Commonwealth v. Blumenstein, Appellant.
Supreme Court of Pennsylvania
July 2, 1959
396 Pa. 417
Argued January 14, 1958; reargued April 22, 1959.
The decree of the Court below is reversed and the record remanded with directions that a preliminary injunction issue forthwith in accordance with the prayer of the plaintiffs’ complaint; that the defendants answer over on the merits within ten days of the remand hereby ordered; that a final hearing be held on the complaint and answer within five days of the filing of the defendants’ answer or answers; that an adjudication with decree nisi be filed within fifteen days of the commencement of the final hearing; and that any exceptions to the adjudication and decree nisi be filed and disposed of within ten days of the entry of the decree nisi, to the end that a final decree will be entered in not more than forty days from the date of our remand of the record; the costs of this appeal to abide the event.
Mr. Justice MUSMANNO and Mr. Justice COHEN would affirm the decree of the Court below.
Commonwealth v. Blumenstein, Appellant.
Before JONES, C. J., BELL, MUSMANNO, JONES, COHEN, BOK and MCBRIDE, JJ.
Max Rosenn, with him Rosenn, Jenkins & Greenwald, for appellant.
Ralph P. Needle, Assistant District Attorney, with him Carlon M. O‘Malley, District Attorney, for appellee.
Edwin P. Rome, with him Morris L. Weisberg, and Julian E. Goldberg, for American Civil Liberties Union, under Rule 46.
This is an appeal, on allocatur, from the decision of the Superior Court affirming a conviction and sentence.
Defendant was the manager of a drive-in cinema theatre in Lackawanna County and was arrested by state officers for having shown certain films in October, 1956. He was indicted for having unlawfully exhibited obscene motion pictures under the
“Whoever gives or participates in or being the owner of any premises, or having control thereof, permits within or on said premises, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures of a lascivious, sacrilegious, obscene, indecent or immoral nature and character, or such as might tend to corrupt morals, is guilty of a misdemeanor. . . .”
In Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 358, 121 A. 2d 584 (1956), this court held invalid the Motion Picture Censorship Act of 1915, as amended, and in the course of the opinion Mr. Chief Justice STERN said: “It need hardly be added that even if all precensorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor.”
This reference to the common law remedy, apart from statute, is supported by Commonwealth v. Sharpless, 2 S. & R. 91 (1815), and Barker v. Commonwealth, 19 Pa. 412 (1852), both involving common law prosecutions, one for exhibiting an obscene picture, and the other for obscene public speech. The indictment in both cases charged intent, and since the indictment in the case at bar does not, it is clear that the prosecution before us was brought under the statute and not under
The decisions of the Federal courts are conclusive.
The word “sacrilegious” was held unconstitutional by the Supreme Court of the United States in Burstyn v. Wilson, 343 U.S. 495, 72 S. Ct. 777 (1952), a motion picture case. The case held that the cinema is within the free speech and press protection of the First and Fourteenth Amendments.
The test of being “lascivious, indecent, immoral or impure” and “tending to corrupt morals” was rejected by the Supreme Court in reversing, per curiam, Superior Films v. Department of Education of Ohio and Commercial Pictures v. Regents of the University, 346 U.S. 587, 74 S. Ct. 286 (1954), citing Burstyn. This case also involved a motion picture.
The remaining words of Section 528 are “lascivious, obscene, and indecent“. In the cases of U. S. v. Clarke, D. C., 38 F. 732 (1889) and U. S. v. Davidson, D. C. 244 F. 523 (1917) “lascivious” and “lewd” are held to be synonymous, and “lewd” and “obscene” are given as definitions for “indecent“: see also Swearingen v. U. S., 161 U.S. 446, 16 S. Ct. 562 (1896); U. S. v. Ulysses, 72 F. 2d 705 (1934).
This leaves the single term “obscene” to consider.
It was held unconstitutional, per curiam, citing Burstyn and Superior Films, in Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S. Ct. 117 (1955), a motion picture case. The phrase under attack was “obscene, indecent, or immoral or such as tend to debase or corrupt morals.”
In June, 1957, the United States Supreme Court decided Roth & Alberts v. U. S., 354 U.S. 476, 77 S. Ct. 1304 (1957) a book case, in which “the dispositive question is whether obscenity is utterance within the area
Five months later the Supreme Court reversed Times Film Corp. v. Chicago, 355 U.S. 35, 78 S. Ct. 115 (1957), a motion picture case, citing Roth & Alberts. The Circuit Court had held: “The ordinance now under attack, as we have seen, uses the words ‘immoral or obscene‘. The Illinois Supreme Court has held, in speaking of this ordinance, that these words are synonymous and that a motion picture is obscene or immoral, within the meaning of the ordinance, if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. . . . With this interpretation of the words ‘obscene’ and ‘immoral’ read into the ordinance now before us, we believe the ordinance is not vague, as contended by plaintiff. Those words are precise and they constitute a proper test in the case at bar.”
If the Times Film standard could not pass the Roth & Alberts test, a fortiori Section 528 cannot either.
In this posture of the law our conclusion in Hallmark is dispositive: “The picture involved in the present case was disapproved by the Board of Censors because it was ‘indecent and immoral and, in the judgment of the Board tended to debase and corrupt morals‘. In view of the foregoing decisions of the Supreme Court [not including Roth & Alberts, which was written later], individually and collectively, we are of opinion that these terms must be held subject to the same fatal
Judgment reversed and defendant discharged.
DISSENTING OPINION BY MR. JUSTICE BELL:
I believe that the decisions of the Supreme Court of the United States on the Constitutionality of statutes which prohibit the obscene or the immoral or the sacrilegious, are confusing, but the recent cases of Roth v. United States and Alberts v. California, 354 U.S. 476 (1957)—subsequent to Burstyn, Inc. v. Wilson, 343 U.S. 495, which compelled this Court‘s decision in Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A. 2d 584—indicate that these words are no longer considered too vague and indefinite. The Roth and the Alberts cases sustained the validity of statutes which prohibited the obscene.*
An act of obscenity has been an offense against the public for centuries and has been so recognized by the Courts of England, by the Courts of Pennsylvania and by the Federal Courts: Rex v. Curl, 2 Str. 789 (1727); Commonwealth v. New, 142 Pa. Superior Ct. 358, 16 A. 2d 437; Commonwealth v. Donaducy, 167 Pa. Superior Ct. 611, 76 A. 2d 440; cf. also Chaplinsky v. New Hampshire, 315 U.S. 568; Winters v. People of the State of New York, 333 U.S. 507; Commonwealth v. DeGrange, 97 Pa. Superior Ct. 181; Commonwealth v. Schoen, 25 Pa. Superior Ct. 211.
I believe that the words obscene, immoral and sacrilegious are words of such general and common usage that they have acquired a well and commonly
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
By declaring Section 528 of The Penal Code of 1939 unconstitutional, the Supreme Court has today struck from the hands of every District Attorney in Pennsylvania the last remaining available weapon with which to fight the forces of indecency which for a long time have been trying to capture the moving picture screens of this Commonwealth. In 1956 (in the case of Hallmark Productions, Inc. v. Carroll, 384 Pa. 348), this Court dismantled the siege guns of the Motion Picture Censorship Act of 1915 which for 41 years had stopped those invading forces at Pennsylvania‘s borders. Now, there is nothing left with which to save clean-minded, clean-thinking men, women and children of this State from the vulgarities, obscenities and indecencies which some moving picture producers are determined to inflict on the public for the sake of a greed-soaked dollar.
At the time of the oral argument in the Hallmark case, I asked from the bench what was to happen to the good people who revolt at dirt and filth mixed in with motion picture entertainment, if there was to be no Censorship Board to keep the screen clean. Two or three members of the Court, including the Chief Justice, as it was constituted at the time, replied that whatever apprehensions I might entertain in that respect could be dismissed because if, minus a Censor
My colleagues also said that what this Court was striking down was not law enforcement against motion picture indecency, but pre-censorship. This oral assurance was carried from the bench into the official Opinion of this Court which was written by Chief Justice STERN, who said: “It need hardly be added that even if all pre-censorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor.”
I wrote a Dissenting Opinion in which I said: “After the decision of the Majority will have been handed down, those same shameful, shameless, degrading films may be projected anywhere in Pennsylvania publicly, the distributors and exhibitors being subject only, after showing, to the penalty provided under criminal law.”
Although naturally disappointed with the Court‘s decision, I at least gained comfort in the realization that the purveyors of the shameful, degrading films would be subject, after the showing, to the penalty provided under criminal law.
But now, the Majority says, that the penalty is non-existent. And so the question naturally propounds itself: What has happened to the protection which this Court proclaimed as vividly as flag signals from a ship? The
The Supreme Court knew of this Act in 1956 when it pronounced its decision in the Hallmark case. It practically said that the people did not have to fear they would be deluged with obscenity in motion picture theatres, since The Penal Code would protect them from such obscenity. Now, only three years later, it announces that the protection which it proclaimed has no reality at all. The signals which were flown from the high masts turn out to be beguiling, the lifesavers which were thrown to the public in 1956 turn out to be weighted with lead, the lifeline which was lowered over the deck‘s rail has turned out to be only a thread which the decision of this Court today severs.
When this Court spoke in 1956 it knew of the
This Court had a duty in 1956 to speak out on the reality of the law so that, if, as it states today, no existent law can protect the people from motion picture licentiousness, the Legislature could have supplied the desperate need for safeguarding public morals and public decency. Instead of speaking candidly, however, the Court threw to the public a weighted lifesaver, it lowered the parting strand of a lifeline, it hung out a chimerical rainbow, it flashed an unreliable weather report, it removed the warning signs from the rocky shores.
At the trial of the Hallmark case before the Court of Common Pleas, the attorney for the producers of the
And that is what this Court decided in the Hallmark case. It refused to ban “She Should‘a Said No,” or any other picture, but said that if a morally bad picture was shown publicly, the person showing the film could be prosecuted under the criminal laws.
Now it says there are no such criminal laws!
And what are the people to do for protection against an evil which no one can deny is as rampant today as it was in 1956?
The Pittsburgh Post-Gazette, as late as June 15, 1959, in speaking of motion picture censorship, said: “If Pennsylvania remained without one [a censorship board] it would still have the protection of its penal code which provides for the criminal prosecution of exhibitors of obscenity.”
The editorial writer, of course, could not know that within the matter of two weeks the penal code punishing exhibitors of obscenity would be declared unconstitutional by this Court, even though other exhibitors of indecent, immoral and obscene pictures have been prosecuted under that same code for decades. It is particularly to be noted that the editorial writer, like everyone else in the State who read this Court‘s decision in the Hallmark case, felt that when this Court broke from the State‘s bow of protection the string of censorship, there would still remain the string of
Only recently Governor David L. Lawrence issued extradition warrants for seven members of a West Coast ring accused of mailing lewd material to Philadelphia school children, housewives, and businessmen. Under this Court‘s decision, the extradition will be in vain, insofar as it applies to those accused of sending pornographic motion pictures into Philadelphia.
What is the present case about? In December, 1956 and January, 1957, the Court of Quarter Sessions of Lackawanna County heard evidence concerning an alleged indecent motion picture entitled “Undercover Girls.” This picture was exhibited at a public theatre. People paid admission to see it. Three members of the State Police saw it and reported to the District Attorney. The District Attorney, undoubtedly assured by the Hallmark decision, initiated prosecution against Martin Blumenstein, the exhibitor of “Undercover Girls” under the criminal laws of Pennsylvania, specifically the
It is not necessary to stress the accepted law that the findings of a judge sitting without a jury bear the same weight as the verdict of a jury.1 As already noted, the Trial Judge declared the film “Undercover Girls” to be “cheap, lewd, obscene and indecent.” He said also that it promoted “lust and immorality.”
Mrs. Edna R. Carroll, who for 16 years was chairman of the Motion Picture Censor Board, testified that the film included “strip dances in extreme nudity and obscenities and indecencies in dialogue.” She said further: “Extreme nudity does not in any way indicate fully how we felt about this picture, because when you have extreme nudity in conjunction with indecent and obscene actions, such as there are in these dances, then you have something which is more than just nudity. We felt that the picture was lewd and obscene and that it was, therefore, rejected.”
The general lewdness and smuttiness of “Undercover Girls” is emphasized by Mrs. Carroll‘s further statement, even though the lower Court regarded it as a conclusion, that the Board of Censors eliminated from the film that portion “where the performers removed their clothes for the purpose of inciting lust and obscenity.” (When the picture was exhibited by the defendant, it was shown in its uncut version.)
Mrs. Carroll was not the only person who viewed the picture and found it to be indecent, obscene and
Corporal Spence testified that he received many complaints in the neighborhood because of the nature of the motion pictures exhibited by the defendant. He enumerated some of their titles, namely, “Blondes for Sale,” “Bare Facts,” “Naughty Paris Nights,” “Rage of Burlesque,” “Love Life of a Gorilla” with the subtitle “An Expose of Strange Jungle Life,” and “Children of the Sun,” carrying the subtitle “Sensational Story Filmed in French Nudist Camp.”
There can be no doubt that, in exhibiting “Undercover Girls“, Martin Blumenstein violated Section 528 of the
The Majority of this Court does not challenge the
The Majority does not seem to realize the seriousness of declaring an Act of the General Assembly unconstitutional. It has ordered the execution in a very casual and almost haphazard fashion. It cites no cases which compel this Court to ignore the specific mandate of our Legislature which says that when there is doubt about constitutionality, such doubt is to be resolved in favor of upholding the statute. (
In Swartley v. Harris, 351 Pa. 116, 119, this Court said: “The language of a statute must be read in a sense which harmonizes with the subject matter and its general purpose and object. The general design and purpose of the law is to be kept in view and the statute given a fair and reasonable construction with a view to effecting its purpose and object.”
What is the purpose and object of the
What was held unconstitutional? May a word be declared unconstitutional?
The decision in the case of Holmby Productions, which the Majority Opinion cites with hand-waving finality, offers very little to support the Majority‘s position. I will copy out the whole decision in the United States Reports. This is what one finds on page 870 of 350 U.S.: “No. 338 Holmby Productions, Inc. et al. v. Vaughn et al., constituting the Kansas State Board of Review, et al. Appeal from the Supreme Court of Kansas. Per Curiam: Judgment reversed. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495; Superior Films, Inc. v. Department of Education, 346 U.S. 587. James C. Wilson for appellants. Harold B. Fatzer, Attorney General of Kansas, and Paul E. Wilson, Assistant Attorney General, for appellees. Reported below: 177 Kan. 728, 282 P. 2d 412.” Can one gather from that skeletonized expression that Section 528 of the Act of 1939 of the Pennsylvania Legislature is unconstitutional? Can any one gather from it that the word “obscene” is unconstitutional?
The Majority well knows that it is the jury which passes upon the quantum of proof in any given case, and it is the jury which will decide whether certain pictures are obscene or not. And one may quite well be assured that if twelve unrelated people, drawn from every walk of life, conclude, after viewing a motion picture, that it is obscene, it truly is obscene and should not be released to audiences.
About the only case which the Majority Opinion cites which is directly relevant and controlling is the one of Roth v. United States, 354 U.S. 476; and a reading of that decision will show that it establishes the very contrary of what the Majority apparently thinks it decides. This case involved two convictions, one (Roth) coming up from the Lower District of New York (affirmed by the 2nd Circuit Court of Appeals,) and the other (Alberts) reaching the Supreme Court from the State of California. Roth was convicted of violating a Federal statute which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy or other publication of an indecent character.” Alberts was convicted under a California statute which makes punishable, inter alia, the keeping for sale or advertising material that is “obscene or indecent.”
At the Roth trial, the Judge instructed the jury: “The words ‘obscene, lewd and lascivious’ as used in
At the Alberts trial, the Judge instructed the jury that the test was whether the material involved had a “substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.” The defendants respectively argued that these instructions were improper and violated constitutional guarantees. The Supreme Court said: “In light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at 266: ‘Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase “clear and present danger.” Certainly no one would contend that obscene speech, for example may be punished only upon a showing of such circumstances.‘”
At the Roth trial the Judge charged: “In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious—men, women and children.” The Supreme Court held that this instruction was unobjectionable.
It was argued in behalf of Roth and Alberts that the words “obscene,” “lewd“, “lascivious,” “filthy“, “obscene” and “indecent” were not sufficiently precise, but the Supreme Court declared: “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘... [T]he Constitution
Summarizing its observations on the statutes involved, the Supreme Court said: “In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.”
In view of this very clear language and everything else which the Supreme Court said in the Roth case, it completely escapes me how the Majority arrives at the conclusion that the Roth case supports the proposition that Section 528 must die on the guillotine of unconstitutionality.
The Supreme Court of Illinois spoke a great deal of common sense in the case of Block v. City of Chicago, 239 Ill. 251, 263: “There are the shameless and unclean, to whom nothing is defilement, and from whose point of view no picture would be considered immoral or obscene. Perhaps others could be found, with no laxity of morals, who pay homage to art and would not regard anything as indelicate or indecent which had artistic merit, and would look upon any person entertaining different sentiments as of inferior intelligence, without proper training on the subject, and blinded with bigotry. Both classes are exceptional, and the average person of healthy and wholesome mind knows well enough
I must repeat that the Majority does not seem to realize what a serious thing it is to kill a statute enacted by the General Assembly, the sovereign power of the Commonwealth. The Majority completely ignores that this Court has said many times that “all legislation must be construed as intending to favor the public interest.” (Com. v. Sunbury School District, 335 Pa. 6, 12.) In Com. ex rel. Shumaker v. N. Y. & Pa. Co., 367 Pa. 40, 53, we said: “In construing the legislative intent the Statutory Construction Act of May 28, 1937 . . . directs us to presume the intention of the legislature to be that it intends to favor the public as against any private interest.”
May this Court not presume that it is the intention of the Legislature to favor the public which certainly wishes to see young girls of 16, 15, and 12 protected from the degradation of visual and auditory contact with an immoral picture such as “Undercover Girls” has been proven to be? Who can doubt that many juvenile delinquents have been consciously or unconsciously urged into lurid crime because of being repeatedly exposed to lurid and immoral motion pictures? Children are by nature imitative and when they see
The filth and degeneracy which runs over the screens of many motion picture theatres today is nothing less than appalling. The Saturday Review said of the highly profitable and notorious film entitled “Baby Doll” that it was “one of the most unhealthy and amoral pictures ever made in this country.” Time Magazine spoke of it as “just possibly the dirtiest American-made motion picture that has ever been legally exhibited.”4 After this Court knocked out our Motion Picture Censor Board there was no way of keeping this monstrously ugly and degenerate film from the theatres in Pennsylvania and, of course, now that this Court, with today‘s decision, has destroyed the only remaining protection we have had from cinema monstrosities, there can be no doubt that there will come along other film depravities which will make “Baby Doll” seem like a Sunday School travelogue in comparison.
In Commonwealth v. Mason, 381 Pa. 309, 312, this Court said: “Penal statutes must be strictly construed . . . but that does not require us to hold that the words of a criminal statute must be given their narrowest meaning or that the lawmaker‘s evident intent must be disregarded.”
Can there be any doubt about the lawmaker‘s intent in the
Judge ERVIN of the Superior Court spoke wisely, courageously and eloquently on this subject in the case of Commonwealth v. Randall and Wofsy, 183 Pa. Superior Ct. 603: ”
In that case the Court was considering the
Although the defendant here was indicted under the
There is not a single word in the whole Majority Opinion which suggests even remotely that it is at all concerned about the evil aimed at by the Legislature in 1939, 1911 and 1860 and which the Common Law punished as far back as “the memory of man runneth not to the contrary.”
There is not the slightest suggestion in the Majority Opinion that the Majority is at all concerned about the menace which obscenity, no matter in what form, presents to the Commonwealth of Pennsylvania, its people, and mankind in general. The conviction of Martin Blumenstein, who was unquestionably guilty of the crime with which he was charged, could have been sustained under the Common Law, if not under the
In the case of Commonwealth v. Sharpless and others, 2 S. & R., 91, the defendants were indicted for having exhibited “a certain lewd, wicked, scandalous, infamous and obscene painting.” The indictment in that case ended, as it does in this case, with the words: “And against the peace and dignity of the Commonwealth of Pennsylvania.” After a verdict of guilty had been entered against them the defendants moved for
J. Edgar Hoover, Director of the Federal Bureau of Investigation, said not long ago: “As a law enforcement officer and as an American citizen, I feel duty-bound to speak out against a dangerous trend which is manifesting itself in the field of film and television entertainment.
“In the face of the nation‘s terrifying juvenile crime wave, we are threatened with a flood of movies and television presentations which flout indecency and applaud lawlessness. Not since the days when thousands filed past the bier of the infamous John Dillinger
Postmaster General Arthur Summerfield recently made a special appeal to the American public to get “obscene materials” out of the mails. The Philadelphia Bulletin, reporting on his testimony before a Congressional Committee, said: “He told a special congressional hearing, called by Representative Granahan (D-Phila), that traffic in this material has increased greatly in recent years due to liberal decisions by the courts. He also told the hearing ... that the amount of filthy and pornographic materials moving through the mails ‘is measured in tons.’ ‘In our efforts to halt this traffic,’ Summerfield said, ‘we have been subjected to attack and ridicule by those who profit personally from unrestricted mailing, and by those who confuse liberty with license and unwittingly give these dealers in filth assistance.‘”
The Newsweek Magazine for April 27, 1959, carried the following item: “Every day in the year the mailman unwittingly drops in the letter box of some American home a lurid circular offering smut for sale. Mail-order-vice—the wholesale distribution of pornographic films, photos and books—is a $500 million-a-year racket. But even worse, it is now being directed at the nation‘s youth—the impressionable teen-ager ... Postal authorities say they are trying, but that there are legal handicaps. Most of the dozen or so biggest operators of smut factories have shrewdly based themselves in Los Angeles or New York, two cities where the courts have tended to take a broad view of obscenity.”
After the decision of this Court is handed down, will the big cities of Pennsylvania be added to the list of the cities where traffic in obscene films will flourish because of the broad view of obscenity taken by its Supreme Court?
Cardinal Richard Cushing of Boston said a few days ago that the problem of obscenity is not new: “In every civilized community, including our own, there have always been laws restricting the publication and distribution of literature which could serve no other purpose than to arouse indecent imaginations and stimulate lascivious desires. What is new and distressing is the effort which is being made in some quarters to minimize the dangers which arise in the prevalence of obscene literature and to impede the application of existing laws by raising questions concerning their precise meaning and the definition of their terms.”
Although in the case at bar we are concerned more with obscenity in films than obscenity in books, the resulting problem is always the same. So far as the Legislature is concerned, it aims at striking at obscenity, no matter in what form projected. Moreover, motion pictures today are in effect talking pictorial books. In fact, most of the successful motion pictures are based on books. Thus, whether youth is corrupted by reading salacious books or by looking at salacious motion pictures, the deleterious effect on the fibre of the nation is the same. Cardinal Cushing said further, and with undeniable truism, that: “The survival of our nation depends upon the moral integrity of those who are being trained for tomorrow‘s social responsibilities.”
The common sense of the
Who, with a thought for all that is sensitive and delicate, and who, with an appreciation for the dignity and nobility of life, can deny that the vulgarization of the human relationship between man and woman, as often depicted on the screen, is painfully offensive to those who respect and cherish the beautiful and tender aspects of love and sentiment? Judge LEWIS, President Judge of Court of Common Pleas No. 2 of Philadelphia County, who sat on the Hallmark case at the trial level, was during the trial, moved to this impassioned but understanding outburst: “About one third of those [motion pictures] I see lead me to want to exile to a desert island all those who have anything to do with the production—about one-third. ... Suppose you were a god, if you can think of such a thing ... wouldn‘t you be very disgusted with us, and particularly with those who produce the average motion picture? What is their object, to traffic in the lowest impulses of human beings? The most animal traits of a human being are pandered to by the motion pictures.”
While, of course, the law cannot regulate all matters of customs, mores, and taste, the people have the right to expect that their representatives in the Legislature will protect them from what offends against public decency and good morals. Judge LEWIS said on this subject: “If you tell me that the people of the United
The Legislature of Pennsylvania did legislate to protect the children of Pennsylvania. It began in 1860, as I have already indicated, and it reinforced that determination in 1911 and in 1939. But, even prior to that, the Common Law threw its mantle of protection over children and humanity in general against the evils which Judge LEWIS so ardently and justly condemned in 1954.
A brief filed, as amicus curiae, by the American Civil Liberties Union, argues that the
The brief quotes at length from the opinion by Judge FRANK filed in the Court, whose decision was reversed by the Supreme Court. But even Judge FRANK, whose views were not accepted by the Supreme Court, did say that “Government should be concerned with anti-social conduct, not with utterances.” In this case we are not concerned with speech or any statement made by the defendant, Martin Blumenstein. It is anti-social conduct which is the subject of the indictment brought against him, and that indictment was based on a statute which, it cannot be denied, the Legislature of Pennsylvania had the right to enact. The
The American Civil Liberties Union characterizes as suppression and censorship many acts of government which are necessary for the citizen‘s well-being and for safeguarding his physical and moral health. The word censorship is regarded with abhorrence and yet there is scarcely a field of activity in modern day civilization in which the government does not predetermine whether the citizen shall be allowed to consume the article which he has the right to purchase. The government inspects food in order to assure the citizen it is free from infectious and contaminative substances; the government inspects medicines and pills to save the citizen from poisoning; the government inspects water to filter out impurities; the government compels inspection of automobiles to save the citizen from faulty brakes or defective lights. The citizen accepts this type of regulation because it helps him to ward off disease, accident, and death. Why should he object to regulation which will preserve his moral health?
The fact of the matter is that the average citizen does not object to motion picture censorship and certainly not to punishment of purveyors of obscenity. On the contrary, he welcomes a regulation which saves him from much of the nausea which passes as entertainment. The one who really protests government supervision of the kind under discussion is the one who makes a business of dealing in media which endangers health. Many who shout for unrestrained exploitation of obscenity shout within the mask of so-called artistic freedom. The commercialized exploiter of cheap, unartistic material can often be found concealed behind a shield of art. He cries for freedom while, as the New York Joint Legislative Committee on Obscene Publica
The American Civil Liberties Union brief, quoting from the Government brief in the case of Roth v. U. S., 354 U. S. 476, describes motion pictures of pornography, sexual orgies and excesses which are incredibly foul. From time to time one reads in the newspapers of the seizing of this hideous erotic material and the arrest of their purveyors. What is to happen now? The merchants and exhibitors of this vileness will probably be arrested by conscientious district attorneys and they will then be freed by a committing magistrate because of a decision of this Court which laconically intimates that the word “obscene” is vague.
There was a time when juries and trial judges conscientiously performing their duty in ascertaining the facts were allowed to use their common sense and appreciation of what is fair and just in deciding what is obscene and what is not obscene. That day is vanishing like the American Indian because recently courts have been fighting windmills over the definition of the simplest words. Any urchin on the street, any illiterate immigrant only in America a few months, any uneducated laborer will tell you the meaning of the word obscene, but there are courts which still cannot define or describe obscenity without employing polysyllabic words enmeshed in complicated verbiage of unending modifications and nuances which finally leave the reader or hearer as confused as one listening to an aboriginal incantation in an equatorial jungle.
The Majority of this Court declares
So that I may not appear to be unfair with this seemingly harsh observation, I will quote the words the Majority employs in laying to rest for all time the body of
It will be noted that the “dispositive” quotation says nothing about the “obscene.” It will be noted that the dispositive quotation says nothing about The Penal Code. It will be noted also, if one looks at the first page of the Majority Opinion that Hallmark also said: “It
Thus, Hallmark is not dispositive of
Moreover, it will be noted that the Majority Opinion has bracketed within the quoted paragraph from Hallmark the phrase “not including Roth & Alberts, which was written later.” Since Roth & Alberts followed Hallmark then this Court is bound by Roth & Alberts, is it not? And what does Roth & Alberts say: It says that the word “obscenity” does not fail to give the public “adequate notice of what is prohibited.”
Upon what, then, does the Majority stand in striking down
Addendum
I doubt that members of the Legislature have the time to read all the opinions of this Court, but I hope that they will read the decision of the court in this case, so that they may immediately prepare legislation to re
I would respectfully suggest further that the Legislature might assign to an appropriate committee or committees the task of reading opinions of this Court as they are filed so that the General Assembly may be kept informed on what is happening to measures it enacts into law. Such committees might come to the conclusion that occasionally this Court misreads the Legislature‘s intentions. I believe that the Court misread the Legislature‘s intentions when it interpreted the
Kingsley International Pictures Corporation, Appellant, v. Blanc.