Grove Press, Inc. v. Bailey

Section 4. (a) No prosecution may be commenced against any person for violating Sections 2 and 3 of this Act unless the accused is first served with prior written notice that there is reasonable cause to believe the material upon which such prosecution is based violates this Act, and the accused has, after receiving such notice violated this Act.

(b) The written notice provided for in paragraph (a) of this Section 4 may be given by only the following officials: the State Attorney General and any Assistant Attorney General; the district attorney, county solicitor, their assistants and deputies, or any person whose office and duty is to prosecute criminal actions before any state, county or municipal court; the sheriff; the chief of police of any municipality or town; and the duly authorized law enforcement employees of the Department of Public Safety.

(c) Any person receiving such written notice provided for in paragraph (a) of this Section 4 shall have the right within 30 days from such notice to file an appropriate action for declaratory judgment to determine the validity of such written notice, but noWest Page 247such action shall, by reason of the commencement thereof, stay or in any way delay or postpone any prosecution for the violation of this Act.

* * * the Court, having looked at and viewed this picture film (I Am Curious Yellow), the Court is of the opinion that [respondents] Motion to Dissolve and Motion to Discharge should be granted and it is the opinion of the Court that the movie is obscene according to the community standards of the Bessemer Division of the County.

It is ORDERED that the prayer of the plaintiff for such restraining order be, and the same is hereby, denied. However, plaintiff is entitled to have possession of its property, the film, and the defendants are hereby directed not to interfere with the peaceful possession of said film by the plaintiff.

Plaintiff is hereby directed not to make any alterations, changes, deletions or additions to said film and to preserve it intact for production on the order of the Court.

(1) the motion picture film "I Am Curious (Yellow)", as a matter of law, is not obscene and is Constitutionally protected material;

(2) the defendants have by the issuance of their respective written notices of November 21, 1969 to the manager of the Midfield Theatre, and by their threats to arrest her and seize the print of the motion picture film "I Am Curious (Yellow)", acted in bad faith and for the purpose of interfering with the distribution and exhibition of said motion picture film;

(3) the defendants have by their conduct acted contrary to the rights, privileges and immunities guaranteed plaintiff by theFirst,FourthandFourteenthAmendments to the Constitution of the United States, and asWest Page 248a proximate result thereof have unconstitutionally applied Act No. 698 in this case;

(4) plaintiff has by virtue of the said conduct of defendants, and by virtue of defendants' labeling and characterizing the motion picture film "I Am Curious (Yellow)" as obscene, caused plaintiff to suffer irreparable injury and damage in that plaintiff will be prevented from the free and uninterrupted dissemination and exhibition of said motion picture film as guaranteed by the Constitution;

(5) said threats of arrest and seizure have produced a chilling effect on the Constitutionally protected rights of the plaintiff and members of the public over 18 years of age;

(6) the said motion picture film produces revenue for the plaintiff and its licensees totaling in excess of $4,000 per day; and

(7) the conduct of the defendants has caused a large number of adult members of the public not to attend the showing of said motion picture, thereby depriving plaintiff of large gains and proceeds.

Dombrowskiis strong medicine. It involves interposition of federal power at the threshold stage of the administration of state criminal laws.Dombrowski'sremedy is justified only whenFirstAmendment rights, which are basic to our freedom, are imperiled by calculated, deliberate state assault. And those who seek federal intervention bear a heavy burden to show that the State, in prosecuting them, is not engaged in use of its police power for legitimate ends, but is deliberately invoking it to harass or suppressFirstAmendment rights.Dombrowskishould never be invoked when the State is, in substance and truth, engaged in the enforcement of valid criminal laws. Ordinarily, the presumption that the State's motive was law enforcement and not interference with speech or assembly will carry the day. (390 U.S., at p. 623, 88 S.Ct., at p. 1342)

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction or to protect or effectuate its judgments.

This Court has repeatedly indicated that "abstention" is appropriate "where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships." Louisiana Power Light Co. v. City of Thibodaux,360 U.S. 25,32,79 S.Ct. 1070,1074, [3 L.Ed.2d 1058] (dissenting opinion). See generally Harrison v. NAACP,360 U.S. 167,79 S.Ct. 1025,3 L.Ed.2d 1152; Allegheny County v. Frank Mashuda Co.,360 U.S. 185,188-189,79 S.Ct. 1060,1062-1063,3 L.Ed.2d 1163. The first of these interests has been found in cases in which the federal constitutional issue might be mooted or "presented in a different posture" by a state court determination of pertinent state law. See, e.g., Chicago v. Fieldcrest Dairies, Inc.,316 U.S. 168,62 S.Ct. 986,86 L.Ed. 1355; Spector Motor Service, Inc. v. McLaughlin,323 U.S. 101,65 S.Ct. 152,89 L.Ed. 101; Alabama State Federation of Labor v. McAdory,325 U.S. 450,65 S.Ct. 1384,89 L.Ed. 1725. The second of these interests has been found, for example, in situations in which the exercise of jurisdiction by a federal court would disrupt a state administrative process, Burford v. Sun Oil Co.,319 U.S. 315,63 S.Ct. 1098,87 L.Ed. 1424; interfere with the collection of state taxes, Toomer v. Witsell,334 U.S. 385,392,68 S.Ct. 1156,1160,92 L.Ed. 1460; or otherwise create "needless friction" between the enforcement of state and federal policies. Louisiana Power Light Co. v. City of Thibodaux,supra,360 U.S. at 33,79 S.Ct. 1070. See also Harrison v. NAACP,supra.

* * * This principle does not of course involve the abstention of federal jurisdiction, but only theWest Page 253postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication.

Abstention in a diversity case is no more an abdication of the constitutional-statutory duty to decide than is abstention in the field of determination of federal questions in which the Federal Courts have a "primacy." England v. Louisiana State Board of Medical Examiners, 1964, [375 U.S. 411],84 S.Ct. 461, [11 L.Ed.2d 440].

Abstention is neither abandonment ofduty,on the one hand, nor a problem of raw power, on the other. It is judge-fashioned and being such, the cloth should be cut to the pattern.

The doctrine is, of course, a means devised to ameliorate some of the problems inevitably growing out of our unique federalism. For federal question cases, unseemly or unnecessary collision with a state is to be avoided, or at least postponed until such time as it is inescapable. Although the adjustment between the National Courts and a State takes a different turn in diversity cases, the underlying problem is essentially the same. And the impact — on local litigants and jurisprudence — is equally, if not more, awesome. This concern is, for example, reflected by the "outcome determinative" test likewise judge-fashioned to meet the needs of Erie, only few of which had emerged when Meredith (note 1, supra) was announced in 1943. This approach recognizes that it is basically unfair for decision to turn on irrelevant accidents such as state citizenship, residence, geography, or the case being filed in one courthouse rather than in the one a block down the street.

* * * The abstention doctrine is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers. Ascertainment of whether there exist the "special circumstances," * * * prerequisite to its application must be made on a case-by-case basis. * * * (Citation omitted)

S. 45 — Gilmore, Oden, Pierce, Nabors, Turner, Engel, Cooper, Torbert, Clark, Vacca, Childs, Branyon, Folsom, Bailes, Pelham, McDermott, Harris, Jackson, Carr, Albea, McCarley, Leonard, Giles