Kaufman, Chief Judge and Mansfield and Breitenstein,*fn* Circuit Judges.
MANSFIELD, Circuit Judge:
In an age that has witnessed unprecedented liberality in matters sexual, we are asked on this appeal to determine whether, in proceedings for enforcement of laws against obscenity through seizure of allegedly obscene material, First Amendment rights have been violated. At issue is the appropriateness and constitutionality of proceedings instituted by the government pursuant to Rule 41, F.R.Cr.P., whereby it applied to a federal magistrate for a search and seizure warrant and simultaneously moved by order to show cause and subpoena duces tecum for an adversary hearing at which the obscenity of the material would be preliminarily determined before any seizure.
Appellants, who are owners and employees of certain theaters which had exhibited an allegedly obscene film, "The Blue Balloon," sought to invalidate the proceedings before the federal magistrate on the grounds, among others, that he was without power to hold a prior adversary hearing under Rule 41, F.R.Cr.P., and that in any event the proceedings failed to conform to the constitutional requirements of the First Amendment. As we agree with the district court which rejected these assertions, we affirm its order.
On February 19, 1973, the United States Attorney for the Eastern District of New York filed with United States Magistrate Max Schiffman applications for the issuance pursuant to Rule 41 of warrants authorizing the search of six movie theaters*fn1 located in the Eastern District and the seizure of copies of "The Blue Balloon" on the grounds that the film was obscene and had been knowingly shipped in interstate commerce (from New Jersey to New York) by common carrier in violation of 18 U.S.C. § 1462. The supporting affidavits of FBI Agent John Monaghan gave a detailed description of the motion picture as consisting for the most part of a series of scenes vividly depicting discrete and explicit acts of sexual intercourse, homosexuality, sadism, fellatio, and cunnilingus, with close-up "scenes centering on the sexual organs showing penetration and withdrawal with subsequent ejaculation." The affidavits also alleged that "The Blue Balloon" was scheduled to play at these theaters only through Tuesday, February 20, 1973.
Concurrently with his request for the search warrants, the United States Attorney applied to the magistrate for orders directed to the owner and/or manager of each theater to show cause why each of the search warrants should not be issued. The reason given by Assistant United States Attorney DePetris in the application for the hearing was his desire to satisfy "the requirement under the First Amendment that an adversary hearing on the issue of obscenity be provided before an allegedly obscene motion picture film can be constitutionally seized." Magistrate Schiffman granted the applications and ordered that the owner of each theater "and all persons having a proprietary interest in, or charge or control of, the motion picture film entitled 'The Blue Balloon' show cause . . ." on February 21, 1973, the day after the film's scheduled closing, why a search warrant authorizing the search should not be issued.*fn2 On February 19, 1973, 12 subpoenas duces tecum were issued to most of the various individual and corporate owners, managers or assistant managers, directing production of the film.
On February 21, 1973, an adversary hearing prior to any search or seizure was held before Magistrate Schiffman. An attorney for the theaters moved for a two-week adjournment, claiming "this film is not being exhibited in these six theaters as of yesterday. No prejudice could be shown to the People or to anybody by granting this adjournment . . ." The magistrate denied this motion and rejected arguments that the proceedings were null and void, noting that an adversary hearing prior to the issuance of the warrant was necessary to conform to the requirements of the First Amendment. After the magistrate ruled that none of the witnesses need testify, and that subpoenas to produce the film did not violate the Fifth Amendment, Harold Forma, the manager of the Pennway Theatre, produced one print of the film, which was introduced into evidence. The magistrate concluded that one copy of the film was sufficient as "the purpose of the issuance of the search warrant [was] not to suppress expression [but] to obtain evidence in connection with a prosecution."
The film was shown to the magistrate,*fn3 who then granted a request by the attorney for the theaters for an adjournment of the hearing in order to make an application to the district court and to obtain expert testimony on the issue of the film's obscenity. The hearing, originally scheduled to reconvene on March 7, was later adjourned pending the district court's disposition of the application. In the interim the film was placed in the custody of Mr. Kassner, counsel for the theaters.
The proceeding before us on appeal stems from this attempt by the theaters, appellants herein,*fn4 to nullify the prior adversary hearing before the magistrate. On March 2, 1973, they filed their complaint seeking an injunction restraining United States Attorney Morse and Magistrate Schiffman from continuing with the proceedings for seizure of the films and awarding damages. Count I alleged violations of plaintiffs' rights under "The First, Fourth and Fifth Amendments to the Constitution," claiming that Rule 41 was unconstitutional as applied and that in any event the magistrate was powerless to act under Rule 41 prior to institution of a criminal proceeding. Plaintiffs further alleged that the instant proceeding created an impermissible prior restraint and "massive seizure," that "probable cause" was a constitutionally infirm standard to determine whether the warrant should issue, that upon a determination that there was probable cause to find the film obscene the United States Attorney would attempt to seize "all copies of the print throughout the country, so as to effect a complete total nationwide suppression of subject film . . .," and that "the subject film will of necessity be held by the government and thousands of adult citizens will be deprived of their right to view subject film." In addition to injunctive relief plaintiffs sought a declaratory judgment declaring the proceedings void, the magistrate without jurisdiction, and Rule 41 to be unconstitutional as applied. Plaintiffs further sought a writ of prohibition and asked "for the convening, if necessary, of a three-judge court under 28 U.S.C. § 2282 to enjoin the enforcement of Rule 41 . . ." Count II sought damages against the United States Attorney.
On March 2, 1973, Chief Judge Mishler signed an order requiring the United States Attorney and Magistrate Schiffman to show cause on March 12, 1973, why the proceedings in which the search warrants were sought should not be enjoined. On March 12, 1973, Judge Mishler denied plaintiffs' request for relief and rejected plaintiffs' contentions that the magistrate was without jurisdiction and that the Rule 41 proceeding violated the First Amendment. He noted that should probable cause be shown, a seizure must be made only "temporarily for evidence, giving the party who owned or possessed the film the almost unlimited right, subject only to [the prosecution's use] of it for preparation of trial . . ." Judge Mishler also ruled that requiring individuals to produce the films pursuant to the subpoena duces tecum violated their Fifth Amendment rights and directed that, absent a waiver of Fifth Amendment rights, no warrant be issued by the magistrate on the basis of his viewing of the film.*fn5
Plaintiffs' request for a stay of the magistrate's proceeding pending the instant appeal was thereafter denied respectively by the district court and by this court, which expedited the appeal. The proceedings before the magistrate were reconvened on March 22, 1973, at which time the government presented the testimony of an FBI agent who had viewed "The Blue Balloon" at a public theater.*fn6 No testimony was presented on behalf of the theaters. On March 23, 1973, Magistrate Schiffman, on the basis of the papers and the testimony, concluded that there was probable cause to find "The Blue Balloon" obscene under the prevailing three-fold test*fn7 and ruled that production of the one print in the custody of Mr. Kassner would satisfy the search warrants.
Thus appellants seek reversal of Judge Mishler's order not because of the issue of whether or not "The Blue Balloon" is obscene -- that question is not before us -- but rather on the grounds that the magistrate lacked jurisdiction to hold an adversary hearing under Rule 41 and that, even assuming jurisdiction, the procedure employed did not conform to the mandates of the Constitution.
Some years ago we concluded that "there can be no doubt that a motion picture, like a book, is entitled to the protection of the first amendment. Joseph Burstyn Inc. v. Wilson, 343 U.S. 495, 501-503, [72 S. Ct. 777, 96 L. Ed. 1098]. . . . That protection includes the requirement that an adversary hearing be provided before the allegedly obscene works can be seized." Bethview Amusement Corp. v. Cahn, 416 F.2d 410, 411-412 (2d Cir. 1969), cert. denied, 397 U.S. 920, 90 S. Ct. 929, 25 L. Ed. 2d 101 (1970). See Astro Cinema Corp. Inc. v. Mackell, 422 F.2d 293 (2d Cir. 1970). That principle, which governs us ...