Byrne v. Karalexis (401 U.S. 216)/Dissent Brennan

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, 1969, 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, 85 S.Ct. 734, 739-740, 13 L.Ed.2d 649 (1965), limited to preservation of the status quo for the shortest, fixed period compatible with soundjudicial 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, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (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, 88 S.Ct. 754, 756, 19 L.Ed.2d 966 (1968) (emphasis supplied); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 690 n. 22, 88 S.Ct. 1298, 1306-1307, 20 L.Ed.2d 225 (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, 401 U.S. 82, p. 93, 91 S.Ct. 674, p. 681, 27 L.Ed.2d 701.