Appendix — Byrne v. Karalexis

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SUPREME COURT, U:. S. ia ere ne

DG eae APR 101970

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| Supreme Court nf the nited Sutia> |

CAeaghe ¢ Bs ” Ocrosan Tam, 1990 e |

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GARRETT H. BYRNE, as he i is the duly elected

District Attorney for ‘Suffolk County, City of

Boston, Commonwealth of. Massachusetts, and ae

“he ‘ ROBERT H. QUINN, Attorney General of the

+ Commonwealth of Massachusetts, : he

“aes ‘ APPELLANTS,

¢:

~ < : < £ v. : . f 62%

yf ates SERAFIM KARALEXIS, JAMES: VLAMOS, .

SYMPHONY CINEMA II, INC., and FILM DIS-

- TRIBUTORS; INC., all of 252 —— Avenue,

Boston, Maseachugette,

- APPELLEES.

_ ONAPPEALFROMTHE'UNITED STATES « °

DISTRICT COURT FORTHE DISTRICT == =—_

OF MASSACHUSETTS

/ Seg, | Re ae | ea pasa,

- APPEAL DOCKETED FEBRUARY. 4 1970 :

JURISDICTION NOTED MARCH 23,1970

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-* TABLE OF CONTENTS .. an

? . ‘ , and es - :

eiradige: oe : | Page

nat Docket Entries ap a pie eaas eseritis * +

Complaint: - evap PaaS Ge Rea pir Ne kas A

Motion To Amend ¢ are Ses jee ee

. Amended ( ‘omplaint: oe Wek s v ae 14

~ 'femporary, Injunction. Dx er ee

Ruling: on Plaintiffs” Application for: a Prekiminary es

lijunection —* | , | 2]

Motion To File an Amendment to Ame side il ¢ ‘omplaint ;

. and’'To File a Supplementary Brief. 2p ***

Ame ndmient to Amended Complaint © 9 0 + " 24

Motion. To: File an Amendment to-Amended ¢ fompl: unt -

II (Following Dismissal of “Original Lidic! ‘uents

in Saffalle Superior Court) >” pa BO oe aS

at -+%

Ainendment to Amended Complaint ey Scan ss ;

Meniorandum and Rulings on. Motion To Further |

> &

*- Amend Complaint, on- -Motion To Intervene, and on

Motion. for Preliminary csenenon - Si AE oe '. 39 oe

Motion: for Abetontion 2 2 es Eee ‘30

Opinion, . Nov ember 28, 1969 | ee tg anes f 1 ie

Dissénting Opinion Vere eta tee ae Bereria rors

‘Order Adding, Party, Décember 6, 1969 | Se Ge, 4

Injunetion: ie eRe, py Mguae, ue a a ; a a

- Stay Pending Appeal. - EARP es Pty Mane. ag 45

Order, December 15, 1969 os .400. ieee GMB

: Supplemental Notice of, , Appeal aoe a. Ay ae

$7 AME Ys et ae BES ae Ne poate rertieay ha. i

: of oe 3

1969 -

June 16

, Complaint filed. alee

Motion for Pentporary Restraining Order,

3. DOCKET ENTRIES’ —- *"

¢ . ‘ % on ‘

og eT

Proceedings’

Pech ee meee : | J

. 4 17

19s

+ aos

| Memorandum of Points and Authorities-? Mn Sup- .

~ port “of Motion for. Temporary sri Dd Or-

der, filed.

_ filed.”

‘Brief in Support of Complaint of the Plafsitif? es

-Notice of Motion in | Avcordanee with Rule w5( a).

of FRCP, filed. _ aes, =

_ Motion to amend complaint, filed. "Appearance

of Ruth Abrams, Esq.. filed.

Amended complaint, filed: Appearance. of: Theo. :

‘ dore ‘A. Glynn, Jr., Esq., filed. oa

Jian, D, J. Motion to amend cgmplaint

granted.. ca 5

ions Ch.Js - Cine of Appeals,, JULIAN, D. J.

& Perrine, D. J. Hearing regarding issuance of _

Preliminary Injunction . . . Arguments by coun-

sel. . Advisement. v2.

e |

Motion to File and Aniendment to Amended

Complaint; and to F ile at Supplomentary Brief,

- filed,

a “Preliminary, Ifjunction. ° Ww e shall issue a

‘ther’ ‘order of this court other. than for the pur-

cage of considering: atid deciding “pending ernew

ALDRICH, Crrevrr J UDGE,. Ju LIAN, .D. J., _ AP Ex-.

‘TINE, D. J. Ruling on Plaintiff’s, Application for”

: tempoyary injunction sears ‘the prosecu- .

tion: of. the state. court proceedings pending fur-

Ses @-

\ 1969 BN

24:

wets Ve

“ A » - .

“* “a” l

- A

: motions ‘to dismniss, and pendingee- new motions:

, Wo stippress evidence. Copies giv en. in hand ee 4

Atty. Phedqore ilyain, Jn, Ruth Abrams, ahd.

Atty Herbert: Swartz on Ties 2A 969, (filed é on

Inte 24, 1969 at 1:03 PM)"* : ais

ALdnicu, -Circvrr J cpg, Ae EIAN, Bod. & Per-.,

Texe, D.. J. TEMPORARY ANIU oma. ao 3" «DB

triet Attorney ..... is yestrained from prosceut-

me lig’ ° thie indictme nts pend against. p: laintiff's

deciding pend, or-new mofions to. dismiss, and *

. other -than for the, pREDbeS: of considering

and: deciding pending or’ new motivotis to tay

miss, and. pending or new motions to stippre}

‘evidence. Copies given. in ‘hand. to ‘Att, Theodot ro

itvimn, Jr., Ruth. Abralims, and Atty, Herbert®

~ Swartz ‘on Juné 24; 1969, (filed on “Sur a4:

1969 at 1.03. PMy. Santee Cn: ° Sea pe he

Axpkicu, Circuit’ Jv DGE, Tlie Hodvakls 3 Bailey

Aldrich, ‘Chief Judge, United States Court. of

_ Appeals for the-First Ci ircuit, and the Honorable

.Raymond J. Pettine, United ‘States Distrfet

~ Judge for- the District of Rhode Island, to sit

with the Honorabl® ‘“Anthény Julian, ; United

30.

. States District Judge for. the District of Massa-

* chusetts, in the three? jadge’ court as required...

by.28 U.S.C. 2281; 9 8 ug te,

Plaintiffs’ “motion, to file. an amendrhiont to .

amended complaint—II ' ‘(folloWhg dismissal of

‘original indictments. i in Suffolk ae Court),

"filed. = -. hc rie tans » :

Amendnient to dmended: complaint— Il, filed.

Copies mailedgo Hon. Bajley Aldrich and. Hon.

ene. J. Pettine. ae pty one

‘

g : .

IEG ses boda cle nes tie rae et

“July Ig Brief of. the, Plaintift folldtcink the.s secopd «set of .

“indictments, fit. Copies to T hree Judges... 5° :

ES ate Addendum to the brief. of. ‘the plaintiff, follow-

~iysuainee of the second set of indictmeiitss filed.

Seip tee Wee en -: ai oe | beacd ; “-

! Copfes to Honorable Bailey. Aldrich, Anithony - a

ce ae: ‘Julian, and Raymond J. Petting mailed, Sa . | s

ee * Motion: of Grove. Press, Tne. to intervene: as S : 3

| _ plaintiff, filed. with Initervenor’s Complaint at: .. : ;

tached thereto. ets = oe oe

14 Appe: irance of Adan Dershow its, Esq., for Pinter Dy

Bees venor, filed. ¢ bak Sy Vole ier

~ | 14 An pricu, Cu, Cir Siniee: Jt LIAN, - > 3 & Perirs oe

es ‘J. Hearing on Motion to amend Somaelants Ar

5 : guments. Advisement. ae 3

* Aldrich,.- Cir, Judge, Julian, J: and: Pettine, J.

EMORAWDU me: AND RvLtncs ON Motion TO. Fur-.

KM END C OMPLAINT, on Motion To. Invi: |

3NE;. AND ‘ON Motioy’ FoR PRELIMINARY aaeeee igetaes |

TON, filed. Br ¥ : . pailies

*y Copy -mailed to Mes&rs. Swartz, Robe rts, ‘Derek; +.)

7°) ewitz, Glynn,” Jr. and Abrams... a . # .

. Juby .29- pir aagia at he aring of Mondlty, July. 14, 1969,

~ «filed; woh es : aes

See Letter to Clérk, dated Jaly 30, 1969, froin es e - @

oe bert S. Swartz,- Rsq. re Driefs,

Sept. 16 Letter‘to Clerk, dated Sept. 15, ise ae Nae —

» Sbert, Si Swartz, sq." advising that as of this .

se, . date na decision has as yet heen rendered by: 2

Bie Jude Tauro, ge Souler vent tA eee

JNOv. . 5- Brieé of amicus, Grove Pfess, hae filed. Copy a |

a eons, Judge, Malrich and, Judge Pettine.

120 Tikes ‘Se pee Court—Hearing on restiaiging or- ad

der; advisement. Rulings and Findings of © hief, " a

< Justice Tauro, filed. : 3 7

«°

° 8 . 5 ; . ‘ :

‘196%.

. ‘1

“~~

. ; . ' se i zt

Appearance of Lawrence P. Cohen, Ast Atty

Gene ral, filed.

Defe ndant’ s motion for “abstention, filed. .

“Memorandum in support of defendant's motion

‘for alistention, filed . |

Taree Jone Covrer—Dearing on motion for

, preliminary injunction; arguments; advisement.’

Avoncnu, Cu. J. Orixtos filed... “the injune-

tion will-not POW part aR week, to permit plain-

tiffs to add othe? varties, jf <o advised, atid to

vive the defendant .the ankeatd to apply to

thy Circuit Justice for a stay.

ait LIAN, J., Dissextine-Orisiox filed . ..‘¢In my

opinion the position take by the majority of -

this Court ix leg: ly unsound and inimical to *

the pulslic interest. IT must therefore dissent.

Copies of opinions delivered to counsel in hand.

Appearance of Louis M. Nordlinger, Esq., for

defendant, filed. | &

Motion of plaintiffs to add partion. defendant,

Robert Quinn, Attorney General; filed. .

Motion of Grove Press, Tne. to enter as’ party’

plaintiff, filed.

Notice of appeal filed. ‘Copies > ines Swartz,

Roberts & Dershowitz.

Consent and-opposition to plaintiff’s motion to

‘add ‘parties defendants, filed.

- Avoercn, Cu. J. Order’ adding. Robert H.

Quint, Attorney General of the Commonwealth

of Massachusetts, as a party defendant, entered,

Avpricn, Cu. J. and Perrixe, D. J. Ixsuxcriox

entered. Copies to counsel. ,

Aupnicn, Cu. J. On motion of the defendants

the temporary injunction pending a decision on

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z the merits entered this day stayed pending de-

fon fendants’ request to the SupremegGourt fora’ . fe

Rice afay pending their “appeal from the issuance “ *

= ped -said infunetion. * , ,

0 Appearance of Lawrence P, Cohen, Esa., for

deft Robert H. Quinn, filed. . i itn

-9 "Dees 10° Motion o& plaintiffs to, add Alun M. Brunner

- "and Campus Ceicma, Ine. as parties plaintiffs,

filed. oe 4 ,

W1. Aniended motion of the pinta to ddd parties all

plaintiffs and? party defendant filed,

15- Opposition of defendants to ‘motion of plain-

tiffs to add parties, filed.

~ 16. Stenographie record of proceedings’ on Nov. 12,.°’

1969, filed. use :

‘3 ’ Stenographice record of proceedives on ev. 21,

“a 1969, filed. °

. 24° Deft’s supplemental notice “of appeal filed.

o7h-8 ‘was Copies to Messrs. Swartz, Roberts and Dersho- <a) :

witz. . | . -_

f 1 ME SS re Cee petals

Jan. 7 Original pleadings i in one volume sent to the Su-

Yay preme Court by certified —. Bs 170170) ~ !

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‘ _

; v xirep States Districr Cov CRT FOR THE ;

fe. Disrric + oF Massacue SETTS ‘

ae = ;

Civil Action 69- 665-3

Serarim Karan EXIS, JAMES Viamos, Sympnony Cixesa II,

Ixc., axnp Fito Distrine rors, Ixc., Ave or 252 Huxiixeros

AVENUE, Boston, MAsSACHURETTS,

° PLAINTIFFS,

as v. Oe eae

jannetr Byaxe, as He Ix THE Duty KEvecarep Disrrucrt -

ATTORNEY FoR SUFFOLK C ov NTY, City oF Bostox, ComMon-

" WEALTH OF Massacut SETTS, ye ’

tins. Assistant Districs ATTORNEY "THEODORE GLYNN, Jn.

Acext ov tue Surrotk County /Districr Attorney, 21

« Earve Roap, Wevvestey, Massacivserts,

9 : DEFENDANT, an

COMPLAINT

p - Sapese AInjunetion and Preliminary Fnjunetion)

Plaintiffs, by their attornéys, allege as follows:.

(1) Jurisdiction of this action is conferred wpon this

*‘Court-by. Title 28 U S. ('. See. 1343, on ‘the theory that this

is a civil rights action under Title 42 U.S.C. See, 1983..The

_tmount in controversy exceeds Ten Thousand ($10,000.00)

Dollars exclusive of interest and costs.

(2) Film Distributors, Ine, ix a Massachusetts corpora-

tion doing business unler the trade name of Symphony

Cinema FT, a theatre located at 252 Huntington Avenue, in

Boston. danies Viamow ix a restdent of the City of Boston

and the President of both corporations, Symphony Cinema

Il, Ine: ix a Massachusetts corporation doing business un-

dex the trade yame of. Symphony Cinema, Il, a theatre lo-

eated at 252 Huntington Avene. in Boston. Serafim Kara-

lexis is the theatre manager of both theatres, and an em-

ployee of both corporagions. pe : °

° °

(3) The defendant is the duly elected disfriet attorney .

for Suffolk County in the. Commonwealth of, Massachu-

‘setts.

(4). Un Wednesday rhorning, ‘we 28, 1969, the ibe:

tiffs comménced the exhibitien of the’ motion picture known

s “I Am Curious (Yellow)’’. at the theatres Symphony

Cinema hand Symphony Cinema II in the City of Bos- °

ton. |

(5) On Thursday, May 29, 1969, the defendant did or-

der his agents and servants in the Boston Police Depart-

ment to make application for a seareh warrant for au-

thority to seize the print of the motion picture “T Am

Curious (Yellow)”’ playing at the aforementioned thea-

tres. Such warrant was’ granted by the First Assistant

‘Clerk of the Roxbury District Court of the City of Boston

on Thursday, May 29, 1969, and on that afternoon, offi-_

cers of the-Boston Police Department did ‘seize, the. print

” - of the motion picture in the custody of the plaintiffs. .

(6) ‘A copy of the search warrant secured by Sergeant

Edmund Griffin of the Boston Police Department, under

color of authority granted in Sections 1, 2, 2A, 2B and

2C of Chapter 276 of the’ Massachusetts General Laws is

-attached hereto as Exhibit A. The warrant was in three

parts — the warrant, the affiday rit, and the report of Detee-

tive Garrett Flanagan as attached to the'affidavit. This do-

cunient in all three parts is attached as aforesaid,

(7). At no time prior tothe seizure of the film was there

any prior adversary proceeding to determine the alleged

obscenity ‘of the motion picture “*] Am Curious (Yel-,

low).”” eta:

(8) That on Tuesday morning, June, 3, 1969, indiet-

ments were returned against all of the plaintiffs herein

vy the Suffolk County,Grand Jury for alleged violation

of Section 28A and Section 32 of Chapter 272 of the Massa-

chusetts General Laws — to wit, possessing ‘an obscene

ae ee ee

‘ motion picture and exhibiting an obscene motion picture,

namely, the film ‘*l Am C urious (Yellow).’’ ap

(9) Proceedings preliminaty to trial in the Suffelk .

Superior Court commenced.on the morning of Tuesday,

June 11, 1969, in front -of Superior Court Chief Justice

Joseph Tauro, As of the date of this complaint, prelimin-

‘ary. -matters are still being heard before the said Judge -

‘Tanro, °* |

(10) ‘That on May 28, 1969, the Supreme J udicial Court

of Massachusetts in the case of Commonwealth y. State

Amusement Corporation, did declare that seizure of a mo-

tion picture could take place within. the Commonwealth of

Massachusetts by a police officer, after the ‘police officer

had made a report to a judge of a local district court. The ©

Massachusetts Supreme Judicial Court held that this was

‘a procedure neees to focus searchingly, on the ques- ;

tion of obscenity,?’ By implication, since there was no |

adversary ‘proceeding prior to the seizure of the motion

‘picture in the State Amusement Corporation case, the Sup-

reme Judicial Court of Massachusetts has declared that a’

prior adversary proceeding before seizure-af—a motion

OT .

picture is net necessary within the Commonwealth of

Massachusetts. Case is attached hereto as Exhibit B.

(11) That for the ease it which the plaintiffs are de-

‘fendants in the Suffolk Superior Court, the said Judge

Tauro is therefore‘bound by tlie decision of ‘the Massachu-

setts Supreme Judicial Court that a prior adversary pro- -

eceding before s¢izure of a motion. picture which is al-

leged to be obscene is hot necessary.

(12) That the seizure of the. motion picture “T Am Cu-

riaus (Yellow)’’ by the defendant, his agents or servants,

without a prior adversary proceeding as to its alleged ob-

_ seenity, is a.violation of the rights of the plaintiffs herein

under the First, Fourth, and Fourteenth Amendments of

the United States Constitution, and i is of such a nature that ;

Be alee

unless a permanent injunction is granted by this Court to .

\ enjoin the actions of the defendant so as to direct the de- .

feridant to return to the: plaintiffs the print of the motion’

‘picture ‘*T Am Curious (Yellow)? which was seized by the

defendant, his agents or servants, and enjoining: the de-

fendant from any further seizure of any of the prints of

the motion picture ‘I Am Curious (Yellow),’’ witil such”

time as a prior adversary. proceeding as to its alleged ob- 3

_. seenity has been held in some appropriate court in the

Commonwealth of Massachusctts, that your plaintiffs hero

~ in have and will continue to suffer. ie csi harm and .

_ damage,

(13Y That the plainitffs herein have — able to con-

tinue to exhibit the motion picture “I Am Curious. (Yel- -

oi low) ”’ since May 30, 1969, because of the consideration and

. courtesy of the defendant in asserting that he would make

no further seizures and prosecutions for the exhibition of.

this film, asa violation of Sections- 28 and 32 as afore-’

said. There is-no judicial or statutory restraint upon the

defendant from any further seizure and prosecution for

| exhibition” of this film, should the “defendant change his

nfind. =

(14) That in Commonwealth vy. State Amusement Cor-

ee poration, the Massachusetts Supreme Judicial Court- was

asked to consider whether or not Section 32 is sufficiently

definite given-the constitufional standards for an obsce-

nity prosecution as set forth by the United States Supreme

“ Court in Memoirs v. Massachusetts, 383 U.S. 413- (1966),

and Redrup v. New York, 386 U.S. 767 (1967). The Massa-

chusetts Supreme Judicial C ourt did not answer this ques-"’

tion. Nor has. the Massachusetts Supreme Judicial Court

ever supplied the standard of ‘knowing: the work to be ob-’

scene’’ to Section 32.

Wueneror:, plaintiffs pray: :

. (1) That a preliminary injunction and a permanent in-

ants ene i

Sisal be granted, prohibiting the defendant, his agents

or servants, from any further seizures of prints of the

motion picture , “T Am Curious (Yellow)’’ without a prior

adver sary proceeding in an apprapriate court in Massa-.

chisetts as ‘to. the’ alleged obscenity of the motion ~pic-

ture. © <8

(2) That the Court order the defendant to habits eo the

plaintiffs herein the print of *the motion. picture “T Am |

Curious (Yellow)”’ seized by the defendant, his agents or.

servants, on Thursday, May. 29,4969; that the Court’ order

‘the’ suppression, of its evidence in the cases now pending

“against the plaintiffs herein in Suffolk Superior Court

- as aforesaid;. both for the reason that. there.was no prior

adversary proceeding. before seizure. of the print, which

was then exhibited to the Grand Jury and the basis. pon

: which indictments were returned. . Sens

( 3) ‘That this Court order a preliminary injunction, and

following appropriate hearing, a. permanent ‘injunction,

against the defendant, his agents or servants, from any

further continuation of the prosecution of the plaintiffs

herein as they are defendants in the case in Suffolk Supe-

rior Court, on the grounds of alleged violation of Section

32 of Chapter: 272 of the Massachusetts General Laws. until

such time asthe said Section 32 has been altered and

amended to include the following:

(a) Requirement: of ‘‘knowledge’’ on the part” of

the exhibitor of a particular work. | sey"

(b) Definition of Section 52 to the effect that

no conduct -is proscribed therein be yond oe has now

bee ‘ome the constitutional definition of ‘tile crime of

obseénity.

(ce) That provisions for an expedited trial on. the

merits of the question of obscenity, and expedited ,ap-

peal if the trial court’ finds obscenity, a fixed time

within which the trial must be held, a fixed time

, F 7 ‘ :

ee : 11

within- which a trial. court must rendei its ‘judgment

in the event that the case is jury waived, a, fixed

time within which an Appellate Court must hear an.

appeal, and a fixed time within which’ Appetiate

Court must’ render its judgment.

(d) Lacking the opportunity to smuplenices this, the >

State must -provide for provisions by which the’ work |

of art. can‘ continue to be exhibited, with the exhibi-

tors free from further prosecution during such in- -

_ terim period. ; )

(e) That no prosecution under this section can he som

commenced, on the.basis of First Amendment evidence —/

which is seized without a prior adversary procéeding. ,

(4)ge That, this -@ourt order a preliminary injunction,

‘and following appropriate hearing, a permanent injune-

tion, against . the’ defendant, his agents or servants, from

any. further continuation of the prosecution of the plain- /

tiffs herein as they are’ ‘defendants in the case in Suffolk —

Superior Court, on the .grounds of alleged violation of

Section 28A- of*€ ‘Hapter 272-of the Massachusetes General

‘Laws until such time as the said Section 28A has been al- s

tered and amended to include the. following:

(i) That provisions for ‘an expedited trial on the

merits 6f the question’ of obscenity, an’ expedited ap-

peal if-the trial court finds obscenity, a fixed time

within w hich the trial-must be ‘held, a fixed time with-

in which a Artal court must render its judgment in’

the event that the case.is jury Waiver, a fixed time

within whi¢h an Appellate Court must hear an “ap

peal, and a fixed time w ‘ithin: w hich the see Court:

; must render its judgment. - {

(bh) Lacking -the aaneieilis to snelnigdask this, the

State must: provide for provisions-by-which the w ork

of art can continue to be exhibited, with the exhibi-

Aree

~ tors free from further prosecution during such inte:

") rim period. . , |

commenced on the basis of First. Amendment evidence -

which is ‘seized without a ent adversar y. proceed-.

ee kane k ag oat ox, : |

(5) \Your pl aintifts further pray that’ an injunction is-

+ "Am Curious Yellow),’’ or any, further prosecution in this’

sue-restrainin ‘this prosecution of. the motion picture “I.

‘am Cro (i motion “picture ‘‘I Am Curious (Yel->

tiffs confend and. pray herein on the basis that any such

prosecution is ‘‘without hope of success. re As” reasons for

this plaintiffs offer: | ;

low)”’ aa grounds that it: is ‘allegedly obscene.’’ Plain-

" / (a) The decision of the ‘United States Court of Ap-

peals | for the Second Circuit that this film is not eb-

scene. United States v..A Motion Picture Film Eutitled

IT Am Curious (Fellow), 285 F. Supp. 465 (1968).

(b) That. for the trial of such case, it was ad-

“mitted” by the United States Department of Customs |

that the film does have ‘social value.”

» > (ep That the film is now playing without prosecu-

tion in approxinrately 10 major, metropolitan centers

: throughout the country. See affidavit. -

‘(d) That-this film has received serious and praise-

worthy review by newspapers, magazines, ttlevision

stations ‘atid radio stations throughout the country.

That it has-been treated as a serious work of art in.

all of the communication outlets as aforesaid..

(e) That as per the affidavit attached. to this cam-

plaint,. more than 25 leading citizens of ‘the Greater

Boston community have personally expressed their |

willingness to the attoriiey for’ the plaintiffs herein

to testify at any trial concerning the alleged .obsce-

i nity of the motion ae to the effect that the motion

: 13...

picture is not obscene and, does indeed have “ soeial

'value.’? Affidavit is attached hereto. ae

(6) For such other and further ‘relief as this Court is

shal deem. essential or proper in accordance. with equity, ;

and, law. 7

: "PLAINTIFFS, Nerafim Karalexis, .

8. . Jarhes Vlamos, = ee

3 | Symphony Cinema II, Inc.,

and Film Distributors, Ine.

By their Attorney,

HEgpert S. Swarrz rae

“(Cortieat of Service — - Omitted]

_. [Bhibite Omitted]

UNITED STATES DISTRICT COURT FOR THE -

. _ DISTRICT OF cei rain atin

“(Tree Ouurrep}

‘MOTION TO AMEND COMPLAIN?’

_ Plaintiffs move: the Court for leave to amend their com-_

plaint by striking same-except for the exhibits, attached

thereto and substituting therefoi the complaint hereto -at-

- tached and entitled AMENDED ‘CoM PLAINT. ee

| ag Attorney for Plaintiffs, ©.

’

& 7

e 4%

Hersert 8. Swartz.

1330 Beacon Street .

; Brookline, Massachusetts

[Certificate of Service — eee

eae oS

‘ 1'The indictments in Suffolk Superior Ci ourt against the plaintiffs”

are as follows: 42587 and 42588 ‘against the two corporations: -

42589 and 42590 against Vlamos as he is the President of both ,

corporations: 42591 and 42592 against Karalexis. All six indict- *-

ments are in violation of Sections’ 28A and 32, Chapter 272 of the.

Massachusetts. General Laws,. ° f

Cae .

oy LPN 8 jab Lachey

a) LN

BY ss _™

ipo RSSE Ng: - -

Unirep States Distrret Court Fror.THE

“District OF MASSACHUSETTS | e

“yceakl tea . [Trrte Omirrep] roe

AMENDED COMPLAINT.

‘(Permanent and Pr elimingsy Injunction) | on

-_ Plaintiffs by their attorneys, alleged as follows: —

“(): Jurisdiction of. this action is conferred upon this .

Court by Title 28 U.S.C., See. 1343; on the theory that this

is a eivil rights— action under Title 42’ U.S.C.,- See. 1983.”

~. The amount in controv ersy exceeds Ten 'Thous: and (#10, -°

000.00) Dollars exclusive of interest and costs.

(2) Film Distributors, Ine: is a Massachusetts corpore ‘a-

‘tion doing «business under: the. trade. name af Symphony

. Cinema I, a theatre located ‘at 252 Huntington Avenue, in —

- Boston. James Vlamos is a resident of. the City of Boston, *

and the President of Troth corporations. Symphony Cinema

ke IT, Ine. isa Massachusetts corporation doing bysiness under

the irade name of. Symphony Cinema IT, a theatre located

at 252 Huntington Avenue, in. Boston. Serafim Karalexis

is the theatre manager of . both theatres, and an Ai eumptoy ee

of both corporations. "4

(3) The. defendant is the duly ‘elected district attorney

for Suffolk County in the Commonwealth of Massachusetts.

. (4)) On Wednesday morning, May 28, 1969, the plain-

fifs “mmenced the exhibition of the motion picture known -

as “I Am. Curious (Yéllow)’? at the theatres Symphony.”

Cinema I and Symphony Cinema IT in the City of Boston.

(5) On Thursday, May 29, 1969, .the defendant ‘did

_ order his agents. and servants in the Boston Police Depart; |

ment to make application-for a search’ warrant for author-

ity to seize the print of the motion picture ‘/I Ari Curious

(Yellow)’’ playing atthe aforementioned theatres. Such ©

warrant was granted by, the First Assistant Clerk of the .

Roxbury District Court of the ‘City of Boston on Thurs-

pan doc ‘umeat in all thfee parts is attached as afores

.(7) At no time priof to the seizure of The. film was there

(lay, ee 29, 1969, and -en that atternoon: officers of the

~ Boston Police Department did seize tle print of the motion

‘pret ure'in the. custody of the plaintiffs.

( 6). A copy of the search warrant ‘secured by ‘be -eeant 7

Edmund ‘Griffni of the Boston Police Department, under

} color of abthority granted: in Sections 1, 2, 2A, 2B and 2C

of ‘Chapter 276 of the Massachusetts General Laws is at-

tached hereto as ,Exhibit A. The wrrant *Wase in three

‘paris — thie warranty.the affidavit, andthe report of De-

tective Garrett Flanagan as attached to tg affidavit. This ~

aid. Sencar

any prior adversary proceeding to.deiermine ‘the alleged

obscenity of the motitn picture ‘T Am Curious (Yellow).’’

"(8) That: on Tuesday morning, June. 3, 1969, indict-

ments were returned against all. of the: plaintiffs herein by

the. Suffolk County Grand Jury for- alleged violatron ‘of

Section ISA and Section 32 of Chapter 272 of the Massa-

- chusetts General Laws-—-to wit, possessing—an obseene

- motion pictiire and exhibiting an obscene motion picture,

; namely, the film ‘‘T Am Curious: Yellow ).«.”’

(9) Proceedings preliminary to trial in the Suffolk Su-

perior Court commenced on the morning of Tuesday, June

Tauro. As of the date of this ¢omplaint, preliminary mat-

. ters are still being heard before the said Judge Tauro.

(10) That on May 28, 1969, the Supreme Judicial Court. .

of Massachusetts in the ease of. Commonwealth ,v. State

Amusement Corporation, did declare that seizure ‘of a mo-

tion picture,could take .place within the ‘Comrhonwealth of

Massachusetts by a police officer, after the police officer

had made'a report to a-judge of a local district, court. The

* Massachusetts: Supreme Judicial Court held that this*was

~ «a procedure ‘designed to. focus searchingly. on the question

> . i oe |

11, 1969, in front of Superior, Court Chief Justice Joseph ,

_ of obscenity,’? By implication, since there was no adver- .

tie" ) 16

sary proceeding prier téthe seizure’of thé motion picture in

_. the State Amusement Corporation case, the Supreme Judi-

cial Court of Massachusetts has declared that a prior ad-

versary proceeding beforg seizure of a motion picture ‘is

not necessary within the NR of Massachusetts.

Case is attached hereto as Exhibit B.

(11) That for the case in which the plaintiffs are de:

femlants if, the Suffolk Superiore Court, the said Judge *

Tauro i is therefore bound by the decision of the Massachu-

setts Supreme Judicial Court that a prior adversary pro-

ceeding before seizure of a motion picture which is- alleged

to be obscene is not necessary. .

(12). That the seizure ‘of the motion picture ““T Am

Curious {Yellow)”’ by the defendant, his agents or serv-

ants, without a priopadversary proceeding as to its alleged

obscenity, is a violation of the rights of the ‘plaintiffs here-

iff under the First, Féurth, and Fourteenth Amendments

of the United States Constitution, and is ‘of such a nature

that uiless a permanent injunction is granted by this

‘Court to enjoin the actiops of the defendant so as to direct

the defendant to return to the plaintiffs the print of the

- motion picture ‘‘I Am Curious ( Yellow) ** which was seized

by the defendant, his ents or servants, and enjoining the

defendant from any further seizure of any of the qrints of

the motion picture “I Am Curious (Yellow),’* until such

time as a prior adversary proceeding as toJts alleged ob-

scenity has been held in some appropriate court in thé

Commonwealth of Massachusetts, that Your plaintiff« here-

in have and will continue to suffer irreparable harm and

damage. . Ost ;

,415) That the plaintiffs hétéin have been able to con:

| tinue to exhibit the motion picture “*T Am C ‘urious, (Vel.

low)’ since May 230, 1969; because of the consideration “gnd

eourtesy tf the defendant in asserting that he. would make

no further seizures and prosecutions for the exhibition of

. ° . oo

; ; ; ‘

» i.

this film, as a violation of Sections 986A and 32 as aforesaid.

There is no judicial or statutory restraint ” the defen-

dant from any further-seizure.and prosecufion for exhibi-

tion of this film, should fhe defendant change his mind. - «

(14) That in Commonwealth v. State A misement Cor-

poration, the Massachusetts Supreme Judicial Court was *

asked to consider whether or not Section 32-is sufficigatly

definite giv en the constitutional standarils for an obscenity

prosecution as set forth by the United States Supreme

Court in Memoirs ¥.:Massachusetts, 363 U.S, 413 (1966), .

and Redrup v. New*Y ork, 386 U.S. 767 (1967). The Massa-

‘chusetts Supreme Judicial Court did not answer this ques-—

tion. Nor has the Massachusetts Supreme ‘Judicial Court

ever supplied the standard of, ‘knowing the work to be’ ~~

obscene’’ to Section 32.

(15) Section 32 of Massachusetts General Laws, a .

er 272 =. ,

(a) Contains no requirement that an alleged viglator

‘**know the work to be obscene.’’

, (b) Section 32 proseribes conduct which is beyond

the constitutional definition of the crime of obscenity.

& (ec) There are no provisions in Section 92 for an

expedited trial on the merits of the ‘question of ob- ° ,

seenity, and expedited appeal if the trial -ourt ‘finds ®

_ Obseenity, a fixed time within’ which, a trial. must be

held, a fixed time within whieh a trial fourt must ren-

der -its judgment in the event that the case is jure,

waived, a fixed time within which an Appellate Court

_ must hear an appeal, nor a fixed time within which the

Appellate Court must rendér its judgment.

(d) There is no provision in Section: 32 that if any

prosecution is commenced sander this,seetion on the

“basis of First Amendment eyidence,) such evidence

cannot be seized without a prior adversary proceeding.

(ec) There is no provision in Section 32 by which the

18.

work of art can continue to be exhibited, with the

exhibitor free from further prosecution during such,

interim period, until such time as there is a final ad-

judication of the alleged obscenity. ~_

Said Section 32 of Massachusetts Geperal Laws, Chapter

272 ix unconstitutional.

(16) Section 28.4 of Massachusetts General Laws, Chap-

ter 272

“Ss ie (a) There-are no provisions in Section 28A for an

_expedited trial on the merits, of ‘the qnestion of ob-

scenity, and expedited appeal if the trial court finds

obscenity, a fixed “time within which a trial must be

held, a fixed time within, which a frial court must ren-

dér its judgment in the event {hat the case is jury

waited, a fixed time within which an Appellate Court

7 nmust hear an appeal, nor a fixed time within which

4 the Appellate Court must rendet its judgment.

(b) There is no provision in Section 28A that if any

- prosecution is commenced under this Section on the

basis of First Amendment evidence, such evidence ¢an-

not be seized without a prior adversary proceeding. *

(ec) There is not provision in Section 28A by which

the work of art can continue to be exhibited, with the

exhibitor free from further prgsecution during such

| interim period, until such time as there is a final ad-

;, judieation of-the alleged obscenity.

: ad Said Section 28A of Massachusetts General Law 8, Chap-

_ * * ter 272 is unconstitutional.

: Wuenerore, plaintiffs pray:

(1) That a preliminary injunction and a -permanent

injunction be granted prohibiting the defendant, his agents

or servants, from any further seizures of prints of the #

motion picture I Am Curious (Yellow)’’ without a prior -

adversary proceeding in an appropriate court in Massachu-

setts as to the wees” gosta of the motion picture.

f 2

ee RN Sees Sa Se

- Sawer ge oe

19 in ‘, ats

y 4 .

(2) That the Court order the defendant to return td’

the-plaintiffs herein the print of the motion picture ‘1 Am

Curious (Yellow)”’ seized by the defendant, his agents or

servants, on Thursday, May 29,. 1969; that the- C ourt order

the suppression of its evidence in the cases now pending

against the plaintiffs heréin in Suffolk Superior Court as

aforesaid; both for the reason that there was no prior ad-

yersary proceeding before seizure of the print, which was

then exhibited to the Grand Jury and the basis upon w hich

indictments were returned.

(3) That ‘this Court order a‘ preliminary injunction,

and that following appropriate hearing, a permanent in-

junction, against the defendant, his- agents or servants, _

from any further continuation of the prosecution of the

plaintiffs herein in the said six actions now pending in the ”

Suffolk Superior Court (Docket iumbers 42587, through

42592) ‘until such time as the said Sections 32 and 28A of -

Massachusetts General Laws, Chapter 272, have been ap-.

_ propiately altered and amended,

(4) _ Your plaintiffs further pray that an injunction is- .

sue restraining this prosecution of the motion picture “I

Am Curious (Yellow),’’ or any further prosecution in this

- jurisdiction of the motion picture “T Am Curious (Yel-’

Jow)”’ on the grounds that it is ‘‘allegedly obscene.’’ Plain-

tiffs contend any pray herein on the basis that any such

proseeution is ‘‘without hoye = suecess.’’ As reasons for

this plaintiffs offer: ‘

(a) The decision of the United a Court of Ap-

peals for ‘the Second Cireuit thaf this film is not vb-

scene. United States v°A Molion Picture Film Entitled

“LT Am Curious (Yellow),’’ 285 F. Supp. 465 (1968).

(b) That for the trial of sich case, it was‘admitted

by the-Uhited muaton, Poparsment of Customs-that the .

~ film does have ‘social value.’

(e) That the film is now playing without prosecu-

tion in approximately 10. major, metropolitan centers

throughout the country. See affidavit?

(d) That this film has received serious and praise-

worthy reviews by newspapers, nagiazines, television

. stations and radio stations throughout the country.

That it has been treated as a serious work of art in

all communieations outlets as afor esaid.

(ec) That as per the affidavit atfached to “rd coni-

plaint, more than 25 leading citizens of. the ater

Besten—community have personaly expressed ‘als

willingness to.the attorney for the plaintiffs herein

to testify at any trial concerning the alleged obscenity

of the motion picture,-to the effect that the motion

picture is, uot obsgene and does indeed have’ ‘social _-

-value.’’ Affidavit is attached hereto.

(5) For such other and further relief as this Court shall

deem éssential or proper in accordance with equity and law,

‘ PLAINTIFFS, SERAFIM KARALEXIS,

*“* James Viamos, Sympnony

Crxema JI, Ixec., ann Fitm

-Disrrisvtors, Ixc,

By their Attorney,

: (s). Hersert S: Swartz

Hersert S. Swartz

‘3 The indictments in Suffolk Superior Court against the plaintiffs ;

are as follows: 42587, and 42588 against the two corporations,’

42589 and 42590 against .Vlamos as he is the President of both

corporations ; 42591 and 42592 against Karalexis. All six indiect-

ments are in violation of Seetiohs 28A and 32, Chapter 272 of ‘the

Massachusetts General Laws.

Unirep States Distrricy Courr

District or MAssacHUseTts

[Tirte Omirrep] —~ *

: a

Before Avonic uN, Cire wit. Judge, aid SHAN ander r1Ne,

District Judges 8 ligar ;

+ TEMPORARY INJUNCTION

| June 24, 1969 ;

After Que notice .and hearing, and pursuant to this

- Court’s. ruling filed this day on the plaintiffs’ application .

for a temporary injunction, it is hereby ordered that pend-

ing further order of this Court the: defendant, Garrett

Byrne, as he is the District Attorney for the County of

Suffolk, Comnionwealth -of Massachusetts, be and he is ..

hereby restrained from prosecuting the indictments pending

. against the plaintiffs herein in the Superior Court in and

for said County, being criminal .cases numbered 42587

through 42592, other than for the purpose of. considering

_and déciding pending or new motions to dismiss, and pend- ~

ing or new motions to ee. evidenct? ? ,

——————2-9—-—-

Unirep States Districr Court |

’ District or Massacuvsetts

: (True Oxrrrgn] . a:

par ie Aupricn, Circuit Judge, iol JULIAN and Pertixe,

District Judges. eri; a!

. RULING ON PLAINTIFFS’ APPLICATION

- "FOR A PRELIMINARY INJUNCTION «|

| June 24, 1969 ,

-In this three-judge court case plaintiffs seck a déclara-.

tion that Mass. Gen.. Laws’ ¢. 272, 8 28A and 32, are un-

. p Pod -

Se ane

‘

PR ede ngah sa ety ow ©

eed

syns

constitutional. Although the allegations are not that simple,

plaintiffs may be said to allege two basie grounds. Fhe first

js that their moving picture, *T Ani Curious ¢Yellow),”’

was seized without san adversary preliminary hearing in

alléged viol: ition of their First Amendment rights. Neither

statute makes Any provision covering this matter. T he

seizure was affected as a result of a search warrant issued

‘on the basis of an affidavit. We do net recognize, nor are

we asked to recognize, in fimine jurisdiction to vacate im-

properly issued search w arrants, if this one be assumed to

be such, The statutes are rot unconstitutional merely be-

‘ause the prosecution conducted, if it did, an- improper

search for evidence. . :

Secondly, sections 28A and 32 may appear to be uneon-

stitutional on their face in. that they: make criminal the

‘publication of obscene matter in the absence of knowledge

of the content of the publication. Cf. Smith v. California,

1959, 361 U.S. 147. The. Massachusetts court has éonstrued

section 28A, however, implicitly to, require proof of scien-

ter, Demetropolis v. Commonwealth, 1961, 342 Mass. 658.

The eoart hi lias not passed upon section 32 in this respect.

It was stated in open court that the indictments pending

against plaintiffs in the siate Superior Court do not con-

tain an allegation of defendants’ knowledge of the content |

of the pieture. If the statute impliedly contains such a re-

quirement we would suppose that it should be alleged, for

in the absence ‘of. such. allegation the grand jury niigtt

have indieted without finding probable cause as to that

element of the offense. ee Me act

A federal court should be slow to declare a state statute

unconstitutional when there be doubt as to an uneonstitu-

tional meaning, Particularly. should this be true when, the

state court has, through a past ruling, indieated that it’

might give the st statute an interpretation which made it con-

stitutional. Whatever may be the limits of 28 US.C. § 2283,

plaintiffs have here full opportunity to obtain a ruling

23. -

from the state court. By motions to dismiss the indictments

“on the ground’ of failure to’ allege scienter, the filing of

which we will assume the state court would permit, plain-

tiffs may seek a construction of the statute. If the court

construes the statute in plaintiffs’: favor,’ presumably it

will dismiss the indictments. If it construes it as not re-

yuiring scienter and denies the motions to dismiss, then

we will be free to hold the statute unconstitutional for

JacR of an essential element,-should we so~détermine, and zm

grant the relief sought herein. 3

_ Under the circumstances we -shall issue a temporary in-

junction restraining: the prosecution of the state court

proceedings pending further order of this court, other than .

for the purpose of considering and deciding pending or

new motions to dismiss, and pending or new motions fo

suppress evidence.

unten States District Court

3 FOR THE |

District or MassacuHusETTs

° a

| [Titte Omittep]

MOTION TO FILE AN AMENDMENT TO

AMENDED COMPLAINT; AND TO FILE |

| A SUPPLEMENTARY BRIEF

Plaintiffs move the Court for leave to file an amendment

- to their amended complaint, said amendment attached here-

‘to and titled AMENDMENT zo AMEND. COMPLAINT ; ; and for

leave to file a supplementary ¥ br icf, which is attached liereto.

f Attorney for Plaintiffs,

_Herpert 8..Swartz |

-1330 Beacon Street

ates Brookline, Massachusetts

[Certificate of Service Omitted]

Perey

2”

é “o%

| Unurep States Disrater Cour RT

en ry utr FOR THE

Disrricr or MAssAaciiUserts

-| Tiree ( dnt irEED !

AM EXDMENT TO AME NDED COMP LAINT

‘Now come the plaintiffs i in the above matter and hereby

move that Prayer (5) on Pave 8 of their. Amended Com-

plaint be — and a new Prayer/(5) be Anserted: in its

ce as follows

(9) That this. Court declare and say that Seetions 2SA

‘and 32 of Chapter 272 of the Massachusetts General. Laws:

are ieoneitutional on their faee, and- unconstitutional in

their application to the plaintiffs herein, all in accordance ;

with Title 2s, U.S.C. Section 2201. ae)

That a new Prayer (6), (the prev ious Prayer (5)), be

added to\the Amended Complaint-as ‘follows :

(6) For sich other and further relief as this Court

shall deem essential or ‘proper in’ accordance with: equity

and i Gees :

PLAINTIFFS, SERAFIM KK ARAL EXIS,

ree . James Viamos, SymPHony

; ee” Gtyema IT, Inc, ann Fyim

. ~" Distripurors,, Ine.

. By their Attorney,

Hersert 8S. Swarrz

. ra

“9

Unirep Staves Districr Court

FORTHE *

~Districr oF Massachusetts

[Tire ‘Omirrep]

MOTION TO FIL iD AN AMENDMENT TO

AMENDED COMPLAINT — I"

~ (FOLLOWING DISMISSAL OF

ORIGINAL INDICTMENTS JIN

SUFFOLK SUPERIOR COURT) .

Plaintiffs. move the Court for leave to file a further

amendment to their amended complaint, said amendment

attached hereto and titled AmMexpMent, to AmMespen Com-

ruaint — IT (Following Dismissal of. Original Indictments

In Suffolk Supe jor Court): - ee

ae Attorney for Plaintiffs,

es Hersert’S. Swarrz |

; 1330 Beacon Street. ~

Brookline, Massachusetts

_ [Certificate of Service Omitted] °

Unirep Srares District Cov RT. -

FOR THE

Disrrre T OF Massac He SETTS

| Sigias Omrrrep] © : :

\- : 3 ‘.

- AMENDMENT TO AMENDED COMPLAINT — II

_ (Following Dismissal of Original Indictments —

in Suffolk Superior Court).

Now come the plaintiffs in the above matter and hereby

-move that the following allegations be added to Page 6 of

their Amended Complaint, as follows:

(17), Following hearing of this. case ‘before a ‘ves.

26 ~

judge court, the said three- judge court’ sa tales Jun

24,1969; tlid issue a temporary restraining order OR

Ahe pending state indictments as aforesaid. ye :

(13) The attorney for the plaintiffs herein, the defen-

dants in Suffolk Superior Court, did make a motion in

Suffolk Superior’ Court before Judge Tauro on’ W ednes-

‘day morning, June 25, 1969, to have the pending ‘indict-.

ments dismissed. This motion was-assented to by the. Com-

“monwealth and said indictments have now been dismissed,

being all of the indictments set forth as aforesajd in ‘this.

Complaint. .

(19) That’ request has now been made to the attorney

for the plaintiffs herein by the Office of the Suffolk County

District Attorney that the said attorney make available

_to the Office of the Suffolk County District. Attorney’ one

' print of the motion picture me Am Curious (Yellow).’”

This print will be used for any further investigations to be

made by the Office of the Suffolk County District Attorney,

and for further use if necessary if presentation is made to

the Grand. Jury sitting for and of the County of Suffolk

for the return of indictments against your plaintiffs here-

in, similar to the, original-indictments for which this C om-

plaint- was brought. The attorney for the plaintiffs herein

has made available to the Office of the Suffolk County Dis-

trict Attorney one. print’ of the motion pieture “T Am

“Curious (Yellow)s’ >and in furtherance of the request made

‘by the Office of the Suffolk County District Attorney this

print may be used for whatever purposes’ are necessary: at.

trial of the plaintiffs herein, ‘if indictments are: réturned

against them: in Suffolk County by the Gi ‘and Jury. ;

(20) . On information and belief, the plaintiffs herein say

that they do anticipate that further indictments will he

sought against them by the Office of the Suffolk County '

District Attorney for alleged violations of Section 28A of.

: Chapter r 272 of the Massachusetts General’ Laws. That pro-

a : jee 3 27

é secution for an offense under’ Section 28 would require

that the defendants ‘‘know the, work to’ be obscene.’’ De--

: ‘metropolos v. Commonwealth, 342-Mass. 65 58: (1961).

(21) That in reliance upon Memotrs ‘v . Myssachusetts,

Ce S. 413 (1966), the Massachmsetts pope Judicial ..

Court’ still follows the criteria set up-in that ea

constitutional definition of obseenity — (1) That the domin-.

ant theme of the work appeals to a prurient interest in SEX;

(2) That the work is, patently offensive Ks) contemporary

community standards of sexual. ‘representation or deserip-" 7

tidn; and (3) That the work is utterly withoyt social value.

See Commonwealth Vv. State Amusement Gprorasion, Para-

- graph 10 of the Amended Complaint, ¥ |

ern ne Sf. eae As,

m Wn. &

The plaintiffs in the above matter further and hereby *

move this Honorable: ¢ Court to amend their Complaints by

- deleting Prayers (5) and (6), originally on Page 8 of their

Amefided Complaint, as added to it by the Amendment to

3¢ for the. ;

the Amended Complaint, and that folléwing deletion of...

said Prayers (5) and (6), the eolowmns prayers be’ added

in their place as follows:

(5) That this Court, déclare i say that Section O8A

_of Chapter 272 of the Massachusetts: General .Laws-is un-:

constitutional of its fa¢e, and unconstitutional in its appli-

cation to the plaintiffs herein,. all i in accordance w ith Title

28 U.S. C., Section 2201. °

(6) That this Court declare and say that the motion

picture ‘I Am Curious (Yellow) ” is not obscene. within

the constitutional definition, of obscenity as set forth’by the -

United States Supreme Court in Redrup.v..New York, 386"

U.S. 767° (1967): See also Book's, Inc. v. United States, 385

‘FE. 2d 935-(1 Cir. 1966), rev’d 388 U.S, 449 (1967).

(7) That this Court restrain any future prosecutions

of the.motion picture ‘‘I Am.Curious (Yellow)”’ on the

grounds that it is “allegedly obigcnel within ‘the terms of |

98 ,

i a

Section 28A of Chapter 272, for the reason that there is no

‘way that any future defendant in such proseention could

**know the wérk to be obseene.”’ -

8) a Be further prosecutions of the motiofi picture

Am Curious (Yellow)’’ on the grounds that it is ‘‘al-

icdie obscene’? and therefore violative of Section 28A

of Chapter 272 of’ Massachusetts’ General Laws be re-

strained until such time as the Massachusetts courts affirm

that the siandards for finding a work obscerie within the

constitutional definition. of obscenity as set forth in Re-

drup v. New York, supra, are that — (1) That the work ~

was being shown to thogt under the age of 18; (2) Or that

the work was an invasion of privacy ; oF (3) That the work

" wat béing advertised.in a “pandering” manner.

(9) That this Court issue ah injunction restraining .

any further prosecutions: of the filaintiffs herein for the

showing of thé motion picture ‘‘I Am Curious (Yellow)”

on the grounds that any prosecution is ‘without hope of

suceess,”” in that given the decision. of the Second Cirenit,

no prosecution could hope to prove that this film is ‘‘utter-

ly without social yalue’’ or that if is ‘‘patently offensive

to contemporary Community standards of sexual.represen-

‘fhtion er description,” interpreting the word ‘‘community’’.

-as implyliig a sational standard, See Jacobellis vy. Ohio,

878 US. 184 (1964); Mayual Enterprises. v. Day, 379 US.

478 (1962); and In re Gianini,72 Cal. Rptr. 655 (1968).

(10) For such other and farther relief as this Court

shall deem essential or proper in accordance with Equity

and Law. ”

Tolan | “ PLAINTivps, Senarit Kanacexis,

. 7 an | Jamis Viamos, Symrnowy

sui os Cixema TI, Ixt., ax Frise

\ , , Distarmvtors, Ine.

ee By their Attorney,

Heneeet 8. Swartz:

o>.

"Untrep States District Covert

Distnict oy Massacuvsetts.

‘ : —*

(Tit_e Omirtep) _ °-

kal Aubaicu,-Circuit “Judge, and: Jv LIAS and Perrixe,

District J wages

MEMORANDUM AND RULINGS ON MOTION TO

FURTHER AMEND COMPLAINT, ON MOTION

TO INTERVENE, AND ON MOTION FOR

1s PRELIMINARY INJUNCTION

: July 15, 1969

The motion to further amend. the ‘complaint is allowed.

The-motion for leave to intervene is denied. (Proposed

intervenor may file an amicus brief at stich times as briefs

may be appropriate.) ‘ .

The motion for a temporary injunction is denied at this

time, subject to renewal if and when petitioner is con-

victed in the Superior Court. If petitioner is convicted and

the proseeution offers {6 renew the present stipulation,

that no seizure of film hy interruption. with the showing

. be made, the motion for injunction shall not be renewed

until a motion for judgment n.o.v. shall be heard and de-

termined against the petitioner, or for 30 days after ver-

dict, whichevér shall first oceur.

Although the court has allowed the motion to further

amend, it will not consider now or at any time the-claim

that petitioner's film is not obscene, as an evidentiary mat-

ter! The court may consider ruling on the question whether

the statate is unconstitutional on_jts face, or whether it ix

unconstitutional to prosecute an oDycene ptblication not

conspicuously or pruriently advertiséd and not available -

to-minors. ‘

The court presently invites briefs on the following ques-

tions: »! ;

4 “

— —-*

; - F ie . } 32°

has been given, 28 ULS.C. © 2284, and an assistant attorney

general has conducted thy defense throughout. Plaintiffs

seck a declaration that the. statute ix gmconstitutional and an

injunction againsi prosec “ution thereunder. Because of the

fact that the’ original indictments were: - defective, the pro-

coedings sought to be enjoined postdate the assumption of

. jurisdiction by this court, and no question arises under 28°

U.S.C. .§ 2283, the anti- injiinetion, or what is sometimes

called the comity; statute, — '

Defendant's broad motion to dixmixs textx the Mibstane «

of plaintiff<*ease, Our present question, however, is only

whether We shall issue a temporary injunction pending

final disposition, there heing possille reasons to withhold -

the making of a fina decision, which we have not yet fully

explored, Alternatively, there ab od. ony whether we

should abstain altogether, withouf graMing temporary re-’

lief. With respect to-the first quedtion, the issues, of ;

are whether there is a probability that plaintiffs will ultima-

tely prevail, A utomatic Radio Mfg. Co. v. Ford Motor Co.,

1 Cir., 1968, 390 F. 2d 113, cert. devied 391 U.S. 914, and the

adequacy of the remedy at law.

' The following facts appear by stipulation of counsel or’

otherwise. Plaintiffs have sufficiently indicated to the view-

ing public the possible offensiveness of the ‘film, so that

no patron will be taken unawares and his sensibilities of-

fended, On the other hand, the film is not advertised in

any pandering manner within the stricture of Ginsburg v.

United States, 1966, 383 U.S. 463. Finally, it-is conceded

that the theatre is pomass, 40 that no minors are permitted

to enter.

. whieh i ix obscene, indecent or impure, or an phseene, imlecent or im-

pure print, pieture, figure, image or dexeription, or buys, procures,

reecives or has in his poxwession any such pamphlet, baliard, printed

paper, phonographie record, obserne, indecent or impure print,

pieture, figure. "image or other thing. for the — of sale, ex-

hibition, loan or 54 epee shall be punished . .

For purposes: of this case we aSsume that the film is

obscene by standards currendy applied by the Massachu-./

setts courts.” In this Connection we note that the Superior

Court of Massachusetts, in the reeent case’ of Common-

wealth v. Karalexis, has found that ‘‘the dominant theme

of the film... is its appeal to prurient interest in Sex ....

(The film] is patently offensive to the. average person and

an affront to community standards [It] is utférly with-

out redeeming social value.’’ Exeept insofar as it found ~

statements in the opinion favorable to its conclusions in

viher respeets, the Superior Court disposéd of Staulvy v.

Grorgia by stating it to be *irrelevant.”’

In Stanley Mr. Justice Marshall wrote the opinion of

the Court ‘in which four others joined. Mr. Justice Black

concurred in the result beeause, in his mind, no case-by-

case reasoning is needed in the area of “obseenity ; all is"

permissible The remaining three justices concurred on

. Fourth Amendments grounds,’ stating that the obscenity

question should not have been reached. The Court held that

. ¢

7 Another court, viewing this same film, has differed. United

States v. “I Am Curious (Yellow),’’*2 Cir., 1968, 404 F.2d 196.

*The Superior Court’s extensive analysis in Karalezis of a

decade of the Supreme Court’s views, reaching the conclusion that

there is no majority agreement on any one approach to obscenity

apart from the fact that it disregards such an agreement in Stan-

ley, overlooks the fact that if only four, or even three justices agree

on one method which immunity is reached, this agreement is

as significant as if five joined, so long as there are enough other

justices who ean be counted on to concur in the result. If we may

be pardoned the analogy, if deuces are wild, an inside straight .

flush and a deuce takes the pot. - .

* Not the Fourth Amendment grounds on which the defendants

“‘awert the majority opinion rests. The three concurring justices

regarded the warrant under ‘which Stanley’s home had_ been

searched insufficient to justify the seizure of the film. The opinion

of the Court. pointedly. it may be thought, ignored that issue.

J The present defendant's claim that, nevertheless; the Court looked

to a Fourth Amendment general protection of privacy. is made in

the face of the facet that the Court spoke constantly in terms of the

First and Fourteenth Amendments ard did not mention the Fourth.

—— > ee

, If an adult individual may view obscene material in the

privacy of his home,

at)

oy)

* d),

can he purchase obscene material for such purpose?

can he invite friends to the viewing?

can he go to a private place to view such material ?

can a group of persons go to such private place? — |

can they go to an adequately controlled public place?

(s) Battey ALpricu

_ Battey Avoricu

-(s) AntHony Juan

ANTHONY JULIAN

(s) Raymonp J, Perrine |

Raymonp J. Perrine

B.A.

Unitep States Districr Court

' FOR THE

District or MassacHUSsETTS

[TirLe Omrrrep]

' MOTION FOR ABSTENTION |

Now comes the defendant in the above entitled action

and, by his attorney, moves this Honorable Court to abstain

from graiting the relief sought in the Complaint filed here-

in, or otherwise passing upon the issues raised in’ the Com-

plaint, pending resolution of those issues by the courts of

-the Commonw ealth of Massachusetts,

Respectfully, submitted,

~ Rosert H. Qu INN,

Attorney General.

Lawrence P, Coney,

Deputy Assisiant

Attorney.General.

[Certificate of Service Omitted]

‘

&° =

Unite States Distaser: C OURT

- FOR THE .

ieee OF Massac HUSETTS

[Tirte Omirrep] rein ties

Before Avoricu, Circuit Judge,

Juusan and Perrine, District Judges.

a OPINION

November 28, 1969

Aric, Circuit’ Judge. This is a three-judge district .

court action in which a frontal attack is made upon a-state

obscenity statute, based upon the Court’s recent decision

in Stanley. v. Georgia, 1969, 394 U.S. 557. In that ease the

Court reversed a state conviction for possession of a con-

cededly obscene moving picture film, found in‘the home

of the defendant. We are asked to rule that this decision.

extends to a case where the possessors permitted a number

of consenting adults or, more exactly, paying adult mem- |

bers of the public, to view their possibly obscene picture

in a meving picture house?

Briefly, the facts are these. Plaintiffs Karalexis et al.

are the owners and operators of a moving picture theatre

which has been engaged in shotving a film, owned and leased

by. Grove Press, Ine.,! entitled “I Am Curious (Yellow).’’

. The named defendant is the county district attorney who

has charged plaintiffs with violation of Mass. G ‘L. &. 272

§ 28.4? as a result of their exhibiting the film, but notice

rove Press, Inc.’s motion to intervene was originally denied.

counsel being permitted, instead, t6 appegr as an amicus. In view

of this opinion, Grove Press may be allowed to renew-its motion’

at an early date. .

iui, IRA, Importing, printing, distributing or Possessing ob-

scene things

Whoever imports, prints, publishes, sells or distributes a pam-

philet. ballard, ernie paper, tient ae record, or other thing .

in certain circumstances possession of a moving picture

film is constitutionally protected even though by contem-

. porary standards the film is obscene. We e- ‘do not consider

this irrelevant.-

The question is, héw far does Stanley vo. Is the detision

to be limited to the pr ‘ecise’pr ‘oblem of ‘‘mere private pos-

session ‘of obseene material,’ 394 U.S. at 561; is it. the

high water mark of-a past flood, or is if the precoursor of

a new-one? Defendant. points to the fact that the Court”

in Stanley stated that Roth v. United States, 1957, 354.18.

476, was ‘‘not impaired by today’s holding,’’? and in the

‘course of its opinion recognized: the state’s interest there

upheld in prohibiting publie distribution of obscenity. Yet,

~ with due respect, Roth cannot remain intact, for the Court .

there had announced that ‘‘obscenity is not within the area

of constitutionally protected speech or press,’’ 354 U.S. at

485,° whereas it held that Stanley’s interest was. protected

by the First Amendment, and that the fact. that the film

was ‘devoid ef any ideological content’ was irreley. ant.

394 U.S.A p66. :

Of, greatervimportance, a need for affirmative proof that

obscenity raisés a ‘‘clear and present danger ef antisocia]

conduct or will probably induce its recipients to such eon-

duet,’’ rejected in Roth, was stated in Stanley to have been

rejected in the area of “onblie distribution.’ The obverse

is apparent, Of necessity the Stanley court held that ob-

scenity presented no clear and present danger to fhe : afer;

viewer, or to the publie as a result of his exposure. Obscenity

‘ may be offensive; it is not per se harmful.? 394 U.S. at 567.

Had the Court considered obscenity harmful as such, the

— . . ‘

***!T implicit in the history of the First Amendment is the: re-

jection Of obseenity as utterly without redeeming: social ‘import-

amy, ** 354 US. at 484.

‘Non constant that a film whir ‘h went beyond ordinara obscenity

by exhorting sexial misconduet might be prohibited. Exhortation is

not suggested i in the ease at bar.

fact that the defendant possessed it privately i in his- home

would have been of no ‘consequence.

‘In recognizing that public’ distribution | differed: from

privaie cousumption, the Court in Stanley gave two ex-

amples. In the case of public distribution, “obseene ma-

terial might fall info the hands of children. . eA

might intrude upon the sensibilities or privacy of the gen--

eral publie.’”? 394 US. at 567. To these examples, which

were the extent of the ¢ rage dise ussion, it-can be said,

equally a Stanley, “No sie ‘h dangers are present in

this case.’ eehoks ' bs S44

We confess that no oracle: speaks. to Karalexis unam-

biguously. Noniethgless, we think it probable that Roth re,

mains intact only with respect to publie distribution in the -

full sense, atid that restrieied distribution, adequately con-.-

trolled, is no longer to be condemned. It is difficult to think’

that if Stanley has a constitutional right to view osbeene

films, the Court would intend its exercise to be only at the

_ expense of al criminal ‘act on behalf’ of the only logical

source, the professional supplier. A’constitutional right ©

to receive a communication would seem meaningless if there

were no coextensivé right.to make it. Cf. Griswald v. Con-

neticut,.1965, 381°U.S. 479. If a rich Stanley can view a

. film, or read a book, in his home, a poorer Stanley should

be free to visit a protected theatre or library. We see no

reason for saying he must go alone.® .

_ So much for the. probability of success, We do hot agree

with defendant’s contention that there’is no indication of

irreparable injury. Even if money damages could. , be

thought in some cases adequate compensation for delay,

‘this defendant will presumably be immune. We agree with

8 It may be suggested that the supplier would run a partieular

_Yisk, since the apprehended possessor of the. film would, under

"Stanley, have no Fifth Amendment privilege to resist inquiry.

® For a. further diseussion of Stanley v. beth oe see The Sn-

preme Court, 1968 Term, 83 Harv. Ls Rev. 7, 147-154 (1969).

wat

plaintiffs that the box office receipts, if there is a substan-

tial delay; can be expected to be smaller. A moving picture

may well be a diminishing asset.2° It has been said, also,

>that in assessing injury the chilling effect upon the free-

dom of expression of others is to be considered, See Don-

lrowshkix, Pfister, 1965, 880 US. 479, 486-89.

This leads us to defendant’s contention that we should,

nevertheless, abstain until the Massachusetts Supreme du-*'

dicial Court has considered this question, since plaintiffs

‘an raise it in their appeal from their Superior Court con-

-vietions, However, if our interpretation of Stanley is cor-

rect, we find it difficult to think the Massachusetts’ statute

susceptible to a construction which would si ave. it from over-

-broadness, Hence we must regard abstention as improper. |

Zwickler vy. Koota, 1967, 389 U.S. 241. In the field where’

Congress has established a. three-judge district court, ab-

stention may still be warranted -if there -is a reasonable

likelihood that the state court may construe its statute so

as to avoid constitutiorial issues, but abstention is not ap-

propriate simply to allow the-state court to be the one to -

eee the statute’ Ss basic conflict with the federal constitu- |

‘tion. ig ; iw

Wedo colltctandl how ever, ¢ertain apprehensions voiced

by the defendant, We note, accordingly, that this i is a-de-

cision of probability, not a final holding that the Massachu-

setts statute ix nnconstitutional. Much less is if a | decision

The fact that plaintiffs are, eeonomieally. motivated i) by no

sieniticance. Mew York Times v, Sullivan, 1964, 376 U.S. 254.°1n

Titerstate Circuit, Ine. v. Dallas, 1968, 390 TUS. 676 at a4. othe

Court spoke disapprovingly of the effect of the Dallas érdittance

aipon ‘tone who wishes to convey hips’ ideas through that medium

‘films|. which of course includes one who is: interested | not so '

much in expression as in making monex... ."" .

There is an alternative possibility. that the Supreme JIndicial

_ Court would find the fitm not obscene. The Superior Court, in an.

elaborate opintom»has found otherwise. We are, not moved Ky the

thought that we shield postpone permitting plaintiffs to exhibit

their film on the ground that, after all, it is not ‘obscene. +

/ Poca ’

_ that one who distributes to children, or who creates a clear’.

public nuisariee, has standing to raise the contention that —

the statute is overbroad.” The preliminary injunction pre-—

sently to issue wil.be restricted to, and conditioned upon,

plaintiffs’ adherence. to the restrictions described. earlier

in this opinion. “Nor do we consider the difference betwee 1

* the ‘right to regulate conduct. as distinguished from expres-

‘sion. Cf. De rrington v. City of Portland, Or. 2/26/69, cert.

denied 38 L.W. 3170. F inally, we voice no opinion as to the

legal cotisequences if pldintiffs exhibit their film.under the

protection of our injunction, and it is ultimatelysdetermined °

that our view was mistaken and that such exhibition was

properly considered illicit.

Because of the importance of the matter, the injunction

will not issue for one week, to permit plaintiffs to add other

parties, if so advised, and to give the defendant the oppor-

tunity to sald to the Aircuit Justice for a stay.

(s) Bartey Aupricn,

BAILEY ALDRICH \,

a 4: U.S. Circuit Judge

-(s) Raymonp J. PETTINE,

Raymonp J. Perrine

US. District Judge

#2 Normally. standing is granted only when a defendant’s own

conduct is constitutionally protected, United States v. Raines. 1960,

$62 U.S. 17. This rule has been ‘relaxed in ‘eases dealime with

statutes affecting free expression. Sce United Stites v. Raines, °

supra, at 22 (dietum) ; Thornhill v. Alabama, 1940, 310 ULS. 88,

96-08; Sedler, Standing to Assert Constitutional Jus Tertii in.the

Supreme Court, 71 Yale L. J. 599 (1962). However, even where — .

free speech is involved, it may be that standing should not “be. °

granted unless the defendant’s conduet is at least arquobly eon-

stitutionally privileged. Cf. Brown v. Louisiana: 1966, 383 U.S! 131,

ot 147-48 (concurring Pert of Mr. Justice Brennan); Dennis —

. United States, 341 US, 494, 15 5-17. We e do not reach such ques-. _.

wat 3

‘

- &

akon

Gra BP es,

‘

Re ee ee Ce eo re Oa

> .

ei ‘ a “a* ’ = 3

ones | \. /ag

: / © .

-Uxrren States District Court

. Disrricr of Massacnuserrs

petals "am 4

: [Trey Omrrren|

‘ Before Avoricn, Ciredt Judge

Jenian and Perrine, District Judges’

. - ie

e “ 5 ‘ e 5

DISSENTING OPINION

November 28,. 1969 IG

Juraan, od (dissenting) ” ;

* T do not agree With the. majority. The constitutionality

of the Massachusetts -eriminal obscenity: st: flute? is ypre-

-sently being litigated j in the Massachusetts, Courts. Pending’

final adjudication by the Supreme . Jucdigial Court of the

» plaintiffs’ appeai* from their conviction in the Superior

Court for violating that statute, this Court should abstain

from taking further action in this case and should tot in-

terfere -with the enforcement. of the statute by’ the Com-

‘“monwealth by enjoming its public officials from _prosecut-_

ing the plaintiffs for additional violations. of the statute

should they persist in exhibiting the film while their con-

viction still stands. -

It is my: understanding that for the purpose ‘of deciding :

the, questions presently before us the Court assumes that

“the _ involved 1 in this litigation is in fact obscene within

g of the law. In fact, no evidence has been taken

and no fin ling made on this. isstie by this Court. The Su-

perior Courtha’s pe the film to be obseeMe. ior... f

1 Maxs. G.b. ¢. 272, § 28A provides as Sallis:

“ “Whoever... has in ‘his a ... aiy obscene ...

print, picture, figure, image... forsthe purpose of ... exhi-

bition ... shall he, punished ...°”’

The Massachusetts ‘Court has construed. this statute hpi

to, require proof ‘thatethe defendant knowingly has such material’

‘in his possession. Demetrapolos ¥. Commonw vealth, 1961, 342-Mass. .

656.. “5 : :

x . > hd s a? .

> :

‘issue in Roth was the constitu

| Amendment of two criminal obse dnity statutes. One was a’

.» Federal statute (18 U.S.C. § 1461): which made it a crimé —

‘for anyone to deposit for “mailing and delfvery -obscene

‘ books, circulars or advertising. The other was a California

statute ( West 5 Ca. Penal. Code Ann., 1955, § 311) which

utes, constitutional. eat

The plaintiffs’ reliance on Stanley v, Georgia, 394 U.S.

557 (1969), is untenable. The case before us is governed °

hy Roth». United States} 354 Se 476 (1957). The precise

tionality under the First

made it-a crime for ays person willfully and lewdly to

keep for sale ai obscene book or to publish. an obscene ad-

vertisement of them. The Supreme Court held both stat-

“Bie

The Massae thusetts . statute’ hefore. us is s- essentidlly” the

same as the: two statutes upheld in Roth in that all three .

make the public distribution of obsecne matter a-criminal

offense. This being so, it must. follow as a‘matter of ebe-

mentary logic that the Massae husetts - statute, is also con-

_ stitutional.. eet PS Arie ee

‘The holding i in Roth} is still the ni nd i is ; binding: upon

this Court. Tt has not heen overruled yy Stanley or any

other case. :

In Stanley the, sdipolinnt Was . indictla, -tvied and con- -

'victed for ‘knowingly hav [ing] — :. obscene.

matter’? in violation of a Georgia statut

preme Court: affirmed, holding. it ‘not essential to an in-.

dictment’ charging one with possession of obscene matter

that it be alleged that. such possession was. with ‘intent to ifs

sell, exposé or circulate: the same.’.”’ Appellant contended ;

tliat the Georgia obscenity statute was unconstitutional i in-

The Georgia Su-

sofar as it punishes mere private possession of obscene mat-

ter.-The ‘United States Supreme Court agreed and held :

that ‘‘the mere private possession, of obscene matter can-..

‘not constitutionally be made a crime.’’ The Supreme: Court -

takes pains to es ra the. case before it from Roth and rs

: a

~ i

4 e.

‘.

~<)

| ° atta tee ?

« ‘ ‘ 4 i . , *

similar cases in which public commercial dissemination of

* obseene material is involved,

—& The Court notes (p. 559) that the Georgia statute ex-

> | _ tended ‘*further than the typical statute forbidding. com-

merejal sales of obscene material.’’ It also notes (p. 559)

+ that the ‘State and appellant both agree that’ ‘the question

- heré hefore us is ‘whether a statute imposing criminal sane-

tions upon the mere [knowing]. possession of obscene mat-

~ ter’ is constitutional.’ The Court ‘points ont (pp. 560-561) -

. that neither Réth 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 taker or intended to be taken with respect to ob-

scene matter.” (Emphasis supplied.) \,

~ And again at p. 567: ‘‘But that case {Roth} dealt with

public distribution of obscene materials and such. distribu-

tion is subject to different ‘objections.’ In note 10 on the

‘same page the Court makes reference to the Model Penal

* Code § 2514 (American Law Institute, Proposed Official

Draft, 1962) which would also make conimercial disgemina-

————— -

tion of obscene mattersa criminal offense. The Court eom- °°

cludes by stating (p. 568): '

| **We hold that the First and Fourteenth Amyid-

ments prohibit: making meér@ private possession, of —

obscene material a crime. Roth and the cases follow-

ing that decision are not impaired by-today’s holding.

_ + »* — As we have said, the States retain broad power to

‘+ ~~ + -regilate obscenity; that power simply does not extend

to mére possession by the indvienel in thé privaey

: of his own home.’ .

ms _ Thus the Supreme C ourt itself has declared in clears

unambiguous language that the holding in Roth has not

heen overruled by the decision ‘in Stanley andi ix still the

law.

Accordingly, on the authority of Roth, I would reject ax

p wholly unjustified the plaintiffs’ ‘contention that the Mas- -

-sachusetts obscenity statute is unconstitutional ’on its face.

On the question of abstention the pertinent cases are

Dombrowski v. ‘Pfister, 1965; 380 U.S. 479? and Zwickler

v. Koota, 1967, 389 U.S, 241? 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 fa¢e 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 congtitutionality was not being litigated

in the State court. In Dombrowski there was the added

clefnent of bad. faith“on the part of the State prosecutor,

an element certainly not present here. The Court aceord-

ingly held that abstention was not appropriate. Since the

its face as abridging free expression and since the case in

the Massachusetts Court has been tried and decided and ix

now on eal, it seems to me expecially appropriate for

this Court t‘abstain from proceeding to a declaratory. ad-

judication of\the constitutionality of the statute until-the

_ Supreme Juditial Court shall have heard and decided the

‘ appeal. The parties anticipate that this will happen wjth-

_ in the next three or four months.

No injunction should issue against the defendant. dis-

trict 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 out-

styunding and their appeals pending.

‘The plaintiffs have failed to show the existence of the —

requisite grounds that would justify the issuance of a pre-

ininasy injunction:

2The ctptute under attack was the Couisiana SubrebGve Activi-

ties and Communist Propaganda Control Law.

* The statute prohibited the distribution.of anonymous handbill»-

eritieal of polftieal candidates.

Bm ee Ce ee

(1) Since the statute is not unconstitutional on its face

‘and the film is assumed by the Court to be obscene, and

has been found to be obscene by the Superior Court, the

plaintiff« have failed to establish the probability that sid

will ultimately preyail in this litigation. |

(2): There is no evidence before us ‘that plaintiffs will

suffer irreparable injury if they are prevented from show-.

"_ jng 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 diminu-

tion 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, Ine. which is not a party

to thix litigation. Furthermore, there is no evidense of the

economic value of the film. ?

(3) The mere possibility. that plaintiffs may be de-

prived of a constitutional right pending final determination

of this case does not amount to the irreparable injury nee-

Thus, in Dombrowski v. Pfister, 280 US. 479, 484-485,

the Court states:

f “(The Court has ‘recognized that federal inter-

ference with a-State’s good-faith administration of

its @iminal laws is peenliatly inconsistent with our

federal fyamework. It is generally to be assumed that

state coyrts and prosecutors will observe constitution-

al limitAtions a& expounded by this Court, and that

the mere\poxsibility of errouncous initial application

of constif~utional standards will usually not amount to

4 In emorandum of July 15, 1969, this Court said: ‘(T]he

Court ... will not consider now oreat any other time the claim that .

the film is not obscene, as an evidentiary matter."’

* The motion of Grove Press, Inc., to intervene asa party plain--

‘tiff was denied by the Cours on July 15, 1969.

the irreparable injury necessary to justify a disrup-

tion of orderly state proceedings.’’ -

What the majority of this Court is doing today is with.

out preeedent. It ix declaring that the public, commer-

cialized dissemination of obscene matter to adults, regard-

less 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 stat-

utes, both Federal and State, and a multitude of cases de-

cided by the Supreme Court of the United States* and by

other courts, Fedéral and State, have consistently denoun-

ced and punished as criminal the public, commercialized

_ dissemination of obs¢ene matter. ‘ :

_ In my opinion the position taken by the majority of this

Court is legally unsound arid inimical to the public in- -

(s) Axtuony Jvuuiayx -

. : ANTHONY JULIAN

p United States District

<7 ‘aha

® See, for example, the eases listed in Stanleij. supra, notes 5

' and 6, at page 561.

etme OURS et Stet, a . _ -—-.

Unsirep States District Court

Dissrict Oy MassacuusettTs ~ - .

{Tivrte Omirrev]

ORDER, ADDING PARTY

December 6, 1969 —

On motion of the plaintiffs, and without objection, the

Honorable Robert H. Quinn, Attorney General of the Com-

monwealth of Massachusetts, is added as a party defendant.

; By the Court,

(s) Battey Avpricu

Cireuit Judge

-/ @

Usirep States Districr Covrr -

District or Massacuusetts

December 6, 1969

-INJUNCTION

[Tirce Omirrev] .

This cause came-on to be heard upon a. motion for a

prelimiiiary injunction pending a decision on the merits,

and after hearing, and upon the findings and rulings con-

tained in the court’s opinion of November 28, 1969, it ‘is

hereby ordered, adjtrtped and decreed as, follows;

The defendants, their agents, servants and successors in

office, shall not, until further order of this court, proceed -

“against civilly or criminally, or. otherwise interfere with,

the plaintiffs Serafim Karalexis, James. Vlamos, Sym-

phony Cinema II, Inc. and Film Distributors, Ine. on ae-

count of the showing of a certain.moying picture film en-

titled ‘I Am Curious (Yellow).’’ Provided, that this in-

—

45, ° —-

junction shall not apply if the said pieturé is advertised

ju a manner pandering to a prurient interest in sex, or is

shown to an audience not warned of its possibly offensive

years. ity

Provided, further, that the prosecution of proceedings ~

connected with the appeal of the plaintiffs from a certain

' décision against them in the criminal side of the Suffolk

‘Superior Court, short of ordering the execution of sen-

tence or other penalties, is not hereby forbidden. : .

7 ee. By the Court,

ety . (s) Battey Avprici

(s) Raymonn J. Perrine *-

District Judge

Usitep Staves District (‘ourt

District or Massacuvsetts

[Tirte Omitrev]

STAY PENDING APPEAL

‘ December 6, 1969

On motion of the defendants the-temporary injunction -

pending a decision on the merits entered this day i* here-

by stayed pending defendants’ request to the Supreme

Court for a stay pending their appeal from the issuance

of said, injunction. >

By the Court,

(s) Battey-Avpricu

Cireuit Judge .

aot: Soe

afr 46 7.

.Scrnene Cover or tue Usrrep States

Ocrosen Team, 1969

Garrett Byexe, as He ts tue Dery Exvecrev District

Arrorxey ror SurvotK County, Crry or Bostox, Gommoy-

WEALTH OF Massic HUSETTS, ,

PETITIONER,

; Bet Vhs 7? .

Serarim Karatexis, James, Viamos, Sympnony ——

IT, Ixc., axp Frum Distrimutors, Ixc., Ati or 252 Hunt-

moton Avenue, Boston einen

‘APPLICATION FOR STAY

[December 15 1969] | ox

ORDER ~~ | a

The motion for a stay of- the. temporary injunetion is-

sued by the United States District Court.for the District

of Massachusetts presented to Mr. Justice Brennan, and 2

by him referred to the Court, is granted pending the timely .

- filing and disposition of an. appeal. z

~ Should-such an appeal not_be filed, this stay ts to expire

automatically. Should such an appeal be timely docketed,

this stay is to contihue pending the Court’s action on the

_ jtrisdictional aspect_of the case. In the évent the appeal-

ix dismissed or the ‘judgment below is stimmarily affirmed,

probable jurisdiction of the appeal or post pone further

consideration of the question of. jurisdiction to the hear-

ing on the merits, this stay is to remain in effect’ pending

the ixsudnee 6f the judgment of this Court.

Me. Justice Dovenas, dissenting. :

Respondents are the ownérs and operators of a motion -

47 es

picture theatre which has heen hidetiine the film, “y Am

Curious (Yellow).’’ On ‘June 3, 1969, they were- indicted

hy the Suffolk. County ‘Grand Jury for possessing with’ -

intent’ to exhibit an obscene, film in violation of Mass.

Gen. Laws, ¢. 272, § 28A. On June. 17, 1969, respondents.

brought an action in the United States District Court for

the District of Massachusetts to énjoin future ‘prosecu- ~

tions for the’ showing of ‘I Am Curious (Yellow)’’ and

to declare that prosecution and the Massachusetts statute

unconstitutional. On June 24, 1969, the three-judge Dis-

trict Court enjoined the prosecution on the ground. that:

the indictments did not. allege scienter. The indictments

were then dismissed, and new indictments were thereafter

returned. Respondent’s request for a’ femporary injune-

tion barring the second prosecution was denied by the.

District Court on July 15, 1969. The court stated that it

would not consider a claim that. the film was not obscene

_ as an evidentiary matter, but invited the partios to submit

‘ briefs on the question whether the Massachusetts. statute

was unconstitutional on its face.

Respondents were convicted of the state obscenity of-

fonse on November 12, 1969. The’ applicant in this pro-

ceeding, the District Attorney for Suffolk County, has

not agreed that respondents may exhibit the film pending .

the appeal of their convictions. ‘On November 19, 1969,

applicant moved the District Court to abstain from decid-

ing the constitutionality of the . Massachusetts statute,

pending the resolation-of that issue in the state courts.

‘On Noveniber 28, 1969, the District Court, by ‘a 2-1, vote,:

denied the motion and authorized a temporary injunction

enjoining applicant from interfering with respondents .as

‘respects - future showings of the film ‘I Am Curious

(Yellow),’’ pending a final dispostion by the District

’ Court on the merits.

Appheant now requests this Court to stay the temporaiy

injunction which issued by the District Court.

’

on ’

The injunetion issued by ‘the «District Court does not

interfere in.any’ way with the criminal ‘conviction already

Obtained in the. Massac husetts courts.: That case will pro-

coed unaffected by anything the fedes ral court, does, save

for final ‘exeeution of the’ state judgement. Dombrowski

» Pfister, 380 US. 479, is different. There we did not

lowes petitioners to risk vindication of-their constitutional

rights ina state en ution under an “overly broad’ state

sti tute, Id... 486, But inthis ease that tisk was faced

amd solution of the constitutional isstres is being under.

“taken ip the state eourts. All that. the feder ‘al court pro,

poses is protection of respondents against repeated prose-

_ cutions, while botlr yihie state courts and the federal courts,

ire resolving the pouatibabhens li ISSUCS, Knjoining one state

prosecution, though pérhaps permissible under La parte

Young, 209 U.S. 128, would not be in keeping with nore

recent devisions. Douglas v. Jeannette, 319 U.S. 157; But

I read the sparse reeord before us differently ‘from Mr.

Justice Stewart and believe that we deal here with threats

of repeated prosecutions; and those threats seem to me to ’

‘be no less ominous toé the. federal constitutional regime

than the Shrpatened harassment of union leaders in Hague.

v. C10, 307.U.S 5. 496, who were asserting ] First Amendment

rights in explaining the purposes: ‘of the new National Labor

Relations. Act. See the opinion Yof Mr. Justice Robert

and ‘Mr. Justice Buack, id., at 504-506.

There may in time be a ‘eelition between the two systems

for us to resolve. Meanwhile |I would let the two orderly

processes go ahead: For I ‘can imagine no better and

smoother accommodation of the needs of the two. regimes

than that designed by the District C ourt.

Underlying the state case and-the federal case is an im- |

portant -First Amendment question. Some people think

that ‘‘obscenity’’ is not protected by the Free Speech and

Free Press Clauses of the First Amendment. They believe

that both Congress and respeiieiats can set-up regimes of

corisorship to weed out ‘obseenity’’ from’ literature,

movies, and ‘other publications so as to rid the press of

what they the judges deem to be beyond the pale.

—T have consistently dissented from that course byt not

because, as frequently charged, I relish ‘obscenity.’ 1

have dissented before.and now beeause IT think the ;First

- Amendment bars all kinds of censorship. Ginsberg v. New

York, 390 U.S. 629, 650 (Doveras, J., dissenting) ; Ginz-

berg vy. United States, 383 U.S. 463, 482 (Doveias, Jo, dis.

senting); Roth v. United States, 354 U.S. 476, 508 (Dove-

LAS, J., dissenting). To impose a regime of censors re-

quires in my view, a constitutional amendment. “Obsen-

ity’

established exee ption to free speeeh and free préss when

the Bill of: rights was adopted. See my concurring opinion

9 99

is no exception. “Obsecnity certainly wis not an

in Memoirs vy. Massachusetts, 383,U.S, 413, 428-433, It is °

a relatively new arriyal on the American scene, propelled

by dedicated zealots, to cleanse all thought.

Prior to the Bill. of Rights, state ‘law, when, it aii

of freedom of the press, meant only freedom ' from prior

restraint. But an author or publishers could be held ac-

countable for publishing what the state: house ‘thonght

was against ‘‘the publi¢ good”’. In other words, the First

Amendment did not build on existing law; it broke with.

tradition, set a new standard, and exalted freedom of ex-

pression. There is no trace of a suggestion that ‘‘obscen-

- ity,’? however defined, was exéepted.

That does not.mean that ‘“obseenity”? i is good or that it :

should be’ encouraged.. It “only means that -we cannot be™

form or shadow of er over speech _ and press,"

he Jolin Hohenbetg peeently stated this First Amendment philos- .

ophiy in a slightly different setting :

‘*As Aleksandr Solzherritsyn wrote in bitter response to his re-

es hen our. rewards £0 ‘to fesse for thinkine & “alike, itis

"no surprise that we become fr bghtened at those..w ho ‘take

" day Review, December 13, 1969, Pp. 70, 72. , 4

> exception to the current: consensus.’ Then \the hue oe

ery go up for censors; aml that is the start ofan ominous

frend. -What can be done ‘to literature under the banner

_of ‘Sobseenity’ ean he done to: other p: irts of the speetrum

‘of. ideas when party. or majoritarian. demands\ mount and.

. propagandists start declaiming the law... * Pat

The ‘‘obseenity’’ issue raises large questions! To what

extent may government. watch over one’s shoulder as he

reads? ; rae

Judge Jerome. Frarik cae Roth vy. Goldman, 172. ¥.

2d°788, 792: : : |

ene: think that no sane man thinks socially danger-

ous the arousing of normal sexual desires. Conse-

quently, if reading. obscene books. has merely that

consequence, Congress, it would. seem, can cojsti-

tutionally no more suppress such books than it ‘can

‘prevent the mailing of many, other objects such ‘as

perfumes, for example, which notoriously produce

that result. But the constitutional power to: sup-

press obscene’ publications -might well, exist if there

were ample reason to believe.that rea

duces to socially harmful sexual conduct on the par

of normal human beings. ... Macautay, replying to de-

‘mands for suppression of obscene books, said: ‘We

find it diffieult to believe that in a world so full of

moval trom the rdlls of the Russion Writers’ nion late in 1969

* following. the West’s sympathetic reception off two’ of- his novels

that he Gould not have published in his own @untry : *At- is time

to remember fhat the first thing we-belong toWis Kaunkuitv: And

humanity is separated from the animal ‘wotld’ by thought and

speech, and they, should: naturally he free. If they are fettered, we

go back to heing ‘animals. Publicity and openness, honest and ecom-

“ pleté—that is. the prime condition for the health of every society,

sow herever, freedom is. denied; these words will five on.”’ Satur-

. :

ng ‘them con- —

“~

at ¢ 7 .

‘and Juvenal, will be made vicious: by ree ding them.’

Substitute ‘Waggish Tales from the ¢ ‘wech’. for ‘Aris-- j

; * tophanes and Juvenal,’ and those - remarks become.

relevant here, coe

i Scobscenity” ‘an be carved. out of the F ‘irst Amend-

ments w hat other like exceptions ean be created? ‘Is ‘‘sixeri-

lege’’ also beyond the -pale?) Are uttérauces or -publica-

tions made with ‘‘malice’? unprotected?) How about ‘‘se-

ditious’ ;

_cidus writings or utterances against the ( ongress or the

, President with intent to, defame”’ or to bring them ‘into

- contempt or Alisrepute 9 against theini ‘the

hatred of the good people’? or ‘‘to stir up sedition,’’ or

io‘ ‘excite’’ people to ‘¢resist, oppose or defez it? any: law

or to ‘“oxelte

were onge made a‘crime. (1 Stat. 596-597.) Now that ‘the

First

forniA,

* the

mendment applies to the. States, Stromberg v. Cali-

States embark on such totalitarian controls over

ught or over the press? May Congress do so?

*y.

pass on the value, the propriety, the “Americanism,. the

soundness of any idea or expression.’ Tt i is that insulation .

from party or majoritarian-control provided by: the First

- Amendment—not “our. gross: national prodict or. mass

production or pesticides or space ships or nuclear arsenal

—that: distinguishes ‘our. society from the other Planetary

regimes. |, =

Opinion of i Ju orice. Back. tg

I agree completely with Mr. Justice Dove.as that state “]

criminal punishment of these respondents for showing ‘an

allegedly ‘‘obscene’’ film is absolutely prohibited by the

. First and-Fourteenth Amendments. That, however, ‘does’ ,

mee

_ temptations as ‘this, any gentleman, whose life- would

“have been virttious if he Had not re: ad Aristophanes:

5a P “eS ‘ ° .

speech. or artieles? “False, scandalous, and mali-,

983 U.S. 359; Near v. Mivnesota, 283 U.S. 697, may.

We forget today that under our constitutional, system |

neither Congress: nor the States have any power ‘to pass

: -

TC ROMENB EST

. i ;

‘ F .

* ‘

oo a ‘ 3

, ° >.

is case a Federal District: Court stepped into fhe mjd-

dle “of a pending state eringinal pfosecution, rendered -an

opinion in effect deciding thy fundamental constitutional ¢

-issue in the state cake, and enjoined the initiation of new :

‘ proseeutions of these defendants or the execution of any

— sentence imposed on them in tI pending state ease. One.

of the fundamental aspects of ‘our’ federal..constitufional

system requires: that federal courts refrain from interfer-

ing in pending state criminal prosecutions except in -highly

unusual and yery litpited cireumstances. I do not think, the

_ facts of this case present an oceasion for departure from.

that general rule: It is for that reason alone that I agree’

by the Federal District Court against the State. “° . .

- Opinion of, Mr. Justice * Sew art.

Without reaching’ the First and Fourteenth Aménd-

metit issues discussed by Mr. Justice Brack and. Mr.

Jvstice Dov GLAS, I join the Court’s decision to stay the

‘ injunction for the, réason indicated by Mr. Justice Buack +

.. —#i.e.,-the general rule that ‘trequires that federal courts

refrain from interfering in pending state criming} prose- —

cutions. ....:’? This ease does not now present the ‘highly

unusual au very limited. cireumstances’’ that Would jus-

~. tify a-departure from that fule—such as would be pre-

sented by thé threat or actuality of repetitive prosecutions

for exhibition of the film in question.

‘ ‘

Uxiten STATES Distiicr Court row THE

District or Massdesuserts :

| Tire Omrrren]

SUPPLEMZNTAL NOTICE OF APP BAL

Notice ix hereb¢ giv on tliat Garrerr Byrxe and Rosert

H. Quix @ defe ndants in the above entitled action, hereby

appeal-to the Supreme Court of the U nited States from the

‘.

-* ire jae neat A ee oe Soe a oe

Pit ti age ae 3 @ :

nee of this Court, dated November 28, 1969, and De-

cember 6, 1969, enjoining’ the defendants from proceeding

agaist the plaintiffs, ¢ivilly or criminally, on account of

"4. _ the showing of a’ certain motion picture film entitled am

, Am Curions. (Yellow).”’ i aes ens

~. This appeal . ig taken pursuant to ‘the provisions of 3g

t SC, 1253,

Gakrerr H. binne ~

, ° -. Rosert H. Quinn

: es, et, _ Defendants.

oa - . By their attorney:

Pes ae aoe eae JosePH J. HURLEY -

she _. |» First Assistant A ttorney

es, ae General®*.- 7 7 *

. cd) Vapi oe Lawrence P.Coxex

; = v .__ Assistant Attorney General..

« Gargetr H. Byrne; HS all ad Soe ae

iat en i Soh le. - iis

, Suffolk County. aa hai et, Ne

_TEncoomE A. Giynn, Jz. * : aS aoe

_ Special Assistant District “Attorney y ely _

‘Suffolk C ounty -

a, ae 5

Supreme Court or THE UNITED States

[TrtLe Omrrrep] :

‘*The motion to-vacate the order of this Court of De-

mber 15, 1969, is denied. Mr. Justice Dov GLAS is of the

dpinion that the motion, should be granted. In this case

(No. 1149) probable jurisdiction ix noted. The case is

placed’ on the summary caféndar and set for argument im-

mediately following No. 905.°"'

* In lien of Robert H. Quinn, Attorney General, _

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.