Appellees, indicted for violating the Massachusetts obscenity
law as a result of exhibiting the film, "I am Curious (Yellow),"
brought this action in the federal district court for an injunction
against the enforcement of the statute and for a declaration of its
unconstitutionality. A three-judge District Court, holding that
appellees might be irreparably injured if unable to show the film,
granted injunctive relief.
Held: The District Court made no finding that the
threat to appellees' federally protected rights "[could] not be
eliminated by [their] defense against a single criminal
prosecution," to meet the great and immediate irreparable injury
requirement of
Younger v. Harris, ante, p.
401 U. S. 37, at
401 U.S. 46, before a
federal injunction of state criminal proceedings can properly
issue. The judgment is therefore vacated, and the case remanded for
reconsideration in the light of
Younger, supra, and
Samuels v. Mackell, ante, p.
401 U. S. 66.
306
F. Supp. 1363, vacated and remanded.
Page 401 U. S. 217
PER CURIAM.
This is an appeal from the order of a three-judge court granting
a preliminary injunction against any civil or criminal proceedings
in state courts against the appellees. Appellant Byrne is the
district attorney of Suffolk County, Massachusetts. The appellees
own and operate a motion picture theater in Boston. As a result of
exhibiting the film entitled "I am Curious (Yellow)" at their
theater, appellees were charged by District Attorney Byrne with
violating Massachusetts General Laws, Chapter 272, § 28A, which
prohibits the possession of obscene films for the purpose of
exhibition. [
Footnote 1]
After the filing of the original state indictments against them,
appellees brought the present action in federal
Page 401 U. S. 218
court. [
Footnote 2] They
sought an injunction against both pending and future prosecutions
under the Massachusetts obscenity law, and a declaration that the
state obscenity law was unconstitutional on its face and as
applied. [
Footnote 3] The
Page 401 U. S. 219
three-judge District Court held that appellees had a probability
of success in having the statute declared unconstitutional, that
abstention would be improper, and that appellees might suffer
irreparable injury if they were unable to show the film. The
three-judge court, one judge dissenting, therefore granted a
preliminary injunction, forbidding the initiation of any future
prosecutions or the execution of the sentence imposed in the state
proceedings then pending.
306 F.
Supp. 1363 (1969). The district attorney appealed. We granted a
stay of the district court order,
396 U. S. 976
(1969), and subsequently noted probable jurisdiction, 397 U.S. 985
(1970).
Page 401 U. S. 220
In discussing the subject of irreparable injury, the court
said:
"We do not agree with defendant's contention that there is no
indication of irreparable injury. Even if money damages could be
thought in some cases adequate compensation for delay, this
defendant will presumably be immune. We agree with plaintiffs that
the box office receipts, if there is a substantial delay, can be
expected to be smaller. A moving picture may well be a diminishing
asset. It has been said, also, that, in assessing injury, the
chilling effect upon the freedom of expression of others is to be
considered.
See Dombrowski v. Pfister, 1965,
380 U. S.
479,
380 U. S. 486-489."
306 F. Supp. at 1367. There was, however, no finding by the
District Court that the threat to appellees' federally protected
rights is "one that cannot be eliminated by [their] defense against
a single criminal prosecution."
Younger v. Harris, ante,
p.
401 U. S. 37, at
401 U.S. 46. Because the
District Court, in considering the propriety of injunctive and
declaratory relief in this case, was without the guidance provided
today by our decisions in
Younger v. Harris, supra, and
Samuels v. Mackell, ante, p.
401 U. S. 66, we
vacate the judgment below and remand for reconsideration in light
of those decisions.
It is so ordered.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this appeal.
[For concurring opinion of MR. JUSTICE STEWART,
see
ante, p.
401 U. S.
54.]
[
Footnote 1]
Mass.Gen.Laws, c. 272, § 28A, provides:
"Importing, printing, distributing or possessing obscene
things."
"Whoever imports, prints, publishes, sells or distributes a
pamphlet, ballad, printed paper, phonographic record, or other
thing which is obscene, indecent or impure, or an obscene, indecent
or impure print, picture, figure, image or description, or buys,
procures, receives or has in his possession any such pamphlet,
ballad, printed paper, phonographic record, obscene, indecent or
impure print, picture, figure, image or other thing, for the
purpose of sale, exhibition, loan or circulation, shall be
punished. . . ."
[
Footnote 2]
While the federal action was pending, those indictments were
dismissed for defects under Massachusetts law, and new state
indictments were returned. Under these circumstances, we treat the
state prosecution as pending at the time the federal suit was
initiated.
[
Footnote 3]
The appellees' prayer for relief, as amended, read as
follows:
"Wherefore, plaintiffs pray: "
"(1) That a preliminary injunction and a permanent injunction be
granted prohibiting the defendant, his agents or servants, from any
further seizures of prints of the motion picture 'I Am Curious
(Yellow)' without a prior adversary proceeding in an appropriate
court in Massachusetts as to the alleged obscenity of the motion
picture."
"(2) That the Court order the defendant to return to the
plaintiffs herein the print of the motion picture 'I Am Curious
(Yellow)' seized by the defendant, his agents or servants, on
Thursday, May 29, 1969; that the Court order the suppression of its
evidence in the cases now pending against the plaintiffs herein in
Suffolk Superior Court as aforesaid, both for the reason that there
was no prior adversary proceeding before seizure of the print,
which was then exhibited to the Grand Jury, and the basis upon
which indictments were returned."
"(3) That this Court order a preliminary injunction, and that,
following appropriate hearing, a permanent injunction against the
defendant, his agents or servants from any further continuation of
the prosecution of the plaintiffs herein in the said six actions
now pending in the Suffolk Superior Court (Docket numbers 42587,
through 42592) until such time as the said Sections 32 and 28A of
Massachusetts General Laws, Chapter 272, have been appropriately
altered and amended."
"(4) Your plaintiffs further pray that an injunction issue
restraining this prosecution of the motion picture 'I Am Curious
(Yellow),' or any further prosecution in this jurisdiction of the
motion picture 'I Am Curious (Yellow)' on the grounds that it is
'allegedly obscene.' Plaintiffs contend and pray herein on the
basis that any such prosecution is 'without hope of success.' . .
."
"(5) That this Court declare and say that Section 28A of Chapter
272 of the Massachusetts General Laws is unconstitutional of
[
sic] its face, and unconstitutional in its application to
the plaintiffs herein, all in accordance with Title 28 U.S.C.
Section 2201."
"(6) That this Court declare and say that the motion picture 'I
Am Curious (Yellow)' is not obscene within the constitutional
definition of obscenity as set forth by the United States Supreme
Court in
Redrup v. New York, 386 U. S.
767 (1967). . . ."
"(7) That this Court restrain any future prosecutions of the
motion picture 'I Am Curious (Yellow)' on the grounds that it is
'allegedly obscene' within the terms of Section 28A of Chapter 272,
for the reason that there is no way that any future defendant in
such prosecution could 'know the work to be obscene.'"
"(8) That any further prosecutions of the motion picture 'I Am
Curious (Yellow)' on the grounds that it is 'allegedly obscene' and
therefore violative of Section 28A of Chapter 272 of Massachusetts
General Laws be restrained until such time as the Massachusetts
courts affirm that the standards for finding a work obscene within
the constitutional definition of obscenity as set forth in
Redrup v. New York, supra, are that -- (1) That the work
was being shown to those under the age of 18; (2) Or that the work
was an invasion of privacy; or (3) That the work was being
advertised in a 'pandering' manner."
"(9) That this Court issue an injunction restraining any further
prosecutions of the plaintiffs herein for the showing of the motion
picture 'I Am Curious (Yellow)' on the grounds that any prosecution
is 'without hope of success.' . . ."
"(10) For such other and further relief as this Court shall deem
essential or proper in accordance with Equity and Law."
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE
MARSHALL join, dissenting.
The injunction appealed from issued December 6, 1969, after
appellees' convictions in state court on November 12,
Page 401 U. S. 221
1969, of exhibiting an obscene film in violation of state law.
In the absence of any showing of bad faith or harassment, appellees
were therefore obliged to pursue their constitutional defenses on
appeal from the convictions to the state appellate court, and the
Federal District Court erred in enjoining appellants from
interfering with future showings of the film.
Freedman v.
Maryland, 380 U. S. 51,
380 U. S. 60
(1965), limited to preservation of the
status quo for the
shortest, fixed period compatible with sound judicial resolution,
any restraint imposed in advance of prompt, final, judicial
determination of the question of the film's alleged obscenity.
See also Lee Art Theater v. Virginia, 392 U.
S. 636 (1968). But there was no interference from July
through November; appellant Byrne honored a stipulation made July
15 in federal court not to seize the film or interfere with its
exhibition pending the outcome of the trial. Byrne withdrew from
the stipulation, and threatened to move against further exhibition
of the film only after the convictions were obtained. Clearly, he
was not required to continue to stay his hand pending the outcome
of appeals from the convictions;
Freedman was satisfied by
a "prompt judicial decision
by the trial court,"
Teitel Film Corp. v. Cusack, 390 U.
S. 139,
390 U. S. 142
(1968) (emphasis supplied);
Interstate Circuit, Inc. v. City of
Dallas, 390 U. S. 676,
390 U. S. 690
n. 22 (1968). Rather than remand, I would therefore reverse the
judgment of the District Court for the reasons stated in my opinion
in
Perez v. Ledesma, ante, p.
401 U. S.
93.