Hearn v. Short

SINGLETON, District Judge

(specially concurring):

I feel reluctantly compelled to follow the recent holdings of the Supreme Court in Younger v. Harris, supra, and its companion cases. Those cases and the various opinions written in connection therewith have created in my mind a legal caldron with respect to the constitutional questions discussed, particularly with reference to proper injunctive and declaratory relief by a federal three-judge court. If as a federal district judge I could properly adopt the opinion of Mr. Justice Brennan with whom Mr. Justice White and Mr. Justice Marshall joined, concurring in part and dissenting in part, in Perez v. Ledesma, 401 U.S. 82, 93 , 91 S.Ct. 674, 678 , 27 L.Ed.2d 701 (1971), I would do so and meet the issues raised in the case before us head-on. Because there are no pending criminal charges against the My-O-My Club, declaratory relief, as pointed out by Mr. Justice Brennan, would seem historically appropriate. However, since dismissal is compelled on the bases pointed out in this court’s majority opinion, no precedential value could be gained by further discussion of the substantive issues involved. However, I do have strong feelings that the first amendment, and its proscription against censorship, applies to the legal issue of obscenity (if in fact there is any such legal concept) and in this connection the standards set forth in Redrup v. New York, 386 U.S. 767 , 87 S.Ct. 1414 , 18 L.Ed.2d 515 (1967) should be implemented in cases such as the one before us. See also Blount v. Rizzi, 400 U.S. 410 , 91 S.Ct. 423 , 27 L.Ed.2d 498 (1971); United States v. O’Brien, 391 U.S. 367, 377 , 88 S.Ct. 1673, 1679 , 20 L.Ed.2d 672, 680 (1968).