SPEIGHT v. SLATON

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Argument of Robert Eugene Smith

Chief Justice Warren E. Burger: We’ll resume arguments in Speight against Slaton.

Mr. Smith, you may proceed whenever you’re ready.

Mr. Robert Eugene Smith: Mr. Chief Justice and may it please the Court.

First of all, I think we left off with the Court addressing the question about or comment to the extent that this Court has from time to time allowed the State Supreme Court of the States so we can give a say in its construction to its statute.

We suggest of course in this instance we think that the concept of the Circuit Judge Morgan was correct that this statute is sort of straightforward.

It says that any place that sells an alleged obscene publication by the definition of the criminal law, that’s using the criminal law definition, is declared to be and shall be a public nuisance.

Hence, the activity is clear that what they can do is one publication offered for sale could in fact, if it’s declared to be obscene, justify the closing the entire premises.

That’s what the statute says.

That’s what the statute gives them authority to do.

Now, certainly we have a question of who won the race to the courthouse door.

Well, obviously, in this context, we didn’t know and couldn’t know what’s in the mind of the prosecutor.

He files a civil action in the state court.

We of course, move right into federal court taking and trying to have an election of the jurisdictional forum in which we seek to litigate our rights and if we --

Chief Justice Warren E. Burger: Are you -- are you saying Mr. Smith that it is inconceivable that the state court would say that this statute, the state statute would pass constitutional muster for them as the state’s highest court only if it were construed and not to reach anything except to obscene materials.

Haven’t state courts exercise that kind of a role before?

Mr. Robert Eugene Smith: Sir, they have not generally done so.

There are some states of course which I pointed out in our brief that have done so but they are statutory weren't like the statute at bar here.

The New Riviera Arts Theater case was -- didn’t have such a statute in their jurisprudence, hence, we have one here.

There was such a statute as we indicated yesterday in the matter of presume limited which the state court construed to authorize the entire shuttering of the process and of course that’s what is here.

We don’t have a statute saying that the sale of that article would be a public nuisance.

This Court addressed itself to the question in Paris Adult Theater of whether or not a procedure could be employed whereby a film or a book or anything which might be declared to be obscene in civil proceeding could not further be shown and that’s of course now the law.

But here they are going on a broader attack saying we’re going to shut the entire premises because of the one thing.

Now, if the Court’s language in Heller and Roaden has significance in quoting Bantam Books and such that any law that necessary involves a prior restraint, comes to this Court bearing a heavy presumption against its validity and we’re talking about that kind of law in the context of this case.

As I said and it’s the extreme to which the law certainly can be applied that is obvious and patently apparent.

As I said before, if a department store which might offer for sale the book of Joy of Sex, if it prosecuted one or two week ago it didn’t say, okay they sold this book, hence the department store could be closed and everything there can be seized as contraband and destroyed.

Chief Justice Warren E. Burger: Hence the state court found that none of this material was obscene, none of those untoward offense would occur, would they?

Mr. Robert Eugene Smith: If it found just one item obscene, then everything will be declared.

This is not a --

Chief Justice Warren E. Burger: Unless they gave it a narrowing construction?

Mr. Robert Eugene Smith: Unless they ultimately gave it a narrowing construction.

But then the plain factual -- I mean the thing on its face absolutely says that the premises shall be constituted on public nuisance.

It isn’t the publication, it would be nuisance, it’s the use of the premises would be a public nuisance.

If it’s --

Justice William J. Brennan: Mr. Smith, I take it you have first to get over the hurdle whether all of those arguments should initially be addressed to the state agreements.

Whether, in other words, the Younger principles are to apply --

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: -- in a situation like this.

Mr. Robert Eugene Smith: Of course we have taken the Younger case and this Court has said that in a criminal proceeding, that the concepts of comity and federalism and such would apply and that certainly that is the law as of today.

This Court left open as the comments of the various writers of the opinion made clear that in a civil case, they would post to you -- would postpone the reaching of that question and of course the [Voice Overlap].

Justice William J. Brennan: But my question is, if the District Court erred in not deciding the constitutional questions you raise because as I understand it they did not decide the merits, they said no you have to go on Younger principles and submit those constitutional claims to the state tribunals, did they not?

Mr. Robert Eugene Smith: Yes, sir that’s clear.

Justice William J. Brennan: Now, if we were to say they were wrong about that, would we then reach the merits of the constitutional claims or would we send them back to the District Court and say now you decide the merits?

Mr. Robert Eugene Smith: I think that’s what we’re probably have to --

Justice William J. Brennan: The latter?

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: So that really the issue we have to decide is this case that is here --

Mr. Robert Eugene Smith: Yes, sir.

Justice William J. Brennan: -- is whether you opt to take those constitutional claims to the state tribunals or you are entitled to have him heard by the District Court?

Mr. Robert Eugene Smith: That’s correct and of course the dramatic presentation or argument regarding the closing of an entire store is only made of course apparent to show that this is a matter of prior restraint obviously and that this is the way the state is going about it and the factual situation here.

If we have to take the issue that in criminal cases, the criminal cases started, we cannot have any federal court intervention.

We said, “Okay that’s one theory, that’s one rational of law,” then say now in civil cases, it can apply out of there, then we really don’t have anything left and the Civil Rights Act would almost be meaningless.

Chief Justice Warren E. Burger: You have nothing left except the state courts?

Mr. Robert Eugene Smith: Yes, sir.

I am saying that the Civil Rights Act, the statute of Congress would be almost meaningless then if we were to be foreclosed the right to go into a federal court when a civil matter has been presented.

Justice William H. Rehnquist: So if the meaning there is only in the sense that you couldn’t interrupt an already commenced a judicial proceeding.

It would certainly have a lot of other users where that situation didn’t obtain?

Mr. Robert Eugene Smith: Yes, sir.

But in the context of the case like this if we were first to file before there was any action on the part of the state then we’d be faced with the problem, is there a case in controversy.

And if there’s no case in controversy, can we in fact go in and seek a declaratory judgment.

So then what good is it to have Zwickler versus Koota that says that we have an election of forums or that election of forums to litigate federal constitutional rights should be allowed?

So we are saying that if this Court were to say that in civil cases already commenced where of course of prosecution knows what it's going to do in advance that we are foreclosed from going to federal court to litigate our federal constitutional rights then I am saying statute of Congress that permits injunctive relief would almost be meaningless or at least --

Justice Byron R. White: So that’s the same situation with respect to criminal state criminal proceeding?

Mr. Robert Eugene Smith: No, but I think this Court answered the questions there with regard to --

Justice Byron R. White: And they answered that you said you couldn’t go into federal court if there was a pending proceeding, but it's the same kind of an argument, you’re making now was made then?

Mr. Robert Eugene Smith: Yes, and then you have of course the -- that is true except --

Justice William J. Brennan: I wonder Mr. Smith what really the considerations of federalism would underlay the Younger line of decisions in the criminal -- cases of pending criminal proceeding.

And aren’t you really in the position where you have to argue that in respect to pending civil proceedings considerations of federalism are not as significant as they are whether pending criminal proceedings.

Mr. Robert Eugene Smith: Yes.

Justice William J. Brennan: And secondly I suppose, you’ve got to confront the holding below that this civil proceeding is in aid of the enforcement of the criminal statutes -- with state criminal statutes and in that sense this is not a pure civil proceeding, or sort of high bred quasi.

Mr. Robert Eugene Smith: I agree, but we take the position of course that it is not an aid in the enforcement of criminal law.

Justice William J. Brennan: That is purely civil?

Mr. Robert Eugene Smith: It’s purely civil, Your Honors because you do not have the seizure of film to use in a criminal case.

None of this material needed to be seized to be used in any of the criminal cases.

It’s just a shuttering of the premises because something was alleged to be obscene and of course we’re being deprived of the criminal burden of proof by the proceedings because it’s a single judge deciding whether or not he thinks an item in there was obscene.

And if he thinks an item was obscene, the entire place is shuttered and we say that that makes a significant difference and federalism should not be the bar to us seeking our belief in the federal court in this regard.

Justice William H. Rehnquist: If it were an action for a criminal nuisance prosecution with exactly the same result, you would clearly be barred by Younger, wouldn’t you?

Mr. Robert Eugene Smith: Yes, sir.

But then again we wouldn’t have the concept of the potential of the irreparable harm.

The irreparable harm being the potential for self-censorship, the potential for chilling of speech.

One year he had -- if he’s had a business and he sold the publication which might be held by one judge to be obscene somewhere and that the entire business could be shuttered then there would be a chilling of speech which of course --

Justice William H. Rehnquist: Then why wouldn’t you have the same chilling if you have exactly this Georgia Statute on the books that you have except it was a criminal statute rather than a civil one?

Mr. Robert Eugene Smith: Then we’d have all the attended protection that a criminal case would afford a litigant that is not present necessarily in the civil case.

Whether it’s the burden of proof, the right of juries, things of this nature.

So we say that this isn’t necessarily the same.

So at least in a jury case where it is applicable in a criminal case, you -- if a community standard as this Court has indicated is to be determined whether it’s local or statewide at least the Court has said the jury is the representative of the community and can make that determination.

You don’t have that with a judge who may necessarily justify in one publication may offend him subjectively and he -- or otherwise in applying the test of law, he might find it obscene and then says okay, fine.

One publication we will shutter the entire premises.

So I think it’s different.

The criminal case is -- you can, if there’s a single criminal case now I think what this Court is said is, if there is a single criminal case you can defend your position in that case.

However, suppose the Government brought multiple cases all across the country relating to the same old type of activity to the same parties, it might be that if the defendant in that situation could say that he thinks the Government is engaging in bad faith enforcing the law or harassment that he could go forward.

But here we have as I said a shuttering; it’s completely independent of the criminal --

Justice William H. Rehnquist: There’s no use at all that state can make of the result of this civil proceeding at any subsequent criminal prosecution?

Mr. Robert Eugene Smith: No, sir because they’re asking to destroy everything.

There is no question or contention.

There is no request that the material be delivered up to the sheriff and/or to the clerk of the Court for potential use in the criminal case as there was in the Paris Adult Theater concept or Walter’s, there’s a Walter’s case there where that concept has been held or in the Palaio versus McAuliffe case which was the rationale of the Fifth Circuit that the two judges in this Court in the case here bottomed themselves on, so we'd say no sir we don’t feel that there are.

Justice Harry A. Blackmun: Isn’t that the -- one case was removed to federal court, was it not?

Mr. Robert Eugene Smith: The original case was removed.

Justice Harry A. Blackmun: Is that still pending?

Mr. Robert Eugene Smith: No, sir.

Justice Harry A. Blackmun: What’s happened to it?

Mr. Robert Eugene Smith: I think it was remanded back after the judges decided that they had decided to abstain or in essence settled --

Justice Harry A. Blackmun: Then there was reference somewhere to a Sanders case argued to the Georgia Supreme Court, has that been decided?

Mr. Robert Eugene Smith: No, sir.

It has not.

It has not as of yesterday sir.

Justice Harry A. Blackmun: I see.

Mr. Robert Eugene Smith: And of course, I think there’s circumstances even developed after this case had started that litigation was independent and --

Justice Potter Stewart: One of your argument or at least are you making the alternative argument that even if the Younger doctrine applies to this case, that this case is within one of the exceptions recognized by Younger, is that the reason you keep telling us about the --

Mr. Robert Eugene Smith: Irreparable.

Justice Potter Stewart: Irreparable?

Well, before you can have an injunction anywhere in any Court at anytime quite a part from Younger or federalism or anything else, you have to show irreparable harm, don’t you?

Mr. Robert Eugene Smith: Yes, sir.

Justice Potter Stewart: That’s just a basic equity concept before they can be an injunction.

So that didn’t get you anywhere?

Mr. Robert Eugene Smith: Right, sir.

Justice Potter Stewart: But are you telling us that this comes within one of the exceptions recognized by the Younger.

Even assuming, that’s even assuming this were as where as my brother Rehnquist has suggested a criminal nuisance statute so that Younger would be clearly applicable.

Are you arguing that this comes within one of the exceptions recognized in Younger that would allow an injunction by federal court of a state criminal proceeding?

Mr. Robert Eugene Smith: Yes sir, that is an alternative argument we have made.

Justice Potter Stewart: I wondered why you were talking so much about the substantive merits of your claim and about prior restraint and I assumed that it’s only materiality could be -- could reflect that alternative argument?

Mr. Robert Eugene Smith: Yes, sir and of course the Court did not reach that issue because of the way they disposed of the case.

Justice Potter Stewart: Right.

I know but I am asking about your argument.

Mr. Robert Eugene Smith: Yes, sir that’s right and that’s one of the things we had hoped to demonstrate and tried to demonstrate in the court below.

So, in summary as I said, our position is that Younger should not apply these civil cases.

This Court has before it Lynch versus Snepp in which no action has been taken and I think it was relied upon by counsel in our case here in the brief.

We say that this is a kind of situation that if this Court takes the language that any statute that involves itself a prior restraint bears a heavy presumption against its constitutional validity, this is the kind of case that should have allowed the determination.

Justice Potter Stewart: Suppose that the question is quite so simple as you imply by your, just what you said in conclusion that Younger should not apply to civil cases, don’t you think possibly that it might apply to some civil cases but not to others?

Mr. Robert Eugene Smith: Yes, sir.

I think, particularly it should --

Justice Potter Stewart: I hear it’s a civil case in which the state, the state is the plaintiff.

Normally when you think of civil cases, we think of cases between two private parties in a state or federal court.

Here, the state is the plaintiff.

The state is the plaintiff, which may make it different from other civil cases?

As the state suggest it’s an aid of its criminal laws, but even if not an aid or its criminal laws, it’s sort of a quasi-criminal proceeding, is it not?

Mr. Robert Eugene Smith: No, we don’t.

Justice Potter Stewart: And try to put somebody out of business because of his antisocial behavior, isn’t that it?

Mr. Robert Eugene Smith: Yes, sir.

Justice Potter Stewart: So it pretty much reflex the same purpose that criminal laws reflect, does it not?

Mr. Robert Eugene Smith: Or punish the criminal law to finish it for the --

Justice Potter Stewart: Right.

Trying to stop somebody from doing something antisocial --

Mr. Robert Eugene Smith: Yes, sir.

Justice Potter Stewart: -- which is different from many other sorts of civil cases, tort, contract cases, divorces cases, and so on.

Mr. Robert Eugene Smith: But then a lot of this cases, Your Honor if it’s a civil case involving litigants, private litigants who are not state officials or state action then we lose some of the rights under our Civil Rights Act there because there must be certainly some color under color statements --

Justice Potter Stewart: Under state action in a court that permits racial restrictive covenant such as been held to be state action insofar as the Court permits libel, defamation verdicts that’s been held to be state action, New York Times and so on.

Mr. Robert Eugene Smith: Yes, sir.

Justice Potter Stewart: So that’s not the whole answer.

I am just suggesting that the answer may not be quite so simple as say, Younger applies to civil actions or it doesn’t apply to civil actions.

It may apply to some, some kinds and not to other, wouldn’t you?

Mr. Robert Eugene Smith: Likewise, of course Younger is now seemingly saying that it always -- it almost always applies to criminal actions and of course I was making the other simplification with regard to civil actions.

Justice Potter Stewart: Right.

Mr. Robert Eugene Smith: And that was merely the purpose.

Thank you.

Chief Justice Warren E. Burger: It is somewhat analogous, is it not, to proceedings to impound and perhaps ultimately destroy contaminated food or contaminated drugs where there is no purely criminal procedure, but a forfeiture procedure?

Mr. Robert Eugene Smith: No, sir.

I don’t think so.

This Court, in the opinion of the Chief Justice indicated that material is not contraband until such time as there has been a judicial determination or at least an adversary hearing of some type after the seizure or before the seizure in a civil --

Chief Justice Warren E. Burger: Roughly we have said that in certain circumstances, it can be seized and impounded pending the determination of its -- in the case of food or drugs it’s contaminated or dangerous condition?

Mr. Robert Eugene Smith: Yes, but I think this Court said in the Heller-Roaden series of cases that when you are dealing with a civil forfeiture that perhaps quantity both [Voice Overlap]

Chief Justice Warren E. Burger: Because of the First Amendment implications and all?

Mr. Robert Eugene Smith: That’s correct.

Chief Justice Warren E. Burger: But I was speaking procedurally of the analogy.

It’s analogous to some of the things that were mentioned in Fuentes-Shevin -- Fuentes against Shevin.

Mr. Robert Eugene Smith: Yes, sir.

Chief Justice Warren E. Burger: That in certain circumstances, speedy action is required by the state that isn’t pure civil procedure and it isn’t a pure, certainly is the criminal procedure.

Mr. Robert Eugene Smith: Now, of course, it is designed as to protect public from the material going out into the public and injurious to their health and --

Chief Justice Warren E. Burger: And that’s at least to whether it’s correct or not, that’s Georgia’s theory here, is it not?

Mr. Robert Eugene Smith: No, they are simply saying that if you sell -- well, of course we don’t know what the legislative theory is in passing the legislation except just to close the place down.

It could be conceivably said to be that they feel that they should --

Chief Justice Warren E. Burger: The Court say -- the state courts might rationalize it?

Mr. Robert Eugene Smith: Yes, sir.

But you take the situation of the drive-in theater that this Court dealt with in Raab versus State of Washington where there was out in the open and it was a constant repetitive kind of thing.

Well, okay that may have First Amendment implications, but then again had they brought an nuisance action because of the continual showing of the kind of material that people were having it thrust upon them and I think they are in that kind of area.

The state may have had the interest that would have justified perhaps going forward.

But we say this is not that kind of interest.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Smith.

Mr. Moran.

Argument of Thomas R. Moran

Mr. Thomas R. Moran: Mr. Chief Justice and may it please the Court.

To start with, I’d like to tell the Court that the -- as my brother has told the Court that the Sanders case now before the Georgia Supreme Court has not been decided.

It brought into question George Code annotated 26-2103 which is the statute that was certfully attacked here.

There are other grounds the Court may not decide it on that particular statute, but I thought the Court would be interested in the DS before the Georgia Supreme Court.

Now, in this case, may it please the Court the facts are not too complicated.

We brought --

Justice Harry A. Blackmun: Let me get that straight Mr. Moran, do you think it will bear on this case or do you think it will not bear on this case?

Mr. Thomas R. Moran: Your Honor, as far as the briefs are concerned, it will bear.

I read the briefs and I know counsel in the other side.

There were two issues.

First of all it was closed on a nuisance theory based in part on the statute and then on a zoning statute, so the Supreme Court conceivably could go then and leave this issue alone.

Justice Harry A. Blackmun: Well, if it bears on the case and if it comes down before this case is decided, will counsel --

Mr. Thomas R. Moran: Yes, Your Honor.

Justice Harry A. Blackmun: -- bring it to our attention?

Mr. Thomas R. Moran: Yes, sir.

Your Honor, may it please the Court, the facts in this case are essentially that in August of 1972, the state brought a nuisance action some two months after we had a mistrial on a criminal case.

Nuisance action was brought against Camden Road Bookstore.

The criminal case was against one man Chandler who we found out after we brought the civil action either lost its proprietary interest or something and Speight took over.

Now, we set it down for rule hearing as a normal Georgia procedure in nuisance cases that was four days after the filing of the complaint.

On the morning that we arrived for Court after the Court had cleared its calenders for a rule hearing, where we were served with removal after we announced strategy.

At that time, we repaired to the federal court on the state court’s direction and we discussed the case, both counsel with Judge Moore (ph) who drew the case when we got over there, we sought over for a three-judge panel.

Between the time that we could hear the removal action in 1983 Civil Rights Actions filed by appellants herein, they alleged that the Georgia statute 26-2101, which is our General Obscenity Statute and in that time pro Miller, it tracked Roth memoirs and it had been declared constitutional in the Fifth Circuit and was affirmed by this Court in Gable versus Jenkins.

They attacked 26-2103 which is a nuisance statute that counsel has referred to.

They attacked 26-2104 which makes any material which had been found to be obscene, contraband, that is after determination, therefore we could destroy it and they attacked the entire nuisance chapters.

Now the District Court when we went over there did not reach the merits.

They decided the case with abstention, comity and federalism and sent us back.

That’s where we are at the present time.

Now, it’s important to note that the rule then pending in the First Circuit as far as abstention and comity and what to do when a injunction or declaratory leave is asked against the state statute, was it federal intervention will not rest on label such as civil or criminal?

It’s simply balancing of the competing interests.

The doctrine arose out of the Poile (ph) Chandler case and that’s what the Court did in this case.

They wanted the competing interest.

They determined that this was a quasi-criminal case and similar to Poile.

Therefore Younger versus Harris standard should apply, but I also found that this statute had never been construed by any state court.

Therefore, abstention would be proper.

Now --

Justice Potter Stewart: Now, what’s this -- did you think the District Court saw as an abstention case or as a case that should be dismissed under Younger against Harris.

Mr. Thomas R. Moran: I thought they say --

Justice Potter Stewart: The judge -- the prevailing opinion just simply dismisses and talks primarily by Younger, a concurring opinion towards about abstention and dissenting opinion talks a little about abstention.

What do you think this case is about?

Is it an abstention case or is it a dismissal by reason of Younger against Harris?

Mr. Thomas R. Moran: Your Honor, I think they’re both combined.

I think there was a one sentence in the majority opinion that said that in this instance --

Justice Potter Stewart: Well, there is no majority -- while yes there is because the concurring opinion toward them joined the opinion, yes.

Mr. Thomas R. Moran: In this particular case, the state courts has ruled under more of a reason why we ought to send it back.

I don’t think they went into it in any great depths.

Justice Potter Stewart: Because the Younger doctrine doesn’t have anything at all really to do with abstention, does it?

Mr. Thomas R. Moran: No, Your Honor.

Justice Potter Stewart: It’s quite a separate doctrine, consent?

Mr. Thomas R. Moran: I think --

Justice William J. Brennan: Mr. Moran, haven’t you suggested that when the District Court abstains as distinguished from applying Younger, the District Court ought not dismiss, but hold the case where the substantial -- here there was dismissal?

Mr. Thomas R. Moran: Yes, Your Honor.

Justice William J. Brennan: And wouldn’t we suppose since the, I think our case has rather been explicit so that if you are abstaining, you hold case.

Mr. Thomas R. Moran: And the statute --

Justice William J. Brennan: And far here, what the District Court did here was dismiss on Younger ground?

Mr. Thomas R. Moran: Yes, sir.

I totally agree, but I think there was some extension to back up their position that the state courts have enacted here.

I know this 1980 -- I am sorry, 2284 does make us -- mandate the Court to hold for this time.

Justice William J. Brennan: Yes.

Mr. Thomas R. Moran: But this rule as far we are in competing interest and now the rule in the Fourth and the Seventh Circuits also.

Lynch versus Snepp which is on appeal up here use that rule and so does Cousins versus Wigoda.

Now, the First Circuit went one step further when they added the quasi-criminal concept and read competing interest in light of Younger versus Harris standards.

Now this was left out --

Justice William J. Brennan: Mr. Moran, do you think that’s accurate description of the statute quasi-criminal?

Mr. Thomas R. Moran: Oh --

Justice William J. Brennan: I gather it’s in the -- is it a Section in the General Obscenity Statute?

Mr. Thomas R. Moran: Yes, Your Honor it’s in the criminal provisions.

It’s the next statute codified under the Obscenity Standard.

Justice William J. Brennan: Well, as I understand it, it may be pursued independently without reference to any present or perspective criminal prosecution, can they not?

Mr. Thomas R. Moran: No, that’s what my understanding of the statute is, but you have to go back to 21 -- 26-2101 along the General Obscenity Statute and determine if it’s obscene, which is a criminal statute.

Justice William J. Brennan: Yes.

Mr. Thomas R. Moran: In other words, if they find obscene material, we could move in either two ways at the same time.

We could hit criminally or civilly or we could hit it with both.

Justice William J. Brennan: Both.

Mr. Thomas R. Moran: Like Kinsley Books suggested Your Honor.

Now --

Justice Thurgood Marshall: That was a negative quasi-criminal.

Just because you have a criminal remedy or civil remedy doesn’t make the civil remedy quasi-criminal, does it?

Mr. Thomas R. Moran: I think in this instance it will because we are further in the end with the criminal statute.

It simply another alternative penalty.

Justice Thurgood Marshall: To the criminal statute or to the general peace and good order of Georgia?

Mr. Thomas R. Moran: I think to both.

The criminal statute is the General Obscenity Statute.

Justice Thurgood Marshall: Well, if I understand here, somebody can give you an obscene book and say you bought it and reaches department store and you can close the department store?

Mr. Thomas R. Moran: Now, the Courts can after jury trial.

Justice Thurgood Marshall: Is that right?

Mr. Thomas R. Moran: Yes.

Justice Thurgood Marshall: And there’d be no criminal proceedings at all?

Mr. Thomas R. Moran: Whether it need be criminal.

Justice Thurgood Marshall: So how does it become quasi-criminal?

Mr. Thomas R. Moran: Just to --

Justice Thurgood Marshall: Closing up the store is not going to jail?

Mr. Thomas R. Moran: No but if it be in the -- this question has come before.

It came in before this Court in Gable versus Jenkins which was a position case where he was brought before the board and he was defrauded, if you want to use that term.

In that case, the Georgia Courts had held that in Turney type procedures disbarment proceedings, the diversion cases that you use some of the criminal rules because it is quasi-criminal nature because it’s filthy.

So that does have [Voice Overlap] particular --

Justice Thurgood Marshall: If you find something contraband and you destroy it, and that’s quasi-criminal?

Mr. Thomas R. Moran: There would be into the rationale of Gable versus Jenkins, in our state it would be.

I don’t -- there are no cases down in courtrooms that I know of --

Justice Thurgood Marshall: It’s a good problem. [Laughter]

Mr. Thomas R. Moran: It is.

Yes Your Honor.

Justice Potter Stewart: I see if you have the alternative -- if I have the alternative as you suggest in your state, our proceeding by way of the criminal law and the criminal prosecution or this way it's just the absolute quasi-criminal.

It’s like, an analogy is a federal antitrust laws.

That the Federal Government can put you -- it has the option of a criminal prosecution or a civil action to enjoin the alleged wrongdoing and it doesn’t make the civil action quasi-criminal institute chosen just the opposite to pursue civilly.

Mr. Thomas R. Moran: Yes, sir on --

Justice Potter Stewart: That’s why we are dealing mainly in semantics and perhaps it’s not important but I should think if you have the option of proceeding criminally or by this method is this is just by definition not criminal?

Mr. Thomas R. Moran: Well, that I -- we can put like the state court said, I mean the federal court said (Inaudible) stamp it, that’s it and I think as far as competing interest, what do you do to the state court machinery?

When you intervene in a case like this, it is entirely different in a civil case.

It's just like tax cases, you go in.

The bureaucratic system is set up the move.

The Court is set up, the prosecutors are moving, the law is being enforced and then you stop.

I think that was a danger in interrupting our dual system to begin with.

But you do embarrass the state proceedings.

You prohibit as state prosecutor from going into his own court and finding out what the law is and then you shortcut the usual system about your state courts and other --

Justice Potter Stewart: Well, the prosecution is not going into the Court to find out what the law is.

He is going into the court that put the defendant out of business isn’t he?

Mr. Thomas R. Moran: Yes, sir.

That’s exactly what I do.

Now, we don’t -- this is the third fact, we don’t really know what the extent of the remedy in the statute is under nuisance because our general statute is a bond type of statute 72-301 at all when it deals with house of prostitution and every section refers back to the initial section on house of prostitution (Inaudible) issue.

So in total Supreme Court rules, we don’t know whether -- in fact in my opinion under the Douglas case we couldn’t go in there and padlock it and destroy the material.

It had to be only by injunction.

Unknown Speaker: After what?

Mr. Thomas R. Moran: It could only by injunction.

The judge would have to write -- he couldn’t padlock and he couldn’t destroy forfeiture.

He’d have to enjoin.

That’s the Douglas case coming out of our state so that unless there’s a specific statute on it, you can’t forfeit and destroy.

Here it’s only by injunction.

You can’t close down its business.

It’s a Superior Garden case.

Justice Potter Stewart: Well what would be the effect of the injunction be?

Mr. Thomas R. Moran: The effect of injunction would probably be --

Justice Potter Stewart: To close down his business, wouldn’t it?

Mr. Thomas R. Moran: It could be just telling you can’t sell anymore obscene books.

It could be that to tell him that under -- you’d have to construe our Georgia Constitution with it.

Justice Thurgood Marshall: Why can't you seize all the books and tell him that he can’t sell obscene books?

I understand you seize all of these books, don’t you?

Mr. Thomas R. Moran: We pray to seize all of these books.

No state action.

At this point, we don’t know, construing the nuisance statutes which had never been construed in this particular point whether we would have gotten that relief or not.

Justice Thurgood Marshall: Oh!

I see.

Mr. Thomas R. Moran: In other words, in effect to the --

Justice William J. Brennan: Well, whatever relief you get Mr. Moran, I understand you to say is limited to injunctive relief?

Mr. Thomas R. Moran: Yes, sir.

Under (Inaudible) as I read it.

Justice Potter Stewart: Well, but as you also represented to us, nevertheless this is really very clear until your courts pick on the subject.

Mr. Thomas R. Moran: That’s true.

That’s true.

It just says that if you sort of book, you are a nuisance and in fact, how do we bait you is not particularly clear at this time.

Justice Potter Stewart: Is the point -- this was -- this legislation was enacted in 1971 I think, wasn't it?

Mr. Thomas R. Moran: Yes, Your Honor.

It went into to effect and it was --

Justice Potter Stewart: It seems to say so in the brief and it was -- what it did was to sort of tag itself on to incorporate much older legislation than it had to do with houses of prostitution, is that it?

Mr. Thomas R. Moran: Not exactly, Your Honor.

It never mentions it.

We run under the basic law that say a nuisance is anything that works toward any inconvenience to the public.

And that’s -- that the Attorney General or I am sorry, the District Attorney in each particular judicial district can move that to abate them.

That’s generally what we move.

Justice Potter Stewart: Well, but 26-2101 is much more specific than that, isn’t it?

Mr. Thomas R. Moran: Yes, sir that’s the General Obscenity Statute.

Justice Potter Stewart: What?

Mr. Thomas R. Moran: That’s the General Obscenity Statute.

Justice Potter Stewart: And under which statutory provisions did you perceive?

Mr. Thomas R. Moran: 26-2103 and 72 --

Justice Potter Stewart: Well, isn’t that any premises in violation of any of the provisions of this chapter shall constitute public nuisance?

Mr. Thomas R. Moran: Yes, sir.

Justice Potter Stewart: Right?

And what other one?

Mr. Thomas R. Moran: And 72, I think its 201 which is the General -- gives the District Attorney the power to go on abate nuisance --

Justice Potter Stewart: Any nuisance which tends to the immediate annoyance of the citizens in general as a manifestly injurious to the public health and safety and so on?

Mr. Thomas R. Moran: Yes, sir and there were couple of more general statutes and that gives us the power to go --

Justice Potter Stewart: And those were all the statute?

Mr. Thomas R. Moran: Yes, variable.

Justice Potter Stewart: And generally, have been applied against house of the prostitution, right?

Mr. Thomas R. Moran: Yes, sir.

Your Chapter 3 is the one that gives a forfeiture --

Justice Potter Stewart: Chapter 72-3?

Mr. Thomas R. Moran: Yes, sir that gives the forfeiture and abatement proceedings in house of prostitution.

You lock to place [Voice Overlap]

Justice Potter Stewart: That is 72-302?

Mr. Thomas R. Moran: Yes, sir.

And the rest of the Chapter always refers back to that initial paragraph.

Justice Potter Stewart: Right, I see, I think see it.

Mr. Thomas R. Moran: Now, Your Honor, I think the rule on the Fifth Circuit is a good one.

In equitable proceedings it’s discretionary with the Court then we have to have some discretion built into your rule that you’re going to use when you determine whether to take a case from the state court or you get in the position that this case court found that’s left in the Mitchum case where it had to construe Younger versus Harris and the Atlantic Coast Line case.

Now, comity as the Court where I know is a judge-made rule which protects our dual system of justice.

In this case, most of the decision of the lower court was based on comity and the Younger versus Harris doctrine.

We’ve come to a point where 1983 is express exception to 2283 and the injunction statute.

But in Mitchum, it’s clear that District Court has to go farther than that to determine that the basic principles of equity, comity, and federalism would be violated by taking jurisdiction.

In this case, they found that simply because the state was acting.

We had a statute which had not been construed by the federal court or by the state courts authoritatively.

There had been no state action as yet.

In other words, the plaintiff in the lower court below comes in and says, “He has filed a complaint against me.”

Justice Thurgood Marshall: I thought the state did file this action?

Mr. Thomas R. Moran: It did but I mean --

Justice Thurgood Marshall: Well, that’s state action, isn’t it?

Mr. Thomas R. Moran: Yes, sir.

I am sorry sir, I slipped with the terms.

Justice Thurgood Marshall: Yes.

Mr. Thomas R. Moran: But in other words, the state court had not acted yet.

We don’t know exactly what is irreparable injury may be if there is any.

And when he comes it, when he files the action he has rules so he has an adversary hearing before anything is picked up, nothing is seized.

In fact, in this case, he ran out and bought on three different occasions alleged that this is representative of everything in store that every one in that store is either absolute or so commingled with other things that are not obscene is to make them indistinguishable.

The judge would issue an interlocutory order and within 60 days, we have to go to trial before a jury.

That’s the procedure we are moving on.

Now, the procedure grew out of three basis, those are -- which this Court had, Poile, Walter versus Slaton.

These were all adversary hearing procedures around 1969 where our Courts, we didn’t have any procedure for adversary hearings and our Court said they were all nuisances and we based the statute on that in past.

Justice William J. Brennan: Mr. Moran --

Mr. Thomas R. Moran: Yes, Your Honor.

Justice William J. Brennan: If we affirm and the federal claims are then remitted to the state proceeding and there decided adversely to the store whatever the name of it is and that’s affirmed in the Supreme Court of your state.

Then I gather the only federal court that can hear or determine these federal claims would be this Court if we grant review of the Georgia Supreme Court.

I take it, it might come up either by appeal or on certiorari.

Whereas if you had succeeded in the criminal prosecution and that had been affirmed by your State Supreme Court, Mr. Speight could have gone in the federal habeas, could he not

Mr. Thomas R. Moran: ?Yes, sir.

Justice William J. Brennan: And the local federal district court could have disagreed with your State Supreme Court, is it not?

Mr. Thomas R. Moran: Yes, sir.

Justice William J. Brennan: And you then would have had to come here via through the Court of Appeals and then to this Court?

Mr. Thomas R. Moran: Yes, sir.

Justice William J. Brennan: So that there is that difference, isn’t there between a criminal prosecution state and a state civil proceeding?

Mr. Thomas R. Moran: Yes, sir.

Justice William J. Brennan: And do you think that has any bearing on the application of Younger principles?

Or I may add one other thing, I don’t know that Chapman decided, but I imagine there problems of res judicata on the 1983 proceeding if the civil proceeding comes out adversely to the Mr. Speight, aren’t there?

Mr. Thomas R. Moran: It could be.

It could be.

Justice Byron R. White: I gather that if he loses in the civil proceeding and that either he repeals or he doesn’t, but anyway the litigation is over in Alabama Courts, he can’t bring in 1982 suit.

The issue has been decided against him.

Mr. Thomas R. Moran: Right.

Justice Byron R. White: And his only resort is appeal or cert through the state system to hear.

Mr. Thomas R. Moran: But then he doesn’t run the forth the problem of going to jail that’s what we have.

Justice Byron R. White: I understand that.

Justice William J. Brennan: What [Laughter Attempt] I am getting at is now we got plenty to do up here as probably could hear it of late and are we then to take on the ultimate determination of these federal claims from all 50 states?

Mr. Thomas R. Moran: Well, you have --

Justice William J. Brennan: We have the assistance on the criminal side at least the lower federal courts in federal habeas but we wouldn’t hear, would we?

Why is it there something like the Englander which was an abstention problem a year ago?

Justice William H. Rehnquist: I suppose we can always deny certiorari?

Mr. Thomas R. Moran: Yes.

Justice William J. Brennan: That’s just a problem and more often than not, we do deny certiorari for a lot of different reasons and the consequence then is that these federal claims are never heard in the federal forum.

Mr. Thomas R. Moran: No, sir but they are in the state forum and --

Justice William J. Brennan: Well, I agree, but [Laughter Attempt]

Mr. Thomas R. Moran: -- the state have to do with [Voice Overlap] this Court in federal court.

Justice William J. Brennan: I agree but as Mr. Smith suggested Zwickler versus Koota had something to say about the availability of the federal forum.

Mr. Thomas R. Moran: Yes, sir.

Justice William J. Brennan: It’s the unanimous decision of this Court and the meaning of the 1875 Amendments and so forth.

Mr. Thomas R. Moran: But there was no appendix in state court action.

Justice William J. Brennan: I know.

Mr. Thomas R. Moran: That’s another.

Justice William J. Brennan: But I am just -- my real question to you is don’t you think our determination whether or not Younger should be applied in the civil area or to take into account that the only federal forum available would be this Court?

Mr. Thomas R. Moran: Yes, sir it should well only interest.

Justice William J. Brennan: Where the difficulties of getting cert?

Mr. Thomas R. Moran: It should well only interest in it.

I think it has to be with case by case basis just as this one is.

Because especially if -- I am trying to think of the Justice who said it, but the Wisconsin case, when the statute comes to a federal court to be adjudicated is naked in essence.

It has no construction applied if it had not been construed and they can’t construe a state statute so it either stands or falls in its face.

And I doubt if they could construe in light of other revisions.

I think we have constitutional provision.

You’d have to construe the statute --

Justice William J. Brennan: Well, that that’s more in the abstention area I suggest than the Younger?

Mr. Thomas R. Moran: Yes, sir but I think that would bear in whether to apply Younger versus Harris standards just as the habeas corpus would bear on it.

You got to have to weigh all the competing interests not just one of them.

Justice Thurgood Marshall: But that’s not true.

The statute does not need interpretation?

Mr. Thomas R. Moran: No, sir.

That’s true that’s what --

Justice Thurgood Marshall: Now what language in the statute needs interpretation?

Mr. Thomas R. Moran: Nuisance.

I think what it means when it makes it a nuisance.

How to abate it?

You could have to construe it.

Justice Thurgood Marshall: is there no decision in Georgia about a nuisance?

Mr. Thomas R. Moran: Not on this particular statute, no, sir.

There decisions about beer houses --

Justice Thurgood Marshall: My point was, is there any decision in Georgia on nuisance?

Mr. Thomas R. Moran: Yes, sir.

Quite a few.

Justice Thurgood Marshall: As to what is a nuisance?

Mr. Thomas R. Moran: Yes, sir.

Justice Thurgood Marshall: I should hope so.

Mr. Thomas R. Moran: There are quite a few and how to abate.

Justice Thurgood Marshall: So that’s -- that word is not vague.

Mr. Thomas R. Moran: No, sir it makes it a nuisance.

Justice Thurgood Marshall: Well, what’s vague in the statute?

Mr. Thomas R. Moran: I don’t -- I think what is vague is not the statute on its face, but the remedy the statute provides in the state.

Justice Thurgood Marshall: And the remedy is vague?

Mr. Thomas R. Moran: But how the statute -- how the nuisance seems to be abated after you determine it's a nuisance.

Justice Thurgood Marshall: What did the statute say?

Mr. Thomas R. Moran: The statute says, “Use of any premises in violation of any provisions of this chapter, that’s the General Obscenity Statute, shall constitute a public nuisance.”

Justice Thurgood Marshall: So, there’s nothing vague there?

Mr. Thomas R. Moran: No, sir.

Not on the statute face.

I don’t think there’s any vagueness.

Justice Thurgood Marshall: Well, that’s -- is that what’s before us, the statute?

Mr. Thomas R. Moran: Yes, sir.

And --

Justice Thurgood Marshall: And that’s what you want interpreted by the Court, by the Georgia Supreme Court, the statute?

Mr. Thomas R. Moran: Yes, sir.

I want the Georgia Supreme Court to interpret it.

Justice Thurgood Marshall: And you say there’s nothing in the statute that’s vague?

Mr. Thomas R. Moran: No.

Yes, sir on its face, there is nothing but as applied it could be.

Justice Thurgood Marshall: It could be vague.

Mr. Thomas R. Moran: As applied.

Justice Thurgood Marshall: Well, I imagine if you apply the statute to a gasoline station that wouldn’t apply, would that have made it vague?

Mr. Thomas R. Moran: No, sir not vague on its face.

In the First Amendment area though, you still have to apply the doctrines of the abstention and comity.

I know when the state court comes in and says and we come into a --

Justice Thurgood Marshall: Have we got a prior restraint case where it was done by this Court?

Mr. Thomas R. Moran: I beg your pardon, Your Honor?

Justice Thurgood Marshall: Do you have a prior restraint case where this Court did that?

Mr. Thomas R. Moran: I have one --

Justice Thurgood Marshall: You agree this is a prior restraint case?

Mr. Thomas R. Moran: Yes.

There is no prior restraint without judicial action, but it could be prior restraint, yes sir.

That’s what --

Justice Thurgood Marshall: That’s a prior restraint.

It says if you are caught with an obscene book you might lose all business?

Mr. Thomas R. Moran: Yes, sir.

Or in the future, it’s interpreted that way.

Justice Thurgood Marshall: Well, I am not saying we did or did not but I want to know if you know of any case in which this Court where there has been an alleged obvious prior restraint, the Court had said we will yield to the state.

Mr. Thomas R. Moran: There is -- No, sir except in Mitchum versus Foster.

Justice Potter Stewart: The Mitchum case had that sort of a background.

Of course, that wasn’t the issue in that case?

Mr. Thomas R. Moran: No, the issue was whether to it bars on its face.

Justice Potter Stewart: But it had the same kind of background as this case.

Mr. Thomas R. Moran: You mean the same background.

He did say we have to go into --

Justice Thurgood Marshall: I don’t think it necessarily it fills ones idea that but I was just wondering if there was one, I don’t think so.[Voice Overlap]

Mr. Thomas R. Moran: Unless there are any questions, I think I’ll leave the rest of the time.

Chief Justice Warren E. Burger: Very well.

Mr. Smith, you have about three minutes left.

Rebuttal of Robert Eugene Smith

Mr. Robert Eugene Smith: Yes, sir.

Incidentally, there was some discussion about Sanders and I wanted to tell the Court that as counsel was alluding to, there was a zoning problem in Sanders and that is to say that the City Council or the County Council of the DeKalb County said that no adult bookstores or theaters could be within 200 yards of a church, a school, a pool hall and things like that.

So, it’s very conceivable in view of that absolute concept that Sanders could be decided on that issue and not reach the nuisance issue.

It was not declared to be a nuisance.

It just says a matter of zoning.

No adult theater or bookstore can be placed within so many hundred yards of these various facilities.

Chief Justice Warren E. Burger: Per se in determination difference within 200 yards it’s determined to be --

Mr. Robert Eugene Smith: No, it’s not a nuisance sir.

It just can’t have a license and if it you can’t have license here and its zone, you’re not just allowed to be operating here, right sir.

And in -- further, under the Georgia provisions, the determination of the place of being as a nuisance does not entitle us to an automatic right of the supersedeas bond.

In fact, in Sanders, I think he was closed approximately three weeks before the state judge gave him a $50,000.00 supersedeas bond to operate and finally --

Justice Potter Stewart: What’s the situation here with respect to whether or not he is closed or open for business?

Mr. Robert Eugene Smith: He is open sir.

Justice Potter Stewart: Why and how?

Mr. Robert Eugene Smith: He’s been open because there’s been no further action by the state court I suppose pending the decision of this Court.

Justice Potter Stewart: Of course federal court --

Mr. Robert Eugene Smith: If federal court.

Justice Potter Stewart: If federal court declined to enjoin the state proceedings but then what?

Was the stay granted?

Mr. Robert Eugene Smith: No, sir, no stay has been granted.

None was --

Justice Potter Stewart: Then it's just suspending pending the termination of this litigation.

Mr. Robert Eugene Smith: And in this instance as we pointed out just to be sure that the Court understands.

If the jury finds any of the publications brought by the prosecutions --

Justice Potter Stewart: There is a jury trial here, is there?

Mr. Robert Eugene Smith: As to the issue of the obscenity of the publication.

Then the judge will apply the law as it is written obliviously and shutter the premises.

So the jury would not determine whether it was a nuisance, the jury would determine whether the material was obscene under the standards this Court has set forth.

And incidentally, as the Court mentioned in Mitchum which is the case that we argued before the Court sometime ago, the Mitchum case is now being held by the District Court Judge waiting a decision in this case.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.