decided: February 23, 1971.
BYRNE, DISTRICT ATTORNEY OF SUFFOLK COUNTY, ET AL
KARALEXIS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.
Author: Per Curiam
[ 401 U.S. Page 217]
This is an appeal from the order of a three-judge court granting a preliminary injunction against any civil or criminal proceedings in state courts against the appellees. Appellant Byrne is the district attorney of Suffolk County, Massachusetts. The appellees own and operate a motion picture theater in Boston. As a result of exhibiting the film entitled "I am Curious (Yellow)" at their theater, appellees were charged by District Attorney Byrne with violating Massachusetts General Laws, Chapter 272, § 28A, which prohibits the possession of obscene films for the purpose of exhibition.*fn1
After the filing of the original state indictments against them appellees brought the present action in federal
[ 401 U.S. Page 218]
court.*fn2 They sought an injunction against both pending and future prosecutions under the Massachusetts obscenity law, and a declaration that the state obscenity law was unconstitutional on its face and as applied.*fn3 The
[ 401 U.S. Page 219]
three-judge District Court held that appellees had a probability of success in having the statute declared unconstitutional, that abstention would be improper, and that appellees might suffer irreparable injury if they were unable to show the film. The three-judge court, one judge dissenting, therefore granted a preliminary injunction, forbidding the initiation of any future prosecutions or the execution of the sentence imposed in the state proceedings then pending. 306 F.Supp. 1363 (1969). The district attorney appealed. We granted a stay of the district court order, 396 U.S. 976 (1969), and subsequently noted probable jurisdiction, 397 U.S. 985 (1970).
[ 401 U.S. Page 220]
In discussing the subject of irreparable injury, the court said:
"We do not agree with defendant's contention that there is no indication of irreparable injury. Even if money damages could be thought in some cases adequate compensation for delay, this defendant will presumably be immune. We agree with plaintiffs that the box office receipts, if there is a substantial delay, can be expected to be smaller. A moving picture may well be a diminishing asset. It has been said, also, that in assessing injury the chilling effect upon the freedom of expression of others is to be considered. See Dombrowski v. Pfister, 1965, 380 U.S. 479, 486-489." 306 F.Supp., at 1367.
There was, however, no finding by the District Court that the threat to appellees' federally protected rights is "one that cannot be eliminated by [their] defense against a single criminal prosecution." Younger v. Harris, ante, p. 37, at 46. Because the District Court, in considering the propriety of injunctive and declaratory relief in this case, was without the guidance provided today by our decisions in Younger v. Harris, supra, and Samuels v. Mackell, ante, p. 66, we vacate the judgment below and remand for reconsideration in light of those decisions.
It is so ordered.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this appeal.
[For concurring opinion of MR. JUSTICE STEWART, see ante, p. 54.]
306 F.Supp. 1363, vacated and remanded.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, dissenting.
The injunction appealed from issued December 6, 1969, after appellees' convictions in state court on November 12,
[ 401 U.S. Page 2211969]
, of exhibiting an obscene film in violation of state law. In the absence of any showing of bad faith or harassment, appellees were therefore obliged to pursue their constitutional defenses on appeal from the convictions to the state appellate court, and the Federal District Court erred in enjoining appellants from interfering with future showings of the film. Freedman v. Maryland, 380 U.S. 51, 60 (1965), limited to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of prompt, final, judicial determination of the question of the film's alleged obscenity. See also Lee Art Theater v. Virginia, 392 U.S. 636 (1968). But there was no interference from July through November; appellant Byrne honored a stipulation made July 15 in federal court not to seize the film or interfere with its exhibition pending the outcome of the trial. Byrne withdrew from the stipulation and threatened to move against further exhibition of the film only after the convictions were obtained. Clearly, he was not required to continue to stay his hand pending the outcome of appeals from the convictions; Freedman was satisfied by a "prompt judicial decision by the trial court," Teitel Film Corp. v. Cusack, 390 U.S. 139, 142 (1968) (emphasis supplied); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 690 n. 22 (1968). Rather than remand I would therefore reverse the judgment of the District Court for the reasons stated in my opinion in Perez v. Ledesma, ante, p. 93.