# Amicus Curiae Brief — Brockett v. Spokane Arcades, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 813

## Text

8
ss
P

| Ottce Supreme Court, US. |
Cc (>) FILED

Nos. 84-28 and 84-1 wey 15 i904

vir js _
CLERK _}
Supreme Court of the U tates

October Term, 1984

No. 84-28
DONALD C. BROCKETT,
Spokane County Prosecuting Attorney
Appellant,
vs.
SPOKANE ARCADES, INC., et al,
Appellees,

No. 84-143
KENNETH EIKENBERRY,
Attorney General for the State of Washington, et al.,

Appellants,
vs.
J-R DISTRIBUTORS, INC., et al.,
‘ Appellees,

On Appeal From The United States
Court Of Appeals For The Ninth Circuit

BRIEF AMICUS CURIAE OF TOM COLLINS,
AS COUNTY ATTORNEY FOR THE COUNTY OF MARICOPA,
STATE OF ARIZONA, IN SUPPORT OF APPELLANTS

BRUCE A. TAYLOR
2331 W. Royal Palm Rd. #105
Phoenix, Arizona 85021
(602) 995-2600
Counsel of Record

Sandor O. Shuch For Amicus Curiae

Deputy County Attorney

County, Arizona

201 W. Jefferson Street

Phoenix, Arizona 85003

(602) 262-8541

Of Counsel

Sal

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

LAW AND ARGUMENT

Proposition
Proposition
Proposition
Proposition
Proposition
CONCLUSION
APPENDIX

of Law
of Law
of Law
of Law

of Law

Number I

Number II
Number III
Number IV

Number V

CERTIFICATE OF SERVICE
(Foliows Appendix)

TABLE OF AUTHORITIES

Pages
Cases
Allen v. McCurry,
449 U.S. 90 71980) 21,25
33

Andrews v. State,
WwW. (Tx.Ct.Cr.App.
1983) 57

Art Theatre Guild v. Ewing, :
421 U.S. 923 (1975) 7
Besig v. U.S.,
xO8 F.2d 142 (9th Cir. 1953) 55

Broadrick v. Oklahoma,
413 U.S. 601 (1973)

Chateau X v. North Carolina,
up.ct.Nc. 1981) 17

Childs v. State of Oregon,
431 F.2d 272 (Sth Cir. 1970) 54

Cohen v. California,
) 42

Commonwealth v. Mascolo,
(App.Ct.Mass. 1978) 56

Commonwealth v. Rich,
" om.Ct.Pa.1981) 56

Communety Television of Utah v.
oy Citv,
Shs F. Supp. 1164 (D.Utah 1982) 27

Dombrowski v. Pfister,
380 U.S. 479 (1965)

Douglas v. City of Jeannette,
315 U.S. 157 (1943)
Eastman Kodak v. Hendricks,
t r. 1958)

Fehlhaber v. North Carolina,
675 F.2d 1305 (4th Cir. 1982)

Fenner v. Boykin
271 U.S. oho (1926)

First Amendment Foundation v.
“State of Florida,
364 So.2d 450 (Sup.Ct.Fla. 1978)

Flying Eagle Publications v.
United States,
273 F.2ag 799 (lst Cir. 1960)

Ginzburg v. United States,
383 U.S. 463 (1966)

Goldstein v. Allain,

-Supp. 1377 (N.D.Miss. 1983)

Hamling v. United States,
418 ime 8/ (1974)

-iii-

Pages

14,22
30-31

23
54
18

14,30
31

18

54

19,41
48,49
50,51

27,36
53

19,39
41.45
-46

Hicks v. Miranda,

422 U.S. 332 (1975)

Huffman v. Pursue,
975)

In re Collins,
riz.Rpts. 310 (1972)

Interstate Circuit v. City
of Dallas,
; 590 (5th Cir. 1966)

J-R Distributors v. Eikenberr ,
725 F.2d 482 (Sth Cir. LS8z4
Sangsiey Pictures v. Regents,

Little Store v. State,
A. t.App.Md. 1983)

Luros v. United States,
th Cir. 1968)

McCarthy v. Briscoe,
553 F.2d 1005 (5th Cir. 1977)

Miller v. California,

Mishkin v. New York,
y S 6)

-iv-

Pages
23
25,30

58

54

10,26
35-36
53

15
35
54
34

15,19
36-38
4]

15,19
39 41
45,47
-48

Moore v. Sims,
5 (1979)

Mutual Film Corp. v.
~ Industrial Com. ,
230 U.S. 231 (1915)

New York v. Ferber,
82)

Parratt v. Taylor,
451 U.S. 53 (1981)

Penthouse v. McAuliffe,
, t ir. 1980)

People v. Ciampa,
35% N.Y.S.2d 727 (Sup.Ct. 1977)

People v. Souter,
178 Cal.Rptr. 111 (Ct.App. 1981)

People of Michigan v. Neumayer,
ks N.W. 2d 736 (Sup.Ct. 1575}

Pinkus v. United States,
(

Railroad Commission v. Pullman,
312 U.S. 496 (1941)

Red Bluff Drive-In v. Vance,
; th Cir. 1981)

Roth v. United States,

19,40

15

25,32

27,41

53,56

ll

18

19,39
45,50

14,23
25

27,36

19,36
39,40
4]

Rutt edge v. Arizona Board of
egents,
580 F.2d 1345 (9th Cir. 1981)

Samuels v. Mackell,
; 1)

Sedelbauer v. State, |
; up.Ct.In. 1981)

Splawn v. California,
43I U.S. 595 (1977)

Spokane Arcades v. Brockett,
631 F.2d 135 (Sth cir. 1980)
Spry v. State,
2% S.E.2d 2 (Ct. App. Ga. 1981)

Sovereign News v. Falke,
674 F.2d 484 (oth Cir. 1982)

State v. Anonymous,
A. uper.Ct.Conn.
1977)

State v. Barrett,

(Sup.Ct.S.C. 1982)

State v. Grabill,
Ct.App.Or. 1978)

State v. Great American Theatre,
: sup. Ct.Kan. 0)

State v. LeWitt,
A. (Ct.App.Conn. 1966)

State v. Little Art Cor -
215 N.W.2d 853 (Sup.Ct.Neb. 1974)

-vi-

Pages

32
23
51

49-50
51-52

27
55

16,27

56

State v. Schwing,

328 N.E.2d (Sup.Ct.Ohio 1975)
State v. Tidyman,

568 P.2d 5b6 (Ct.App.Or. 1977)

State of Arizona v. Bartanen,
up.Ct.Ariz. 1979)

State of Arizona v. Book-Cellar,
t.App.Ariz. 1984)

State of Idaho, ex rel. Kidwell v.

U.S. Marketing,
631 P.2d 622 (Sup.Ct.Idaho 1981)

State of Ohio, ex rel. Ewing v.
“Without a Stitch ,
1o St. (Sup.Ct.Ohio
1974)

State of Ohio v. Burgun,
56 Ohio St.2d 354 (Sup.Ct.Ohio
1978)

State of Washington v. J-R
Distributors,

51Z 0.2d 1049 (Sup.Ct.Wash. 1973)

Steffel v. Thompson,
G15 U.S. 452 CIS T&)

Stroianoff v. Montana,
th Cir. 1983)

Pages

56
46,56

16,
43-44
16

17 ,60

17

16

15
14,24

ll

Turoso v. Cleveland Municipal Court,
531 F.Supp. 829 (N.D. Ohio 1980), 17

U.S. v. 31 Photographs,
156 F.Supp 350 (S.D.N.Y. 1957)

-vii-

55

* i AP :, Teen Phs

U.S. v. Ammirato,
; 5th Cir. 1982)

U.S. v. Battista,
6th Cir. 1981)

U.S. v. Central Magazine Sales,

U.S. v. Darnell,
(2d Cir. 1963)

U.S. v. Fatico,
441 F.Supp. 1285 (E.D.N.Y. 1977)

U.S. v. Keller,
(3rd Cir. 1958)

U.S. v. “Language of Love",
432 F.2d rhe oni Cir. 1970)

U.S. v. One Reel of Film,
.oupp. . Mass. 1973)

U.S. v. Pinkus,
5 (9th Cir. 1977)

Universal Amusement v. Vance,
t e. 8)

Vicory v. Walton,
(6th Cir. 1983)

Village of Hoffman Estates v.

Flipside,
73k U.S. 489 (1982)

-viii-

Pages

Ward v. Illinois,
G31 U.S. 767 (1977) 15,41

Watson v. Buck,

: (1941) 9-10,
12,13
20 ,62
Younger v. Harris,
705 U.S. 37 (1971) 22,25
30

Youngstown v. DeLoreto,
19 Ohio.App.2d 267 (Ct.App.Ohio

1969) 45
Zwickler v. Koota,

: 967) 23
Miscellaneous

42 U.S.C., Section 1982 29

ABA's Standards for Criminal
Justice Relating to Sentencing
Alternatives and Procedures 59

Model Penal Code, Commentaries,
Part II 42-43

Schauer, The Law of Obscenity 42

-ix-

INTEREST OF THE AMICUS CURIAE

Your amicus curiae is the Honorable

Tom Collins, duly elected County Attorney
for Maricopa County, Arizona. He is the
chief law enforcement officer of the
County, with criminal jurisdiction over
felonies and misdemeanors as well as
civil practice and advice duties to
County governmental agencies.

There are approximately forty-five
(45) so-called "adult" bookstores and
theatres which carry exclusively
"hard-core" pornographic magazines,
films, video cassettes, sexual devices
such as d2ldos and bondage equipment, and
silent short-film "peep shows" in small
booths. In addition, several "adult"
motels offer hard-core films to paying
customers, numerous video cassette rental
and sales outlets carry hundreds of
hard-core pornographic cassettes, and

several bars and burlesque houses employ

elie

young females to expose their vagina and
anus areas and breasts to paying
customers. All such hard-core
pornography and nude "entertainments" are
illegal under Arizona state statutes.
Prosecutions, injunctions, and nuisance
abatement actions have been brought and
continue to be litigated in state courts.
The diversity of opinion by lower
federal and state courts deserves
correction as we enter a new era of
enforcement against an illegal organized
crime industry which has grown out of
control and now enters the home through
cable and pay television, dial-a-porn
telephone services, and "men's
sophisticate magazines" available at
nearly every corner convenience store and
newsstand. Sexual crimes against women
and children are among the only
classifications of crimes which are

steadily increasing, and are becoming

afte

more violent and bizarre. In the opinion
of veteran law enforcement officers and
many researchers and therapists, such sex
crimes are increasingly connected with
pornography and its effect on heightening
the arousal and deviant tendencies of
offenders. This nationwide problem
cannot be ignored, yet state prosecutors
are now being diverted from their law
enforcement response by lawsuits from the
pornography industry in federal courts.
Attacks against new and existing statutes
and ordinances are resulting in the
review of state laws by federal judges
rather than state courts. Awards of
attorneys fees whenever a federal judge
differs in opinion with the choice of
words in legislation are intimidating
city and county councils and state
legislatures, who are faced with mounting

financial problems on one hand anc

growing organized crime and related
individual offenses on the other.

Your amicus curiae has recently been

the subject of a similar federal
challenge to the existing Arizona
Obscenity Statutes, brought on behalf of
several pornographers by the same
attorney representing the Appellees in

this case. The Complaint in Polykoff, et

al. v. Tom Collins, F.Supp. CIV

84-1101, was filed in the U.S. District
Court in Phoenix and asked that the Court
declare the state statutes invalid,
primarily in reliance upon the Ninth
Circuit opinion now before the Court
here, and sought an injunction under 42
U.S.C. 1983, and attorneys fees under

Section 1988. Your amicus curiae

immediately filed a civil declaratory
action regarding the challenged statutes
in the state court against the federal

plaintiffs. (The federal plaintiffs-

in %

state defendants objected and moved to
dismiss the state action, which was
subsequently dismissed over our objection
after the federal court ruled in the
State's favor.) The Honorable District
Judge Charles L. Hardy assumed
jurisdiction but entered judgment, on
July 11, 1984, in favor of the State and

your amicus curiae. Judge Hardy first

found that abstention was not required
and then distinguished the Ninth Circuit
decision from the statute and ‘case law
construction by the Arizona Supreme
Court. See Appendix "A" for the District
Court decision of Judge Hardy. Judge
Hardy found that the Arizona Supreme
Court's interpretation of "prurient" and
the provision of. high fine limits under
Arizona's felony obscenity law were
constitutional. The Plaintiffs have

filed an appeal from this judgment in the

Ninth Circuit, where the case is now
pending, Case No. 84-2328.

Clarifying the steps in determining
jurisdiction, in considering abstention,
declaratory relief, and then injunctive
relief, would eliminate much improper
litigation of these state law issues and
restore proper deference to state courts.

Your amicus curiae, being faced with the

duty to enforce state laws and the burden
of defending such federal lawsuits, has
an interest in the resolution of these
issues of federal review and substantive
obscenity law questions. This case will
be the most important obscenity case
since Miller, and could be the most
significant statutory review case ever.

Your amicus curiae hereby offers a

summary of existing case law and
proposals for future guidance in the

resolutions of these controversies.

Il.

IIl.

SUMMARY OF ARGUMENT

Federal Courts Lack Jurisdiction To
Review State Laws Unless They Meet
The Watson v. Buck Test Of Total
Invalidity Incapable Of Narrowing
Construction, Either Facially Or As
Applied.

Federal Courts Should Abstain From
Exercising Jurisdiction Over
Declaratory Or Injunction Claims
Unless It Is First Pleaded And
Proved That State Procedures Are
Inadequate To Provide Due Process Or
That There Is Bad Faith Or
Harassment.

Even Where Declaratory Relief Is
Appropriate, Federal Courts Must
Still Consider Injunctive Claims
Separately And An Injunction Should
Issue Only Where There Is Evidence

IV.

That The Federal Declaratory Order
Will Be Ignored In Bad Faith.

The Concept Of Prurient Appeal Is
Not Limited To Appeal To A "Shameful
And Morbid" Sexual Interest And
Properly Includes The Commercial
Appeal To Erotic, Lustful, And
Otherwise Attractive, As Well As
Repulsive, Sexual Interests.

The Penalty Provisions Of The
Washington Statute Are Not
Unreasonable On Their Face And Can

Be Applied Constitutionally.

LAW AND ARGUMENT

Proposition of Law Number IL:

Federal Courts Lack Juris-
diction fo Review State Laws
Unless They Meet The Watson v.
Buck Test otal Invalidity
Incapable Of Narrowing Con-
Struction, bither Facially Or
As Applied.

In Watson v. Buck, 313 U.S. 387, at

401-02 (1941), the Court refused federal
review of Florida statutes because there
were no "exceptional circumstances", no
"great and immediate" danger of
irreparable loss, and the "Florida
Supreme Court, which under our dual
system of government has the last word on
the construction and meaning of statutes
of that state, has never yet passed upon
the statutes before us. It is highly
desirable that it should have an
opportunity to do so." The Court's
reasoning for deferring to state courts

is more applicable and needed now than it

-9-

was in years past: ‘Passing upon the
possible significance of the manifold
provisions of a broad statute in advance
of efforts to apply the separate
provisions is analogous to rendering an
advisory opinion upon a statute or a
declaratory judgment upon a hypothetical
case."" Id., at 402.

The Court then announced, at, 402, an
exception to this rule which, amicus
submits, should be the primary threshold
Guestion in determining federal
jurisdiction to consider declaratory
claims:

It is of course conceivable

. that a statute might be

flagrantly and patently

violative of express

constitutional prohibitions in

every clause, sentence and

paragraph, and in whatever

manner and against whomever an

effort might be made to apply

it.

The Ninth Circuit below, in J-R
Distributors v. Eikenberry, 725 F.2d 482,

at 487, concluded that facial chal’enges
to state statutes need not involve
“substantial” overbreadth "in the area of
first amendment rights", citing its
decision in Stroianoff v. Montana, 695

F.2d 1214, 1218 (9th Cir. 1983), and

thereby distinguishing Broadrick v.

Oklahoma, 413 U.S. 601 (1973). The Ninth

Circuit, at 487, also distinguishes
Village of Hoffman Estates v. Flipside,
455 U.S. 489, 494 (1982), by concluding

that such overbreadth rules only apply to
conduct and not “pure speech".

Amicus submits that obscenity
statues are not "pure speech"
regulations, as are political or
religious dialog or verbal expression

cases. As held in People v. Souter, 178

Cal.Rptr. 111 (Ct. App. Cal. 1981),
\paying actors and actresses to engage in
explicit sex acts before a camera in

order to produce pornography is a

hte

violation of prostitution and pimping
statutes. The distribution of such
hard-core pornography is therefore
exploiting the work of prostitutes, and
is at least a mixture of conduct and
speech. Modern hard-core pornography
should not be elevated to the protected

class which political, racial, and

religious expression deserves. In the
obscenity law area, the rule of
substantial overbreadth should apply, as

stated in Watson v. Buck, supra, and as

this Court stated in Hoffman Estates, 455

U.S., at 494-95. This Court then stated,
in Footnote 5, that:

5. A "facial" challenge,
in <his context, means a claim
that the law is “invalid in
toto--and therefore incapable
of any valid application."

The primary threshold question for
any court before whom a lawsuit has been ;
filed involves the inherent jurisdiction

to determine jurisdiction. In this

-12-

regard, whether the state statute being
attacked is new or existing, the federal
court should first determine whether it
meets the test of Watson v. Buck, 313

U.S., at 402 (1941).

A review of the challenged statute
by this rule, to determine whether it is
totally unconstitutional under any
circumstances or at least incapable of
constitutional application to the
complaining parties or under the
circumstances alleged, would involve the
federal courts only in those situations
where a state law is so vague or
overbroad that it has no meaning
whatsoever or encompasses clearly
protected conducted or speech. If the
statute under consideration is not so
totally repugnant to constitutional
guarantees that it could not be narrowly
construed by the state courts, then the

federal courts should leave to the state,

ekte

courts the determination of the validity
and application of such statutes. In
this instance the federal courts could
best be guided by the abstention
principles of Railroad Commission v.

Pullman, 312 U.S. 496 (1941), if it is a

new statute, and by the principles of
Dombrowski v. Pfister, 380 U.S. 479
(1965), and Steffel v. Thompson, 415 U.S.

452 (1974), if it is an existing statute.
If the federal court is not faced with
such a totally invalid statute, it should
determine that it has no jurisdiction to
review such a state law and immediately
dismiss the case for failure to state a
claim under either the Declaratory
Judgment Act or the Civil Rights Act.
Fenner v. Boykin, 271 U.S. 240, at 244

(1926). See also: Vicory v. Walton, 721
F.2d 1062, at 1065-66 (6th Cir. 1983),
cert. denied, _U.S. __—,_ 53 L.W. 3237,

No. 83-2111 (Oct. 1, 1984).

eSiic

In the obscenity case now before
this Court, the new Washington statute
could not be said to be “incapable” of a
narrowing construction, either as it
defined "prurient" or as it provided for
penalties. Obscenity laws have been
perhaps the most often construed and
interpreted of all statutes. The role of
this Court in defining the basic "test"
for both federal and state courts has
resulted in a response by the courts to
construe old statutes in light of the

latest pronouncements. See: Kingsley

Pictures v. Regents, 360 U.S. 684, at 688

(1959); Mishkin v. New York, 383 U.S.
502, at 507-08, 510-11 (1966); U.S. v. 37
Photographs, 402 U.S. 363 (1971); Miller

v. California, 413 U.S. 15, at 25 (1973);
Ward v. Illinois, 431 U.S. 767, at 772-73
(1977); and New York v. Ferber, U.S.
__, 73 L.Ed.2d 1113 (1982).

ofGe

Many sf te courts have a history and
willingness to interpret state laws to
conform with case law, and in these
states the federal courts cannot say that
narrowing constructions. are not possible

——or that state declaratory or criminal
actions cannot adequately protect

constitutional rights. See: State of

Washington v. J-R Distributors, 512 P.2d

1049 (Sup.Ct.Wash. 1973) (construing

obscenity statute); State of Arizona v.

Bartanen, 591 P.2d 546, at 550-52
(Sup.Ct.Ariz. 1979) (defining

"prurient"); State of Arizona v.

Book-Cellar, 679 P.2d 548 (Ct.App.Ariz.

1984) (construing and upholding obscenity

nuisance statute); State of Ohio v.

Burgun, 56 Ohio St.2d 354, 384 N.Ed.2d
255 (Sup.Ct.Ohio 1978) (construing
criminal obscenity statute), approved and
followed in Sovereign News v. Falke, 674
F.2d 484 (6th Cir. 1982), cert. denied,

ite

74 L.Ed.2d 120 (1982), and in Turoso v.

Cleveland Municipal Court, 531 F.Supp. °
829 (N.D. Ohio 1980), aff'd., 674 F.2d
486 (6th Cir. 1982), cert. denied, 74
L.Ed.2d 145 (1982); State of Ohio, ex

rel. Ewing v. "Without a Stitch", 37 Ohio
St.2d 92, 307 N.E.2d 911 (Sup.Ct. Ohio

1974) (construing obscenity nuisance

statute), affirmed sub nom Art Theatre

Guild v. Ewing, 421 U.S. 923 (1975) (by

dismissal f.w.o.s.f.q.); State of Idaho,

ex rel. Kidwell v. U.S. Marketing, 631

P.2d 622 (Sup.Ct. Idaho 1981) (upholding
obscenity nuisance statute and closure
remedy), jurisdiction noted, 454 U.S.
1140 (Jan. 11, 1982), appeal dismissed by
Appellant- U.S. Marketing over
State-Appellee's objection, 455 U.S. 1009
(March 10, 1982); Chateau X v. North
Carolina, 250 S.E.2d 603, remanded at 445
U.S. 947, reaffirmed at 275 S.E.2d 443

(Sup.Ct. N.C. 1981) (upholding obscenity

she

nuisance statute), approved and followed
in Fehlhaber v. North Carolina, 675 F.2d
1365 (4th Cir. 1982); People of Michigan

v. Neumayer, 275 N.W.2d 230 (Sup.Ct.

Mich. 1979) (construing criminal

obscenity statute); First Amendment

Foundation v. State of Florida, 364 So.2d

450 (Sup.Ct. Fla. 1978) (construing
criminal obscenity statute).

Therefore, the Ninth Circuit's
decision that the federal court has
jurisdiction simply because the plaintiff
chose that forum, and struck the entire
statute and is willing to enjoin all law
enforcement in the state because the
legislature included "lustful" as one of
the adjectives for prurient, is
unconscionable and unreasonable as an
intrusion into state powers and judicial
functions. Especially is this so since
the adjective "lustful" was given to

obscenity law by this Court in Roth v.

-18-

United States, 354 U.S. 476, at 487,

fn.20 (1957), and this Court has
specifically approved "erotic" and other
"attractive" descriptions of the concept

of prurience. See: Ginzburg v. United

States, 383 U.S. 463, at 470 (1966);

Mishkin v. New York, 383 U.S. 502, at
508-09 (1966); Miller v. California, 413
U.S. 15, at 18, fn.2 (1973); Hamling v.
United States, 418 U.S. 87, at 127-31

(1974); Pinkus v. United States, 436 U.S.
293, at 301-03 (1978). See also: Mutual
Film Corp. v. Industrial Com., 236 U.S.

231, at 242 (1915), cited in footnote 20

of Roth, supra at 487.

The Ninth Circuit not only should
not have concluded that the law was
totally invalid, but its ruling on
prurient was directly contrary to
historical authority on the concept of

prurience. Had it followed the Watson v.

Buck test, it would have had no choice

-19-

but to find a lack of federal

jurisdiction to review the Washington

statute. Amicus submits that therein
lies the error in the ruling under

review.

Proposition of Law Number II: ;

Federal Courts Should Abstain
From Exercising Jurisdiction
Over Declaratory Or Injunction
Claims Unless It Is First
Pleaded And Proved That State
Procedures Are snedcequste To
Provide Due Process Or That

There Is Bad Faith Or

Harassment.

Assuming that a federal court finds
that it is faced with a challenge against
a statute which meets the test of Watson

v. Buck, supra, the court's next

determination should be whether
declaratory relief is appropriate or
whether the federal court should abstain
from entertaining a declaratory action.
In this regard, the federal court should

look to the procedures for testing state

-20-

statutes which are available in the state
court system, including the availability
of a state decla.atory judgment actin as
well as the existence of prompt and valid
procedures for testing conduct under
these statutes in criminal or other civil
proceedings. Allen v. McCurry, 449 U.S.
90, at 100-01 (1980). If state

procedures are inadequate to provide due
process to the federal plaintiffs, the
federal court will then find itself in a
position of being the only forum capable
of determining the validity of the
statute and issuing a declaratory
judgment thereon. If the state
procedures, civilly or criminally, are
adequate and available to the federal
plaintiff, the federal court should then
look to see whether there is evidence of
bad faith or harassment on the part of
the prosecution or law enforcement

officers. If it is evident that the

-21-

federal plaintiffs will not be dealt with
in good faith by the local agencies, as

in Dombrowski, supra, then the court is

again faced with a situation where it
must step in to protect the federal
plaintiff. If the federal court does not
find that state procedures are
inadequate, or that if adequate would be
enforced in bad faith, the court should
abstain and dismiss the action. This
would be consistent with this court's

discussion in Younger v. Harris, 401 U.S.

37, at 46-49 (1971), stating that facing
a good faith prosecution or the existence
sf a chilling effect on First Amendment
rights, even under an invalid law, is not
sufficient reason for the application of
the substantial power of federal
jurisdiction.

Although the Court in Steffel,

supra, rejected the stricter Younger

rules for declaratory actions where no

=22-

state case was pending, and held that
irreparable harm need not be shown, the

reasoning of Steffel is no longer

applicable to modern federal-state
litigation and this Court should return

to the rule of Railroad Com. v. Pullman,

supra, especially where a new state law
is challenged.

Where state criminal or civil ~—
proceedings are pending, or commenced
before proceedings of substance are
reached in the federal court, there are
strict burdens which must be met before a
federal court can consider either

injunctive or declaratory relief in

reviewing a state statute. Younger v.

Harris, 401 U.S. 37, at 46 (1971),
\
Samuels v. Mackell, 401 U.S. 66, at 73

(1971), Hicks v. Miranda, 422 U.S. 332,

at 349 (1975). Where there is no state
criminal or civil action pending, but is

threatened or at least likely, federal

=23<

intervention might be permissible to
consider declaratory relief, but the
injunctive relief would still require
satisfaction of equitable principles,
extraordinary circumstances, and
deference to federalism. Steffel v.

Thompson, 415 U.S. 452, at 468-69, 475

(1974), Zwickler v. Koota, 389 U.S. 241,

at 254 (1967), Douglas v. City of

Jeannette, 319 U.S. 157, at 162-64

(1943). Although Steffel was decided at

a time when the Court, at 462, stated
that considerations of federalism have
little vitality when no state proceeding
is pending, such a situation no longer

exists. Steffel discusses, at 465-68,

the "storm of controversy" between
federal and state jurisdiction which led
to the establishment of the three judge
district court system and the enactment
of the Declaratory Judgment Act. In

1976, however, the three judge court

=2he

provision was repealed and a single
federal judge was again empowered to
enjoin the enforcement of state law.

This development was obviously undertaken
because of the strong statements in favor
of abstention and respect for the state
court system which had developed in the
long line of abstention cases where this
Court has stated that federal courts
should not be the primary arbitors of the
language or application of state laws.

The continuing vitality of Younger v.

Harris, supra, Huffman v. Pursue, 420

U.S. 592 (1975), and Railroad Commission

v. Pullman, supra, should have

safeguarded the state's rights to enact
and enforce statutes and ordinances.

Even though this Court has reaffirmed the
principles of federalism and abstention
in such recent cases as Moore v. Sims,
422 U.S. 415 (1979), Allen v. McCurry,
449 U.S. 90 (1980), and Parratt v.

-25-

Taylor, 451 U.S. 527 (1981), and has
attempted to restrict and clarify the
application of the Civil Rights Statute
under Section 1983, these principles are
now widely ignored by the lower federal
courts. The U.S. Court of Appeals for
the Ninth Circuit, in the opinion now

under consideration, J-R Distributors,

supra at 486-88, now holds that facial
attacks on any state statute involving
First Amendment expression may be brought
in federal court even though the
overbreadth is not substantial, and that
abstention is the exception and is not
preferred.

It is now common to see federal
courts accept jurisdiction to review
state statutes, especially newly enacted
ones, before they may be enforced in
state courts. The federal courts are not
limiting themselves to entertaining

declaratory judgment claims, but are

-26-

regularly issuing injunctions against the
enforcement of new or existing statutes
pending the federal litigation. This
situation causes delay of several years
before such state laws are even available
for interpretation in the state courts.

See for example Goldstein v. Allain, 568

F.Supp. 1377 (N.D. Miss. 1983), Community

Television of Utah v. Roy City, 555

F.Supp. 1164 (D. Utah 1982), Red Bluff

Drive-In v. Vance, 648 F.2d 1079 (5th

Cir. 1981), Penthouse v. McAuliffe, 610

F.2d 1353 (5th Cir. 1980), Sovereign News

Co. v. Falke, 448 F.Supp. 306 (N.D. Ohio
E.D. 1977), rew'd., 674 F.2d 484 (6th
Cir. 1982).

This Court has contributed to the
perception that abstention is not

required, in sucn cases as: Spokane

Arcades v. Brockett, 631 F.2d 135 (9th

Cir. 1980), affirmed summarily at 454
U.S. 1022 (1981) and Universal Amusement

-27-

v. Vance, 587 F.2d 159 (5th Cir. 1978),

affirmed on the merits at 455 U.S. 308
(1980). Proper deference can only be
shown to the state court systems if new
criteria are announced to guide federal
courts in (1) determing whether
jurisdiction lies, (2) whether the court
should exercise such jurisdiction over
the declaratory judgment claims, and (3)
over the injunction claims and attorneys

fees request.

Proposition of Law Number III:

Even Where Declaratory Relief
Is Appropriate, Federal Courts
Must Tae Consider injunctive
Claims Separately And
Injunction Should Issue Only
Where There 1s Evidence That
The Federal Declaratory Order
Will Be Llgnored in Bad Faith.

Although the federal courts, in

determining whether to entertain the
lawsuit challenging a state statute,
should deal with the threshold questions

of jurisdiction as invoked by the

\

-28-

presence of a totally invalid statute as
well as the lack of an adequate remedy in
state court, the federal courts should
also refuse to entertain injunction
claims under 42 U.S.C., Section 1983,
until after the declaratory relief has
been considered and determined. As a
general rule, the federal courts should
at most issue a declaratory judgment
where the circumstances require, and only
issue an injunction if there has been a
deprivation of civil rights shown by past
bad faith conduct or a need to issue an
injunctive order to protect the integrity
of the federal declaratory order. If the
federal court is not shown that the
declaratory judgment will be ignored in
bad faith by state officials, no
injunction should be considered.
Furthermore, an award of attorney fees
should only be assessed against state

officials where the challenge to the

o29-

statute is shown to be required and
justifies an injunction under the civil
rights act for an actual deprivation of
the federal plaintiff's civil rights.
In Fenner v. Boykin, 271 U.S. 240,
at 243-44 (1926), the Court held that,

even in the absence of a pending state
prosecution, a federal complaint must be
dismissed and injunctive relief denied
against possible or even threatened
future prosecutions unless there are
"extraordinary circumstances where the
danger of irreparable loss is both great

and immediate". In Huffman v. Pursue,

420 U.S., at 602-02, the Court explained
that this rule of Fenner was expanded in

Younger v. Harris, 401 U.S., at 46, and

pointed out that extraordinary

circumstances would be found where facts
are pleaded and proved to show the type
of bad faith and harassment by the state

which was present in Dombrowski v.

-30-

Pfister, 380 U.S. 479 (1965). Huffman,

at 602, also noted that federal
intervention might also be justified if

the statute meets the Watson v. Buck test

of being "flagrantly and patently
violative of express constitutional
prohibitions in every clause, sentence
and paragraph, and in whatever manner and
against whomever an effort might be made
to apply it". However, the Court
concluded that "we unequivocally held
that facial invalidity of a statute is
not itself an exceptional circumstance
justifying federal interference with
state criminal proceedings". These rules
should apply whether prosecutions are

pending, as in Younger, or merely

threatened, as in Fenner.

Fenner, supra at 244, stated that an

"intolerable condition would arise if,
whenever about to be charged with

violating a state law, one were permitted

-3]-

freely to contest its validity by an
original proceeding in some Federal
court". Parratt v. Taylor, 451 U.S. 527,

542-44 (1981), held that in order to

state a claim under Section 1983, a
plaintiff must show that available state
procedures are not even adequate to
compensate a suffered deprivation. See
also: Rutledge v. Arizona Board of
Regents, 660 F.2d 1345, 1352 (9th Cir.
1981). In Vicory v. Walton, 721 F.2d
1062, at 1065-66 (6th Cir. 1983), cert.
denied, U.S. __, 53 L.W. 3237, No.

83-2111 (Oct. 1, 1984), the Court stated
that:

Section 1983 was not meant
to supply an exclusive federal
remedy for every oP wrong
committed by state officials.
Rather, the statute is a remedy
for only those wrongs which
offend the Constitution's
prohibition against property
deprivations without procedural
due process. Thus we hold that
in section 1983 damage suits
claiming the deprivation of
property interest without

=32-

procedural due process of law,
the plaintiff must plead and
prove that state remedies for
redressing the wrong are
inadequate. In a procedural
due process case under section
1983, the plaintiff must attack
the state's corrective
procedure as well as the
substantive wrong. In the
instant case the plaintiff has
neither alleged nor shown any
significant deficiency in the
state's remedies.

In Allen v. McCurry, 449 U.S. 90, at

100-01 (1980), this Court set out three
circumstances for federal remedies under
Section 1983; (1) state law is facially
and totally unconstitutional, (2) state
procedural law is inadequate to allow
full litigation of a constitutional
claim, and (3) where the procedural law
is adequate in theory but inadequate in
practice. "In short, the federal courts
could step in where the state courts were
unable or unwilling to protect federal

rights."

~ =

The policy expressed in Steffel also

recognized that the intrusion of
injunctions should be imposed only to
prevent manifest injustice and in
necessary aid of the federal court's
jurisdiction. A federal court should not
enaesteee a prayer for injunction unless
bad faith is evident, especially where
declaratory relief would suffice to
protect the rights of the plaintiff.

Only where the court is shown that the
State would disregard the declaratory
judgment or retaliate against the
plaintiff should an injunction issue. As
stated in McCarthy v. Briscoe, 553 F.2d
1005, at 1007 (5th Cir. 1977):

This Court presumes that Texas
will not defy the holding of
unconstitutionality in the
absence of an injunction.

~"e

Proposition of Law Number IV:

The Concept Of Prurient Appeal
Ts Not Limited To Appeal To A
"Shameful And Morbid” Sexual
Interest And Properly Includes
The Commercial Appeal To
Erotic, Lustrul, And Otherwise
Attractive, As Well As
Repulsive, Sexual interests.

The new Washington statute defined
prurient as “that which incites
lasciviousness or lust". This is a
Wholly proper definition of the concept
of prurience and is consistent with this
Court's use of the term and the great
weight of authority. The Ninth Circuit
was in error in concluding, in J-R

Distributors, 725 F.2d, at 491, that the

case law developed since 1957 mandates

that only "shameful and morbid" can be

used to describe a prurient interest.

The Court of Appeals states, at 491:

We agree with these

decisions and reaffirm that,
under the first prong of the
Miller test, a "prurient

interest" is "a shameful or
morbid interest in nudity, sex

-35-

or excretion." By including
"lust" in its definition of
"prurient," the Washington
state legislature has clearly
exceeded the established--
though sometimes blurred--
boundries drawn by the Supreme
Court to distinguish protected
first amendment expression from
that which is obscene.

The Court based this conclusion on a
restrictive reading of footnote 20 of

Roth v. United States, 354 U.S. 476, at

487 (1957) and of Red Bluff Drive-In v.

Vance, 648 F.2d 1020, 1026 (5th Cir.
1981); U.S. v. “Language of Love", 432
F.2d 705, 711 (2d Cir. 1970), cert.

denied, 403 U.S. 925 (1971); and
Goldstein v. Allain, 568 F.Supp. 1377

(N.D. Miss. 1983). The Court of Appeals
also found that this Court, in referring
to the Medel Penal Code definition of
“obscenity” in footnote 2 of Miller,
supra at 18, "has replaced the
definitions offered in Roth" and was

imposing "shameful or morbid" as the only

-36-

adjectival descriptions of the term
"prurient". This is an erroneous and
unwarranted conclusion and is directly
contrary to the language of this Court's
opinions and the historical development
of the concept of "prurience". This
Court has often rejected limiting
prurience to only "shameful and morbid"
interests. Even the Model Penal Code did ’
not consider the term so limited. The
term as defined in the Washington (and
Arizona and Mississippi) statute cannot
be said to be unconstitutionally and
substantially overbroad and this Court
should not foreclose the State's right to
develop this concept of prurience within
historical pareneters. Indeed, footnote
2 of Miller refers to Roth, at 487, as
providing the source of the "specific
judicial meaning" of obscene material.
The Model Penal Code itself recognized

the erotic quality of obscenity, and its

aSPe

Commentaries explain this in greater
depth. Indeed, Miller's footnote 2 says
the word pornography "now means... a
portrayal of erotic behavior designed to
cause sexual excitement".

Confusing the offensiveness of
pornography with prurience ignores the
reason that Miller provided a three part
test. Prurience was retained as a way to
require that sexual conduct be exploited
for its commercial value rather than its
artistic or scientific uses. This is
recognized in the cases dealing with
"pandering". It is the second prong of
Miller which safeguards mere nudity and
non-offensive material from prosecution,
not the first. Even though attractive
and erotic or lustful material may be
"prurient", the work must also present
hard-core sexual conduct in a "patently
offensive way". This prong prevents the

type of suppression feared by the Court

-38-

of Appeals on pages 490-92 of the opinion
below.

It was in footnote 20 of Roth v.

U.S., supra at 487, that the Court first

defined in its own words that appeal to

prurient interest meant "having a

tendency to excite lustful thoughts”.

[Emphasis added.] This remains to this
day the only direct and isolated
definition ever given by this Court. All
other references to prurient interest and
what constitutes an illegal appeal to
prurience are contextual examples.
Together these references by this Court
to the concept of prurience serve to
guide the courts and juries in finding
obscenity, and have never mandated a
singular route to such determination.

In Mishkin v. New York, 383 U.S.

502, at 508 (1966), Hamling v. United ~»
States, 418 U.S. 87, at 127-29 (1974),
and Pinkus v. United States, 436 U.S.

-39-

293, at 301-03 (1978), this Court
affirmed that when materials are intended
to stimulate a specific deviant group or
a specific deviant sexual interest, then
the jury can decide whether the average
person would find the appeal of the
matter to be to the "general" prurient
interest or the deviant prurient
interest.

In Mutual Film Corp. v. Industrial
Com., 236 U.S. 230, at 242 (1915), cited

with approval in footnote 20 of Roth v.

U.S., supra, the general observation was

made about the attraction of pornography
to normal persons:

They take their attraction from
the general interest, eager and
wholesome it may be, in their
subjects, but a prurient
interest may be excited and
appealed to.

This Court: later characterized this

trait in Ginzburg v. United States, 383

U.S. 463, at 471 (1966), as "the

-40-

widespread weakness for titillation by
pornography".

This Court has used various
descriptive words to illustrate what
prurience may mean. Material can be
prurient when it either attracts or

repulses, as stated in Mishkin at 508.

Attractively erotic material, even to the
average person, has been held obscene.

Ginzburg, supra; Hamling, supra. See

also Penthouse v. McAuliffe, 610 F.2d

1353 (5th Cir. 1980), and Miller v.

United States, 431 F.2d 655, 658 (9th

Cir. 1970). Bizarre material, repulsive
to the average person, has also been

found obscene. Mishkin, supra; Ward v.

Illinois, supra.

This Court used the words "lewd" and
"lascivious" in Roth, footnote 20, and
also referred to the Model Penal Code's
use of “shameful or morbid". In another

case which sought to separate protected

-41-

sexual expression for political purposes
from the pornographic prurience of
obscenity, Cohen v. California, 403 U.S.
15, at 20 (1971), said that:

{[T]o prohibit obscene

expression, such expression

must be, in some significant

way, erotic.

Prurient appeal is properly a
synthesis of these adjectives to describe
an interest in sex for its own sake, for
commercial gain. See: Schauer, The Law

of Obscenity, at 96-102 (D.C.: BNA,

1976); Model Penal Code, Commentaries,
Part II, Article 251.4, at 488-94
(A.L.I., 1980).

It is important to note that the Bar
Association's Model Penal Code also
recognized the "erotic" nature of
prurient appeal and did not preclude this
recognition in using the adjectives

"shameful and morbid" in its Draft. As

~42-

stated in the Model Penal Code
Commentaries, supra at 491-92:

Prurient interest involves an
exacerbated, morbid, or
perverted interest growing out
of the conflict between the
universal sexual drive of the
individual and the equally
universal social controls of
sexual activity. The Model
Code provision rests on the
proposition that society may
legitimately seek to deter the
deliberate stimulation and
commercial exploitation of
emotional tensions arising from
this conflict.

x ~ *

The Model Code definition
follows the great weight of
prior authority in restricting
obscenity to the erotic. This
limitation is imposed by
requiring that the prurient
interest appealed to concern
sex, nudity, or excretion.
[Emphasis added. |!

One of the best examples of this
mixture of "tendency to arouse lustful
thoughts" and the appeal to a "shameful
or morbid interest" is set out in State

v. Bartanen, 591 P.2d 546, at 550-52

(Supreme Court, Arizona, In Banc, 1979).

-43-

The trial court charged the jury: "The
term appeal to the prurient interest
means to excite lustful thoughts, a
shameful or morbid interest in sex or
nudity, arouse sexual desires or sexually
impure thoughts, inclined to or disposed
to lewdness, having lustful ideas or
desires."" Id. at 550. The Arizona
Supreme Court upheld and approved this
definition as a synthesis of the "appeal"
and the "tendency" functions of
prurience. As stated by the Court, at
552:
The trial court herein
used both the so-called
"appeal" approach tc obscenity,
that is, does the material
appeal to a morbid, shameful,
disgusting, unhealthy,
. unwholesome, degrading interest
in sex, as well as a “tendency”
of the material to excite
"lustful ideas or desires."

We believe the trial court
correctly instructed the jury.

Such a concept has long been the law

of Ohio, and often employed by the trial

~44-

courts. See: Youngstown v. DeLoreto, 19

Ohio.App.2d 267 (Ct.App.Ohio 1969).

However, as pointed out in Mishkin,

supra at 508; Hamling, supra at 128-30;

and Pinkus, supra at 301-03, it is

proper, when the evidence calls for it,
to allow the jury to measure the material
"by its appeal to the prurient interest
not only of the average person but also
of a clearly defined deviant group”.

Hamling, supra at 128.

In Hamling, supra at 128, this Court

noted that: "Petitioners appear to argue
that if some of the material appeals to
the prurient interest of sexual deviants
while other parts appeal to the prurient
interest of the average person, a general
finding that the material appeals to a
prurient interest in sex is somehow

precluded."" The Court relied on Mishkin

in rejecting this contention, and stated

in Hamling, supra at 129:

-45-

The District Court's
instruction was consistent with
this statement in Mishkin. The
jury was instructed that it
must find that the materials as
a whole appealed generally to a
prurient interest in sex. In
making that determination, the
jury was properly instructed
that it should measure the
prurient appeal of the
materials as to all groups.

It is important to remember that
this Court did not define obscenity so
that the jury was to decide only whether
the matter appealed to the prurient
interest of the average person applying
contemporary community standards, but
rather that the jury determine whether
the average person, if the average person
applied those standards, would find the
appeal to be to a prurient interest. The
question is whether the appeal of the
material would be to a generally erotic
or shameful interest in sex, whether that
interest was that of an average person or

that of a deviant class. See: State v.

-46-

Tidvman, 568 P.2d 666, 674 (Ct. App. Or.
1977).

This subtle distinction is not a
harmless one and is important. If a
court were to charge a jury that they
must find the matter obscene, if at all,
only when it appeals or excites a
shameful or morbid interest in an average
person or in the jury, then confusion
would result and the whole purpose of
obscenity law would be thwarted.

The legal error in this reasoning is
clearly set out in Mishkin v. New York,

383 U.S. 502, at 508 (1966), whMte this

Court explained:

Indeed, appellant's sole
contention regarding the nature
of the material is that some of
the books involved in this
prosecution, those depicting
various deviant sexual
practices, such as
flagellation, fetishism, and
lesbianism, do not satisfy the
prurient-appeal requirement
because they do not appeal to a
prurient interest of the
‘average person" in sex, that

o47-

"instead of stimulating the

erotic, they disgust and

sicken." We reject this

argument as being founded on an

unrealistic interpretation of

the prurient-appeal

requirement.

Any discussion of the meaning of
prurient appeal must also consider the
correlative concept of pandering.
Pandering is a term of art in obscenity
law which relates to exploiting the
prurient nature of material for
commercial purposes rather than
emphasizing some legitimate interest in
sex, such as scientific, medical, or
education interests in sexual subject
matter. This has application in the
"Miller Test" in determining the "serious
value" of the material, but requires the
finding of a commercial appeal to the
prurient qualities of the material. This
Court's development of the pandering

concept illustrates what is meant by the

all important ingredient of prurience,

-48-

since that is the heart of pandering and
the true concept of obscenity regulation.
Motivation is very much a part of

obscenity law, as evidenced by this

Court's holding in Ginzburg v. United

States, supra, that sexual matter which

may not be obscene per se in other
contexts can be the subject of a
conviction if it was pandered for
prurient interest exploitation. The
development of the pandering law also
bears on how “prurient” is to be defined
and used, and illustrates how an appeal
to lust and erotic curiosity form an
integral part of prurience, rather than
solely a limitation to the "shameful and
morbid".

The development of this concept
continued in Splawn v. California, 43i

U.S. 595, at 598 (1977):

There is no doubt that as
a matter of First Amendment
obscenity law, evidence of

~49-

pandering to prurient interests
in the creation, promotion, or
dissemination of material is
relevant in determining whether
the material is obscene.

This is a short statement of the

principles applied in Ginzburg v. U.S.,

supra, 383 U.S., at 466, where the Court
stated that it was viewing the material

"against a background of commercial

exploitation of erotica solely for the

sake of their prurient appeal".

{Emphasis added.] At 467-68, Ginzburg

outlined the advertising and promotion
evidence and characterized the business
involved as:

[T]he sordid business of
pandering - "the business of
purveying textual or graphic
matter openly advertised to
appeal to the erotic interest
of their customers".

Pinkus v. U.S., supra, 436 U.S., at

303-04, made clear that no extensive
evidence need be adduced before an

instruction is warranted to assist the

-50-

Pt a ott Ne PON ee a

jury in determining whether the material
was distributed for its prurient appeal
or for its serious value. "In essence,
the Court has considered motivation
relevant to the ultimate evaluation if
the prosecution offers evidence of
motivation.” Id., at 303.

In a practical application of this
principle, the Supreme Court of Indiana
upheld a pandering instruction, taken

from Splawn v. California, 431 U.S., at

597-98, upon the evidence that the
materials were sold from an "adult"
bookstore, clearly marked as such, and
dealing openly with sexual devices,
books, and films of a hard-core

pornographic nature. Sedelbauer v.

State, 428 N.E.2d 206, at 207-08 (Supreme

Court of Indiana, 1981), cert. denied,

455 U.S. 1035 (March 22, 1982).
The jury charge approved by the

Court in Splawn, supra at 597-98,

efi

indicates the range of adjectives
properly used to describe prurience. The
trial court charged the jury:

If you conclude that the
purveyor's sole emphasis is in
the sexually provocative aspect
of the publication, that fact
can justify the conclusion that
the matter is utterly without
redeeming social importance.
[Emphasis added. ]

This Court in Splawn, at 598, also

refers to and quotes from Ginzburg, supra

at 470, where the Court said:

The deliberate representation
of petitioners’ publications as
erotically arousing, for
example, stimulated the reader
to accept them as prurient; he
looks for titillation, not for
saving intellectual content.
[Emphasis added. ]

This Court recognized the greater
latitude state courts have for forming

instructions and held that Ginzburg and

Hamling "clearly show" that the charge

violated no First or Fourteenth Amendment

rights. Splawn, supra at 599.

-52-

Many other courts have also
discussed the prurience concept and its.
definitional parameters, and have not
limited them in a constitutional sense to
the "shameful and morbid" restrictions

adopted by J-R Distributors, supra, and

Goldstein v. Allain, supra. In fact one

New York court noted that "shameful and
morbid" was deleted from the New York
statute in 1974 and this was in keeping
with a shift away from a restrictive
reading of the Model Penal Code by the
Supreme Court. The court reasoned that
the Roth reference was to the "case law
developed to date", up to 1957, and that
the Court's own definition of "tendency

to excite lustful thoughts" was an

indication of a new direction. People v.

Ciampa, 394 N.Y.S.2d 727, 732 (Sup. Ct.,
App. Div., 1977).
Following is a list of cases dealing

with the various adjectives describing

-53-

"prurient". The only common thread is
the realization that prurience is not a
precise nor limited concept and varies
widely. These cases serve to prove that
the Washington, Arizona, Mississippi, and
other broader definitions of "prurient"
accept the parameters of the terms as
used by this Court.

Federal cases: Flying Eagle

Publications v. United States, 273 F.2d
799, 803 (lst Cir. 1960); U.S. v.
Darnell, 316 F.2d 813, 816 (2d Cir.
1963); U.S. v. Keller, 259 F.2d 54, 58

(3rd Cir. 1958); U.S. v. Central Magazine
Sales, 381 F.2d 821, 823 (4th Cir. 1976);

Interstate Circuit v. City of Dallas, 366
F.2d 590, 596 (5th Cir. 1966); U.S. v.

Battista, 646 F.2d 237, 245 (6th Cir.

1981); Luros v. U.S., 389 F.2d 200, 203

(8th Cir. 1968); Eastman Kodak v.

Hendricks, 262 F.2d 392, 397-98 (9th Cir.

1958); Childs v. State of Oregon, 431

-54-

F.2d 272, 275, 276 (9th Cir. 1970); U.S.
v. Pinkus, 551 F.2d 1155, 1159-60 (9th

Cir. 1977); U.S. v. One Reel of Film, 360

F.Supp. 1067, 1071-72 (D. Mass. 1973);
and U.S. v. 31 Photographs, 156 F.Supp
350 (S.D.N.Y. 1957). See also: Besig v.
U.S., 208 F.2d 142, at 145-46 (9th Cir.

1953) (not contradictory to say obscenity
"repels" and "seduces").
State cases: State v. LeWitt, 222

A.2d 579, 582 (Ct. App. Conn. 1966);

State v. Anonymous, 377 A.2d 1342, 1343

(Super. Ct. Conn. 1977); Spry v. State,

274 S.E.2d 2 (Ct. App. Ga. 1981) (statute
uses “shameful anc morbid", but
permissible for courts to add
instructions on "tendency to excite

lustful thoughts"); State v. Great

American Theatre, 608 P.2d 951, 952-59

(Sup. Ct. Kansas, 1980) (lengthy
discussion of history and breadth of

term); Little Store v. State, 453 A.2d

-55-

1215, 1216-17 (Ct. App. Md. 1983);
Commonwealth v. Mascolo, 375 N.E.2d 17,

26 (App. Ct. Mass, 1978); People v.

Ciampa, 394 N.Y.S.2d 727, 732 (Sup. Ct.,
App. Dept., 1977) ("tendency to excite
lasciviousness", and lasciviousness is

defined as “tending to arouse sexual

desire"); State v. Schwing, 328 N.E.2d

379, 382 (Sup. Ct. Ohio 1975) (prurient
must be erotic); State v. Tidyman, 568
P.2d 666, 674 (Ct. App. Or. 1977); State
v. Grabill, 579 P.2d 316, 320 (Ct. App.

Or. 1978); Commonwealth v. Rich, 437 A.2d
516, 519-20 (Com. Ct. Pa. 1981) (no need

to define prurient); State v. Barrett,

292 S.E.2d 590, 591-92 (Sup. Ct. S.C.

1982) (Prurient Interest “means a
shameful and morbid interest in nudity,
sex, or excretion and is reflective of an
arousal of lewd and lascivious desires

and thoughts."); State v. Little Art

Corp., 215 N.W.2d 853, 856 (Sup. Ct. Neb.

-56-

1974) (prurient includes "shameful and
morbid", "excite lustful thoughts",
"tending to excite lasciviousness", and
"presence or arousal of sexuai desire");

and Andrews v. State, 652 S.W.2d 370,

375-77 (Texas Ct. Cr. App. 1983).

Proposition of Law number V:

The Penalty Provisions Of The
Washington Statute Are Not
Unreasonable On Their Face And
Can Be Applied
Constitutionally.

The Ninth Circuit opinion below, at
493-96, makes a wholly hypothetical
assumption that the civil fines for
maincaining a moral nuisance can be or
would be used unconstitutionally. The
statute is clear in directing the equity
court to fashion a remedy only against a
defendant who knowingly violated the law,

and to consider wilful conduct and

"profits made by the defendant

attributable to the moral nuisance”.

atin

[Emphasis added.] First, the statute
does not specifically state that
legitimate profits are to be attached.

It clearly states that the court shall
consider profits attributed to the
nuisance. If there is any vagueness
present here, which amicus submits there
is not in light of the broad powers given
equity and civil courts (such as in all
other civil tort and contempt cases),
then the state courts will deal with them
“in specific fact situations. These state
rulings will then be examined by
appellate and federal courts.

The function of any penalty is both
punishment and deterrence. As was
recognized by Judge Hardy of the District
Court of Arizona in the recent case of

Polykoff v. Collins (copy in Appendix),

substantial deterrence is entirely
proper. Judge Hardy upheld the criminal

fines of Arizona, which reach up to One

-58-

Million Dollars for corporations, because
there was no evidence that state judges
have, or would ever. exact unreasonable
fines in circumstances where it would be
unfair in relation to the offense. The
Arizona Supreme Court has provided the
state judiciary with guidelines for fines
by adopting portions of the ABA's

Standards for Criminal Justice Relating

to Sentencing Alternatives and

Procedures, Sections 2.7(b) and (c). In

re Collins, 108 Ariz. Rpts. 310, at
312-13, 497 P.2d 523 (1972). These

standards provide that a court "should
consider" financial resources as well as
deterrence.

These criteria allow a judge to levy
a fir: that will be sufficient to deter
future criminal activity, but will not
unfairly destroy a defendant financially.
There is no reason to assume that

Washington's judiciary cannot be trusted

-59-

to follow these or similarly fair
guidelines.

The state courts can also conduct
fact finding sentencing hearings to
determine the proper penalty, as is done
in federal courts under 18 U.S.C. 3577.
See: U.S. v. Fatico, 441 F.Supp. 1285

(E.D.N.Y. 1977) ("Fatico I"), rev'd, 579
F.2d 707 (2d Cir. 1978), on remand, 458
F.Supp. 388 (E.D. N.Y. 1978 ("Fatico
II"), aff'd 603 F.2d 1053 (2d Cir. 1979).
See also: U.S. v. Ammirato, 670 F.2d 552
(Sth Cir. 1982).

Finally, since this Court was
deprived of its stated desire to review
the one-year closure remedy for an
obscene nuisance which was upheld by the
Idaho Supreme Court, it should not now
allow the Ninth Circuit opinion to stand
as authority that equitable remedies are
unlawful because they are not pre-set by

the legislature. See State, ex rel.

-60-

Kidwell v. U.S. Marketing, 631 P.2d 622,

upon which jurisdiction was noted but the
appeal was dismissed by U.S. Marketing
over the State's objection, 454 U.S.
1140, 455 U.S. 1009. If total closure
for one year can be a lawful punishment
for past misconduct, and forfeitures of
unlimited properties and funds can be
assessed in tax, contempt, and
racketeering cases, then the Washington
civil penalty scheme is also entitled to
case-by-case application and review in
its own courts. It should not be
presumed invalid, for this also assumes
"bad faith" on the part of the Washington
judiciary. This is a grave blow to
federalism which this Court should not

tolerate.

ile

CONCLUSION

The federal courts should never have
entertained the Complaint in this case.
The new statute could not be found so
totally invalid that it could not be
applied constitutionally, and its
interpretation and application properly
belonged in state court. This Court must
fashion new and clear guidelines to
prevent federal courts from continuing to
act as "“super-legislatures”.

The state legislatures and court
systems are entitled to an honest
deference. Unless a challenged law meets

the test of Watson v. Buck, supra, the

federal courts should be said to lack
subject matter jurisdiction to review
them, even when no pending case is begun
in state court. Indeed, Washington's
courts never got a chance to even review
the statutes. This was grossly unfair,

and unnecessary. The whole body of

-62-

\

obscenity and First Amendment cases
provide adequate guidelines for state
courts to follow and this Court should
let them do so.

Respectfully submitted,

Tom Collins

Maricopa County Attorney

Amicus Curiae

Sandor 0. Shuch
Deputy County Attorney

By: meagan

Attorney for Amicus Curiae

ia.

APPENDIX

Polykoff, et al. v. Collins,

___-*F.Supp. ___;»

No. CIV 84-1101

(D.Ariz. 1984)
(Filed July 11, 1984)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Louis Polykoff, IAS,
Inc., Charles Stuart,
Charles Clapp, Jess
Emery, David Fuehring,
Modernworld, Inc.,
Tony Dumbsky, Bill
Henderson, Elise White,
and Michael Kaplan,
Plaintiffs,
Vv.

Thomas E. Collins, in
his official capacity
as County Attorney
for Maricopa County,
Arizona,

No. CIV 84-1101

i
=
a

Defendant.

ue a a ee ee et ee

Invoking the Civil Rights Act, 42
U.S.C. §1983, plaintiffs Louis Polykoff,
IAS, Inc., Charles Stuart, Charles Clapp,
Jess Emery, David Fuehring, Modernworld,
Inc., Tony Dumbsky, Bill Henderson, Elise
White, and Michael Kaplan seek a
declaratory judgment and injunction
restraining defendant Thomas E. Collins,
in his official capacity as the Maricopa
County Attorney, from prosecuting them

for violations of section 13-3502 of the

A-l

Arizona Revised Statutes on the basis
that this statute abridge rights secured *
by the First and Fourteenth Amendments of
the United States Constitution. At the
close of the hearing for the plaintiffs'
application for preliminary injunction,
the parties stipulated that the Court's
findings of fact may be deemed conclusive
and that a trial on the merits would not
be necessary. The trial of this- action
on the merits, therefore, will be deemed
consolidated with the hearings for a
preliminary injunction pursuant to
Federal Rule of Civil Procedure 65(a)(2).
The foliowing memorandum opinion will
serve as the Court's findings of fact and
conclusions of law as required by Federal
Rule of Civil Procedure 52.

I. FACTS

The plaintiffs are corporations and
individuals who are either owners or

employees of stores that sell materials,

A-2

such as magazines or films, depicting
adults engaged in various sexual
activities. These stores are located in
Maricopa County. The defendant, as the
County Attorney, is charged with the duty
of prosecuting persons who violate the
state laws within Maricopa County.

Under the A.R.S. §13-3502, a person
who knowingly sells or offers to sell any
"obscene item" is guilty of a class 6
felony. An item is obscene as the term
is used in §13-3502 when:

(a) The average person,
applying contemporary state
standards would find that the time,
taken as a whole, appeals to the
prurient interest; and

(b) The item depicts or.
describes, in a patently offensive
way, sexual activity as that term is
described herein; and

(c) The item taken as a whole,
lacks serious, literary, artistic,
political or scientific valte.

A.R.S. §13-3501.2. Under Arizona's
-sentencing statutes, an enterprise and an

individual guilt’ of a class 6 felony may

A-3

be punished by imposition of fines of up
_, to $1,000,000 and $150,000 respectively.
A.R.S. §13-804, 13-801.

The defendant has successfully
prosecuted a number of adult book store
owners for violations of §13-1302. Fines
of up to $7,500, all pursuant to plea
agreements, have been imposed by the
Maricopa County Superior Court. The
defendant would prosecute the plaintiffs
if there were probable cause to believe
that they violated §13-3502.

Plaintiffs' complaint seeks, in
addition to injunctive relief, a judgment
declaring §13-3502 unconstitutional on
two grounds: first, the statute's use of
the term "prurient interest" to define
obscenity, as it has been interpreted by

the Arizona Supreme Court in State v.

Bartanen, 121 Ariz. 454, 591 P.2d 546,

cert. denied, 444 U.S. 884 (1979),

renders §13-3502 overbroad and, second,

A-4

the classification of violations of
§13-3502 as a class 6 felony, punishable
by fines of up to $1,000,000, is a prior
restraint upon the plaintiffs’ freedom of
speech.
II. JURISDICTION AND ABSTENTION

The jurisdiction of this Court is
based upon 28 U.S.C. §1343(a)(4), which
implements the Civil Rights Act.
Although the plaintiffs have not been
presecuted under §13-3554, the fact that
other owners of adult book stores have
been prosecuted is a sufficient threat of
prosecution to create the jurisdictional
predicate of an “actual controversy."
See Steffel v. Thompson, 415 U.S. 452,
459 (1974); cf. Ellis v. Dyson, 421 U.S.

426 (1975). Accordingly, the Court finds

that it has jurisdiction over this case.
The defendant first contends that

the Court should abstain from exercise of

its jurisdiction in favor of pending

A-5

state litigation concerning the same

— -= controversy. It is, however, a
"virtually unflagging obligation of the
federal courts to exercise the

jurisdiction given them." Colorado River

Water Conservation District v. United

States, 424 U.S. 800, 817 (1976).

Therefore, "[a]bstention from the
exercise of federal jurisdiction is the
exception, not the rule." Id. at 813.
There are three general categories of
abstention, none of which are applicable
to this case:

First, abstention is appropriate "in
cases presenting a federal constitutional
issue which might be mooted or presented
by a state co determination of

pertinent std’ aw. County of

Allegheny v. Frank Mashuda Co., 360 U.S.
185, 189 (1959). The defendant has not

suggested a construction §13-3502 that

would obviate the plaintiffs'

A-6

constitutional challenge. Section
13-3502, moreover, has been
authoritatively construed in its relevant
parts by the Arizona Supreme Court in

State v. Bartanen, 121 Ariz. 454.

Second, abstention is also
appropriate when the case presents
"difficult questions of state law bearing
on policy problems of substantial public
import whose importance transcends the
result in the case then at bar."

Colorado River Conserv. Dist., 424 U.S.

at 814. In this case, the Court is not
called upon to construe state law in view
of state policy. Rather, state law will
be considered in the context of a federal
constitutional challenge.

Finally, abstention is appropriate
when "federal jurisdiction has been
invoked for the purpose of restraining
state criminal proceedings, ... state

nuisance proceedings antecedent to a

A-7

criminal prosecution, which are directed
at obtaining closure of places exhibiting
obscene films, .. . or collection of
state taxes." Id. at 816 (citations
omitted). At this time there is no
pending state criminal prosecution or
state nuisance proceeding against the
plaintiffs.

In view of the above considerations,
defendant's bid for abstention appears to
be based merely upon a preference for
having the constitutionality of this
statute determined in state court. This
is not a legitimate reason for a federal
court to decline to exercise jurisdiction
and, therefore, the Court will deny the
plaintiffs' motion to dismiss. See,
e.g., J-R Distributors, Inc. v.

Eikenberry, 725 F.2d 482 (9th Cir. 1984);

Kit-Dal Cinema v. Village of Downers
Grove, Ill., 534 F.Supp. 81 (N.D.I11.
1981).

A-8

III. THE OVERBREADTH ISSUE

The plaintiffs first contend that
§13-3502 is facially overbroad insofar as
it outlaws expression protected by the
First Amendment and, therefore, must be
declared unconstitutional. Application
of the First Amendment overbreath
doctrine to bar all enforcement of a
statute is "strong medicine” and,
accordingly, has been applied "with
hesitation, and then only as a last

resort." New York v. Ferber, 458 U.S.

747, 769 (1982) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973)).

Three requirements must be met before
§13-3502 may be declared invalid on its
face. First, the statute must bring
within its sweep expression protected by
the First Amendment. J-R Distributors,
Inc. v. Eikenberry, 725 F.2d 482, 486
(9th Cir. 1984); Wurtz v. Disley, 719
F.2d 1438, 1440 (9th Cir. 1983). Second,

A-9

the statute must not be readily subject
to a narrowing construction by the state
courts which might cure the
constitutional deficiency. See Ferber,
458 U.S. at 769 n. 24; Erznoznik v. City
Jacksonville, 422 U.S. 205, 216 (1975).

Third, the deterrent effect on legitimate

expression must be both real and

substantial. Erznoznik, 422 U.S. at 216;

see also Ferber, 458 U.S. at 769-70. A

discussion of each of these requirements
of the overbreadth doctrine will not be
necessary, however, because the Court
finds that §13-3502 does not prohibit
legitimate expression.

Section 13-3502 defines obscenity by
adopting the tripartite test established
in Miller v. California, 413 U.S. 15, 24,
rehearing denied, 414 U.S. 881 (1973).

One definitional element of obscenity,
thus, is that the item "appeal to the

prurient interest.” A.R.S. §13-501.2(a).

A-10

The plaintiffs' first point of contention

with respect to §13-3502 is that the term
“prurient interest " as defined by the

Arizona Supreme Court in State v.

Bartanen, 121 Ariz. 454, is unduly broad.

In Bartanen, the Arizona Supreme

Court approved the following jury
| instruction concerning the meaning of
| “prurient interest:"

The term appeal to the prurient
interest means to excite lustful
thoughts, a shameful or morbid
interest in sex or nudity, arouse
sexual desires or sexually impure
thoughts, inclined to or disposed to
lewdness, having lustful ideas or
desires.

The term prurient interest in sex is
not the same as a candid, wholesome,
or healthy interest in sex.

Material does not appeal to the
prurient interest just because it
deals with sex or shows nude bodies.
Prurient interest is an unhealthy,
unwholesome, morbid, degrading or
shameful interest in sex, a leering
or longing interest. An appeal to
the prurient interest is an appeal
to sexual desire, not an appeal to
sexual interest. An interest in sex
is normal, but if the material
appeals to an abnormal interest in

} A-11

sex, it can appeal to the prurient
interest.

121 Ariz. at 458. Taking inventory of
the various definitions of "prurient
interest" developed by courts and legal
authorities, the Arizona Supreme Court
concluded that there were in use
essentially two definitional standards
for this term: the "appeal" approach, an
"appeal to a morbid, shameful,
disgusting, unhealth, unwholesome,
cegrading interest in sex," and the
"tendency" approach, a tendency "to
excite lustful ideas or desires." See
121 Ariz. at 459-60. Without expressing
a preference for one over the other, the
court determined that the instruction
was valid because it combined the two
standards:

The position taken by the trial

court that an "appeal to the

EF hoch the chjestive antune’ ef” che

y bo jec a

material and the human instincts
which it tends to arouse is correct

A-12

under the facts of this case. We
believe therefore that the
instructions, when read as a whole,
provided the jury with an adequate
and sufficient direction upon which
they could reach a proper verdict
based on the evidence before them.

121 Ariz. at 460. As a result of the

Bartanen decision, the instruction

approved therein has become a standard
jury instruction for obscenity
prosecutions in the Arizona courts.

The plaintiffs contend that the
Arizona Supreme Court's interpretation of
"prurient interest” must be viewed as
unconstitutional in light of the recent

Ninth Circuit opinion, J-R Distributors,

Inc. v. Eikenberry, 725 F.2d 482. In J-R

Distributors, the Ninth Circuit was

called upon to determine the validity of
the State of Washington's anti-obscenity
statute, which defined "prurient
interest" as “that which incites
lasciviousness or lust." 725 F.2d at

490. The court concluded that "prurient

A-13

interest" is "a shameful or morbid
interest in nudity, sex or excretion."
Id. at 491. The court also observed that
the contemporary meaning of "lust" was
little more than sexual desire, "a
healthy, wholesome, human reaction common
to millions of well-adjusted persons in
our society." Id. at 490. As a result,
lust could not properly be regarded as a
connotation of the "prurient interest"
and, because the Washington statute
defined “prurient interest" in the
alternative as lust, the statute was
overbroad and unconstitutional. Id. at
491.

This Court, of course, must follow
all decisions of the Ninth Circuit Court
of Appeals. This Court concludes,
however, that the Arizona Supreme Court's
discussion of the term "prurient
interest" is not inconsistent with that

of the Ninth Circuit in J-R Distributors.

A-14

The basis for the Ninth Circuit's ruling
was that, under the Washington statute,
materials found to incite lust might be
deemed to “appeal to prurient interest"
regardless of whether the materials also
appealed to "a shameful or morbid
interest in sex, nudity or excretion.’

Under this Court's reading of Bartanen

and the jury instruction approved
therein, "prurient interest" under
§13-3502 is defined as appealing to a
shameful, disgusting, unhealthy,
unwholesome, degrading, interest in sex
as well as tending to excite lustful
ideas or desires. Nowhere in the

Bartanen opinion are these standards

stated as alternatives, such that one
standard may serve as a basis for a
find§ing of "prurient interest"

independently of the other. The Bartanen

Court, perhaps, assumed that "lust" was

synonymous with "a shameful or morbid

A-15

interest" in sex. Regardless, the

Bartanen Court left no room for a jury to

base a finding of prurient interest upon
a finding of a tendency in the material
to cause lust under the contemporary
meaning of that term. The jury
instruction approved by the court as a
proper definition of "prurient interest"
repeatedly defines "prurient interest" as.
something abnormal, “an unhealthy,
unwholesome, morbid, degrading, or
shameful interest in sex." This is the
definition approved by the Ninth Circuit

in J-R Distributors and, therefore,

§13-3502 is not unconstitutionally
overbroad.
IV. THE PRIOR RESTRAINT ISSUE

Under §13-3502, the sale of obscene
items is a class 6 felony. In Arizona, a
class 6 felony committed by an individual
is punishable by imprisonment of a fine

of up to $150,000. A.R.S. §13-801 A.

A-16

The same felony committed by an
enterprise may be punished by a fine of
up to $1,000,000. A.R.S. § 13-804.1.
The plaintiffs second contention is that
the criminal fine provisions, as applied
to violations of §13-3502, operate as a
prior restraint upon their freedom of
speech and, therefore, §13-3502 must be
declared invalid.

The plaintiffs again rely on J-R

Distributors, where the Ninth Circuit

ruled that the civil penalty provision
contained within the Washington
anti-obscenity statute was
unconstitutional. The statute provided
that once it has been determined "that a
defendant has with knowledge maintained a
moral nuisance, the court shall impose a
civil penalty and judgment of an amount
as the court may determine to be
appropriate. In imposing the civil

penalty, the court shall consider the

A-17

willfulness of the defendant's conduct
and the profits made by the defendant
‘attributable to the moral nuisance." J-R

Distributors, 725 F.2d at 493. The court

observed that "the civil fine, which is
premised in part on profits ‘attributable
to the moral nuisance,’ may be based on

profits from the sale of protected

materials in a place that is a moral

nuisance solely because obscene materials
were also sold or exhibited there." Id.
at 494. The court held "that it is
impermissible, in an anti-obscenity
statute, to provide that the amount of a
fine shall be based, even in part, on the
proceeds from constitutionally protected
material." Id.

The Ninth Circuit's analysis
employed two lines of First Amendment
law. First, the civil penalty
provision,which was attached only to the

anti-obscenity statute, created

A-18

differential treatment for First
Amendment activity. The provisions,
thus, was presumptively unconstitutional.

J-R Distributors, 725 F.2d at 495-496;

see Minneapolis Star & Tribune Co. v.

Minnesota Commissioner of Revenue,
U.S. __, 103 S.Ct. 1365, 1375, 75
L.Ed.2d 295 (1983). Second, the civil

penalty provision was perilously similar
to padlocking statutes insofar as both
"have the effect of preventing the
dissemination of protected speech simply
because obscene speech originated from
the same location." Id. at 495. In Near

v. Minnesota, 283 U.S. 697 (1931), an

early decision establishing the doctrine
of prior restraint, the evil of prior
restraint was found in an abatement
statute that provided that upon violation
no further publications could be made--
regardless of whether the subsequent

publication was non-obscene or

A-19

non-libelous--unless approval was
received from a local court. In J-R

Distributors, the restraint was an

economic sanction, not a padlock on a
door. It was designed, nevertheless,
with the same purpose of abating a moral
nuisance. The civil penalty provision,
thus, was deemed a form of prior
restraint and therefore unconstitutional.
Id.

J-R Distributors does not require

that §13-3502 be declared

unconstitutional. First, unlike the
Washington statute, §13-3502 does not
establish differential treatment of first
amendment activity with respect to the
imposition of fines. Enterprises or
individuals who violate §13-3502 are
penalized under the same guidelines as
any other class 6 felon. Thus, this
statute does not carry with it a

presumption of unconstitutionality.

A-20

Second, and most importantly, the
criminal fine provisions in question,
§§13-801 and 13-804, does not authorize
sentencing judges to use criminal
penalties as a form of prior restraint.

As the Supreme Court noted in Near v.

Minnesota, 283 U.S. at 7ll, one

objectionable aspect to abatement
statutes such as a padlocking statute is
that "[t]he object is not punishment, in
the ordinary sense, but suppression of
the offending newspaper or periodical."
A statute authorizing criminal fines for
violation of an obscenity law is
distinguishable from a statute designed
to abate moral nuisances on the basis
that the former serves the legitimate
purpose of punishing illegal conduct
while the latter is clearly directed
toward suppression of speech. Arizona's
sentencing provisions do not permit

courts to use criminal fines for

A-21

suppressive purposes. In In Re Collins,

108 Ariz. 310, 311012, 497 P.2d 523

(1972), the Arizona Supreme Court adopted
the American Bar Association's Minimum
Standards for Criminal Justice Relating
to Sentencing Alternatives and
Procedures, §2.7(b) and (c):

(b) Whether to impose a fine in
a particular case, its amount up to
the authorized maximum, and the
method of payment should remain
within the discretion of the
sentencing court. The court should
be explicitly authorized to permit
installment payments of imposed
fine, on conditions tailored to the
means of the particular offender.

(c) In determining whether to
impose a fine and its amount, the
court should consider:

(i) the financial resources of
the defendant and the burden that
payment of a fine will impose, with
due regard to his other obligations;

(ii) the ability of the
defendant to pay a fine on an
installment basis or on other
conditions to be fixed by the court;

(iii) the extent to which
payment © a fine will interfere
with the ability of the defendant to
make any ordered restitution or

A-22

reparation to the victim of the
crime; and —

(iv) whether there are
particular reasons which make a fine
appropriate as a deterrent to the
offense involved or appropriate as a
corrective measure for the
defendant.

These guidelines are designed to insure
that criminal fines are used only for
deterrent purposes and are not so severe
as to pose an unreasonable debt upon the
defendant. The criminal fine provisions
applicable to violations of §13-3502,
therefore, do not constitute a prior
restraint of the ~‘keness of the civil

penalty provision in J-R Distributors.

V. THE CHILL ISSUE

The plaintiffs make the additional
argument that the criminal fine
provisions applicable to violations of
§13-3502 are unconstitutional because
their effect is to "chill" the exercise
of First Amendment rights. This

contention is essentially that these

A-23

Provisions not only permit a prior
restraint to result from the im,vsition
of severe fines, but also force the
plaintiffs to engage in self-censorship
for fear of violating §13-3502 and,
thereby, becoming subject to the fines of
§13-801 and §13-804.

The Court first of all questions the
legitimacy of the Plaintiffs’ complaint
of a chill, given the guidelines imposed

in In Re Collins. But assuming that an

actual chill does exist, it would seem
imprudent to require, as a Matter of
Constitutional law, that the chill be
redressed by imposing substantive
limitations on the power of a state to
punish individuals lawfully convicted of
obscenity law violations. The chill
complained of in this case is nothing
more than deterrence, a state objective
the legitimacy of which is implied by the

fact that obscenity may be Outlawed. The
¢

A-24

Supreme Court has compensated for the
ambiquities in the definition of
obscenity by imposing the requirement of
scienter as an element of obscenity

offenses. Mishkin v. New York, 383 U.S.

502, 511 (1966). This Court disagrees
with the plaintiffs' contention that the
sentences or fines imposed for violations
of obscenity laws must also be restricted
to protect the exercise of First
Amendment freedoms.

IT IS ORDERED denying plaintiffs'
application for injunctive relief.

IT IS FURTHER ORDERED directing
entry of judgment in favor of the
defendant.

Dated this 10th day of July, 1984.

/S/ Charles L. Hardy

CHARLES L. HARDY
Judge of the United States
District Court

cc: all counsel of record

~

A-25

CERTIFICATE OF SERVICE

On this 12th day of November, 1984,

six (6) copies of this Brief Amicus

Curiae were placed in the U.S. Mail,
first class postage prepaid, to each of

the attorneys required to be served:

John H. Weston, Esq.
Brown, Weston & Sarno
433 N. Camden Drive #900
Beverly Hills, CA 90210
(213) 550-7460

Attorney for Appellees

Christine Gregoire, Esq.
Deputy Attorney General
State Capitol

Olympia, WA 98504

(206) 573-6228

Attorney for Appellants

David A. Saraceno, Esq.

Deputy Prosecuting Attorney

S & T Building

West 1115 Broadway

Spokane, WA 99260

(509) 456-5719

Attorney for Appellant-
Donald Brockett

In addition, a copy will be sent to
each attorney representing an amicus
curiae in this case, as their identities

become known.

eRe re =

Attorney for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0040%3A13. Public record. Not legal advice.