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

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Nos. 8425and 84-143

F Supreme Court of the United States

October Term, 1984

No. 84-28

DONALD C. BROCKETT,

Appellant,

vs.

SPOKANE ARCADES, INC.,' et al.

Appellees.

No. 84-143

KENNETH EIKENBERRY, in his official capacity as

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 OF AMERICAN BOOKSELLERS ASSOCIATION,

INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

COUNCIL FOR PERIODICAL DISTRIBUTORS ASSOCIA-

TIONS, INTERNATIONAL PERIODICAL DISTRIBUTORS

ASSOCIATION, INC., NATIONAL ASSOCIATION OF

COLLEGE STORES, INC., AND THE FREEDOM TO READ

FOUNDATION, AS AMICI CURIAE, IN SUPPORT OF

APPELLEES, AND MOTION FOR LEAVE TO FILE SUCH

BRiEF

MicHarL, A. BAMBERGER

Attorney for Amici Curiae

425 Park Avenue

New York, New York 10022

(212) 371-5900

Imuun N. Gupzy

Finuzy, Kumsiz, Wacner, Herne,

Unverserc, Manury & Casey

Of Counsel

A|

TABLE OF CONTENTS

Motion for Leave to File a Bricf Amici Curiae

Statement

The Amici

Interest of the Amici

Brief in Support of Appellees

Interest of the Amici

Argument

FEDERAL COURTS SHOULD BE IMMEDI-

ATELY AVAILABLE TO DETERMINE THE

VALIDITY OF LEGISLATION CHALLENGED

AS VIOLATIVE OF FIRST AMENDMENT

RIGHTS

The Role of the Federal Courts

Practical Effects

Conclusion

PAGE

wv

11

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TABLE OF AUTHORITIES

PAGE

Cases:

Allen v. MeCurry, 449 U.S. 90 (1980) aad 11

American Booksellers Association v. Hudnut, Cause

No. LP 84-791-C, (S.D. Ind., November 19, 1984) . 9

Baggett v. Bullitt, 377 U.S. 360 (1964)... 5

Elrod v. Burns, 427 U.S. 347 (1976) ele 10

England v. Louisiana State — 375 U. s. 411

|_| SonCU 7

Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972)... 5

Haring v. Prosise, 462 U.S. 306 (1983) 11

Hawaii Housing ree v. Midkiff, 104 S. Ct. 9321

(1984) on 6

Kremer v. Chemical Construction — . 456 U.S. 461

| RENE RN 28 11

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) . vam, 2

Long island Vietnam Moratorium Comm. v. Cahn, 437

F.2d 344 (2d Cir. 1970) all ~inGeaaaelide 5

MeNeese v. Board of Education, 373 U.S. 668 (1963) . 3

Medrano v. Allee, 347 F. Supp. 605 (S.D. Tex. 1972) .. 5

Migra v. Warren City School District Board of Edu-

cation, 104 S. Ct. 892 (1984) a 11

NAACP v. Button, 371 U.S. 415 (1963) _. aire 7

Vance v. Universal Amusement Co., 445 U.S. 308

(1980) ... sonanusisninsensivsteaponstjelsniaialliaaaa vin, 2

Wisconsin v. Constantineau, 400 U.S. 433 (1971)... 3

Zwickler v. Koota, 389 U.S. 241 (1967)... 3, 4, 5, 6

IItt

PAGE

Statutes:

Act of March 4, 1875 ..... a oS i 4

28 U.S.C. § 1331 | a 4

Miscellaneous:

Frankfurter and Landis, The Business of the Supreme

Court: A Study in the Federal Judicial System

Nee i cssessecn-eseneeeneesorees- . 4

New York Times, July 12, 1984, § A, at 12 . 10

New York Times, July 14, 1984, §1, at 16 10

Washington Post, July 29, 1984, at A4 ae 10

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Nos. 84-28 and 84-143

IN THE

Supreme Cowt of the United States

October Term, 1984

No. 84-28

DonaLp C. Brockett,

Appellant,

vs.

SpoKaNE Arcapes, Inc., et al.,

Appellees.

No. 84-143

KENNETH ErkEeNBERRY, in his official capacity as Attorney

General for the State of Washington, et al.,

Appellants,

vs.

J-R Distrisuors, Ivc., et al.,

Appellees.

On Appeal from the United States Court of Appeals

For the Ninth Circuit

i <b sie

BRIEF OF AMERICAN BOOKSELLERS ASSOCIATION,

INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

COUNCIL FOR PERIODICAL DISTRIBUTORS ASSOCIA-

TIONS, INTERNATIONAL PERIODICAL DISTRIBUTORS

ASSOCIATION, INC., NATIONAL ASSOCIATION OF

COLLEGE STORES, INC., AND THE FREEDOM TO READ

FOUNDATION, AS AMICI CURIAE, IN SUPPORT OF

APPELLEES, AND MOTION FOR LEAVE TO FILE SUCH

BRIEF

Vi

Statement

The American Booksellers Association, Inc., the Asso-

ciation of American Publishers, Inc., the Council for

Periodical Distributors Associations, the International

Periodical Distributors Association, Inc., the National As-

sociation of College Stores, Inc., and The Freedom to Read

Foundation (collectively referred to as the ‘‘amici’’) here-

by respectfully move for leave pursuant to Rule 42 of the

Rules of the Supreme Court of the United States to file

the attached brief amici curiae in this case. While the

consent of the attorneys for appellees has been obtained,

the consent of the attorneys for appellants was refused.

The Amici

The amici’s members publish, produce, distribute, sell

and lend books, magazines and other printed materials of

all types, including those which are scholarly, literary,

scientific and entertaining.

The American Booksellers Association, Inc. (ABA) is

a trade association organized under the laws of the State

of New York. It is the major national association of book-

sellers in the United States. ABA has approximately 5,200

members consisting of private book stores, department

book stores, university book stores and chain book stores.

The Association of American Publishers, Inc. (AAP)

is a trade association organized under the laws of the State

of New York. It is a major national association in the

United States of publishers of general books, textbooks

vit

and educational materials. Its approximately three hun-

dred and twenty-five members include most of the major

commercial book publishers in the United States and many

smaller or non-profit publishers, including university

presses and scholarly associations. AAP members publish

most of all general, educational and religious books and

materials produced in the United States. These works are

sold and distributed in all fifty states to schools, univer-

sities and libraries and through thousands of bookstores,

department stores, drug stores, newstands and other out-

lets in towns, villages and cities.

The Council for Periodical Distributors Associations is

an Illinois not-for-profit corporation. It is the national

trade association for over five hundred independent local

wholesale distributors of magazines, comic books, paper-

back books and newspapers in every state of the United

States.

The International Periodical Distributors Association,

Inc. is a trade association organized under the laws of the

State of New York. It is the trade association for the prin-

cipal national periodical distribniors engaged in the busi-

ness of distributing or arranging for the distribution of

paperback books and periodicals to wholesalers through-

out the United States for ultimate distribution to retailers

and the public.

The National Association of College Stores, Ine. is a

trade association composed of approximately 2,300 college

stores located throughout the United States.

VIII

The Freedom to Read Foundation, a non-profit organi-

zation supported by voluntary donations, was established

in 1969 by the American Library Association to promote

and defend First Amendment rights; to foster libraries

as institutions wherein every citizen’s First Amendment

freedoms are fulfilled; to support the right of libraries to

include in their collections and make available any work

which they may legally acquire; and to set legal precedent

for the freedom to read on behalf of all citizens.

Interest of the Amici

The amici are all involved in some aspect of making

reading material of all kinds available to the general public.

For this reason, the amici have a continuing interest in

the decisions of this Court involving the balancing of First

Amendment rights, and restrictions on materials with sex-

ual content, including obscene materials not protected by

the First Amendment. The amici’s brief will indicate the

impact of the legal princ‘ples involved upon those who pub-

lish, produce, distribute, sell and lend material which is

not obscene. The amici have brought the same perspective

to the Court in previous cases. F.g., Vance v. Universal

Amusement Co., 445 U.S. 308 (1980); Lo-Ji Sales, Inc.

v. New York, 442 U.S. 319 (1979). The amici have learned

from experience that, in an eagerness to attack the social

harms perceived to stem from the prevalence and accessi-

bility of sexually-related materials, state and city legis-

lators and enforcement agencies frequently treat legitimate

constitutionally-protected books and periodicals identically

with those materials which are obscene and not protected.

Unless the constitutionally mandated distinction is main-

Ix

tained and ready access is provided to federal courts to

enforce it, First Amendment rights may be threatened and

curtailed.

In view of the foregoing, the amici seek leave to file

the attached brief.

Dated: Jan. 2, 198é

Respectfully submitted,

Micuaret A. BAMBERGER

Attorney for Amici Curiae

425 Park Avenue

New York, New York 10022

Linuian N. Gupzy

Fixtey, Kumsie, Wacner, Herne,

Unperserc, Manitey & Casey

Of Counsel

Nos. 84-28 and 84-143

IN THE

Supreme Court of the United States

October Term, 1984

No. 84-28

DonaLp C. Brockett,

Appellant,

vs.

SpoKkANE Arcapes, Inc., et al.,

Appellees.

No. 84-143

KENNETH EIKENBERRY, in his official capacity as Attorney

General for the State of Washington, et al.,

Appellants,

vs.

J-R Distrisutors, Inc., et al.,

Appellees.

On Appeal from the United States Court of Appeals

For the Ninth Circuit

oe

BRIEF OF AMERICAN BOOKSELLERS ASSOCIATION,

INC., ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

COUNCIL FOR PERIODICAL DISTRIBUTORS ASSOCIA-

TIONS, INTERNATIONAL PERIODICAL DISTRIBUTORS

ASSOCIATION, INC., NATIONAL ASSOCIATION OF

COLLEGE STORES, INC., AND THE FREEDOM TO READ

FOUNDATION, AS AMICI CURIAE, IN SUPPORT OF

THE APPELLEES

The American Booksellers Association, Inc., the Asso-

ciation of American Publishers, Inc., the Council for Peri-

2

odcial Distributors Associations, the International Periodi-

cal Distributors Association, Inc., the National Association

of College Stores, Inc., and The Freedom to Read Founda-

tion (collectively referred to as the ‘‘amici’’) submit this

joint brief, amici curiae, pursuant to Rule 42 of the Rules of

the Supreme Court of the United States, in support of

the appellees in Nos. 84-28 and 84-143, having submitted a

motion for permission to file same.

Interest of the Amici

The amici are all involved in some aspect of making

reading material of all kind available to the general public.

For this reason, the amici have a continuing interest in the

decisions of this Court involving the balancing of First

Amendment rights and restrictions on materials with sex-

ual content, including obscene materials not protected by

the First Amendment. The amici’s brief will indicate the

impact of the legal principles involved upon those who

publish, produce, distribute, sell and lend material which

is not obscene. The amici have brought the same perspec-

tive to the Court in previous cases. K.g., Vance v. Uni-

versal Amusey «> , 445 U.S. 308 (1980); Lo-Ji Sales,

Inc. v. New ©: * US. 319 (1979). The amici have

learned from » ace that, in an eagerness to attack

the social harms perceived to stem from the prevalence

and accessibility of sexually-related materials, state and

city legislators and enforcement agencies frequently treat

legitimate constitutionally-protected books and periodicals

identically with those materials which are obscene and not

protected. Unless the constitutionally mandated distine-

3

tion is maintained and ready access is provided to federal

courts to enforce it, First Amendment rights may be

threatened and curtained.

ARGUMENT

Federal courts should be immediately available to

determine the validity of legislation challenged as

violative of First Amendment rights.

Appellants argue that state courts should be ‘‘given

the opportunity to first construe a state obscenity statute

and then leave to the federal court the review of any re-

maining constitutional claims if necessary.’’ (Appellant

Eikenberry’s Juris. Statement, p. 14). In support of

appellants, the Solicitor General as amicus argues that the

Pullman abstention doctrine should be applied in cases such

as those before this Court. (Amicus Br. p. 15).

These arguments misapprehend the proper role of the

federal courts in protecting First Amendment interests and

gloss over the harmful, practical effects such a_ policy

would have on the ability of publishers, distributors, and

retailers of First Amendment-protected materials to chal-

lenge vague, overbroad or otherwise unconstitutional state

and local legislation.

The Role of the Federal Courts:

It is well established that it is the duty of a federal

court to decide federal questions presented to it. See

Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971);

Zwickler v. Koota, 389 U.S. 241, 248 (1967); McNeese v.

4

Board of Education, 373 U.S. 668, 672 (1963). In the Act

of March 3, 1875, the predecessor of 28 U.S.C. § 1331,

Congress first conferred federal question jurisdiction on

the federal courts, making the federal courts the primary

tribunals for enforcement of federal rights, a role previ-

ously reserved for the state courts.

In an important study of federal courts, Frankfurter

and Landis, The Business of the Supreme Court: A Study

in the Federal Judicial System (1928), the authors stated

of the Act of March 3, 1875:

Congress [in enacting the statute] gave federal courts

the vast range of power which had lain dormant in

the Constitution since 1789. These courts ceased to

be restricted tribunals of fair dealing between citizens

of different states and became the primary and power-

ful reliances for vindicating every right given by the

Constitution, the laws, and treaties of the United

States.

Id. at 65. The Court quoted this statement with approval

in Zwickler v. Koota and made it clear that once a plaintiff

has chosen to seek vindication of rights arising under the

Federal Constitution or federal laws in federal court, his

choice of forum must be respected:

Congress imposed the duty upon all levels of the

federal judiciary to give due respect to a suitor’s

choice of a federal forum for the hearing and decision

of his federal constitutional claims.

389 U.S. at 248.

The duty of the federal courts to decide federal ques-

tions is particularly strong in the area of First Amend-

5

ment rights. See Zwickler v. Koota, 389 U.S. 241, 252

(1967) ; Baggett v. Bullitt, 377 U.S. 360, 378-79 (1964). As

stated by the court in Garvin v. Rosenau, 455 F.2d 233, 239

(6th Cir. 1972), in reversing a district court’s invocation of

tie abstention doctrine in a First Amendment case:

That the First Amendment is the essence of democratic

government and that free speech is fundamental to

our society need no elaboration. Historically, the

guarantees of this amendment have been closely

guarded by the federal courts.

See also Long Island Vietnam Moratorium Comm. v. Cahn,

437 F.2d 344, 347 (2d Cir. 1970); Medrano v. Allee, 347

F. Supp. 605, 620 (S.D. Tex. 1972). The reason for this

attitude is that the violation of First Amendment rights

is a matter of public concern which transcends the interests

of even the individual litigants. Furthermore, it is a recog-

nition that the consequences of federal abstention are

delay and needless expense. Such consequences themselves

can impermissibly chill the exercise of First Amendment

rights.

Baggett v. Bullitt, 377 U.S. 360 (1964), concerned a

loyalty oath requirement for state employees and teachers

which was challenged for vagueness and overbreadth. The

defendant urged the Court to abstain from hearing the

plaintiff’s First Amendment challenges to the statute. The

Court decided to hear the issue, emphasizing that the very

act of refusing to hear the case would have a chilling effect

upon the exercise of First Amendment rights:

We also cannot ignore that abstention operates

to require piecemeal adjudication in many courts...

6

thereby delaying ultimate adjudication on the merits

for an undue length of time, .. . a result quite cost-

ly where the vagueness of a state statute may inhibit

the exercise of First Amendment freedoms. . . . Mean-

while, where the vagueness of the statute deters con-

stitutionally protected conduct, ‘the free dissemination

of ideas may be the loser.’

ld. at 578-379 (citations omitted).

This principal was reaffirmed in Zwickler v. Koota, 389

U.S. 241 (1967), in which the Court held that a three-judge

panel should have respected the plaintiff’s choice of a

federal forum for challenging the validity of a New York

State statute which prohibited the distribution of anony-

mous handbills. The Court made clear that when substan-

tial First Amendment auestions are at issue, abstention

is improper.

The principal argument made by appellants in this

regard is that the state courts should have been given the

opportunity to construe the reference to ‘‘lust’”’ in the

Washington statute. A very similar argument was re-

jected by the Court earlier this year in a ease not involving

the First Amendment. In Hawaii Housing Authority v.

Midkiff, 104 8. Ct. 2321, 2327 (1984), the Court stated:

In the abstract, of course, such possibilities [of limit-

ing construction] always exist. But the relevant in-

quiry is not whether there is a bare, though unlikely,

possibility that state courts might render adjudication

of the federal question unnecessary. Rather, ‘we have

frequently emphasized that abstention is not to be

ordered unless the statute is of an uncertain nature,

7

and is obviously susceptible of a limiting construction.’

Zwickler v. Koota, 389 U.S. 241, 251... (1967).

That statement is particularly applicable to cases such as

these, involving First Amendment challenges.

Even if there is such ambiguity, in First Amendment

eases the ambiguity itself may render the statute void for

vagueness. See NAACP y. Button, 371 U.S. 415 (1963).

In those relatively few cases when there truly is an

ambiguity subject to a reasonable limiting construction, or

when there is a substantial state issue that might avoid the

necessity of deciding the First Amendment question, the

Pullman doctrine may be applied, but only if the federal

court, retaining jurisdiction under England vy. Louisiana

State Board, 375 U.S. 411 (1964), enjoins enforcement of

the ambiguous or apparently unconstitutional provisions

pending the state court’s decision. Only then will the First

Amendment rights of those dealing in protected materials

be safeguarded in the interim.

The Solicitor General in his amicus brief suggests that

abstention was appropriate here because ‘‘the statute under

attack is designed to employ the State’s historical and

powerful interests in ‘the quality of life and the total

community environment, the tone of commerce in the great

city centers and, possibly the public safety itself’ ’’ (page

18), without even referring to the substantial federal in-

terests in the upholding of First Amendment rights. Such

state interests are, however, the basis of virtually every

state statute which has been found to run afoul of the

First Amendment with respect to sexually-related speech.

The Solicitor General’s position totally disregards the

8

preeminence of the First Amendment and the paramount

obligation of the federal courts to protect and foster First

Amendment values.

Further, whether or not to abstain is not a theoretical or

abstract question; a decision to abstain has significant and

dangerous practical ramifications.

Practical Effects:

The argument of appellants and the Solicitor General

that appellees and persons like them be required to seek

vindication of their First Amendment rights from state

courts in the first instance has practical ramifications ad-

verse to the exercise of First Amendment rights that dem-

onstrate the fallacy of the argument. When state or local

criminal jaws which appear to encroach upon First Amend-

ments rights are passed, law-abiding publishers, wholesal-

ers, booksellers and other retailers such as the amici find

themselves in an untenable position. They may await

affirmative action by the state offering an opportunity to

challenge or limit the offending legislation. However, such

action may be far off, and, if, as is often the case, the prose-

cution is brought against a seller of Miller-type obscenity

whose actions are clearly within the permissible scope of

regulation, the defendant may be barred from asserting the

legislation’s unconstitutionality as to non-obscene material

offered by the amici. (Certainly that is not the most

sympathetic context for the constitutional arguments of a

seller of non-obscene material to be raised).

Until the state courts resolve the constitutional issues,

local pressure based on the offending legislation is exerted

against the amici by police, prosecutors, mayors, etc., to

9

cease publishing, distributing, or selling materials believed

by the amici to be constitutionally-protected, but believed

by the state to be within the purview of the offending

legislation. In the interim, publishers, distributors and

retailers are ultra-cautious in the exercise of their First

Amendment rights, for to be labelled a ‘‘pornographer’’

in a criminal prosecution has business and social ramifica-

tions that can never be overcome, even if First Amendment

rights are ultimately vindicated. Retailers self-censor and

cease stocking challenged materials. In some cases, such

as supermarkets and other locations where printed ma-

terials are not the primary products, the safest response

may be to cease stocking all books and periodicals.

Nor is it an answer to say that the amici can protect their

rights by seeking a declaratory judgment in the state

courts. Tle amici were among the plaintiffs in a recent

ease brought in the United States District Court for the

Southern District of Indiana challenging the constitution-

ality of an Indianapolis, Indiana, feminist ‘‘civil rights’’

ordinance attempting to ban sexually-related materials

conceded not to fall within the Miller guidelines. American

Booksellers Association v. Hudnut, Cause No. IP 84-791C,

(S.D. Ind., November 19, 1984) (Barker, J.). The District

Court declared the ordinance blatantly unconstitutional on

a number of grounds.

The consideration and passage of the Indianapolis

ordinance had been accompanied by great emotion, poli-

ticking, ete. Rape victims and battered women testified in

favor of the ordinance. ‘‘Church-going conservatives .. .

turned out by the busload when the council considered the

10

issue.’?’ Washington Post, July 29, 1984, at A4. Con-

temporaneously, in Minneapolis, where a similar ordinance

was under consideration, one woman attempted to im-

molate herself and 25 others were arrested after ‘‘a chant-

ing, stomping demonstration’’ in the City Council building.

New York Times, July 14, 1984, §1, at 46. See also New

York Times, July 12, 1984, § A, at 12.

Had the Indiana federal court not been available to

plaintiffs, the case would necessarily have been brought

in a state trial court. All of the state court judges before

whom the case might have been heard were to stand for

reelection in November 1984, and would have been under

substantial political pressure with respect to the deter-

mination of that case. This cannot be the forum to which

the vindication of First Amendment rights should be en-

trusted.

State courts, because they are often more susceptible

to community pressures and because they are not as like-

ly to be sensitive to federal constitutional issues raised by

the First Amendment, may not be as ready as the federal

courts to grant timely relief. Even a momentary chilling

of First Amendment rights is prohibited by the First

Amendment. Elrod v. Burns, 427 U.S. 347, 373 (1976).

Further, appellants’ suggestion does not, as they imply,

merely give the state courts an initial opportunity to de-

cide the issue, subject to subsequent correction by the

federal courts. Submission of these issues to a state court

and determination by that court may bar federal examina-

tions of the issues on the principles of res judicata or

eo

11

collateral estoppel. Thus, for all practical purposes,” the

federal courts, whose primary role is and should be the

protection of federal rights, would be ousted from the op-

portunity to determine the scope of such rights. See Allen

v. McCurry, 449 U.S. 90 (1980); Kremer v. Chemical Con-

struction Corp., 456 U.S. 461 (1982) ; Haring v. Prosise, 462

U.S. 306 (1983). Even if plaintiff desired to reserve its

federal claims while litigating state issues, a posture that

in most cases would not make sense and would only delay

vindication of First Amendment rights, subsequent litiga-

tion in the federal courts of the unraised federal issues

would also be barred. See Migra v. Warren City School

District Board of Education, 104 8. Ct. 892 (1984).

CONCLUSION

For the reasons set forth above, we respectfully urge

this Court not to extend the Pullman abstention doctrine

in the area of First Amendment challenges such as those

in the cases before the Court. We further urge that, in

those few cases in which abstention may be appropriate

(either because there is truly an ambiguity subject to a

reasonable limiting construction or because there is a sub-

stantial state issue that might avoid the necessity of de-

ciding the First Amendment question), the federal district

court be required to follow the rule in England, retain

jurisdiction and enjoin enforcement of the ambiguous or

apparent unconstitutional provisions pending resolution of

* While this Court could ultimately review the determination on

petition for certiorari, in light of the Court’s caseload and ability only

to grant certiorari in a minute percentage of the cases in which it

is sought, that is a slim reed on which to rest First Amendment rights.

12

the state law issues. Only then will First Amendment

rights appropriately be protected.

Respectfully submitted,

MicnaeL A. BaAMBERGER

425 Park Avenue

New York, New York 10022

Attorney for Amici Curiae

American Booksellers Association, Ince.,

Association of American Publishers, ince.,

Council for Periodical Distributo.s Asso-

citations, Freedom to Read Foundation,

International Periodical Distributors As-

sociation, Inc., and National Association of

College Stores, Ine.

Linuin N. Gupzy

Fintey, Kumsie, WaGNer, HEINE,

Unperberc, Mantey & Casry

Of Counsel