The opinion of the court was delivered by: PENN
The plaintiffs in these consolidated actions seek to have the Court permanently enjoin the defendants, who are members of the Attorney General's Commission on Pornography (Commission), as members of the Commission and individually, from publicly disseminating a "blacklist" or from taking other action for the purpose of censoring and suppressing the distribution and sale of Playboy Magazine and other publications that are said to be lawfully and constitutionally protected. The case is now before the Court on the plaintiffs' motions for a preliminary injunction.
The plaintiffs in Civil Action No. 86-1346 are Playboy Enterprises, Inc. (PEI), American Booksellers Association, Inc. (ABA), a trade association of general interest bookstores said to represent 4,000 separate members operating approximately 7,000 book stores, Council for Periodical Distributors Associations, Inc. (CPDA) representing approximately 400 members who are engaged in the distribution of magazines, paperback books, comics, newspapers and other periodicals, and International Periodical Distributors Association, Inc. (IPDA), a trade association for the principal national periodical distributors engaged in the business of distributing or arranging for the distribution of paperback books and periodicals to wholesalers throughout the United States for ultimate distribution to retailers and the public. The plaintiff in Civil Action No. 86-1447 is Magazine Publishers Associations (MPA), a trade association with a membership of 218 publishers.
Briefly stated, the underlying facts are as follows: On March 29, 1985, at the request of President Ronald Reagan and pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. § 1 et. seq., the Attorney General, William French Smith, chartered the Attorney General's Commission on Pornography. The charter of the Commission states in part:
The objectives of the Commission are to determine the nature, extent, and impact on society of pornography in the United States, and to make specific recommendations to the Attorney General concerning more effective ways in which the spread of pornography could be contained, consistent with constitutional guarantees.
The Commission held a series of six public hearings to obtain testimony from a variety of witnesses representing a broad spectrum of opinion, which included representatives of some of the plaintiffs. The Commission heard approximately 200 witnesses. Following the hearing, the Commission held public meetings at which the members discussed the testimony they had received and the shape the final report should take, and the further conduct of their undertaking. In subsequent public meetings, the Commission discussed the drafts of the chapters of the final report, and the substance of their discussions is reflected in minutes and transcripts that are also available to the public. In early May 1986, the Commission released a draft of the final report, which, the defendants represent that, except for some minor editorial changes, constitutes the substance of the final report. Defendants' Memorandum in Opposition to Motions for a Preliminary Injunction and Support of Defendants' Cross-Motion to Dismiss or, in the Alternative, for Summary Judgment (Defendants' Opposition) at 10. The Commission intends to issue and disseminate the report in early July 1986.
At a public hearing held on October 17, 1985, in Los Angeles, Reverend Donald Wildmon, the Executive Director of the National Federation of Decency testified before the Commission that certain corporations were engaged in the sale of pornography, which, in his view, included Playboy and Penthouse magazines. He also submitted a written statement setting forth his views. PEI Motion Exhibit C, MPA Motion Exhibit 4, Defendants' Opposition Exhibit B. At a public meeting held in January 1986, the Commission discussed the question of whether Reverend Wildmon's allegations should be included in the final report. Some of the members felt that before even addressing the question of whether his testimony or similar testimony should be included, corporations identified as being involved in the sale or distribution of pornography should be permitted the opportunity to respond. Eventually, it was decided to send a letter to those corporations. As a result, the subject letter was sent to those corporations. See Appendix.
The letter did not describe the "testimony", or state who gave the testimony, or advise the addressees that the letter had been based on the "testimony" and the written statement of one person, Reverend Wildmon. The Commission did attach a copy of Reverend Wildmon's written statement to each letter, but did not identify the author of the statement.
The Commission received a number of responses to their letters. Southland Corporation, the owners of 7-Eleven Stores, noted that the corporation had been following the work of the Commission, had sent observers to the hearings, and that while they had seen no conclusive evidence actually linking adult magazines to crime, violence and child abuse, that they were concerned with "growing public consciousness" and had decided to "discontinue the sale of any adult magazines." Southland noted that "In view of our decision to modify our policy and withdraw these magazines, we urge that any reference to Southland or 7-Eleven be deleted from your final report." Time, Inc. described the "accusations" in the letter as "outrageous". That corporation's response went on to state, "We cannot believe the U.S. Department of Justice would lend its name to this slipshod and misguided effort." It referred to the possible harm to Time, Inc. if the report contained its name. Some replies also noted inaccuracies or erroneous "facts" in the Wildmon statement. See Ennis Declaration dated June 3, 1986, and Exhibit A attached thereto.
The plaintiffs contend that as a result of the letter and the "threat" that the names of the corporations would be published in the report, that many stores pulled Playboy and similar magazines from their shelves. See Ennis Declaration dated June 3, 1986. Indeed, plaintiffs allege that some stores have pulled magazines such as American Photographer, Cosmopolitan and Texas Monthly out of an abundance of caution. American Photographer contained a picture of bare-breasted woman, Cosmopolitan and Texas Monthly contained an advertisement for "Obsession" perfume which depicted a woman with one breast partially exposed.
The plaintiffs asked for injunctive relief to include (1) that the Commission send a notice withdrawing its letter, (2) that the Commission not include a listing of the corporations in its final report and (3) that the Commission send a letter stating that Playboy and perhaps the other publications are not obscene.
In order to be entitled to injunctive relief, the plaintiffs must demonstrate that (1) they are likely to prevail on the merits, (2) they will suffer irreparable harm if injunctive relief is denied, (3) other persons would not suffer substantial injury if injunctive relief is granted, and (4) where lies the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 222, 559 F.2d 841, 843 (1977); Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 110, 259 F.2d 921, 925 (1958). Moreover, "the necessary 'level' or 'degree' of possibility of success will vary according to the court's assessment of the other factors." Washington Metropolitan Area Transit Commission, 182 U.S. App. D.C. at 222, 559 F.2d at 843.
The Court considers first whether the plaintiffs have demonstrated that they are likely to prevail on the merits. In this connection, the parties are in agreement that the relevant, and perhaps controlling decision is Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). There, the Rhode Island legislature had established the "Rhode Island Commission to Encourage Morality in Youth". That Commission had established a practice of notifying distributors on official stationery that certain books and magazines were found to be "objectionable" for sale, distribution or display to youths under the age of 18. Notice of same would be sent to distributors, thanking them in advance for their cooperation and reminding them that the Commission had the duty to recommend prosecution for purveyors of "obscenity". A local police officer visited the distributors "shortly" after the distributor's receipt of the notice to determine what action the distributor had taken. The Supreme Court found that such activities of the Commission were unconstitutional and an abridgement to First Amendment liberties protected by the Fourteenth Amendment. The present plaintiffs make the same argument, but allege that their First Amendment rights are protected by the Fifth Amendment.
The Court noted that, "it would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the law against obscenity. 372 U.S. at 68-69, 83 S. Ct. at 638 (citation and footnote omitted). The Supreme Court observed that, although the Commission was limited to "informal sanctions . . . the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation . . . the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed 'objectionable' and succeeded in its aim." 372 U.S. at 67, 83 S. Ct. at 637 (footnote omitted). And, the Supreme Court made clear that "informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief." 372 U.S. at 67, 83 S. Ct. at 638 (footnote omitted). Included as informal censorship were "listings or notifications of supposedly obscene or objectionable publications or motion pictures." 372 U.S. at 67, n. 8, 83 S. Ct. at 638, n. 8. Finally, the Court noted that the term "objectionable" was vague and left distributors to speculate whether the Commission considered a particular publication to be obscene or simply harmful to juvenile morality. 372 U.S. at 71, 83 S. Ct. at 640.
The above references to Bantam Books gives the flavor of that decision and is sufficient to demonstrate that serious constitutional questions have been raised in the instant cases. Indeed, a reading of the above case against the brief record in the instant cases suggests that we may be venturing along the same path, and this being so, further supports the arguments that the plaintiffs have demonstrated that they may succeed on the merits. An in depth consideration must, of course, await a final hearing on the merits. In considering this prong on the issue of injunctive relief, the Court need not determine that the plaintiffs will succeed, only that they are likely to succeed, and the "level" or "degree" of possibility of success will vary according to the other facts.
The letters in the instant case were vague, in the sense that they did not define "pornography." Indeed, at oral argument the defendants conceded that "pornography" was not their word; rather, it was the word of Reverend Wildmon. He does not define the word, and his written submission to the Commission demonstrates that he may very well equate "pornography" with "obscenity". Of even greater concern is the fact that the letter is based on the testimony of one witness, when approximately 200 witnesses appeared before the Commission. Finally, the letter does appear to contain an implied threat to the addressees. It refers to "testimony alleging that your company is involved in the sale or distribution of pornography" and states that the Commission's letter is giving an opportunity to the corporations to respond to the allegations "prior ...