The opinion
JULIAN, District Judge
(dissenting).
I do not agree with the majority. The constitutionality of the Massachusetts criminal obscenity statute 1 is presently being litigated in the Massachusetts Courts. Pending final adjudication by the Supreme Judicial Court of the plaintiffs’ appeal from their conviction in the Superior Court for violating that statute, this Court should abstain from taking further action in this case and should not interfere with the enforcement of the statute by the Commonwealth by enjoining its public officials from prosecuting the plaintiffs for additional violations of the statute should they persist in exhibiting the film while their conviction still stands.
It is my understanding that for the purpose of deciding the questions presently before us the Court assumes that the film involved in this litigation is in fact obscene within the meaning of the law. In fact, no evidence has been taken and no finding made on this issue by this Court. The Superior Court has found the film to be obscene.
The plaintiffs’ reliance on Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), is untenable. The case before us is governed by Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957). The precise issue in Roth was the constitutionality under the First Amendment of two criminal obscenity statutes. One was a Federal statute ( 18 U.S.C. § 1461 ) which made it a crime for anyone to deposit for mailing and delivery obscene books, circulars or advertising. The other was a California statute (West’s Cal. Penal Code Ann., 1955, § 311) which made it a crime for any person willfully and lewdly to keep for sale an obscene book or to publish an obscene advertisement of them. The Supreme Court held both statutes constitutional.
The Massachusetts statute before us is essentially the same as the two statutes upheld in Roth in that all three make the public distribution of obscene matter a criminal offense. This being so, it must follow as a matter of elementary logic that the Massachusetts statute is also constitutional.
The holding in Roth is still the law and is binding upon this Court. It has not been overruled by Stanley or any other case.
In Stanley the appellant was indicted, tried and convicted for “knowingly hav[ing] possession of * * * obscene matter” in violation of a Georgia statute. The Georgia Supreme Court, 224 Ga. 259 , 161 S.E.2d 309 , affirmed, holding it “not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was with *1369 ‘intent to sell, expose or circulate the same.’ ” Appellant contended that the Georgia obscenity statute was unconstitutional insofar as it punishes mere private possession of obscene matter. The United States Supreme Court agreed and held that “the mere private possession of obscene matter cannot constitutionally be made a crime.” The Supreme Court takes pains to distinguish the ease before it from Roth and similar cases in which public commercial dissemination of obscene material is involved.
The Court notes (394 U.S. p. 559, 89 S.Ct. p. 1245) that the Georgia statute extended “further than the typical statute forbidding commercial sales of obscene material.” It also notes (p. 559, 89 S.Ct. p. 1245) that the “State and appellant both agree that the question here before us is whether ‘a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter’ is constitutional.” The Court points out (pp. 560-561, 89 S.Ct. p. 1246) that neither Roth nor any subsequent decision dealt with that question but “dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter.” (Emphasis supplied.)
And again at p. 567, 89 S.Ct. at p. 1249: “But that case [Roth] dealt with public distribution of obscene materials and such distribution is subject to different objections.” In note 10 on the same page the Court makes reference to the Model Penal Code § 251.4 (American Law Institute, Proposed Official Draft, 1962) which would also make commercial dissemination of obscene matter a criminal offense. The Court concludes by stating (p. 568, 89 S.Ct. p. 1250):
“We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.”
Thus the Supreme Court itself has declared in clear, unambiguous language that the holding in Roth has not been overruled by the decision in Stanley and is still the law.
Accordingly, on the authority of Roth , I would reject as wholly unjustified the plaintiffs’ contention that the Massachusetts obscenity-statute is unconstitutional on its face.
On the question of abstention the pertinent cases are Dombrowski v. Pfister, 1965, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 , 2 and Zwickler v. Koota, 1967, 389 U.S. 241 , 88 S.Ct. 391 , 19 L.Ed.2d 444 . 3 In both those cases the statutes under attack were held to be overbroad and susceptible of sweeping and improper application and therefore justifiably attacked on their face as abridging expression protected by the First Amendment. Additionally, though threatened with prosecution, the petitioner in neither case was then in fact being prosecuted for violating the challenged statute and consequently its constitutionality was not being litigated in the State court. In Dombrowski there was the added element of bad faith on the part of the State prosecutor, an element certainly not present here. The Court accordingly held that abstention was not appropriate. Since the Massachusetts statute is not being justifiably attacked on its face as abridging free expression and since the case in the Massachusetts Court has been tried and decided and is now on appeal, it seems to me especially appropriate for this Court to abstain from proceeding to a declaratory adjudication of the constitutionality of the statute until the Supreme Judicial Court shall have heard and decided the *1370 appeal. The parties anticipate that this will happen within the next three or four months.
No injunction should issue against the defendant district attorney. He should be left free to prosecute these plaintiffs should they resume the exhibition of the film while their conviction in the Superior Court remains outstanding and their appeals pending.
The plaintiffs have failed to show the existence of the requisite grounds that would justify the issuance of a preliminary injunction:
(1) Since the statute is not unconstitutional on its face and the film is assumed by the Court to be obscene, 4 and has been found to be obscene by the Superior Court, the plaintiffs have failed to establish the probability that they will ultimately prevail in this litigation.
(2) There is no evidence before us that plaintiffs will suffer irreparable injury if they are prevented from showing the film until final disposition of their appeal. There has been no showing of the extent of the monetary loss, if any, that they will suffer if they are not allowed to show the film. We should not concern ourselves with the diminution in the value of the film if its showing is delayed for a substantial period of time. The film is not owned by the plaintiffs, but by Grove Press, Inc., 5 which is not a party to this litigation. Furthermore, there is no evidence of the economic value of the film.
(3) The mere possibility that plaintiffs may be deprived of a constitutional right pending final determination of this case does not amount to the irreparable injury necessary to justify the issuance of the injunction.
Thus, in Dombrowski v. Pfister, 380 U.S. 479, 484-485 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 , the Court states:
“[T]he Court has recognized that federal interference with a State’s good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.”
What the majority of this Court is doing today is without precedent. It is declaring that the public, commercialized dissemination of obscene matter to adults, regardless of how lewd and degenerate it may be, is protected expression under the First Amendment. I have found no authority for this proposition either in decided cases or in legislative enactments. On the contrary numerous statutes, both Federal and State, and a multitude of cases decided by the Supreme Court of the United States 6 and by other courts, Federal and State, have consistently denounced and punished as criminal the public, commercialized dissemination of obscene matter.
In my opinion the position taken by the majority of this Court is legally unsound and inimical to the public interest. I must therefore dissent.
. Mass.G.L. c. 272, § 28A provides as follows:
“Whoever * * * has in his possession * * * any obscene * * * print, picture, figure, image * * * for the purpose of * * * exhibition * * * shall be punished * *
The Massachusetts Court has con-, strued this statute implicitly to require proof that the defendant knowingly has such material in his possession. Demetropolos v. Commonwealth, 1961, 342 Mass. 658 , 175 N.E.2d 259 .
. The statute under attack was the Louisiana Subversive Activities and Communist Propaganda Control Law.
. The statute prohibited the distribution of anonymous handbills critical of political candidates.
. In its Memorandum of July 15, 1969, this Court said: “[T]he Court * * * will not consider now or at any other time the claim that the film is not obscene, as an evidentiary matter.”
. The motion of Grove Press, Inc., to intervene as a party plaintiff was denied by the Court on July 15, 1969.
. See, for example, the cases listed in Stanley, supra, notes 5 and 6, 394 U.S. at page 561, 89 S.Ct. 1243 .