DRIVE IN THEATRES, INC. v. Huskey, 305 F. Supp. 1232 (W.D.N.C. 1969)

Norman B. Smith, Greensboro, N. C., George Daly, Jr., and Adam Stein, Charlotte, N. C., for plaintiff.

J. Nat Hamrick, Rutherfordton, N. C., for defendant.

McMILLAN, District Judge.

This case was heard in Charlotte on September 11 and September 19, 1969, *1233 upon the motion of the plaintiff for a preliminary injunction restraining the defendant from perpetuating an alleged ban on the showing of "adult" motion pictures.

The corporate plaintiff, apparently owned by Susan Dantzic and Irvin Dantzic, operates the Midway Drive In Theatre in Rutherford County, North Carolina. The plaintiff gets films from a booking agency which sends an assortment of films according to a schedule. Practically all films have code "ratings" which may be "G" (recommended for general audiences); "M" (recommended for adults); "R" (recommended for persons under sixteen only with a parent or adult guardian) or "X" (not recommended for persons under sixteen).

These ratings or labels are not those of the plaintiff nor the defendant, but they are put on the films by the producers.

On June 19, 1969, the defendant, the Sheriff of Rutherford County, raided the Midway Drive In Theatre, confiscated several cans of film including the movies "The Ramrodder" and "A Piece of Her Action," and lodged several criminal charges against Susan Dantzic. Susan Dantzic entered a guilty plea on the charge of exhibiting obscene pictures when she was tried in the Superior Court of Rutherford County, and received a sentence suspended on certain conditions referred to in the testimony but not fully known to this court.

Shortly after the Dantzic criminal prosecution was concluded the defendant, Sheriff Huskey, announced to various witnesses, including several newspaper men and some theatre operators and others, that he intended to enforce the North Carolina statutes against obscenity; that he considered as obscene and unlawful any motion picture which depicted any nude woman or any act of sexual intercourse; that he considered all "adult" films to be obscene; that he considered all "X" and all "R" films to be obscene; that anyone showing films in those categories would be prosecuted and the film would be confiscated. He announced a plan to "stop all adult rated films unless they stopped themselves" in his county.

The Sheriff's statements were reported in the Forest City COURIER for Monday, August 18, 1969 under the headline "Sheriff Bans All Adult Movies." A copy of the story from that newspaper is attached to this order as Exhibit A. The Sheriff was quoted at length and was quoted directly in many particulars in the August 20, 1969 edition of THIS WEEK, a Rutherford County newspaper of general circulation. A copy of that story is attached to this judgment as Exhibit B.

The defendant, when confronted next day with the August 18, 1969 news story, read it and confirmed to another Rutherford County motion picture exhibitor that the story was accurate in substance. The defendant at the first hearing on September 11, 1969 denied that the headlines on the stories were correct; but the headlines and the supporting stories were testified to by the news people who wrote them and by others, and the defendant did not thereafter in the second hearing make any denial of the direct quotations attributed to him. The court finds the news stories and headlines to be correct in substance.

On August 20, 1969, Sheriff Huskey announced over the radio that he had closed the Midway Drive In Theatre for showing obscene films.

The defendant, also without having reviewed the film, informed J. W. Griffin, a theatre owner, that if Griffin showed the film "Where Eagles Dare" he would confiscate the film and arrest the owner.

The defendant also through threat of prosecution prevented the showing of the film "Candy" at the Tri-City Drive In and produced a temporary suspension of that theatre for two days.

As a result of the defendant's threats the plaintiff discontinued showing films with the labels "M", "R" and "X" and has not shown them since August 20, 1969. The evidence is that faced with a steady diet of "G" movies, customers *1234 have stayed away in large numbers and that the plaintiff's business has suffered and that the effect of the ban will be to put the plaintiff out of business and cause a serious economic loss to its owners. The plaintiff has shown that the defendant's actions, if unjustified, cause and have caused irreparable harm to the plaintiff and that the plaintiff's remedy at law is inadequate.

There is no evidence before this court to determine whether any movie shown by any exhibitor or classified by any of the offending labels is or is not within the category of "obscene," nor whether any of the movies if shown for pay would violate the statutes of North Carolina. However, this court is not trying an obscenity case; prosecution for obscenity is a state matter. This court is hearing simply a question whether the actions of the Sheriff violate the constitutional guaranties of free speech and freedom of the press under the circumstances herein shown.

Motion pictures, including those displayed commercially, are a type of speech or expression the display of which is protected by the First and Fourteenth Amendments. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S. Ct. 777, 96 L. Ed. 1098 (1952).

Obscenity is not protected by the First Amendment. Although obscenity is a form of speech or expression, a majority of the Supreme Court have thus far been consistent in holding that if speech or expression is obscene it is a proper subject of governmental regulation. States can still make obscenity unlawful. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir., 1969).

Serious problems are presented by the procedures through which alleged obscenity may be apprehended and its purveyors prosecuted. As far as the seizure of allegedly obscene film is concerned, it is now clear that law enforcement authorities may not lawfully seize offending film without first conducting an adversary hearing with the burden on the prosecution, at which an opportunity is afforded the defendant to test the question of obscenity in a preliminary way before a judicial officer. The proceedings must be "designed to focus searchingly on the question of obscenity." Marcus v. Search Warrants, 367 U.S. 717, 732, 81 S. Ct. 1708, 1716, 6 L. Ed. 2d 1127 (1961). The adversary hearing must be conducted before the issuance of the warrant. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964).

The actions of the defendant in this case raise a deeper question the question of advance censorship or prior restraint on the display of film alleged to be obscene. Where the prior restraint is a physical seizure it is clearly unlawful. A Quantity of Copies of Books v. Kansas, supra. Where the restraint requires a license from a censor who may suppress a picture found to be "sacrilegious" it has been held to violate the constitutional protection. Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at page 503, 72 S. Ct. 777. "* * * [S]uch a previous restraint is a form of infringement upon freedom of expression to be especially condemned." A heavy burden rests upon the state to demonstrate that the circumstances allow an exception to this principle. Burstyn v. Wilson, supra, 343 U.S. at page 504, 72 S. Ct. at 781. However, in a five to four vote the Supreme Court held in Times Film Corp. v. Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961), that Chicago could by ordinance validly require exhibitors to submit for examination a copy of any film proposed to be run in Chicago. The Times Film Corp. holding is narrow; it did not abrogate any of the requirements of adversary hearing before prosecution has begun; and it does not appear to have involved any serious evidence that the ordinance itself had any particular "chilling" or inhibiting effects upon the conduct of the exhibitors.

*1235 When the advance censorship question came back before the Court they held in Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965), that a state censorship procedure was invalid because it allowed a censorship decision without a previous adversary hearing and because it failed to place upon the censor the burden of proving that the film was unprotected by the Constitution.

The Freedman case also enunciated the principle that in order for censorship to be valid, the exhibitor must be assured:

"* * * by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

"Without these safeguards, it may prove too burdensome to seek review of the censor's determination." (pp. 58-59, 85 S.Ct. at p. 739)

The Court went on to say:

"How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme, is, of course, for the State to decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469, we upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more reason for expeditious determination of the question whether a particular film is constitutionally protected." (p. 60, 85 S.Ct. at p. 740) (Emphasis added.)

In Teitel Film Corp. et al. v. Cusack et al., 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968), the Court held invalid the Chicago motion picture censorship ordinance because it did not comply with the requirements set out in Freedman v. Maryland, supra.

The censorship decisions cited above are not directly in point on their exact facts, but they are clear guides in their establishment of a constitutional requirement that there be no suppression or "chilling" of rights of speech and expression without (1) a prior adversary hearing on the obscenity of such matter conducted (2) with great dispatch and (3) with the burden being upon the state.

It is by this time abundantly clear that state action which chills or suppresses exercise of rights of speech and expression protected by the First and Fourteenth Amendments should be restrained by courts if the alternative remedy, pursuit of defense and appeal in the state courts, is not reasonably calculated to provide relief. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Cameron v. Johnson, 381 U.S. 741, 85 S. Ct. 1751, 14 L. Ed. 2d 715 (1965), 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182 (1968).

*1236 Every law enforcement officer has the right and the duty to prosecute those who violate the criminal law. If the conduct of the defendant were in fact restricted to the pious utterances which he admitted on the witness stand, his published statements would be nothing more harmful than a routine call for "law and order" in Rutherford County. The court, however, finds his conduct to have been thus limited and restricted neither by statute nor by any restraint of his own. His statements that he would seize or prosecute the exhibitors of all "adult" films or films labeled "R" and "X" were statements of prejudgment based on a letter code devised in Hollywood or New York for material which Sheriff Huskey had never seen! Probable cause for violation of North Carolina obscenity statutes is a judicial determination which can not be delegated to the motion picture distributors association nor to the film producers nor to studio officials. It is an individual determination which has to be made film by film on a local level after an adversary hearing, if convictions are to flow therefrom.

The chilling effect of the defendant's utterances upon the plaintiff's freedom and pocketbook are fully and dramatically demonstrated by the evidence. The prior restraint which his utterances produced is unquestionable. The unconstitutionality of that restraint is demonstrated.

It is therefore ordered that the defendant be, and he hereby is enjoined, pending further orders of court, from issuing or enforcing any past or future "ban" or statement or proclamation or remark in prejudgment as to what film or films or types of labels of films are going to be considered unlawful and subject to prosecution. It is further ordered that if any prosecution take place, it be preceded by an adversary hearing with full notice to the defendant and with full observance of the requirements as to burden of proof, notice and opportunity to be heard and judicial determination before issuance of a warrant, all as required in the decisions of the Supreme Court of the United States and the Circuit Court of Appeals, including the decisions herein referred to.

This is not a decision on the obscenity or "purity" of any film that may have been mentioned in the evidence nor in the exchange of views between the defendant and the motion picture people. This is simply a determination that the rights of the plaintiff and others similarly situated have been violated by the public statements and actions of the defendant and that those rights must be observed in the future.