Petition — Missouri v. All Star News Agency, Inc.

5 JR., CLERK |

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. .29-— 24]

STATE OF MISSOURI,

Petitioner,

Vs.

ALL STAR NEWS AGENCY, INC.,

Respondent.

PETITION FOR A. WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

JOHN ASHCROFT

Attorney General

PAUL RCBERT OTTO

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

STEVEN D. STEINHILBER

Assistant Attorney General

Of Counsel

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

i Sn os A sied cd de int ssadoncecdenjesenessbionsecusncces 1

ras aptsanieseaenshsnatnanundsiosesanstnabersionsces 2

I I lease secaccbecnnchvescotesaccnnpesernceerencsece 2

Constitutional and Statutory Provisions Involved ........ 2

Nee ee sc dtvnesendncrassesencrnscseoes 3

Reasons for Granting the Writ ..................................scsssees- 6

Nee ens acnaueneulonsnnasesnsasece 15

Appendix A—Opinion, Supreme Court of Missouri ........ Al

Appendix B—Relevant Statutes ............. (LTS Ot AQ

Table of Authorities

Cases CITED

Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631,

EEE LA ae Ae eR 10

Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d

i bt lcot bide scannstnnbsncnsdinvnswecceasceere 11

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13

ESS RERTT ERNE a Cena 11

G. I. Distributors, Inc. v. Murphy, 490 F.2d 1167 (2nd

Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1941,

I hse ccc sacccsecevaenvsconemrecese 10

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct.

EG ES __ hE OE 11, 12

Lo-Ji Sales, Inc. v. New York, ........ | , 99 S.Ct.

ae... L.Ed.2d ........ ESTED Save 14, 15

North Carolina v. Butler, ........ Cs a , 99 S.Ct. 1755,

ie Dea I cs ccieescccacctnocscecsarnees 8 ©

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2a

ac caneeeeeer 8

II

Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37

Pe Ge SAE, TEAR CoN AIS Oro StS SCE Ca 10

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,

95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) occas 10

United States v. Thirty-Seven (37) Photographs, 402

U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) ............ 11

STATUTES CITED

Section 542.281, RSMo 1975 Supp. 0.0.2... 2, 3, 6, 13

Section 542.301, RSMo 1975 Supp. 0.0... occ cceceeeeee 3

CONSTITUTIONAL PROVISIONS CITED

United States Constitution, First Amendment ............ 2

United States Constitution, Fourth Amendment ...__. 2

United States Constitution, Fourteenth Amendment .. 3

In the Supreme Court of the United States

OCTOBER TERM, 1979

STATE OF MISSOURI,

Petitioner,

vs.

ALL STAR NEWS AGENCY, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

Petitioner, The State of Missouri, prays that a writ of

certiorari issue to review the judgment and opinion of the

Supreme Court of Missouri entered in this proceeding on

April 10, 1979.

OPINION BELOW

The opinion of the Supreme Court of Missouri is re-

ported at 580 S.W.2d 245 (Mo. banc 1979). In that court °

the case was styled and numbered as follows: State of

Missouri, Respondent v. All Star News Agency, Inc., Ap-

pellant (2 cases), Nos. 60,609 and 60,616 in the Supreme

Court of Missouri. A copy of the opinion is reprinted in

Appendix A.

JURISDICTION

Judgment was entered in the Supreme Court of Mis-

souri on April 10, 1979. A motion for rehearing was denied

May 17, 1979, and this petition is filed within ninety days

of that date. This Court’s jurisdiction is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1, Whether §542.281(5), RSMo 1975 Supp., necessar-

ily imposes a constitutionally impermissible prior restraint

on materials presumptively protected by the First Amend-

ment to the United States Constitution.

2. Whether the restraint of presumptively protected

materials for a ten-day period prior to the commencement

of an adversary hearing to determine whether there is prob-

able cause to believe that those materials are obscene con-

stitutes a constitutionally impermissible prior restraint.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, First Amendment, reads as

follows:

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble,

and to petition the government for a redress of griev-

ances.”

United States Constitution, Fourth Amendment, reads

~ as follows:

3

“The right of the people to be secure in their per-

sons, houses, papers and effects against unreasonable

searches and seizures shall not be violated, and no war-

rants shall issue but upon probable cause, supported by

oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.”

United States Constitution, Fourteenth Amendment,

reads in pertinent part as follows:

“Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof

are citizens of the United States and of the state where-

in they reside. No state shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States, nor shall any state deprive

any person of life, liberty or property without due

process of law, nor deny to any person within its juris-

diction the equal protection of the laws.”

Sections 542.281 and 542.301, RSMo 1975 Supp., are set

forth in Appendix B.

STATEMENT OF THE CASE

Most of the pertinent facts are set forth in the opinion

handed down by the Supreme Court of Missouri on April

10, 1979. State v. All Star News Agercy, Inc., 580 S.W.2d

245 (Mo. banc 1979). This statement of the case will begin

by quoting extensively from the opinion of the Supreme

Court of Missouri before concluding by presenting the ad-

ditional facts which were not outlined in that court’s opin-

ion. (It should be noted that respondent All Star News

Agency, Inc., is referred to throughout the opinion of the

Supreme Court of Missouri as ‘‘Appeilant.”’)

4

“This appeal involves two civil proceedings, con-

solidated here and at trial, wherein the State seeks for-

feiture and destruction, under §§ 542.281 and 542.301.3,

RSMo Supp. 1975 of magazines and movies seized from

appellant. Appellant was a wholesale distributor of

magazines and movies in St. Louis.

The statutes involved provide a civil procedure

whereby the State may search for, seize, and destroy

obscene material. In general terms they provide, where

twenty or more items are at issue, for a four-stage

process. First, upon application of the State to a court

for a warrant to search for and seize obscene material,

the dealer or exhibitor of the obscene matter must be

given notice and an adversary hearing. Once notice is

received, any removal or alteration of the material at

issue is punishable by contempt. Second, an adversary

hearing must be held before a search warrant for such

material may issue. The purpose of the hearing is to

determine whether there is probable cause to believe

that the material is located where alleged and will ulti-

mately be found to be obscene. Third, if a warrant

issues, a determination of obscenity is made by an ad-

visory jury. Fourth, the trial judge determines, after

the jury verdict, whether the material is obscene or

not obscene as a matter of law. If the material is

obscene, an order of forfeiture and destruction issues.

The proceedings at issue in this appeal are virtu-

ally identical except that one involves the seizure

solely of movie films while the other involves the seiz-

ure solely of magazines. Over 1,000 films were seized.

Nearly 13,000 magazines were seized.

The first proceeding was commenced on September

9, 1977, by issuance and service upon appellant of a

Notice of Adversary Hearing. The notice listed the

+)

material for which a search warrant was being sought

and in substance stated, as provided by § 542.281.5, that

‘After service of notice of the hearing, intentional al-

teration, destruction, or removal of any matter, or du-

plicate of matter, described in the notice shall be pun-

ished as contempt of court.’ A police officer was sta-

tioned at appellant’s warehouse to insure that no ma-

terial was removed.

The adversary hearing began September 19, 1977.

This proceeding involved movie films.

The second proceeding progressed similarly. It

commenced on September 21, 1977, by issuance and ser-

vice of a Notice of Adversary Hearing. The notice con-

tained the same warning against removal or alteration

of the material listed as in the proceeding involving

movie films. A police officer was stated at appellant’s

warehouse to insure that no material was removed.

The adversary hearing was held September 23, 1977.

This proceeding involved magazines.” Id. at 246-247.

On January 11, 1978, the Circuit Court of the City of

St. Louis ordered the forfeiture and destruction of the many

magazines and films which had been declared obscene in

those two civil proceedings which were described above.

Those two proceedings were consolidated at trial and on

appeal to the Supreme Court of Missouri; they remain con-

solidated before this Court.

The Supreme Court of Missouri reversed and remanded

in an opinion rendered April 10, 1979. The reversal and

remand was premised on the Missouri Supreme Court’s con-

clusion that the materials in question had been subjected to

a constitutionally impermissible prior restraint between the

time the notices of adversary hearing were served and the

adversary hearings were held. A motion for rehearing

6

was denied May 17, 1979. A writ of certiorari to the Su-

preme Court of Missouri is being sought pursuant to 28

U.S.C. §1254(1).

REASONS FOR GRANTING THE WRIT

This petition for a writ of certiorari should be granted

primarily because, in reversing the decision of the Circuit

Court of the City of St. Louis, the Supreme Court of Mis-

souri misinterpreted some prior decisions of this Court and

overlooked others. In addition, certiorari should be granted

because the Supreme Court of Missouri has rendered im-

potent a statutory scheme that was designed to be and can

be a valuable tool in curtailing the operations of distribu-

tors of obscene materials.

The reversal and remand in this case was premised on

the Missouri Supreme Court’s conclusion that the ma-

terials in question had been subjected to a constitutionally

inpermissible prior restraint between the time the notices

of adversary hearing were served and the adversary hear-

ings were held. The prior restraint which was held to be

constitutionally impermissible was the result of the ap-

plication of the following provision of §542.281(5), RSMo

1975 Supp.:

“After service of notice of the hearing, intentional al-

teration, destruction, or removal of any matter, or

duplicate of matter, described in the notice shall be

punished as contempt of court.”

The foregoing provision was included in notices served on

respondent. In reversing and remanding, and in question-

ing the propriety of the foregoing statutory provision in the

course of doing so, the Missouri Supreme Court misinter-

preted some prior decisions of this Court and overlooked

others.

7

This case arose in a unique factual setting which found

thousands of allegedly obscene magazines and films stored

in a massive pornography warehouse operated by respon-

dent. In striving for the forfeiture and destruction of the

allegedly obscene material, petitioner utilized its civil

anti-obscenity statutes. Respondent was served with no-

tices of adversary hearing which included references to the

foregoing statutory provision and received those adversary

hearings shortly thereafter within the time contemplated

by the law. The prior restraint which the Missouri Su-

preme Court ruled was constitutionally impermissible took

place between the time of the service of the notices of ad-

versary hearing and the adversary hearings themselves.

The first proceeding began when a notice of adversary hear-

ing was served upon the respondent on September 9, 1977;

the materials listed in the notice were allegedly obscene

films. The initial adversary hearing itself commenced Sep-

tember 19, 1977. Two days later, on September 21, 1977, a

second notice of adversary hearing was served upon respon-

dent, this one listing allegedly obscene magazines. This

second adversary hearing was held September 23, 1977.

Consequently, the prior restraint which was held to be con-

stitutionally impermissible by the Missouri Supreme Court

lasted ten days for the films and two days for the maga-

zines. This particular prior restraint was a constitutionally

permissible one and the Missouri Supreme Court over-

looked material matters of law and fact in holding to the

contrary.

The Missouri Supreme Court’s opinion cited five United

States Supreme Court cases and then listed five ‘‘teach-

ings” of those cases. 580 S.W.2d at 247. However, the cited

cases do not support the following two “teachings” as con-

strued by the Missouri Supreme Court’s opinion:

8

“(3) that a prior restraint of one copy of each mag-

azine or film alleged to be obscene may be permis-

sible in order that a determination of the question of

probable obscenity may be made.

“(5) that a restraint, prior to a judicial adversary

hearing, of more material than is necessary for de-

termination of the question of probable obscenity is

constitutionally impermissible.” Id.

Since the foregoing “teachings” as construed by the

Missouri Supreme Court are not supported by the five

cited United States Supreme Court cases or by any others,

the Missouri Supreme Court had no authority to apply

those “teachings” as the law. Particular attention should

be paid to Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215,

43 L.Ed.2d 570 (1975), wherein this Court reversed a deci-

sion of the Oregon Supreme Court which had been prem-

ised on a more restrictive interpretation of United States

Supreme Court decisions than was permissible. In doing

so, this Court referred to its earlier expressions

“that a State is free as a matter of its own law to

impose greater restrictions on police activity than those

this Court holds to be necessary upon Federal Consti-

tutional standards [citations omitted] but, of course,

a State may not impose such greater restrictions as

a matter of federal constitutional law when this Court

specifically refrains from imposing them.” Id., 420

USS. at 719.

See also North Carolina v. Butler, ........ ik Sea , 99 S.Ct.

1755, 1759, ........ L.Ed.2d ........ (1979).

Consequently, the Missouri Supreme Court went be-

yond its authority in interpreting the United States Su-

preme Court cases as upholding the foregoing “teachings.”

9

The Missouri Supreme Court apparently used those

two “teachings” in reaching its conclusion that the restraint

of all copies of the magazines and films listed in the

notices of adversary hearing between the time those notices

were served and the adversary hearings were held was

constitutionally impermissible. However, that court’s reli-

ance on those “teachings” overlooks the unique factual

setting in which this case arose. Respondent was operating

a massive pornography warehouse which contained num-

erous copies of the allegedly obscene magazines and films.

If only one copy of each magazine and film had been

restrained, then the utilization of the civil anti-obscenity

statutes in this case would have been to no avail. Respon-

dent could simply have removed the additional copies

of those magazines and movies. The one case cited by

the Missouri Supreme Court which dealt with the single

copy concept was Heller v. New York, 413 U.S. 483, 93

S.Ct. 2789, 37 L.Ed.2d 745 (1973). However, in that case

this Court was comparing the seizing of a single copy

of a film for the purpose of preserving it as evidence

in a criminal proceeding with the seizing of films to destroy

them or to block their distribution or exhibition. Id.,

413 U.S. at 492. The instant case did not present a situation

in which the-e was a seizing of films and/or magazines

to destroy them or to block their distribution or exhibition;

rather, the instant case presents a situation in which a

pornography wholesaler faced the risk of contempt of

Court if it chose to remove or distribute the items listed in

the notices of adversary hearing. In this type of situation,

a restraint on only one copy of the various items would

have been meaningless. This was not a criminal prosecu-

tion such as was involved in Heller v. New York; rather,

it was a civil proceeding in which petitioner was seeking

the forfeiture and destruction of certain obscene magazines

10

and films. In that sense there was no basis for the Missouri

Supreme Court’s reliance on a single copy concept.

As the foregoing discussion indicates, the primary

problem with the “teachings” outlined in the Missouri

Supreme Court’s opinion is that they overlook some other

well established principles of law. That is perhaps the

primary reason why this petition should be granted.

While any system of prior restraint comes to the court

bearing a heavy presumption against its constitutional

validity, Bantam Books v. Sullivan, 372 U.S. 58, 70, 83

S.Ct. 631, 9 L.Ed.2d 584 (1963), prior restraints are not

unconstitutional per se. Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448

(1975). Rather, in assessing the validity of a given re-

straint, a court is obliged to look at the application of

the statute in question to the facts of the case before

it to determine whether the restraint being imposed rises

to an impermissible level. Roaden v. Kentucky, 413 U.S.

496, 501, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); G. I. Distrib-

utors, Inc. v. Murphy, 490 F.2d 1167, 1169 (2nd Cir. 1973),

cert. denied, 416 U.S. 939, 94 S.Ct. 1941, 40 L.Ed.2d 290

(1974). The restraint imyosed in the instant case was

sufficiently limited in time and nature, and justified in

principle, to keep it within the realm of the permissible.

It has been suggested that certain temporary restraints

may be justified while necessary judicial proceedings are

under way. Southeastern Promotions, Ltd. v. Conrad, 420

U.S. at 557, 559. In that case, this Court outlined in

detail the procedural safeguards necessary to render a

prior restraint lawful.

“First, the burden of instituting judicial proceedings,

and of proving that the material is unprotected, must

rest on the censor. Second, any restraint prior to

11

judicial review can be imposed only for a specified

brief period and only for the purpose of preserving

the status quo. Third, a prompt final judicial deter-

mination must be assured.”’ Id. at 560.

See also Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423,

27 L.Ed.2d 498 (1971); Freedman v. Maryland, 380 U.S.

51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

Applying these standards, the restraint created by the

notices of adversary hearing in the instant case appears

reasonable. It is the second procedural safeguard which

could conceivably present a problem in this case. How-

ever, the restraint imposed by the notices in advance of

a judicial determination of probable cause was limited to

ten days as to the films and two days as to the magazines.

The particular restraint imposed was only that necessary

to prevent any removal or destruction of the materials.

There was no actual physical seizure, but merely the threat

of contempt imposed for any removal of the described

materials. See Kingsley Books, Inc. v. Brown, 354 U.S.

436, 442-443, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The

period utilized by the trial court in assessing the materials

given it for consideration at the adversary hearings can

be readily characterized as a fixed period compatible with

sound judicial discretion. If the distributors of challenged

materials are going to request that those materials be

carefully scrutinized in obscenity determinations, they

must allow adequate time for such scrutiny. Furthermore,

after reviewing the procedure employed by customs offi-

cials in seizing allegedly obscene photographs, this Court

noted in United States v. Thirty-seven (37) Photographs,

402 U.S. 363, 373, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971),

that seizure of allegedly obscene materials would come

within its procedural mandates if the judicial forfeiture

proceedings are begun within fourteen days of the seizure

12

«

and if the period between the filing of the action and

the final decision of the trial court is no longer than

sixty days. While not exactly analogous, the restraint

effected by the notices of adversary hearing in the instant

case falls easily within those boundaries.

A further justification for the contempt warning in

the notice lies in the reasonable concern that, without the

prohibition o.. removal, the distributor might utilize the

time period between the service of the notice of adver-

sary hearing and the adversary hearing itself for the re-

moval of allegedly obscene items in order to avoid their

destruction or prosecution. The distributor, given notice

of an adversary hearing for its own benefit, must not

be allowed to pervert that notice to avoid obscenity stat-

utes. Kingsley Books, Inc. v. Brown, 354 U.S. at 440.

The contempt warning in the notice reduces the possibility

of abuse by the wholesaler of allegedly obscene magazines

and movies.

In addition, as noted earlier, the type of restraint

imposed here, a threat of contempt citation for removal

of certain described materials, is not an absolute restraint

of the type imposed by seizure; it simply prohibited re-

spondent from removing materials unprotected because

of their obscene nature. The restraint of a particular

item could be challenged by defiance of the order, coupled

with the claim of nonobscenity as a defense to the contempt

citation. Id. at 442-443. Applying the foregoing principles

to the facts of the instant case, it cannot be said that

the restraint imposed was a constitutionally impermissible

one. The Supreme Court of Missouri had no basis for

holding that the prior restraint imposed during the limited

time period between the service of the notices of adversary

hearing and the adversary hearings themselves was a con-

stitutionally impermissible one.

13

In effect, the Missouri Supreme Court has rendered

useless a statutory scheme that was designed to be and

can be a valuable tool in combating the distribution of

obscene materials. By implicitly holding that §542.281

(5), RSMo 1975 Supp., necessarily imposes a constitution-

ally impermissible prior restraint on materials presump-

tively protected by the First Amendment to the United

States Constitution, the Missouri Supreme Court has ren-

dered impotent Missouri’s civil anti-obscenity statutes.

There is simply no reason to utilize the statutes if the

contempt warning cannot be placed in the notice of ad-

versary hearing. As noted earlier, without the prohibition

on removal, the distributor of obscene materials might

utilize the time period between the service of the notice

of adversary hearing and the adversary hearing itself for

the removal of the allegedly obscene items in order to

avoid their forfeiture and destruction. The contempt

warning in the notice, which has a limited life span, reduces

the possibility of abuse by the wholesaler of allegedly

obscene magazines and films. The Missouri Supreme Court

opinion apparently means that the statutory scheme can

pass constitutional muster only if the contempt warning

is issued for one copy of the listed magazines and films

rather than all copies. However, the issuance of a con-

tempt warning for only one copy of the allegedly obscene

magazines and films would be an exercise in futility. The

purpose of the statutory scheme is to bring about the

forfeiture and destruction of obscene materials. That stat-

utory scheme is useless if the State of Missouri has to

issue a notice of adversary hearing for each copy of an

allegedly obscene magazine or film. The distributor of

obscene materials can simply dispose of the copies and

suffer the inconvenience of forfeiting one copy so that

that one copy can be destroyed. In the instant case, for

example, respondent All Star News Agency, Inc., could

14

have sold all but one copy of each allegedly obscene maga-

zine and film had the contempt warning in the notice

of adversary hearing been applicable only to one copy.

The importance of this case is that the Missouri Supreme

Court has rendered useless a statutory scheme which could

be invaluable in putting distributors of obscene, i.e., con-

stitutionally unprotected, materials out of business. This

petition for a writ of certiorari should be granted because

the Supreme Court of Missouri accomplished this by mis-

interpreting some prior decisions of this Court and over-

looking others.

On June 11, 1979, this Court reached its decision in

Lo-Ji Sales, Inc. v. New York, ........ | See , 99 S.Ct.

yf | See L.Ed.2dq ........ (1979). It was held.in that case

that an open-ended search warrant for obscene materials

which left it entirely to the discretion of the officials

conducting the search to decide what items were likely

obscene and to accomplish their seizure was constitution-

ally invalid. Id., 99 S.Ct. at 2324. In the instant case

there was an issue before the Supreme Court of Missouri

dealing with the propriety of what respondent All Star

News Agency, Inc., considered to be open-ended search

warrants. Since the Supreme Court of Missouri did not

reach that particular issue in reversing and remanding

the case, this Court’s decision in Lo-Ji Sales, Inc. v. New

York, supra, does not render moot the issues being pre-

sented in this petition for a writ of certiorari. Even if

it is assumed that some of the materials seized from re-

spondent All Star News Agency, Inc., were seized under

authority of constitutionally invalid search warrants, there

is still a reason to grant this writ because many of the

items seized were sufficiently specified in the search war-

rants. There was no open-ended search warrant problem

with many of the materials seized in the proceedings de-

clared invalid for other reasons by the Missouri Supreme

15

Court. In other words, the fact that this Court has decided

Lo-Ji Sales, Inc. v. New York should have no impact

on the decision as to whether certiorari should be granted

in the instant case.

By granting certiorari in this case, this Court will

have the opportunity to consider issues of extreme im-

portance to states which have enacted and are considering

enacting civil anti-obscenity statutes.

CONCLUSION

For the above and foregoing reasons, the petition for

a writ of certiorari to the Supreme Court of Missouri

should be granted.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

PAuL Rosert Otto

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

STEVEN D. STEINHILBER

Assistant Attorney General

Of Counsel

)

. |

Al

APPENDIX

APPENDIX A

STATE OF MISSOURI,

Respondent,

V.

ALL STAR NEWS AGENCY, INC.,

Appellant (two cases).

Nos. 60609, 60616.

SUPREME COURT OF MISSOURI,

En Banc

April 10, 1979

Rehearing Denied May 17, 1979

PER CURIAM:

This appeal involves two civil proceedings, consol-

idated here and at trial, wherein the State seeks forfeiture

and destruction, under §§542.281 and 542.301.3, RSMo

Supp. 1975 of magazines and movies seized from appel-

lant. Appellant was a wholesale distributor of magazines

and movies in St. Louis.

The statutes involved provide a civil procedure where-

by the State may search for, seize, and destroy obscene

material. In general terms they provide, where twenty

or more items are at issue, for a four-stage process. First,

upon application of the State to a court for a warrant to

search for and seize obscene material, the dealer or ex-

hibitor of the obscene matter must be given notice and

an adversary hearing. Once notice is received, any re-

A2

moval cr alteration of the material at issue is punishable

by contempt. Second, an adversary hearing must be held

before a search warrant for such material may issue. The

purpose of the hearing is to determine whether there is

probable cause to believe that the material is located

where alleged and will ultimately be found to be obscene.

Third, if a warrant issues, a determination of obscenity

is made by an advisory jury. Fourth, the trial judge

determines, after the jury verdict, whether the material

is obscene or not obscene as a matter of law. If the mate-

rial is obscene, an order of forfeiture and destruction

issues.

The proceedings at issue in this appeal are virtually

identical except that one involves the seizure solely of

movie films while the other involves the seizure solely

of magazines. Over 1,000 films were .2ized. Nearly 13,000

magazines were seized.

The first proceeding was commenced on September 9,

1977, by issuance and service upon appellant of a Notice

of Adversary Hearing. The notice listed the material for

which a search warrant was being sought and in substance

stated, as provided by §542.281.5, that “After service of

notice of the hearing, intentional alteration, destruction,

or removal of any matter, or duplicate of matter, described

in the notice shall be punished as contempt of court.”

A police officer was stationed at appellant’s warehouse to

insure that no material was removed.

The adversary hearing began September 19, 1977.

This proceeding involved movie films.

The second proceeding progressed similarly. It com-

menced on September 21, 1977, by issuance and service

of a Notice of Adversary Hearing. The notice contained

the same warning against removal or alteration of the

A3

material listed as in the proceeding involving movie films.

A police officer was stationed at appellant’s warehouse to

insure that no material was removed. The adversary

hearing was held September 23, 1977. This proceeding

involved magazines.

The cases pertinent to this appeal are Kingsley Books,

Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469

(1957); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct.

1708, 6 L.Ed.2d 1127 (1961); A Quantity of Books, et al.

v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809

(1964); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789,

37 L.Ed.2d 745 (1973); and Roaden v. Kentucky, 413 U.S.

496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

[1-5] In our opinion, insofar as they pertain to the

facts and issues on this appeal, the teechings of these

cases are:

(1) that all materials alleged to be obscene are pre-

sumptively protected under the First Amendment.

(2) that, as a general proposition, no restraint on dis-

semination of presumptively protected material prior to

a judicial adversary hearing on the question of probable

obscenity is constitutionally permissible.

(3) that a prior restraint of one copy of each mag-

azine or film alleged to be obscene may be permissible

in order that a determination of the question of probable

obscenity may be made.

(4) that the ultimate purpose of the taking of such

copy (for use as evidence at a criminal trial; for use as ~

evidence in an injunction proceeding; or for destruction)

is irrelevant.

(5) that a restraint, prior to a judicial adversary

hearing, of more material than is necessary for a deter-

A4

mination of the question of probable obscenity is consti-

tutionally impermissible.

[6] In the instant case, there were restraints of all

copies of magazines and movies in the warehouse between

the time the notices of adversary hearing were served

and the adversary hearings were held. There were prior

restraints of materials presumptively protected under the

First Amendment. This was constitutionally impermis-

sible under the First, Fourth, and Fourteenth Amend-

ments. Since a violation of these Amendments infected

the proceedings, in order to vindicate appellant’s consti-

tutional rights the judgments must be reversed, and the

causes remanded for further proceedings not inconsistent

with this opinion. Marcus, supra, 367 U.S., l.c. 738, 81

S.Ct. 1708.

The judgments are reversed and the causes remanded.

MORGAN, C. J., and BARDGETT, RENDLEN,

SIMEONE and WELLIVER, JJ., concur.

DONNELLY, J., concurs in separate concurring opin-

ion filed.

SEILER, J., concurs and concurs in separate concur-

ring opinion of DONNELLY, J.

DONNELLY, Judge, concurring.

These are the latest in a line of cases in which we

deal with the question of obscenity by application of law

announced by the United States Supreme Court. I concur,

but, at the risk of being considered presumptuous, have

some observations to make.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304,

1 L.Ed.2d 1498 (1957), the United States Supreme Court

began to seriously grapple with the question of obscenity.

A5

It would serve no useful purpose here for me to describe

the twists and turns which culminated in Miller v. Cali-

fornia, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

It is enough to note that the author of Roth has reached

the conclusion “that the time has come to make a signif-

icant departure” from the Roth approach. Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 73, 74, 93 S.Ct. 2628,

2642, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting).

For me, the problem of regulating obscenity involves

an attempt to reconcile two competing interests: the right

to speak freely and the right to privacy. The right to

speak freely needs no explication from me. It is the

favorite of all libertarians and has properly dominated

the thinking of our people throughout the history of our

Nation. The right to enjoy life (from which the right to

privacy derives) has not received the literary attention

it deserves.

In December, 1890, Samuel D. Warren and Louis D.

Brandeis noted that “in very early times, the law gave

a remedy only for physical interference with life,” but

that later “there came a recognition of man’s spiritual

nature, of his feelings and his intellect. Gradually the

scope of these legal rights broadened; and now the right

to life has come to mean the right to enjoy life,—the

right to be let alone * * *.” Warren & Brandeis, The

Right to Privacy, 4 Harv.L.Rev. 193 (1890). Nearly thirty-

eight years later, in different context, Mr. Justice Brandeis

referred to “the right to be let alone—the most compre-

hensive of rights and the right most valued by civilized

men.” Olmstead v. United States, 277 U.S. 438, 478, 48

S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dis-

senting).

How does all of this relate to obscenity? In my view,

unsolicited obscenity is an assault on the spiritual nature,

A6

the feelings and the intellect of the individual. It is an

assault on the right to privacy. It is an assault on the

right to be let alone. When a person is exposed to ob-

scenity involuntarily, it violates “the right most valued

by civilized men.”

In my view, when obscenity is at issue, and a choice

must be made between the right to speak freely and the

right to privacy—the right to be let alone, the right to

speak freely must yield.

If such concept were adopted, I would anticipate the

following results:

(1) that obscenity would be protected by the First

Amendment and that the right to communicate obscenity

to prior consenting adults would be absolute. The right

to be let alone can be waived and would be waived by

prior consenting adults.

(2) that although obscenity were protected by the

First Amendment, the right to communicate obscenity

would be accommodated to the right of persons generally

not to be exposed to it—to be let alone. This would give

recognition to an overriding concern where state interests

of protecting children and unconsenting adults were in-

volved. See Redrup v. New York, 386 U.S. 767, 769, 87

S.Ct. 1414, 18 L.Ed.2d 515 (1967).

(3) that a new definition of obscenity would be

adopted. If it were established law that the freedom to

communicate obscenity to prior consenting adults is abso-

lute, a definition of obscenity which would fully serve

state interests of protecting children and unconsenting

adults would seem appropriate. Certainly, limiting pro-

scriptions of offensive material to hard-core pornography

would be grossly inappropriate. See Miller v. California,

413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

AT

(4) that the essential problem in obscenity cases

would shift from one of defining “obscenity” to one of

defining “prior consent.” Hopefully, this problem would

prove less intractable.

(5) that any prior restraint on the right to commu-

nicate obscenity would violate the First Amendment. See

Emerson, The Doctrine of Prior Restraint, 20 Law & Con-

temp.Prob. 648 (1955). |

Of course, the scholars will recognize that the concepts

I espouse today emanate from the writings of Sir William

Blackstone (4 W. Blackstone, Commentaries 151-152):

“The liberty of the press is indeed essential to the

nature of a free state; but this consists in laying no

previous restraints upon publications, and not in free-

dom from censure for criminal matter when pub-

lished. Every freeman has an undoubted right to

lay what sentiments he pleases before the public;

to forbid this is to destroy the freedom of the press;

but if he publishes what is improper, mischievous,

or illegal, he must take the consequence of his own

temerity. To subject the press to the restrictive power

of a licenser, as was formerly done, both before and

since the revolution, is to subject all freedom of senti-

ment to the prejudices of one man, and make him the

arbitrary and infallible judge of all controverted points

in learning, religion, and government. But to punish

(as the law does at present) any dangerous or offen-

sive writings, which, when published, shall on a fair

and impartial trial be adjudged of a pernicious ten-

dency, is necessary for the preservation of peace and

good order, of government and religion, the only solid

foundations of civil liberty. Thus the will of individ-

uals is still left free; the abuse only of that free will

is the object of legal punishment. Neither is any

A8

restraint hereby laid upon freedom of thought or in-

quiry; liberty of private sentiment is still left; the

disseminating or making public of bad sentiments,

destructive of the ends of society, is the crime which

society corrects.”

My views also reflect the provisions of the Missouri

Constitution (Mo.Const. Art. I, §§2 and 8). However, it

would serve no useful purpose to implement the Missouri

Constitution so long as we are constrained by the approach

of Roth and its successors.

On May 17, 1979, the Supreme Court of Missouri

overruled the State of Missouri’s timely motion for re-

hearing by making the following order: “Respondent’s

motion for rehearing and alternatively, motion for 90 day

stay of mandate, overruled.”

A9

APPENDIX B

Section 542.281, RSMo 1975 Supp., reads as follows:

542.281. Obscene matter, search warrant for—tran-

script of proceedings—hearing on obscenity—alteration of

material after notice of hearing prohibited—1. Any police

officer, sheriff or deputy sheriff may make application for

the issuance of a search warrant to search for and seize:

(1) Obscene matter being held or displayed for sale,

exhibition, distribution, or circulation to the public, if such

matter is of such a nature that the average person, ap-

plying contemporary community standards would find that

the matter, taken as a whole, appeals to the prurient

interest, if the matter depicts or describes, in a patently

offensive way, sexual conduct specifically defined by Mis-

souri law as obscene, and if the matter, taken as a whole,

lacks serious literary, artistic, political, or scientific value.

(2) Property which has been used by the owner,

or used with his consent, as a raw material or as an in-

strument to publish or produce such obscene matter.

2. A warrant to search for obscene matter being held

or displayed for sale, exhibition, distribution, or circulation

or for property which has been used as a raw material

or as an instrument to publish or produce such obscene

matter may be issued by a judge of the circuit court in

the county or judicial district in which the alleged matter

or property is located. Except as provided in this section,

the issuance of a warrant to search for and seize obscene

matter shall be governed by the provisions of section

542.276.

3. A copy or photograph of the allegedly obscene

matter may be annexed to the application. The applica-

tion and the warrant, if issued, shall designate precisely

Al0

by title, or otherwise, each item or type of item to be

searched for and seized. No warrant shall be issued to

search for and seize any item or type of item unless the

judge determines there is probable cause to believe that

each item or type of item sought is obscene as defined

by law, and is being held or displayed for sale, exhibition,

distribution, or circulation to the public.

4. A transcript shall be made of all proceedings under

this section and under subsections 3 and 4 of section

542.301.

5. If more than twenty items are to be seized, or if

the item to be seized is a motion picture film being ex-

hibited to the public, the judge shall hold an adversary

hearing to determine whether such matter is obscene before

issuing a warrant. Not less than twenty-four hours before

suck gearing, written notice of the date, time, place and

nature of the hearing, including a description of the matter

sought, shall be personally served upon the dealer, ex-

hibiter, displayer or his agent. No warrant shall be issued

without the dealer, distributor, or displayer being given a

reasonable opportunity to appear in opposition to the issu-

ance. Except when the dealer, exhibiter, or displayer con-

sents to a longer period, or by his actions or pleadings,

willfully prevents the prompt resolution of the hearing, a

decision shall be rendered no later than ten days from the

date of the commencement of the hearing. The hearing

shall determine whether the average person, applying con-

temporary community standards would find that the matter

sought, taken as a whole, appeals to the prurient interest,

whether the matter sought depicts or describes, in a pat-

_ ently offensive way, sexual conduct specifically defined

as obscene by the laws of this state, and whether the

matter sought, taken as a whole, lacks serious literary,

artistic, political, or scientific value. Upon determination

All

that there is probable cause to believe the matter sought

is obscene, the judge shall issue a warrant to search for

and seize it. After service of notice of the hearing, inten-

tional alteration, destruction, or removal of any matter,

or duplicate of matter, described in the notice shall be

punished as contempt of court.

542.286. Warrant to be executed within territorial

jurisdiction, exception —1. A warrant to search a person

or any movable thing may be executed in any part of

the state where the person or thing is found if, subsequent

to the filing of the application, the person or thing moves

or is taken out of the territorial jurisdiction of the judge

issuing the warrant.

2. All other search warrants shall be executed within

the territorial jurisdiction of the court out of which the

warrant issued and within the territorial jurisdiction of

the officer executing the warrant.

Section 542.301, RSMo 1975 Supp., reads in pertinent

part as follows:

542.301. Disposition of unclaimed seized property-for-

feiture to the state, when-allegedly obscene matter, how

treated-appeal authorized.

3. (1) When a warrant has been issued to search

for and seize allegedly obscene matter after an adversary

hearing, the judge, upon return of the warrant with the

matter seized, shall give notice of the fact to the pros-

ecuting attorney of the county in which the matter was

seized and the dealer, exhibiter, or displayer and shall

conduct further adversary proceedings to determine

whether the matter is subject to forfeiture. If the evidence

is clear and convincing that the matter is obscene as de-

Al2

fined by law and it was being held or displayed for sale,

exhibition, distribution, or circulation to the public, the

judge shall declare it to be obscene and forfeited to the

state and order its destruction. However, no forfeiture

shall be declared without the dealer, distributor, or dis-

player being given a reasonable opportunity to appear

in opposition and without the judge having thoroughly

examined each item. Except when the dealer, exhibiter,

or displayer consents to a longer period, or by his actions

or pleadings willfully prevents the prompt resolution of

the hearing, judgment shall be rendered within ten days

of the return of the warrant. If the matter is not found

to be obscene or is : -t found to have been held or dis-

played for sale, exhibition, or distribution to the public,

or a judgment is not entered within the time provided

for, the matter shall be restored forthwith to the dealer,

exhibiter, or displayer.

(2) If an appeal is taken by the dealer, exhibiter,

or displayer from an adverse judgment, the case should

be assigned for hearing at the earliest practicable date and

expedited in every way. Destruction of a matter declared

forfeited shall be postponed until the judgment has become

final by exhaustion of appeal, or by expiration of the time

for appeal, and until the matter is no longer needed as

evidence in a criminal proceeding.

(3) A determination of obscenity shall not be admis-

sible in any criminal proceeding against any person or

corporation for sale or possession of obscene matter.

4. (1) When allegedly obscene matter has been

seized under a search warrant issued without a prior ad-

versary hearing, or has been seized without a warrant,

the officer, who executed the warrant or seized the matter

without warrant, shall give notice of the fact of seizure

to the prosecuting attorney of the county in which the

Al3

matter was seized. Within three days of the seizure the

prosecuting attorney shall file a written motion with the

circuit court of the county or judicial district in which

the seizure occurred praying for an order directing the

forfeiture of the matter. Upon filing of the motion, the

court shall set a date for a hearing. Written notice of

date, time, place, and nature of the hearing shall be per-

sonally served upon the owner, dealer, exhibiter, displayer,

or his agent. Such notice shall be served no less than five

days before the hearing.

(2) If the evidence is clear and convincing that the

matter is obscene as defined by law, and it was being held

or displayed for sale, exhibition, distribution, or circulation

to the public, the judge shall declare it to be obscene and

forfeited to the state and order its destruction. However,

no forfeiture shall be declared without the dealer, distrib-

utor, or displayer being given a reasonable opportunity

to appear in opposition and without the judge having thor-

oughly examined each item. Except when the dealer,

exhibiter, or displayer consents to a longer period, or by

his actions or pleadings willfully prevents the prompt

resolution of the hearing, judgment shall be renderec

within fifteen days from the date of the seizure. If the

matter is not found to be obscene, or is not found to have

been held or displayed for sale, exhibition, distribution,

or circulation to the public, or a judgment is not entered

within the time provided for, the matter shall be restored

forthwith to the dealer, exhibiter, or displayer.

(3) If an appeal is taken by the dealer, exhibiter, or

displayer from an adverse judgment, the case shall be

assigned for hearing at the earliest practicable date and

expedited in every way. Destruction of matter declared

forfeited shall be postponed until the judgment has become

final by exhaustion of appeal, or by expiration of the time

Al4

for appeal, and until the matter is no longer needed as

evidence in a criminal proceeding.

(4) A determination of obscenity shall not be admis-

sible in any criminal proceeding against any person or

corporation for sale or possession of obscene matter.

5. An appeal by any party shall be allowed from the

judgment of the court as in other civil actions.