# Opposition — Watts v. Bayou Landing, Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0897%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 818 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0897%3A2. Public record. Not legal advice.