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                  Barb POLLITT, et al. v. Harry CONNICK, et al.
                              Civ. A. No. 83-3794.
    United States District Court, Eastern District Louisiana.
                              596 F. Supp. 261

                                October 19, 1984

COUNSEL: H. Louis Sirkin, Cincinnati, Ohio, Ronald J. Rakosky, New
Orleans, La., for plaintiffs, Barb Pollitt, et al.

   William Campbell, Jr., and Thomas W. Milliner, New Orleans, La.,
for defendants, Harry Connick, et al.

OPINIONBY: COLLINS

OPINION:   [*263]   ROBERT F. COLLINS, District Judge.

   This matter is before the Court on motion for summary judgment,
filed by plaintiffs.  By this motion, plaintiffs request the Court
to declare LSA-R.S. @@ 14:106 and 13:4711-4716 unconstitutional.

   Plaintiffs contend that LSA-R.S. @ 14:106 suffers from four
constitutional infirmities and that LSA-R.S. @@ 13:4711-4716 suffer
from one constitutional infirmity.  First, plaintiffs contend that
LSA-R.S. @ 14:106 is unconstitutionally vague and overboad and,
therefore, violates the f irst, fifth, and fourteenth amendments to
the United States Constitution.  Second, plaintiffs contend that
paragraph D of LSA-R.S. @ 14:106, which exempts certain categories
of institutions and their employees and all projectionists from
prosecution, violates the equal protection clause of the fourteenth
amendment to the United States Constitution, and paragraph D is not
severable.  Third, plaintiffs contend that paragraph F of LSA-R.S.
@ 14:106, which requires an adversarial hearing prior to the
issuance of an arrest of an arrest warrant in some instances of
alleged obscenity violations but not in others, violates the equal
protection clause of the fourteenth amendment to the United States
Constitution, and paragraph F is not severable.  Fourth, plaintiffs
contend that LSA-R.S. @ 14:106 constitutes an impermissible prior
restraint and has a chilling effect on presumptively protected
conduct, because violation of the statute is in all instances a
felony carrying cruel, unusual, and excessive punishment.  Finally,
plaintiffs also contend that LSA-R.S., @@ 13:4711 through 4716, as
they relate to obscenity, impose a prior restraint upon   [*264]
presumptively protected activity and, therefore, must be declared
unconstitutional. n1 The Court will address each of plaintiffs'
five contentions seriatim. n2

   n1 The Court notes that none of the plaintiffs has actually had
an injunction or abatement order sought or imposed against them or
their property under LSA-R.S. @@ 13:4711 to 4716.  However,
plaintiffs contend that defendant Harry Connick has threatened them
with enforcement of those provisions.  Defendant has not denied
making this threat.  Accordingly, the Court is satisfied that a
sufficiently concrete controversy exists to warrant judicialresolution of the matter, and plaintiffs have standing to seek that
judicial resolution.
                       PAGE   36                              596
F. Supp. 261, *264

   n2 Preliminarily, the Court notes that defendant Harry Connick
contends that this Court should decline, under the Younger branch
of the absention doctrine, to rule on the constitutionality of
these statutes, because "virtually all of the plaintiffs in this s
uit have active criminal cases pending in the state criminal court
for vviolations of La.R.S. 14:106, the statute that they are
attacking in this federal proceeding." Defendant Harry Connick's
Memorandum In Opposition To Motion For summary judgment at 2.
However, defendant's contention oversimplifies and misstates the
situation facing this Court.  Plaintiffs and plaintiff-intervenors
have complained of a pattern of enforcement in which the police
have arrested and rearrested them for alleged obscenity violations,
but in most instances the district attorney has then either refused
the charges or, if charges were accepted, did not actively
prosecute the cases.  The defendants have not denied that such is
the case, although they have vehemently denied that any such
pattern is the result of any concerted action, conspiracy, or other
intentional and improper acts on their part.  In light of these
circumstances, it is apparent that active criminal actions are not
pending against most of the plaintiffs and plaintiff-intervenors,
and it may well be that most of the plaintiffs and plaintiff-intervenors will not have an adequate opportunity to raise these
constitutional challenges in a state proceeding.  Accordingly,
absention under Younger is inappropriate.See Middlesex County
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct.
2515, 73 L.Ed.2d 116 (1982) (absent extraordinary circumstances,
absention under Younger is appropriate when there are ongoing state
proceedings that implicate important state interests and in which
adequate opportunity exists to raise constitutional challenges).

   I.  LSA-R.S. @ 14:106 Not Vague or Overbroad

   The Court disagrees with plaintiffs' first assertion that LSA-R.S. @ 14:106 is unconstitutionally vague and overbroad.  In Miller
v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),
the United States Supreme Court set forth the basic guidelines to
be applied in the determination of obscenity.  The precise language
used in the Miller definition has been incorporated into
Louisiana's obscenity statute -- LSA-R.S. @ 14:106.  See State v.
Walden Book Co., 386 So.2d 342, 344 (La.1980). Therefore, in light
of this Court's duty to follow majority positions of the United
States Supreme Court, LSA-R.S. @ 14:106 simply cannot be considered
either vague or overbroad.

   II.  Paragraph D of LSA-R.S. @ 14:106 Unconstitutional But
Severable

   Plaintiffs next contend that paragraph D of LSA-R.S. @ 14:106
denies them the equal protection of the laws insofar as it exemptslisted institutions and their employees, and also exempts movie
projectionists, from prosecution for the criminal offense of
obscenity. n3 In State v. Luck, 353 So.2d 225 (La.1977), the
Supreme Court of Louisiana declared that paragraph D's exemption of
particular institutions and their employees from prosecution under
LSA-R.S. @ 14:106 was unconstitutional.  The Luck court stated
that:

   "The nonexempt persons or entities are deprived of the equal
protection of the laws by a classification so made without rational
basis for differentiation reasonably related to a valid
governmental purpose.  Louisiana has no legitimate interest in
allowing a college, etc., to sell pornography for commercial
establishment next door for the same activity."
                                                   PAGE   37
                       596 F. Supp. 261, *264


   n3 LSA-R.S. @ 14:106 D provides:

   The provisions of this Section do not apply to recognized and
established schools, churches, museums medical clinics, hospitals,
physicians, public libraries, governmental agencies, quasi-governmental sponsored organizations and persons action in their
capacity as employees or agents of such organizations, or a person
solely employed to operate a movie projector in a duly licensed
theatre.     [*265]

   This Court agrees with the Louisiana Supreme Court's ruling in
Luck, and, therefore, this Court finds that paragraph D of LSA-R.S.
@ 14:106 violates the constitution to the extent that it exempts
certain categories of institutions and their employees.  However,
to the extent that pargraph D exempts projectionists, it does not
violate the equal protection clause of the United States
Constitution.  There is a definite distinction betwen the duties
and relationship to the public of a projectionist as compared to
the duties and relationship to the public of, e.g., a cashier in a
bookstore.  The projectionist merely changes motion picture reels,
which have previously been selected by the manager, runs the
projector, and is generally isolated from theater customers.  On
the other hand, the cashier in a bookstore is frequently in direct
contact with customers and, by his actions, allows the material he
sells to be taken out of the store and circulated unchecked out of
the store and circulated unchecked among the public at large.The
legislation sub judice draws upon this distinction in duties and
relationship to the public by imposing criminal liability only upon
those persons truly responsible for the unrestrained dissemination
of obscene material to the public at large. Therefore, the Court
finds that subsection D of the statute does not, in this respect,
deny plaintiffs' the equal protection of the law, since there does
exist a rational relationship between the statutorily created
distinction and the State's legitimate interest in the social
welfare of its citizens.  See, e.g., People v. Victoria, 96 Misc.2d
926, 409 N.Y.S.2d 937, 938 (N.Y.Crim.Ct.1978).   Although the Court finds that paragraph D is unconstitutional to
the extent that it exempts from its strictures certain categories
of institutions and their employees but not to the extent that it
exempts projectionists, the Court does not agree with plaintiffs'
contention that this judicial determination of invalidity as to a
portion of the statute so eviscerates the legislation that it must
fall as a whole.  On the contrary, this Court finds that the
repugnant portion is severable from the remainder of the statute,
which therefore must be upheld.

   The constitutional portion of a statute is separately
enforceable if it is independent from the unconstitutional portion,
forms a complete act within itself, and after separation is
reasonable in light of the act as originally enacted.  "The test is
whether or not the legislature would have passed the statute had it
been presented with the invalid features removed."" State v.
Johnson, 343 So.2d 705, 708 (La.1977) (quoting 2 Sutherland,
Statutes  and Statutory Construction, @@ 44.04 at 341-42 (Sands 4th
ed. 1973)).  This test is primarily one of ascertaining legislative
intent  by determining the main or dominant purpose of the
enactment.""Where the purpose of the  statute  is defeated by the
invalidity of part of the act, the entire act is void. Conversely,
when the general object of the act can be achieved without the
invalid part, the act will be upheld."" Id. at 709 (quoting 2
Sutherland, Statutes and Statutory Construction, @@ 44.07 at 347
(Sands 4th ed. 1973)).
                          PAGE   38
596 F. Supp. 261, *265

   The obscenity statute was originally enacted by Act No. 274 of
the 1974 regular session of the legislature.  Louisiana legal
scholars recognized that it was designed to fill the void created
by two 1974 Louisiana Supreme Court decisions n4 invalidating the
state's then existing obscenity statutes, as mandated in light of
the United States Supreme Court's landmark decision in Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See
Highlights of the 1974 Regular Session, 35 La.L.Rev. 597, 601-05
(1975). Both the title n5 and the text of the 1974 act indicate
that the main purpose of the legislation was to provide the state
with an obscenity statute that would [*266]   be valid and
enforceable in light of Miller.  The legislature attempted to
accomplish this purpose by adopting the Miller definition of
obscenity and by specifying the types of depictions or decriptions
of sexual conduct that could constitute obscenity under the act.

   n4 State v. McNutt, 287 So.2d 478 (La.1974) and State v.
Shreveport News Agency, Inc., 287 So.2d 464 (La.1974).

   n5 "The title of the 1974 act declares that its purpose was "to
define the crime of obscenity, to provide penalties therefor, to
provide for the applicability and construction of the Act, and to
provide otherwise with respect thereto." State v. Johnson, 343
So.2d at 709 (quoting Acts 1974, No. 274, title).
   The Court is convinced that the principal purpose of LSA-R.S. @
14:106 will not be defeated by the invalidation of that portion of
paragraph D will be almost nil, because the types of institutions
explicitly exempted by paragraph D will be effectively exempted
anyway, under the definition of obscenity itself, found at LSA-R.S.
@ 14:106 A(2) and (3), since such institutions will rarely display
hard core sexual material that "taken as a whole lacks serious
literary, artistic, political, or scientific value," and even more
rarely display such material "for its own sake, and for ensuing
commercial gain." Without the invalid portion of paragraph D, LSA-R.S. @ 14:106 forms a complete act within itself, and is reasonable
in light of the act as originally enacted.  Since the principal
purpose of LSA-R.S. @ 14:106 was and is to provide the state with
a valid and enforceable obscenity statute, this Court concludes
that the legislature would have passed the statute had it been
presented with the invalid portion of paragraph D removed. n6
Accordingly, the Court finds that, although the portion of
paragraph D exempting the enumerated institutions and their
employees is unconstitutional, the invalid portion of paragraph D
is severable fromthe remainder of paragraph D and from the
remainder of LSA-R.S. @ 14:106.

   n6 The Court notes that the legislature's most recent attempt at
fine tuning LSA-R.S. @ 14:106 does not contain a severability
clause.  Compare Acts 1977, No. 97, @ 4; Acts 1977, No. 717, @ 4;
Acts 1980, No. 464, @ 2; Acts 1981, No. 159, @ 2; Acts 1982, No.
680, @ 2; with Acts 1983, No. 384.  The presence of a severability
clause raises the presumption of severability in fact.  See State
v. Brown, 389 So.2d 48, 51 (La.1980) (citing State v. City of Baton
Rouge, 40 So.2d 477 (1949)). However, the absence of a severability
clause does not necessitate a finding of nonserverability; it
merely eliminates the presumption of severability.  Without the
benefit of the presumption of severability provided by the presence
of a severability clause, the Court looks to the test for separate
enforcement discussed in the text supra.  Given the principle
purpose of LSA-R.S. @ 14:106 and the essential redundancy of
paragraph D as it relates to the enumerated institutions, the Court
reiterates its conclusion that the legislature would have passed
the statute even without the invalid portion
                                                PAGE   39
                    596 F. Supp. 261, *266


and, accordingly, the remainder of the statute is separately
enforceable.

   III.  Paragraph F(1) of LSA-R.S. @ 14:106 Does Not Deny
Plaintiffs The Equal Protection Of The Laws

   Plaintiffs' third contention is that paragraph F(1) of LSA-R.S.
@ 14:106 denies them the equal protection of the laws, because it
grants a pre-arrest adversarial hearing, to determine if the
material involved is obscene, to all purveyors of allegedly obscene
material except those purveying material that shows "actualultimate sexual acts or similated or animated ultimate sexual acts
when there is an explicit, closeup depiction of human genital
organs so as to give the appearance of the consummation of ultimate
sexual acts." LSA-R.S. @ 14:106 F(1).  The Court disagrees.

   The basic question before the Court is whether or not this
disparate procedural treatment of purveyors of one type of obscene
material and the purveyors of all other types of obscene material
is supported by a sufficiently weighty governmental purpose and
whether the means chosen in paragraph F(1) for achieving that
purpose are sufficiently related to that end. n7 Plaintiffs argue
that this disparate   [*267]   treatment must be analyzed under the
strict scrutiny standard, because it impinges upon their
fundamental first amendment rights of free speech and the press,
and cannot withstand such scrutiny, because it serves no
compelling  governmental  interest.   This argument is without
merit.

   n7 In answering this basic question, which in generic form is
common to all equal protection challenges, the Courts have analyzed
the  legislative  classification then at issue under one of three
levels of judicial scrutiny --strict scrutiny, intermediate
scrutiny, or rational review -- depending on the classification at
issue.  Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d
191, 195 (5th Cir.1984).The strict scrutiny standard is applied if
the classification at issue disadvantages a suspect class or
impinges upon the exercise of a fundamental right.  Id. at
195-96.Under the strict scrutiny standard, a statute must fall
unless the classification at issue was precisely tailored to serve
a compelling governmental interest.  Id. at 196. The intermediate
scrutiny standard applies when the line drawn though not facially
invidious gives rise to recurring constitutional difficulties.  Id.
Under the intermediate scrutiny standard, a statute will fall
unless it serves an important governmental objective and is
substantially related to the achievement of that objective.  Id.
Finally, the rational review, or deferential scrutiny, standard
applies if neither the strict nor intermediate scrutiny standards
apply.  Id.  Under the rational review standard, the classification
at issue need only bear some fair relationship to a legitimate
public purpose.  Id.

   Since obscenity statutes do impinge upon the fundamental rights
of free speech and the press, the line betwen that material which
is obscene and that material which is not obscene (i.e., between
that which is not constitutionally protected and that which is
constitutionally protected) must be very precisely drawn to serve
the compelling governmental interest in safeguarding the public
health, safety, and welfare against crime, antisocial behavior, and
the other arguably ill effects of obscenity.See Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973);
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37
L.Ed.2d 446 (1973). The Louisiana legislature has very precisely
drawn that line by explicitly incorporating the Miller definition
of obscenity.See LSA-R.S. @ 14:106 A(2)(a), (b).                                                                      PAGE   40
                        596 F. Supp. 261, *267


   Plaintiffs' equal protection challenge to paragraph F(1),
however, does not concern the line between the obscene and the not
obscene, between the constitutionally unprotected and the
constitutionally protected.  Rather, the challenged legislative
classification in paragraph F(1) procedurally divides the obscene
from the arguably more obscene, neither of which is
constitutionally protected.  Miller, 413 U.S. at 23, 93 S.Ct. at
2614 ("This much has been categorically settled by the Court, that
obscene material is unprotected by the First Amendment." Id.).
Thus, this Court is not called upon to function in the role of
guardian of the line against legislative encroachment on precious
first amendment liberties, which role mandates and justifies
judicial wielding of the burdensome strict scrutiny standard.
Instead, the Court will give greater deference to the judgment of
the legislature and test paragraph F(1) for mere rationality. n8

   n8 The Court notes that the intermediate scrutiny standard is
clearly inapplicable.  That standard is usually employed in
connection with so-called "semi-suspect" classes.  See, e.g.,
Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191,
196 n. 7, 197 (5th Cir.1984) (mental retardation); see also, Craig
v. Boren, 429 U.S. 190, 1917, 97 S.Ct. 451, 457, 50 L.Ed.2d 397
(1976) (gender).  Thus, since no semi-suspect class is involved
here, the Court will not apply the intermediate scrutiny standard
in its analysis of the challenged classification.

   Applying the rational review standard, the Court finds that the
disparate procedural treatment accorded by paragraph F(1) of LSA-R.S. @ 14:106 to purveyors of different types of obscene materials
is constitutional.  Paragraph F(1) provides a pre-arrest hearing in
all instances of alleged obscenity offenses except when the offense
charged is portrayal of ultimate sex acts "when there is an
explicit, close-up depiction of human genital organs so as to give
the appearance of the consummation of ultimate sexual acts."
(emphasis added). The exception created in paragraph F(1) enables
the authorities to take immediate legal action against purveyors of
material that the legislature has determined is blatently and
presumptively obscene, without the delays inherent in a pre-arrest
adversarial heaaring, thereby minimizing public harm.
Simultaneously, paragraph F(1) helps to protect the first amendment
rights of purveyors of material that is not blatently and
presumptively obscene, that may arguably fall within the gray area
straddling the border between the obscene and the not obscene, and
that may   [*268]   arguably not even be obscene at all. Thus,
through paragraph F(1)'s disparate procedural treatment of
purveyors of presumptively obscene material and purveyors of
material that is not presumptively obscene, the legislature has
attempted to achieve a rational balance between protection of the
public health, safety and welfare and protection of individual
rights. n9 Moreover, the Court is unable to find that thelegislature chose an irrational point for drawing the line between
the presumptively obscene and the not presumptively obscene.  The
legislature could rationally have concluded that material showing
ultimate sexual acts with explicit, closeup depictions of the
genitals and giving the aappearance of consummation of ultimate
sexual acts was blatently and presumptively obscene, while
concluding that the other types of hard core sexual conduct
described in LSA-R.S. @ 14:106 A(2)(b) n10 were not blatently and
presumptively obscene. n11 That the legislature might have drawn
the line more rationally is of no moment. So long as the
legislative classification at issue bears some fair relationship to
a legitmate public purpose, as paragraph F(1) clearly does here,
this Court is not free to substitute its judgment for that of the
legislature. Accordingly, the Court rejects plaintiffs' contention
that LSA-R.S. 14:106 F
                          PAGE   41
596 F. Supp. 261, *268

denies them the equal protection of the laws. n12

   n9 The Court notes that a pre-arrest heaaring, as opposed to a
pre-seizure hearing, is not constitutionally compelled in any
instance.  State v. Johnson, 343 So.2d at 710 (citing Milky Way
Productions, Inc. v. Leary, 305 F.Supp 288 (S.D. N.Y.1969), aff'd
per curiam sub nom.  New York Feed Co. v. Leary, 397 U.S. 98, 90
S.Ct. 817, 25 L.Ed.2d 78 (1970)). Thus, the legislature's provision
of a pre-arrest hearing for purveyors of material that may arguably
be protected by the first amendment deserves praise, not
condemnation.

   n10 LSA-R.S. @ 14:106 A(2)(b) defines "hard core sexual conduct"
as:

   the public portrayal, for its own sake, and for ensuing
commercial gain of:

   (i) Ultimate sexual acts, normal or perverted, actual,
simulated, or animated, whether between human beings, animals, or
an animal and a human being; or

   (ii) Masturbation, excretory functions or lewd exhibition,
actual, simulted, or animated, of the genitals, pubic hair, anus,
vulva, or femal breast nipples; or

   (iii) Sadomasochistic abuse, meaning actual, simulated or
animated, flagellation, or torture by or upon a person who is nude
or clad in undergarments or in a costume that reveals the pubic
hair, anus, vulva, genitals, or female breast nipples, or in the
condition of being fettered, bound, or otherwise physically
restrained, on the part of one so clothed; or

   (iv) Acutal, simulated, or animated touching, caressing, or
fondling of, or other similar physical contact with a pubic area,
anus, female breast nipple, covered or exposed, whether alone orbetween humans, animals, or a human and an animal, of the same or
opposite sex, in an act of apparent sexual stimulation or
gratification; or

   (v) Actual, simulated, or animated stimulation of a human
genital organ by any device whether or not the device is designed,
manufactured, or marketed for such purpose.

   n11 For example, LSA-R.S. @ 14:106 A(2)(b)(i) refers simply to
portrayal of "ultimate sexual acts," but makes no mention of
"explicit, close-up depiction of human genital organs" or of giving
"the appearance of the consummation of ultimate sexual acts," as
found in paragraph F(1).  Clearly, the legislature could rationally
have concluded that the latter, but not the former, is
presumptively obscene.

   n12 Even if the Court found that paragraph F's disparate
procedural treatment did violate the equal protection clause, that
would not be helpful to plaintiffs.  Since a pre-arrest hearing, as
opposed to a pre-seizure hearing, is not constitutionally mandated
in any instance, see supra n. 9, the Court could cure any equal
protection defect by simply striking down paragraph F and severing
it (assuming it is severable), thereby eliminating the pre-arrest
hearing for all alleged violators of the obscenity statute.

   IV.  LSA-R.S. @ 14:106 Is Not A prior restraint And Has No
Chilling Effect
                   PAGE   42                              596 F.
Supp. 261, *268

   Plaintiffs' fourth contention is that LSA-R.S. @ 14:106
constitutes an impermissible prior restraint and has a chilling
effect on presumptively protected conduct, because violation of the
statute is "a felony carrying cruel, unusual and excessive
punishment." Plaintiffs' Memorandum In Support of Motion For
summary judgment at 9.  The Court disagrees.

   This fourth contention is a confused juxtaposition of two
common, but entirely distinct, grounds for challenging the   [*269]
 constitutionality of a criminal statute, neither of which has
merit in this instance.  The first constitutional challenge raised
by this contention is that the statute has a "chilling effect" and
is a "prior restraint" on conduct that is presumptively protected
by the first amendment.  However, the challenge is essentially a
reiteration of plaintiffs' first contention that the statute is
unconstitutionally vague and overbroad.  The Court, as previously
indicated, has rejected that contention and, therefore, must reject
this contention as well. The second constitutional challenge raised
by this contention is that the penalty provision of the statute
imposes a cruel, unusual, and excessive punishment on offenders.
This contention merits little discussion.  Suffice it to say that
this Court does not find the penalties n13 imposed for violation of
the statute to be cruel, unusual, or excessive.  Accordingly, the
Court rejects plaintiffs' contention that LSA-R.S. @ 14:106constitutes a prior restraint and has a chilling effect on
presumptively protected conduct, since its violators can be
punished by neither cruel, unusual, nor excessive punishment.

   n13 The penalties that can be imposed on violators of LSA-R.S.
@ 14:106 are found at paragraph G of the statute, which provides:

   (1) On a first conviction, whoever commits the crime of
obscenity shall be fined not less than one thousand dollars nor
more than two thousand five hundred dollars, or imprisoned with or
without hard labor, for not less than six months nor more than
three years, or both.

   (2)(a) On a second conviction, the offender shall be imprisoned
with or without hard labor for not less than six months normore
than three years, without benefit of probation, parole, or
suspension of sentence, and in addition may be fined not less than
two thousand five dollars nor more than five thousand dollars.

   (b) The imprisonment provided for in Subparagraph (a), may be
imposed at court discretion if the court determines that the
offender, due to his employment, could not avoid engagementin the
offense.  This Sub-paragraph (b) shall not apply to the manager or
other person in charge of an establishment selling or exhibiting
obscene material.

   (3) On a third or subsequent conviction, the offender shall be
imprisoned with or without hard labor for not less than two years
nor more than five years, without benefit of probation, parole, or
suspension of sentence, and in addition may be fined not less than
five thousand dollars nor more than ten thousand dollars.

   (4) When a violation of Paragraph (1), (2), or (3) of Subsection
A of this Section is with or in the presence of an unmarried person
under the age of seventeen years, the offender shall be fined not
more than ten thousand dollars and shall be imprisoned, with or
without hard labor for not less than two years nor more than five
yeaars, without benefit of parole, probation, or suspension
                                                               PAGE
 43                              596 F. Supp. 261, *269


of sentence.

   V.  Injunctions Under LSA-R.S. @@ 13:4711 et seq.
Constitutional; Abatements Unconstitutional

   Plaintiffs' final contention is that LSA-R.S. @@ 13:4711 through
4716 n14 are [*270]   unconstitutional as they relate to obscenity,
because the granting of an injunction or order of abatement
thereunder would operate as a prior restraint on presumptively
[*271]   protected communicative activity. Defendant Harry Connick
contends that the prior restraint problems asserted by plaintiffs
are cured by the pre-injunction adversarial hearing required byLSA-R.S. @ 13:4713 E when the subject of the injunction is
obscenity.  The Court agrees in part and disagrees in part with the
contentions of both plaintiffs and defendant.

   n14 LSA-R.S. @@ 13:4711-4716, which together constitute Subpart
A of Part I of Chapter 32 of Title 13, provide in full:

   @ 4711.  Definitions; right to enjoin; abatement

   A.  For the purposes of this Subpart, the following terms shall
have the following definitions:

   (1) "Maintenance of a nuisance" means to conduct, carry on, or
knowingly permit to exist on one's premises a prohibited activity
as defined in this Subsection.

   (2) "Prohibited activity" means prostitution, as defined in this
Subsection, or obscenity, as now or hereafter defined by the
criminal laws of this state.

   (3) "Proprietry party" means an owner, lesee, sublessee, or
occupant of any premises covered by this Subpart.

   (4) "Representative" means an officer, agent, employee, or other
representative of a proprietary party.

   (5) "Premises" means any building, structure, land, watercraft,
or movable owned or occupied by any proprietary party or
representative thereof.

   (6) "Prostitution" means the practice by a person of
indiscriminate sexual intercourse with another for compensation, or
the solicitation by one person of another with the intent to engage
in indiscriminate sexual intercourse with the latter for
compensation.

   B.  Maintenance of a nuisance in or upon any premises by a
proprietary party, his representative, or any person acting in
active concert with him or them may be enjoined as provided in this
Subpart.  Maintenance of the same nuisance at any other location
within the jurisdictional area of the court issuing the injunction
by such individuals may be enjoined in such action.

   C.  An order of abatement directing the effectual closing of the
premises in question may be entered as part of the judgment in the
case as provided in R.S. 13:4715.
@ 4712.  Right to petition for injunction or order of abatement

PAGE   44                              596 F. Supp. 261, *271


   The issuance of an injunction or order of abatement pursuant to
this Subpart may be petitioned for by the following parties: the
attorney general of the state of Louisiana, in the name of thestate and of the respective parish and without payment of any
costs; the district attorney, in the name of the respective parish
and without payment of any costs; the sheriff, through his attorney
or designated representative, in the name of the respective parish
and without the payment of any costs; the governing authority of
the respective municipality, parish, or consolidated city-parish
government and without payment of any costs.
@ 4713.  Injunction proceedings; procedure

   A.  Application for injunctive relief afforded by this Section
shall be by petition.

   B.  After a petition for an injunction has been filed, notice
thereof shall be promptly served on the adverse party and a
preliminary hearing shall be held within twenty-four hours from the
time such notice is served.  If, following the preliminary hearing,
an independent judicial determination is made that there is
probable cause to believe that maintenance of a nuisance, as
defined in R.S. 13:4711, exists, an order granting a preliminary
injunction may issue describing on its face in reasonable detail
the conduct sought to be permanently enjoined.

   C.Regardless of whether or not a preliminary injunction has been
granted, an adversary hearing shall be held not less than five days
nor more than ten days after the preliminary hearing, or within
such additional reasonable time to which the adverse party
consents.  The court shall render its judgment within forty-eight
hours following the conclusion of the adversary hearing.  If,
following the adversary hearing, an independent judicial
determination is made that maintenance of a nuisance, as defined in
R.S. 13:4711, does in fact exist, an order granting a final
injuction may issue describing on its face in reasonable detail the
conduct permanently enjoined.

   D.  An order granting the preliminary or final injunctive relief
afforded by this Section shall be effective against the parties
enjoined, their officers, agents, representatives, employees,
counsel or any other person or persons in active concert or
participating with them, from the time actual knowledge of the
order is received by personal service or otherwise.

   E.  In all cases when the prohibited activity alleged is
obscenity, no injunction shall be granted unless the court
determines in a prior contradictory hearing that the conduct or
activities alleged to be obscene are not protected by the
constitutions of the United States or the state of Louisiana.

   F.  The defendant in the injunction proceedings may appeal to
the court of competent jurisdiction an order granting a final
injunction, but the appeal shall not stay the enforcement of the
injunctive relief or an order of abatement granted in the order.
Such appeal shall be perfected within five calendar days from the
rendition of the order and shall be made returnable to the
appropriate appellate court in not more than fifteen calendar daysfrom the rendition of the order.  The appeal shall be heard with
the greatest possible expedition, giving the proceedings preference
over all matters except other matters of the same character.  The
applicant for the injunction may appeal to the court of competent
jurisdiction an order denying the final injunction or denying an
order of abatement.
@ 4714.  Violations of injunction; punishment
                                                 PAGE   45
                     596 F. Supp. 261, *271


   A violation of the provisions of an injunction issued in a cause
instituted under the provisions of this Subpart shall constitute a
contempt of court.  A person found guilty of such contempt shall be
punished by a fine of not less than one hundred dollars nor more
than five hundred dollars, or by imprisonment in the parish prison
for a period of not more than one year, or both.  On conviction for
a second or subsequent contempt the offender shall be punished by
both fine and imprisonment.
@ 4715.  Order of abatement

   If it is established in an action under the provisions of this
Subpart that maintenance of a nuisance exists and that the owner
knew of its existence, an order of abatement may be entered as part
of the judgment rendered in the cae. The order of abatement shall
direct the effectual closing of the premises for a period of five
years, unless sooner released.

   Any person who in any manner uses premises he knows have been so
directed to be closed shall be guilty of contempt of court and
punished therefor as provided in R.S. 13:4714.
@ 4716.  Release of property and discontinuance of action upon
giving of bond; violations

   A.  If, after an order of abatement has been entered, the owner
appears and pays all costs of the proceeding and files a bond with
surety or sureties, bond in solido, to be approved by the clerk, in
an amount to be ascertained by the court but said bond shall not
exceed the sum of fifty thousand dollars, conditioned that he will
immediately abate the nuisance for a period of five years
thereafter, the court may, if satisfied of his good faith, order
the release of the premises so closed under the order of abatement.
Such release shall not affect any action against any person
whatsoever.

   B.  If the bond is given and all costs therein are paid before
judgment and order of abatement, the action shall be thereby
discontinued as to only the premises.

   C.  In the event such bond is given and the premises released,
each day that the owner knowingly permits the premises or any part
thereof to be used for such prohibited activity during the term of
the bond shall warrant a forfeiture of one hundred dollars under
the bond for each day on which the premises are so used. Collection thereof shall be had by rule taken in the original
action against the principal and sureties thereon, or either of
them, and the release shall be revoked.

   No forfeiture under the bond shall relieve the owner from any
prosecution for contempt, and the consequences thereof.  The
penaalty under the bond and the penalty for contempt shall be
cumulative.  The release of the property under the provisions of
this Section shall not release it from any judgment, penalty, lien
or liability to which it may be subject by law.

   The question is whether the statutes under attack operate as an
unconstitutional prior restraint on presumptively protected free
speech.  In answering this question, this Court is guided by a long
and unwavering line of United States Supreme Court decisions n15
and a vastly overwhelming majority of lower court decisions. n16
These decisions establish that the first amendment permits
injunctions against the future dissemination of particular items
that have previously been judicially determined obscene, but it
does not permit
                   PAGE   46                              596 F.
Supp. 261, *271

blanket injunctions against dissemination of materials not yet
judicially determined obscene, regardless of the increased
probability, due to the disseminator's prior track record, that the
materials will actually be obscene. The rationale for this
distinction has been set forth by the Fifth Circuit as follows:

   An order banning the exhibition of unnamed "obscene" films would
prohibit the showing of films that have not been judicially
declared obscene, as well as films that may not have been even
produced.  Such a blanket ban is not rendered unobjectionable by
the interweaving of threa[d]s of language from obscenity statutes,
for the end result is a sweeping prohibition against the screening
of obscene films in general.  Incorporation of the statutory
definition of obscenity -- usually a listing of forbidden sexual
acts or acrobatics -- merely begs the question, for few of us have
the omniscience to determine, in advance of a final judicial
ruling, whether a film is legally obscene.  Moreover, it is
possible   [*272]   that a film containing many of the acts listed
in the statute may eventually be held not to be obscene, since the
work must be taken as a whole, Miller v. California, supra, and
since state law cannot define the "contemporary community
standards" that must be applied by the fact finder. Smith v. United
States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977). An
injunction that forbids the showing of any film portraying the
perticular acts enumerated in the obscenity statute suppresses
future films because past films have been deemed offensive.  As
Chief Justice Hughes wrote in Near v. Minnesota, supra, 283 U.S. at
713, 51 S.Ct. at 630, "[t]his is of the essence of censorship."

   n15 See e.g., Vance v. Universal Amusement Co., 445 U.S. 308,
100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Southeastern Promotions,Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975);
Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct.
1575, 29 L.Ed.2d 1 (1971); Freedman v. Maryland, 380 U.S. 51, 85
S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 85 S.Ct. 631, 9 L.Ed.2d 584 (1963); Times Film Corp.
v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961);
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1
L.Ed.2d 1469 (1957); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625,
75 L.Ed. 1357(1931).

   n16 See, e.g., Universal Amusement Co. v. Vance, 587 F.2d 159
(5th Cir.1978); Cornflower Entertainment, Inc. v. Salt Lake City
Corp., 485 F.Supp. 777 (D.Utah 1980); Genusa v. City of Peoria, 475
F.Supp. 1199 (C.D.Ill.1979); Bayside Enterprises, Inc. v. Carson,
470 F.Supp. 1140 (MD.Fla.1979); Natco Theatres, Inc., v. Ratner,
463 F.Supp. 1124 (S.D.N.Y.1979); Fehlhaber v. North Carolina, 445
F.Supp. 130 (E.D.N.C.1978); Avon 42nd Street Corp. v. Myerson, 352
F.Supp. 994 (S.D.N.Y.1972); Mini Cinema 16 Inc. of Fort Dodge v.
Habhab, 326 F.Supp. 1162 (N.D.Iowa1970); Oregon Bookmark Corp. v.
Schrunk, 321 F.Supp. 639 (D.Or.1970); Parish of Jefferson v. Bayou
Landing Ltd., Inc., 350 So.2d 158 (La.1977); Gulf States Theatre of
Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1973); Giarrusso
v. D'Iberville Gallery, 295 So.2d 891 (La.App.1974). But see, 106
Forsyth Corp. v. Bishop, 482 F.2d 280 (5th Cir.1973); Bay Area
News, Inc. v. Poe, 364 So.2d 830 (Fla.App.1978).

   Universal Amusement Co., Inc. v. Vance, 587 F.2d 159, 169 (5th
Cir.1978).

   These decisions compel this Court to conclude that the
injunctive remedy provided for in the challenged statutes is
constitutional, but the abatement remedy is unconstitutional as it
relates to obscenity. n17 The injunctive
                                            PAGE   47
                596 F. Supp. 261, *272


remedy, provided for in LSA-R.S. @@ 13:4711 B, 4712, 4713 & 4714,
is constitutional, because this Court finds it can only be utilized
to enjoin the displaying of particular materials that previously
have been judicially determined to be obscene.  See LSA-R.S. @
13:4713E.  The injunctive remedy cannot be utilized to obtain a
blanket injunction against materials not yet judicially found
obscene. n18 Id.  On the other hand, the abatement remedy, provided
for in LSA-R.S. @ 13:4711 C, 4712, 4715 & 4716, is unconstitutional
as it relates to obscenity, because it can be utilized to stop,
based solely on past performance, the future operations of a
business that disseminates presumptively protected materials. n19
Since LSA-R.S. @ 13:4713 E clearly does not apply to abatement
proceedings, the abate remedy, unlike the injunction remedy, can be
utilized to obtain a blanket ban against materials not yet
judicially found obscene. n20 Accordingly, the abatement remedy, as
it relates to obscenity, must fail.
   n17 The Court notes preliminary that the Pullman branch of the
absention doctrine does not compel this Court to decline to rule on
the constitutionality of these injucntion and abatement statutes.
Under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct.
643, 85 L.Ed.971 (1941), federal courts should ordinarily refrain
from ruling on the constitutionality of a state statute if the
state law is unclear and is capable of construction by state courts
in a manner that would avoid the constitutional question.  Pullman
does not require absention here, because: (1) as to the injunctive
remedy, the Court's own interpretation of those statutory
provisions enables them to withstand constitutional challenge; and,
(2) as to the abatement remedy, the Court is convinced that no
possible interpretation of those statutory provisions can withstand
constitutional challenge.

   n18 Thus, in short, LSA-R.S. @ 13:4713 E provides the procedural
safeguards necessary for the enjoining of obscene materials,
thereby saving the Louisiana obscene nuisance injunction provisions
from the defects found fatal to similar Texas provisions in Vance.

   n19.  It is certainly arguable that "the application of this
[abatement remedy] is based on penalty for illegal use, not prior
restraint of a possible future permissible use." Giarrusso v.
D'Iberville Gallery, 295 So.2d 891, 894 (La.App.1974) (Boutall, J.
concurring in result).  Nevertheless, like the author of the quote,
this Court feels constrained by precedent to reject this argument.

   n20.  Thus, in short, the abatement provisions contain none of
the safeguards necessary in this area and, therefore, suffers from
essentially the same constitutional infirmities as the Texas
statutes struck down in Vance.

   VI.  Summary

   The Court's findings hereinabove can be summarized as follows:

   (1) LSA-R.S. @ 14:106 is not unconstitutionally vague or
overbroad.

   (2) LSA-R.S. @ 14:106 D is unconstitutional in its exemption of
the enumerated categories of institution.  LSA-R.S. @ 14:106 D is
not unconstitutional in its exemption of projectionists.  The
unconstitutional portion of paragraph D is severable from the
remainder of paragraph D and from the remainder of LSA-R.S. @
14:106.
           PAGE   48                              596 F. Supp. 261,
*272

   (3) LSA-R.S. @ 14:106 is not unconstitutional in its disparate
procedural treatment of alleged disseminators of different types of
obscene materials. [*273]   (4) LSA-R.S. @ 14:106 is not an
unconstitutional prior restraint, and has no unconstitutional
chilling effect, on presumptively protected conduct. Paragraph G
does not provide for cruel, unusual, or excessive punishment ofviolators of LSA-R.S. @ 14:106.

   (5) The injunctive remedy, available under LSA-R.S. @@ 13:4711
B, 4712, 4713 & 4714, is constitutional as it relates to the
enjoining of the dissemination of particular materials previously
judicially found obscene.  The abatement remedy, available under
LSA-R.S. @@ 13:4711 C, 4712, 4715 & 4716, is unconstitutional as it
relates to the closing of a premises for obscenity violations by
the owner.