Opposition — Watts v. Bayou Landing, Ltd.

IN THE ‘ JUN 23 1978

SUPREME COURT OF THE UNITED STARE ic; RODAK, JR., CLERK

OCTOBER 1977 TERM

No. 77-1383

EDGAR WATTS, et al.,

Petitioners

Vv.

BAYOU LANDING, LTD., d/b/a

the Florida Book Mart

Respondents

EDGAR WATTS, JR., et al.,

Petitioners

v.

OUZA, INC., d/b/a the Palace

Book Mart, Excalibur Books,

Inc., d/b/a The Palace Book

Store

Respondents

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT EUGENE SMITH

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

Counsel for Respondents

Of Counsel:

Glen Zell, Esq.

Atlanta, Georgia

-

ii

TABLE OF CASES

Bantam Books, Inc. v. Sullivan,

Ste Uebe SS CASES cocccecs seesoseece

Bayou v. City of Kenner,

335 3-501 tt indeéuae TTT TTTTT TT

Blount v. Rizzi,

Se Gee Ge CED cdncecccccakcossese

Ergoznik v. City of Jacksonville,

422 U.S. Dinars se eneee

Freedman v. Maryland

380 U.S. 51 (1965).....--2e-ees eccccces

Heller v. People of the State of New York,

aD Wie Ge Ge scbhececeee es rrrTrTr

Mayor and Aldermen of Savannah v. TWA,

233 Ga. 6905, 214 S.E.20 370 (1975)....

Miller v. California,

emcee = RE Ce

Near v. Minnesota,

283 U-S.697-738 (1931) eee eee eeeeeee

Pinkus v. U.S.A.,

Roaden v. Commonwealth of Kentucky,

406 U.S.905 (1969) eee eee e eee cceceee

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 558 (1975).... ain ee ade at

Stanley v. Georgia,

399 U-S. 557 (1969) «++ eee eeeceeeccces

Staub v. City of Baxley,

355 U.S. 313 (1958) ..ccccccccccccccccs

Tietel Film Corp. v. Cusak,

390 U-S. 139 (1968) ---e eee ee eee ccceees

a ee

INDEX TO BRIEF

Page

OPINION BELOW .ccccccccccccvcccccccccccccccccce

QUESTIONS RAISED .nccccccccccccccccccccccccce Lyd

ARGUMENT AND CITATIONS OF

AUTHORITY ne ef fr eeweeneneeneneeneeneeeeeen#e#eeeeeeeeeeeee 2

A. The Denial or Revocation of an

Occupational License by

Legislative Action which Fails

to Meet Censorship Standards is

Unconstitutional Under the First

and Fourteenth Amendments............2-7

B. The Burden is on the Government

to Show that the Restraint of

Material Presumably Protected by

the First Amendment Comports with

Substantive and Procedural

Ec o ccc cecesescecceceeoeesse 7-9

CONCLUSION .ccccccccccccccecce ecccccccccccescceeldd

CEREEPICATE OF SERVICE .ccccccccccccccccccccece ll

OPINION BELOW

The decision sought to be reviewed is

contained on page 11 of the Petition for Writ of

Certiorari under Appendix A.

QUESTIONS RAISED

(1) WHETHER THE GOVERNING AUTHORITY OF

A MUNICIPALITY MAY, BY LEGISLATIVE ACTION TAKEN IN

THE EXERCISE OF THE POLICE POWER, PROHIBIT THE CON-

DUCT OF A BUSINESS INVOLVED OR TO BE INVOLVED IN

THE SALE OF ADMITTEDLY OBSCENE MATERIAL, THROUGH

THE DENIAL OR REVOCATION OF AN OCCUPATIONAL LICENSE

AND/OR OCCUPANCY PERMIT WITHOUT MEETING ADMINISTRATIVE

CENSORSHIP STANDARDS AS ENUNCIATED IN FREEDMAN v.

MARYLAND, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 2d

649 (1965);

(2) WHETHER THE OWNER OF SUCH BUSINESS IN

AN EVIDENTIARY HEARING MAY AVOID DISMISSAL OF A

SECTION 1983 ACTION BY REFUSING TO PRESENT ANY EVI-

DENCE PERTAINING TO THE ISSUE OF OBSCENITY, WITH THE

2

2 3

RESULT THAT THE RECORD CONTAINS NO BASIS UPON WHICH | 406 u.s. 905 (1972) that sexual materials are pre-

THE COURT MAY CONCLUDE THAT PRIOR RESTRAINT HAS BEEN sumptively protected under the Constitution until

USED. such time as they are determined to be obscene, as

that term has been variously defined by this Court.

ARGUMENTS AND CITATIONS OF AUTHORITY

A. In Bayou v. City of Kenner, 335 So. 301

A MUNICIPALITY MAY NOT, BY LEGISLATIVE (1976) the Louisiana Supreme Court held that the

ACTION IN THE GUISE OF ITS POLICE POWER, City of Kenner was required to issue a business license

PROHIBIT THE CONDUCT OF A BUSINESS so long as the applicant complied with the ordinary

INVOLVED OR TO BE INVOLVED IN THE SALE licensing requirements which were not patently dis-

OF SEXUALLY ORIENTED MATERIAL. criminatory and not violative of the Equal Protection

Clause of the Constitution of the United States. In

i iti is in-

Question stated by the Petitioners another case, styled Mayor and Aldermen of Savannah

correct, and by this very question they invited into v. TWA, 233 Ga. 885, 214 S.E.24 370 (1975), the Georgia

argument the prior restraint issue. At no time did Supreme Court held the City could not refuse to issue

the Respondents herein admit that all of their mer- a business license because of suspicion that the appli-

chandise to be offered for sale and/or exhibition f one proposed to sell materials which some might call

was obscene as that term has been defined by this pornographic. The reasoning in both cases was that

Court in Miller v. California, 413 U.S. 15 (1973). “once the applicant had complied with all of the require-

ments necessary for obtaining a business license to sell

This Court has found in the cases of

sexually oriented materials, the refusal to grant the

Heller v. People of the State of New York, 413 U.S.

appropriate license implements Due Process and Prior

483 (1973) and Roaden v. Commonwealth of Kentucky,

oF Restraint argume its.

In the case at bar, the City of Baton

Rouge refused to issue one of the business licenses

not because the applicant did not otherwise comply,

but on the sole grounds of Resolution 5583 passed

by the City Council of Baton Rouge, further articu-

lated in the opinion of the Court of Appeals. The

only reason set forth in the resolution besides the

general and obvious dislike for this type of business,

was because of the "adults only" signs in the window

which offended the sensitivities of the City Council

members. The evidence of the sexual materials charac-

terized by the judge at the district court level as

“filthy,” “almost unbelievable," has to be beyond the

pale of the First Amendment protections, the implication

being that because the store may sell material today

which offends the sensitivities of a sensitive part of

the community recognized as being a component of the

contemporary community standards, Pinkus v. United States,

____—iU.S. Law Week _—_—s (May 23, 1978), all such press

material would be equally condemned. This factor does

not authorize the foreclosure of further business

activity by the proprietors of the so-called adult

book stores.

In essence, what we have is that the City

Council is attempting to suppress presumptively

protected expression because certain vocal and sensi-

tive residents of the community disapproved of the

content of the expression or were otherwise personally

offended by the material sought to be exhibited by

the proprietors of the store. Compare Ergoznik v.

City of Jacksonville, 422 U.S. 205 (1975). This flies

in the face of the rationale of this Court in Near v.

Minnesota, 283 U.S.697-738( 1931), which prohibits the-

disassembly of the printing press because of past mis-

conduct by the proprietors thereof. This is in essence

the classic Prior Restraint governed by the Near case

and for which Freedman v. Maryland, supra, established

administrative guidelines.

Although systems of prior restraint are not

unconstitutional per se, e.g. Southeastern Promotions,

Ltd., v. Conrad, 420 U.S. 546, 558 (1975), they are said

to bear a “heavy presumption” against their Constitu-

tional validity. Bantam Books, Inc. v. Sullivan, 372

U.S. 58 (1963). As the U.S. Supreme Court stated in the

Southeastern Promotions case:

355 U.S.

that

"The presumption against prior

restraints is heavier -- and the

degree of protection broader --

than that against limits on

expression imposed by criminal

penalties. Behind the distinction

is a theory deeply etched in our

law: a free society prefers to

punish the few who abuse rights of

speech after they break the law

than to throttle them and all

others beforehand. It is always

difficult to know in advance what

an individual will say, and the line

between legitimate and illegitimate

speech is often so finely drawn that

the risks of freewheeling censorship

are formidable."

420 U.S. at 558-59.

In the case of Staub v. City of Baxley,

313 (1958), the Court held that an ordinance

“makes the peaceful enjoyment of freedoms

which the Constitution guarantees con-

tingent upon the uncontrolled will of

an official -- as by requiring a permit

or license which may be granted or

withheld in the discretion of such

official -- is an unconstitutional cen-

sorship or prior restraint upon the

enjoyment of those freedoms."

ee ee

It is abundantly clear that by whatever

name Petitioners call their attempts to shutter these

two adult book store enterprises, be it the police

powers or personal taste of the City Council members

responding to the vocal protests of sensitive members

of the community, this is a [prohibited] prior restraint

and for the reasons set forth herein and in the well-

reasoned opinion of the Fifth Circuit, this Petition

for Certiorari should be dismissed.

B.

A PROPRIETOR OF A BUSINESS INVOLVED IN THE

SALE OF PRESUMPTIVELY PROTECTED SEXUALLY

ORIENTED PRESS MATERIALS IS NOT REQUIRED

TO ASSUME THE BURDEN TO PROVE THE NON-

OBSCENITY OF THE MATERIALS CHALLENGED BY

THE CITY COUNCIL AND THEIR COUNSEL.

In the case of Freedman v. Maryland, 380

U.S. 51 (1965), Blount v. Rizzi, 400 U.S. 410 (1971)

and Teitel Film Corp. v. Cusak, 390 U.S. 139 (1968),

it is clear that the burden to prove obscenity is on

argument of counsel for Petitioners in this instance

8 is not well taken. This counsel was present in the

Court at the time of the argument in the case of

the censor, not on the proprietor who seeks to offer

Stanley v. Georgia, 399 U.S. 557 (1969), and while

for sale such presumptively protected material. As

the Court was considering the constitutional issue of

the Circuit Court opinion makes clear on page 19 of

private possession of erotic materials in one's own

the Petition for Certiorari, par. 7:'

home and whether the same is fairly protected from

"The materials examined by the District intrusion by law enforcement officials, the Assistant

Court condemned as ‘filthy', etc., were

not even from the Bayou Landing Book Attorney General, Robert Sparks, in oral argument,

Store, but were purchased in Jefferson

Parish.” continually hammered on the point that the films involved,

| both by their titles and their presumed content, should

The Court went on to say that since there is a differ-

be examined by the Justices of the Supreme Court before

ence between pornography and obscenity, while the

ruling on the constitutional issue presented. After

material from one store might be obscene, the material

Mr. Sparks stated this proposition for the tenth time,

from the other might be protected:

Mr. Justice Harlan raised his head from the bench, looked

"Second, the burden of seeking at counsel, and commented something to the effect:

a judicial determination of the

protected or unprotected categori- “What you are saying, Sir, is that you want our consti-

zation of literature must be placed

on the government and the government tutional judgment dimmed by the viewing of these films".

must allow a free trade in material

presumed protected until it demon-

strates in Court that the materials

are obscene."

nee ~

A reading of the relevant documents in this

case as set forth in the opinion of the Court makes

it clear that even on Due Process sonsiderations the

1l

CERTIFICATE OF SERVICE

10

I, ROBERT EUGENE SMITH, Counsel for

Respondents, and a member of the Bar of the

United States, hereby certify that on the

CONCLUSION a

day of June, 1978, I served three copies of the

Brief of Respondents in Opposition to Petition

We hereby submit that what the Petitioners

for Writ of Certiorari on Joseph F. Keogh, Esq.,

are attempting to do is to raise the spectre that

f Petitioners, 326 Governmental Building,

the materials which they purchased from stores other Attorney SOF ,

than those of the Respondents herein are to be com- Baten Rouge, Louisiana 70621, by © “uly rs

parable to materials Respondents, as proprietors of envelope with postaga prepaid.

their respective book stores, proposed to sell, and

for this reason there should be a judgment that the

same are obscene and thus the proprietors are not ROBERT EUGENE SMITH

entitled to procedural First Amendment protections,

including protection against prior restraint, they are

wrong and the Petition should be dismissed.

Respectfully submitted, |

, Esquire

1409 Peachtree Street, N. E.

Atlanta, Georgia 30309

iene + --

Counsel for Respondents

Of Counsel:

GLENN ZELL, Esquire

66 Luckie Street, N. W.

Atlanta, Georgia 30303