# Opposition Brief — City of Paducah v. Investment Entertainment, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 915 ## Text 86 -3.07.2) [ : ney US. —FFLED NO. 86- SEP 25 1908 “os JOSEPH F. SPANIOL, JR. Supreme Court of the United Stirs — ccerx October Term, 1986 CITY OF PADUCAH: JOHN K. PENROD, as Mayor, and JOE VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY) FORD and JAMES W. FLYNN, as Commissioners of said City: JAMES W. UTTER, as Corporation Counsel, and THURMAN BAKER, as Treasurer thereof, Petitioners, INVESTMENT ENTERTAINMENT, INC. ; BELTLINE NEWS AND ARCADE CLUB, Respondents. RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOSEPH S. FREELAND JAMES U. GLANVILLE Freeland, Glanville & Megibow 910 Citizens Bank Bldg. Paducah, KY 42001 502-442-0121 Counsel of Record for Respondents SUBJECT INDEX Page RESPONSE TO PETITION FOR WRIT OF CERTIORARI,.. 1 I, 0 oso ks kok ee 2 CITY ORDINANCE INVOLVED,...........ececeeeeees 3 STATOMENE OFOTME GAGE ic Pe idl 3 I PADUCAH HAS WAIVED THE DEFENSE OF Wii eee eae \ I] THE DISTRICT COURT AND COURT OF APPEALS CORRECTLY HELD THE PADUCAH ORDINANCE ESTABLISHES A PRIOR RESTRAINT ON PRO- fiMil ee ils aor rrer fe ee rer srr ree ree 6 LUPE sg Shock cre hes so twe en aeaeee spans Ree e® / TABLE OF AUTHORITIES CASES Page Arcara, District Attorney of Erie ounty v. Cloud Books, Inc., et al, = » 54 L.W. 5060, 106 S.Ct. i FREER Fe np oe em ren ares Pen ee 2 California Bankers Ass'n. v. Shultz, Ss ee SU aNd ndoneeebacens ba kdeaens 6 Hal | Commonwealth ex rel. Shroering, AR Be ef. | ee ea en ee 2,7 Miller v. California, 413 U.S. 15 (1973) State of Idaho ex rel. Kidwell v. U.S. Marketing, 102 Idaho 431, P.2d 622 (1981).. SOSCHReeseeee ease Oeees & 6 2S O66 6 6S 6 6 4.6 6 @ United States v. Estate of Donnelly, ee as GO CUNT ON s iieese cs bbenn cxbuecciviwns OTHER AUTHORITIES KENTUCKY REVISED STATUTES: FC ECHRSCHS SESS OCHESCHRECTCHOCH HPF CEP OS BASs DS UNITED STATES CODES: 42-- § 1983, ttt GLABRAE ee en ee ve ee a ee Oe re IN THE SUPREME COURT OF THE UNITED STATES October Term, 1986 CITY OF PADUCAH: JOHN K. PENROD, as Mayor , and JOE VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY) FORD and JAMES W. FLYNN, as Commissioners of said City: JAMES W. UTTER, as Corporation Counsel, and THURMAN BAKER, as Treasurer thereof. Petitioners, INVESTMENT ENTERTAINMENT, INC. ; BELTLINE NEWS AND ARCADE CLUB, Respondents RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT The Respondents, Investment Entertainment, Inc., and Beltline News and Arcade Club, respectfully sub- mit that the Petition for Writ ot Certiorari to re- view the Opinion sub judica of the Circuit Court of Appeals for the Sixth Circuit in the subject cases, to-wit: No. C83-0217-P(J) City of Paducah v. Invest- ment Entertainment, Inc. removed from McCracken (County, Kentucky) Circuit Court and civil rights actions ae Investment Entertainment, Inc. No. 85-5092 and Belt- line News and Arcade Club, No. 85-5093 v. City of Paducah, et al, entered on May 28, 1986, shou!d be denied. JURISDICTION Petitioners’ recitation of the proceedings in the District Court and Court of Appeals for the Sixth Circuit is substantially correct except: The cited case of State of Idaho ex rel. Kidwell v. U.S. Marketing, 102 Idaho 431, 631 P.2d 622 (1981), appears to be in conflict with the opinion of the Court of Appeals filed herein on May 28, 1986. However, this jurisdictional ground urged by Petitioners for granting the Writ is attenuated by Kentucky's own interpretation of a similar ordinance in Hall v. Con- monwealth ex rel. Shroering, Ky. 505 S.W.2d 166 (1974) rendered by Kentucky's court of last resort. Hall, supra, placed narrower limits upon the injunctive relief available to regulate pornography than does Idaho in State of Idaho, supra. And, Arcara, District Attorney of Erie County v. Cloud Books, Inc., etc., U.S. _, 54 L.W. 5060, 106 S.Ct. 3172 (1986) cited by the Petitioners is not dis- positive of any issue raised in the Petition for Writ of Certiorari. (Houses of prostitution as such may be shut down though also containing a bookstore. ). CITY ORDINANCE INVOLVED The subject ordinance of the City of Paducah, as well as all other references used by Petitioners, is likewise referenced in the Appendix to this brief, as well as two additional documents, to-wit: Memo- randum in Support of City of Paducah Motion for Sum- mary Judgment (Appendix "I") and Brief for City of Paducah, et al filed in the Court of Appeals for the Sixth Circuit (Appendix "J"). STATEMENT OF THE CASE On June 14, 1983 the Petitioner, City of Paducah, acting through its commissioners and mayor (who are also nominal parties to this suit) enacted the sub- ject ordinance set forth in Appendix "C". On August 3, 1983, following a public hearing, Paducah adopted a. resolution that suit be filed, pursuant to said ordi- nance, against the Respondents in McCracken Circuit Court. One of these suits, that one naming Investment Entertainment, Inc., was successfully removed to Fed- eral District Court upon grounds of diversity of cit- am izenship. The other remains pending in State Court. Both Beltline and Investment, Respondents to the instant Motion, filed suits against Paducah, et a] pursuant to 42 U.S.C. § 1983. In response to the federal suits, Paducah and the other movants pleaded a number of defenses in- cluding abstention. Thereafter all parties, includ- ing Paducah, moved for Summary Judgment. In its Motion and supporting Memorandum, (Appendix "I"), Paducah sought only a judgment on the merits of its claim that the subject ordinance was constitutional. The District Court was not asked to address the -question of whether abstention was appropriate nor whether the ordinance should be construed initially by a State Court. Paducah lost and Beltine and Invest- ment won in the District Court, and a permanent injunc- tion was entered against Paducah on First Amendment grounds, the only grounds presented. Paducah appealed. In seeking relief on appeal before the Court of Appeals for the Sixth Circuit,, Paducah's sole ground urged for reversal was the Constitutional validity of the ordinance. Again, Paducah was silent on the issues of abstention or construction of the subject ordinance iesccniniieiidiiaeaiensuaieeaiiiiiiieaial by State Courts. The Court of Appeals affirmed the District Court's holding that the subject ordinance, on its face, establishes a prior restraint of protected speech. Paducah now seeks a Writ of Certiorari from this Court. ARGUMENT I PADUCAH HAS WAIVED THE DEFENSE OF ABSTENTION Paducah is asking this Court for relief under the abstention doctrine. In effect, this Court is being asked to consider a case almost completely different from that presented to the District Court or Court of Appeals. It is fundamental that defenses may not be raised for the first time on appeal. E.g. United States v. Estate of Donnelly, 397 U.S. 286 (1970). Moreover, it is difficult to apprehend just how a State Court's construction of the statute might differ from the one given by the District Court. Although Paducah argues vigorously for the principle of State Court construction, the only specific point on which it claims a potential construction contrary to the one given below, is the possible severability of the license revocation provision. (Petition p. 52-53). Paducah does not say how this would render the balance of the ordinance valid and it is diffi- cult to see how it could be. For reasons stated hereinafter, it is unlikely that Kentucky's construction of che ordinance would differ from that of the District Court. ARGUMENT II THE DISTRICT COURT AND COURT OF APPEALS CORRECTLY HELD THE PADUCAH ORDINANCE ESTABLISHES A PRIOR RESTRAINT ON PROTECTED SPEECH The main thrust of Paducah's argument before the Court of Appeals (Appendix "I") was that the sanctions for violating the ordinance were less onerous than for violating Kentucky's penal statutes proscribing dissem- ination of obscenity (KRS 531.020) which could include incarceration. Penal statutes against pornography do not, of course, restrict the dissemination of protected materials. Miller v. California, 413 U.S. 15 (1973). Although it was not argued in the Court of Appeals as a reason for affirmance (abstention having not been raised) there is an additional reason for affirming the judgment below. California Bankers Ass'n. v. Shultz, 416 U.S. 21 (1974). That is, Kentucky's court of last resort (the former Court of Appeals) had al- ready placed a narrow construction on similar efforts to enjoin the dissemination of pornography in the City of Louisville. Hall v. Com. ex rel. Shroering, Ky 505 S.W.2d 166 (1974). In Hall, supra it was held that the defendants d/b/a “Adult News" could be en- joined from violating obscenity statutes and punished for contempt. However, the trial court's order was overbroad in ordering that defendants be permanently enjoined from selling, drawing, giving away, etc. at any location in city or county, any film or any written or printed material. CONCLUSION For the reasons and upon the authorities cited hereinabove, Respondents respectfully move that the Petition for Writ of Certiorari be denied. CERTIFICATE OF SERVICE Fh 1, hereby certify that on this &S_day of September, 1986, the original and 40 copies of the within Response to Petition for Writ of Certiorari were deposited in the United States Post Office in Paducah, Kentucky, postage prepaid, and properly addressed to the Clerk of the United States Supreme Court. I further certify that three (3) copies were also mailed, postage prepaied, to the below-listed parties to the proceedings and that all parties required to be served have been Served. Hon. James W. Utter P.0. Box 2267 Paducah, KY 42002-2267 Hon. James J. Clancy 9055 La Tuna Canyon Rd. Sun Valley, CA 91352 Attorneys for Petitioners Hon. Edward Cooper Santa Ana City Attorney 20 Civic Center Plaza Santa Ana, CA 92701 Counsel for Amicus Curiae S ttornéy for Respondents / APPENDIX "A" Opinion of the United States Court of Appeals for the Sixth Circuit in City of Paducah v. Investment Entertainment, Inc., et al., and Investment Entertainment, Inc., (No. 85-5092) Beltline News and Arcade Club, (No. 85-5903) v. City of Paducah et al., Nos. 85-5092, SESILE decided May 28, 1986. (Reference: Petition for Writ of Certiorari at page 2, line 15; page 20, line 19; page 21, line 16). ....-A-1 thru A-40 A-1 ae Nos. 85-5092, 85-5093 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CITY OF PADUCAH, Plaintiff-Appellant, V: INVESTMENT ENTERTAINMENT, Te... BG Bia, Defendants-Appellees.) ON APPEAL FROM THE UNITED STATES INVESTMENT ENTERTAINMENT, DISTRICT INC., (NO. 85-5092). COURT FOR BELTLINE NEWS AND ARCADE THE WESTERN CLUB, (NO. 85-5093). DISTRICT OF KENTUCKY Plaintiffs-Apvellees. % CITY OF PADUCAH, et al., Nee ea I OI SI Defendants-Appellants. SS. AE AS A NR. ~ SE hat Sat Se Decided and Filed May 28, 1986 Before: MERRITT and WELLFORD, Circuit Judges; and CELEBREZZE, Senior Circuit Judge. | A-2 MERRITT, Circuit Judge, delivered the opinion of the court in which CELEBREZZE, Senior Circuit Judge, joined. WELLFORD, Circuit Judge (pp. 16-18), delivered a separate concurring opinion. MERRITT, Circuit Judge. The City of Paducah, Kentucky, appeals the judgment of District Judge Johnstone that Paducah's obscenity abatement ordinance, on its face, establishes a prior restraint of protected speech and thereby unconstitutionally infringes the first amendment rights of plaintiffs Investment Entertainment, Inc. and Beltline News and Arcade Club, sellers of books, magazines, and video tapes. We agree that the ordinance's provision requiring the revocation of the occupational licenses of booksellers and move theatres dealing in obscenity renders the ordinance invalid. A-3 On June 14, 1983, the City of Paducah enacted an ordinance to control obscene material as defined in Miller v. California, 413 U.S. 15 (1973). Relying on the city's power to declare and abate public nuisances, the ordinance defines the following as "public nuisances per se'' in Paducah: (1) any place where obscene films are publicly exhibited or possessed for exhibition in the regular course of business; (2) any obscene film so exhibited or possessed; (3) any place of business, or portion thereof, where obscene publications constitute a principal part of the stock in trade of the business; and (4) any obscene publication possessed at such a place. The ordinance also defines as "a public nuisance per accidens" all money or other consideration received for the exhibition or sale of such obscene films A-4 or publications after the manager of the business receives certified notice of the initiation of proceedings under the ordinance. The key contested provision of the ordinance states that the Paducah Board of Commissioners, upon a specific finding that a public nuisance exists, shall by resolution order a revocation of all licenses and permits that have been issued to the business maintaining the nuisance. This license revocation is subject to judicial confirmation. The Board must then order counsel for the city to bring a civil action against the public nuisance. In addition to license revocation, the ordinance contemplates that the action will seek an order enjoining all persons maintaining the nuisance from possessing or marketing the obscene films or publications at any time in the future, A-5 an accounting of all money received in the obscenity business, forfeiture of the obscene materials and the money, and judgment for the city for all costs expended in abating the nuisance. The ordinance provides that the "cost of abatement,"’ which is defined to include investigative costs, court costs, reasonable attorney fees, and printing costs for any trial and appeal, is to be a special assessment against the parcel of land upon which the public nuisance is maintained, but only against the interests of the individuals responsible for maintaining the nuisance. This special assessment is to be collected and enforced by the same means as used for ordinary local property taxes. In June and July of 1983, Paducah police officers purchased obscene Magazines and video tapes from businesses operated in Paducah by A-6 Investment and Beltline. Counsel for the city wrote a letter to both informing them of the ordinance and of the material purchased by the police officers. The letter gave them notice that public hearings would be held. In August 1983, after a hearing, the Board adopted a resolution finding the material purchased from Investment to be obscene and declaring the business from which the material was purchased to be a public nuisance. In September 1983, the Board adopted a similar resolution concerning Beltline. Thereafter, counsel for the city initiated civil actions in Kentucky state court seeking abatement of the nuisances as provided by the ordinance. Investment and Beltline brought separate suits in the United States District Court for the Western District of Kentucky, both under 42 U.S.C. § 1983 A-7 (1982), seeking to have the ordinance declared constitutionally invalid and to have the city enjoined from enforcing the ordinance. Alleging diversity of citizenship, Investment removed the state court enforcement action pending against it to federal district court. Beltline also attempted to remove the enforcement action directed against it to federal court, but removal was denied because there was no diversity of citizenship. The District Court then consolidated all three actions. The parties have raised no issue concerning abstention in the District Court or this Court. Neither Investment nor Beltline challenged the ordinance's definition of obscenity, and both admit that the material seized is obscene within the Miller v. California definition. The District Court granted their motions for summary judgment. It held that because the ordinance's license revocation procedure could result in closing down an entire place of business even though not all the material was obscene, the abatement procedure amounted to a prior restraint of both protected speech and unprotected speech. Judge Johnstone gave this example: Under the ordinance, a movie theatre could be closed for repeatedly showing an obscene film on weekends even though the theatre showed "The Ten Commandments," 'Snow White," and "Gone With the Wind" on week days. The District Court also held that the ordinance's abatement procedure unconstitutionally encouraged businesses to engage in self-censorship because the threat of having an entire place of business "abated" would induce business operators to avoid questionable, but still protected, films and publications. A-9 tee tii The District Court ruled that this self-censorship arises from the ordinance's use of undefined terms such as "regular course of business," "repeatedly," and "principal part." The court held that in this respect the ordinance was vague and would give business operators no notice of what conduct the ordinance reached. os The ordinance requires the revocation of the business licenses of distributors and exhibitors of obscene material. It therefore restrains future speech of the booksellers and theaters whose licenses are revoked--both obscene and decorous speech. The main issue presented is whether Paducah may use license revocation as a tool to control obscenity. The problem of using licensing to control distribution of printed A-10 expression by booksellers and publishers has a long history. Milton's Areopagitica remains the classic argument against the licensing of speech. Writing in 1644, just after the revolution, in response to a parliamentary law reestablishing the use of licensing to control books, Milton takes as his “task...to show that no...well instituted state, if they valued books at all, did ever use" "this authentic Spanish policy of licensing books.'' He argues instead that "the timeliest and most effectual remedy" is subsequent evaluation and seizure if necessary. Among his many arguments, Milton advances the danger to truth and beauty because they are difficult to distinguish from falsity and ugliness (however "much we thus expel of sin, so much we expel of virtue, for the matter of them both is the same"') and the A-11 problem of the "quality which ought to be in every licenser" ("he who is made judge to sit upon the birth and death of books...had need to be a man above the common measure, both studious, learned, and judicious." Yet, "there cannot be a more tedious and unchosen journeywork...than to be made the perpetual reader of unchosen books and pamphlets"). Licensing speech discourages new ideas ("I found and visited the famous Galileo, grown old, a prisoner to the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought"); undermines expression as a value in itself ("[g]ive me the liberty to know, to utter, and to argue freely according to conscience, above all liberties"); and raises the prospect of manipulation and misinformation when we "pretend to bind books to their good A-12 behavior" ("for what magistrate may not be misinformed, and much the sooner, if liberty of printing be reduced into the power of a few?"'). By the late Eighteenth Century, Milton's view against licensing had become the English common law rule against prior restraint, as reflected in Blackstone's Commentaries: The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications....To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points of learning, religion, and government. © l 4 W. Blackstone, Commentaries 151-52 (emphasis in original). Blackstone described the history of printer licensing in England: footnote 1 con't on next page A-13 The British common law against licensing publishers and booksellers was part of the foundation for the first amendment's guarantee of freedom of the press. See Z. Chafee, Free Speech in the United States 10-12 (1942) (arguing that the Blackstonian view of freedom of the press--freedom from prior restraint--was part, but only part, of the freedom that the first amendment had come to guarantee). footnote 1 con't The art of printing, soon after it's introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of starchamber; which limited the number of printers, and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles I, after footnote 1 con't on next page 1 A-14 ey # Modern first amendment jurisprudence has followed Milton and Blackstone on prior restraint. As the District Court noted, that law has dealt with the licensing problem by footnote | con't their rupture with that prince, assumed the same powers as the starchamber exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652, (Scobell. i. 44, 134, ii. 88, 230.) issued their ordinances for that purpose, founded principally on the starchamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. II. c. 33. which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute I. Jac. LI. c. 17, and continued till 1692. It was then continued for two years longer by statute 4 W. & M. c. 24, but, though frequent attempts were made by the government to revive it, in the subsequent part of that reign, (Com. Journ. 11 Feb. 1694, 26 Nov. 1695. 22 Oct. 1696. 9 Feb. 1697, 31 Jan. 1698.) yet the parliament resisted it so strongly, that it finally expired, and the press became properly free, in 1694; and has ever since so continued. * Id. at 152 n.2. A-15 focusing on whether the use of licensing constitutes a prior restraint of protected expression. The major case on prior restraint is Near v. Minnesota, 283 U.S. 697 (1931). In Near the Court invalidated, as a prior restraint, an injunction entered against a newspaper under a Minnesota statute providing that any newspaper publishing malicious, scandalous, or defamatory material is a nuisance and can be permanently enjoined. Chief Justice Hughes, quoting Blackstone, pointed out that part of the first amendment grew out of the struggle in Britain against the "legislative power of the licenser" of the press. Id. at 713-14. The Court held that if "the object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical" in the future, and "the statute not only operates to suppress A-16 the offending newspaper or periodical but to put the publisher under an effective censorship." 283 U.S. at 709-12, then the statute constitutes a prior restraint. The City of Paducah's argument that its licensing ordinance is not a prior restraint is similar to Justice Butler's argument for the four dissenters in Near, Paducah, one might argue, is only revoking a previously issued business license, and when the licenses are issued they are completely unrelated to the regulation of speech. Later revocation is for abuse of the occupational license. Likewise, Justice Butler argued that prior restraint consists of licensing publishers and their books as an original matter, not of later revocation for abuse of the right. Later revocation "does not operate as a A-17 previous restraint on publication within the proper meaning of that phrase" because it "is only in respect of continuing to do what has been duly adjudged tc constitute a nuisance." Id. at 735 (emphasis in original). "It is fanciful to suggest similarity between...the decree...to prevent further publication of malicious, scandalous, and defamatory articles and the previous restraint upon the press by licensers as referred to by w Blackstone.... Id. at 736 (emphasis in original). Chief Justice Hughes and the majority of the Court rejected this argument--"that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes''--dereliction because "(the argument] is inconsistent with the reason which underlies the privilege." Id. at 720-21. ad A-18 Several federal and state courts have addressed the first amendment question presented by state laws and local ordinances that use the nuisance abatement power to control obscenity. Laws on this subject differ in approach. Some, as in the instant case, abate the nuisance by revoking the offending business' general business license. Others, the so-called "padlock" laws, call for a judicially ordered temporary Or permanent injunction under which local authorities close the place of business and do not allow its owners to operate out of that location for the duration of the injunction. We have found no precedent in which courts have upheld an obscenity law that provided for the revocation of obscenity dealers’ business licenses. In at least three instances, federal courts have held local obscenity ordinances that use ET SO A ee A-19 the revocation of licenses and permits to be unconstitutional prior restraints of protected speech. Gayety Theatres, inc. ¥. Miewt, 7i9 F.Z26 i550. (1ite Cit. 1983); Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497 (7th Cir. 1980); cert. denied, 450 U.S. 919 (1981); Cornflower Entertainment, Inc. v. Salt Lake City Corp., 485 F.Supp. 7/77 (D. Utah 1980); see also Genusa v. City of Peoria, 619 F.2d 1203, 1213-15 (7th Cir. 1980) (requirement that adult bookstore license applicant submit to inspection of premises was held unconstitutional). But cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 62-63 (1976) (adult movie theatres may be licensed if licensing is necessary to valid zoning and locational requirements); Genusa, 619 F.2d at 1212-13 (same for adult bookstores). A-20 The Supreme Court has not ruled directly on the licensing issue in an obscenity case. | The padlock cases are also pertinent, although not directly on point. The results in the padlock and other similar cases have varied. The Supreme Court has never ruled on the question of whether a padlock obscenity law is an unconstitutional prior restraint.” Because this is a license revocation ordinance case, we need not give an opinion on the padlock laws which are usually less intrusive than license revocation. But a review of a few of the cases is instructive. See Avenue Book Store v. City of Tallmadge, soe . (White, J., dissenting to the Supreme Court's denial of certiorari, quoted infra note 3). Ee A-21 In Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir. 1978), the Fifth Circuit held that a nuisance statute's provision for temporary closure of businesses distributing obscene material was an unconstitutional prior restraint of business operacors' rights to engage in protected expression during the closure period. The Supreme Court affirmed at 445 U.S. 308 (1980), but, in affirming, the Court aimed its per curiam opinion at the fact that under the statute a prosecutor could obtain a temporary restraining order and preliminary injunction against showing certain named and unnamed films before judicial determination that the films were indeed obscene. 445 U.S. at 316 n. 14. The Court held that this procedure was an unconstitutional prior A-22 restraine.” Several other courts have held padlock obscenity laws invalid. See Cornflower Entertainment, Inc. v. Salt Lake City Corp., 485 F.Supp. 7/77 3 See Justice White's dissent in which he argues that the Court misunderstood the statute's provision dealing with an injunction to be issued after judicial determination that the material involved was obscene. 445 U.S. at 320-25. See also the dissent to the Supreme Court's denial of certiorari in Avenue Book Store in which Justice White states: In Vance v. Universal Amusement Co., 445 U.S. 308 (1980), the Court upheld a finding that a Texas public nuisance statute authorized an unconstitutional "prior restraint for indefinite duration on the exhibition of motion pictures without a final judicial determination of obscenity and without any guarantee of prompt review of a preliminary finding of probable obscenity." Id. at 309. Fatal to that statute were particular procedural infirmities of the texas nuisance scheme whereby the subject of an abatement order or injunction "would be subject to contempt proceedings even if the film [was] ultimately found to be nonobscene." Id. at 316. footnote 3 con't on next page A-23 (D.Utah 1980); People ex rel. Busch v. Projection Room Theatre, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, cert. denied sub nom., Van De Kamp v. Projection Room Theatre, 429 U.S. 922 (1976); State v. A Motion Picture Entitled ''The Bet", 219 Kan. 64, 547 P.2d 760 (1976); see also Note, Pornography, Padlocks, and Prior Restraints: The Constitutional Limits of the Nuisance Power, 58 N.Y.U.L. Rev. 1478, 1489 (1983) ("courts generally have assumed that padlock orde~s are footnote 3 con't The Court has never determined however, whether abatement orders, such as the one involved in the present case, will pass constitutional muster when they permanently enjoin the use of a business premises for the sale or display of obscene material, but do not subject the owner to contempt sanctions unless there has been a judicial, determination of obscenity. A-24 prior restraints without engaging in substantial analysis under prior restraint doctrine.").“ On the other hand, several state courts have held that padlock laws aimed at businesses involved in the sale or exhibition of obscene material are not prior restraints. In State ex rel. Kidwell v. U.S. Marketing, Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed sub nom., U.S. Marketing, Inc. v. Idaho, 455 U.S. 1009 (1982), the Idaho Supreme Court dealt with a state Accord J.R. Distributors, Inc. v. Eikenberry, /25 F.2d 482 (9th Cir. 1984), rev'd on other grounds sub nom., Brockett v. Spokane Arcades, Inc., 105 S.Ct. 2/94 (1985). In Eikenberry the Ninth Circuit stated as dictum (see 105 S.Ct. at 2/97 n.5; 725 F.2d at 498 (Wallace, J., dissenting))that an obscenity abatement law's provision requiring forfeiture of profits derived from the sale of both obscene and nonobscene material unconstitutionally restricted free speech rights in the nonobscene material. | A-25 nuisance law providing that if a business is engaged in selling or exhibiting obscene material, the real property used in the business is forfeited for a period of one year. The defendant argued that this forced forfeiture constituted an unconstitutional prior restraint on business operators' first amendment rights to engage in protected, nonobscene expression. The court noted that under Roth v. United States, 354 U8. 476 (1957), the state could punish purveyors of obscene material and that the state was not limited to criminal sanctions as a weapon against obscenity. Kingsley Books v. Brown, 354 U.S. 436, 441 (1957). The court held that the purpose of the nuisance law was to deter dealing in obscenity, and, in response to the prior restraint argument, it stated: a eet. COUNTY OF McCRACKEN) The affiant, Joseph S. Freeland, being duly sworn, deposes upon oath as follows: 1. Affiant is 68 years of age, is and has been continuously for the past 45 years a regularly licensed and practicing attorney at law at Paducah, Kentucky, is the attorney for the plaintiff, Investment Entertainment, H-3 Ine., in this action, and has been plaintiff's counsel continuously since some time in May, 1983. 2. Affiant makes this affidavit on his own personal knowledge, and is competent to testify to the matters stated therein. 3. The pleadings in this action, together with all exhibits thereto, are made a part of this affidavit by reference, to the same extent as if copied in full therein. 4. Affiant personally attended and was present at, and during the entirety of, the hearing conducted by the Board of Commissioners of the defendant City of Paducah on August 3, 1983, at the time of the adoption by said Board of the resolution annexed as Exhibit "'C" to plaintiff's amended complaint, and personally saw and heard all that transpired at said hearing. H-4 5. Said hearing was stenographically reported, at the instance of the defendants, by Shirley B. France, a stenographic reporter and Notary Public, who thereafter transcribed here stenographic notes taken at said hearing upon the typewriter. A copy of said transcript of said hearing is annexed hereto and made a part hereot as Exhibit No. 1. 6. Affiant knows of his own personal knowledge that said transcript is a full, correct and complete report of all proceedings had by and before said Board at said hearing of August 3, 1983. And further affiant sayeth not. Joseph S. Freeland H-5 Subscribed and sworn to before me by Joseph S. Freeland this 2nd day of February, 1984. My commission as Notary Public will expire August 12, 1987. Notary Public, State of Kentucky at Large CERTIFICATE OF SERVICE I hereby certify that on February 2, 1984, I mailed a copy of the foregoing motion and affidavit to Hon. James W. Utter, defendants’ attorney, at his last known address, P.O. Box 2267, Paducah, Kentucky 42001. Attorney for Plaintiff i i iii H-6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH CITY OF PADUCAH vs. Civil Action ) ) ) ) No. 83-0217 INVESTMENT ENTERTAIN- ) P(J) MENT, INC. and SHOW- ) TIME ENTERTAINMENT, ) INC. ) ) CONSOLIDATED WITH: ) MOTION FOR ) SUMMARY INVESTMENT ENTERTAIN- ) JUDGMENT MENT, INC. ) ) vs. ) Civil Action ) No. 83-0208 CITY OF PADUCAH, ET > Pes) ) AL. Comes the City of Paducah and moves the Court for Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, in that the pleadings, depositions, answers to interrogatories and adehnniins on file, together with the affidavits, show that there is no genuine issue as to any material fact in that the City of Paducah is entitled to a judgment as a matter of law. —— i ™™S"——~ Pts) ) ) DEFENDANTS. Comes the City of Paducah and moves the Court for Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, in that the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any nakeviel fact in that the City of Paducah is entitled to a judgment as a matter of law. Ne a ee ee H-16 The City of Paducah herein files its Memorandum in Support of said Motion. James W. Utter P.O. Box 2267 Paducah, KY 42001 Attorney for City of Paducah CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was mailed to the Hon. Joseph Freeland, Citizens Bank Building, Paducah, KY 42001, attorney for Beltline News & Arcade Club, Inc., on this 8th day of March, 1984. James W. Utter APPENDIX "I" MEMORANDUM IN SUPPORT OF CITY OF PADUCAH MOTION FOR SUMMARY JUDGMENT I-] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH CITY OF PADUCAH VS. Civil Action No. 83-0217 P(J) INVESTMENT ENTERTAINMENT, INC. and SHOWTIME ENTERTAINMENT, INC. CONSOLIDATED WITH: INVESTMENT ENTERTAINMENT, INC. VS. Civil Action No. 783-0208 P(J) CITY OF PADUCAH, ET AL MEMORANDUM IN SUPPORT OF CITY OF PADUCAH MOTION FOR SUMMARY JUDGMENT Comes the City of Paducah and herein files its Memorandum in Support of its Motion for Summary Judg- ment: MAY IT PLEASE THE COURT: KRS 531.020(1) "A person is guilty of distribu- tion of obscene matter when, having knowledge of its content and character, he: (a) Sends or causes to be sent into this state for sale of distribution; or (b) Brings or causes to be brought into this State for sale or distribution; or (c) In this state, he: Prepares, or Publishes, or Prints, or Exhibits, or Distributes, or OPwn$ I-2 6. Offers to distribute, or 7. Has in his possession with intent to distribute, exhibit or offer to distribute, any obscene matter. (2) Distribution of obscene matter is a Class B Misdemeanor unless the defendant has in his posse- ssion more than one unit of material coming within the provisions of this Chapter, in which case it shall be a Class A Misdemeanor". In 1974 the Kentucky Courts held that an injunc- tion is a permissitle tool to be used against persons violating the then penal statute regulating obscene matter. See Hall v. Commissioner ex rel. Schroering (1974), 505 S.W.2d 166. Distributing obscene matter within the Common- wealth of Kentucky, is illegal. KRS 82.082 states, "(1) A city may exercise any power and perform any function within its bound- aries, including the power of eminent domain in accordance with provision of the Eminent Domain Act of Kentucky, that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision of statute." "(2) A power or function is in conflict with a Statute if it is expressly prohibited by sta- tute or there is a comprehensive scheme of leg- Slation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of Chapters 90 and 96." (Emphasis ours). There is not a comprehensive scheme regulating pornography in the Kentucky Revised Statutes, and the Kentucky Penal Code sections do not preempt the City of Paducah from regulating pornography. _ Oooo cde Deades 1-3 In furtherance of a public purpose the City of Paducah adopted Ordinance No. 83-6-2388 (herein- after referred to as ordinance) declaring the com- mercial exploitation of obscene motion picture films and obscene publications to be contrary to the public health, safety and general welfare, and’a public nui- sance; declaring any place displaying or exhibiting such obscene motion picture films or publications to be a public nuisance per se; making all obscene matter and publications possessed in such places a public nuisance per se; and providing for notice and legal proceedings to abate the same; and providing a procedure for assessment and collection of costs of abatement. (See Exhibit "A", Complaint in file C23-0208-P(J)). In response to City adopting the above referred Ordinance and sending a notice to Investment Enter- 1inment, Inc. that it was under investigation for being in violation of said ordinance (see Exhibit "B" of Investment Entertainment, Inc. Complaint,) Invest- ment Entertainment filed a Complaint in this Court asking for a Declaratory Judgment declaring the Pad- cah ordinance to be unconstitutional and restraining 1-4 the City from proceeding against Investment Enter- tainment under said ordinance. Pursuant to said ordinance the City of Paducah conducted a hearing, after which a resolution was adopted by the Board of Commissioners (see Exhibit "C" to Amended Complaint of Investment Entertainment, Inc.) and notified Investment Entertainment, Inc. of the findings of the Board of Commissioners (see Exhi- bit "D" to Amended Complaint of Investment Entertain- ment, Inc.). Investment Entertainment and Showtime admit that the material viewed by the Board of Commissioners is obsence. (Memorandum of plaintiff, page 5). The ordinance adopted by the City of Paducah is based upon an ordinance upheld in People ex rel. Camil v. Buena Vista Cinema, 5/7 Cal. App. 3d page 497, 129 Cal. Rptr. 315, (1976). Additionally this ordinance is the similar to the ordinance which was upheld by the United States District Court, Western District of Pennsylvania in Eastern Books v. Bagnoni, 446 F. Supp. 643 (1978) and a similar scheme was upheld in State ex rel. Kidwell v. U.S. Marketing, Idaho, 631 P. 2d 622 (1981). ‘opted sii ia dahl moariestad ink MANA SD Toten atin As Section 19-150 of Ordinance No. 83-6-2388 states that the ordinance “establishes procedures for abatement" of the public nuisance, “and for the assessment and collection of costs of abatement which may be incurred by the City incident to such abate- ment". The ordinance provides for judicial review prior to any revocation of licenses, placement of liens, or other activity which would interfere with the business activity of the plaintiff. See Section 19- 155 (d). Sub-section (g) of Section 19-155 requires notice to be given to the parties involved in the findings of the Board of Commissioners and the proce- edings which will be taken to abate the public nuisance. The judicial proceedings associated with the City of Paducah's ordinance, prior to any activity on behalf of the City to actually close the business or invoke remaining sections of the ordinances, fully protects the rights of the plaintiff to due process, including a judicial determination of obscentity of their materials and does not prohibit the distribu- tion of protected material under the Constitution of the United States or the laws of the Commonwealth of Kentucky. On page 3 of their Memorandum, the plaintiff states that the City attempts to impose a lien upon real property of the affected business for all costs, the amount of which is to be determined, not by the court, but by the Board, and provides for the collec- tion of such assessment as other City taxes are col- lected. This lien is not assessed until a court review has taken place along with the review of the entire proceedings. This provision is not arbitrary or capricious and is subject to court review prior to a lien attaching or other collection efforts by the City. Plaintiff further takes the position that Section 6 of the Resolution of the Board of Commi- ssioners iS unreasonable and violates the Constitu- tional requirements of due process. Plaintiff is mistaken that Section 6 of the Resolution is unrea- sonable. Sections 19-152 and 153 of the ordinance set the perimeter for what material constitutes a public nuisance and it will be a duty upon the City, at a hearing before the court, to demonstrate that Sub-sections (A) and (B) of Section 19-153 of the 1-7 ordinance exist and that obscene publications con- stitute all or a prcinciple part of the stock or trade of said business. In summary, the ordinance is designed to give the City a mechanism for determining when the City will insitute judicial proceedings to abate a public nuisance. In order for the City to prevail before the trial court it will be necessary for the City to show that the conditions set forth in Sections 19-152 and 19-153 exist. Respectfully submitted, /s/ James W. Utter James W. Utter Attorney at Law P.0. Box 2267 Paducah, KY 42001 ATTORNEY FOR CITY OF PADUCAH CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was mailed, postage prepaid, on this the 8th day of March, 1984 to: Hon. Joseph S. Freeland, Suite 910 Citizens Bank Building, Paducah, KY 42001. /s/ James W. Utter James W. Utter APPENDIX "J" BRIEF FOR CITY OF PADUCAH, JOE VITERISI AS MAYOR of the CITY OF PADUCAH, P.J. GRUMLEY, ROBERT A COLEMAN, HAROLD (SHORTY) FORD and HAL COLE, JAMES W. UTTER as CORPORATE COUNSEL ; and THURMAN BAKER as TREASURER Thereof J-] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NOS. 85-5092/93 CITY OF PADUCAH PLAINTIFF/APPELLANT VS. INVESTMENT ENTERTAINMENT, INC. ET AL DEFENDANTS/ APPELLEES INVESTMENT ENTERTAINMENT, INC. (85-5092) BELTLINE NEWS AND ARCADE CLUB (85-5093) PLAINTIFFS/APPELLEES VS. CITY OF PADUCAH, ET AL DEFENDANTS/APPELLANTS On appeal from the United States District Court for the Western District of Kentucky at Paducah BRIEF FOR CITY OF PADUCAH, JOE VITERISI AS MAYOR of the CITY OF PADUCAH, P.J. GRUMLEY, ROBERT A. COLEMAN, HAROLD (SHORTY) FORD and HAL COLE, JAMES W. UTTER as CORPORATE COUNSEL ; and THURMAN BAKER as TREASURER Thereof For the convenience of the Court in citing references to the record, the following procedure Shall be used: Investment Entertainment, Inc. v. City of Paducah, Civil Action No. C83-0208-P(J) below, referred to as Investment; City of Paducah J-2 v. Investment Entertainment, Inc., Civil Action No. C83-0217-P(J) below, shall be cited as City and Beltline News and Arcade Club v. City of Paducah, Civil Action No. C83-0237-P(J) below, shall be cited as Beltline. STATEMENT OF ISSUES PRESENTED FOR REVIEW Is City of Paducah Ordinance No. 83-6-2388 at Sections 19-152 and 19-153 unconsitutuional by dec- laring any and every place in the City of Paducah where obscene films are publicly exhibited as a reg- ular course of business, or possessed for the purpose of such exhibition; or any and every place in the City of Paducah where obscene film is publicly and repeatedly exhibited or possessed for such purpose of exhibition a public nuisance; and declaring every obscene film which is publicly exhibited or possessed for such purpose at a place which is a public nuisance under this Section to be public nuisances per se. STATEMENT OF THE CASE On June 14, 1983, the Board of Commissioners of the City of Paducah adopted Ordinance No. 83-6- 2388 "DECLARING THE COMMERCIAL EXPLOITATION OF OB- SCENE MOTION PICTURE FILMS AND OBSCENE PUBLICATIONS J-3 TO BE CONTRARY TO THE PUBLIC HEALTH, SAFETY AND GENERAL WELFARE, AND A PUBLIC NUISANCE; DECLARING ANY PLACE DISPLAYING OR EXHIBITING SUCH OBSCENE MOTION PICTURE FILMS OR PUBLICATIONS TO BE A PUBLIC NUISANCE PER SE; MAKING ALL OBSCENE MATTER AND PUB- LICATIONS POSSESSED IN SUCH PLACES A PUBLIC NUISANCE PER SE; PROVIDING FOR NOTICE AND LEGAL PROCEDURES TO ABATE THE SAME; AND PROVIDING A PROCEDURE FOR ASSESSMENT AND COLLECTION OF COSTS OF ABATEMENT." (Record - Investment Exhibit "A" to Complaint, pages 1-10; and Beltline Exhibit "A" to Complaint, pages 1-10) In Section 19-150 of Ordinance No. 83-6-2388, the Board of Commissioners of the City of Paducah found that the "commercial exploitation of explicit sexual conduct through the public exhibition of obscene films and the sale of obscene pub- lications, constitutes a debasement and distortion of a sensitive key relationship of human existence, central to family life, community welfare and development of human personality; that such exploitation is indecent and offensive to the senses and to the public morals and interferes with the interest of the public in the quality of life and total community environment, the tome of commerce in the City, property values, and public safety; and that the J-4 continuation of such activities is det- rimental to the best health, safety, con- venience, good morals, and general welfare of the City of Paducah and the residents, citizens, inhabitants, and business thereof, and is unlawful and may not be made a subject of a lawful license." INVESTMENT ENTERTAINMENT, INC. Pursuant to Section 19.955 of Ordinance No. 83-46-2388, the Board of Commissioners conducted a public hearing on August 3, 1983. The hearing was conducted after a letter was sent to Investment Entertainment, Inc., (hereinafter referred to as "Investment") informing them of the hearing. (Record - Investment: Complaint, Exhibit "B"). At the hearing the Board of Commissioners reviewed materials purchased from Investment by a police officer of the City of Paducah. After reviewing the materials purchased by the police officer the Board of Commissioners adopted a resolution finding that the materials were obscene under the ordinances of the City of Paducah and the statutes of the Conmon- wealth of Kentucky and that the place of business was operated by Investment. (Record - Investment: Amended Complaint, Exhibit "C"). The resolution further found that the business J-5 is a public nuisance pursuant to Section 19-152 and 19-153 of the Ordinance and ordered the Corp- oration Counsel pursuant to Section 19-156 of the ordinance to instigate judical proceedings to abate the public nuisance. Section 19-152 reads as follows: "The following are declared to be public nuisances per se: (a) Any and every place in the City of Paducah where obscene films are publicly exhibited as a regular course of business, or possessed for the purpose of such exhi- bition; (b) Any and every place in the City of 3 Paducah where an obscene film is publicly and repeatedly exhibited, or possessed for the purpose of such exhibition; and (c) Any and every obscene film which is | publicly exhibited or possessed for such 4 purpose at a place which is a public nuisance under this section. “From and after service on the theater, or its manager, or acting manager, or person then in charge of such place, of a certi- fied copy of this article and a certified copy of the resolution provided for herein, all monies paid thereafter as admission price to such exhibitions shall be regarded as being a public nuisance per accidens, as personal property used in conducting and maintaining a declared public nuisance as to which forfeiture will be requested in : the judicial proceedings required herein.: (Record - Investment: Exhibit "A" to ; Complaint, p. 3-4). ee ee ae Ye Mer ee J-6 Section 19-153 reads as follows: "(a) The following are declared to be public nuisances per Se: (1) Any and every place of business in the City of Paducah in which obscene pub- lications constitute all of the stock in trade, or a principal part thereof. Where such obscene publications consitute only a part of the stock in trade and are located in a place or places within such business which are capable of demarcation, such place or places consitute the public nui- Sance which requires abatement; and (2) Any and every obscene publication possessed at a place which is a public nuisance under this section. "(b) From and after service on the place or its manager, or action manager, or person then in charge of such place, of a certi- fied copy of this article and a certified copy of the resolution provided for herein, all valuable consideration received for the sale of such obscene publications shal] be regarded as being a public nuisance per accidens, as personal property used in con- ducting and maintaining a declared public nuisance, as to which forfeiture will be requested in the judical proceedings req- uired herein." (Record - Investment: Exhibit "A" to Complaint, p. 4). On the same day Investment filed a Complaint in the Unitec States District Court for the Western District of Kentucky requesting the Court to issue an injunction prohibiting the City from enforcing Ordinance No. 83-6-2388, contending that portions pacsliscaaie Ay J-7 of said ordinance were unconstitutional. (Record - Investment: Complaint) On August 10, 1983, the City of Paducah filed a complaint in the Circuit Court of McCracken County, Kentucky, asking the Circuit Court to det- ermine that the business operated by Investment to be declared a public nuisance, and that an injunc- tion, both temporary and permanent, restraining all persons from maintaining said public nuisance from possessing or publicly exhibiting obscene motion picture films, as defeind in the ordinance, or from selling or possessing for sale obscene publications at any time in the future in the City of Paducah, and such other injunctive relief as the Court may order, and that any obscene publications and obscene films be forefeited as contraband. (Record - City: Complaint). On August 17, 1983, Investment filed a petition for removal to the United States District Court. On October 3, 1983, the District Court consolidated the two actions into Civil Action No. 83-0209P(J). (Record - Investment and City : Order dated 10-3-83). J-8 BELTLINE NEWS AND ARCADE CLUB As to the appellee Beltline, the proceedings were similar to Investment except that the District Court found that there was not diversity of citizen- ship and remanded the City's complaint against Belt- line to the McCracken Circuit Court, where said action is still pending. In both actions, all of the parties filed motions for summary judgment as to the constitu- tionality of ordinance No. 83-6-2388. On January 5, 1985, the Hon. Edward H. Johnstone, Judge of the United States District Court, entered a Memo- randum Opinion in Investment Entertainment v. City of Paducah concluding that: "On the other hand, non-obscene materials are entitled to great protection, and therein lies the danger of Ordinance No. 83-6-2388. By going beyond the obscene materials themselves and focusing on the place where the obscene materials are sold or exhibited, the ordinance improperly intrudes upon protected expression. Be- cause of the focus on places rather than materials, the Court finds that Section 19-152(A) and (B) and Section 19-153(A) are unconstitutional." (Record - Invest- — Memorandum Opinion of 1-5-85, page 10). J-9 A memorandum of opinion entered January 7, 1985, in Beltline referred to and adopted the memo- randum opinion in the Investment case. (Record - Beltline: Memorandum Opinion of 1-3-85). On January 7, 1985, the District Court entered the following Order: "For the reasons given in the memorandum opinion accompanying this order, "IT IS ORDERED that the motion for summary judgment filed by the plaintiff, Beltline News & Arcade Club, Inc., is SUSTAINED. "IT IS FURTHER ORDERED that "1. Sections 19-152 and 19-153 of Ordinance No. 83-6-2388 of the City of Paducah are declared to be in violation of the Consti- 1 tution of the United States of American, and; i "2. The defendants are permanently enjoined | from utilizing the provisions of Sections 19-152 and 19-153, Ordinance No. 83-6-2388, to proceed against the plaintiff. | "This is a final and appealable order and 1 there is no just reason for delay." On January 8, 1985, the District Court entered | the following Order: "For the reasons given in the memorandum opinion accompanying this order, "IT IS ORDERED that the motion for summary judgment filed on behalf of Investment Enter- tainment, Inc. and Showtime Entertainment, Inc. is SUSTAINED. J-10 "IT IS FURTHER ORDERED that "1. Sections 19-152 and 19-153 of Ordinance No. 83-6-2388 of the City of Paducah are declared to be in violation of the Constitu- tion of the United States of America, and; "2. The defendants are permanently enjoined from utilizing the provisions of Sections 19- 152 and 19-153, Ordinance No. 83-6-2388, to proceed against Investment Entertainment, Inc. "This is a final and appealable order and there is no just reason for delay." On January 29, 1985, the City of Paducah filed notices of appeal in both the Investment case and the Beltline case, which appeals were consolidated by Order of the United States Court of Appeals for the Sixth Circuit. ARGUMENT KRS 531.020(1) "A person is guilty of distribu- tion of obscene matter when, having knowledge of its content and character, he: (a) Sends or causes to be sent into this state for sale of distribution; or (b) Brings or causes to be brought into this state for sale or distribution; or (c) In this state, he: Prepares, or Publishes, or Prints, or Exhibits, or Distributes, or Offers to distribute, or Has in his possession with intent to distri- bute, exhibit or offer to distribute, any obscene matter. NOON PwN J-1] (2) Distribution of obscene matter is a Class B Misdemeanor unless the defendant has in his posse- ssion more than one unit of material coming within the provisions of this Chapter, in which case it shall be a Class A Misdemeanor”. Pornography is and has been illegal in the State of Kentucky, and it is not protected by the First Amendment to the Constitution of the United States of America. See Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 83 S.Ct. 631 (1963). The problem of enforcing criminal statutes, the time involved in trials and appeals on criminal prosecutions, and the openness of businesses which deal in this illegal product are er ty i et all apparent. In 1974 the Kentucky Court held that an injunc- tion is a permissable tool to be used against in reg- ulating obscene matter. See Hall v. Commonwealth cx rel. Schroering (1974), 505 S.W.2d 166. In furtherance of such public purpose the City of Paducah adopted Ordinance No. 83-6-2388 (hereinafter : referred to as ordinance) declaring the commercial _ Fa pe et wee exploitation of obscene motion picture films and ob- Scene publications to be contrary to the public health, safety and general welfare, and a public nuisance; de- J-12 any place displaying or exhibiting such obscene motion picture films or publications to be a public nuisance per se; making all obscene matter and pub- lications possessed in such places a public nuisance per se; and providing for notice and legal proceed- ings to abate the same; and providing a procedure for assessment and collection of costs of abatement. The City of Paducah needs a means of controlling illegal, obscene material within the city limits, and the ordinance in question goes no further than is nec- essary to control obscene material. To insure that only obscene material and distributors of such are involved, a review is held by the City Commission which consists of the elected officials of the city, and a cross-section of city residents. Additionally, their findings are not implemented in any manner against the alleged dealer or distributor of obscene material, but rather, a Circuit Court action if filed in which the Circuit Judge must find that the person regularly deals in obscene material and has a sub- Stantial portion in his stock and trade as obscene material. Only after judicial review are the sanc- tions of the ordinance implemented. J-13 Investment and Beltline admit that the material viewed by the Board of Commissioners is obscene. (Record - Investment: Memorandum Opinion, p.5). Section 19-150 of the Ordinance states that the ordinance “establishes procedures for abatement" of the public nuisance, “and for the assessment and col- lection of costs of abatement which may be incurred by the City incident to such abatement". The ordinance provides for judicial review prior to any revocation of licenses, placement of liens, or other activity which would interfere with the business activity of the plaintiff. (Record - Investment: Exhibit "A" to Complaint, p. 7) The judicial proceedings associated with the City of Paducah's ordinance, prior to any activity on behalf of the City to actually close the business or invoke the remaining sections of the ordinance, fully protect the rights of the plaintiff to due process, including a judicial determination of obscenity of their materials and does not prohibit the distribution of protected material under the Constitution of the United States or the laws of the Commonwealth of Ken- tucky. (Record - City: Memorandum Opinion, p. 6). J-14 The procedure used by the City of Paducah has been upheld by the Supreme Court. The leading case of State ex rel. Kidwell v. U.S. Marketing, 631] P.2d 622 (Idaho, 1981), Appeal dismissed, U.S. Marketing, Inc. v. Idaho, (1982), 455 U.S. 1009, 71 L.Ed.2d 878, 102 S.Ct. 1649, the Idaho Court held that "While much has been written on procedural requirements in cases involving ‘prior restraint,’ very little has been written to define the phrase. To merely label something unconsitutional as a prior restraint is question begging at its best, especially if no analytical effort is made to determine whether the regulation is indeed a prior restraint on free speech. "...By way of example, if a book seller, having fallen behind on his property taxes, loses his bookstore at a tax Sale, he will not be heard to complain that the State has imposed an unlawful prior res- traint upon his book-selling activities. If the same book seller is convicted of the crime of distributing obscene materials, he may be imprisoned, and yet he will not be heard to complain that his incarceration constitutes a prior restraint upon his ability to disseminate protected speech, even though it is quite clear that it has that effect. ",..Like a tax sale, the forfeiture is directed strictly at property, apart from the content of any expression contained therein. And like imprisonment for criminal obscenity transgression, the forfeiture is intended to penalize past distributions of illegal and unprotected obscenity. The Pint lh Sankt i tite ites RRS So EE, as eee arena omen ents ewer oe Sr ie on ee aes te Seite wet, Gn Y J-15 legislator could just as easily have imposed a fine or other property-related penalty. Instead, the legislator has chosen to punish the violator by temporarily depriving him of property which was used in committing the violation." Judge Johnstone is concerned that by focusing on places of sale and exhibition, rather than merely upon material sold or exhibited, the ordinance intrudes upon protected speech. Specifically, it prevents an entire place from disseminating constituionally pro- tected, non-obscene materials, simply because the place has sold or has exhibited obscene materials in the past. The Court went on to say that "Moreover, because the ordinance allows the entire business to be declared a publis nuisance, it encourages a business person to Steer wide of the danger of avoiding questionable but nonetheless protected films and publications." The decisions a businessman would make under this ordinance are considerably less than he is re- quired to make under Kentucky's Penal Code. Under Kentucky's Penai Code a person can be imprisoned or fined if he has in his possession with the intent to distribute, exhibit or offer to distribute, one piece of obscene matter. For two pieces of obscene matter J-16 it becomes a Class A Misdemeanor subject being jailed for a period of one year. (See KRS 531.020) Whereas, the city oridinance requires public exhibition as a regular course of — Or pub- licly and repeatedly exhibiting or possessing for the purpose of exhibition, obscene material, or where obscene publication contitutes all of the stock or trade or a principal part thereof. The requirements of the ordinance are much less restri- cting than the state statute, which the merchant must consider in making the decision on the "line between protected and unprotected speech (which) is dim and uncertain". The businessman must avoid the protected but questionable matters in an effort to comply with the Kentucky Oscenity Statutes long before he has concern with the City of Paducah Ordinance. Further, innocent or negligent exhibitions do not establish a violation inasmuch as the continuing course of conduct must be presented before the ordinance comes into play. As the United States Supreme Court said in Kingsley Books, Inc. v. Brown, 354 U.S. 436 at 441: ee ee ee ae Pee Universal Amusement Co. v. Vance, 587 F.2d 159, 165- J-17 "We need not linger on the suggestion that something can be drawn out of the Due Pro- cess Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against dissmenation of pornography. It is not for this Court thus to limit the state in resorting to various weapons in the armory of the law. Whether prescribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter with- in the legislator's range of choice." The District Judge relied heavily on a case of 166 (5th Cir. 1978), (en banc) Affirmed, Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). Co. The Supreme Court said in Vance v. Universal soc: lant's second argument, the Court of Appeals did not "The Court of Appeals was quite correct in including both (a) that the regulation of community activities such as exhibition of motion pictures must adhere to more narrow- ly drawn procedures than is necessary for the abatement of an ordinary nuisance, and (b) that the burden of supporting an injunc- tion against future exhibition is even hea- vier than the burden of justifying the impo- sition of criminal sanctions for past commi- ssions." The Court went on to say, "Contrary to appel- J-18 hold that there can never be a valid prior re- straint on community activity. The Court of Appeals simply held that these Texas statutes were procedur- ally defective and that they authorized prior restraints that were more honorous than is permissable under Free- dman v. Maryland Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)". In Southeastern Promotions Ltd. V. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), the Supreme Court said that "We held in Freedman" (Freed- man v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 2d 649 (1965)), “and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instigating judicial proceedings and proving that the material is unprotected must rest on the censor. Second, any restraint prior to judical review can be imposed only for a specified brief period and only for the purpose of reserving the status quo. Third, a prompt final judicial determination must be assured." The ordinance of the City of Paducah meets all the tests set out in Southeastern Promotions; (1) the ordinance calls for the city to initiate the court RAMEE ety oe Seat ho setae eee J-19 action against the alleged distributor of obscene material, (2) it has no restraint prior to judicial review, and (3) the ordinance calls for prompt filing of an action in the state court system. In the case of Cahalan v. Diversified Theatri- cal Corp. , 59 Mich.App., 223, 229 N.W.2d 389 (1975) reversed on other grounds 396 Mich. 244, 240 N.W.dd 460, the Michigan Court upheld a statutory provision authorizing padlocking of premises, as a nuisance, used for the purpose of lewdness and rejected the defendant's contention that such provision was uncon- Situtional as imposing a prior restraint on materials presumatively protected by the First Amendment. The Michigan Court noted that a nuisance was found to exist in the showing of obscene films and that the statutory Sanctions were imposed after a full judicial hearing because Of past obscene exhibitions and not because of any possible future exhibitions, and the closure authorized by the statute did not restrict the right of the defendant to lawfully exhibit films not yet declared to be obscene, but simply prohibited defen- dants from doing so in particular buildings. In the case of State ex. rel. Ewing v. "With- out a Stitch", 37 Ohio St.2d 95, 66 Ohio Ops.2d 223, 307 N.E.2d 911 (1974) appeal dismissed 421 U.S. 923, 44 L.Ed.2d 82, 95 S.Ct. 1649, the Ohio Court held that the State's Nuisance Statutes prescribed a constitutionally permissible method of controlling the exhibition of obscene films, since the statutes included a definition of nuisance as a place where obscene films were shown, and the provisions manda- ting that ah abatement order close the place in and on which a nuisance was maintained for one year. California Courts also upheld a nuisance closure statute in the case of People ex rel. Sorenson v. Randolph, 99 Cal.App. 183, 160 Cal.Rpt. 69, holding that an order or abatement closing the theater did not infringe upon the owner's First Amendment rights as a prior restraint. CONCLUSION The City of Paducah, Joe Viterisi, as Mayor of the City of Paducah, P J Grumley, Robert Coleman, Harold (Shorty) Ford and Hal Cole as Commissioners of the City of Paducah, James W. Utter as Corporation Counsel, and Thurman Baker as Treasurer of the City of Paducah, respectfully submit to the Court that the District Judge misinterpreted Ordinance No. 83-6-2388 in finding that the Ordinance impermissibly punishes non-obscene, protected speech. The appellants further respectfully submit to the Court that the Ordinance of the City of Paducah as adopted is constitutional and a valid weapon in fighting non-protected, illegal obscenity and does not infringe on the constituionally protected rights of the appellees. The closure pro- visions contained in the Ordinance are a valid exercise of legislative discretion in controlling non-protected obscenity, and the decisions a business person must make to avoid non-protected publications is less than he must make in interpreting the Kentucky Penal Stat- utes. The appellants further respectfully submit to the toe that they should stcent the reasoning of the Idaho Court in Kidwell, 631 P.2d 622, vacate the Orders of the District Court and remand these cases to the District Court for a trial on the issue of whether or not the appellees come under tne sanctions of the City's ordinances. Respectfully submitted, /s/ James W. Utter JAMES W. UTTER P.0. Box 2267 Paducah, KY 42002-2267 ATTORNEY FOR APPELLANTS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2382%3A2. Public record. Not legal advice.