# Amicus Curiae Brief — Huffman v. Pursue, Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0389%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 592 ## Text 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) ee Ce ee i SS ee 10 Preecmmnma ess sores g 33 R= & g < Ra at eb ARE RIAN ETE PES ARERR REL RO REE ORE CRRA By AG aN wae il 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 aa wo wo w 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. i RS SA 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 rr ent CL Le: ee ep as aaa Sa ane ER IK SRE ROT NER ice 4 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 eae 5 ihn eaten lia Seacpet aah MeN BE 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0389%3A03. Public record. Not legal advice.