The opinion
RUBIN, District Judge
(dissenting):
I respectfully dissent from that portion of the decision that holds it unconstitutional for the state to arrest a defendant on a charge of violating a valid statute punishing the crime of selling pornographic literature, and from the suggestion that, to be constitutional, a state statute “may have to incorporate provisions immunizing alleged violators from criminal liability for any activities occurring prior to an adversary judicial determination of the fact of obscenity.”
My brothers and I agree that we are bound by the principle “that obscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 1957, 354 U.S. 476, 485 , 77 S.Ct. 1304, 1309 , 1 L.Ed.2d 1498 . Adhering, as we must, to the repeated decisions of a majority of the Supreme Court, we unanimously reject the dissenting view of Justices Black and Douglas that both federal and state governments are “without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind * * Ginzburg v. United States, 1966, 383 U.S. 463, 475 , 86 S.Ct. 942, 950 , 16 L.Ed.2d 31 .
But the majority of this court suggests that, in order to exercise its constitutional power, the state must adopt a procedure unprecedented in criminal law and incapable of effective enforcement. For, if their view is correct, no prosecution could be commenced under this statute that we all agree is constitutional unless the state first holds a separate adversary proceeding against every single news dealer for each item of pornography that he might choose to sell at any time. Even though a court might have decided that a dealer on one street was violating the law by selling a work that had been held pornographic, a dealer on the next street could not be prosecuted until he also had been afforded a “prior adversary hearing” concerning the self-same item. And after it had been determined that the current issue of “Spread Eagle,” consisting of photographs proclaimed to be for “Adults Only” (State Exhibit 7), violated the statute, the defendant would be free (by simply substituting one model for another) to sell another issue of that prurient publication containing photographs having identical pornographic content.
The Constitution forbids a statute that would punish a dealer for innocently selling pornographic material. The *674 statute must require knowledge — “sci-enter.” Smith v. California, 1959, 361 U.S. 147 , 80 S.Ct. 215 , 4 L.Ed.2d 205 . But, if a statute does so, the evidence is sufficient to justify conviction if it shows the defendant to be “aware of the character of the material” and his action to be “not innocent but calculated purveyance of filth.” Mishkin v. New York, 1966, 383 U.S. at 512 , 86 S.Ct. at 965 . Since we unanimously conclude that “scienter” is a requirement of the Louisiana statute, constitutional requisites are fully satisfied.
“In considering searches incident to arrest, it must be remembered,” Justice White said in his dissent in Chimel v. California, 1969, 395 U.S. 752, 782-783 , 89 S.Ct. 2034, 2050-2051 , 23 L.Ed.2d 685 , “that there will be immediate opportunity to challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search * * * and having been arrested, he will soon be brought into contact with people who can explain his rights. * * * An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding.”
That in my view is all that the state is required to do. It is no longer an acceptable proposition in tort law that a dog is entitled to one free bite 1 ; there should be no rule in criminal law— even by virtue of the protection accorded to freedom of speech — that every peddler of pornography is entitled to one free essay at seatology.
Never has the Supreme Court intimated such a requirement. It gave no hint of it when, without exacting any adversary hearing prior to prosecution, it upheld the conviction of a defendant under a New York statute for a sale of obscene materials to minors, in Ginsberg v. New York, 1968, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 , or when it upheld another conviction under the New York statute for “hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them.” Mishkin v. New York, 1966, 383 U.S. 502 , 86 S.Ct. 958 , 16 L.Ed.2d 56 . It is obviously impossible to hold a “prior adversary hearing” with respect to the offense of hiring someone to prepare an obscene book and difficult to conceive that it would be practical to hold one for the offense of publishing them. Nor is the rule this Court now adopts consonant with the conviction affirmed in Ginzburg v. United States, 1966, 383 U.S. 463 , 86 S.Ct. 942 , 16 L.Ed.2d 31 , under an indictment charging violations of the federal obscenity statute.
In Near v. Minnesota, 1931, 283 U.S. 697, 716 , 51 S.Ct. 625, 631 , 75 L.Ed. 1357 , the Court said, “* * * [T]he protection even as to previous restraint is not absolutely unlimited. * * * [T]he primary requirements of decency may be enforced against obscene publications. 2 ” “The phrase, ‘prior restraint’ *675 is not a self-wielding sword. Nor can it serve as a talismanic test.” Kingsley Books, Inc. v. Brown, 1957, 354 U.S. 436, 441 , 77 S.Ct. 1325, 1328 , 1 L.Ed.2d 1469 . 3 But even if prior restraint is entirely reprobated, the majority opinion fails to draw the distinction between previous restraint on the right of free speech (like the seizure of a publication before it can be sold) and a criminal statute that imposes subsequent punishment on pornography, an activity by definition not protected by the First Amendment. 4
Concurring in the result in Roth and its companion case, Alberts v. California, 1957, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 , Chief Justice Warren spoke in terms that are applicable here: “The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct.” 354 U.S. at 495, 77 S.Ct. at 1315.
The enactment of a criminal statute is intended to deter unlawful conduct. But any possibility of some other kind of state action against the individual, is likewise a possible deterrent. The fainthearted may be discouraged from pursuing a course of conduct by the possibility of an order to appear in court. Many a man will flinch from any kind of a controversy with the state. Even the threat of facing a judge may be a potential prior restraint, and it is conceivable that some news dealers might be willing to run the risk of a fine rather *676 than be bold enough to pay the price of successfully contesting an adversary proceeding. Yet on a record that lacks evidence of any kind dealing with the psychology of individual intimidation, my brothers conclude intuitively that one restraint touches the defendant so lightly as to be lawful while the other bears so heavily as .to be invalid.
Were the existence of any touch of “prior restraint” the tincture by which state conduct is stained unconstitutional, then presumably the existence of the possibility of an adversary hearing, or (in other contexts) the possibility of prosecution for criminal libel, or of the filing of a civil suit for libel, would coTor unlawful all government action in these areas. And it would mar the arrest, without a prior proceeding, of a defendant for violating the federal statute prohibiting the knowing use of the mails to transmit “every obscene, lewd, lascivious, indecent, filthy or vile article,” 18 U.S.C. § 1461 ; as well as for transgressing the law that makes it a crime to mail matter containing “upon the envelope or outside cover * * * language of an indecent, lewd, lascivious or obscene character,” even though the contents are “otherwise mailable by law”; 18 U.S.C. § 1463 ; and the provision that makes it a crime knowingly to import such material, 18 U.S.C. § 1462 . And such a requirement would apparently dye entirely unconstitutional 18 U.S.C. § 1464 , which makes it a criminal offense to utter “any obscene, indecent, or profane language by means of radio communication,” because there would be no way to have a prior adversary hearing with respect to such “one shot” utterances unless all radio communication were required to be previously transcribed. 5
The procedure suggested in the majority opinion comes almost full cycle to the censorship condemned in Near, supra, in 1931. “This is the essence of censorship,” the court there said, with regard to a procedure whereby the state might bring a publisher before a judge on a charge of conducting the business of publishing obscene, lewd and licentious matter and obtain an injunction against further publication.
Despite the allegations of the petition, the court does not find that .the defendants have harassed the plaintiffs, or that they have employed threats of prosecution to chill freedom of speech, or that there has been any other kind of misuse of the processes of state criminal justice. If there were proof of such facts, a different case would be presented. But the court, in action from which I do not dissent, refrains even from issuing an injunction. It merely declares the state’s procedure constitutionally infirm on its face.
When the Supreme Court, only a few weeks ago, held it unconstitutional to make private possession of obscene material a crime it said, “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.” Stanley v. Georgia 1969, 394 U.S. 557, 568 , 89 S.Ct. 1243, 1249 , 22 L.Ed.2d 542 . If this be true, the Constitution does not deny the state the power to arrest a person on a charge of selling pornography that appeals only to pruriency, affronts all community standards, and completely lacks social worth without, first haling that person into *677 court to caution him that what he is doing is unlawful. From the proposition that this is what the Constitution means I must dissent. 6
. See Prosser on Torts, 516 (3d ed. 1964).
. The motion picture cases are interesting applications. See, e. g., Freedman v. Maryland, 1965, 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 ; Times Film Corp. v. City of Chicago, 1961, 365 U.S. 43 , 81 S.Ct. 391 , 5 L.Ed.2d 403 ; Interstate Circuit, Inc. v. City of Dallas, 1968, 390 U.S. 676 , 88 S.Ct. 1298 , 20 L.Ed. 2d 225 . In Tyrone Inc. v. Wilkinson, 4 Cir. 1969, 410 F.2d 639 , the court held “that the Constitution requires an adversary hearing to determine obscenity before seizure of a movie.” However, the district judge “properly refused to enjoin the state court prosecution for violation of the criminal obscenity statute in the absence of a showing of bad faith enforcement of a statute unconstitutional on its face or as applied.” The theatre owner was required to deliver to the prosecuting attorney upon request a copy of the movie for reasonable use in the preparation and trial of the criminal charges. This follows the views expressed in Metzger v. Pearcy, 7 Cir. 1968, 393 F.2d 202, 204 , where the court affirmed an injunction ordering return of four prints of a film seized without a search warrant; the affirmed order required the theatre owner to deliver to the prosecuting attor *675 ney upon request one print of the film for use in the trial of the criminal charge. “The decisions of this Court and of the District Court do not prohibit the prosecution under the Indiana obscenity statutes.”
. The distinction has been repeatedly referred to although it has seldom been thought necessary to state it at length. But dissenting from a decision later overturned, Chief Justice Warren said in Times Film Corp. v. Chicago, 1961, 365 U.S. 43, 53 , 81 S.Ct. 391, 397 , 5 L.Ed.2d 403 : “[T]his Court has carefully distinguished between laws establishing sundry systems of previous restraint on the right of free speech and penal laws imposing subsequent punishment on utterances and activities not within the ambit of the First Amendment’s protection.” See also, e. g., Justice Brennan’s observation in Ginzburg, supra, “A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use.” 383 U.S. at 475, 86 S.Ct. at 949. And in Near, supra, the court said, “But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common-law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions.” 283 U.S. at 715 , 51 S.Ct. at 630 . Cf. Lockhart, Kamisar and Choper, The American Constitution, p. 761: “Why should anyone have to take the risk that the Court’s judgment of what is obscene will not agree with his own honest belief that it is not obscene under the evolving constitutional standards? * * * Does the current uncertainty as to the standard suggest that imposition of criminal liability except for hard core pornography is inappropriate? That the preferred way to deal with the problem may be to place the book on trial as in Memoirs'! See ICauper, supra, at 71-72; Loekart & McClure (1960) at 106-07.”
. Professor Paul A. Freund has written perceptively about the distinctions between prior restraint and subsequent punishment in the Supreme Court and Civil Liberties, 1951, 4 Vand.L.Rev. 533, 537. As he observes, “Certain distinctions commonly drawn between prior restraint and subsequent punishment will not bear analysis.” But he writes that there are also real differences between the two and concludes, in language quoted with approval in Kingsley Books, supra, “In sum, it will hardly do to place ‘prior restraint’ in a special category for condemnation. What is needed is a pragmatic assessment of its operation in the particular circumstances.” 4 Vand.L.Rev. at 539. *676 See also Schwartz, A Commentary on the Constitution of the United States, Part III, Rights of the Person, Volume I, Sanctity, Privacy and Expression, § 450, pp. 336 et seq. (1968).
. A question might be raised whether a warrant could properly be issued to seize pornography for use as evidence in such a “prior hearing,” for a search warrant may be issued only for property “designed or intended for use or which is or has been used as a means of committing a criminal offense,” Rule 41(b), Federal Rules of Criminal Procedure, or for evidence that a crime has been committed. Warden v. Hayden, 1967, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 .
. If the arrest had been held valid, it would have been necessary to consider the validity of the seizures made of some of the material involved under the doctrine of the Chimel case, supra, and the possible applicability of the rule of that case to seizures made before it was decided. It would then also have been necessary to consider whether those particular publications obtained properly (for example by lawful seizure or by purchase) are protected by the First Amendment.
But since the majority does not reach these questions, it is needless to comment on them. Indeed, these might be matters for a single judge to decide after resolution of the questions involving constitutionality of the state statute.
Nor is there need for comment about the nature of the publications. Although they are unfit for publication in the published reports, I attach for the record xerox copies of the covers of five of them. The covers alone show that they proclaim the “leer of the sensualist,” Ginzburg, 383 U.S. at 468 , 86 S.Ct. 942 , and that no dealer could fail to recognize the likely pornography of the contents.