Appendix — Speight v. Slayton

Supreme Court brief1974

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SUPREME COURT, U. &

APPENDIX

NOV 26 1873

Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-1557

ALVIS G. SPEIGHT, t/a HAREM BOOK

STORE, and JAMES L, CHANDLER,

Appellants,

LEWIS R. SLATON, In his capacity as

District Attorney, Atlanta Judicial

Circuit, and

HINSON McAULIFFE, In his capacity as

Solicitor, Criminal Court of

Fulton County,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA

FILED MAY 21, 1973

PROBABLE JURISDICTION NOTED

OCTOBER 15, 1973

Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-1557

ALVIS G. SPEIGHT, t/a HAREM BOOK

STORE, and JAMES L. CHANDLER,

Appellants,

LEWIS R. SLATON, In his capacity as

District Attorney, Atlanta Judicial

Circuit, and

HINSON McAULIFFE, In his capacity as

Solicitor General,

Criminal Court of Fulton County,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA

INDEX

8 PR gr et Cle te oe Te on ]

Complaint for Preliminary Injunction, Permanent

Injunction, Declaratory Judgment, and

Convocation of Three-Judge Court, Filed

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PRR OS CRE FT SCI eae Pe ee ee ee

Page

Civil Action File No. B-77630, Complaint,

EP aa ry ee ee 25

Civil Action, File No. ____, Complaint,

one slike <i hak veh ee ha caesan chs esse 4 31

Civil Action, File No. Complaint, Order .......... 32

Civil Action, File No. . Affidavit of Robert

Eugene Smith, Esa in Support of Injunction

RE er ee ee 34

Answer (Filed September 13, 1972) .................. 42

Proposed Stipulations of Fact and Conclusions

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Proposed Stipulations of Fact and Conclusions

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DOCKET ENTRIES

August 28 — Complaint for preliminary injunction,

permanent injunction, declaratory judgment, and

THREE-JUDGE COURT, with Exhs. A and 1-4, filed.

Summons issued and delivered to U.S. Marshal. Copies of

complaint to Marshal for service on Gov. Carter & Atty. Gen.

Bolton. To CAM.

September 5 — Marshal’s returns on service executed as to

Slaton & McAuliffe on 8/29/72, and as to Gov. Carter &

Atty. Gen. Bolton on 8/30/72, filed.

September 11 — ORDER from Chief Judge Brown Sth

Circuit designating District Judges Moye & O’Kelley & Circuit

Judge Morgan to compose a Three Judge Court, filed. Copy

te counsel.

September 13 — ANSWER of defts., filed. (includes

request for abstension) (Copy at judge) Memorandum of Law

in support of resp’s requestion of abstension, filed. (1 Copy at

judge)

September 17 — Hearing set before 3-judge panel for

12-21-72 at 10:30 a.m.; briefs requested by 12-7-72. Copy of

notice to ea. judge, counsel, and Gov. and Atty. Gen. via

certified mail RRR.

September 27 — Submitted on Deft’s Request for

Abstension.

October 5 — ORDER filed deferring consideration of

deft’s request for abstension until the time of the hearing.

Copy to counsel and to ea. Judge.

November 28 — Deft’s proposed stipulations of fact and

conclusions of law, filed. (Copy to each Judge)

December 7 — Pitfs’ brief in opposition to defts’ request

for abstension, filed. Copy to ea. Judge.

December 7 — Pitfs’ proposed stipulations of fact and

conclusions of law, filed. Copy to ea. Judge.

December 20 — Petrs’ brief in support of their contention

that the closing of a bookstore under the guise of abating a

public nuisance is a prior restraint which violates the Ist, 5th,

& 14th Amendments, filed. Copy to ea. Judge.

December 21 — HEARING befcre three-judge panel.

Counsel were heard. Copy of Respondents’ Brief in Supreme

Court of U.S. No. 71-1051, filed. Mr. Fieldman to file copies

for each judge. The Court took the matter under advisement.

Copy of respondents’ brief to ea. Judge (12/27/72)

Steno-type notes of proceedings had 12/21/72, filed.

December 29 — Pitf’s Itr. with items attached (1) Itr. to

each judge; (2) Copy of complaint, etc. in C.A. No. 725131 —

U.S.D.C. — ND of Ind. (3) Copy of decision of Indiana Ct. of

Appeals; & (4) copy of Cert. for designation and order

designating a 3 Judge Ct.— U.S.D.C. — S.C. — C.A. No.

72-769, filed. (Atty. advised in ltr. copy furn. to each judge).

January 22 — Pitf’s itr. with Itr. to each judge & copy of

decision of three-judge ct. in District of New Jersey — C.A.

No. 911-72, filed. (Atty. advised in Itr. copy furn. to each

judge).

February 22 — 2 Judge Opinion & Order filed & entered

with Circuit Judge Morgan dissenting — dismissing complaint,

filed. (Copy to Counsel 2-27-73) & (Copy to each Judge).

February 26 — Pitfs’ NOTICE OF APPEAL TO USSC,

filed. Copy of notice to USSC w/ docket sheet & defts’

counsel.

LAER TR, MEETS TRENT PT ee Rese Gee ees

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2 ROOT CREE FLOR nn

October 15 — Certified Copy of Order of U.S.S.C. noting

probable jurisdiction, filed. (Copy to counsel, 10/15)

November 16 — Request from USSC to have file

transmitted to their office, rec’d.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ALVIS G. SPEIGHT t/a

HAREM BOOK STORE and

JAMES L. CHANDLER,

Plaintiffs,

LEWIS R. SLATON,

In His Capacity as

District Attorney, Atlanta

Judicial Circuit; and

Civil Action File No. 17075

HINSON McAULIFFE,

In His Capacity as

Solicitor General, Criminal

Court of Fulton County,

State of Georgia,

Defendants,

Jointly and Severally.

Also Serve in Their Statutory

Capacity Only, Under

28 U.S.C. § 2284(2), and Not

As Defendants, His Excellency

JIMMY CARTER, Governor of the

State of Georgia, State

Capitol, Room 203, Atlanta,

Georgia; and The Honorable

ARTHUR K. BOLTON, Attorney

General of the State of

Georgia, Judicial Building,

Room 132, Atlanta, Georgia.

COMPLAINT FOR PRELIMINARY INJUNCTION,

PERMANENT INJUNCTION, DECLARATORY JUDGMENT,

AND CONVOCATION OF THREE-JUDGE COURT

Filed August 28, 1972

TO THE HONORABLE, THE JUDGES OF SAID COURT:

Plaintiffs, by and through their attorneys at law, D.

FREEMAN HUTTON, Esquire, ROBERT EUGENE SMITH,

Esquire, and GILBERT H. DEITCH, complaining of

Defendants herein jointly and severally, respectfully allege as

foliows:

JURISDICTION

This is a civil action whereby Plaintiffs, as their interests

may appear, pray a preliminary and permanent injunction

issue to restrain Defendants, and each of them, from

attempting or continuing to attempt, to close Harem Book

Store under the guise of abating a continuing public nuisance,

purportedly under authority of enforcement of Title 72,

Georgia Code of 1933, as amended, and the provisions

thereof. Plaintiffs, as their interests may appear, pray, as well,

for a declaratory judgment to determine the constitutionality

of Georgia’s Statutory Scheme in regard to “Nuisances” (Title

72, Georgia Code of 1933, as amended), as written and/or

applied, insofar as they purport to relate to a business activity

offering presumptively protected publications to the interested

adult public under the penumbra of the First Amendment, or

POLINA ER mY

MOONEE ATR

as threatened to be applied herein. Insomuch as the within

Complaint seeks injunctive relief against the use of a state

statute by law enforcement officials, said Plaintiffs, as their

interest may appear, pray that a statutory Three-Judpe Court

be designated to consider the questions preserved herein (28

U.S.C. § 2281).

This is also a civil action whereby Plaintiffs, as their

interests my appear, pray a preliminary and permanent

injunction issue to restrain Defendants, and each of them, as

well as their agents, servants, employees and/or attorneys and

others under their direction and control, from acting under

color of enforcement of Georgia Code § 26-2103 (Ga. L.

1971, § 2, pp. 344-345) which declares that the use of ©

premises in violation of the Cude Chapter relating to

distribution of obscene materials shall, in and of itself,

constitute a public nuisance and authorize a closing thereof

and to further restrain Defendants, and each of them, as well ©

as their agents, servants, employees and/or attorneys and ©

others under their direction and control, from acting under

Georgia Code §§ 72-701 and 72-702, to effect a

constitutionally prohibited prior restraint under the guise of

abating a so-called continuing public nuisaace. Plaintiffs, as

their interests may appear, pray, as well, a declaratory

judgment to determine the constitutionality of said Georgia

Code § 26-2103 (Ga. L. 1971, § 2, pp. 344-345), as written

and/or as applied, and as threatened to be applied herein.

Plaintiffs, as their interests may appear, pray that the Court

issue a declaratory judgment on the constitutionality of said

Georgia Code § 26-2103 (Ga. L. 1971, § 2, pp. 344-345).

This is also a civil action whereby Plaintiffs, as their

interests may appear, pray a preliminary and permanent

injunction issue to restrain Defendants, and each of them,

from acting under Georgia Code § 26-2104 (Ga. L. 1971, §

3, pp. 344-345) which authorizes that any press materials

declared to be obscene by the provisions of Chapter 26-2] of

the Georgia Code as well as advertisements for any such press

materials (although themselves not obscene in_ the

constitutional sense) are under said law determined to be

contraband, and subject to forfeiture and destruction.

Plaintiffs, as their interests may appear, pray, as well, for a

declaratory judgment as to the constitutionality of said

Georgia Code § 26-2104 (Ga. L. 1971, § 3, pp. 344-345), as

written and/or as applied, and as threatened to be applied

herein.

This is also an action whereby Plaintiffs, as their interests

may appear, pray a preliminary and permanent injunction

issue to restrain Defendants, and each of them, from utilizing

Georgia Code § 26-2101 (Ga. L. 1968, pp. 1249, 1302; Ga.

L. 1971, p. 344), to determine the obscenity of the

merchandise and inventory of the Harem Book Store declared

obscene. Plaintiffs, as their interests may appear, pray, as well,

for a declaratory judgment as to the constitutionality of said

Georgia Code § 26-2101 (Ga. L. 1968, pp. 1249, 1302; Ga.

L. 1971, p. 344), as written and/or as applied, and as

threatened to be applied herein.

Jurisdiction is conferred on this Court for the resolution

of the substantial constitional questions herein presented by

28 U.S.C. § 1343(3), which provides, in pertinent part, that

the District Courts shall have original jurisdiction of any civil

action authorized by law to be commenced by any person:

“To redress the deprivation, under color of any state

law, statute, ordinance, regulation, custom, or usage

of any right, privilege or immunity secured by the

Constitution of the United States ...”’,

and the organic law which authorizes the institution of this

suit founded on 42 U.S.C. § 1983, which provides:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any state

or territory subjects or causes to be subjected, any

citizens of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and the laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.”

Suit is further founded on 28 U.S.C. § 13434) “to

recover damages or to secure equitable or other relief under

any act of Congress providing for the protection of civil

rights...”, as well as Article Ill, Section 2 of the

Constitution of the United States.

Prayer for Injunctive Relief is founded on Rule 65 of the

Federal Rules of Civil Procedure.

Prayer for Declaratory Relief is founded on Rule 57 of

the Federal Rules of Civil Procedure, as well as 28 U.S.C. § i

2201.

Jurisdiction for convocation of a Three-Judge Court is

founded on 28 U.S.C. §§ 2281 and 2284.

The jurisdiction of this Court is also invoked under 28

U.S.C. § 1331, this being a civil action wherein the matter in

controversy exceeds, exclusive of interest and costs, the sum

and value of Ten Thousand ($10,000.00) Dollars, and applies

under the Constitution and the laws of the United States.

PARTIES

Plaintiff, Alvis G. Speight, trading as the Harem Book

Store, located at 2979 Campbellton Road, S.W., Atlanta,

Georgia, is engaged, through his agents, servants, and

employees, in the sale and offering for sale of books,

magazines, newspapers, movie films, pictures, and other press

materials which are presumptively protected under the First

Amendment to the Constitution of the United States,

pursuant to applicable City of Atlanta business licenses.

The press materials offered for sale by the Harem Book

Store are comparable to those declared not to be obscene by

the Supreme Court of the United States, and many other

inferior Federal Courts, as well as various state appellate

courts and, hence, are protected expression under the First

Amendment to the Constitution of the United States, as made

applicable to the States under the Fourteenth Amendment

No sales or offerings are made by the Harem Book Store

to persons under eighteen years of age (minors) of any of the

sexually-oriented press materials distributed or offered for

distribution by the Harem Book Store, nor are they

“‘pandered” in the Ginzburg-sense (Ginzburg v. U.S.A., 383

U.S. 463 [1966]), nor are the press materials sold or offered

for sale in a way that intrudes impermissibly into the privacy

of an unwilling adult who wishes to avoid confrontation

therewith.

Prior to July 1, 1972, when the legal age of majori*y in

the State of Georgia was lowered to eighteen (18) years of

age from twenty-one (21) years of age, the agents, servants

and employees of the Harem Book Store made no sales or

offerings to persons under the age of twenty-one (21).

James L. Chandler, Plaintiff herein, is a Lessee of the

premises at 2979 Campbellton Road, S.W., Atlanta, Georgia,

where the Harem Book Store is located. Plaintiff Chandler is

nominally obligated as Lessee of the said premises for the rent

due thereon and is included herein to protect his interests in

the premises as they may appear.

Defendant Lewis R. Slaton is named as a defendant solely

in his capacity as District Attorney for the Atlanta Judicial

Circuit, and as the official authorized by Georgia law to abate

a public nuisance, under color of enforcement of the statutes

of the State of Georgia.

Defendant Hinson McAuliffe is named as a defendant

solely in his capacity as Solicitor General for the Criminal

Court of Fulton County, and as an official purporting to be

authorized by Georgia statute to abate a public nuisance.

10.

The named Defendants, in their official capacities only, as

aforesaid, are joined herein to make enforceable and binding

upon them and/or their agents, servants, employees or

attorneys, and others under their direction and control, the

preliminary and/or permanent injunction, declaratory

judgment and/or other relief that may be granted by this

Court.

a et at, ee al _|

Ti.

FACTUAL ALLEGATIONS

11.

At all times relevant hereto, Defendants and/or their

agents, servants or employees, and others acting under their

direction and control, and each of them, separately and in

concert, under color and pretense of law, to-wit: under color

of enforcement of state statutes, custom and usage of the said

statutes referred to hereinabove, have deprived, are continuing

to deprive, and threaten further to deprive Plaintiffs, as their

interests may appear, their agents, servants, and employees, of

rights, privileges and immunities guaranteed to them by the

First, Fifth and Fourteenth Amendments to the Constitution

of the United States, as well as depriving interested adult

citizens of the State of Georgia, and visitors thereto, of access

to nonobscene press materials protected by the First and

Fourteenth Amendments to the Constitution of the United

States, which press materials are offered for sale or sold under

nonobtrusive circumstances to interested adults only..-

12.

The use of the premises at 2979 Campbellton Road, S.W.,

Atlanta, Georgia, as a bookstore is consistent with the

approved usages for properly zoned, as it is, in the “C-2”

classification.

13.

At all times material hereunto, the Harem Book Store has

been conducted without any overt breaches of the peace or

other interference with the rights of others passing by said

premises.

ERR NRCS PET SARA P TMNT Ney OR SRT NS

14.

On four occasions since the Harem Book Store opened

more than one year ago, agents of the Defendant McAuliffe

have purchased a total of thirteen (13) magazines which

Defendants contend are obscene. None of said magazines has

ever been declared to be obscene in the constitutional sense,

and Plaintiffs herein, as their interest may appear, affirm that

such press materials are not obscene as a matter of law in the

constitutional sense, within the meaning of such term as

enunciated by the decisions of the Supreme Court of the

United States.

15.

No person, employee or otherwise, has ever been

convicted of the commission of a statutory offense at the

premises occupied by the Harem Book Store, including the

offense of distributing so-called obscene materials in violation

of Georgia Code § 26-2101.

16.

Despite the facts as alleged herein, and in reckless

disregard of decisional law enunciated by the United States

Supreme Court dealing with press materials and the First

Amendment, Defendants have instituted a civil suit in the

Superior Court of Fulton County, Georgia, in bad faith, for

the purpose of harassing Plaintiffs, as their interests may

appear, and effecting irreparable harm, demanding, inter alia,

(a) “‘...injunctions, both temporary § and

permanent, against the conduct and operation of the

Harem Book Store, in and on the premises at No.

2979 Campbellton Road, S.W., in the City of Atlanta,

Fulton County, Georgia, by any person;” and,

(b) “...an order declaring all merchandise on

said premises as well as all records, supplies,

equipment and fixtures used in connection with

advertising, sale and exhibition for sale of said

merchandise to be contraband, and to be forfeited

and destroyed;” and

the defendants named herein (plaintiffs in this action)

to show cause why the prayers of this complaint

should not be granted.”

The suit docketed as Civil Action File No. B-77630 is styled:

“LEWIS R. SLATON AS DISTRICT

ATTORNEY, ATLANTA JUDICIAL

CIRCUIT, AND HINSON MCAULIFFE,

AS SOLICITOR GENERAL, CRIMINAL

COURT OF FULTON COUNTY, GEORGIA

vs.

CERTAIN PREMISES AT NO. 2979

CAMPBELLTON ROAD, S.W., ATLANTA

FULTON COUNTY, GEORGIA; THE BUSINESS

CONDUCTED THEREON, KNOWN AS THE HAREM

BOOK STORE; THE OBSCENE MATERIALS

IN AND ON SAID PREMISES; JAMES L.

CHANDLER, LESSEE OF SAID PREMISES; AND

ALL OTHER PERSONS ASSISTING AND ABETTING

IN THE OPERATION OF THE HAREM

BOOK STORE”.

A copy of the said Complaint seeking to close the Harem

Book Store and prohibit all future distribution of press

materials purportedly as a public nuisance and which further

seeks forfeiture and destruction of all press materials

contained therein is attached hereto as Exhibit “A” and made

a part of this Complaint, being incorporated herein by

reference.

17.

Under the said Complaint, Plaintiffs, as their interests

may appear, have been ordered ty the Honorable Claude D.

Shaw, Judge, Atlanta Judicial Circuit, Fulton Superior Court,

to show cause before him, “‘then and there to be heard,” why

the prayers of the Complaint referred to in paragraph 16

hereof should not be granted, placing the burden of

proceeding on those seeking to exercise First Amendment

rights, which procedure has been declared repugnant to the

First Amendment to the Constitution of the United States

(Freedman vy. Maryland, 380 U.S. 51 [1965]; Teitel Film

Corporation yv. Cusack, 390 U.S. 139 [1968]; Carroll vy.

President and Commissioners of Princess Anne County, 393

U.S. 175 [1968] and Blount vy. Rizzi, et al, 400 U.S. 410

[1971]).

18.

Defendants knew or should have known that no violation

of Georgia statutes, to-wit: Georgia Code §26-2101, has been

alleged and proved in any court of law against Plaintiffs

herein, or any of their agents, servants, and employees,

relating to the Harem Book Store located at 2979

Campbellton Road, S.W., Atlanta, Fulton County, Georgia,

prior to the institution of the Complaint attached hereto and

identified as Exhibit “‘A”’.

Further, Plaintiffs affirm that in a criminal prosecution

charging Plaintiff James L. Chandler, brought in the Criminal

Court of Fulton County, by the agents, servant, and

employees of Defendant McAuliffe charging violation of State

of Georgia Obscenity law, after a trial of three (3) days, a

mistrial was declared by the Honorable Daniel Duke, Judge,

because the jury was unable to reach a unanimous verdict.

(The jury remained in deadlock at four (4) to (1) in favor of

acquittal.)

19.

The resort to utilization of the concept of public nuisance

authorized by Georgia Statutes by the Defendants in order to

shut down the Harem Book Store and forbid press materials

to be sold there as well as seeking the forfeiture and

destruction of all the press materials contemporaneously being

offered for sale at said store, without regard to whether or

not each and every single publication can be said to be

obscene in the constitutional sense, and indeed, the said

Complaint, as sanctified by verification, states, in part, as

follows:

“Said books, magazines and motion picture films and

said imitation penises and phallic objects constitute

one stock of merchandise all of which is pandered as

being in the nature of hard-core pornography and the

major portion or a substantial portion of such stock

of merchandise is such hard-core pornography, and

plaintiffs say that the entire stock of merchandise is

accordingly subject to condemnational and

forfeiture.” (Exhibit “A”, p. 3.)

Further, Defendants also, by their proceedings in enforcement

of said Georgia Statutes, attempt to circumvent the safeguards

of the criminal process with its requirement of proof beyond

a reasonable doubt before a jury and substitute therefore a

lesser, civil, burden of proof, to-wit: the preponderance of the

evidence standard, and a judge.

Said attempt is, in truth and fact, a bad faith effort to

force the cessation of sales of all materials in the said store

without regard to whether constitutionally protected. (See

paragraph 4 of the Complaint attached as Exhibit “‘A”’.)

The Defendants and/or their agents, servants, and

employees have thus established a pattern of conduct under

color of enforcement of state law and customs under facially

invalid statutes of attempting the ultimate suppression of

presumptively protected publications and materials without,

to this date, ever having had any judicial determination by

adversary proceedings that any of said publications or

materials offered for sale or sale are, in fact, obscene in the

constitutional sense, and unless restrained, Defendants and/or

their agents, servants -and employees, will perpetuate a

“chilling effect” upon the exercise of Plaintiffs’ First

Amendment rights as well as the right of interested adult

citizens of the City of Atlanta and the State of Georgia, and

of the other forty-nine states who may visit Georgia and who

wish to exercise their First Amendment right to buy, review

and view nonobscene publications and films. The efforts on

the part of Defendants to close Plaintiffs’ business, begin.sing

almost from the date on which Plaintiffs lawfully complied

with the licensing requirements for bookstores and the zoning

ordinance then in effect, and opened the business, the

threatened closure under the guise of the “abatement of a

public nuisance” constitute attempts at a constitutionally

invalid “prior restraint” which is condemned by the First,

Fourth, Fifth and Fourteenth Amendments to _ the

Constitution of the United States.

IV.

BASIS IN LAW FOR RELIEF

22.

The aforesaid conduct of Defendants, their agents,

servants, employees and attorneys, and others acting under

their direction and control, and each of them, in seeking to

close the Harem Book Store under the guise of abating a

nuisance constitutes an in aiid “prior restraint”, condemned

by the Constitution of the United States and threatens to

have and has had a “chilling effect”’on the exercise of

— me

RN AEE REDS HATE PRE ee a

Plaintiffs’ constitutional rights, more particularly, the First,

Fourth and Fifth Amendments thereof, as made obligatory on

the states under the Fourteenth Amendment. The conduct of

Defendants, their agents, servants, and employees, in seeking

to close Plaintiffs’ business is deprivation of Plaintiffs’ rights

to due process under the J‘fth Amendment to the

Constitution, as well as an all too effective restraint on the

exercise of Plaintiffs’ right to sell and distribute presumptively

protected materials to the interested adult public.

23.

If as a result of the Defendants’ actions, the Harem Book

Store is shuttered, and the press materials contained therein

forfeited and destroyed, then the interested adult public will

be deprived of access to publications; other business

establishments offering press materials to the interested adult

public in and around the City of Atlanta will be forced to

engage in “self-censorship” causing “chilling of speech”,

further threatening to deprive said interested adult citizens of

such press materials which they have a constitutional right to

read and possess; and further, Plaintiffs herein,- as their

interests may appear, will be irreparably harmed as a result of

the substantial interference with advantageous business

relations.

24.

By reason of the conduct of the Defendants, their agents,

servants, employees and attorneys, .and others under their

direction and control, as aforesaid, the civil rights of Plaintiffs

under the First, Fourth, Fifth, Sixth and Fourteenth

Amendments to the United States Constitution have been

violated to their irreparable harm. Unless’ enjoined,

Defendants, their agents, servants, employees and attorneys,

will cause further imminent and irreparable harm to Plaintiffs

for which they have no plain, adequate remedy at law, and

the conduct of Defendants, their agents, servants, employees

LIE TA MOI ERNIE ER ABR

- *

and attorneys, had had and threatens to have a continuing

“chilling effect” on the Plaintiffs’ exercise of their First

Amendment freedoms. Immediate and irreparable injury,

incalculable loss, and damage will result to Plaintiffs if a

Preliminary Injunction is not issued, forbidding Defendants,

their agents, servants, employees and attorneys, from

continuing in their proposed, wholly illegal conduct as

aforesaid, under color of enforcing said state statutes.

25.

The provisions of Georgia Code § 26-2101 (Ga. L. 1968,

pp. 1249, 1302, Ga. L. 1971, p. 344) are repugnant to the

First, Fourth Fifth, Sixth and Fourteenth Amendments to the

Constitution of the United States in the following respects:

(a) Said statutory provisions are void for vagueness in that

the same prohibit the doing of an act in terms so vague, fluid,

and indefinite that men of common intelligence must

necessarily guess at the meaning and differ as to the

application thereof and, as such, are repugnant to the due

process provisions of the Fifth and Fourteenth Amendments

to the Constitution of the United States, and further,

(b) Said statutory provisions are void for overbreadth by

means which sweep unnecessarily broadly and thereby invade

the area of protected freedoms in that the statute sets forth

standards at variance with and insufficient for those minimum

standards prescribed by the United States Supreme Court in

First Amendment matters; and further,

and impermissible overbreadth, in the area of First

Amendment freedoms, because the said provisions are

susceptible of sweeping and improper application by

Defendants and have a “chilling and inhibiting effect” on the

exercise of the Federal and State constitutional rights of

citizens of the State of Georgia and of the United States, as

well as those of Plaintiffs, to publish, distribute circulate, sell,,

receive, and/or purchase materials presumptively protected by

the First Amendment; and further,

(d) Such statutory provisions are repugnant to the

substantive due process provisions of the Fifth and

Fourteenth Amendments to the Constitution of the United

States, because they permit deprivation of liberty and/or

property interests for the exercise of First Amendment rights

by unreasonable, arbitrary, and capricious means by

Defendants and/or their agents, servants, employees, and

attorneys without a showing of a real and substantial

relationship to any State’s subordinating interest which is

compelling to justify State action limiting the exercise by

Petitioner of First Amendment freedoms; and further,

(e) Said statutory provisions are impermissibly broad and

repugnant to the procedural due process requirements of the

Fifth and Fourteenth Amendments to the Constitution of the

United States by employing means lacking safeguards which

due process demands to assure nonobscene materials sought to

be distributed as a business activity, the constitutional

protection of the First Amendment, to which it is entitled;

and further,

(f) Said statutory provisions are vague and impermissibly

overbroad and thus repugnant to the First, Fourth, Fifth, and

Fourteenth Amendments to the Constitution of the United

States, in that said statutory provisions permit inherent

powers of censorship and suppression, constituting a prior

restraint of the exercise of Plaintiff's First Amendment rights

by Defendants.

(g) Said statutory provisions are further void for

overbreadth in that they do not limit prosecutions to

materials which are sold without notice to the public of their

nature or without reasonable protection against exposure of

the materials to juveniles.

aN On fe cn At 2 Sey 1 MA eae

wat

ee Sea

Georgia Code § 26-2103 (Ga. L. 1971, pp. 344, 345;

Section 2 of Act 304, 1971) and Title 72 of the Georgia

Code of 1933, as amended, are repugnant to the First,

Fourth, Fifth, Sixth, and Fourteenth Amendments to the

Constitution of the United States for the following reasons:

(a) Said statutes and their application to Plaintiffs

constitute a classical “prior restraint” on materials which are

presumptively protected under the First Amendment to the

Constitution of the United States, which has been condemned

by the Supreme Court of the United States in an unbroken

string of cases beginning with Near v. Minnesota, 283 U.S.

697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) and continuing

through recent terms of that Court with its decisions in New

York Times Company v. United States, 403 U.S. 713 (1971),

and Organization for a Better Austin v, Keefe, 402 U.S. 415

(1971).

(b) Georgia Code § 26-2103 denies due process and equal

protection of the laws to Plaintiffs in that said statute makes

a public nuisance of a business, rendering it subject to closure

under the guise of abating a nuisance, on the basis of a single,

isolated transaction as to only one of possibly thousands of

presumptively protected publications and materials without

any showing of traditional elements necessary to constitute a |

continuing public nuisance; all of which is repugnant to the

First, Fifth, and Fourteenth Amendment to the Constitution

of the United States.

place of business a public nuisance on the basis of a single,

isolated transaction, creates an invalid presumption of the

type condemned by the United States Supreme Court in

Leary v. United States, 395 U.S. 1532, 23 L. Ed. 2d 57, in

that it violates the Fifth and Fourteenth Amendments of the

Constitution of the United States.

Kp AEG ehh em A LAT DO Se

(d) Moreover, said statutory presumption deprives

Plaintiffs of their Fifth and Fourteenth Amendment rights

under the Constitution of the United States to have every

element making up a nuisance to be proven, by competent

evidence, in a First Amendment context, beyond a reasonable

doubt.

27.

Georgia’s Nuisance Statute, Title 72 of the Ceorgia Cou:

of 1933, as amended, as written and/or as applied to

Plaintiffs, is repugnant to the Constitution of the United

States in that:

(a) Said statutory scheme’s provisions are void for

vagueness in that the same prohibit the doing of an act in

terms so vague, fluid, and indefinite that men of common

intelligence must ne-essarily guess at the meaning and differ

as to the application thereof and, as such, are repugnant to

the due process provisions of the Fifth and Fourteenth

Amendment to the Constitution of the United States; and

further,

(b) Said provisions are void for overbreadth by means

which sweep unnecessarily broadly and thereby invade the

area of protected freedoms in that the statute sets forth

standards at variance with and insufficient for those minimum

standards prescribed by the United States Supreme Court in

First Amendment matters; and further,

impermissible overbreadth, in the area of First Amendment

freedoms, because the said provisions are susceptibel of

sweeping and improper application by Defendants and have a

“chilling and inhibiting effect” on the exercise of the Federal

and State constitutional rights of citizens of the State of

Georgia and of the United States, as well as those of

Plaintiffs, to publish, distribute, circulate, sell, receive, and/or

purchase printed publications; and further,

(d) Said provisions are repugnant to the substantive due

process provisions of the Fifth and Fourteenth Amendments

to the Constitution of the United States because they permit

deprivation of liberty and/or property interests for the

exercise of First Aimendment rights by unreasonable,

arbitrary, and capricious means by Defendants and/or their

agents, servants, employees and attorneys without a showing

of a real and substantial relationship to any subordinating

interest of the State of Georgia which is compelling to justify

action limiting the exercise by Plaintiffs of First Amendment

freedoms; and further,

(e) Said provisions are vague and impermissibly overbroad

and thus repugnant to the First, Fifth, and Fourteenth

Amendments to the Constitution of the United States in that

said provisions permit inherent powers cf censorship and

suppression, constituting a prior restraint of the exercise of

Plaintiff's First Amendment rights by Defendants.

(f) Said provisions, as applied, or as threatened to be

applied by Defendants to Plaintiffs are repugnant to the First

and Fourteenth Amendments to the Constitution of the

United States in that they lack adequate safeguards against

undue inhibition of materials which are entitled to the

protection of the First Amendment.

RELIEF SOUGHT

28.

Plaintiffs are further entitled to and desire that this Court

enter a declaratory judgment on final hearing under the

provisions of 28 U.S.C. §220] and Rule 57, Federal Rules of

amended; Georgia Code, §26-2101 (Ga. L. 1968, 1249, 1302;

Ga. L. 1971, p. 344); Georgia Code § 26-2103 (Ga. L. 1971,

Section 2, pp. 344, 345), and Georgia Code §26-2104 (Ga. L.

1971, Section 3, pp. 344, 345) as written and/or applied, are

unconstitutional for the aforesaid reasons.

29.

Plaintiffs are entitled to and desire that a three-judge

court be convened to determine the constitutionality of said

statutes pursuant to 28 U.S.C. §§ 228] and 2284 and issue a

preliminary and permanent injunction § restraining and

enjoining each of the Defendants, their agents, servants,

employees, and attorneys, and any and ail other persons

acting under their direction and control, and each of them,

and persons in active concert with them from proceeding

against Plaintiffs in enforcing said statutes against Plaintiffs

pursuant to authority granted by them, as contemplated in

the said State Court Action referred to hereinbefore.

WHEREFORE, Plaintiffs pray:

1. That a three-judge court be convened to hear and

decide the issues raised herein;

2. That a preliminary injunction issue upon hearing

restraining Defendants, and/or their agents, servants,

employees, and attorneys, pending a hearing and

determination of Plaintiffs’ applieation for permanent

injunction from proceeding against Plaintiffs in enforcing the

said statutes referred to in Paragraph 29 herein or proceeding

against Plaintiffs pursuant to authority granted by them, as

contemplated in the state court action referred to above.

3. That after final hearing said injunctions be made

permanent and said statutes referred to above be declared

Civil Procedure, declaring Title 72, Georgia Code of 1933, as

unconstitutional as written and/or as applied to the controlled

distribution of adult-type publications and materials to

persons eighteen (18) years of age or older in a nonobtrusive

manner, absent “Ginzburg’-type pandering, by Plaintiff

Speight herein; and

4. That a prelimianry and permanent injunction issue

restraining Defendants, their agents, servants, employees, and

attorneys and any and all other persons acting under their

direction and control from (a) enforcing or acting under said

statutes referred to in Paragraph 28 herein in an

unconstitutional manner or to apply them in a manner to

obtain unconstitutional results with respect to these Plaintiffs,

their agents, servants, and employees.

5. That the Governor and the Attorney General of the

State of Georgia be given notice by registered mail of the

pendency of the Plaintiffs’ application for preliminary

injunction, as required by 28 U.S.C. § 2284(2).

6. That Plaintiffs have such other and further relief as

may be appropriate under the circumstances in this case

together with costs.

Respectfully submitted,

D. FREEMAN HUTTON, Esquire

Suite 2005

1175 Peachtree Street, N.E.

Atlanta, Georgia, 30309

(404) 892-8890

GILBERT H. DEITCH, Esquire

Suite 2005

1175 Peachtree Street, N.E.

Atlante, Georgia, 30309

(404) 89-28890

Suite 507

102 W. Pennsylvania Avenue

Towson, Maryland, 21204

(301) 821-6868

Counsel for Plaintiffs.

STATE OF GEORGIA

COUNTY OF FULTON

VERIFICATION

Personally appeared before me, the undersigned attesting

officer, ALVIS G. SPEIGHT and JAMES L. CHANDLER,

Petitioners herein, and after first being duly sworn, depose

and say that the facts alleged in the above and foregoing

Complaint for Preliminary Injunction, Permanent Injunction,

Declaratory Judgment, and Convocation of Three-Judge Court

are true and correct, to the best of his current knowledge,

information, and belief, respectively.

ALVIS G. SPEIGHT

JAMES L. CHANDLER

SWORN TO AND SUBSCRIBED before me,

this 25th day of August, 1972.

- D. FREEMAN HUTTON

Notary Public

(SEAL)

RPA Ree SHES Te IS oon

ROBERT EUGENE SMITH, Esq.

- AS SOLICITOR GENERAL, CRIMINAL

THE SUPERIOR COURT FOR THE

COUNTY OF FULTON

STATE OF GEORGIA

LEWIS R. SLATON AS DISTRICT

ATTORNEY, ATLANTA JUDICIAL

CIRCUIT, AND HINSON MCAULIFFE,

COURT OF FULTON COUNTY, GEORGIA

vs. CIVIL ACTION

CERTAIN PREMISES AT NO. 2979 FILE NO. B-77630

CAMPBELLTON ROAD, S.W., ATLANTA, COMPLAINT

FULTON COUNTY, GEORGIA; THE

BUSINESS CONDUCTED THEREON, KNOWN AS THE

HAREM BOOK STORE; THE OBSCENE

MATERIALS IN AND ON SAID PREMISES;

JAMES L. CHANDLER, LESSEE OF SAID

PREMISES; AND ALL OTHER PERSONS

ASSISTING AND ABETTING IN THE

OPERATION OF THE HAREM BOOK STORE

EXHIBIT “A”

Plaintiffs complain under the provisions of Sections

26-2103 and 26-21-4 of the Criminal Code of Georgia against

the premises at No. 2979 Campbellton Road, S.W. in the City

of Atlanta, Fulton County, Georgia, and the business

conducted thereon known and designated as the Harem Book

Store, as a public nuisance, and against the obscene materials

in and on said premises as contraband.

Upon information and belief plaintiffs allege that James

L. Chandler, who resides at No. 3649 Buford Highway,

Apartment C-5, DeKalb County, Georgia, is the lessee of said

Soh NSE PS SR aE aR

premises, and the owner and operator of the aforesaid Harem

Book Store.

Said premises and business have been used, are now being

used, and, unless prevented by judicial action, will continue to

be used for the advertising, storage, sale, and exhibition for

sale of materials obscene within the meaning of Section

26-2101 of the Criminal Code of Georgia. Said activities are

being conducted by the aforesaid Chandler, and by various

agents, servants and employees of the aforesaid Chandler

whose names and addresses are not alleged because of the

rapid rate of change or turnover in such personnel.

Said materials consist of books, magazines, and motion

picture films, each and all of which contain photographs, still

or moving, of one or more of the following:

a) Acts of sexual intercourse, real and simulated;

b) acts of anal intercourse, real and simulated;

c) acts of cunnilingus, real and simulated;

d) acts of fellatio, real and simulated;

e) acts of other sexual activity, including but not limited

to photographs of persons fondling female breasts, and

persons fondling the genitals of themselves and of others,

both men and women.

The signs on the exterior of the building on said premises

housing the Harem Book Store, which is located on a main

thoroughfare in the City of Atlanta, are designed and

calculated to convey to adult male viewers the message that

the material for sale within is of a salacious and prurient

nature.

Within said building in said place of business there are

stored, sold and exhibited for sale imitations of large erect

penises and other phallic objects, in immediate juxtaposition

to books, magaines and motion picture films of the nature set

forth in this complaint. A suggestively garbed female dummy

with vagina exposed also occupies a prominent position in

said building.

Plaintiffs say that the business of the Harem Book Store

is the commercial exploitation of erotica solely for the sake

of their prurient appeal.

Plaintiffs say, further, that the books, magazines, and

motion picture films so being advertised, stored, sold and

exhibited for sale are commingled and not segregated by

categories having regard for such as is within and such as is

without the protection of the First Amendment of the

Constitution of the United States and Art. 1, Sec. 1, Par. 15

of the Georgia Constitution (Code Ann., Sec. 2-115). Said

books, magazines and motion picture films and said imitation

penises and phallic objects constitute one stock of

merchandise all of which is pandered as being in the nature of

hard-core pornography and the major portion or a substantial

portion of such stock of merchandise is such hard-core

pornography, and plaintiffs say that the entire stock of

merchandise is accordingly subject to condemnation and

forfeiture. Attached hereto and incorporated by reference as

Plaintiff's Exhibit “A” are a series of photographs which truly

and accurately portray the exterior signs, interior displays of

the aforesaid materials, imitation penises and the female

dummy referred to in paragraph Six.

On July 28, 1971, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

a) Sex in Marriage, The Photo Magazine of Marital Sex

Education, Volume One, Number Two, $6.00, Academy

Magazines Division of Academy Press, publisher.

b) Primer of Sexual Education, Volume Three, $600,

Calga Publishers.

c) The Sexual Man, Collector’s First meition, Vol. 1,

$6.00, SECS Press.

The sale of each of said magazines was unlawful because

each and all of said magazines were obscene within the

meaning of Georgia Code Section 26-2101.

10.

On August 14, 1971, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

a) Cavewomen, A.P.E.C. Magazine No. 25, $3.50,

Publisher’s Export Company, Inc.

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b) The Savages, A.P.E.C. Magazine No. 14, $3.50

Publisher’s Export Company, Inc.

c) Foreplay, A Sensuous New Erotic Probe into the

World of Sex, $6.00

The sale of each of said magazines was unlawful because

each and all of said magazines were obscene within the

meaning of Georgia Code Section 26-2101.

1}.

On November 24, 1971, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

a) AWARE, Volume One, Number Two, $6.00.

The sale of each of said magazine was unlawful because

each and all of said magazine was obscene within the meaning

of Georgia Code Section 26-2101.

12.

On May 31, 1972, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

a) More Than 7 Inches, #2, $6.00.

b) Gay Sex Guide, Volume 1, $6.00.

c) Affaire, No. 7, $7.50.

d) Love Theme, Vol. 1, No. 4, $4.50.

a ppecy em AR St Nd ita

SEAMEN Le BLY SEIS ETI ROLE EE SA BETSEY Ae eo

e) The Special, No. 5, $5.00, Pnd.

f) Affaire, No. 9, $6.00.

The sale of each of said magazines was unlawful because

each and all of said magazines were obscene within the

meaning of Georgia Code Section 26-2101.

WHEREFORE Plaintiffs demand:

1) Summons and an appropriate order for service of

summons issued, and of all rules and orders.

2) For an interlocutory injunction:

a) For injunctions, both temporary and permanent,

against the conduct and operation of the Harem Book

Store, in and on the premises at No. 2979

Campbellton Road, S.W., in the city of Atlanta,

Fulton County, Georgia, by any person.

b) For an order declaring all merchandise on said

premises, as well as all records, supplies, equipment

and fixtures used in connection with advertising, sale

and exhibition for sale of said merchandise to be

contraband, and to be forefeited and destroyed.

3) That a Rule Nisi be issued instanter requiring the

defendants named herein to show cause why the prayers

of this complaint should not be granted.

Respectfully submitted,

/s/ CARTER GOODE

Assistant District Attorney

Atlanta Judicial Circuit

AMEE TIE LEARNS MEANS ITY

oth

/s/ JOEL M. FELDMAN

Assistant District Attorney

Atlanta Judicial Circuit

/s/ THOMAS E. MORAN, JR.,

Assistant Solicitor General

Criminal Court of Fulton County

THE SUPERIOR COURT FOR THE

COUNTY OF FULTON

STATE OF GEORGIA

LEWIS R. SLATON AS DISTRICT

ATTORNEY, ATLANTA JUDICIAL

CIRCUIT, AND HINSON MCAULIFFE

AS SOLICITOR GENERAL, CRIMINAL

COURT OF FULTON COUNTY, GEORGIA

vs. CIVIL ACTION,

CERTAIN PREMISES AT NO. 2979 FILE NO. ———___-_

CAMPBELLTON ROAD, S.W., ATLANTA, COMPLAINT

FULTON COUNTY, GEORGIA; THE

BUSINESS CONDUCTED THEREON, KNOWN AS

THE HAREM BOOK STORE; THE OBSCENE

MATERIALS IN AND ON SAID PREMISES;

JAMES L. CHANDLER, LESSEE OF SAID

PREMISES; AND ALL OTHER PERSONS

ASSISTING AND ABETTING IN THE

OPERATION OF THE HAREM BOOK STORE

VERIFICATION

Personally comes Joel M. Feldman, who, being first duly

sworn, On Oath says that he is an Assistant District Attorney

of the Atlanta Judicial Circuit; that he is an attorney for the

plaintiffs in the captioned complaint; that he has knowledge

of the facts stated in said complaint; and that the allegations

of fact in said complaint are true.

/s/ JOEL M. FELDMAN

Sworn to and subscribed before me this the 21 day of

Aug., 1972.

/s/ Juanita Kersein

Notary Public GA. State at Large

THE SUPERIOR COURT FOR

THE COUNTY OF FULTON

STATE OF GEORGIA

LEWIS R. SLATON AS DISTRICT

ATTORNEY, ATLANTA JUDICIAL

CIRCUIT, AND HINSON MCAULIFFE,

AS SOLICITOR GENERAL, CRIMINAL

COURT OF FULTON COUNTY, GEORGIA

vs. CIVIL ACTION,

CERTAIN PREMISES AT NO. 2979 ye |

CAMPBELLTON ROAD, S.W., ATLANTA, COMPLAINT

FULTON COUNTY, GEORGIA; THE

BUSINESS CONDUCTED THEREON, KNOWN AS

THE HAREM BOOK STORE; THE OBSCENE

MATERIALS IN AND ON SAID PREMISES;

JAMES L. CHANDLER, LESSEE OF SAID

PREMISES; AND ALL OTHER PERSONS

ASSISTING AND ABETTING IN THE

OPERATION OF THE HAREM BOOK STORE

ORDER

This complaint having been read and considered:

bhi ata A A oa

RMIT AINE NRT MTN ORIEN CSR aT ep

IT IS ORDERED:

1. That summons issued and service be made by the sheriff,

instanter upon

a. The premises known as the Harem Book Store,

located at 2979 Campbellton Road, S.W., Atlanta,

Fulton County, Georgia by posting a copy of the

complaint, summons, and this order in a conspicuous

place in said premises and personally the persons

located therein and in charge of said premises.

b. James L. Chandler, Apartment C-5, 3649 Buford

Highway, DeKalb County, Georgia.

Said summons shall require the Respondents to show

cause, within 48 hours from service thereof, before this court,

why the prayers of the complaint should not be granted.

2. Respondents show cause before me, then and there to be

heard, at 9:30 A.M., the 25 day of Aug., 1972 why the

prayers of the complaint should not be granted.

This the 21 day of Aug., 1972.

/s/ CLAUDE D. SHAW

JUDGE, FULTON SUPERIOR

COURT

Atlanta Judicial Circuit

489 TENG ART RN COE I WO

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ALVIS G. SPEIGHT t/a

HAREM BOOK STORE and

JAMES L. CHANDLER,

Plaintiffs,

versus CIVIL ACTION

LEWIS R. SLATON, FILE NUMBER

In His Capacity as

District Attorney,

Atlanta Judicial Circuit; and

HINSON McAULIFFE, AFFIDAVIT OF

In His Capacity as ROBERT EUGENE SMITH, ESQ.

Solicitor General, Criminal IN SUPPORT OF

Court of Fulton County, INJUNCTION AND

State of Georgia, DECLARATORY RELIEF

Defendants,

Jointly and Severally.

STATE OF GEORGIA

COUNTY OF FULTON

ROBERT EUGENE SMITH, being first duly sworn,

deposes and says:

1. I am an attorney licensed to. practice in the State of

Maryland, and one of the attorneys representing Plaintiffs in

the above styled and numbered cause.

2. It is my opinion that the Georgia statutes under which

Defendants herein purport to act are unconstitutional as

written and applied in the factual context set forth in the

Complaint to which this Affidavit is attached and represents a

constitutionally prohibited prior restraint.

‘Ia

3. My experience in the obscenity area has been extensive

and I have argued the following obscenity cases in the United

States Supreme Court orally or by brief:

A. Central Magazine Sales, Ltd. v. United States, 389

U.S. 50 (1967).

Bloss v. Dykema, 398 U.S. 278 (1970).

Bloss v, Michigan, 402 U.S. 928 (1971).

Burgin vy. South Carolina, 404 U.S. 806 (1971).

United States v. The Book Bin, 400 U.S. 410 (1971).

Pir. P. ee

Mitchum vy, Foster, 407 U.S, 225, 32 L.Ed.2d 705

(1972).

I have also argued numerous cases in the United States

Courts of Appeal, United States District Courts, and multiple

State Appellate Courts.

I have appeared in cases in approximately thirty-eight

(38) states of the United States in connection with the

procedural and substantive factors involved in the area of

obscenity litigation.

4. I further appeared in the case of United States v. The

Book Bin in this jurisdiction on behalf of Respondent before

Circuit Judge Morgan and District Judges Edenfield and

Hooper, wherein it was held, in part, that the action proposed

to be taken by the United States Attorney under color of

enforcing 39 U.S.C. §§ 4006 and 4007, was unconstitutional

as a prohibited prior restraint and for not setting forth

procedural safeguards, as was required by the United States

Supreme Court in the case styled Freedman v. Maryland, 380

U.S. 51 (1965).

28 RD ERENG DED RO INP ibe YN RPM FEC

S. In the case of Mitchum vy. Foster, supra, decided by

the United States Supreme Court June 19, 1972, the question

there involved was the jurisdiction of the Federal Court to

intervene in a State Court civil proceeding which commenced

prior to the institution of the Federal action. In that factual

situation, a State Judge had ordered an adult bookstore closed

and enjoined the proprietors thereof from offering for sale

any king of press materials. A Three-Judge statutory court

held that the anti-injunction statute, 28 U.S.C. § 2283 was a

bar to injunctive relief in that case, and the proprietors of the

bookstore appealed to the United States Supreme Court.

Probable Jurisdiction was noted. The case was argued in

December 1971 and the Court, in an opinion by Justice

Stewart expressing the unanimous view of the Court, held

that Section 1983 constituted an “expressly authorized”

exception to Section 2283 and that Section 2283 did not

preclude injunctive relief in the nuisance case before it

involving the prior restraint.

6. On June 26, 1972, the United States Supreme Court

granted certiorari in the case of Paris Adult Theatre v. Slaton,

No. 71-1051, along with two other cases, Alexander y,

Virginia, No. 71-1315, and Kaplan v. California, No. 71-1422.

At issue in the Paris Adult Theatre case were the following

questions:

1. “Whether the two motion picture films which are the

subject matter of these proceedings, and determined

by the Trial Court to be not obscene, but by the

Supreme Court of the State of Georgia to be obscene,

are not obscene in the constitutional sense and are

protected expression under the First and Fourteenth

Amendment to the United States Constituiton?”

2. “Whether there can be a constitutionally valid judicial

determination of obscenity as to each of the films

brought before the Supreme Court, consistent with

Petitioners’ rights to procedural and substantive due

RNS ETT ONE ENR, BHT HHT AN”

process required by the Fifth and Fourteenth

Amendments to the Constituion of the United States,

in the absence of any affirmative evidence on each of

the constitutionally relevant elements of the standards

for judging proscribable obscenity under the First

Amendment?”

3. “Whether the State of Georgia may, consistent with

the First, Fourth, Fifth and Fourteent!, Amendments

to the Constitution of the United States, utilize ad

hoc procedures to enjoin dissemination of

presumptively protected First Amendment materials

where there is no statutory or authoritative judicial

decision authorizing the same with appropriate

procedural safeguards?”

A copy of the Petition for Certiorari in the Paris Adult

Theatre case is attached hereto as Exhibit No. 1 in support of

this Affidavit, and a copy of the letter from the Clerk’s Office

of the United States Supreme Court notifying counsel of the

grantin g of the certiorari and of the request of the Court to

brief and argue an additional question

4. “Whether the display of any sexually oriented films

in a commercial theatre, when surrounded by notice

to the public of their nature and by reasonably

protection against exposure of the film to juveniles is

constitutionally protected?”

is attached hereto as Exhibit No. 2 in support of this

Affidavit. The Petitioners’ Brief in the Paris Aduit Theatre

matter, due in the United States Supreme Court on August

25, 1972, is attached hereto as Exhibit No. 3 in support of

this Affidavit.

7. Some of the very issues which Defendants seek to raise

in the so-called nuisance action are well-known to them to be

now before the United States Supreme Court.

8. In the Complaint filed by Defendants herein (which is

attached as Exhibit “A” to Plaintiffs’ Complaint in the within

proceedings), it is alleged that the press materials offered for

sale at the Harem Book Store consist of:

“books, magazines and motion picture films, each and all

of which contain photographs, still or moving, of one or

more of the following:

a) acts of sexual intercourse, real and simulated;

b) acts of anal intercourse, real and simulated;

c) acts of cunnilingus, real and simulated;

d) acts of fellatio, real and simulated;

e) acts of other sexual activity, including but not limited

to photographs of persons fondling female breats, and

persons fondling the genitals of themselves and of others,

both men and women.”

Contrary to the verification affidavit filed by Joel M.

Feldman as one of the attorneys for the Defendants, the

United States Supreme Court has held that the various

classifications of materials, represented by the designation of

Mr. Feldman, not to be obscene in the constitutional sense

and a schedule of cases representing the description of

materials held not to obscene by the United States Supreme

Court is attached hereto as Exhibit No. 4 in support of this

Affidavit.

= Rr mtn Meet eT

p= OR

9. The United States Supreme Court has a matter now

pending before it involving the use of a nuisance law to stop

the showing of a film in the case of Grove Press Inc. v. Flask,

No. 70-2, which is an appeal from a statutory Three-Judge

Court, docketed July 6, 1970. This case involves, in part, a

concept of public nuisance, and it is the second oldest case on

the docket of the Court, which is, as of this date, still

undisposed of. 41 LW 3005.

10. In the recent case of Rabe v. Washington, 405 U.S.

313 (1972), Mr. Justice Burger, in a separate opinion joined

in by Mr. Justice Rehnquist concurring with the other seven

members of the Court, stated as follows with regard to the

issue of nuisance:

“Public display of explicit materials such as are

described in this record are not significantly different

from any noxious public nuisance traditionally within

the power of the States to regulate and prohibit, and,

in my view involve no signficant countervailing First

Amendment considerations.”

It is interesting to note that only one member of the

Court other than the Chief Justice joined in this concept with

regard to noxious public nuisance. To put Mr. Justice Burger’s

concept of public nuisance in focus, it should be noted that

the public displays implicated in the factual situation before

the Court in Rabe vy. Washington, supra, included the

following elements: (1) the screen of the outdoor drive-in

theatre was clearly visible to all motorists passing over a

nearby public highway; (2) there were twelve to fifteen

nearby family residences which were confronted with a view

of the screen from their premises; and (3) young children

were often observed viewing sexually-oriented films on the

screen of the outdoor theatre from outside the chainlink

fence surrounding the theatre grounds. It was to this factual

context, and this context only, that Justice Burger addressed

his remarks.

RF LE ERs TE

Mr. Feldman’s affidavit and the complaint to which it is

attached would have us believe that the identification of a

bookstore selling press materials to interested adults where the

outside of the store contains forewarning to adults of the

character of the material offered therein is, in effect, an

exploitation to a prurient interest of adult materials, when, in

truth and in fact, the forewarning and prohibition of juveniles

of entering the store is a good faith effort on the part of

Plaintiffs herein to follow the guidelines set down by the

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

U.S. 767, and its thirty-four progeny cases which have been

decided since that time.

See also, Alexander v. Virginia, No. 71-1315, wherein The

United States Supreme Court, in addition to the questions

presented in the Petition for Certiorari, directed counsel to

brief and argue the following:

“Whether the display of any sexually-oriented

pictorial magazines for commercial sale, when

surrounded by notice to the public of their nature

and by reasonably protection against exposure of the

magazines to juveniles, is constitutionally protected?”

The United States Supreme Court, in Kaplan vy, California,

No. 71-1422, granted certiorari on June 26, 1972, and one of

the questions presented was as follows:

“Whether California Penal Code §§ 311 and 311.2,

as construed and applied to authorize the judgment

of conviction of petitioner herein, where the sole

evidence in the record establishes that petitioner, a

retail book seller, sold the book to an adult who

requested the book and purchased it, ostensibly for

his personal use, and where the prosecution neither

sold the material in his book store to minors nor

thrust it upon the general public and engaged in no

‘pandering’ of ther material, deprive petitioner of his

a A al RAS et RL LOTTI ti RE MMBE OL I con

ak) AERA REN TENE oe

xy,

liberty and property without due process of law and

abridge petitioner’s exercise of freedoms of speech

and press, contrary to the free speech and press and

due process provisions of the First and Fourteenth

Amendments?”

11. In the proceedings at bar, the record establishes

conclusively that the press materials offered for sale at the

Harem Book Store, to interested adults only, and surrounded

by notice to the public of their nature and by reasonable

protection against exposure of the press materials to juveniles,

would be constitutionally protected. The United States

Supreme Court, by raising these questions on its own motion

has demonstrated that the question first hinted at in Stanley

v. Georgia, 394 U.S. 567, and not resolved by United States

v. Reidel, 402 U.S. 351 (1971) and United States vy.

Thirty-Seven Photographs, 402 U.S. 363 (1971), is a very

substantial one.

12. The ad hoc procedural devices being utilized by

Defendants herein, as well as the substance of the relief which

they seek in the State Court, under color of enforcement of

the State of Georgia Obscenity and Nuisance statutes, as set

forth in the Complaint to which this Affidavit is attached,

clearly presents a proper question for adjudication by this

Court, and the institution of the proceedings in the State

Court in view of the factual background set forth, represents

bad faith enforcement of the law, designed to harass the

Harem Book Store out of business during this election year.

/s/ Robert Eugene Smith, Esquire

SWORN TO AND SUBSCRIBED before me, this 28th

day of August, 1972.

/s/ C.L. Stovall

Notary Public, Georgia State at

Large

My Commission Expires Sept. 15,

1975.

RARE ERT TAN ee

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ALVIS G. SPEIGHT t/a

HAREM BOOK STORE and

JAMES L. CHANDLER,

Plaintiffs

v. CIVIL ACTION NO. 17,075

LEWIS R. SLATON, District

Attorney, Atlanta Judicial

Circuit; and HINSON MCAULIFFE,

Solicitor General, Criminal

Couri of Fulton County, Georgia,

Respondents

ANSWER

(Filed September 13, 1972)

Comes now LEWIS R. SLATON, District Attorney of the

Atlanta Judicial Circuit, and HINSON MCAULIFFE, Solicitor

General of the Criminal Court of Fulton County, Georgia,

Respondents named herein, and file their answer, without

waiving any other right available to them.

FIRST DEFENSE OF LAW

The complaint fails to state a claim upon which relief can

be granted.

SECOND DEFENSE OF LAW

Since the Petitioners are seeking merely to enforce an

alleged “private right” this court should decline, under

comity, to intervene in an action already commenced in a

state court of competent jurisdiction in which any claimed

right of the Petitioner can be fully considered and protected;

et tna MEO RAS OLENA Be AEN i NOE hem

5 ARTES LOM AR AURIS AO ARETE ORC tone 6

LIE SIE AN SMO AI Tal Ct ARMIES

Meee AP conta

THIRD DEFENSE OF LAW

Since the Petitioners have made a constitutional attack on

a new state statute, which statute has not yet been considered

by the state courts, this court should abstain from considering

the case until the state courts have had an opportunity to

consider the same.

FOURTH DEFENSE OF LAW

This court is without jurisdiction to consider the

complaint for the following reasons to wit:

a) The action does not involve any deprivation, under

color of any state law, statute, ordinance, regulation,

custom, or usage of any right, privilege or immunity

secured by the United States Constitution and the laws

within the meaning of 28 U.S.C. Sec. 1343(3), or 42

U.S.C. Sec. 1983.

b) This action does not involve any deprivation of civil

rights under which petitioners would be entitled to

recover damages, or to secure equitable or other relief

under any act of congress or the United States

Constititution, within the meaning of 28 U.S.C. Sec.

1343(4).

FIRST DEFENSE OF FACT

A. Answering Part I, Jurisdiction of the Petition, to wit:

The first three paragraphs (1, 2, 3) require no answer.

While paragraph four requires no specific answer, in Gable vy.

Jenkins, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595

(1970) the Supreme Court summarily affirmed an unreported

decision of a three-judge U.S. District Court of the Northern

District of Georgia ( F. Supp. (No. 13001, Oct.

1969) ) recognizing Georgia’s authority to formulate

procedures whereby adversary proceedings for the seizure of

obscene materials might be had, even where no statutory

procedure therefore existed. See also, Johnny Rebs et al v.

Slaton, 401 U.S. 985, 91 S. Ct. 1220 (1971) affirming 309 F.

Supp. 998 (1970). Furthermore, the procedure attempting to

be utilized by the Respondents will accomplish the purpose of

affording the Petitioner’s any adversary hearing to which they

may be entitled. See also, U.S. v. Reidel, 91 S. Ct. 1410,

1412 (1971).

The first two subparagraphs of paragraph 5 are denied.

Subparagraphs 3, 4 and 5 of said paragraph require no answer.

For want of knowledge sufficient to form a belief

Respondents can neither admit nor deny the last subparagraph

of said paragraph; and Respondents demand strict proof

thereof.

B. Answering Part II, Parties:

Respondent is without sufficient information to form a

belief as to whether or not Alvis G. Speight operates the

Harem Book Store, particularly, as alleged in the first

subparagraph of paragraph 6, since the application for

business license for said business filed with the city of Atlanta

listed James L. Chandler as the owner of said business.

Further answering said subparagraph Respondents deny that

either Petitioner Speight or Petitioner Chandler are engaged in

the sale or offering for sale of books, magazines, newspapers,

movie films, pictures or other press materials protected by the

First Amendment to the United States Constitution, but

rather that both Speight (if he is the operator of said

EEA EE RIS ERR ee rte PRI Ms APRIL A Te RE ASL OS TTB

TiS: qauunsnirre EUnet: somarennunnsaty

business) and Chandler are engaged in the sale, offering for

sale and exhibition for sale of hard core pornography; and

that any items sold, offered for sale, or exhibited for sale not

constituting hard core pornography are sold, offered for sale,

or exhibited for sale cc-mingled with the

heretofore-mentioned items of hard core pornography, with

no distinction made by petitioners between the two

classifications, if indeed there be items other than hard core

pornography involved; and that since said items constitute

hard core pornography they are outside of the protection

offered by the First Amendment to the United States

Constitution.

Further answering said paragraph 6, Respondents deny

the second subparagraph thereof; and are without information

sufficient to form a belief as to whether or not such sales or

offerings are made by Petitioners to persons under the age of

eighteen years, are pandered, or whether or not such materials

are offered for sale in a way impermissibly intruding upon

and into the privacy of unwilling adults wishing to avoid

confrontation therewith as alleged in the second subparagraph

of paragraph 6. Further answering said subparagraph,

Respondents aver that said bookstore is located in a

commercial section of the city of Atlanta between private

residences and Therrell High School, a public school in the

city of Atlanta having minor students; and that said minor

students cannot help but be subjected to the display of said

materiaJs to and from their homes and school.

Further answering said paragraph, and the last

subparagraph thereof, Respondent is without information

sufficient to form a belief as to the allegations contained in

said sub-paragraph.

Answering Paragraph 7, Respondents are without

information sufficient to form a belief as to the allegations

gets ae “ oe RY i

peg ae aes SIGE NI MO pee eee

since the application for a business license for Harm Book

Store filed with the city of Atlanta lists James L. Chandler as

the owner of said business.

Paragraphs 8 and 9 are admitted. Paragraph 10 requires

no answer.

C. Answering Part III, Factual Allegations,

Paragraphs 11, 12, 16, 17, 18, 19 are denied as alleged.

Paragraph 15 is admitted. For lack of knowledge sufficient to

form a belief Respondents can neither admit nor deny the

allegations of paragraph 13. That portion of paragraph 14

comprising the first sentence and the first clause of the

second sentence ending with the words “constitutional sense”

are ‘aa>itted. The balance of said paragraph requires no

ansver although Respondents deny that such materials are not

obscene, but rather Respondents aver that such materials are

obscene.

Further answering said paragraphs Respondents admit

instituting a suit against certain of the Petitioners, as set out

in paragraph 16, that the same was done in good faith; and

that the material quoted in said paragraph is substantially

correct.

Further answering paragraph 17, Respondents admit that

Hon. Claude D. Shaw signed the order in question, but deny

that said order is repugnant to the United States Constitution.

FEL IORI SEM LEENA IE YN Se

™~

Ee eee PRE TA A

D. Answering Part IV, Bases in Law for Relief:

Paragraphs 22, 23, 24, 25, 26, 27 and all of their

subparagraphs are denied.

E. Answering Part V, Relief Sought:

Paragraphs 28 and 29 are denied.

SECOND DEFENSE OF FACT

The allegations contained in Fulton County Complaint

No. B-77630, attached to the Petition as Exhibit “‘A”’ thereof,

are adopted as Respondent’s second defense of fact, and

incorporated by reference herein.

WHEREFORE having fully answered said complaint

Respondents pray:

1) That this answer be inquired into;

2) That this court dismiss the complaint;

3) That in the alternative this court

a) Exercise the doctrine of comity, and allow the

State Court proceeding to continue; or

b) Exercise the doctrine of abstension, and allow the

State Court proceeding to continue;

4) That this court grant to the Respondents such other

and further relief as is authorized in law and equity.

tant tid Nac SE Oa pA. ea Es

CaN RA KEIRA SAE TENT SON LET

JOEL M. FELDMAN

Assistant District Attorney

CARTER GOODE

Assistant District Attorney

TOM MORAN, JR.

Assistant Solicitor General

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, Joel M. Feldman, hereby certify that I have this day

served a copy of the foregoing Answer upon the following

attorneys at their post office addresses of record, Mr.

Freeman Hutton, Suite 2005, 1175 Peachtree, N.E., Atlanta,

Georgia 30309; Mr. R.E. Smith, Suite 507, 102 W.

Pennsylvania Avenue, Towson, Maryland, 21204; Mr. G.

Deitch, Suite 2005, 102 W. Pennsylvania Avenue, Towson,

Maryland, 21204; Mr. G. Deitch, Suite 2005, 1175 Peachtree,

N.E., Atlanta, Georgia 30309.

This 11 day of September 1972.

JOEL M. FELDMAN

Of Counsel for Respondents.

OO LEELA, VERE ACEI NNE SSW r NSCS Ty , “ NE WP

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ALVIN G. SPEIGHT t/a

HAREM BOOK STORE, and

JAMES L. CHANDLER,

Petitioners

vs. CIVIL ACTION NO. 17075

LEWIS R. SLATON, District

Attorney of the Atlanta

Judicial Circuit, and

HINSON MCAULIFFE, Solicitor

General of the Criminal Court

of Fulton County, Georgia,

Respondents.

PROPOSED STIPULATIONS OF FACT

AND CONCLUSIONS OF LAW

Comes now LEWIS R. SLATON and HINSON

MCAULIFFE, Respondents named herein and, in accordance

with this Court’s instructions, submit their proposed

stipulations of fact and conclusions of law; and, which

proposed stipulations of fact and conclusions of law are being

: simultaneously submitted to counsel for the Petitioners.

Respondents, however, do not believe that counsel for the 5

Petitioners and counsel for the Respondents will be able to

reach any agreement as to any such stipulations of fact and

conclusions of law, and Respondents, therefore respectfully

request that this Court enter an order directing the Petitioners

' to furnish to the Court at least by December 21, 1972, four

copies of each of the publications named in the original

petition filed by the Respondents in the Superior Court of

Fulton County, Georgia, in case number B-77630, paragraphs

9, 10, 11, and 12. Respondents make this request since the

only copies of said publications possessed by Respondents

were tendered to Fulton Superior Court Judge Claude Shaw

at the time the petition was filed by Respondents with said

Judge.

A. Proposed Findings of Facts

1. At all material times a business known as the Harem

Book Store was and is located and being carried on at the

premises known as 2979 Campbellton Road, S.W., Atlanta,

Fulton County, Georgia; this location is in a commercial

section of the City of Atlanta on a main thoroughfare

between private residences and Therrell High School, a public

school of the City of Atlanta, having students of ages between

13 and 18 years which students cannot help but be exposed

to advertising and display of hard-core pornographic materials

at said premises.

2. On July 9, 1971 plaintiff James L. Chandler made an

application to the business license division of the City of

Atlanta for a business known as the Harem Book Store,

located at 2979 Campbellton Road, S.W., Atlanta, Georgia.

3. On said application made under oath said Chandler

claimed himself as the sole owner of said business.

4. As of August 21, 1972, there had been no change in

the information contained in the said application, that is, that

no application has ever been filed with the City of Atlanta

business license division requesting that Alvis G. Speight be

shown as the owner of said business, rather than James L.

Chandler, nor had said Speight applied for a license for a

business to be operated on the same premises.

5. Said business is exclusively engaged in the retail sale of

books, magazines and motion picture films dealing with

matters of a sexual nature, and of mechanical devices relating

to the act of sexual intercourse (which mechanical devices

incluce; but are not limited to, artificial vaginas and artificial

penisvs).

6. Said business has a large turnover of retail sales clerks.

EP ANSARNRLE RAY RTS IES CDSE RIL ME TTT TART

7. (a) On July 28, 1971 at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

1. Sex in Marriage, The Photo Magazine of Marital S

Education, Volume One, Number Two, $6.00,

Academy Magazines Division of Academy Press,

publisher.

2. Primer of Sexual Education, Volume Three, $6.00,

Calga Publishers.

3. The Sexual Man, Collector’s First Edition, Vol. 1,

$6.00, SECS Press.

(b) On August 14, 1971, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

4. Cavewomen, A.P.E.C. Magazine No. 25, $3.50,

Publisher’s Export Company, Inc.

5. The Savages, A.P.E.C, Magazine No. 14, $3.50

Publisher’s Export Company, Inc.

6. Foreplay, A Sensuous New Erotic Probe into the

World of Sex, $6.00.

of Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazine to an adult member of the general

public, to wit:

7. AWARE, Volume One, Number Two, $6.00.

PKA LE ELE ARYTI Ta

(d) On May 31, 1972, at said premises an employee of

Defendant, The Harem Book Store, sold certain hereinafter

entitled described magazines to an adult member of the

general public, to wit:

8. More Than 7 Inches, No. 2, $6.00.

| 9. Gay Sex Guide, Volume 1, $6.00.

10. Affaire, No. 7, $7.50.

11. Love Theme, Vol. 1, No. 4, $4.50.

12. The Special, No. 5, $5.00, Pnd.

13. Affaire, No. 9, $6.00.

8. That the magazines numbered 1,2,3,5,6, and 7 contain

one or more photographs of the act of coitus.

9. That the magazines numbered 4, 6, and 1! contain one

or more photographs of either actual or simulated coitus, and

are intended to convey to the viewer of same the impression

that an act of coitus is being photographed.

10. That the magazines numbered 3, 5, and 9 contain one

or more photographs of the act of pederasty (penetration per

anus).

11. That the magazines numbered 8, 9, 10, 11 and i3

contain one or more photographs of either actual or simulated

pederasty; and are intended to convey to the viewer of the

same the impression that an act of pederasty is being

photographed. _

12. That the magazines numbered 1, 2, 3, 4, 5, 6, and 7

contain one or more photographs of a man performing

cunnilingus upon a woman; and that magazines numbered 1,

2, 3, 5, 6, and 11 contain one or more photographs of a

woman performing cunnilingus upon another woman.

MAI BPS MAN EET STAT ree

13. That the magazines numbered 1, 2, 3, 4, 6, 7, 11 and

12 contain one or more photographs of either actual or

simulated cunnilingus performed by a man, and are intended

to convey to the viewer of same the impression that an act of

cunnilingus is being photographed; and that the magazines 2,

3, 6 and 12 contain one or more photographs of either actual

or simulated cunnilingus perfomed by a woman upon another

woman, and are intended to convey to the viewer of same the

impression that an act of cunnilingus is being photographed.

14. That the magazines numbered 2, 3, and 9 contain one

or more photographs of a man performing fellatio upon

another man; and that the magazines numbered 1, 2, 3, 6 and

7 contain one or more photographs of a woman performing

fellatio upon a man.

15. That the magazines numbered 3, 5, 9, 10 and 13

contain one or more photographs of either actual or simulated

fellatio performed by a man upon another man, and are

intended to convey to the viewer of same the impression that

an act of fellatio is being photographed; and that the

magazines numbered 2, 3, 6 and 12 contain one or more

photographs of either actual or simulated fellatio performed

by a woman upon a man, and are intended to convey to the

viewer of same the impression that an act of fellatio is being

photographed.

16. That the magazines numbered 1, 2, 3, 4, 6, 7, 11, and

12 contain one or more photographs of a man fondling a

woman’s breast; and that the magazines numbered 3, 4, 6,

and 11 contain one or more photographs of a woman

fondling another woman’s breast.

i7. That the magazines numbered 1, 2, 3, 4, 5,6, 7, 11

and 12 contain one or more photographs of a man fondling a

woman’s genitals; and that the magazines numbered 2, 3, 4,

and 6 contain one or more photographs of a woman fondling

another woman’s genitals.

2A SA OOMREST! SSE PPR ae

5 appesamaege mete

18. That the magazines numbered 3, 8, 9, 10 and 13

contain one or more photographs of a man fondling another

man’s genitals; and that the magazines numbered 1, 2, 3, 5, 7,

11, and 12 contain one or more photographs of a woman

fondling a man’s genitals.

19. That the magazines numbered 6, 7, and 11 contain

one or more photographs of a woman fondling her own

breasts; that the magazines numbered 1, 2, 3, 6 and 7 contain

one or more photographs of a woman fondling her own

genitals; and that the magazines numbered 3, 8, 9 and 10

contain one or more photographs of a man fondling his own

genitals.

20. That the magazine numbered 2 contains one or more

photographs of a woman fondling another person’s anus.

21. That the magazines numbered 1, 2, and 3 contain one

or more photographs of an artificial penis being used upon a

woman.

22. That the magazines numbered 1, 2, 3, 6, 7, 8 and 9

contain one or more photographs of a penis in the act of

ejaculation.

23. That the magazine numbered 9 contains one or more

photographs of a man urinating upon another man.

24. That the magazines numbered 1, 2, 3, 5, 6, 7, 8, 9,

11, and 13 contain at least some text, while magazines

numbered 4, 10 and 12 contain no text.

25. That the magazines numbered 1, 2, 3, 4, 5, 6, 7, 8, 9,

10, 11, 12 and 13 are obscene, hard-core pornography as a

matter of fact.

26. That the Petitioner knew what was contained in each

of the aforesaid magazines, as well as what was contained in

each magazine, book and motion picture film offered for and

displayed for sale at said premises, and sold by Petitioners,

their agents and employees at said premises.

27. Said premises and business have been used, are now

being used, and, unless prevented by judicial action, will

continue to be used for the advertising, storage, sale and

exhibition for sale of materials obscene within the meaning of

Section 26-2101 of the Criminal Code of Georgia. Said

activities are being conducted by the aforesaid Chandler, and

by various agents, servants and employees of the aforesaid

Chandler whose names and addresses are not alleged because

of the rapid rate of change or turnover in such personnel.

28. In addition to the magazines specifically described

above, the materials advertised for sale, exhibited for sale and

sold at said premises consist of books, magazines, and motion

picture films, each and all of which contain photographs, still

or moving, of one or more of the following:

a) acts of sexual intercourse, real and simulated;

b) acts of anal intercourse, real and simulated;

c) acts of cunnilingus, real and simulated;

d) acts of fellatio, real and simulated;

e) acts of other sexual activitity, including but not

limited to photographs of persons fondling female

breasts, and persons fondling the genitals of

themselves and of others, both men and women.

29. The signs on the exterior of the building on said

premises housing the Harem Book Store, which is located on

a main thoroughfare in the City of Atlanta, are designed and

calculated to convey to adult male viewers the message that

the material for sale within is of a salacious and prurient

nature.

30. Within said building in said place of business there are

stored, sold and exhibited for sale imitations of large erect

penises and other phallic objects, in immediate juxtaposition

to books, magazines and motion picture films of the nature

set forth in this complaint. A suggestively garbed female

dummy with vagina exposed also occupies a prominent

position in said building.

31. That the business of the Harem Book Store is the

commercial exploitation of erotica solely for the sake of their

prurient appeal.

32. That the books, magazines, and motion picture films

as being advertised, stored, sold and exhibited for sale are

commingled and not segregated by categories having regard

for such as is within and such as is without the protection of

the First Amendment of the Constitution of the United States

and Art. 1, Sec. 1, Par. 15 of the Georgia Constitution (Code

Ann., Sec. 2-115). Said books, magazines and motion picture

films and said imitation penises and phallic objects constitute

one stock of merchandise all of which is pandered as being in

the nature of hard-core pornography and the major portion or

a substantial portion of such stock of merchandise is such

hard-core pornogrpahy, and plaintiffs say that the entire stock

of merchandise is accordingly subject to condemnation and

forfeiture.

33. That the photograph attached to the Petition filed by

Respondents in Case No. B-77630, therein as Plaintiff's

Exhibit “A”, truly and accurately represent the exterior signs,

interior displays of the aforesaid materials, imitation penises

and the female dummy referred above.

MOL EAERE OER RE RETEST ORAM REE ET RT eae Tt RE TC as

34. That the New Amendment to the Georgia obscenity

law (Ga. Code Chapter 26-21), adopted by the General

Assembly of Georgia in 1971 as Georgia Code Section

26-2103 et seq. (Georgia Laws 1971, p. 344, which sections

provide that any premises used in violation of any provision

of the said chapter constitutes a public nuisance, has not yet

been considered by any Georgia Court of Original

Jurisdiction, nor has the same been construed or interpreted

by any Georgia Court of Appellate Jurisdiction.

B. Proposed Conclusions of Law

1. The Georgia obscenity laws (Code Sections 26-2101 et

seq.), at least as they related to this case, are

constitutional. Gable v. Jenkins, 397 U.S. 592, 90 S. Ct.

1351, 25 L. Ed. 2d 595 (1970), affirming 309 F. Supp.

998 (N.D. Ga., Oct., 1969; Gornto v. Georgia, 227 Ga. 46

(1970), Cert. Den. 402 U.S. 933 (1971), see also 336 F.

Supp. 1372 (1972).

2. The state is not limited in controlling obscene materials

to criminal prosecutions. Kingsley Books, Inc. v. Brown,

354 U.S. 436 (1956).

3. In addition to criminal prosecutions the State may also

utilize injunctive procedures to control obscenity.

Kingsley Books, Inc. v. Brown Id @ 441; Freedman vy.

Maryland, 380 U.S. 51, 60 (1960); Grove Press, Inc. v.

City of Philadelphia, 418 F.2d 82 (3rd Cir., 1962).

4. Obsenity is not protected by the First Amendment to

the United States Constitution. Roth v. United States,

354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (19).

5. Although a person is entitled to be free from

governmental interference within the confines of his home

as to his choice of reading material, including obscene

materials (Stanley v. Georgia, 394 U.S. 577, 89 S.Ct.

' —— QC ANGATL ELE LLERLLOE

Bcc co nee HEIRESS INDIE LLL CE OD I an PR oe ae

1243, 22 L.Ed.2d 542 (1968)) this privilege grants no

right to such a person to receive obscene materials, or for

others to furnish such a willing adult with such materials

United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct.

1410, 28 L.Ed.2d 813 (1971); United States vy.

Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400,

L.Ed.2d (1971).

6. There is no _ recognized constitutional right to

commercially destribute obscenity to anyone. United

States v. Reidel, supra; United States v. Thirty-Seven

Photographs, supra; Milky Way Productions, Inc. v. Leary,

305 F. Supp. 288, Affd. 397 U.S. 98, 90 S.Ct. 817,

L.Ed.2d _. (1970); G.I. Distributors, Inc. v. New

York, 20 N.Y.2d 104, 281 NYS 2d 795, cert. den. 389

U.S. 905, 88 S.Ct. 218, _. L.Ed. 2d ____ (1967).

7. Where the issue of whether or not a particular item is

obscene (as opposed to hard-core pornography) the State

is entitled to treat and consider the material as obscene if

the distributor thereof treated and considered the materia!

as such for any purpose. Ginzburg v. United States, 383

U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).

8. The thirteen (13) magazines described in “A” above

are obscene as a matter of law, the same being hard-core

pornography as that term is defined in Ginzburg v. United

States, Id. at 463, FN 3.; United States v. Wild, 422 F.2d

34, (2nd Cir., 1969) cert. den. US. (9 Cr.

L. 4046, 1971).

9. The civil rights act (28 U.S.C. Section 1343 (3)(4)

under which Petitioners bring their action recognize a

distinction between mere “private” rights as opposed to

“transcendent public” fights; that injunctive and

declaratory relief is generally unavailable to enforce a

mere “private” right; and that the “rights” Petitioners

seek to enforce fall into the category of “private” rights.

PABOD ALIA RUPP OLN MEER NS ASA EL,

eceems

Johnny Reb’s Book and Card Shop, et al. v. Slaton, 309

F. Supp. 998 (1970), aff'd. 401 U.S. 985, 91 S.Ct. 1220,

L.Ed.2d __. (1971); Machesky v. Bizzell, 414

F.2d 283 (Sth Cir., 1969); Gable v. Jenkins, supra.

10. The Georgia procedure authorizing injunctions against

public nuisances (Ga. Code Chapter 72-2 et. esq., Section

72-201, 72-202) is not unconstitutional. Kingsley Books,

Inc. v. Brown, supra. See also Section 65, Georgia Civil

Practice Act (Ga. Laws 1966, pp. 609, as amended);

Evans Theatre Corporation v. Slaton, 227 Ga. 377, 382

(3) (1971), cert. den. Nov. 9, 1971, _._. U.S. ____

(40 L.W. 3210).

11. It is appropriate for a three-judge federal court to

abstain from considering a new state statute when that

state’s courts have not yet had an opportunity to consider

and construe the statute. Johnny Reb’s Book and Card

Shop, et al v, Slaton, supra; Mitcham v. Foster,

U.S. (40 L.W. 4737, 6/19/72); Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, ____. L.Ed.2d (1971);

Samuels v. Mackeil, U.S. , 91 S.Ct. 769,

L.Ed.2d (1971); Byrne et al v. Karalexis,

ene ik wa ee FF Re L.Ed.2d

(1971); Perez v. Ledesma, U.S. , 21 S.Ct. 674,

a (1971).

Respectfully submitted,

/s/ LEWIS R. SLATON

District Attorney, A.J.C.

/s/ HINSON MCAULIFFE

Solicitor General, A.J.C.

/s/ JOEL M. FELDMAN

Assistant District Attorney

/s/ CARTER GOODE

Assistant District Attorney

Counsel for Respondents

ra TENE RPL BE LIES OUTRO RIO

CERTIFICATE OF SERVICE

I, Joel M. Feldman, hereby certify that I am of counsel

for Respondents in the above styled case and that I have this

day served a copy of the foregoing upon Mr. D. Freeman

Hutton, Mr. Gilbert H. Deitch, and Mr. Robert Eugene Smith

by U.S. Mail at their respective post office addresses of

record, Suite 2005, 1175 Peachtree Street, N.E., Atlanta,

Georgia 30309.

This 27 day of November, 1972.

/s/ JOEL M. FELDMAN

Assistant District Attorney.

ME WEPE CAAA LENE ERO Oe EE ELNINO

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ALVIS G. SPEIGHT t/a

HAREM BOOK STORE, and

JAMES L. CHANDLER,

Petitioners,

versus CIVIL ACTION NO. 17075

LEWIS R. SLATON, DISTRICT d

ATTORNEY OF THE ATLANTA

JUDICIAL CIRCUIT, and

HINSON McAULIFFE, SOLICITOR

GENERAL OF THE CRIMINAL COURT

OF FULTON COUNTY, GEORGIA,

Respondents.

PROPOSED STIPULATIONS OF FACT

AND CONCLUSIONS OF LAW

Come now Petitioners, by and through their attorneys at

law, and, in accordance with this Court’s instructions, submit

their proposed stipulations of fact and conclusions of law to

the Court and to Respondents.

A. PROPOSED FINDINGS OF FACT

1. At all times material hereunto Petitioner Speight or

Petitioner Chandler, trading as the Harem Book Store, located

at 2979 Campbellton Road, S.W., Atlanta, Georgia, have been

engaged, through agents, servants, and employees, in the sale

and offering for sale of books, magazines, newspapers, movie

films, pictures, and other press materials which are

presumptively protected under the First Amendment to the

Constitution of the United States, pursuant to applicable City

of Atlanta business licenses.

2. The press materials offered for sale by the Harem Book

Store are comparable to those declared not to be obscene by

EF Pes a oes RT OY ANS, PEST OS, Bg he

the Supreme Court of the United States, and many other

inferior Federal Courts, as well as various state appellate

courts and, hence, are protected expression under the First

Amendment to the Constitution of the United States, as made

applicable to the States under the Fourteenth Amendment.

3. No sales or offerings are made by the Harem Book

Store to persons under eighteen years of age (minors) of any

of the sexually-oriented press materials distributed or offered

for distribution by the Harem Book Store, nor are they

- ” in the Ginzburg-sense (Ginzburg v. U.S.A., 383

U.S. 463 [1966]), nor are the press materials sold or offered

for sale in a way that intrudes impermissibly into the privacy

of an unwilling adu't who wishes to avoid confrontation

therewith.

4. Prior to July 1, 1972, when the legal age of majority

in the State of Georgia was lowered to eighteen (18) years of

age from twenty-one (21) years of age, the agents, servants

and employees of the Harem Book Store made no sales or

offerings to persons under the age of twenty-one (21).

5. The use of the premises at 1979 Campbellton Road,

S.W., Atlanta, Georgia, as a bookstore is consistent with the

approved usages for property zoned, as it is, in the “C-2”

classification.

6. At all times material hereunto, the Harem Book Store

has been conducted without any overt breaches of the peace

or other interference with the rights of others passing by said

premises. ‘

7. On four occasions since the Harem Book Store opened

more than one year ago, agents of the Defendant McAuliffe

have purchased a total of thirteen (13) magazines which

Defendants contend are obscene. None of said magazines has

ever been declared to be obscene in the constitutional sense.

LATS: SEES ee RIEL, HOEY ST > ae VR

8. No person, employee or otherwise, has ever been

convicted of the commission of a statutory offense at the

premises occupied by the Harem Book Store, including the

offense of distributing so-called obscene materials in violation

of Georgia Code § 26-2101.

9. Defendants have instituted a civil suit in the Superior

Court of Fulton County, Georgia, in bad faith, for the

purpose of harassing Plaintiffs, as their interests may appear,

and effecting irreparable harm, demanding, inter alia,

(a) “.... injunctions, both temporary § and

permanent, against the conduct and operation of the

Harem Book Store, in and on the premises at No.

2979 Campbeliton Road, S.W., in the City of Atlanta,

Fulton County, Georgia, by any person;”’ and,

(b) “... an order declaring all merchandise on said

premises, as well as all records, supplies, equipment

and fixtures used in connection with advertising, sale

and exhibition for sale of said merchandise to be

contraband, and to be forfeited and destroyed;” and

defendants named herein (plaintiffs in this action) to

show cause why the prayers of this complaint should

not be granted.”

10. Defendants knew or should have known that no

violation of Georgia statutes, to-wit: Georgia Code § 26-2101,

has been alleged and proved in any court of law against

Plaintiffs herein, or any of their agents, servants, and

employees, relating to the Harem Book Store located at 2979

Campbellton Road, S.W., Atlanta, Fulton County, Georgia,

prior to the institution of the Complaint.

11. The resort to utilization of the concept or public

nuisance authorized by Georgia Statutes by the Defendants in

order to shut down the Harem Book Store and forbid press

materials to be sold there as well as seeking the forfeiture and

destruction of all the press materials contemporaneously being

offered for sale at said store is without regard to whether or

not each and every single publication can be said to be

obscene in the constitutional sense, and indeed, the said

Complaint, as sanctified by verification, states, in part, as

follows:

“Said books, magazines and motion picture films and

said imitation penises and phallic objects constitute

one stock of merchandise all of which is pandered as

being in the nature of hard-core pornography and the

major portion or a substantial portion of such stock

of merchandise is such hard-core pornography, and

plaintiffs say that the entire stock of merchandise is

accordingly subject to condemnational and

forfeiture.” (Exhibit “A”, p. 3.)

Further, Defendants also, by their proceedings in enforcement

of said Georgia Statutes, attempt to circumvent the safeguards

of the criminal process with its requirement of proof beyond

a reasonable doubt before a jury and substitute therefore a

lesser, civil, burden of proof, to-wit: the preponderance of the

evidence standard, and a judge.

12. Said attempt is a bad faith effort to force the

cessation of sales of all materials in the said store without

regard to whether constitutionally protected.

B. PROPOSED CONCLUSIONS OF LAW

1. The fundamental freedoms of speech and press have

contributed greatly to the development and well-being of our

free society and are indispensable to its continued growth.

Ceaseless vigilance is the watchword to prevent their erosion

by Congress or by the States. The door barring federal and

state intrusion into this area cannot be left ajar; it must be

kept tightly closed and opened only the slightest crack

necessary to prevent encroachment upon more important

ae SRS LE BRET iE OEE LLIN EL

i that the standards for judging

ection of freedom of speech and

interests. It is therefore vital, i

oes not treat sex in a manner

obscenity safeguard the prote: Roth v. U.S., 354 U.S. 476, 488

press for material which dc

appealing to prurient interest.

1957).

( , yveech unconditionally guaranterd

2. The line between spdmately be regulated, suppressed,

and speech which may legiti/he separation of legitimate from

or punished is finely drawn. Pensitive tolls. Speiser v. Randall,

illegitimate speech calls for se2 L.Ed.2d 1460; Blount y. Rizzi,

357 U.S. 513, 78 S.Ct. 132, 27 L.Ed.2d 498 (1971).

400 U.S. 410, 91 S.Ct. 423, 2

1 Amendment a state is not free

3. Under the Fourteenthire it pleases for dealing with

to adopt whatever procedw the possible consequences for

obscenity without regard toech. Marcus v. Search Warrant of

constitutionally protected spe] §.Ct. 1708, 6 L.Ed.2d 1127

Property, 367 U.S. 717, 8!

(1961).

_° restraint of expression bears a

4. Any system of Por s constitutional validity. Bantam

heavy presumption against itsg g3 § Ct. 631, 9 L.Ed.2d 584;

Books v. Sullivan, 372 US. 3 697, 51 S.Ct. 625, 75 L.Ed.

Near v. Minnesota, 283 US, United States, 403 US. 713,

1357; New York Times Co. 822 (1971); Organization for a

91 S.Ct. 2140, 29 L.Bd.2d ,

Better Austin v. Keefe, 407 ¥-5- 415, 91 S.Ct. 1575, 29

L.Ed.2d 1 (1971).

5. The provisions of Georgia Code § 26-2101 (Ga.2.

1968, pp. 1249, 1302, Ga. L- 1971, p. 344) are repugnant to

the First and Fourteenth Amendments to the Constitution of

the United States because théY are overbroad in that they do

not limit prosecutions to m terials which are sold without

notice to the public of their nature or without reasonable

protection against exposure of the materials to juveniles. Cf.

Paris Adult Theater v. Slaton, No. 71-1051 and Alexander vy,

Virginia, No. 71-1315, arguments heard in the United States

Supreme Court, October 19, 1972.

6. The provisions of Ga. Code § 26-2101 G) (Ga. L.

1968, pp. 1249, 1302) are repugnant to the First, Fifth and

Fourteenth Amendments to the Constitution of the United

States because they contain an irrational and arbitrary

presumption of the type condemned by the United States

Supreme Court in Leary v. U.S., 395 U.S. 6 (1969) becuase it

cannot logically be said that the presumed fact, obscenity, is

“more likely than not” to flow from the proven fact,

commercial exploitation of erotica solely for the sake of its

prurient appeal; furthermore, said statutory presumption is

further invalid because it denies due process of law and equal

protection of the law in that it permits a conviction upon a

standard less than that of beyond a reasonable doubt which is

guaranteed to a criminal defendant by the Due Process

Clauses of the Fifth and Fourteenth Amendments and by Ga.

Code § 26-501 (Ga.L. 1968, pp. 1249, 1266). Leary vy.

United States, 395 U.S. 6 (1969); Tot v. United States, 319

U.S. 463 (1943); United States v. Gainey, 380 U.S. 63

(1965); United States v. Romano, 382 U.S. 136 (1965); Note,

‘“‘The Unconstitutionality of Statutory Criminal

Presumptions,” 22 Stanford L. Rev. 341 (1970).

7. Georgia Code § 26-2103 (Ga.L. 1971, pp. 344, 345;

Section 2 of Act 304, 1971) and Title 72 of the Georgia

Code of 1933, as amended, are repugnant to the First, Fifth

and Fourteenth Amendments to the Constitution of the

United States because said statutes and their application to

Plaintiffs constitute a classical ‘prior restraint’ on materials

which are presumptively protected under the First

Amendment to the Constitution of the United States. Near v.

Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357

(1931); New York Times Co. v. United States, 403 U.S. 713

(1971); Organization for a Better Austin v. Keefe, 402 U.S.

415 (1971); Bantam Books y. Sullivan, 372 U.S. 58 (1963);

Freedman v. Maryland, 380 U.S. 51, 57 (1965). Cf. Healy vy.

James, 408 U.S. 169, 184 (1972) and Carroll v. President and

Commisioners of Princess Anne, 393 U.S. 175 (1968); New

Riviera Art Theatre v. State, 412 S.W.2d 890 (Tenn. 1967);

PF RRA LR CLES RRS IN ER EI SEIN OE EEE

Mitchum y. Florida, ex rel Schaub, 250 S O.2d 883 (Fila.

1971); State of Indiana, ex rel Biee v. Mohney Enterprises, et

al., No. 272 A 92, Indiana Court of Appeals, First District,

November 29, 1972.

8. Georgia Code § 26-2103 (Ga.L.1971, pp. 344345,

Section 2 of Act 304, 1971) denies due process and equal

protection of the laws to Plaintiffs in that said stetute makes

a public nuisance of a business, rendering it subject to closure

under the guise of abating a nuisance, on the basis of a single,

isolated transaction as to only one of possibly thousands of

presumptively protected publications and materials without

any showing of traditional elements necessary to constitute a

continuing public nuisance, in violation of the First, Fifth and

Fourteenth Amendments to the Constitution of the United

States. Near v. Minnesota, 283 U.S. 697 (1931);

Organization for a Better Austin v. Keefe, 402 U.S. 415

(1971); New Riviera Art Theatre v. State, 412 S.W.2d 890

(Tenn. 1967); State of Indiana ex rel. Blee v. Mohney

Enterprises, et al., supra; Freedman v. Maryland, Supra.

9. Georgia Code § 26-2103 (Ga. L. 1971, pp. 344, 345,

Section 2 of Act 304, 1971) violates the Fifth and

Fourteenth Amendments to the Constitution of the United

States because it creates a presumption, which is conclusive,

that a place of business is a public nuisance on the basis of a

single, isolated transaction; said presumption is invalid under

the rational connection test for judging said presumptions.

Leary v. United States, 395 U.S. 6 (1969); Tot v. United

States, 319 U.S. 463 (1943); United States v. Romano, 382

U.S. 136 (1965).

10. Said statutory presumption denies equal protection

because it arbitrarily labels a busniess a public nuisance

without the necessity for the State to prove the elements of a

public nuisance as are set out in Georgia Code § 72-102 and

the prerequisites for the abatement of same which are set

forth in Georgia Codes, § 72-201, thereby treating this

BSS ene y Ste I ee

“public nuisance” differently from others. Fourteenth

Amendment, Constitution of the United States.

11. Georgia’s Nuisance Statute, Title 72 of the Georgia

Code of 1933, as amended, as written and or as applied to

Plaintiffs, is repugnant to the Constitution of the United

States, in that it is impermissibly vague, and it is overbroad

because susceptible of sweeping and improper application to

restrain the dissemination of materials entitled to the

protection of the First and Fourteenth Amendments, all

without furthering any overriding state purpose. McLaughlin

v. Florida, 378 U.S. 184 (1964); Near v. Minnesota, 283 U.S.

647 (1931); Gooding yv. Wilson, 405 U.S. 518 (1972);

Papachristou v. Jacksonville, 405 U.S. 156 (1972).

12. Georgia’s Nuisance Statute, Title 72 of the Georgia

Code of 1933, as amended, as written and or as applied to

Plaintiffs, is repugnant to the First and Fourteenth

Amendments to the Constitution of the United States in that

its provisions lack adequate safeguards against undue

inhibition of materials which are entitled to the protection of

said Amendments. Kingsley Books, Inc. v. Brown, 354 U.S.

436 (1957). Freedman y. Maryland, 380 U.S. 51 (1965);

Blount v. Rizzi, 400 U.S. 410 (1971).

13. Georgia Code § 26-2103 (Ga. L. 1971, Section 2, pp.

344, 345) to the extent that it effectuates the suppression of

presumtmptively protected materials by closure of a

bookstore is, as written and or as applied to Plaintiffs,

repugnant to the First and Fourteenth Amendments to the

Constitution of the United States because it lacks adequate

safeguards against the undue inhibition of materials which are

entitled to the protection of said Amendments. Kingsley

Books, Inc. v. Brown, 354 U.S. 436 (1957); Freedman y.

Maryland, 380 U.S. 51 (1965); Blount v. Rizzi, 400 U.S. 410

(1971).

14. Georgia Code § 26-2104 (Ga. L. 1971, Section 3, pp.

344, 345) is overbroad and repugnant to the First and

Fourteenth Amendments to the Constitution of the United

States in that it makes contraband all obscene materials and

advertisements thereof without regard to whether they are

intended for private, as opposed to commercial distribution,

and without regard to whether they are distributed in a

manner that provides adequate notice as to their nature and

reasonable precautions against their exposure to juveniles U_S.

v. Orito, 338 F. Supp.. 308 (1970), appeal pending, United

States Supreme Court, No. 70-69, reargued November 7,

1972; Paris Adult Theatre v. Slaton, No. 71-1051, United

States Supreme Court, and Alexander yv. Virginia, No.

71-1315, United States Supreme Court, arguments heard

October 19, 1972. See also United States v. Lethe, 312 F.

Supp. 421 (E.D. Calif. 1970).

Respectfully submitted,

/s/ D. Freeman Hutton, Esq.

/s/ Gilbert H. Deitch, Esq.

Robert Eugene Smith, Esq.

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that I have this day served counsel

for the opposing party in the foregoing matter with a copy of

this pleading by depositing in the United States Mail a copy

of same in a properly addressed envelope with adequate

postage thereon.

This 7th day of December, 1972.

/s/ D. Freeman Hutton, Esq.

OPINION AND ORDER

Printed in JURISDICTIONAL STATEMENT

A-1 through A-17 inclusive

(Filed May 19, 1973)

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.