468 F2d 611 Drive-in Inc v. J Baxley

468 F.2d 611

80 DRIVE-IN, INC., an Alabama corporation and Ernest Jones,
Jr., Plaintiffs-Appellants,
v.
William J. BAXLEY, the Attorney General of the State of
Alabama, et al., Defendants-Appellees.

No. 71-3121 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 5, 1972.

James W. May, Birmingham, Ala., for plaintiffs-appellants.

William J. Baxley, Atty. Gen. of Ala., Montgomery, Ala., William T. Faile, Dist. Atty., Fourth Judicial Circuit of Alabama, Selma, Ala., for defendants-appellees.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

PER CURIAM:

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1

The State of Alabama, through its duly authorized officials, filed a bill in state court to enjoin the operation of an outdoor theatre in such a manner as to constitute a public nuisance. Three weeks later the corporate owner of the theatre filed a complaint in the United States District Court asking that the officials be enjoined from prosecuting the state court action and that an order be issued declaring that the Alabama public nuisance statute was being unconstitutionally applied to the appellants. After an adversary hearing, the District Court found that the state statute was not patently unconstitutional, that it was not being unconstitutionally applied, that the plaintiffs had failed to prove that the suit filed in the state courts was initiated in bad faith, nor had the plaintiffs proved that the state court suit had been filed for the purpose of harassing the defendants for showing x-rated movies. The District Court then denied an injunction to stay the civil action which had been pending in state court before the complaint was filed in the federal court.

2

To require that motion pictures not be exhibited in such a manner as to stop traffic on the highways is certainly a reasonable restriction on the exercise of first amendment freedoms. See Judge Moore's concurring opinion in Chemline, Inc. v. City of Grand Prairie, 5 Cir., 1966, 364 F.2d 721. Unlike Palaio v. McAuliffe, 1230 F.2d 466 [1972], this case presents squarely the question whether Younger v. Harris precludes federal intervention in purely civil proceedings as well as state criminal prosecutions, but because we affirm the judgment of the district court on another ground, we intimate no resolution of this question.

3

Affirmed.

*

Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I