¶1(dissenting):
¶2I dissent from both the opinion and decision rendered by the majority in this case and I therefore respectfully declined to approve the judgment.
¶3This case arose because of efforts by Florida state officials to enforce Section 847.011 of the Florida Statutes, F. S.A. as related to the motion picture film “Vixen.” The state sought in Florida ex rel Austin v. Mandell, No. 69-8106-H (4th Judicial Cir.Ct., Duval Cty., Fla.) to have “Vixen” declared obscene and to have it confiscated and destroyed. Upon the subsequent filing of this case, Judge McRae entered a one-judge temporary restraining order restraining the defendants against further acts to enforce Section 847.011 which was, in effect, an injunction restraining the state suit.
¶4The plaintiffs here seek a declaratory judgment holding Section 847.011 to be unconstitutional and for an injunction permanently enjoining the defendants from enforcing the civil or criminal provisions of that statute. For the reasons hereinafter stated I consider the action of the majority of this Court in granting the requested relief to be without legal support.
¶5The three reasons given by the majority opinion for declaring the whole statute unconstitutional are:
(1) The statute authorizes seizure of matter allegedly obscene before a prior, judicially supervised, adversary proceeding is held on the question of obscenity;
(2) The statute as interpreted by Florida courts prescribes a local standard (instead of a national one) for the identification of obscenity; and
(3) The statute, nor any other Florida statute, rule or practice, assures a prompt final judicial determination of “obscenity” on appeal.
¶61. Provision for Ex Parte Injunction
¶7The majority opinion equates the seizure of any obscene material with a mass seizure of books, relying on A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) and subsequent eases, including Carroll v. City of Orlando, 311 F.Supp. 967 (M.D.Fla., 1970) (three judge court). The author of this opinion dissented in the Carrollcase believing that a mass seizure of books as in Kansas, supra, was not the same as a seizure of an instrumentality and evidence of a crime. The dissenting view in Carrollhas subsequently been inferentially approved by the Supreme Court by its affirmance of Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y., 1969) (three judge court), affirmed per curiam 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970). In Milky Way the three judge court said, 305 F.Supp. pp. 296-297:
“ * -… we can an(j <}0 go directly to the asserted requirement of a preliminary adversary hearing and decide the essentially identical question under either formulation — whether such a novelty is mandated by the First Amendment.
“While what plaintiffs propose is indeed a relative ‘novelty,’ their argument is not without arguable connection to established principles. Plaintiffs rely upon the decisions which have condemned mass, or broadly effective, seizures of allegedly obscene writings without a prior adversary hearing. A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968). A ‘prior restraint’ is also effected plaintiffs say, when arrests are made — particularly multiple arrests for promoting the same publication — because this inhibits others from continuing to distribute the materials. And so, the argu*472ment concludes, there must be an adversary hearing and judicial determination preceding the inception of the criminal process.
“The argument is not merely plausible ; it has won approval in several courts. Delta Book Distributors v. Cronvich, Inc., 304 F.Supp. 662 (E.D.La.1969) (three-judge court); Cambist Films, Inc. v. State of Illinois, 292 F.Supp. 185 (N.D.Ill.1968); Sokolic v. Ryan, 304 F.Supp. 213 (S.D.Ga.1969). But decisions we believe to be sounder, at least in the present state of learning, go the other way. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Rage Books, Inc. v. Leary, 301 F.Supp. 546 (S.D.N.Y.1969), appeal pending; Astro Cinema Corp., Inc. v. Mackell, 305 F.Supp. 863 (E.D.N.Y.1969); East Village Other, Inc. v. Koota, 305 F.Supp. 1159 (E.D.N.Y.1968). In the respect here pertinent, we join the latter group.
“It is of interest in this connection if by no means decisive, that plaintiffs’ theory, if accepted, would have invalidated both federal and state convictions under obscenity statutes which have in the recent past been upheld by the Supreme Court. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). A point of greater importance, both as a matter of legal history and practical judgment, is the fact that the prior adversary proceeding plaintiffs demand would not serve to eliminate either the ‘chill’ or the ‘prior restraint’ against which they contend. It does not appear that there were any arrests in the present cases before a judicial officer had scrutinized the materials and determined that warrants should issue. All that, like the proceedings of a grand jury, was accomplished ex parte — without either the possible benefit to the accused or the potentially ‘chilling’ effect upon others of adversary proceedings. The result, at least in terms of history, is to avoid any traditional form of ‘prior restraint’ because the first overt impact upon the allegedly protected area comes at a time when all the protections and favorable presumptions of the criminal process are available to the defendant. Cf. Near v. Minnesota, 283 U.S. 697, 713-714, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
“This is not to blink at the undeniable fact that arrests and prosecutions are likely to deter activities of the kind against which they are directed. The very existence of criminal sanctions for forms of expression, especially when the standards of liability are such vexed questions at the highest judicial levels, must have some appreciable tendency of the same type. See Smith v. California, 361 U.S. 147, 154-155, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). The point remains that the inhibitions are not avoided by the new procedure plaintiffs want; they are, if anything, pushed back to an earlier time of open contest when the burden of litigation and a species of readier ‘defeat’ are likely to work their deterrent effects.
“It is inappropriate, we think, to ‘weigh’ (assuming we could) the relative impact of familiar criminal procedures against the innovation plaintiffs seek. It seems sufficient for our purposes that the supposed virtues of the departure they urge are not at all apparent and are directly antithetical to all pertinent indications in the Supreme Court’s pronouncements implementing the First Amendment. The net effect of those expressions suggests that traditional criminal prosecutions, with their procedural safeguards, are surely permissible, and very possibly preferred, vehicles for enforcing bans against obscenity. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 69-70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Id. at 72-73, 83 S.Ct. at 640-641 (Douglas, J., concurring); Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-443, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); Near v. Minnesota, 283 U.S. 697, 713-715, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Bantam Books, supra, up*473on which plaintiffs rely/ reminds us specifically that procedures short of prosecution, intended as potential substitutes, may be less acceptable than the standard proceeding that begins with complaint, information or indictment as the first, non-adversary determination.
“At any rate, we find no warrant in the First Amendment or the cases that give it full meaning for compelling the radical change plaintiffs seek in state (and presumably, federal) criminal procedures affecting obscenity cases.”
Despite the affirmance of Milky Way by the Supreme Court, as above noted, the majority opinion continues to apply the law proscribing mass- seizures of books to seizures of a single film and attributes the Supreme Court’s affirmance to the plaintiffs’ delay in that case to seek federal injunctive relief.
¶8It is true that Milky Way concerned an arrest and not a seizure but the reasoning is equally applicable to both arrest and seizure. In the recent case of United States v. Fragus, 428 F.2d 1211 [filed June 23, 1970], supplementing 422 F.2d 1244 (5th Cir. 1970) (per curiam) the Fifth Circuit said:
“That Court [U. S. Supreme Court] affirmed the decision of a three-judge district court in Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969); aff. 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), which confirms that the arrest of a panderer of gross smut may be effected under ordinary criminal processes without a prior judicial determination of the obscenity of the materials he peddles. While acknowledging the restraining effect of such an arrest', that opinion distinguishes the arrest from mass, or broadly effective seizures of allegedly obscene writings such as were involved in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) and Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). It has also come to our attention that the Second Circuit in United States v. Wild, 422 F.2d 34 (2nd Cir. 1969), affirmed convictions under Title 18, § 1461, United States Code, a companion section of the Com-stock Act to the statute violated here. There the Second Circuit said:
‘ … appellants present a broader argument that seizures in an obscenity case without a prior adversary hearing on the issue of obscenity are unconstitutional under A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). These cases are in-apposite since they involved massive seizures of books under state statutes which authorized warrants for the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The seizures in this case were of instrumentalities the evidence of the crime for which appellants were indicted and lawfully arrested. We do not believe Marcus and A Quantity of Books can be read to proscribe the application of the ordinary' methods of initiating criminal prosecution to obscenity cases.’
“In particular, see that court’s opinion on petition for rehearing which details the distinctions between the seizure which occurred in that case (which is closely similar to the seizure involved in the case at bar) and its prior decision in Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969).
We agree with the Second Circuit that there is no broader protection against seizure of obscenity of the type here involved than there would be against arrest of the procurer who is transporting it, since the Fourth Amendment speaks to unreasonable seizures of persons and papers and effects in precisely the same terms.”
¶9Whether the plaintiffs — or any of them — were pandering in this case is a factual matter which does not go to the *474basic issue of the constitutionality of the statute.
¶10In short, it is my position that a prior, judicially supervised, adversary proceeding is not required except where seizures come within the proscriptions of A Quantity of Copies of Books v. Kansas, supra, and that, therefore, the statute is not invalid on that ground.
¶112. Local Standard Instead of National Standard
¶12The Supreme Court has held that obscenity is not within the area of constitutionally protected speech or press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) the Court states that their definition of obscenity required that three elements must coalesce (p. 418, 86 S.Ct. p. 977):
“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;'
(b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(c) the material is utterly without redeeming social value.”
¶13The majority opinion in the case at bar concludes that in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) the phrase “contemporary community standards” was defined by the Supreme Court as meaning a national standard of contemporary values. The opinion of Mr. Justice Brennan setting forth that definition was concurred in by only Mr. Justice Goldberg; Chief Justice Warren and Mr. Justice Clark specifically stated their view that “community standards” meant community standards — not a national standard.
¶14I am therefore not as sure as my brothers that the law is absolutely clear on that point. But even assuming they are correct and that in determining the issue of obscenity that a national standard should be used, the statute should not be invalidated because a state court has failed to apply correctly a Supreme Court ruling. Reversals of convictions improperly attained is the appropriate remedy — -not striking the whole statute to make sure it cannot be applied incorrectly. The majority approach on this issue is in my opinion novel, unnecessary, and unauthorized. The statute should not have met its demise on that point.
¶153. No Provision For Appeal
¶16The majority opinion cites and quotes from Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) as supporting the third ground on which the Florida statute is stricken. A reading of Freedmandiscloses the following statement by Mr. Justice Brennan in the Court’s opinion, p. 55, 85 S.Ct. p. 737:
“Under the [Maryland] statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for completion of Board action.”
¶17The Maryland statute provided for administrative determination of obscenity without any judicial participation. The Florida statute does not suffer from the infirmity of Freedmanbecause Section 847.011(7) (c) provides:
“The person sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.”
¶18In Freedmanthe Supreme Court referred to their previous opinion in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) as containing a model procedure for the safeguards found lacking in Freedman. That model was incorporated in the New York Criminal Code of Criminal Procedure as Section 22-a thereof and it appears that the civil portion of the Florida statute is substantially the same.
¶19Insofar as factual delays are concerned in this case, it would be reasonable to *475assume that, if left alone, the state procedures would long ago have determined the issue of obscenity; it was the resort to the staying hand of the federal court which has prevented an early determination of Vixen’s status. I am unable to agree that Freedmanrequires a finding that the Florida statute is constitutionally deficient because it does not provide a specific appellate procedure; I find no other reference to a Supreme Court case in the majority opinion in support of the position of the majority on that issue.
¶20In addition to believing that the statute is not unconstitutional on the grounds stated by the majority, there is another reason for my declining to join in the judgment enjoining all enforcement of the civil and criminal provisions of § 847.011 Florida Statutes, F.S.A. As noted above, when this case was first filed, Judge McRae entered a one-judge temporary restraining order which had the effect of restraining the state suit then pending wherein T. Edward Austin as the State Attorney for the Fourth Judicial Circuit of Florida, had brought a civil proceeding against the exhibitor Mandell of the film Vixen under the civil provisions of § 847.011. The effect of the permanent injunction is to continue in force the temporary restraining order staying the state proceedings. To the extent that the injunction applies to the case of Florida ex rel Austin v. Mandell, No. 69-8106-H (4th Judicial Cir.Ct., Duval Cty., Fla.) or to any other presently pending case, I conclude that Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (June 8, 1970) precludes such action.
¶21Title 28, United States Code, § 2283 provides:
“A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by an Act of Congress or where necessary in aid of its jurisdiction or to protect or effectuate its judgments.”
¶22In Atlantic Coast Line, the Supreme Court stated:
“ … a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law even when the interference is unmistakeably clear.”
¶23Therefore, even if the reasoning of the majority is correct — which I do not concede — the relief granted is over broad in the light of Atlantic Coast Line.
¶24In Kingsley Books, Inc. v. Brown, supra, Mr. Justice Frankfurter stated:
“In an unbroken series of cases extending over a long stretch of this Court’s history, it has been accepted as a postulate that ‘the primary requirements of decency may be enforced against obscene publication’ … It is not for this Court thus to limit the state in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination is a matter within the legislator’s range of choice.”
¶25The majority opinion directs the return to the Citizens for Decent Literature, Inc., of a transcript with pictures of the film Vixen which that organization had filed with the Court as amicus curiae. The question of obscenity of that film has not been resolved by this Court or the majority opinion. In fact, that was properly an issue before the state court which has been divested of its authority on that issue by this Court. An examination of the transcript and pictures of the film clearly reveals that it was subject to the challenge of obscenity and while this opinion makes no effort to make such a decision, it is unfortunate that the state court was not permitted to finally determine this issue.
¶26“Chilling” of First Amendment rights is, of course, proscribed by the Constitu*476tion. But obscenity does not have such protection and the “chilling” of obscenity is not only permissible but a legitimate interest of the state. The majority opinion expresses concern over the finding that the state proceeding “chilled” the rights of Vixen’s promoters. But who can say from the record that such “chilling” was not justified in the state’s efforts to suppress obscenity?
¶27APPENDIX I
¶28FLORIDA STATUTES, 1967
¶29CHAPTER 847
¶30OBSCENE LITERATURE;
¶31PROFANITY
¶328&7.011 Prohibition of certain acts in connection with obscene, lewd, etc., materials; penalty.—
¶33(1) (a) A person who knowingly sells, lends, gives away, distributes, transmits, shows or transmutes, or offers to sell, lend, give away, distribute, transmit, show or transmute, or has in his possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene, lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion picture, film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose; or who knowingly designs, copies, draws, photographs, poses for, writes, prints, publishes, or in any manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character; or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased, obtained, or had; or who in any manner knowingly hires, employs, uses, or permits any person to do or assist in doing, either knowingly or innocently, any act or thing mentioned above, is guilty of a misdemeanor and shall be punished by imprisonment in the county jail not exceeding one year or by fine not exceeding $1,000.00, or both. A person who, after having been convicted of a violation of this section, thereafter violates any of its provisions, is guilty of a felony and shall be punished by imprisonment in the state prison not exceeding five years or in the county jail not exceeding one year or by fine not exceeding $10,000.00, or by both such fine and imprisonment.
¶34(b) The knowing possession by any person of six or more identical or similar materials, matters, articles or things coming within the provisions of the foregoing paragraph (a) is presumptive evidence of the violation of said paragraph.
¶35(2) A person who knowingly has in his possession, custody, or control any obscene, lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion picture film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose, without intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise the same, is guilty of a misdemeanor and *477shall be punished by imprisonment in the county jail not exceeding six months or by fine not exceeding $500.00, or both. In any prosecution for such possession, it shall not be necessary to allege or prove the absence of such intent.
¶36(3) No person shall as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication require that the purchaser or consignee receive for resale any other article, paper, magazine, book, periodical, or publication reasonably believed by the purchaser or consignee to be obscene, lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic, and no person shall deny or threaten to deny or revoke any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure of any person to accept any such article, paper, magazine, book, periodical, or publication, or by reason of the return thereof. Whoever violates this section is guilty of a felony and shall be punished by imprisonment in the state prison not exceeding five years or in the county jail not exceeding one year or by fine not exceeding $10,000.00, or by both such fine and imprisonment.
¶37(4) Every act, thing, or transaction forbidden by this section shall constitute a separate offense and shall be punishable as such.
¶38(5) Proof that a defendant knowingly committed any act or engaged in any conduct referred to in this section may be made by showing that at the time such act was committed or conduct engaged in he had actual knowledge of the contents or character of the material, matter, article, or thing possessed or otherwise dealt with, or by showing facts and circumstances from which it may fairly be inferred that he had such knowledge, or by showing that he had knowledge of such facts and circumstances as would put a man of ordinary intelligence and caution on inquiry as to such contents or character.
¶39(6) There shall be no right of property in any of the materials, matters, articles, or things possessed or otherwise dealt with in violation of this section, and upon the seizure of any such material, matter, article, or thing by any authorized law enforcement officer the same shall be delivered to and held by the clerk of the court having jurisdiction to try such violation. When the same is no longer required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and after notice and hearing, the court, if it finds the same to have been possessed or otherwise dealt with in violation of this section, shall order the sheriff to destroy the same in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if he shows that he is entitled to possession. If destruction is ordered, the sheriff and clerk shall file a certificate of compliance.
¶40(7) (a) The circuit court has jurisdiction to enjoin a threatened violation of this section upon complaint filed by the state attorney, county solicitor, or county prosecuting attorney in the name of the state upon the relation of such state attorney, county solicitor, or county prosecuting attorney.
¶41(b) After the filing of such a complaint, the judge to whom it is presented may grant an order restraining the person complained of until final hearing or further order of the court. Whenever the relator state attorney, county solicitor or county prosecuting attorney shall request a judge of said court to set a hearing upon an application for such a restraining order, such judge shall set such hearing for a time within three days after the making of such request. No such order shall be made unless such judge shall be satisfied that sufficient notice of the application therefor has been given to the party restrained of the time when and place where the application for such restraining order is to be made, provided, however, that such notice shall be dispensed with when it is manifest to such judge, from the sworn allegations of the complaint or the affidavit of the plaintiff or other competent *478person, that the apprehended violation will be committed if an immediate remedy is not afforded.
¶42(c) The person sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.
¶43(d) In the event that a final decree of injunction is entered, it shall contain a provision directing the defendant having the possession, custody, or control of the materials, matters, articles, or things affected by the injunction to surrender the same to the sheriff and requiring the sheriff to seize and destroy the same. The sheriff shall file a certificate of his compliance.
¶44(e) In any action brought as provided in this section, no bond or undertaking shall be required of the state or the state attorney or county solicitor or county prosecuting attorney before the issuance of a restraining order provided for by paragraph (b) of this subsection, and there shall be no liability on the part of the state or the state attorney or the county solicitor or the county prosecuting attorney for costs or for damages sustained by reason of such restraining order in any case where a final decree is rendered in favor of the person sought to be enjoined.
¶45(f) Every person who has possession, custody, or control of, or otherwise deals with any of the materials, matters, articles, or things described in this section, after the service upon him of a summons and complaint in an action for injunction brought under this section, is chargeable with knowledge of the contents and character thereof.
¶46(8) The several sheriffs, constables, state attorneys, county solicitors, and county prosecuting attorneys shall vigorously enforce this section within their respective jurisdictions.
¶47(9) This section shall not apply to the exhibition of motion picture films permitted by § 521.02.
¶48(10) For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.
¶49(11) For the purposes of this section, the word person includes individuals, firms, associations, corporations, and all other groups and combinations.
¶50SUPPLEMENTAL STIPULATION
¶51The parties agree that the following facts are true and need not be proved:
¶52On or about August 28, 1969, pursuant to arrangements made with plaintiffs Meyer, the creator, director and producer of “Vixen,” and Eve Productions, Inc., owner of the print involved, the plaintiffs Vaughan and Jack Vaughan Productions, Inc., the distributor, delivered to Sheldon H. Mandell a print of “Vixen” for exhibition at his Five Points Theater. On that date, Mandell began exhibiting the film to patrons of the theater and he continued to do so, without interruption and without incident, several times a day for five weeks and one day. Mandell restricted admission to persons eighteen years of age or older.
¶53On October 3, 1969, the second day of the sixth week of the film’s engagement, the defendant State Attorney and the defendant Sheriff and their agents obtained a search warrant and criminal summons from a judge of the State circuit court, without notice to Mandell or to anyone else interested in “Vixen,” and proceeded to the Five Points Theater. The defendants and their agents notified the Jacksonville newspapers and a major commercial television station of the impending action to be taken. The television reporter so notified had viewed “Vixen” at the State Attorney’s request and, believing it to be obscene, supplied an affidavit that was used in obtaining the warrant.
¶54Newsmen and cameramen of the newspapers and the television station were in the vicinity of the theater when the law *479officers arrived to execute the search warrant for “Vixen” and to execute on Mandell the criminal summons. The television reporter saw the officers arrive and followed them into the theater. The newspaper reporter and photographer did not see the officers arrive because they were in their car marked “Florida Times-Union and Journal,” which for that reason they concealed around the corner. One of the reporters understood there would be a “signal” from the police officers. When police investigator John Boman saw that the newspaper reporter and photographer were not at the theater, he sent an unidentified passerby to notify them to come to the theater. So notified, they went to the theater. In the entryway of the theater, the newsmen witnessed and photographed Sergeant Pfeiffer of the “vice squad” reading the search warrant and the summons to Mandell.
¶55Accompanied by a newsman, who entered the theater despite Mandell’s request that the press not enter, the officers proceeded to the projection room. The showing of “Vixen” then in progress was stopped and the house lights turned on. The film was confiscated as Man-dell’s patrons left the theater, some by the back door. The cameramen photographed the officers as they carried away the film and they photographed Mandell as he telephoned his lawyer.
¶56Investigator Boman returned to the lobby from the projection booth and handed a newspaper reporter a piece of paper on which Boman had written the projectionist’s name and a comment attributed by Boman to the projectionist, “How come it took you so long to come and get it?” Boman or another officer supplied the same attributed quotation to the television reporter.
¶57In two newscasts on the night of October 3 the viewers of Channel 12 heard the story of the seizure of “Vixen” and saw all the details on film. And the Florida Times-Union reported on Saturday, October 4th that “ ‘Vixen’ Closed as Lewd Film” and that Mandell had been charged with an offense punishable by fine and imprisonment for up to one year.
¶58This Court enjoined the criminal prosecution of Mandell based on the seizure without a prior adversary hearing, and required the defendants to return the film to Mandell.
¶59After the film was returned to Man-dell, the State Attorney commenced a civil proceeding against him in the State circuit court under Florida Statute 847.-011, seeking to have the film declared obscene and to have the film again confiscated and destroyed. After running the picture for a few days, to a theater packed with people who obviously were far more titillated by the State Attorney’s charges than by what they had previously seen or heard of the film itself, Mandell gave up his defense of the film, withdrew it from the screen, agreed with the State Attorney not to show the film again. He offered to submit for the State Attorney’s inspection and approval any “questionable” films he might desire to exhibit in the future. The State Attorney declined.