author: MANSFIELD, Circuit Judge:

text:
    PERIAL AMUSEMENT CORP. et al., Plaintiffs-Appellants, v. Robert A. MORSE, Individually and in his Capacity as the United States Attorney for the Eastern District of New York, and Max Schiffman, Individually and in his Capacity as a United States Magistrate for the Eastern District of New York, Defendants-Appellees.
    No. 890, Docket 73-1485.
    United States Court of Appeals, Second Circuit.
    Argued April 27, 1973.
    Decided June 1, 1973.

      Ralph J. Schwarz, Jr., New York City (Herbert S. Kassner, Kassner & Detsky, New York City, of counsel), for plaintiff s-appellants.
    Ronald E. DePetris, Asst. U. S. Atty (Robert A. Morse, U. S. Atty., E. D. New York, L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for defendants-appellees.
    Before KAUFMAN, Chief Judge and MANSFIELD and BREITENSTEIN, Circuit Judges.

       Of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

   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 Sehiffman applications for the issuance pursuant to Rule 41 of warrants authorizing the search of six movie theaters 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 Sehiffman 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. 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 Sehiffman. 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, 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, 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 Mish-ler signed an order requiring the United States Attorney and Magistrate Schiff-man 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 Mish-ler 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.

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. 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 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.

The Law

Some years ago we concluded that “[t]here 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 here, has been established by a line of Supreme Court decisions dating back to Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

While the guarantees of the First Amendment do not extend to obscene matter, Roth v. United States, 354 U.S. 476, 481-485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), “constitutionally protected expression ... is often separated from obscenity only by a dim and uncertain line.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963). Because of this difficulty in determining what matter is obscene and because of the importance of preventing the suppression of protected First Amendment expression, there must be a “procedure before seizure designed to focus searchingly on the question of obscenity.” Marcus v. Search Warrant, supra, at 732 of 367 U.S., 81 S.Ct. at 1716 (1961). The object of such a hearing is to provide reasonable insurance that non-obscene matter will not be withheld from the public.

The necessity for an adversary hearing before any substantial seizure was delineated in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), where a plurality of the Supreme Court found unconstitutional a Kansas statute which authorized the ex parte seizure of all copies of allegedly obscene matter prior to a hearing and an adversary determination of obscenity. Justice Brennan concluded “that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was . . . constitutionally deficient.” 378 U.S. at 210, 84 S.Ct. at 1725. There followed Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), which invalidated, for failure to provide requisite procedural safeguards, Maryland’s system of administrative censorship requiring submission prior to public viewing. Finally, in Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968) (per curiam), the Court invalidated the seizure of a film on the basis of the bald conclusions of a police officer’s affidavit in an ex parte proceeding, which “stated only the titles of the motion pictures and that the officer had determined . . . that the films were obscene,” 392 U.S. at 636, 88 S.Ct. at 2104. The Court found that “[t]he procedure under which the warrant issued solely upon the conclusory assertions of. the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusion was not a procedure ‘designed to focus searchingly on the question of obscenity’ [Marcus v. Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127], and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.” 392 U.S. at 637, 88 S.Ct. at 2104.

In Bethview Amusement Corp. v. Cahn, supra, and Astro Cinema Corp. Inc. v. Mackell, supra, we applied the foregoing teachings to the seizure of films and held that except for extremely limited time periods, and only under the narrowest of circumstances, cf. Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), the seizure of a film must be preceded by an adversary hearing which offers certain procedural safeguards.

Here the government sought scrupulously to follow the foregoing mandates. Notice of an adversary hearing by means of an order to show cause was given to the appellants before any seizure of the films was attempted. Indeed the government emphasized in its applications to the court that an adversary hearing on the question of obscenity was essential “before an allegedly obscene motion picture film can be constitutionally seized.” In contrast to the affidavit in Lee Art Theatre, Inc., supra, the law enforcement officer’s affidavit herein contained a detailed account describing the story line and scenes appearing in “The Blue Balloon” so that the magistrate could, before issuance of the warrant, make a preliminary independent determination on the issue of obscenity. The return date on the order to show cause was set for February 21, 1973, the day after the film was scheduled to close at the theaters in question. The attorney for the theaters noted that the film was no longer “being exhibited in those six theatres” and that even under temporary suspension of the proceedings “No prejudice could be shown to the People or to anybody . . .” (emphasis added).

To minimize any restraint during the interval in which plaintiffs would apply to Judge Mishler for relief, the single copy of the film was placed in the custody of plaintiffs’ counsel. In contrast to the parade of horrors portrayed in plaintiffs’ complaint Judge Mishler directed that any seizure 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.” Cf. Tyrone Inc. v. Wilkinson, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S.Ct. 477, 24 L.Ed.2d 449 (1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968). Lastly, and perhaps most important for present purposes, no warrant and thus no seizure could be effected until after plaintiffs were given an opportunity to be heard on the question of obscenity. Moreover, the hearing itself commenced the day after the film’s closing.

The Magistrate’s Jurisdiction and Authority

Notwithstanding the government’s conscientious efforts to comply with constitutional requirements, appellants raise a number of objections to the proceedings. First they contend that “the Magistrate absolutely had no jurisdiction to entertain the proceedings.” Title 28 U. S.C. § 636(a) (Supp.1972) provides that “Each United States magistrate shall have ... (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts. . . .” Rule 41, F.R.Cr.P., authorizes magistrates to issue search warrants under certain circumstances and pursuant to certain procedures. Thus, if the instant proceedings fit within the confines of Rule 41, Magistrate Schiffman clearly had jurisdiction.

Rule 41 provides in pertinent part that:

“(a) A search warrant authorized by this rule may be issued by a federal magistrate . . . upon request of a federal law enforcement officer or an attorney for the government.
* * * * •>:• *
“(c) A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant. . . . The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce. . . . ”

It is settled that the procedures prescribed by Rule 41 may be invoked prior to the filing of an indictment. See The Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 242 (S.D.N.Y.1971); Donlon v. United States, 331 F.Supp. 979 (D.Del.1971). Cf. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Indeed more often than not the warrant is used to obtain the evidence required to institute criminal proceedings. The government argues that where, as here, the First Amendment requires, for the protection of those whose property is the subject of a proposed seizure, the prior holding of an adversary hearing, Rule 41 may be read as authorizing such a hearing. We agree. Although a search and seizure warrant normally issues upon an ex parte showing of probable cause, see, e. g., Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), Rule 41(c) was amended in 1972 to provide that “the federal magistrate . . . may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce.” Rule 41(e), furthermore, provides that a person aggrieved by an allegedly unlawful search and seizure may move for the return of the seized property and obtain an adversary hearing for the purpose of determining the legality of the seizure-. Although the amendment of Rule 41(c) refers only to witnesses produced by the affiant, it is clear from the Advisory Committee Note accompanying the proposed change that the purpose was to give the magistrate “an opportunity to make a careful decision as to whether there is probable cause” based upon legally obtained evidence rather than have “the issue raised only later on a motion to suppress the evidence.” Thus, while the drafters may not have specifically contemplated the present situation, we believe that their intent can best be effectuated, without doing violence to the language of the rule, by construing it to authorize an adversary hearing of the type conducted by Magistrate Schiff-man. Furthermore, it is not unusual for courts to fashion a hearing procedure based on case law, see, e. g., United States v. Alberti, 470 F.2d 878, 881-882 (2d Cir. 1972). Indeed such a course may be mandated where constitutional considerations are at stake.

Our conclusion as to the magistrate’s jurisdiction to conduct an adversary hearing finds support in decisions of other courts upholding substantially the same procedure as that followed in the present case. See United States v. Strand Art Theatre Corp., 325 F.Supp. 256 (W.D.Mo.1970); United States v. Berger, 325 F.Supp. 249 (W.D.Mo.1970); United States v. 50 Magazines, 323 F.Supp. 395, 407 (D.R.I.1971); United States v. One Carton Containing Quantity of Paperback Books, 324 F.Supp. 957 (N.D.Ga.1971). Furthermore, this court, in construing New York Criminal Procedure Law §§ 690.05(1), 690.40(1) (McKinney’s Consol.Laws c. 11-A), has recently upheld the jurisdiction of New York’s Criminal Court to hold an adversary hearing under the state’s search warrant procedures despite the existence of a conflict in the New York Supreme Court decisions on the subject. G. I. Distributors, Inc. v. Murphy, 469 F.2d 752, 754 n. 4 (2d Cir. 1972). See also Maizels v. Van Hoomissen, 429 F.2d 982 (9th Cir. 1970) (per curiam) (Chambers, J., concurring) (“But it would seem that a magistrate could invent a hearing to show cause why a search warrant should not issue.”).

Thus, we conclude that the magistrate did not act outside his authority when, acting pursuant to authority granted by Rule 41, he held an adversary hearing prior to the issuance of the search warrant.

First Amendment Objections

Appellants next argue (1) that probable cause is an insufficient standard upon which to base the seizure, even after a prior adversary hearing has been held, and (2) that the Rule 41 procedures herein applied do not possess the built-in safeguards needed to insure adequate protection of First Amendment rights.

The appropriateness of probable cause as a standard must be judged in the light of the limited purpose, nature and consequences of the adversary hearing. The purpose of that hearing is to provide “a reasonable likelihood that nonob-scene publications, entitled to constitutional protection, will reach the public,” Marcus v. Search Warrant, supra, 367 U.S. 736, 81 S.Ct. 1718 (emphasis added). The magistrate is required “to focus searchingly on the question of obscenity,” id. at 732, 81 S.Ct. at 1716, with the burden of proof being upon the government. Those contesting the proposed seizure must be afforded an opportunity to offer rebuttal evidence before any seizure is permitted. The record in the present case reveals that the magistrate conscientiously followed these principles, carefully applying the three-fold test to the uncontested evidence and affording appellants the opportunity to rebut it, before finding probable cause to believe that “The Blue Balloon” was obscene. Lastly, the consequences of the magistrate’s action were quite limited and the restraint was narrowly restricted. One copy of the film was held for the limited purpose of enabling the government to prepare for and to offer it in evidence at trial. The district court, in the exercise of its sound discretion, is not precluded from directing the return of the film to the owner on conditions that will insure its availability for trial. Under these circumstances “a probable cause” standard strikes us as the appropriate balance between the First Amendment’s all-important protection of the free exercise of ideas and the public’s interest in enforcement of the obscenity laws. Our views in this regard are, furthermore, supported by our recent decision in G. I. Distributors, Inc. v. Murphy, 469 F.2d 752 (2d Cir. 1972), and by decisions of other courts confronted with the issue. See, e. g., United States v. One Carton Containing Quantity of Paperback Books, 324 F.Supp. 957 (N.D.Ga.1971); United States v. Little Beaver Theatre Inc., 324 F.Supp. 120 (S.D.Fla.1971).

The Supreme Court’s decision in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), relied upon by appellants for the proposition that probable cause is an impermissible standard, is clearly distinguishable. There the Court struck down, as viola-tive of the First Amendment, two statutes, 39 U.S.C. §§ 4006 and 4007, which provided for sweeping administrative censorship of mail alleged to be obscene. Section 4006 authorized the Postmaster General, after determining at an administrative hearing that mailed matter was obscene, to block all mail addressed to the sender of such matter. Pending such determination, § 4007 authorized the Postmaster General in his discretion, upon a showing of probable cause that § 4006 was being violated, to obtain from the court a temporary restraining order detaining the defendant’s incoming mail. However, he was not required to seek judicial review. Understandably § 4006 was invalidated because it failed to place the burden on the censor of initiating judicial review of his censorship and failed to provide for a prompt judicial determination of the issue of obscenity before detention of the mail. Since § 4007 suffered from the same fatal deficiencies as § 4006 it was also invalidated. However, in the present case, unlike proceedings under § 4007 which may be instituted in the discretion of the Postmaster General, invocation by the government of judicial action prior to seizure is mandatory, so that both the initial and final determination as to obscenity must be made by court officers rather than by an administrative official. Finally, unlike Blount, which authorized the wholesale detention of all incoming mail, the restraint here is substantially less as to the quantity of matter seized, the scope of the seizure (which is limited to one copy of the film) and its duration, i. e., until trial. We find that these significant distinctions .do not render our decision inconsistent with Blount.

Appellants also contend that the procedures herein employed lacked a number of “built-in safeguards” needed to insure the preservation of First Amendment values. However, we find no such constitutional infirmity. Appellants’ argument that the burden of proof was somehow or other placed on their shoulders at the adversary hearing is fully met by the government’s concession that under Rule 41(c) it has the burden of persuading the magistrate that “grounds for the application exist or that there is probable cause to believe that they exist.” Here the government fulfilled that burden by presenting the detailed unrefuted affidavits and testimony of the FBI agents. Decisions cited by appellants for the proposition that one seeking to suppress evidence under Rule 41(e) must bear the burden, see Chin Kay v. United States, 311 F.2d 317 (9th Cir. 1963); Batten v. United States, 188 F.2d 75 (5th Cir. 1951); United States v. Masterson, 383 F.2d 610 (2d Cir. 1967), cert. denied, 390 U. S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1147 (1968), do not govern a proceeding initiated by the government under Rule 41(c).

Appellants further. argue that it was error for the magistrate to find probable cause without taking into account a personal viewing of the film, even though they precluded him from doing so by successfully invoking the Fifth Amendment after the film was subpoenaed. A finding based upon a viewing of the film would be preferable. However, in view of the detailed nature of the undisputed affidavits and testimony in support of the application for the warrant, we find that the magistrate had ample factual support for his conclusion that probable cause existed. Cf. Lee Art Theatre, Inc., supra, 392 U.S. at 637, 88 S.Ct. 2103.

Nor was the government obligated to present expert testimony on the subject. Even in the trial of a criminal case, where charges must be established beyond a reasonable doubt, we have rejected the view “as appellants in effect urge, that the Constitution requires the Government to produce expert testimony about appeal to prurient interest and contemporary community standards in every case.” United States v. Wild, 422 F.2d 34, 35 (2d Cir. 1969), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971). Magistrate Schiffman’s description of “The Blue Balloon” as “hard, hard core pornography” appears to be amply supported by the detailed description of its scenes in the affidavit properly before him and in the later testimony of Special Agent Ancin.

Appellants claim potentially wide-scale suppression of the film upon the magistrate’s finding of probable cause. We have recognized that the application of the obscenity laws to films presents some unusual problems. A seizure of a single copy of a film might, under some circumstances, be “massive” in a constitutional sense. Astro Cinema Corp. v. Mackell, supra, 422 F.2d at 295. Yet one print is the minimum unit required for trial preparation. Faced with this problem Judge Mishler sensibly limited the seizure to one print of the film and then only for the purpose of assisting the government in its preparation for trial. In Bethview Amusement Corp., supra, 416 F.2d at 412, we emphasized that there were several unobtrusive ways for courts to make a copy of the film reasonably available for trial. See also Astro Cinema Corp. Inc. v. Mackell, supra, 422 F.2d at 296-297. Pending trial, which should be expedited by the district court, we emphasize that the court should scrupulously seek to limit the restraint on the film to the extent that it can do so consistently with preservation of the print for evidentiary purposes. For instance, the print may be released for the making of copies if requested by the party from whom it was seized, subject to appropriate safeguards.

The Three-Judge Court Issue

Finally appellants raise, but do not seriously press, the question of whether a three-judge court should have been convened under 28 U.S.C. § 2282, since their complaint seeks an injunction restraining the United States Attorney and the magistrate from “proceeding with or carrying out the proceedings. .” and challenges the constitutionality of Rule 41 as applied.

While there is doubt as to whether a rule of criminal procedure is an “Act of Congress” for the purposes of convening a three-judge court, cf. Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 113-115 (2d Cir. 1966), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966) (which found an agency regulation not to be an Act of Congress), we need not rely on that premise. We do not interpret 28 U.S.C. § 2282 as requiring the convening of a three-judge court under the circumstances presented here. In explaining the background and purpose of that statute the Supreme Court has stated:

“Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge’s order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479-481, 2142-2143 (1937).” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963).

The proceeding instituted by the plaintiffs in the present case does not threaten to disrupt the operation of a statutory scheme. Moreover, as Chief Judge Kaufman aptly stated in Astro Cinema Corp. v. Mackell, supra, 422 F.2d at 298, “[w]hile the application did raise constitutional objections that could not be described as clearly insubstantial . we see little point in reversing denial of the three-judge court application when to do so could lead only to dismissal by two district judges and one appellate judge instead of three appellate judges.” Because the policy concerns underlying § 2282 are not present, we find the foregoing language to be particularly appropriate in the present case, which does not warrant invocation of “the special and extraordinary procedure of a three-judge court.” Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 155, 83 S.Ct. at 561.

The order of the district court is affirmed.

      . The six theaters to which the applications for the search warrants were directed are: Empire Theatre, Staten Island, New York; Cinema Theatre, Brooklyn, New York; Pennway Theatre, Brooklyn, New York; Astor Theatre, Brooklyn; Avon Theatre, Brooklyn; and the Earle Theatre, Queens, New York. The accompanying papers were virtually identical, differing only as to the name and address of the theater.

      . Notice of the hearing was served on the manager (or the person .in charge) of each of the six theaters; the Vice President of 2094 Corporation, 15 West 55th Street which owns the Empire Theatre, the Vice President of the Brandt Theatres Corporation as owners of the Astor Theatre; and on Penn Theatres Corp., the owner of the Pennway Theatre. William Namenson, the owner of the Avon Theatre, received notice by telephone. Attempts to serve Ray Rhone, the owner of the Earle Theatre, were unsuccessful. Aquarius Releasing Incorporated, the film’s distributor, has been served, but attempts to serve the film’s producer MPD Film Programs, Inc. were unsuccessful.

      . It appears tliat the print -which was actually viewed was one produced by the film’s distributor.

      . The corporate plaintiffs are the lessees or operators of the Avon, Pennway, Astor, Earle and Empire Theatres. The individual plaintiffs Harold Forma, Grace Queney, and Edward Montapert are employees of the corporate plaintiffs upon whom either an order to show cause or the subpoena duces tecum was served.

      . Judge Mishler was of the view that a corporate employee could invoke the Fifth Amendment here because unlike the accountant in Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), possession of the film itself could constitute a crime. The United States Attorney argued that the Fifth Amendment privilege extended only to private papers.
      Our decision should not be interpreted as affirming or approving the district court’s decision upholding appellants’ Fifth Amendment claim. Since the privilege is personal, it cannot be invoked on behalf of the corporate appellants, United States v. Kordel, 397 U.S. 1, 7 n. 9, 90 S.Ct. 763, 25 L.Ed.2d 1, and if the seized film was corporate-owned, it is doubtful that the corporate employee could refuse to turn them over because they might tend to incriminate him personally. See United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944) ; cf. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957). However, since there was adequate independent evidence to support the magistrate’s findings and since the magistrate based his finding on this independent evidence, we find it unnecessary to decide the issue.

      . Though the proceedings of March 22, 1973, were not originally before this court, copies of Magistrate Schiffman’s opinion were submitted without objection. The magistrate summarized the testimony of FBI Agent Edward M. Ancin, stating that:
      “ [I] t was more explicit detailing in fact all of the acts described in the affidavit, with a running account of homosexual acts committed by a female ‘Pauline’ after drugging the victim, ‘Cindy’ a recent bride whose husband had just left for the army. These homosexual acts occurred while Cindy was bound and tied to a bed. Cindy is then made the object of sexual attacks and rape under the eye of Pauline. Two men who paid Pauline, perform acts of intercourse, sadism, fellatio, cunnilingus and bondage upon Cindy who is forced to smoke what appears to be a ‘joint’ of marijuana or hashish and under the influence of same, offers no resistance. There are additional acts of prostitution and explicit sex and deviate behavior.”

      . “(a) the dominant theme of the material taken as a whole appeals to 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.” Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966).

      . As Judge Mishler has invalidated the subpoenas duces tecum on Fifth Amendment grounds, we treat the proceeding for the purposes of review as one in which the court first gained custody of but one copy of the film pursuant to a search warrant which was not issued and executed until after the adversary hearing and preliminary determination of obscenity. Under this view there was arguably no restraint prior to the hearing. But even if the subpoena duces tecum had not been struck down, the restraint here would be less than that in G. I. Distributors, Inc. v. Murphy, 469 F.2d 752 (2d Cir. 1972), where the majority of the panel found permissible the seizure and overnight retention of certain allegedly obscene material prior to the hearing.

      . For instance, with modern equipment it is possible at a relatively modest expense to make a copy of the seized film that would be suitable for trial purposes, thus permitting both the government and the appellant from whom it lias been withheld each to have copies pending trial,

      . See notes 5 and 8 supra.

        . The Court in Lee Art Theatre did not decide “whether the justice of the peace should have viewed the motion picture before issuing the warrant.” 392 U.S. at 637, 88 S.Ct. at 2104. See Tyrone v. Wilkinson, 410 F.2d 639, 642-643 (4th Cir. 1969). All we decide is that under the circumstances of this case Magistrate Schiffman was well supported in his finding of probable cause.

      . 28 U.S.C. § 2282 provides :
      “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not he granted by any district court or judge thereof unless tiie application therefor is heard and determined by a district court of three judges under section 2284 of this title.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Carol MATTINGLY, Individually, and her minor children, Patricia E. Mattingly et al., Appellees, v. Gabriel ELIAS et al., Carol Mattingly et al., Appellants.
    No. 71-1562.
    United States Court of Appeals, Third Circuit.
    Argued May 3, 1973.
    Decided July 9, 1973.
    Michael A. Klimpl, John C. Marston, Bucks County Legal Aid Society, Doyles-town, Pa., for appellants.
    William J. Carlin, Begley, Carlin, Mandio, Kelton & Popkin, Bristol, Pa., for appellee.
    Stephen C. Miller, Asst. Atty. Gen., F. John Hagele, Deputy Atty. Gen., J. Shane Creamer, Atty. Gen., for Com. of Pa., amicus curiae.
    Before HUNTER and WEIS, Circuit Judges, and SCALERA, District Judge.
   OPINION OF THE COURT

PER CURIAM:

Holding that it lacked federal jurisdiction, the district court dismissed appellants’ action. Mattingly v. Elias, 325 F.Supp. 1374 (E.D.Pa.1971). Appellants claim that various practices of their landlords and the landlords’ employees violate 42 U.S.C. § 1983 and that the district court did have jurisdiction under 28 U.S.C. § 1343(3).

Appellants’ original complaint may be divided into three areas. One, they alleged that appellees Gabriel Elias and the Northchester Corporation employed a deputy constable, appellee Daniel Shea. Under color of his state office, appellee Shea allegedly performed various illegal acts, including forcibly entering homes, removing goods and selling them at private sales, conducting illegal constable sales, and removing electric and water meters. The acts were allegedly conducted in a conspiracy with the other appellees.

Two, they alleged that dwellings provided by their landlords had many serious deficiencies which made them almost uninhabitable. The district court’s opinion vividly portrays the poor living conditions. Appellants asked that a warranty of habitability be implied by the district court in the lease agreements between appellants and appellees. They also asked for a declaration that the present lease which they must sign is unconscionable and void.

Three, they alleged that appellees took retaliatory action against appellants who sought legal counsel, who became active in community groups, or who reported violations of health and housing codes to local authorities. Mattingly v. Elias, supra at 1379. They asked for injunctive relief against this practice.

The first series of allegations concerning the actions of the constable were disposed of five months prior to the district court’s opinion by a stipulation between the parties approved by the court on November 23, 1970 in the form of an injunction against appellees.

The district court then held that there was no jurisdiction on which appellants could base their claims for declaration of a warrant of habitability and for declaration of the lease as unconscionable. It dismissed these claims with prejudice.

As to appellants’ retaliatory eviction claim, the court held that:

“The present record does not indicate whether the plaintiffs have raised the defense of retaliatory eviction in any state court proceeding. Before this defense is raised and rejected in state court proceedings, it would be inappropriate for this Court to issue an injunction against any threatened retaliatory eviction by the defendant.” Mattingly v. Elias, supra at 1384.

It then denied appellants’ motion for in-junctive relief without prejudice.

Appellants challenge the dismissal of their claims for declaratory relief and the denial of their claim for injunctive relief. Neither side is presently contesting the order of November 23, 1970.

WARRANTY OF HABITABILITY, ETC.

We affirm the dismissal of those portions of the complaint dealing with appellants’ claims for a warranty of habitability and for a declaration that the lease is unconscionable. Appellants contend, among other things, that a constable abusing his office in conspiracy with others is a classic § 1983 case. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); and Gillibeau v. City of Richmond, 417 F.2d 426, 430 (9th Cir. 1969). They argué that the district court thus had original federal jurisdiction over these portions of the complaint and that it had jurisdiction over the rest of the complaint via the doctrine of pendant jurisdiction.

As the district court recognized, Mat-tingly v. Elias, supra at footnote 27, the stipulation of November 23, 1970 mooted those portions of the complaint dealing with the actions of the constable. It was therefore appropriate for the district court not to adjudicate appellants’ non-federal claims. United States to Use of Claude C. Wood Co. v. General Insurance Co. of America, 247 F.Supp. 543 (N.D.Cal.1965). 6 Wright and Miller, Federal Practice and Procedure, Civil § 1588 at 814-815 (1971). Pendant jurisdiction is a matter of judicial discretion, not a party’s right, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); and there is a serious question as to whether that discretion could properly have been exercised in favor of appellants had the district court been so inclined.

We have reviewed appellants’ other arguments'in relation to these portions of the complaint, and we find no merit in them. The judgment of the district court on these matters will therefore be affirmed.

RETALIATORY EVICTION

With all due deference to the district court, we think it was error for that court to require appellants to present their claim for relief against alleged retaliatory evictions in the state courts. There is no indication by the court of any on-going state proceeding which would be interfered with by an adjudication of this issue. Nor does it appear that there is any Pennsylvania statute in question whose constitutionality could be “saved” by an interpretation by the state’s courts. In these circumstances, this case is governed by our decision in Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971), decided after the district court handed down its decision.

Accordingly, the judgment of the district court dismissing appellants’ complaint will be affirmed as to all portions of the complaint other than those dealing with appellants’ claim for relief against alleged retaliatory evictions, and the judgment of the district court will be reversed solely as to those portions of the complaint dealing with retaliatory evictions. The case will be remanded to the district court to hear those claims.

      . Appellees neither submitted a brief nor appeared before the Court in oral argument on this appeal.

      . The order reads as follows:
      “And Now, to wit, this 23rd day of Nov. 1970, it is hereby ordered that defendants, Northchester Corporation, Gabriel Elias, Daniel J. Shea, Harold Ayers, and Bella Angel, their agents, servants and employees are hereby enjoined:
      “a. From holding any constable sales or threatening to hold constable sales on goods of any tenant at AVarminister Heights based on a landlord distraint of goods.
      “b. From removing any utility service from any tenant’s housing unit for any purpose other than emergency or repairs unless defendant has first obtained an Order of Possession through appropriate legal process.”

      . As the Supreme Court said in United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-727, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966):
      “Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” (Footnotes omitted).

      . By this we are not deciding that the state action necessary for jurisdiction is present here. This will be determined on remand.


author: BUTZNER, Circuit Judge:

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Appellant, v. ELK GARDEN CORPORATION et al., Appellees.
    No. 73-1008.
    United States Court of Appeals, Fourth Circuit.
    Argued May 7, 1973.
    Decided June 29, 1973.

      Jacob I. Karro, Atty., U. S. Dept, of Labor (Alfred G. Albert, Acting Sol. of Labor, Carin Ann Clauss, Associate Sol., Sandra P. Bloom, Atty., U. S. Dept, of Labor, Washington, D. C., and Marvin M. Tincher, Regional Atty., Nashville, Tenn., on brief) for appellant.
    John H. Thornton, Jr., Roanoke, Va., (Carr L. Kinder, Jr., and Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for appellees.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

This appeal questions the entitlement of an employer of agricultural labor to exemption from the minimum wage and recording requirements of the Fair Labor Standards Act on the ground that its employees are principally engaged in the range production of livestock. The district court granted the exemption. The Secretary appealed, and we reverse.

I

The issue concerns the interpretation and application of an exemption which provides that the payment of minimum wages and the maintenance of records shall not apply with respect to any employee who is “principally engaged in the range production of livestock.” In resolving this issue we must apply the canon that “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Kanowsky, 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); accord, Schultz v. W. R. Hartin & Son, Inc., 428 F.2d 186, 189 (4th Cir. 1970).

The employer asserts that the range production exemption should be available to any cattleman if his employees produce only beef for sale by grazing on native grasses and raise only forage crops for the production of beef. The district court rejected this broad reading of the Act. It ruled that the land on which the cattle were produced must be classified as range to obtain the exemption. Concluding that the employer’s land satisfied the statute’s requirement in this respect and that the employees were principally engaged in producing livestock, it granted the exemption. Our interpretation of the statute differs from the district court’s. It is not enough, we hold, to show merely that the land can be classified as range and that the employees are principally engaged in producing livestock. To secure the exemption the employer must additionally show that the employees’ duties make the computation of their working hours extremely difficult. In this case, proof of this essential element of the exemption is absent.

Because the Act does not define range production of livestock, we must look to its legislative history for guidance. Attempts to construe the exemption on the basis of the meaning of each of its words are not particularly helpful. While “production of livestock” may be easily defined, the word “range” is susceptible of a great number of meanings, both simple and technical. Moreover, review of the legislative history discloses that the entire phrase “range production of livestock” was intended to designate a method of raising livestock, not simply the type of land on which the employees work.

The original House bill as reported from committee contained no livestock production exemption. An amendment was offered on the floor to exempt the production of livestock “on any farm or ranch” based on the irregularity of the working hours of the employees and the impracticability of keeping records. This broad exemption was not adopted.

When the House bill reached the Senate, it was amended in committee to incorporate an exemption for the range production of livestock, which, it was estimated, would affect about 10,000 employees. This amendment was the subj'ect of extensive debate on the Senate floor. The proponents stressed the restrictive nature of the exemption and the difficulty of recording the hours of employees who worked at irregular times far away from headquarters. Senator Fannin, a member of the committee which reported the bill, said:

“[T]he intent of this particular amendment is restrictive. It would not apply only to large ranches; it could also apply to small ranches in the West which have large acreages— perhaps several hundred or several thousand acres and a few head of stock. Perhaps there may be 25 or more acres to 1 head of stock. Thus, the amendment is not intended to apply to feed lots or to any area where the stock involved would be near headquarters. In other words, employees might be away from headquarters for weeks at a time on the range.
“A good illustration would be the Basque sheepherders who are brought to this country from Spain. They are away from headquarters for long periods of time, herding sheep. It is impractical for them to keep time or to control their hours of work. They may be in sleeping bags at night, and they may have to get up in the middle of the night because of predatory animals attacking the sheep; then they would go out to work again. Of course, that is not the common kind of farmwork in this country, such as the work in Kentucky, for example. They could be on vast ranches, but not necessarily so. This could also occur on the small ranches.”

Senator Javits, another committee member, identified that exempt employee as “the cowboy — the range livestock employee as we call him in a rather fancy way.”

The Bill, as amended by the committee, was passed by the Senate and adopted by the conference. After passage, the Wage and Hour Division of the Department of Labor, the agency charged with the administration of the Act, issued the Farmer’s Guide to the Agricultural Provisions of the Fair Labor Standards Act, which discussed the range production exemption. The Guide’s interpretation is consistent with the legislative history. Emphasizing that the exemption applies only where computation of the employee’s working hours would be extremely difficult, the Guide flatly states that the exemption does not apply “to any area where the stock involved would be near headquarters.”

In the district court and on appeal, the argument concerning the proper interpretation to be given the statutory exemption largely revolved around the question of whether “range” exists east of the Mississippi River. The Secretary insists that the land on which the employers conduct their operations is pasture, not range. He points out that recognized authorities do not classify any of Virginia’s land as range. The employer asserts that the land on which it grazes cattle, though formerly wooded, satisfies the description of range mentioned in the Farmer’s Guide. In addition, the employer emphasizes that the forage is managed similar to range vegetation.

We think that the parties’ concentration on the technical definition of range furnishes an unsatisfactory basis for interpreting the statute. The case provides an appropriate instance for the court to follow Judge Learned Hand’s instruction about statutory interpretation :

“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most, reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

Fortunately, the purpose or object of the statutory exemption is expressly stated in the Senate Report:

“[T]he committee intends to exempt only those employees who are engaged in activities which require a constant attendance on a standby basis, such as herding and similar activities where the computation of hours worked would be extremely difficult.”

We conclude, therefore, that when Congress used the phrase “range production of livestock,” it intended to describe a method of raising cattle or sheep in which the computation of the hours worked by employees caring for the stock would be extremely difficult. The fact that the animals are grazed on a range is not in itself controlling. The characteristics of the land become significant only when grazing involves dispersal of the stock over such a large area that the employees must be in constant attendance on a standby basis so far from headquarters that their working hours cannot be readily recorded. In final analysis, as the Senate Report clearly shows, exemption must be determined by the nature of the employees’ work, not simply by the nature of the land. A proper interpretation of the statute requires us to examine the terrain on which the cattle are raised only for determining whether its characteristics require employees to work in such a manner that computation of their hours is difficult.

II

The employer, Garvey Ranch Management, Inc. operates three farms —Elk Garden, Cochener, and Big Lonely-Tomahawk — in mountainous areas of western Virginia. All the farms are used to graze breeding cows whose calves are sold after they have been weaned. Elk Garden consists of 3,700 acres, of which 296 are cultivated. It is fenced into 14 tracts, the largest encompassing 300 acres. As of December 1970, it contained 1,057 head of cattle, giving it a stocking ratio of 3.5 acres per head. Cochener, which is fenced into 11 tracts, has 4,212 acres, including 218 under cultivation. It had 835 cattle with a stocking ratio of 5 acres per head. Big Lonely-Tomahawk consists of two tracts 9 miles apart containing 3,300 acres and 4,900 acres. On both tracts, a total of 320 acres are cultivated. There were 901 head of cattle on the combined tracts with a stocking ratio of 9.1 acres per head.

Since the land is steep and rocky on all three farms, most of it cannot be cultivated, and parts of it are accessible only on foot or horse. The average yearly rainfall in the area is 40 inches and the farms are well watered. The principal forage is blue grass, orchard grass, and clover. Crops raised on the cultivated land are used entirely for winter fodder.

Each of the farms has a resident foreman and several full time employees. None of the employees is required to work at a distance from headquarters for long periods of time. The farthest distance at which cattle are grazed away from Elk Garden headquarters is three miles. At Cochener, the remotest point is one and one-quarter miles. The record does not furnish the maximum grazing distance from headquarters at Big' Lonely-Tomahawk, but, in any event, the foreman testified that he did not have much trouble keeping in touch with his employees there.

The employees care for cattle and perform customary farm jobs. The district court found that two of the employees were covered by the Act because most of their time was spent in farm work. It found that 17 of the employees were engaged in the production of livestock because they spent more than 50 percent of their time working cattle. These findings are principally based on the reasonably accurate time sheets kept by the foreman on each employee in anticipation of this litigation. The record disclosed that the foreman could tally the men’s working hours with little difficulty. Neither party challenges the district court’s findings about the allocation of employees’ time between farm work and the production of livestock.

The employees’ working schedules are regular, and they generally report to their headquarters at a fixed hour, both in the morning and in the evening at the end of the workday. Frequently, they return to headquarters for lunch. Variations exist in the schedule due to weather or emergencies, and some night work is necessary, particularly during calving season. The district court also found that although the employees are on call when they are needed, particularly during calving time, they are not required to stay at home. The court found that if they are at home the foreman may call on them to help him. The situation depicted by these findings is, of course, quite different from the job description of employees given in the Senate Report and the Farmer’s Guide, which limits the exemption to those employees who are engaged in activities which require constant attendance on a standby basis ”

The legislative history and the administrative directive establish that the exemption applies only when computation of working hours is extremely difficult because the employees must constantly attend, on a standby basis, livestock that is on a range away from the ranch’s headquarters. Here the cattle are not run on a range far from headquarters. The men check in and out of headquarters daily, and they are not required to be in constant attendance on a standby basis. Most importantly, the record shows that computation of their working hours is not difficult. The employer, therefore, is not entitled to an exemption with respect to these employees.

The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . The Pair Labor Standards Act passed by Congress in 1938 excluded from its coverage agricultural employees. In 1966, Congress amended tlie Act to extend minimum wage and recording requirements to agricultural employees working for an employér who used more than 500 man-days of agricultural labor (approximately seven employees working full time) in any calendar quarter of tlie preceding year. Several classes of employees are totally exempt, and agriculture generally is not subject to the overtime pay requirement of tlie Act. 29 U.S.C. § 213 (a)(6) and (b) (13) (1970). See S.Rep. No. 1487, 89th Cong., 2d Sess. 1966, U.S. Code Cong. & Admin.News, pp. 3002, 3010.

      . The exemption is set forth in 29 U.S.C. § 213(a)(6)(E) (1970). It has been judicially construed in only one reported case, Hodgson v. Mauldin, 344 F.Supp. 302 (N.D.Ala.) aff’d 478 F.2d 702 (5th Cir. 1973).

      . 112 Cong.Rec. 11391 (1966).

      . The Senate Report states : “The committee exempted from the agricultural coverage provision of tlie bill 10,000 employees who are principally engaged in the range production of livestock. The committee, because of the special circumstances of these employees, believes an exemption is appropriate.” S.Rep.No. 1487, 89th Cong., 2d Sess., 1966, U.S. Code Cong. & Admin.News, pp. 3002, 3011.

      . See 112 Cong.Rec. 20621 (1966).

      . 112 Cong.Rec. 20483 (1966).

      . Conf.Rep.No. 2004, 89th Cong., 2d Sess., 1966, U.S.Code Cong. & Admin.News, pp. 3047, 3048.

      . The Guide states :
      “For purposes of [the range production] exemption, ‘range’ is defined generally as land that is not cultivated. It is land that produces native forage for animal consumption, and includes land that is revegetated naturally or artifically to provide a forage cover that is managed like range vegetation. ‘Forage’ as used here means ‘browse’ or herbaceous food that is available to livestock or game animals.
      “The range may he on private or Federal or State land, and need not be open. Typically it is not only noncul-tivated land, but land that is not suitable for cultivation because it is rocky, thin, semi-arid, or otherwise poor. Typically, also, many acres of range land are required to graze one animal unit (5 sheep or 1 cow) for one month.
      “Tliis exemption does not apply to feed lots or to any area where the stock involved would be near headquarters. It applies only to those employees principally engaged in activities which require constant attendance on a standby basis, away from headquarters, such as herding, where the computation of hours worked would be extremely difficult. The sole fact that an employee providing such constant surveillance generally returns to his home at the end of each day, however, would not affect the application of the exemption.”
      On June 17, 1972, shortly after the trial of the case, the Department of Labor issued an Interpretative Bulletin on Exemptions Applicable to Agriculture. With respect to the range exemption, it substantially repeated the comments of the Guide. 37 Fed.Reg. 12101 (1972).

      . U. S. Dep’t. of Agriculture, Statistical Bull. 461, Basic Statistics — National Inventory of Soil and Water Conservation Needs, at Table 2 (1967) ; Virginia Polytechnic Institute Extension Division, Virginia Conservation Needs Inventory of 1967, at 21 (1970).

      . See note 8 supra.

      . Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945).

      . S.Rep.No.1487, 89th Cong., 2d Sess., 1966, U.S.Code Cong. & Admin.News, pp. 3002, 3012.

      . On all three farms the number of acres required to carry one head of cattle was considerably below the ratio of 25 to 1 mentioned in the Senate debate. See text accompanying note 5 supra. Moreover, the record indicates that each of the farms can carry more cattle than were reported in December 1970. During the relevant period Elk Garden had as high as 1,735 head; Cochener, 1,200; Big Lonely-Tomahawk, 1,200. The stocking ratio is significant only because it gives some indication whether employees must work at a distance from the ranch headquarters because cattle are dispersed over large areas.

      . The record’s omission of the maximum distance at Big Lonely-Tomahawk does not adversely affect the Secretary’s position. The burden is on an employer — not the Secretary — to establish entitlement to exemption. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 206, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966).

      . The Farmer’s Guide provides in part: “[A]n employee who during the year spends over 50 percent of his time on the range in such activities as herding, handling, transporting, feeding, watering, caring for, branding, tagging, protecting or otherwise assisting in the raising of livestock and in such immediately incidental duties as inspecting and repairing fences, wells and windmills and employee food preparation on the range, would have range production of livestock as his primary duty. On the other hand, an employee who spends over 50 percent of his time in work such as terracing, reseeding, haying, and constructing dams, wells, and irrigation ditches would not have range production of livestock as his primary duty.”

      . See nn. 8 and 12 supra.


author: WISDOM, Circuit Judge: SIMPSON, Circuit Judge BY THE COURT:

text:
    Alan WILLINGHAM, Plaintiff-Appellant, v. MACON TELEGRAPH PUBLISHING COMPANY, Defendant-Appellee.
    No. 72-2078.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.
    Rehearing and Rehearing En Banc Granted Sept. 5, 1973.

      Charles R. Marchman, Jr., Macon, Ga., Edward L. Baety, Field Atty., EEOC, Atlanta, Ga., for plaintiff-appellant.
    Charles L. Reischel, EEOC, Washington, D. C., Wayne S. Hyatt, Atlanta, Ga., for Roger D. Gravette, amicus curiae.
    E. S. Sell, Jr., Macon, Ga., for defendant-appellee.
    John Bacheller, Jr., Atlanta, Ga., for Rollins, Inc., amicus curiae.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

This case presents the question whether an employer’s grooming code requiring male job applicants to adhere to a hair style different from that required of female job applicants constitutes sex discrimination in violation of section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The district court, 352 F.Supp. 1018, held that Title VII did not prohibit an employer from refusing to hire a male applicant because of his hair length while at the same time not imposing similar limits on the hair length of female applicants. We reverse and remand.

I.

Alan Willingham, the plaintiff-appellant, is a twenty-two year old white male and an artist by trade. On July 28, 1970, Willingham applied for the position of display or layout artist in the retail advertising department of the Macon Telegraph Publishing Company, a newspaper publishing company in Macon, Georgia. Willingham contended that he was qualified for the position because he had passed all tests administered to him by the company and had prior experience as a copy layout artist with two other companies. The company, however, refused to hire him.

On July 30, 1970, Willingham filed a complaint with the Equal Employment Opportunity Commission alleging that the company had violated section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 by discriminating in employment on the basis of sex. Willingham asserted that the sole reason for the company’s refusal to hire him for the position of layout artist was his shoulder length hair. Willingham argued that since the company imposed no restrictions on the hair length of female applicants, the company’s action constituted sex discrimination. After investigating the complaint, the Commission found that there was reasonable cause to believe that the company had violated section 703 of the Act by refusing to hire the plaintiff. The Commission advised Willingham that he was entitled to file suit.

On December 17, 1971, Willingham initiated the present action in the district court and reiterated his contention that he had been the victim of sex discrimination in violation of section 703 of the Civil Rights Act of 1964 and the Civil Rights Act of 1870, 42 U.S.C. §§ 1981, 1983. The company responded by filing a motion to dismiss the complaint for failure to state a cause of action and attached affidavits to the motion. The company asserted that it required applicants for employment and employees who come in contact with the general public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community. The plaintiff’s hair length, the company contended, would be offensive to the company advertisers and customers and would injure the company’s business and good will in the community. Through various affidavits the company asserted that, at the time of Wil-lingham’s application, the community had been negatively influenced by a “pop festival” in the area attended by several hundred thousand long haired individuals. The company further argued that its action in refusing to hire Wil-lingham did not constitute sex discrimination.

The district court treated the company’s motion to dismiss as one for summary judgment and granted time to allow both parties to submit additional affidavits and other supporting evidence. Willingham then filed a motion for partial summary judgment.

On April 17, 1972, the district court rendered its decision granting summary judgment in favor of the company. The court held that even if all the allegations in the plaintiff’s complaint were taken as true, the company was entitled to judgment as a matter of law since the Civil Rights Acts were not intended to deprive employers of their “fundamental right ... to proscribe reasonable grooming standards which take cognizance of societal mores.” The plaintiff appealed in forma pauperis.

II.

The principal issue on appeal is whether the company’s grooming code for hair length constitutes sex discrimination in violation of section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 20006-2. Section 703 provides, in pertinent part:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . .; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . sex . ... 42 U.S.C. § 2000e-2.

The company contends that its grooming code does not discriminate on the basis of sex because both sexes are treated equally: all applicants and employees are required to groom their hair according to the prevailing community standard. It is argued that the discrimination, if any, is between long and short haired males and not between males and females. We disagree.

In enacting section 703, Congress intended to insure equal access to the job market for both men and women. Diaz v. Pan American World Airways, Inc., 5 Cir. 1971, 442 F.2d 385, cert. denied 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267. In essence, this means that “persons of like qualifications must be given employment opportunities irrespective of their sex”. Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613. Section 703, therefore, is not limited to situations in which the employer’s discriminatory employment practice is based solely on sex but extends to all differences in the treatment of men and women resulting from sex stereotypes. Sprogis v. United Air Lines, 7 Cir. 1971, 444 F.2d 1194, cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543. An employment practice may be discriminatory even if it “adversely affects only a portion of the protected class.” Id. at 1198. In Phillips v. Martin Marietta Corp., supra, for example, the Supreme Court held that the defendant company’s policy of not accepting job applications from women with pre-school age children discriminated on the basis of sex. The Court stated that Title VII did not permit “one hiring policy for men and another for women — each having preschool age children.” 400 U.S. at 544, 91 S.Ct. at 498. Similarly, in Sprogis v. United Air Lines, supra, the court held that an employer’s rule requiring that stewardesses be unmarried, while the same policy was not applied to stewards, constituted sex discrimination in violation of Title VII. The court noted that section 703 was intended “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes”. 444 F.2d at 1198.

Applying this standard to the present case, we find that a grooming code requiring different hair lengths for male and female job applicants discriminates on the basis of sex within the meaning of section 703. Such a code treats applicants differently because of a sex stereotype: only males are prohibited from wearing their hair long. Section 703 does not permit one standard for men and another for women, where both are similarly situated. Other courts considering similar grooming codes have so held. See Aros v. McDonnell Douglas Corp., C.D.Cal.1972, 348 F.Supp. 661; Donohue v. Shoe Corp. of America, Inc., and Retail Clerks Union, Local 324, C.D.Cal.1972, 337 F.Supp. 1357; Roberts v. General Mills, Inc., N.D.Ohio 1971, 337 F.Supp. 1055; Rafford et al. v. Randle Eastern Ambulance Service, S.D.Fla.1972, 348 F.Supp. 316, (dictum). Cf. Crews v. Clones, 7 Cir. 1970, 432 F.2d 1259. Contra Dodge v. Giant Foods, Inc., D.C.1971, 3 EPD ¶ 8184; Baker v. California Land Title Co., C.D.Cal.1972, 349 F.Supp. 235; Boyce v. Safeway Stores, Inc., D.D.C.1972, 351 F.Supp. 402.

The EEOC has also determined that a refusal to hire a male because of his hair length, when women who wear their hair at a similar length are hired, constitutes a violation of section 703. Decision No. 71-1529, 3 FEP Cases 1253; 29 C.F.R. § 1604.1(a). In general, its regulations provide that “so long as sex is a factor in the application of the [employer’s] rule, such application involves a discrimination on the basis of sex.” 29 C.F.R. § 1604.3(a). The EEOC’s interpretation of the Act is entitled to great deference. See Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Diaz v. Pan American World Airways, Inc., supra.

Of course, it is possible that the company may justify its grooming code as a bona fide occupational qualification. See Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir. 1969, 408 F.2d 228. The district court did not expressly consider this issue, which is a disputed issue of material fact that cannot be resolved on summary judgment. The district court’s opinion and the appellee’s briefs, however, are devoted in large part to the community’s reaction to long hair, a matter more pertinent to the bfoq defense than the question whether there was discrimination. We therefore remand the cause for further consideration consistent with this opinion.

Reversed and remanded.

SIMPSON, Circuit Judge

(dissenting) :

Respectfully, I dissent.

The appellant was not refused employment by reason of discrimination, lawful or otherwise, because of his sex. 42 U.S.C., § 2000e-2(a). The appellee publishing company refused to hire him in its retail advertising department because his personal appearance, primarily his shoulder length hair, was in the considered judgment of appellee’s executive officers likely to offend community standards in the business community of Macon, Georgia, and environs. The position involved, that of advertising copy layout artist, required continuing contact with advertisers. The feared resultant unfavorable effect upon business relationships of the appellee with its actual and potential advertisers, the lifeblood of a newspaper publishing enterprise, was a matter for legitimate concern on the part of those entrusted by the company’s stockholders with the success of that enterprise. It was a matter as to which they should have been free to exercise their best business judgment. Better than any group of government officials in Washington, D. C., better even than any panel of federal appellate judges assembled in New Orleans, Louisiana, the responsible officials of the appellee know the business climate of Macon, Georgia.

The decision below is reported as Willingham v. Macon Telegraph Publishing Co., D.C.M.D.Ga.1972, 352 F.Supp. 1018. I find myself in strong and complete accord with the views expressed by Judge Bootle in his memorandum opinion:

“Plaintiff would characterize the application of different grooming standards for men and women by an employer as ‘invidious discrimination’ based on sex. ‘If there are different hair length standards applied to men and women (e.g., women may wear long hair while men may not), this is the type of invidious discrimination prohibited by the Act.’ (42 U.S.C. § 2000e).
“Plaintiff’s theory, if viewed abstractly, would seem to possess a semblance of logic. However, all too often theories which may seem to be reasonable and logical when viewed alone or in the abstract prove to be highly artificial once they are exposed to everyday realities and are measured by prevailing standards of common sense: Such is the case here.
“What the Act invoked by plaintiff precludes is discrimination in employment opportunities and conditions of employment motivated by sexual considerations. What plaintiff fails to realize is that he is not precluded from employment opportunities because of his sex, nor would it appear that such is the case with any other male or female applicant. From all that appears, equal job opportunities are available to both sexes. It does not appear that defendant fails to impose grooming standards for female employees; thus in this respect each sex is treated equally. Nor is it contended that defendant is employing grooming standards as a guise to justify l’efusing to employ males. What the defendant does require is that plaintiff conform to standards of appearance which the defendant feels are necessary to the conduct of his business. It is not unreasonable for an employer to expect differences in grooming between men and women— and such expectations are not indicative of sexual discrimination.
“If plaintiff’s approach to Title VII be accepted and the application of different grooming standards to men and women be declared ‘sexual discrimination’, then the scope of the Civil Rights Act of 1964 is subject to expansion far beyond what must have been the purpose for its enactment. If this interpretation of the Act is expanded to its logical extent, employers would be powerless to prevent extremes in dress and behavior totally unacceptable according to prevailing standards and customs recognized by society. For example, if it be mandated that men must be allowed to wear shoulder length hair despite employer disfavor, because the employer allows women to wear hair that length, then it must logically follow that men, if they choose, could not be prevented by the employer from wearing dresses to work if the employer permitted women to wear dresses. While dresses on men would be a greater departure from the norm than is long hair, if plaintiff be correct, it cannot be gainsaid that to prevent men from wearing dresses while allowing women to do so would discriminate against the rights of men, and such discrimination would be present in the same manner as it would be present when men are prohibited by employers from wearing long hair. Continuing the logical development of plaintiff’s proposition, it would not be at all illogical to include lipstick, eyeshadow, earrings, and other items of typical female attire among the items which an employer would be powerless to restrict to female attire and bedeckment. It would be patently ridiculous to presume that Congress ever intended such result, yet if plaintiff’s interpretation of the Act be accepted, then it must follow that such extremes in behavior are also included within the coverage of the Act.
“It is neither unreasonable nor arbitrary to allow private employers to take cognizance of difference in grooming practices and dress customarily recognized by the sexes. Such recognition and rules predicated thereon do not constitute ‘sexual discrimination.’ No fundamental human right being here involved, an employer should not be coerced into countenancing, regardless of the consequences to his business, what society may frown upon.
■x- -x- * -X- -x- -x-
“Employers, like employees, have rights. This court, without a far more certain mandate from Congress than that contained in Title VII, will not be party to what it considers a ridiculous, unwarranted encroachment on a fundamental right of employers, i.e., the right to proscribe (sic) reasonable grooming standards which take cognizance of societal mores. As previously stated, this court interprets Title VII as prohibiting discrimination in employment opportunities and conditions of employment motivated by sexual considerations. The application of different grooming standards between the sexes does not, without more, constitute a denial of equal employment between the sexes. Further, such practice is not the application of unequal conditions of employment, unless, that is, the employer exacted grooming standards from one sex but allowed the other free rein. Where women as well as men are expected to conform to reasonably prescribed grooming standards there is no discrimination, even though the employer takes into consideration biological and cultural differences in drawing up the standards. An employer should be able to decline employment to a female applicant who shaves her head as clean as a billiard ball while not declining to hire a male applicant similarly groomed. A woman so groomed might well be an object of curiosity and derision, and, as such, counterproductive to goals of the employer. Similarly, the employer should be allowed to refuse employment to a male with locks and tresses falling to his shoulders while not denying employment to a female with similar type hair.” 352 F.Supp. at 1020-1021.

As the majority opinion notes, the district courts which have considered application of Title VII to similar grooming standards have reached differing results. But the cases involving grooming standards for employees in contact with the public exemplified by Baker v. California Land Title Company, C.D. Cal.1972, 349 F.Supp. 235, and Boyce v. Safeway Stores, Inc., D.C.D.C.1972, 351 F.Supp. 402, carry persuasive weight on the factual situation in the case at bar. The thrust of the Baker holding is contained in this excerpt:

“Thus the primary purpose of Title VII is to protect minorities from economic oppression. Expanded by the Smith Amendment to also prohibit discrimination on the basis of sex, the title provides the assurance that no person because of his race, color, religion, sex or national origin shall be deprived of equal occupational opportunities, such as an equal right to available employment, equal pay for equal work, and equal working conditions. It was never intended that it be used to interfere in the promulgation and enforcement of the general rules of employment, deemed essential by an employer, where the direct or indirect economic effect upon the employee was nominal or non-existent. In any event, it certainly should not be used, as the defendant asks us to do here, to compel the continued employment of an employee who persists in affecting some whim of style which his employer deems to be inappropriate to the business image which the employer is attempting to create.” 349 F.Supp. at 238.

The plaintiff in Boyce was a part-time food clerk who was discharged by Safeway Stores two months after being hired because his head and facial hair no longer conformed to company grooming standards as applicable to male employees in regular contact with the public. The summary judgment granted to Safeway Stores was undergirded by this reasoning:

“The present case has none of these obvious attributes of discrimination. Here is an employer who simply wished to have its personnel meet grooming standards which in its judgment will appeal to the largest number of its customers. No claims of violations of fundamental constitutional rights are made.
“The employer, moreover, is not attempting to stereotype its male and female employees, for the grooming standards allow for great variation in individual dress and appearance within the limits permitted. There is no proof that the standards have resulted in favoring or deterring men or women from employment. In short, the mild grooming rules are not shown to discriminate on the basis of sex any more than a condition of employment that requires males and females to use separate toilet facilities, or bars males but not females from wearing skirts.” 351 F.Supp. at 403.

I would affirm the grant of summary judgment by the court below to the ap-pellee Macon Telegraph Publishing Company, and would do so on the basis of the memorandum opinion of Judge Boo-tle, 352 F.Supp. 1018. I view that decision as amply supported by authority and unassailable in its logical conclusions.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . The Civil Rights Act of 1870 is inapplicable. 42 U.S.C. § 1981 applies to racial discrimination. Virginia v. Rives, 1880, 100 U.S. 313, 25 L.Ed. 667. 42 U.S.C. § 1983, in terms, is directed toward state action. Guedry v. Ford, 5 Cir. 1970, 431 F.2d 660.

      . Congress rejected an amendment to Title VII which would have so restricted the scope of section 703. 110 Cong.Rec. 2728 (1964).

      . This latter form of discrimination has been termed “sex plus” discrimination because it usually involves the classification of employees on the basis of sex plus one other characteristic. See Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1171-1172 (1971). Phillips v. Martin Marietta Corp., supra, and Sprogis v. United Air Lines, Inc., supra, are examples of “sex plus” discrimination.
      The legislative history of Title VII indicates that a broad interpretation of discrimination was intended. For example, an interpretative memorandum submitted by Title VII’s floor managers, Senators Case and Clark, defined “to discriminate” as “to make a distinction, to make a difference in treatment or favor. . . . ” H.R. 7152, 110 Cong.Rec. 7213 (1964).

      . This view means also that I find no reason for remand for determination of whether or not, if discrimination occurred, it was justified under the “bona fide occupational qualification” exception to Title VII of the Civil Rights Act of 1964 § 703 (a), (e)(1), 42 U.S.C., § 2000e-2 (a), (e)(1).

      . The July 28, 1970, application for a job with the advertising department and the refusal to hire around which the proceedings below centered, and dealt with in the majority opinion, was the third or fourth job application made to the ap-pellee by Willingham. According to Wil-lingham’s affidavit he was refused employment as an apprentice printer on July 21, 1970, on the stated ground that his long hair might be caught in the machinery and hence constituted a safety hazard. Appellee’s answers to appellant’s interrogatories indicate that he also applied on July 8, 1969, to the Classified Advertising Department for a job as copy layout artist, but was denied employment because he was under criminal charges in Alabama. According to this source another application was made on August 11, 1969, probably for work in the Dispatch Department, but as to which the appellee’s records were stated to be unclear.

      . The record shows that Macon community disapproval of long-haired males had been recently exacerbated by an “International Pop Festival” on July 3, 4, 5, 1970, at Byron, Georgia, a small community 15 miles from Macon. The crowds attracted to Byron were variously estimated at between 400,000 and 500,000 people. Bearded and long-haired youths and scantily dressed young women flooded the countryside. Use of drugs and marijuana was open. Complete nudity by both sexes, although not common was frequently observed. Of course the managing officials of the Macon Telegraph Publishing Company were peculiarly aware of community indignation over excesses during the Byron Pop Festival because of the wide publicity in it own daily newspaper. The appellee was entitled to consider that the business community of Macon, including its own advertisers, was particularly sour on youthful long-haired males at the time of Willingham’s application of July 28, 1970. It was a fair inference on the part of company officials that advertisers would share an attitude not significantly different from that of the community in general.

      . See the district court decisions cited near the top of page 538 of the majority opinion. The single Court of Appeals decision cited there under a “Cf.”, Crews v. Clones, 7 Cir. 1970, 432 F.2d 1259, is completely inapposite since it involved the constitutionality of school hair length regulations imposed on students by school boards. If the majority thought school hair cases apposite, it is surprising they did not draw upon the long list of Fifth Circuit school hair cases beginning with Ferrell v. Dallas Independent School District, 5 Cir. 1968, 392 F.2d 697, cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 and concluding with our two recent en banc cases, Karr v. Schmidt, 5 Cir. 1972, 460 F.2d 609, and Lansdale v. Tyler Junior College, 5 Cir. 1972, 470 F.2d 659.

      . The judgments in these cases are pending-on appeal in their respective circuits.