Amicus Curiae Brief — Huffman v. Pursue, Ltd.

BUPR Bae } ‘

,

(Submitted with the Consent of the Parties) MAY 5 1074

I recesses 3

IN THE Riehesnele, Gi

Supreme Court of the United States

October Term, 1973

No. 73-296

LAWRENCE S. HUFFMAN, et ano.,

Appellants,

v.

PURSUE, LTD.,

Appellee.

On APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO, WESTERN DIVISION

No. 73-1119

MIM, INC., et ano.,

Appellants,

v.

WILLIAM J. BAXLEY, et al.,

Appellees.

On APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

BRIEF OF MOTION PICTURE ASSOCIATION OF

AMERICA, INC., AS AMICUS CURIAE

BARBARA SCOTT

JAMES BOURAS

Attorneys for Motion Picture

Association of America, Inc.,

Amicus Curiae

§22 Fifth Avenue

New York, N.Y. 10036

TABLE OF CONTENTS

Interest of the Amicus

Ce

Argument: Closing a motion picture theatre because

of its past exhibition of obscene films, thereby pre-

venting its future exhibition of films of any kind,

is an unconstitutional form of prior restraint ....

Conclusion

Certificate of Service

ee

Table of Cases

Airways Theater, Inc. v. Canale — F.Supp. — (W.D.

Tenn. 1973) (three-judge court) (per curiam)

oe eee

Avon 42nd Street Corp. v. Myerson, 352 F.Supp. 994

(S.D.N.Y. 1972)

Bantam Books, Ine. v. Sullivan, 372 U.S. 58 (1965) ..

Blount v. Rizzi, 400 U.S. 410 (1971)

Boylev. Landry, 401 U.S. 77 (1971) ..............

Butler v. Michigan, 352 U.S. 3880 (1997) ............

Byrne v. Karalexis, 491 U.S. 216 (1971) (per curiam)

Carroll v. Princess Anne 393 U.S. 175 (1968) ......

City of Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d

1G CIES) og oh one eee eee eee ea eee?

Dyson v. Stein, 401 U.S. 200 (1971) (per curiam)...

Freedman v. Marvland, 380 U.S. 51 (1965) ........

General Corporation v. Sweeton, — F.Supp. — (N.D.

Ala. 1973) (three-judge court) .................

Gibson v. Berryhill, 411 U.S. 564 (1973) ..........

Grove Press, Inc. v. Maryland State Board of Cen-

sors, 401 U.S. 480 (1971) (per curiam) ..........

Gulf States Theatres of Louisiana, Ine. v. Richard-

son, — La. —, 287 So.2d 480 (1973) .............

Kingsley Books, Inc. v. Brown, 354 6.8. 436 (1957) 4

Lee Art Theatre v. Virginia, 392 U.S. 636 (1968)

(per curiam)

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Marcus v. Search Warrant, 367 U.S. 717 (1961).....

Miller v. California, 413 U.S. 15 (1973) ............

Mitchum v. Foster, 407 U.S. 225 (1972) ..........

NAACP vy. Alabama, 377 U.S. 288 (1964) ........

Near v. Minnesota, 283 U.S. 697 (1931) ..... Py ce

New Riviera Arts Theatre v. State, 412 S.W.2d 890

(Tenn. 1961) sevscedcccevecsaeeienes sana eeks

106 Forsyth Corporation v. Bishop, 362 F.Supp. 1389

(M.D.Ga. 1972), aff’d per curiam, 482 F.2d 280

fot Cit: 1008). cbeeenoeenssau isa seueseegsceds

Oregon Bookmark Corporation v. Schrunk, 321

F-Supp.. 639° (D.Ore. 1970) ...000020ss00xs08eus

Organization for a Better Austin v. Keefe, 402 U.S.

M15. ATS). cone ee eedigeevey cn craeanas ee naan es

Perez v. Ledesma, 401 U.S. 82 (1971) ............

Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.

Rptr. 320, 488 P.2d 648 (1971), cert. denied, 404

PS. T0368: (972). snc oueees cease councacensess

Pursue, Ltd. v. Huffman, — F.Supp. — (N.D. Ohio

1973) (three-judge court) ............... 00.00

A Quantity of Books v. Kansas, 378 U.S. 205 (1964)

Roaden v. Kentucky, 413 U.S. 496 (1978)-........

Samuels v. Mackell, 401 U.S. 66 (1971) ...........

Sanders v. State, — Ga. —, 203 S.B.2d 153 (1974) ..

Shelton v. Tucker, 364 U.S. 479 (1960) ..........

Speight v. Slaton, — U.S. — (1974) (per curiam) ..

Speiser v. Randall, 357 U.S. 513 (1958) ..........

Teitel Film Corp. v. Cusack, 390 U.S. 189 (1968)

(Her CUTIAN). 66650 s0562 beeen ee 4ess eae rcevs

Times Rilm Corp. v. Chicago, 365 U.S. 43 (1961) ..

United “States v. Thirty-Seven Photographs, 402

ee OO CIOL) oid ye nec ore rd beg ccaecnasees

Watson v. Buck, 313 USS. 387 (1941) ...... eeteadé

Younger v. Harris, 401 U.S. 37 (1971) ............

XN

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IN THE

Supreme Court of the United States

October Term, 1973

,, aa

Vv

No. 73-296

LawrENcE S. HurrMan, et ano.,

Appellants,

v.

Pursvur, Lrp.,

Appellee.

No. 73-1119

MTM, Inc., ef ano.,

Appellants,

v.

Winiam J. Baxuey, ef al.,

Appellees.

BRIEF OF MOTION PICTURE ASSOCIATION OF

AMERICA, INC., AS AMICUS CURIAE

Interest of the Amicus

Motion Picture Association of America, Ine.

(‘‘MPAA’’) is a trade association whose membership com-

prises companies which are among the largest producers

and/or distributors of motion pictures in the United States,

ineluding :

Allied Artists Pietures Corporation

Aveo Embassy Pictures Corp.

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RFR

fale AEA ARE SPR Et Bee Hs

i

Columbia Pictures Industries, Inc.

Metro-Goldwyn-Mayer Ine.

Paramount Pictures Corporation

Twentieth Century-Fox Film Corp.

United Artists Corporation

Universal Pictures, a division of

Universal City Studios, Inc.

Warner Bros. Inc.

MPAA has consistently opposed all prior restraints of

expression.’ The instant appeals, we believe, involve prior

restraint in its most egregious form: complete closure of

motion picture theatres and a bookstore, thereby prevent-

ing their future exhibition or sale of material of any kind.

Any decision by this Court on this question will vitally

affect the constitutional interests of all segments of the

motion picture industry, as well as other media of ex-

pression.

MPAA has requested and has received permission from

counsel of record for all of the parties to file this Brief

amicus curiae.”

ARGUMENT

Closing a motion picture theatre because of its past

exhibition of obscene films, thereby preventing its fu-

ture exhibition of films of any kind, is an unconstitu-

tional form of prior restraint.

‘‘This Court has repeatedly held that a governmenta!

purpose to control or prevent activities constitutionally

subject to state regulation may not be achieved by means

1 See, e.g., MPAA’s Brief of amicus curiae in Grove Press, Inc.

v. Maryland State Board of Censors, 401 U.S. 480 (1971) (per

curiam).

2 Copies of the letters giving permission are being filed with the

Clerk of this Court simultaneously with the filing of this Brief.

which sweep unnecessarily- broadly and thereby invade the

area of protected freedoms.’’ .VAACP v. Alabama, 377

U.S. 288, 307 (1964).

In these cases the states of Ohio and Alabama sought

by civil means to assert their interest in preventing the

dissemination of obscene material, an interest whose con-

stitutional legitimacy this Court has recently reiterated.

Miller vy. California, 413 U.S. 15 (1973), and companion

cases.

However, ‘‘a State is not free to adopt whatever proce-

dures it pleases for dealing with obscenity . .. without

regard to the possible consequences for constitutionally

protected speech.” Marcus v. Search Warrant, 367 U.S.

717, 731 (1961). ‘*The separation of legitimate from ille-

gitimate speech calls for ... sensitive tools.’’ Speiser v.

Randall, 357 U.S. 513; 525 (1958).

In No. 73-296, an Ohio court ordered the Cinema I

Theatre in Lima, Ohio, closed ‘‘for any purpose for a period

of one year’’ because certain films found to be obscene had

previously been exhibited at the theatre. The owner of

the theatre thereafter sought federal declaratory and in-

junctive relief. A three-judge federal district court held

that the Ohio statutes pursuant to which the state court

order had been entered were unconstitutional as applied

and enjoined enforcement of the order closing the theatre.

Pursue, Ltd. v. Huffman, — F.Supp. — (N.D. Ohio 1973)

(three-judge court).

In No. 73-1119, an Alabama court ordered the Pussycat

Adult Theatre and Bookstore in Birmingham, Alabama,

closed for an indeterminate period because certain films

and printed materials found to be obscene had previously

been exhibited at the theatre and sold at the bookstore.

The owners of the theatre and bookstore thereafter sought

federal declaratory and injunctive relief. A three-judge

federal district court held that ‘‘the state proceedings here

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in question complement, or serve as a substitute for, the

criminal laws of the state’’ and that the complaints should

be dismissed on the ground that ‘‘plaintiffs have failed to

show any of the exceptional circumstances required by

Yotunger ...’’ General Corporation v. Sweeton, — F.Supp.

— (N.D. Ala. 1973) (three-judge court).*

It is MPAA’s view that the judgment in No. 73-296 is -

clearly correct and should be affirmed, and that the judg-

ment in No. 73-1119 is clearly incorrect and should be

reversed.

We recognize that the instant appeals present an im-

portant issue which this Court has not previously decided:

whether the Younger line of cases* apply when ‘federal

relief is sought against a pending state court civil pro-

ceeding.®

Under the Younger line of cases, federal injunctive and,

ordinarily, declaratory relief is net available against:

‘* |, .a@ pending state court [criminal] prosecution

[except] in certain exceptional circumstances—-

where irreparable ‘injury is ‘both great and im-

mediate,’ . . . where the state law is ‘ ‘‘ ‘flagrantly

and patently violative o Ss constitutional

prohibitions, ’’’’... or where there is a showing of

‘bad faith, harassment, or... other unusual circum-

stances that would call for equitable relief.’ ’’

Mitchum v. Foster, 407 U.S. 225, 230 (1972).

3 The district court’s decision involved two cases which had been

consolidated. Only one of these cases is here on appeal.

* Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell,

401 U.S. 66 (1971); Boyle v: Landry, 401 U.S. 77 (1971); Perez

v. Ledesma, 401 U.S. 82 (1971); Dyson v. Stein, 401 U.S. 200

(1971) (per curiam); Byrne v. Karalexis, 401 U.S. 216 (1971)

(per curiam).

5In a similar factual setting, this same issue was presented in

Speight v. Slaton,—U.S.—(1974) (per curiam), but the Court did

not decide it.

5

" . .

However, we do not believe it is necessary for this

Court to decide here whether the Younger principles apply

when a pending state court civil proceeding is involved.

For even assuming, arguendo, that they do apply, federal

intervention was clearly appropriate in the instant cases.

Indeed, these cases presented extraordinary circumstances -

in which federal intervention was ‘‘essential to prevent

_. great, immediate, and irreparable loss of a person’s con-

stitutional rights.’’ Witchum v. Foster, supra at 242.°

The only constitutionally cognizable interest of the

states in the instant cases was their right to prevent the

sale or exhibition of obscene material.’ Yet, rather than

an order which ‘‘studiously withholds: restraint upon mat-

ters not already published and not yet found to be

offensive,’’ Kingsley Books, Inc. v. Brown, 354 U.S. 436, 445

(1957), the orders entered by the Ohio and Alabama courts

prevented any future expression, obscene or nonobscene.

‘*Surely, this is to burn the house to roast the pig.’’ Butler

v. Michigan, 352 U.S. 380, 383 (1957).

‘As this Court observed in Carroll v. Princess Anne, 393

U.S. 175, 183-184 (1968) :

‘* An order issued in the area of First Amendment

rights must be couched in the narrowest terms that

will accomplish the pin-pointed objective permitted

by constitutional mandate and the essential needs of

the public order. In this sensitive field, the State

may not employ ‘means that broadly stifle funda-

® The plaintiffs in the federal district courts below were under

no obligation to resort to the state appellate process and await the

outcome of their appeals when (1) their theatres would remain

closed during the pendency of those appeals, and (2) even a

favorable outcome on appeal could not redress the irreparable :

injury they would already have suffered. Gibson v. Berryhill, 411

U.S. 564 (1973),

7 These cases do not, for example, involve the violation of valid

health, safety or fire laws.

mental personal liberties when the end can be more

narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479,

488 (1960). In other words, the order must be

tailored as precisely as possible to the exact needs

of the case.’’

By contrast, the state court orders in the instant cascs

were ‘‘not reasonably restricted to the evil with which

[they are] said to deal,’’ Butler v. Michigan, supra at 383,

but rather created ‘‘a complete system of censorship.’’

Near v. Minnesota, 283 U.S. 697, 721 (1931). There is

absolutely no difference between these orders and the in-

junction prohibiting ‘‘defendants from showing any and all

films obscene or otherwise’’ which the Supreme Court of

Tennessee held invalid in New Riviera Arts Theatre v.

State, 412 S.W.2d 890 (1967). All such orders are the

functional equivalent of a statute which is ‘‘flagrantly and

patently violative of express constitutional prohibitions in

every clause, sentence and paragraph....’’ Watson v. Buck,

313. U.S. 387, 402 (1941). Under such circumstances,

federal intervention was clearly appropriate, even under

Younger principles.

Moreover, just like a ‘‘mass seizure of the tools and

equipment required to prepare the newspaper . . . [which

thus] disabled appellee from publishing future issues,’’

Dyson v. Stein, 401 U.S. 200, 204 (1971) (per curiam)

(concurring opinion of Brennan, J.), the state court orders

in the instant cases clearly created irreparable injury.

Again, federal intervention was appropriate, even under

Younger principles.

As the Supreme Court of Georgia recently observed in

striking down an order similar to those involved in the

instant cases:

‘One obscene book on the premises of a book

store does not make an entire store obscene. The

injunction closing this store and padlocking it -as a

public nuisance necessarily halted the future sale

and distribution of other printed material which may

not be obscene, thereby precluding the application

of . .. procedural safeguards and creating an un-

constitutional [prior] restraint upon appellant. This

broad result cannot be reconciled with free expres-

sion under our [state and federal] Constitutions.’

Sanders v. State, — Ga. —, 203 S.E.2d 153, 157

(1974).°

See also: Gulf States Theatres of Louisiana, Inc. v.

Richardson, — La. —, 287 So.2d 480 (1973); Airways

Theater, Inc. v. Canale, — F.Supp. — (W.D. Tenn, 1973)

(three-judge court) (per curiam).

The issue in the instant cases is therefore prior restraint

in its baldest form.® On the basis of past abuses, the

orders entered by the Ohio and Alabama courts prevented

future exhibition of films of any kind—films unmade as

* On the basis of the same rationale, numerous lower court deci-

sions have held that revocation of theatre or bookgtore licenses, or

the refusal to grant or renew such licenses, also constitutes an invalid

form of prior restraint. See, e.g., City of Seattle v. Bittner, 81 Wash.

2d 747, 505 P.2d 126 (1973); Avon 42nd Street Corp. v. Myerson,

352 F.Supp. 994 (S$.D.N.Y. 1972); Perrine v. Municipal Court, 5

Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648 (1971), cert. denied,

404 U.S. 1038 (1972); Oregon Bookmark Corporation v. Schrunk,

321 F.Supp. 639 (D.Ore. 1970). In our view, these decisions were

clearly correct. Cf. 106 Forsyth Corporation v. Bishop, 362 F.Supp.

1389 (M.D.Ga. 1972), aff'd per curiam, 482 F.2d 280 (Sth Cir.

1973), petition for certiorari pending (No. 73-1176).

* We recognize that this Court has held that a system of prior

restraint is not invalid per se in the case of motion pictures. Times

Film Corp. v. Chicago, 365 U.S. 43 (1961). Nevertheless, such a

system is valid only if it contains certain procedural safeguards,

which clearly were not observed in the instant cases. Freedman v.

Maryland, 380 U.S. 51 (1965); Teitel Film Corp. v. Cusack, 390

U.S. 139 968) (per curiam); Blount v. Rizzi, 400 U.S. 410

(1971); Unites! States v. Thirty-Seven Photographs, 402 U.S. 363

(1971).

| 2 SA OTE ERY CS BLEE LOLITAS BEE NFA AEA

well as unseen. The orders provided ‘‘no safeguards

whatever against the suppression of nonobscene, and there-

fore constitutionally protected, matter.’’ Bantam Books,

Inc, v. Sullivan, 372 U.S. 58, 70 (1963).

Closing a motion picture theatre because of its past

exhibition of obscene films, thereby.preventing its future

exhibition of films of any kind, is clearly an unconstitu-

tional form of prior restraint. It is no different than de-

stroying a printing press because some of the books pre-

viously printed on it were obscene.

Certainly, the infringement on First Amendment rights

created by the state court orders in the instant cases was

much more egregious than restraints which this Court has

already held unconstitutional. Marcus v. Search Warrant,

supra; Bantam Books, Inc. v. Sullivan, supra; A Quantity

of Books v. Kansas, 378 U.S. 205 (1964); Lee Art Theatre

v. Virginia, 392 U.S. 636 (1968) (per curiam); Roaden v.

Kentucky, 413 U.S. 496 (1973).

What this Court said in Organization for a Better

Austin v. Keefe, 402 U.S. 415, 418-419 (1971), is equally

applicable here:

‘‘Under Near v. Minnesota, ... the injunction, so

far as it imposes prior restraint on speech and pub-

lication, constitutes an impermissible restraint on

First Amendment rights. Here, as in that case, the

injunction operates ... to suppress, on the basis of

previous publications, distribution of literature ‘of

any kind’....’’

In short, this Court need not decide here whether

Younger principles apply when federal relief is sought

against a pending state court civil proceeding. For even

assuming they do apply, federal intervention was clearly

appropriate—indeed, necessary—in the instant cases.

CONCLUSION

For the reasons set forth above, the judgment in

No. 73-296 should be affirmed and the judgment in

No. 73-1119 should be reversed.

Respectfully submitted,

Barsara Scorr

James Bovuras |

Attorneys for Motion Picture

Association of America. Inc.,

Amicus Curiae

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Litgiy Sehadatioeel Ge

10

Certificate of Service

I hereby certify that I have served three copies each of

this Brief of Motion Picture Association of America, Inc.

as Amicus Curiae upon counsel of record for each of the

parties by depositing copies of said Brief in the United

States Mail, properly addressed and with sufficient postage

thereon to insure delivery by air mail.

Copies of this Brief were sent to the following:

Ee

No. 73-296

James J. Cuancy, Esq.

9055 La Tuna Canyon Road

Sun Valley, California 91352

Attorney for Appellants

Giupert H. Derrcx, Esq.

Suite 2005

One Hundred Colony Square

1175 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attorney for Appellee

This .... day of May, 1974.

No. 73-1119

Rosert Kvcene Smita, Esq.

Suite’ 2005

One Hundred Colony Square

1175 Peachtree Street, N.E.

Atlanta, Georgia 30309

Attorney for Appellants

HERBERT JENKINS, JR., Esq.

Assistant City Attorney

600 City Hall

Birmingham, Alabama

35203

Attorney for Appellees

see eee eee eee ee ee eee eeeeeeee

JAMES Bovuras

An Attorney for Amicus Curiae

522 Fifth Avenue

New York, N.Y. 10036