432 Pa. 378 | Pa. | 1968
Lead Opinion
Opinion by
The defendants, appellants here, are the Guild Theatre, Inc., and S. Ralph Green and Millard B. Green, officers of the defendant corporation. On July 16, 1968, the appellants began the exhibition of the motion picture, Therese and Isabelle. Late in the afternoon of July 19, 1968, the District Attorney of Allegheny County filed a complaint in equity alleging that the movie was obscene and requesting an injunction restraining the defendants from exhibiting the movie. Appellants received no notice of the filing of the complaint, nor of the hearing which took place later that evening before Judge Brosky. Apparently there was some testimony that the picture was obscene, but there is no record of that ex parte hearing. An injunction against the showing of the movie was issued, and the District Attorney proceeded to the theater around ten o’clock in the evening to close the movie. A hearing on a final injunction was set for July 23, 1968, at
We hold that the court below erred in granting the injunction and overruling the preliminary objections. The procedure followed in this case was shockingly defective in at least two respects—the hearing without notice on the evening of July 19th, and the censorship without provision for a prompt judicial decision.
The hearing which transpired on July 19, 1968 was reminiscent of the Star Chamber proceedings of yore.
However, even if a proper hearing had been held, the instant proceeding was fatally defective in another respect. There is no doubt that motion pictures are protected by the constitutional guarantee of freedom of speech. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S. Ct. 777 (1952). It is true that obscenity is not within the purview of the protections of the First and Fourteenth Amendments. Roth v. United States, 354 U.S. 476, 481, 77 S. Ct. 1304, and a long line of cases cited therein. However, the very question at issue here is whether this picture is obscene, and until it is judicially so adjudged, it is indeed entitled to those protections. The procedures involved must be “adequate to avoid suppression of constitutionally protected publications . . . [T]he line between speech unconditionally guaranteed and speech which
The Act of February 14, 1866, P. L. 28, §1, 12 P.S. 1101, provides for appeals from the grant of preliminary injunctions. Although that section further provides that the pendency of the appeal shall not suspend the proceedings in the court below, apparently no further move to proceed with the merits was made by anyone.
Concurrence Opinion
Concurring Opinion by
I agree that due process was violated in this case and, therefore, the decree entered below must be vacated. This is so because no prior notice of the proceedings was given to the defendants and all opportunity to be heard was denied before the court acted. The existing circumstances did not justify such procedure.
Equally important is the fact that no record was made of the hearing in the court which issued the injunction. Who testified and what testimony was given is left to guess and conjecture. Whether or not the court acted within permissible legal and constitutional limits is impossible to determine.
I would not only vacate the decree, but also would remand the record with directions to the court below to promptly conduct a hearing in accordance with the requirements of due process.