Supreme Court went beyond Bantam Books to find that federal courts may enjoin not only threats of prosecution, but indictments and prosecutions that are calculated to infringe upon First Amendment rights. The Dombrowski court found that law enforcement officials in Louisiana had used their official powers to chill the First Amendment activities of plaintiffs, civil rights workers active in fostering civil rights for blacks in Louisiana and other southern states. After their offices were raided and their records seized, plaintiffs were threatened with prosecution for their activities. Ultimately, indictments were returned against them. In their complaint, plaintiffs attacked the good faith of the law enforcement officials in bringing the indictments, alleging that the officials' threats to enforce the criminal statutes were not made with any expectation of securing valid convictions, but rather were part of a plan which utilized arrests, seizures, and threats of prosecution under color of the statutes to harass plaintiffs and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana. The Supreme Court held that plaintiffs stated a claim for injunctive relief because they alleged that the prosecutions were brought for the purpose of discouraging the exercise of plaintiffs' First Amendment rights.
Following Bantam Books and Dombrowski, federal courts have granted injunctions against criminal prosecutions brought in bad faith to suppress constitutionally protected activity. For instance, in Council for Periodical Distributors Ass'n v. Evans, 642 F. Supp. 552 (M.D.Ala. 1986), aff'd, 827 F.2d 1483 (11th Cir. 1987) ("CPDA"), the district attorney in Montgomery County, Alabama met with a local book and magazine distributor and asked him to voluntarily stop selling sexually explicit magazines, informing him that the magazines probably violated Alabama's obscenity laws and that if the distributor did not cooperate, that he would initiate a civil nuisance proceeding or a criminal obscenity prosecution. When the distributor refused to comply, the district attorney established a task force on pornography to consider alternatives for combatting the sale and distribution of such materials. As a result of these discussions, the district attorney informed the distributor and local retailers that unless they signed a consent decree agreeing to cease distribution of these materials, they would be indicted for violating the state's obscenity laws. Other threats of prosecution were made as well. The distributor then brought suit against the prosecutor, who immediately initiated grand jury proceedings against the distributor and others.
The District Court held that the prosecutor's conduct amounted to a system of informal administrative prior restraints which was unconstitutional under Bantam Books. Accordingly, the court entered an injunction preventing the defendants from instituting criminal proceedings against plaintiffs for actions occurring prior to the filing of the lawsuit. Id. at 568.
In Black Jack Distributors, Inc. v. Beame, 433 F. Supp. 1297 (S.D.N.Y. 1977), plaintiffs, vendors of sexually explicit materials, had alleged that the Police Department and the District Attorney's Office were engaged in a joint effort to clamp down on sexually oriented businesses in Manhattan in general and, more specifically, to force plaintiffs out of business. Daily arrests and seizures were made at plaintiffs' premises "in a manner calculated to maximize the negative impact on plaintiffs' business." Id. at 1306. Defendants' admitted purpose was to discourage plaintiffs' employees from continuing to work in plaintiffs' stores and, ultimately, to close the stores or force them to abandon the sale of sexually oriented materials. Id. at 1307. The court granted a preliminary injunction which prevented the New York City Police Commissioner from harassing plaintiffs through enforcement of obscenity laws which were undertaken in bad faith and for the purpose of injuring plaintiffs' business.
The other cases cited in plaintiffs' memorandum support their argument, i.e., it is within the equitable powers of a federal court to issue injunctions preventing bad faith prosecutions which are brought to discourage First Amendment activities. See Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988), cert. denied, 489 U.S. 1033, 109 S. Ct. 1171, 103 L. Ed. 2d 229 (1989); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert. denied, 452 U.S. 916, 101 S. Ct. 3051, 69 L. Ed. 2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979); Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972); The Video Store, Inc. v. Holcomb, 729 F. Supp. 579 (S.D.Ohio 1990); ACLU v. City of Pittsburgh, 586 F. Supp. 417 (W.D.Pa. 1984); Penthouse International, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D.Ga. 1977), aff'd, 610 F.2d 1353 (5th Cir. 1980); United Artists Corp. v. Gladwell, 373 F. Supp. 247 (N.D.Ohio 1974); Drive In Theaters, Inc. v. Huskey, 305 F. Supp. 1232 (W.D.N.C. 1969), aff'd, 435 F.2d 228 (4th Cir. 1970).
Defendants nevertheless argue that this Court cannot enjoin ongoing criminal prosecutions because plaintiffs have an adequate remedy at law -- they can raise their objections by motion in each district in which they are indicted. Defendants vigorously maintain that the issuance of a preliminary injunction would violate a number of principles, including separation of powers between the Judicial and Executive Branches of government and the final judgment rule. Defendants' arguments are misplaced.
Our Supreme Court stated almost two decades ago that "courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Nevertheless, it is also clear that equitable relief is not only permissible, but appropriate, under certain circumstances. In Younger, the Supreme Court held that federal courts as a rule should abstain from exercising jurisdiction when asked to enjoin pending state criminal proceedings, reflecting a public policy, based on federalism and comity, that disfavors federal court interference with state judicial proceedings. The Court recognized that certain types of injuries, in particular, the cost, anxiety and inconvenience of having to defend against a single criminal prosecution, could not by itself constitute the requisite "irreparable injury" which would warrant equitable relief. "Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." Id. at 46 (citing Ex Parte Young, 209 U.S. 123, 145-47, 52 L. Ed. 714, 28 S. Ct. 441 (1908)). The instant case is just such a case. Although plaintiffs state that they stand ready to have a jury determine their guilt or innocence, it is clear that their First Amendment rights cannot be adequately protected by defending themselves simultaneously or seriatim in each separate district in which they may be indicted. The enormous disparity between plaintiffs' resources and the resources of the government means, as a practical matter, that plaintiffs could be swiftly driven out of business before they ever set foot inside a courtroom.
Plaintiffs point out that two other judges of this Court have granted preliminary injunctions against governmental conduct similar to the conduct at issue here. In Playboy Enterprises, Inc. v. Meese, 639 F. Supp. 581 (D.D.C. 1986), plaintiffs sought a preliminary injunction preventing then Attorney General Meese and the members and officers of his Commission on Pornography from publishing a blacklist of distributors of alleged pornography in the Commission's final report. The Commission had sent letters to certain companies notifying them that they had been identified as involved in the sale or distributions of pornography and offered them an opportunity to respond prior to the Commission's issuance of its final report. The letter did not define pornography nor did it state who had provided the Commission with the name of the company. The court found that the purpose of the letter was to discourage distributors from selling certain sexually oriented materials which were constitutionally protected. Concluding that this constituted irreparable injury, the court granted plaintiffs' request for preliminary injunctive relief.
Likewise, in Freedberg v. United States Department of Justice, 703 F. Supp. 107 (D.D.C. 1988), a mail-order distributor of sexually oriented materials alleged that the Attorney General, the NOEU, and several United States Attorneys had combined to cause plaintiffs to be investigated by grand juries in four states and imminently to be indicted and prosecuted in each, either simultaneously or seriatim, until a conviction was obtained under the federal obscenity statutes. The court entered a preliminary injunction preventing defendants from causing of permitting indictments to be returned against plaintiffs in more than one district without further order from the Court.
The defendants in Freedberg advanced many of the arguments advanced by the instant defendants -- that the federal obscenity statutes have passed constitutional muster, that the statutes, which make each mailing of obscene materials a separate offense, authorize prosecution in each district in which obscene materials are delivered, that plaintiffs have no right to choose where they are prosecuted, that the separation of powers doctrine grants the Executive Branch exclusive discretion to decide the circumstances under which an offense shall be prosecuted, that courts of equity may not enjoin ongoing criminal prosecutions, and that plaintiffs have an adequate remedy at law because they can move to quash grand jury subpoenas and dismiss indictments once returned. The Freedberg court rejected these arguments, holding that simultaneous criminal prosecutions of the same individual for the same offense in four separate federal judicial districts was not consistent with due process. Id. at 110.
Relying on Dombrowski, the court rejected defendants' abstention argument, stating:
When a plaintiff seeks a federal 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 "pending" criminal prosecution.
Id. 703 F. Supp. at 112. The court refused to find that the ongoing grand jury investigations constituted "ongoing prosecutions" which a court of equity would be prevented from enjoining.
The instant case is on all fours with Freedberg. The Supreme Court long ago recognized that "the cruelty of harassment by multiple prosecutions" can violate the Due Process clause of the Fifth Amendment. Bartkus v. Illinois, 359 U.S. 121, 127, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959). The question is whether the government is attempting "to wear [plaintiffs] out by a multitude of cases with accumulated trials." Hoag v. New Jersey, 356 U.S. 464, 467, 2 L. Ed. 2d 913, 78 S. Ct. 829 (1958) (quoting Palko v. Connecticut, 302 U.S. 319, 328, 82 L. Ed. 288, 58 S. Ct. 149 (1937)). Plaintiffs have made such a prima facie showing here. Accordingly, their complaint states a claim under the Due Process clause.
Furthermore, like Freedberg, this case falls squarely within the Younger exception for cases in which First Amendment rights cannot be protected by "defense against a single criminal prosecution." The disparity between the resources of any criminal defendant and the federal government may mean that plaintiffs may be forced out of business before they ever have their day, or in this instance, days, in court. Like the plaintiffs in Freedberg, the instant plaintiffs face "annihilation, by attrition if not conviction." Freedberg, 703 F. Supp. at 111.
Defendants nonetheless attempt to distinguish Freedberg on its facts, maintaining that plaintiffs have not made a sufficient showing of bad faith here. The Court disagrees. Not only are plaintiffs' allegations of bad faith and harassment sufficient to overcome defendants' motion to dismiss, but plaintiffs have made a showing of bad faith sufficient to satisfy the first prong of the four-prong test for preliminary injunctive relief -- substantial likelihood of success on the merits. A bad faith prosecution is generally defined as having been brought "without a reasonable expectation of obtaining a valid conviction." Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975) (citation omitted). However, "bad faith and harassing prosecutions also encompass those prosecutions that are initiated to retaliate for or discourage the exercise of constitutional rights." Lewellen, 843 F.2d at 1109 (relying on Younger and Dombrowski). "A showing that a prosecution was brought in retaliation for or to discourage the exercise of constitutional rights 'will justify an injunction regardless of whether valid convictions conceivably could be obtained.'" Id. at 1109-10 (quoting Fitzgerald, 636 F.2d at 945) (emphasis added by Lewellen).
Plaintiffs' factual showing, as contained in the numerous declarations submitted in connection with their motion, demonstrate a substantial likelihood of success on the merits of their claim that defendants' conduct constitutes bad faith calculated to suppress plaintiffs' constitutional rights. It is not without significance that defendants have not contested, disputed, or refuted any of the factual assertions contained in the declarations presented by plaintiffs. When taken as a whole, these allegations suggest a concerted effort by the defendants, through harassment and threats of multiple prosecutions, to suppress plaintiffs' constitutionally protected activities.
The intrusive and intimidating manner in which defendants searched plaintiffs' premises, the 118 subpoenas which another federal court characterized as "harassment" of plaintiffs, the acknowledgement by the defendants that many of the materials they seek to prevent plaintiffs from distributing are constitutionally protected,
the allegation that investigations were initiated despite the fact that the FBI advised Showers, then Assistant United States Attorney for the Eastern District of North Carolina, that the materials distributed by plaintiffs were not within the scope of FBI guidelines for the prosecution or investigation of obscenity, the threats of multiple prosecutions if plaintiffs did not cease distribution of certain materials nationwide
and cease distribution entirely in Utah, including Playboy magazine and The Joy of Sex, and the admitted desire to get Harvey "out of the business," substantiate plaintiffs' allegations of bad faith. This conclusion is fully consistent with Bantam Books, Dombrowski, and their progeny.
Defendants attempt to persuade the Court that the conditions they have demanded in exchange for non-prosecution of plaintiffs are not improper but are merely part of normal plea bargain negotiations. Defendants' self-serving characterization misses the mark. There is no distinction between the demands made by the government here and the consent decree in CPDA which the government attempted to coerce the plaintiffs in that case to sign. Both types of conduct amount to threats of prosecution for constitutionally protected activity. Furthermore, defendants' conduct here parallels that of the Rhode Island Commission to Enforce Morality in Youth in Bantam Books. The only difference between this case and Bantam Books is that in Bantam Books, the officers' threats of prosecution were "thinly veiled." Here, in contrast, the threats of prosecution are real and direct. What defendants overlook is the fact that they can accomplish their purpose, i.e., obliteration of plaintiffs' business, without ever obtaining a valid conviction.
Furthermore, defendants' reliance on the constitutionality of the federal obscenity statutes under which plaintiffs may be charged is irrelevant. See Krahm, 461 F.2d at 707 ("In the vital area of First Amendment rights it is just as easy to discourage exercise of them by abusing a valid statute as by using an invalid one").
As explained above, the Court finds that plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that defendants' conduct has violated the First Amendment as well as the Due Process clause of the Fifth Amendment.
Plaintiffs have also satisfied the other elements required for the granting of an application for preliminary injunctive relief. A bad faith prosecution constitutes irreparable injury sufficient to warrant preliminary injunctive relief. See Dombrowski, 380 U.S. at 485-86; Lewellen, 843 F.2d at 1109. Furthermore, the infringement of First Amendment rights clearly constitutes irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); Playboy Enterprises, 639 F. Supp. at 586 (citing Dombrowski, 380 U.S. at 489).
Finally, the balance of the equities favors plaintiffs. There is no legitimate interest in bad faith prosecutions which seek to suppress constitutionally protected speech. See Playboy Enterprises, 639 F. Supp. at 587. Simply stated, "it is in the public interest to uphold a constitutionally guaranteed right." Freedberg, 703 F. Supp. at 111 (quoting Playboy Enterprises, 639 F. Supp. at 587). Defendants protest that a preliminary injunction would "bar [them] from pursuing investigations against plaintiffs anywhere, even though it may well be the case that plaintiffs have violated federal obscenity statutes in a variety of jurisdictions,"
and would be a "serious restriction on the power of the Executive Branch to exercise its prosecutorial discretion and authority."
These identical arguments were raised and rejected in Freedberg:
Neither [argument], in the Court's opinion, represents a hardship equivalent to defending against multiple 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 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.
Freedberg, 703 F. Supp. at 111. These words are equally applicable here.
For all these reasons, the Court finds that plaintiffs have satisfied the requirements for the issuance of a preliminary injunction.
The more difficult question concerns the type of injunctive relief to be granted. At argument, plaintiffs requested three types of injunctions: the first, the type granted by the Freedberg court, enjoining multiple prosecutions until this case is resolved on the merits; the second, the type granted in CPDA which would enjoin any prosecution in the Western District of Kentucky and Utah for materials distributed prior to the date the instant complaint was filed on the bases that such materials would be tainted by the bad faith of the government; the third, an injunction prohibiting bad faith prosecutions from being brought anywhere in the country based on any materials distributed in the past or to be distributed in the future. Plaintiffs have made clear that they do not seek to enjoin good faith prosecutions and would therefore not object to an injunction prohibiting any indictments from being returned during the pendency of this case unless defendants demonstrate that any such indictment is not tainted by their present strategy.
At this stage of the proceedings, an injunction identical to the one issued in Freedberg is the most appropriate form of relief.
For these reasons, it is accordingly hereby
ORDERED that defendants' motion to dismiss is denied. It is further
ORDERED that plaintiffs' motion for a preliminary injunction is granted and defendants United States Department of Justice, United States Attorney General Richard Thornburg, the National Obscenity Enforcement Unit ("NOEU") and its Acting Director Patrick Trueman, Assistant United States Attorney for the District of Utah Richard N.W. Lambert, and United States Attorney for the Western District of Kentucky Joseph M. Whittle 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.
Pursuant to Fed. R. Civ. P. 65(c), plaintiffs shall post in the Clerk's Office a $ 1,000 cash or surety bond no later than July 27, 1990 at 3:00 p.m. failing which this injunction shall immediately stand dissolved. In the event of an appeal there shall be no stay of this order for the reasons recited in this memorandum opinion. It is further
ORDERED that plaintiffs shall file their motion for permanent injunction on or before August 10, 1990; defendants shall file their opposition thereto on or before August 24, 1990; plaintiffs shall file their reply thereto, if any, on or before August 31, 1990. There shall be a hearing on plaintiffs' motion for permanent injunction on September 28, 1990 at 1:30 p.m. Should witnesses be called to testify for either side, their names are to be provided to the other parties and the Court 48 hours prior to their testimony.
IT IS SO ORDERED.