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June 8, 1988

AVRAM FREEDBERG, et al., Plaintiffs,

The opinion of the court was delivered by: JACKSON


 The complaint alleges that CMG (and Freedberg) have promoted and sold sexually oriented materials since 1976 (by mail since 1985); that the materials are constitutionally protected in that they have not been adjudged obscene; and that they have been and are being lawfully promoted and sold in accordance with U.S. Postal Service regulations. It further alleges that the Attorney General established the National Obscenity Enforcement Unit within the DOJ sometime after July, 1986, following issuance of the Final Report of the Attorney General's Commission on Pornography, and that, in substance, the avowed mission of the NOEU is to develop and employ "prosecutorial methods designed to put distributors of sexually oriented materials out of business." To that end, it continues, the Attorney General, the defendant officials of the NOEU, and the several defendant United States Attorneys and their assistants, have combined to cause plaintiffs to be investigated by grand juries in federal judicial districts in each of the four states, and imminently to be indicted and prosecuted in each -- either simultaneously or seriatim -- until a conviction is obtained under the federal obscenity statutes, 18 U.S.C. §§ 1461-65. *fn1"

 Plaintiffs allege that their prosecution in four separate federal districts, whether simultaneously or consecutively, deprives them of substantive and procedural due process under the Fifth Amendment, and of the right of free speech under the First Amendment, and that defendants' collective decision to do so represents an abuse of prosecutorial discretion. They ask for declaratory and injunctive relief.

 The matter is presently before the Court on plaintiffs' application for a preliminary injunction. Plaintiffs represent that they have been intimidated by the threat of prosecution to the point of ceasing to distribute their products in all of the states in which prosecutions appear to be forthcoming, and now refrain from advertising all of the materials under investigation by the several grand juries anywhere in the United States. They assert that one of their suppliers of mailing services has refused to continue to supply them, and employees have resigned. Other suppliers of services have been served with grand jury subpoenas. All are apprehensive of being involved.

 Defendants have responded to the complaint with a motion for summary judgment which, being unsupported with evidentiary materials and in advance of answer, is, in essence, a motion to dismiss the complaint for failure to state an actionable claim. Defendants observe that the constitutionality of the federal obscenity statutes has been firmly established. Plaintiffs have no right to choose where they may be prosecuted; prosecution is entirely proper in any forum in which obscene materials are delivered, and each delivery is deemed a separate offense. The inhibitions plaintiffs claim to be suffering with respect to engaging in further business activities may be self-imposed, or at least self-serving, and disingenuous as well, and so also with the defecting suppliers and employees. *fn2"

 Plaintiffs, for their part, reply that they are ready (if not altogether willing) to stand trial and submit their products to the judgment of a jury, but that they should be obliged to do so only once. It is the threat of multiple prosecutions which brings them to court now, in advance of the return of the first of the expected indictments.

 For the following reasons the Court will deny defendants' motion for summary judgment, without prejudice, and will grant plaintiffs' motion for a preliminary injunction.


 To begin with, it is now axiomatic that, in reviewing the sufficiency of a complaint in the context of a motion to dismiss for failure to state a claim upon which relief can be granted (as the Court here treats defendants' motion for summary judgment), all of the well-pleaded factual allegations of the complaint must be taken as true. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977). Plaintiffs are entitled to all favorable inferences which may be drawn from those facts. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). And the complaint may not be dismissed unless it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Thus, for present purposes, it must be assumed that defendants are acting in concert to cause plaintiffs to be prosecuted in at least four federal district courts, wherever jurisdiction may attach, until they are convicted (or until either side succumbs from exhaustion) with the express purpose of driving them out of the business of distributing materials that are so sexually explicit as to be criminal. Whether or not the materials are, in fact, criminal, i.e., obscene, will presumably be determined in each case by a jury, drawn from the populace of the federal judicial district in which the court sits, applying the contemporary standards of the average person in that community as to what is obscene. Hamling v. United States, 418 U.S. 87, 105-06, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). *fn3"

 If, indeed, that is what defendants intend, the Court concludes plaintiffs satisfy the first of the elements of a meritorious application for preliminary injunctive relief, viz., a likelihood of succeeding on the merits, although not precisely for the reasons advanced by plaintiffs. *fn4" Plaintiffs contend that deliberate decisions of government officials to prevent a person from pursuing a particular vocation is a denial of both substantive and procedural due process (citing, inter alia, Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957), and Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)). The argument, however, begs the question. There is no right, constitutional or otherwise, to pursue an unlawful occupation (e.g., purveying contraband, whether narcotics, worthless stock, or obscenity), and the Court ...

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