*1 protections Court ante at The broad First 743. say that require at least much. But to Amendment this may contempt power judge a to throttle not wield public by press criticism is not condone similar lawyer judge by during criticism of a uttered press proceeding. by course of a courtroom Citicism integrity, public protects in the nature debate: processes public by exposing re- of the court its robust judicial impropriety made view. Accusations judicial lawyer proceeding, jury to a in the course of a dig- however, denigrate authority only serves preserve integrity nity of our To court. types accept judges former criticism courts must reasons, I For these must not tolerate latter. contempt appellant’s conviction. affirm would dissenting J., EAGEN, join in JONES, this J.,C. opinion. Attorney RANCK, and Commonwealth District C.
Samuel Pennsylvania, Appellees, INC., ENTERPRISES, Appellant. BONAL Pennsylvania. Supreme Court 12, 1976. Jan. Submitted July 6, 1976. Decided *4 appellant. Stephen Sunbury, for Cohen, Shainoken, Rosini, Milton, Ranck, James J. Samuel C. appellees. for EAGEN, O’BRIEN, JONES, ROB- J.,
Before C. and MANDERINO, JJ. NIX and ERTS, POMEROY, EAGEN, Justice. Attorney of Nor- February 13, 1975, the District
On equity seek- County brought this action thumberland obscenity Pennsylvania ing, of both the on the basis ap- enjoin nuisance, to statute1 the common law of employees “from pellant, Enterprises, Inc., Bonal and its offering sell, exhib- selling, exhibiting, distributing, or “any it, publications or distribute” certain named complaint magazines The other similar or other works.” given ap- stated that no notice of the had been action irreparable pellant, alleged that “immediate damage loss and to the of Northumberland Coun- citizens ty” appellant its if to continue would result were allowed operations. promptly The chancellor held an unrecorded parte ex hearing complaint, he de- on the after which preliminarily en- creed that “defendant ... joined selling, distributing, reselling, lending, from ex- giving literature, hibiting, away showing any or obscene book, storypaper, paper, pamphlet, newspaper, magazine, writing, figure comic book, drawing, photograph, or im- age, any or at the article, obscene or device instrument premises known as Book Store’ ‘Continental Adult Appellant that, pursuant was notified to Pa.R.C.P. hearing February to deter- been for had scheduled
mine whether should be con- tinued. ap- hearing,
At the conclusion of the at which second recorded, pellant’s testimony present counsel was and the § 5903(h) 1. 18 Pa.C.S. *5 injunction. preliminary On chancellor continued pursuant to jury,
March a trial was held with a 18-14 specif- request appellant, were submitted to which questions publications had been ic about thirteen allegedly by appellant complaint in sold named as testimony evidence; was additional and admitted into alleged presence jury about outside the taken by appellant’s danger community presented adult to the 1975, found the 19, March chancellor On bookstore. publications obscene, final decree and in submitted his distribution, only enjoined exhibition, sale, their and permanently enjoined appellant operating the from appeal This direct followed.2 bookstore. pre procedure parte in which
The sort of ex re liminary injunction granted has been in this case peatedly by this Court. condemned and held to be invalid 1531(a) provides shall issue that “A court Pa.R.C.P. no special injunction only after written or hearing appears tice unless it satisfaction and immediate, irreparable injury be will the court that and hearing held given notice can be or sustained before nothing in ei . .” In the instant case there was subsequent for complaint or the record of the ther the hearing requisite “immediate mal to indicate either the giving irreparable injury” impossibility no or the and publications obscenity complaint tice. The was based on 8, yet alleged purchased January been on have complaint, alleging selling, distribution that “continued ir- . and exhibition . . will cause immediate reparable damage to the of Northumber- loss citizens thereby seeking County” justify land the lack of notice, brought February 13, was itself not until more addition, complaint spoke than a month later. In general frequently terms the “violence associated with Appellate July 2. See Court Jurisdiction Act of Act of II, (Supp. § § P.L. no. Art. 17 P.S. 211.202 1975-76). allegation specific business,” no type but made said *6 with imminent, in connection violence, either actual or might justify immedi- particular an bookstore this The prior appellant. ev- notice to ate without hearing preliminary subsequent offered at idence ownership person merely that a linked with indicated and at- of violence of this been the victim bookstore had in other tempted in connection bookstores with violence had parts Commonwealth, this bookstore of the and that appre- burglars burglarized alleged been and the once hended. disregard no shocking
The blatant and by both in this case requirement tice 1531 shown of Rule be condoned. attorney cannot the district and the court freedoms Amendment particularly First This is so where that, al beyond question involved, are it clear and protected though obscenity not to be held itself has been obscenity Constitution, line between the narrow by sensitive protected speech and needs to be discerned safeguards must be judicial procedural tools, and careful pro against chilling on guard restraints maintained to in this speech. parte procedures utilized tected The ex purpose. Com plainly inadequate this See case were for A.2d 272 Boley, 441 monwealth ex rel. v. Pa. Costa Theatre, Inc., 432 (1971); 905 v. Guild Commonwealth Rizzi, v. Blount (1968); see also Pa. (1971); Car 27 498 400 U.S. 91 L.Ed.2d S.Ct. Anne, Princess roll v. President and Commissioners of (1968). Fur 325 347, 21 L.Ed.2d 393 U.S. 89 S.Ct. thermore, preliminary injunction, after decreed hearing, parte hearing ex the formal and continued after prohibited only exhibition, and distribution sale, complaint, also publications in the named Such variety materials. of a wide of unnamed “obscene” insensitivity prohibition overly in its broad speech. protected obscenity narrow line and between clarity Moreover, specify sufficient with its failure to 576 precision being acts were restrained made what v.
void ex rel. Costa on its face.3 Commonwealth Cf. Storage Boley, supra; Apple Co., Edu Inc. Consumers Association, 272 A.2d cation and Protective Pa. order to final decree. In now turn to the We pro prior protected speech minimize restraints on ques adjudication prompt of First Amendment vide for 1531(f), tions, adopted this Court Pa.R.C.P. provides that when a court issues speech, the injunction involving defendant freedom of hearing three may within be held demand that a final twenty-four days final filed that a decree be within *7 hearing. rule The new fur hours after the close of the hearing provides not within ther if the final is held that three-day not filed period, decree or final allotted injunc twenty-four-hour period, “the within allotted Duggan v. 807 See tion shall be deemed dissolved.” also Ave., Liberty Inc., 288 750 281, 447 Pa. A.2d Appellant a final herein contends that since demanded hearing 1975, hearing February 21, on and since then rescheduled not scheduled March 4 and was until preliminary injunction only for March not was the hearing delay, the final dissolved because injunction matter of it were also as a that followed void only provides however, (f) note, law. Rule 1531 We injunction; preliminary for the dissolution of the pre preliminary injunction in order dissolution a prior preclude a vent an restraint sub excessive does not addition, complaint. sequent adjudication final of the In although appellant’s counsel that, discloses record prothonotary hearing a final with the filed demand for attorney February on and served this on the district 21 present to the he not this demand day, on same did open remained for busi- The indicates the bookstore 3. record was in effect. ness while the
577 court, subsequently hearing which scheduled the final for day actually third court after it had been advised Appellant’s the demand. requested jury counsel then trial, following which could be held until the week. Therefore, do not we find that the court violated Rule 1531(f).4 opinion
In
supporting
the memorandum
his final
decree,
5903(h)
the chancellor held that section
of the
Code,
permits
bring
attorneys
Crimes
district
enjoin
in equity
obscenity,
actions
is constitutional.
however,
Court,
This
subsequently
has
held that section
5903(h)
contrary
is
because,
unconstitutional
to the re
quirements
Supreme
established
Court
United States in
California,
Miller v.
93 S.
U.S.
(1973),
specifically
Ct.
filed
1976);
Evan,
Commonwealth v.
467 Pa.
*8
-,
(1976).
354 A.2d
addition,
541
In
it has been held
obscenity
that
cannot
enjoined
at once be
un
defined and
der the
public
common law of
nuisance, because nuisance
provides
vague
law
too
determining
a standard for
the
line
protected
unprotected
between
speech.
Com
monwealth
supra;
MacDonald,
v.
Press,
v.
Grove
Inc.
City
Philadelphia,
(3rd
1969). Thus,
578 obscene,6 only,5 for en- to and no basis and sold adults joining operation appellant’s as a nui- bookstore per sance se. en decree, however, in final
The chancellor his joined only operation on the of the bookstore not ground ground its obscenity, on that the additional danger public. operation continued constituted to may be en It lawful is well-settled that even a business joined that, particular circum if it is under the shown public operation, it nuisance. stances of its constitutes a Co., v. Barnes Tucker 455 Pa. See Commonwealth & Brodsky, (1974); 156 Reid 397 Pa. v. however, (1959). equally well-settled, It that A.2d 334 is per se, will not where there is no nuisance an granted merely is antici be to restrain a nuisance that pated appears the nuisance threatened, or unless probable.” “practically certain, merely Erie v. not (1959); 383, 386, 150 Corp., 395 Pa. A.2d 351 Oil Gulf A.L.R. Duff, Edmunds 280 Pa. v. cf. A. in the instant case The evidence offered purporting present danger to a clear of vio show community resulting op lence to the from continued patently in this eration of the bookstore was insufficient regard. Code, 5903(c) portion
5. of the statute Section of the Crimes minors, dealing obscenity with does in- the dissemination of specific depiction to be types clude a definition of sexual MacDonald, regulated. supra. See Commonwealth 5903(h) argues is constitu- Appellant that even if section 6. further finding tional, all of in jury as a matter of law the chancellor erred obscene, specifically publications Since the the submitted one of them patently found one of them not to be offensive lacking the court and not to be parties appear in value. Since both serious been jury have regarded to have the role here provided we need merely advisory, in Pa.R.C.P. as pre- specifically 5903(i), which whether section determine proceedings section jury under right to trial in all serves the 5903, normally be right jury than would trial confers a broader however, note, proceeding. equity We the case in an obscene, explicitly chancellor, finding publications all adopted findings jury. *9 counties, testimony in other that bookstores There was the linked to person evidence whom other owned a targets of the ownership bookstore, had been of the local perpetrator attempted violence, the and that actual and Coun- in Northumberland of this violence had resident the of gun permit by the ty issued sheriff and had a attorney’s police fur- county. witnesses But the district presently incar- perpetrator was ther that this indicated they of no actual crimes, that knew cerated for these against the local book- or threatened violence directed justi- inadequate to plainly The evidence was store. thus fy enjoining operation an antici- this as bookstore suggests pated case Rather, the record of this nuisance.7 speech,8 inher- danger suppressing protected that decree, ent in the was more clear court’s broad far present anticipated from than that of the violence operation.9 store’s continued party pay
Decree reversed. Each own costs.
POMEROY, joins opinion. in this J. concurring opinion
ROBERTS, J., filed a JJ., join. MANDERINO, POMEROY, NIX and (concurring). ROBERTS, Justice judgment announcing opinion agree I with granted. See improperly injunction A.2d Emberg, 464 Pa. v. Van Commonwealth be must final decree agree that I also trial, though during the course indicated 7. The chancellor not is- injunction could opinion, in his memorandum 5903(h) were unconstitutional. if sue section 6, supra. 8. See note clearly insufficient here evidence was find that
9. Because we nui- as a operation business permit enjoining of a lawful could sance, circumstances here whether permanent we need not determine against justify remedy ever the drastic protected engaged dissemination in the a lawful business against it. anticipated directed speech grounds violence on the *10 580 announcing join opinion judg- I not the the
reversed. do ment, however, agree opinion’s I cannot the because with enjoined may a intimation that a business be as lawful merely a unpopular it and therefore nuisance because is here, target especially of violence. This is true as where, protected the by the the to business is First Amendment United States Constitution. opinion announcing judgment states, “It is
The
the
may
enjoined
well-settled that
lawful
even a
business
be
particular
that,
if it
the
of
is shown
under
circumstances
operation,
public
Although
it
its
constitutes a
nuisance.”
generally
subject to an
true,
this is
I
is
believe the rule
important
parties
engaged
caveat.
are
in lawful
When
activity
unpopular
for
reason
with other
some
is
people,
activity may
enjoined
the lawful
because
not be
erupts
of the
of others
into breaches
dissatisfaction
peace.
205,
422
Jacksonville,
Erznoznik
95
Cf.
v.
U.S.
Mary
2268,
(1975);
45
125
S.Ct.
L.Ed.2d
Bachellar v.
1312,
(1970);
land,
90
25 L.Ed.2d
397 U.S.
S.Ct.
570
Independent Community
Tinker
Des
School
Moines
v.
District,
733, 21
731
393 U.S.
89 S.Ct.
L.Ed.2d
Chicago,
(1969);
69
Terminiello v.
S.Ct.
337 U.S.
(1949);
Struthers,
93
1137
Martin
319 U.S.
L.Ed.
(1943);
Port
S.Ct.
Thus, community if one in a a violently object, practice others which all unpopular may enjoined faith not be as a nuisance under theory practice religion that is the cause that enjoin Similarly, violence. court cannot the sale minority home in to a member of a race because others neighborhood threaten if the sale is consum- violence long operation of mated. So as the the bookstore here violence itself those who lawful, threats violence or operate allowed to the store should believe be operation never, my view, justify enjoining in can would, effect, re- store as a a result nuisance. Such erupted wrongdoers dissatisfaction has ward whose penalizing engaged in into while those a consti- violence tutionally protected activity. intimating
Therefore, this should not read case be as against operation an store citizenry could have issued if the had acted more violent- ly toward this business. *11 MANDERINO, join
POMEROY, JJ., in this NIX concurring opinion. Pennsylvania, Appellant,
COMMONWEALTH cases). (two Derek INGRAM Pennsylvania. Supreme Court of Jan. 1976. Submitted July 1976. Decided