
- **Citations:** 614 F.2d 456; 6 Media L. Rep. (BNA) 1116; 1980 U.S. App. LEXIS 19309
- **Precedential status:** Published
- **Opinion:** Concurrence by Hill
- **Judges:** Brown, Hill, Randall
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466456

## How later opinions describe it (automated extraction)

- noting that declaratory relief is an equitable remedy

## Opinion text

*462 JAMES C. HILL, Circuit Judge,
specially concurring:
I concur, but add these observations. The result we find to be required in this case may well bring to an end cooperative undertakings between potential adversaries in situations like the one reviewed here.
If a prosecuting attorney prefers that he not be forced to try his cases in federal court, often sitting many miles away from the state court having jurisdiction, he would be well advised to refrain from conciliatory measures which might warn his adversary of intention to bring criminal proceedings. Septum, in this case, professes to have wanted an opportunity to consider substituting a film for the allegedly offensive one and, on that profession, negotiated a “notice” arrangement with the district attorney. We now announce that by making this agreement Septum brought itself within the Younger “window”: A point lying between the time when a real and substantial threat of prosecution arises and the time when state criminal proceedings are commenced.
Justice Stewart observed in Steffel v. Thompson, 415 U.S. 452, 476 , 94 S.Ct. 1209, 1224 , 39 L.Ed.2d 505 (1974) (Stewart, J., concurring): “Cases where such a ‘genuine threat’ can be demonstrated will, I think, be exceedingly rare.” Perhaps their rarity will be governed by the willingness of the state’s attorney to work constructively with potential violators. Such cases will be rare, indeed, where the state refuses to be helpful; to secure state court jurisdiction, it must institute criminal proceedings by surprise.
Perhaps parties yet bent upon constructive cooperation can devise a way to implement that good impulse without transferring potential cases from state courts to federal courts. I do not believe that what we say today is intended to discourage their trying.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466456. Public record. Not legal advice.