California case and the mailings in the convictions it was reviewing. 533 F.2d at 197. It treated the issue no further, however, and went on to consider other issues it considered more significant.
Nevertheless, as noted, defendants rely upon Linetsky as authority for the multiple-prosecution strategy it is alleged they intend to employ against plaintiffs. This Court remains doubtful that Linetsky is the dispositive pronouncement on the subject, and it is unprepared at this stage of the case to accept the proposition that the federal government can constitutionally mount successive prosecutions against the same person for publishing the same allegedly obscene material, but mailing it to different addresses, once he has been put to trial before a jury in any federal judicial district, and in particular if he has been once acquitted. See Linetsky, 533 F.2d at 197-200. See also Serfass v. United States, 420 U.S. 377, 388-93, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975).
The final two elements of plaintiffs' right to a preliminary injunction are readily apparent. Defendants object that a preliminary injunction will preclude them from proceeding against plaintiffs anywhere, "even though . . . plaintiffs [may] have violated federal obscenity statutes in a variety of jurisdictions." (Defendants' Memo., p.46). It would also interfere with the "power of the Executive Branch to exercise its prosecutorial discretion and authority." Id. Neither, in the Court's opinion, represents a hardship equivalent to defending against multiple felony prosecutions, commencing immediately and continuing for an indefinite future, which is what plaintiffs can, with reason, anticipate if defendants are not restrained until the merits are decided. All defendants will apparently suffer is an inconvenient delay, and some loss of tactical advantage, in launching their offensive. Plaintiffs, on the other hand, are confronting annihilation, by attrition if not conviction.
And insofar as the public interest is concerned, it was perhaps put best by another judge of this district court, in another case growing out of defendants' efforts to suppress the dissemination of sexually oriented materials, who said, simply, "it is in the public interest to uphold a constitutionally guaranteed right." Playboy Enterprises v. Meese, 639 F. Supp. 581, 587 (D.D.C. 1986).
The question remains, nevertheless, whether this Court has jurisdiction, in a civil action of an equitable nature filed in anticipation of an expected criminal indictment, to enjoin the prosecution which will ensue for any reason. In Deaver v. Seymour, 261 U.S. App. D.C. 334, 822 F.2d 66 (D.C. Cir. 1987), the court of appeals for this circuit affirmed the denial of a preemptive civil injunction to block the return of a perjury indictment, notwithstanding a substantial question as to whether the prosecution could constitutionally be maintained by a special prosecutor, holding that the potential criminal defendant had an adequate remedy at law in an appeal from a final judgment of conviction.
822 F.2d at 71.
Even as it did so, however, the Deaver court noted a well-established exception to the rule in the case of federal civil actions brought to vindicate First Amendment rights threatened by state criminal prosecutions. 822 F.2d at 69. And in Juluke v. Hodel, 258 U.S. App. D.C. 364, 811 F.2d 1553 (D.C. Cir. 1987), decided shortly before Deaver, another panel of the D.C. Circuit held the Younger doctrine, and the general rule of abstention, inapplicable when injunctive relief is sought against future federal prosecutions for violations of federal laws alleged to be unconstitutionally restrictive of rights of expression. 811 F.2d at 1556-58.
When a plaintiff seeks a federal civil injunction against criminal prosecutions which are allegedly motivated by bad faith, in that they are brought to suppress conduct the authorities find objectionable even if constitutionally protected, the constraints upon the jurisdiction of the civil court do not obtain, at least in the absence of a "pending" criminal prosecution. In Dombrowski v. Pfister, 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965), the Supreme Court reversed a three-judge district court's denial of, and actually ordered it to issue, an injunction against "threatened" state prosecutions of civil rights activists under various anti-subversive activity statutes, holding that the allegations of bad faith on the part of the state officials in endeavoring, by way of criminal prosecution, to suppress constitutionally protected activities, and the attendant "chilling effect" it worked upon those activities, mandated relief without awaiting a saving decision at the conclusion of a criminal trial. In Wooley v. Maynard, 430 U.S. 705, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977), a post-Younger case, the Supreme Court affirmed a federal injunction against repetitive state prosecutions of a New Hampshire resident who objected, on constitutional grounds, to displaying the motto embossed on his state automobile license plate. And in Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975), the only post-Younger Supreme Court case explicitly addressing federal injunctive relief from threatened state criminal prosecutions for prohibited public displays of "sexually oriented materials," the Court affirmed a district court's injunction against as-yet-uncommenced prosecutions of the owner of a bar featuring "topless dancing" as entertainment.
Defendants contend that none of those cases is apposite; in each, they say, criminal prosecution was a hypothetical, albeit realistic, possibility. Here, there are four grand jury investigations in progress, which defendants characterize as "ongoing" prosecutions, and a court of equity, whether state or federal, may not now enjoin at this stage.
No case has, as yet, been brought to the Court's attention which establishes when a criminal prosecution "begins," for purposes of forestalling equitable intervention. But plaintiffs here have not sought to curtail the investigations into their activities, only the prosecutions which may result in more than one federal judicial district. Since felony prosecutions cannot take place before a grand jury finds probable cause to believe a crime has been committed by the one it proposes to charge, the Court concludes, for the present, that prosecutions have not commenced against these plaintiffs, and, to the extent the pendency of an actual prosecution does represent an impediment to civil injunctive relief, it is not to be found here. The Court also observes that this case seems to fall precisely within the Younger exception for cases in which First Amendment rights cannot be vindicated by "defense against a single criminal prosecution."
For the foregoing reasons, therefore, it is, this 8th day of June, 1988,
ORDERED, that defendants' motion for summary judgment is denied without prejudice; and it is
FURTHER ORDERED, that plaintiffs' motion for a preliminary injunction is granted in part; and it is
FURTHER ORDERED, that defendants Meese, Showers, and Christfield, their officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with them, including but not limited to defendants Ward, Whitwell, Richmond, Carpenter, Lambert, Dawson, Hockner, and Falgowski, are preliminarily restrained and enjoined from causing or permitting indictments to be returned against plaintiffs, or either of them, in more than one federal judicial district within the United States, pending determination of this case on the merits or further order of this Court.