(dissenting).
When the opinion of the court was announced on July 1, I noted my dissent, but reserved the right to file a dissenting memorandum at a later date.
It does not seem to me that the court should have granted defendants’ motion to dismiss the complaint.
Complainant is seeking to invoke the equity powers of a federal court in a very delicate area, involving federal interference with local proceedings under a state statute. Therefore, as an original question, there is much to be said for the view that where, in an equity suit, an attack is made upon the constitutionality of a state statute, it ought not to matter whether the claim is made that the statute is “unconstitutional on its face” or is unconstitutional as applied in the particular case; in either event, a federal court should withhold equitable interference until the exhibitor has exhausted his administrative remedies by application for a license to show the picture made to the local body having the ultimate licensing authority under the terms of the statute.
But the Supreme Court has clearly held that where a state statute is “unconstitutional on its face”, the equity powers of a federal court may be invoked without the preliminary necessity of resort to an unconstitutional administrative procedure. It is true that in many cases a litigant has been subjected to criminal prosecution in a state court and has defended on the ground that the applicable statute was “unconstitutional on its face”; upon conviction by the state courts, the Supreme Court of the
*461United States on final review has held itself free to entertain an attack upon the constitutionality of the statute despite the fact that the litigant had not availed himself of administrative procedures afforded by the state statute. See Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Smith v. Cahoon, 1931, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264. Such cases have nothing to do with the doctrine of exhaustion of administrative remedies, “the discretionary rule adopted by courts of equity to the effect that a petitioner will be denied equitable relief where he has failed to pursue an administrative remedy under which he might obtain the same relief”. United States v. McCrillis, 1 Cir., 1952, 200 F.2d 884, 885. But it seems to me clear that the Supreme Court has gone further than this, in the line of cases in question, and has clearly sanctioned the exercise of federal equity powers where administrative remedies have not been exhausted, in the ease of a state statute which the Supreme Court deemed to be “unconstitutional on its face”, whether or not any criminal prosecution was pending in the state courts. See City of Chicago v. Atchison, Topeka & Santa Fe Ry. Co., 1958, 357 U.S. 77, 78 S.Ct. 1063, 2 L. Ed.2d 1174; Public Utilities Commission of State of California v. United States, 1958, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470. In Russo v. Reed, D.C.D.Me.S.D.1950, 93 F.Supp. 554, 558, a three-judge district court in this circuit, the two plaintiffs sought a temporary and permanent injunction against the enforcement of a state statute discriminating against nonresidents in the regulation of fishing in the coastal waters of Maine. While it is true a criminal prosecution was in progress in the state courts, the federal district court based its jurisdiction upon the following grounds: “Equitable jurisdiction in the premises on the ground of a threatened irreparable injury which is clear and imminent is obvious, for the loss of a season’s fishing can not be restored, and the State of Maine provides no means for recovering damages in money to compensate for the loss occasioned by an illegal deprivation of the right to fish commercially within its coastal waters.” If there is any basis for the Supreme Court’s doctrine making it unnecessary for an individual to subject himself to the administrative procedures prescribed by an obviously unconstitutional statute, it seems clear that it should be applicable in an action of the type here involved. For if the exhibitor must first subject himself to criminal prosecution, by showing the picture without a license, it is only the unusual individual who will risk the penalties prescribed; and this is particularly true where, as here, the penalties are high and may be imposed for each violation. Cf. Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.
Furthermore, assuming that a formal application by the exhibitor to the Providence Bureau of Licenses may be deemed important, the absence of such application would not in itself justify a final dismissal of the present complaint. Even the dissenting opinion in City of Chicago v. Atchison, Topeka & Santa Fe Ry. Co., supra, indicated that the federal district court should retain jurisdiction over the case pending prompt steps by Railroad Transfer Service to initiate license proceedings before the local authorities. No doubt the exhibitor in the present case would have done that if it had been given the opportunity. If the Bureau of Licenses had granted the application, that would have been an end of the case; on the other hand, if the Bureau had denied such application, then the present complaint could have been pressed before the federal district court, without the presence of the factor which has induced the majority of this court to dismiss the complaint finally.
So far, the Supreme Court has been unwilling to say that all prior censorship of the exhibition of motion pictures, inherent in a state system of licensing, is ipso facto unconstitutional under the Fourteenth Amendment. The area of permissible prior restraint in this field *462remains somewhat cloudy, though the courts are continually seeking to resolve the interplay of conflicting considerations and thereby to formulate a sound standard. The relief sought by the plaintiff here is twofold: To have the licensing provisions of the statute declared unconstitutional, and to secure an injunction forbidding “the Defendants and each of them from taking any action or proceeding (by punitive action or otherwise) that will or may in any way interfere with the exhibition of the motion picture films entitled ‘And God Created Woman’ * * * in the City of Providence * * *.»» Counsel for plaintiff frankly conceded that an injunction against enforcement of the licensing provisions of the statute would probably not do the plaintiff any good unless the local exhibitors, who are not parties to this action, were at the same time protected by the injunction against the possibility of future criminal prosecutions under the obscenity statute. Therefore, the requested relief entails enjoining the enforcement of the following criminal statute:
“Circulation of obscene publications.- — -Every person who shall import, print, publish, sell, or distribute any book, pamphlet, ballad, printed paper, or other thing containing obscene, indecent, or impure language, or manifestly tending to the corruption of the morals of youth, or any print, picture, figment, or other description which is indecent, impure, or manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school, or place of education, or shall buy, procure, receive, or have in his possession any such book, pamphlet, ballad, printed paper, or other thing, either for the purpose of sale, exhibition, loan, or circulation, or with intent to introduce the same into any family, school, or place of education, shall be imprisoned not exceeding two (2) years or be fined not exceeding one thousand dollars ($1,000) nor less than one hundred dollars ($100).” R.I.Gen. Laws 1956, § 11-31-1.
The relationship between a licensing statute and a criminal statute punishing obscenity suggests the impropriety of placing too much stress upon the phrase “prior restraint”, for surely the mere existence of the foregoing stiff penal statute is as much a practical prior restraint as is the licensing statute. See, generally, Frank, J., concurring in United States v. Roth, 2 Cir., 1956, 237 F.2d 796, 810-811. Yet, since a federal court is naturally reluctant to interfere with a state’s criminal processes, whether prosecution has been begun or not, the proper resolution of these competing factors remains in doubt and is one of the questions which lie under the surface of the present case. Another equally difficult question, which need be faced only if the court should be inclined to intervene in potential state proceedings, is the constitutionality of a statute defining obscenity in terms of its effect on the young. See Roth v. United States, 1957, 354 U.S. 476, 488-489, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
Since I would not have dismissed the-present complaint, perhaps I ought to indicate briefly what action I would have taken on plaintiff’s application for an injunction pendente lite. I would have denied this temporary relief.
Of course it is obvious that, so long as-it is impossible to get the picture shown in the Providence area, the plaintiff cannot make any money out of the picture in-that area. But does this involve any irreparable loss? If as a final result of these proceedings the picture is permitted to be shown, will the plaintiff ultimately recoup that loss ? It is the plaintiff’s theory that, due to further delay, at least some of this loss can never be made-up. As the matter was put by one of the-plaintiff’s expert witnesses: “Over a period of time those who have not seen it. lose interest in it. The wave of national publicity, the fashion which was to see it, is now gone.” On the other hand, there-is an inevitable element of speculation in *463all this. Sometimes all the hullabaloo ■connected with the temporary banning of a picture will merely whet the public interest, so that the public will go to see the picture whenever the ban has been removed. This would very likely be so in the case of a picture which is justly reputed to contain elements of permanent worth. The picture “And God Created Woman” has been exhibited to the court, in a private showing, and without undertaking to say whether, in my opinion, the picture is “obscene” within the meaning of the Rhode Island statute, or within the standards laid down in Roth v. United States, supra, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, I must say that despite the plaintiff’s claim of aesthetic and social significance, and of the enduring moral and ethical lessons the picture is said to contain, the basic box office appeal seems to be the exploitation of the figure of Brigitte Bardot. Hence I am prepared to believe that the losses which the plaintiff is presently suffering are indeed irreparable, especially since other pictures made by Miss Bardot, the distribution rights of which are owned by other distributors than the plaintiff, are presently being shown in the Providence area, and these other distributors are thus “cashing in” on the publicity buildup of Brigitte Bardot. It may well be that if the ban on the showing of “And God Created Woman” is eventually lifted, by that time the interest in Brigitte Bardot will have been sated, and those members of the public who would otherwise have been inclined to go to see the picture many months earlier will be chasing after some new rage.
However, in exercising our discretion on the awarding of temporary relief, it is relevant to consider that the effect of issuing a temporary injunction might be to give the plaintiff all the relief it would have obtained by an ultimate victory on the merits, and this before the court has had an opportunity to dispose of the merits; for a temporary injunction might enable the plaintiff to reap all profits possible to be derived from the Providence area, even before the court had disposed of the complaint on its merits. Considerations involving the public interest must outweigh any private embarrassment. See Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 500-501, 61 S.Ct. 643, 85 L.Ed. 971.