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

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MIGHRBL RODAK, JR., CLERR

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

JOHN ASHCROFT

Attorney General

PauL ROBERT OTTO

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

JOHN M. Morris

Assistant Attorney General

Of Counsel

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080

INDEX

| TSR Le ae ET 1

BSD ES AE A AON EEL A A ET 2

a eesihensiteccon 2

Constitutional and Statutory Provisions Involved ........ 3

Ns. ssicsninsnsabinnncapeccee 4

Reasons for Granting the Writ ................... 6

RESETS I EE an) Se 14

Appendix A—Opinion, Supreme Court of ou sos Al

Appendix B—Opinion, Supreme Court of Missouri ........ A3

Appendix C—Relevant Statutes ................... bei All

Table of Authorities

Cases CITED

A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct.

1723, 12 L.Ed.2d 809 (1964) ... 6, 11

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

9 L.Ed.2d 584 (1964) ....................... . 7-8

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

Es GR TSB ESET SE ee 10, 11

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

I iach Seesenuechenscsesacennowsessacenees 10, 11

' Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.

EE TEE SESE DON ESI 1 11, 12

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

1325, 1 L.Ed.2d 1469 (1957) ........ isctilaelitiahsitbeiccentuidennhciobaies 8,9

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

2319, 60 L.Ed.2d 920 (1979) ................... 6,13

Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708,

6 L.Ed.2d 1127 (1961) .......4........ sathiaiisihahaaeed 6-7, 11, 13

Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. |

i Ge MO I coon st cescvecnscccvsocesvercece 8

II

North Carolina v. Butler, ........ TNTDS. itkcsents , 99 S.Ct. 1755,

jc NR a ee CRI) nies pninseveveccsventinnnseshasiunsubinatlickdacs 7

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

NPI ied aiat cite sinas ities: pipbapencntconighdiledagedaig ec dukia aes 7

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

95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) 2.0 8,9, 11

State v. All Star News Agency, Inc., 580 S.W.2d 245

(Mo. banc 1979) (United States Supreme Court No.

79-241; petition for certiorari pending) ............ 2, 4,6, 10, 11

Teitel Film Corporation v. Cusack, 390 U.S. 139, 88

S.Ct. 754, 19 L.Ed.2d 966 (1968) 2... onc .ceecccccccceceee 10

Times Film Corporation v. Chicago, 365 U.S. 43, 81

S.Ct, SOL, S LB Sd 403 (1061) annonces cssesecscesine 8,9

United States v. 0, 28 Lad Photographs, 402 U.S.

363, 91 S.Ct. 1400, 28 L.Ed.3d 822 (1971) 0... 10

STaTUTES CITED ;

Arizona Rev.Stat. § 13-3501 (rev. 1978) 2... eeeeceeeeeee ee 7

Pia.StatsAnn, § O87.01) (1076) oon ceccccccccecese 7

McKinney’s Cons. Laws of N.Y., Civil Practice Law and

Rules § G3S0 (1972 Supp.) : nso niisc ss cncscceescscsteene econ 7

Section 542.281, RSMo 1975 Supp. .......... 2, 3, 4, 5, 7, 10, 12, 13

Section 542.301, RSMo 1975 Supp. ...............c.ccssecseseeeseeeoeeee 3, 10

Se SURG AMO Cocdetdecins htatbiieecaisdugluaihtinialbinhas sbuczanicien ees 2,6

CONSTITUTIONAL PROVISIONS CITED

United States Constitution, First Amendment ......3, 7, 11, 13

United States Constitution, Fourth Amendment ............ 3,7

United States Constitution, Fourteenth Amendment .... 3, 7

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 the above-

entitled cause on October 10, 1979.

OPINION BELOW

The opinion of the Supreme Court of Missouri, as yet

unreported, is styled and numbered as follows: State of

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

pellant (2 cases), No. 61,317 in the Supreme Court of

2

Missouri. A copy of the opinion is reprinted as Appen-

dix A. :

The decision of the Supreme Court of Missouri in this

cause is based solely upon a recent decision in the same

court involving the same parties and closely similar facts,

State v. All Star News Agency, Inc., reported at 580 S.W.

2d 245 (Mo. banc 1979), in which a petition for a writ

of certiorari is also pending before this Court. A copy

of this decision is reprinted in Appendix B.

JURISDICTION

Judgment was entered in this cause by the Supreme

Court of Missouri on October 10, 1979. Inasmuch as the

issues presented herein were considered by the Supreme

Court of Missouri in a previous case (see Appendix B)

and the court’s ruling in the present cause was based upon

its prior decision, no motion for rehearing was filed. The

present petition is filed within ninety days of the entry

of judgment in this case, and this Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether § 542.281.5, RSMo 1975 Supp., necessarily

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

probable cause to believe that those materials are obscene

constitutes 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

the press, or the right of the people peaceably to

assemble, and to petition the government for a re-

dress of grievances.”

United States Constitution, Fourth Amendment, reads

as follows:

“The right of the people to be secure in their

persons, houses, papers and effects against unreason-

able searches and seizures shall not be violated, and

no warrants shall issue but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing 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 wherein 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 jurisdiction the equal protection of

the laws.”

Sections 542.281 and 542.301, RSMo 1975 Supp., are

set forth in Appendix C.

STATEMENT OF THE CASE

The legislative scheme at issue in this cause may be

aptly summarized by the following quotation from the

decision of the Supreme Court of Missouri in State v.

All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc

1979), a previous case involving the identical parties and

issues (see Appendix B):

“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 prob-

able cause to believe that the material is located

where alleged and will ultimately be found to be

obscene. Third, if the 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 material is obscene, an order of forfeiture

and destruction issues.” State v. All Star News

Agency, Inc., supra, at 246-247.

In the case at bar, respondent, a wholesale distributor

of magazines, films and books in St. Louis, was served

with a notice of adversary hearing pursuant to § 542.281,

4)

RSMo 1975 Supp., on June 6, 1977. The notice listed and

described the materials for which a search warrant was

being sought and in substance stated, as provided for by

§ 542.281.5, that “After service of notice of the hearing,

intentional alteration, destruction, or removal of any mat-

ter, or duplicate of matter, described in the notice shall

be punished as contempt of court.” Police officers were

stationed at respondent’s warehouse to ensure that none

of the described material was removed.

On June 8, 1977, an adversary hearing on petitioner’s

application for a search warrant was conducted in the

Circuit Court of the City of St. Louis; on June 16, within

the ten-day limit set by § 542.281, the court found prob-

able cause and ordered that a search warrant issue. On

that date, respondent’s warehouse was searched pursuant

to the warrant and approximately 26,000 magazines and

2,000 movies named or described in the warrant were

seized. Following a hearing lasting more than two months,

in which the seized materials were examined by a jury

and independently reviewed by the court, virtually all of

the items submitted were found to be obscene and their

destruction was ordered. Both parties appealed the Cir-

cuit Court’s decision to the Missouri Court of Appeals,

Eastern District, respondent contesting the validity of the

statutory procedure and alleging numerous due process

violations, and petitioner disputing the court’s holding

that 35 specific exhibits which were found to be obscene

by the jury were not obscene as a matter of law.

Following an opinion by the Missouri Court of Appeals

which reversed the lower court on both appeals, the Su-

preme Court of Missouri granted respondent’s motion to

transfer the cause to that court. In an opinion issued on

October 10, 1979, the Supreme Court of Missouri reversed

eee ewe eee Oe

6

on respondent’s appeal and remanded the cause,’ prem-

ising its decision on the conclusion that the materials in

question had been subjected to a constitutionally imper-

missible prior restraint between the time the notice of

adversary hearing was served and the time the request

for search warrant was ruled upon, a period of ten days.

A writ of certiorari to the Supreme Court of Missouri is

being sought pursuant to 28 U.S.C. § 1254(1).

REASONS FOR GRANTING THE WRIT

Petitioner submits that a writ of certiorari should

issue in the case at bar for the reason that, in reversing

the decision of the Circuit Court of the City of St. Louis,

the Supreme Court of Missouri disregarded the entire

body of the decisional law of this Court regarding prior

restraints and misinterpreted the decisions of this Court

relating to the restriction of obscenity. In doing so, the

Supreme Court of Missouri has emasculated a statutory

scheme, the civil statute providing for the seizure and

destruction of obsce*e materials, whose fundamental va-

lidity (independent of due process defects in its execution)

has been implicitly upheld by this Court in numerous past

decisions, Lo-Ji Sales, Inc. v. New York, ........ is Sg ;

99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); A Quantity of Books

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

(1964); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct.

1. The decision of the Missouri Supreme Court did not ex-

plicitly rule upon the appeal of petitioner; however, it may be

inferred from the court’s ruling that the lower court’s order

at issue was affirmed.

2. In view of the fact that the Missouri Supreme Court

advanced no argument in the present decision, but rather relied

solely upon its previous decision in State v. All Star News Agency,

Inc., 580 S.W.2d 245 (Mo. banc 1979) (see Appendix B), this

a. will dismiss the holding and rationale of that prior

ecision.

7

1708, 6 L.Ed.2d 1127 (1961), and which is presently in

use in numerous states. See, e.g., McKinney’s Cons. Laws

of N.Y., Civil Practice Law and Rules § 6330 (1972 Supp.);

Fla.Stat.Ann. § 847.011 (1976); Arizona Rev.Stat. § 13-35"

(rev. 1978). As the sole basis for its holding, the Mis-

souri Supreme Court cites the First, Fourth, and ‘Four-

teenth Amendments to the United States Constitution and

the decisions of this Court interpreting those amendments.

As noted by this Court in Oregon v. Hass, 420 U.S. 714,

95 S.Ct. 1215, 43 L.Ed.2d 570 (1975),

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

greater restriction on police activity than those this

Court. holds to be necessary upon Federal Constitu-

tional 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

U.S. at 719.

See also North Carolina v. Butler, ........ pews , 99 S.Ct.

1755, 1759, 60 L.Ed.2d 286 (1979).

The crux of the Missouri Supreme Court’s holding ir

this and in the previous All Star cases is that the provi-

sion in § 542.281.5, RSMo 1975 Supp., which prohibits

the alteration, destruction or removal of materials de-

scribed in the application for search warrant during the

maximum ten-day period between the application and the

ruling on that application constitutes an impermissible

prior restraint which violates the distributor’s First

Amendment rights. The constitutional issue of prior re-

straints has been extensively handled in the decisions of

this Court: while it has long been recognized that any

system of prior restraint bears a heavy presumption

against its constitutional validity, Bantam Books v. Sulli-

van, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1964),

prior restraints are not unconstitutional per se. South-

eastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95

S.Ct. 1239, 43 L.Ed.2d 448 (1975); Times Film Corpora-

tion v. Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 5 L.Ed.2d

403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436,

441, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The most

recent statement of the requisite circumstances for a valid

prior restraint is contained in Southeastern Promotions,

Ltd. v. Conrad, supra:

“In order to be held lawful [the prior restraint],

first, must fit within one of the narrowly defined

exceptions to the prohibition against prior restraints,

and, second must have been accomplished with pro-

cedural safeguards that reduce the danger of sup-

pressing constitutionally protected speech” (citation

omitted). Id., 420 U.S. at 559.

One such exception to the prior restraint prohibition

relates to the field of obscenity prosecution: this Court

has stated that “the primary requirements of decency

may be enforced against obscene publications.” Near v.

Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625,.

75 L.Ed. 1357 (1931). This exception formed the basis

for the upholding of a prior restraint by the Court in

Times Film Corp. v. Chicago, supra: there, the distrib-

utor of a film entitled “Don Juan” refused to submit the

film for examination to city officials, as required by city

ordinance, before a permit to publicly exhibit the film

could be issued. In upholding this procedure, the Court

stated as follows:

“[Petitioner’s argument] is founded upon the claim

of absolute privilege against prior restraint under the

First Amendment—a claim without sanction in our

cases. To illustrate its fallacy, we need only point

9

to one of the ‘exceptional cases’ which Chief Justice

Hughes enumerated in Near v. Minnesota, supra,

namely, ‘the primary requirements of decency [that]

may be enforced against obscene publications.’ .. .

Chicago emphasizes here its duty to protect its people

against the danger of obscenity in the public exhibition

of motion pictures. To this argument petitioner’s only

answer is that regardless of the capacity for, or extent

of, such an evil, previous restraint cannot be justified.

With this we cannot agree.” Times Film Corp. v.

Chicago, supra, 365 U.S. at 49.

It should be emphasized that this prior restraint exception

attaches to the public policy of policing the bounds of

obscenity and does not depend upon whether the items

at issue have in fact been determined to be obscene; in

the Times Film Corp. case, for example, the film in question

was never examined for obscenity by the appropriate city

officials or by any of the reviewing courts. 365 U.S. at

46-47; see also Kingsley Books, Inc. v. Brown, supra, 354

US. at 440-445. Accordingly, respondent submits, the prior

restraint in the case at bar is clearly within the above-

quoted exception to the prohibition of such restraints.

The necessary procedural safeguards for lawful prior

restraints have been well-delineated by a number of deci-

sions by this Court:

“First, the burden of instituting judicial proceedings,

and or proving that the material is unprotected, must

rest on the censor. Second, any restraint prior to

judicial review can be imposed only for a specified

brief y ‘riod and only for the purpose of preserving

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

mination must be assured” (emphasis in original).

Southeastern Promotions, Ltd. v. Conrad, supra, 420

U.S. at 560.

Sew

10

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). All three re-

quirements are clearly satisfied in the case at bar. There

can be no dispute that, under the statutory scheme of the

Missouri civil anti-obscenity statute, petitioner was re-

quired to initiate the proceedings and to establish that the

items at issue were in fact obscene. The second require-

ment is similarly satisfied by the fact that the statutory

restraint at issue lasts only through the adversary search

warrant hearing, which must be (and was in the present

case) concluded within ten days of the warrant application.

Section 542.281.5, RSMo 1975 Supp. Cf. Blount v. Rizzi,

supra, 400 U.S. at 418; Teitel Film Corporation v. Cusack,

390 U.S. 139, 141-142, 88 S.Ct. 754, 19 L.Ed.2d 966 ( 1968) ;

Freedman v. Maryland, supra, 380 U.S. at 60. Such a

ten-day delay pending judicial review has been implicitly

found to be reasonable. See United States v. Thirty-Seven

Photographs, 402 U.S. 363, 373, 91 S.Ct. 1400, 28. L.Ed.2d

822 (1971). As to the third procedural requirement of a

prompt final judicial determination, § 542.301.3(1) requires

that “[e]xcept when the dealer, exhibiter, or displayer con-

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

wilfully presents the prompt resolution of the hearsay,

judgment shall be rendered within ten days of the return

of the warrant.” Since the prior restraint imposed by

statute during the adversary search warrant hearing came

within the subject-matter class of exceptions to the general

prohibition of such restraints, and since all necessary pro-

cedural requirements were provided for under the statute,

petitioner urges that the prior restraint at issue was a

valid and proper one and that the holding of the Missouri

Supreme Court is without merit.

In support of its decision in the first All Star case (Ap-

pendix B), the Supreme Court of Missouri cites five “teach-

11

ings” which it claims to find in the decisions of this Court

on the subject of obscenity. State v. All Star News Agency,

Inc., supra, at 247. Briefly summarized, these “teachings”

are that, while “as a general proposition, no restraint on

dissemination of presumptively protected material prior

to a judicial adversary hearing on the question of probable

obscenity is permitted,” single copies of magazines or films

may be restrained for purpose of a probable obscenity de-

termination. Id. Petitioner has searched the prior re-

straint decisions of this Court in vain for language sup-

porting the Missouri Supreme Court’s holding that the

First Amendment prohibits the restraint of more than

one copy of a given item. See Southeastern Promotions,

Ltd. v. Conrad, supra, 420 U.S. at 560; Blount v. Rizzi,

supra, 400 U.S. at 417; Freedman v. Maryland, supra, 380

US. at 58-59. The only case which even refers to the

possibility of a single-copy seizure is Heller v. New York,

413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); there,

the seizure of a single copy of a film pursuant to an ex

parte warrant was attacked by the film distributor as

being contrary to the holdings of A Quantity of Books v.

Kansas, supra, and Marcus v. Search Warrant, supra. In

response to this argument, this Court stated as follows:

“Petitioner’s reliance on [these decisions] is mis-

placed. Those cases concerned the seizure of large

quantities of books for the sole purpose of their de-

struction, and this Court held that, in those circum-

stances, a prior judicial determination of obscenity in

an adversary proceeding was required ..., We do not

disturb this holding.

*. *¢ *&

But seizing films to destroy them or to block their

distribution or exhibition is a very different matter

from seizing a single copy of a film for the bona fide

12

purpose of preserving it as evidence in a criminal

proceeding, particularly where, as here, there is no

showing or pretrial claim that the seizure of the copy

prevented continuing exhibition of the film. If such

a seizure is pursuant to a warrant, issued after a de-

termination of probable cause by a neutral magistrate

. . + the seizure is constitutionally permissible” (em-

phasis supplied; citations and footnotes omitted).

Heller v. New York, supra, 413 U.S. at 492.

In short, the holding of Heller is not that only single copies

of an item may be restrained, but that if a single copy is

restrained for use in a criminal proceeding—as compared

to mass seizures under civil injunction or destruction stat-

utes—an adversary probable cause hearing is not required.

The fundamental absurdity of the Missouri Supreme

Court’s position is made clear by the effect of its holding

on the statutory scheme of § 542.281. If petitioner were

to apply today for a warrant to search a wholesale pornog-

raphy warehouse such as that operated by respondent, the

following result would obtain: following service of the

notice of adversary hearing upon respondent, the court

could only order respondent to keep in his warehouse one

copy of each item named or described in the application

(how it could be determined whether this order was being

complied with in the absence of authority to search is an

interesting question). During the adversary probable

cause hearing and until the court issued its ruling, re-

spondent would be entirely free to remove all materials

from the warehouse except the specified single copies; in

the present case, there were only 1,259 individual items out

of the 28,000 magazines, books, films and other materials

seized. Therefore, if the search warrant were granted,

less than five percent of the pornographic material would

be found there. Such a process is analogous to bailing a

13

sinking ship with a spoon, and petitioner submits that

neither the First Amendment nor any decision: of this

Court mandates such a preposterous result.

The extent of respondent’s reply in his various briefs

and arguments in this case to the above citations of law

has been to allege various defects in the execution of the

seizure-and-destruction procedure in this case—for ex-

ample, he claims that the search warrant herein was in-

sufficiently specific in describing the things to be seized

(citing Lo-Ji Sales, Inc. v. New York, supra), and that

the jury hearing on the issue of obscenity was longer than

the statutory maximum (citing Marcus v. Search Warrant,

supra). The difficulty with these arguments is that they

are totally irrelevant to the issue on which the Supreme

Ccurt of Missouri made its determination: whether the

provision in § 542.281 for the ten-day restraint of First

Amendment materials pending a judicial determination of

probable cause to search is, per se, an impermissible prior

restraint. These claims of various factual defects (re-

spondent raised nine of them in his appeal) were fully

briefed and argued by petitioner in the Missouri courts;

however, their merit vel non was never reached because

of the Missouri Supreme Court’s ruling on the threshold

issue of prior restraint.

Petitioner submits that the above facts and authori-

ties conclusively demonstrate that the Supreme Court of

Missouri has committed a serious and far-reaching error in

its ruling on the issue of prior restraint. In order to remedy

this disastrous misinterpretation of this Court’s decisions,

and to ensure that the same will not occur in other states,

petitioner urges that this petition be granted.

14

CONCLUSION

In view of the foregoing, the petition for a writ of

certiorari to the Supreme Court of Missouri should be

granted.

Respectfully submitted,

JoHn ASHCROFT

Attorney General

Pau Rosert Orto

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

JoHN M. Morris

Assistant Attorney General

Of Counsel

Al

APPENDIX

APPENDIX A

STATE OF MISSOURI,

Respondent,

Vv.

ALL STAR WEWS AGENCY, INC.,

Appellant.

(two cases)

No. 61317

Supreme Court of Missouri

En Banc

October 10, 1979

PER CURIAM:

This appeal involves a civil proceeding wherein the

State seeks forfeiture and destruction under §§ 542.281 and

542.301, RSMo 1978, of allegedly obscene materials.

A Notice of Adversary Hearing was issued on June 6,

1977. On June 8, 1977, an adversary hearing on the prob-

able obscenity of the items covered by the notice began.

On June 16, 1977, the trial court found probable cause and

a warrant issued. On July 8, 1977, a jury began its de-

liberations. On August 2, the jury returned verdicts find-

ing most of the items obscene. On September 23, 1977,

the trial court entered its declaration of forfeiture and

order of destruction. An appeal was taken to the Eastern

District of the Missouri Court of Appeals, where an opinion

was filed and adopted on January 23, 1979.

A2

On May 17, 1979, the cause was transferred to this

Court by order of this Court. On September 17, 1979, it

was argued and submitted.

On April 10, 1979, an opinion was filed and adopted in

this Court in State v. All Star News Agency, Inc., 580

S.W.2d 245 (Mo. bane 1979), which appeals involved civil

proceedings in September, 1977. The State concedes that

under the facts in this case, the opinion in All Star, supra,

if still viable, requires reversal; but contends the opinion

in All Star, supra, is flawed. We do not agree.

The judgment is reversed and the cause remanded for

proceedings not inconsistent with the opinion in State v.

All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc

1979).

Bardgett, C.J., Donnelly, Seiler, Welliver, Morgan and Hig-

gins, JJ., concur; Rendlen, J., dissents.

A3

APPENDIX B

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, consolidated

here and at trial, wherein the State seeks forfeiture and de-

struction, 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 ma-

terial. 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 removal

or alteration of the material at issue is punishable by con-

tempt. 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

A4

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 material 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 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 warant 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, de-

scribed in the notice shall be punished as contempt of

court.” A police officer was stationed at appellant’s ware-

house 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 ma-

terial 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 hear-

ing was held September 23, 1977. This proceeding in-

volved magazines,

AS

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 teachings 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-

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

A6

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 US., le. 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 con-

cur, 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.

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

ee, 2 Oe er

>

A I ee ee ee ee ’

ee ee

AT

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 re-

ferred to “the right to be let alone—the most comprehen-

sive 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., dissenting).

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

unsolicited obscenity is an assault on the spiritual nature,

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.”’

<= eww r+

A8

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 estavlished 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).

(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.

Fm mm ee A

SS

~~

‘A9

(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 published.

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 revolu-

tion, is to subject all freedom of sentiment to the prej-

udices 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 offensive writings,

which, when published, shall on a fair and impartial

trial be adjudged of a pernicious tendency, is necessary

for the preservation of peace and good order, of govern-

ment and religion, the only solid foundations of civil

liberty. Thus the will of individuals is still left free;

the abuse only of that free will is the object of legal

punishment. Neither is any restraint hereby laid upon

freedom of thought or inquiry; liberty of private sen-

timent is still left; the disseminating or making public

of bad sentiments, destructive of the ends of society,

is the crime which society corrects.”

Al0

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 over-

ruled the State of Missouri’s timely motion for rehearing

by making the following order: ‘“Respondent’s motion for

rehearing and alternatively, motion for 90 day stay of

mandate, overruled.”

All

APPENDIX C

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

042.281. 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 in-

terest, if the matter depicts or describes, in a patently of-

fensive 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 circula-

tion 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 mat-

ter may be annexed to the application. The application

and the warrant, if issued, shall designate precisely by

Al2

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 de-

termines 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

such hearing, 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

LE No cA ee) es

Al3

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-

Al4

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 not 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

Ald

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 rendered

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

Al6

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.