American Booksellers Ass'n, Inc. v. Rendell

Decision Date24 August 1984
Citation332 Pa.Super. 537,481 A.2d 919
PartiesAMERICAN BOOKSELLERS ASSOCIATION, INC., Association of American Publishers, Council for Periodical Distributors Associations, Freedom To Read Foundation, National Association of College Stores, Inc., Robin's Book Store, Inc., Sandford Books, Inc., Valley Distributors, Inc., and Nina Landsberg, Appellants v. Edward G. RENDELL, District Attorney, Philadelphia County, Morton Solomon, Police Commissioner, City of Philadelphia, Joseph A. Smyth, Jr., District Attorney, Montgomery County, William J. Bambi, Chief Of Police, Borough of Norristown, and Clement Reedel, Chief Of Police, Upper Merion Township.
CourtPennsylvania Superior Court

Michael A. Bamberger, New York City, for appellants.

Sarah B. Vandenbraak, Asst. Dist. Atty., Philadelphia, for appellees.

Before ROWLEY, POPOVICH and MONTGOMERY, JJ.

ROWLEY, Judge:

This is an appeal from the Final Decree entered by the Honorable William J. Marutani, upholding Pennsylvania's obscenity statute against First Amendment attack. Following our review of the record, and consideration of the arguments presented within the briefs and at oral argument, we affirm.

On December 18, 1980, plaintiff-appellants, 1 representing publishers, wholesalers and retailers involved in the dissemination of printed materials, as well as the reading public, filed a Complaint in Equity seeking to have 18 Pa.Cons.Stat. § 5903(a)(1) declared unconstitutional. Section 5903(a)(1) prohibits the "display of any explicit sexual materials as defined in subsection (c) ..." 2 Appellants requested special injunctive relief, to forestall enforcement of the statute prior to the preliminary hearing. Appellant's further sought a preliminary injunction, pending disposition of their request for a permanent remedy. Named as defendants were prosecutorial and law enforcement personnel within Philadelphia and Montgomery Counties. 3

The Honorable Eugene Gelfand scheduled a hearing on appellants' request for a preliminary injunction. Judge Gelfand declined, however, to issue the special injunction sought by appellants. Nevertheless, two of the defendants-appellees agreed to forego institution of criminal proceedings under the amended statute until after the preliminary hearing. 4

Following the preliminary hearing, held before the Honorable Stanley Greenberg, an Order was entered enjoining appellees Smyth, Bambi and Reedel, who had not appeared at the hearing, from enforcing or threatening to enforce the challenged provision against appellants or any member of appellant associations. 5 Furthermore, a final hearing was scheduled for December 26, 1980. 6

At no time prior to initiation of this action had any of the appellants been charged with violation of § 5903, or threatened with prosecution under the statute. 7 At the final hearing before Judge Marutani, however, the testimony of appellants' witnesses evidenced a perception on the part of booksellers and distributors that compliance with the statute necessitated the exclusion of all minors from store premises, or the display solely of materials suitable for children.

On December 11, 1981, Judge Marutani issued a written Adjudication with Decree Nisi finding § 5903(a)(1) constitutionally sound, and thus denying appellants' request for declaratory and permanent injunctive relief. The trial judge also dismissed the Complaint in Equity with prejudice.

Appellants' timely exceptions were dismissed on March 1, 1982, and the Decree Nisi was made final. Notice of Appeal to this court was filed on March 9, 1982.

On appeal from a final decree, the test is whether the trial court, in entering the decree, abused its discretion or committed an error of law. Neshaminy Const. v. Philadelphia, Etc., 303 Pa.Super. 420, 449 A.2d 1389 (1982). Appellants raise before us the following questions:

1. Are the terms "harmful to minors," "display," "minor," and "as part of the general public or otherwise" so vague that reasonable persons are not given notice of prohibited conduct?

2. Given its ambiguity, does § 5903(a)(1) impose an impermissible prior restraint on booksellers, by forcing them to choose between censoring publications prior to their display, or risking prosecution?

3. Does § 5903(a)(1), by reference to the statutory definition of "harmful to minors," unreasonably restrict adult access to non-obscene materials?

4. Does § 5903(a)(1) unreasonably restrict the access of minors to constitutionally protected materials, in that compliance with the statute may result in the exclusion of minors from bookstores, etc., thereby precluding their exposure to non-obscene (non-harmful) materials stocked therein?

5. Does the obscenity statute violate federal and state equal protection provisions by specifically exempting non-commercial establishments from its prohibitions?

6. Will the Rules of Statutory Construction permit the obscenity statute, as amended, to be construed as constitutional, given the equal protection violation?

Although responding to the substantive issues asserted here, appellees initially question appellants' standing to challenge the obscenity statute at this time. We address this latter contention first.

I. Standing

Appellants are four trade association, 8 one non-profit organization, one wholesale and two retail book distributors, and one individual. Collectively, appellants questioned the constitutional validity of the obscenity statute's display provision as applicable to them, although none of them had been prosecuted or threatened with prosecution. Furthermore, appellants alleged that enforcement, or the threat of enforcement, of the display provision will result in the constitutionally impermissible denial of protected materials to adults and minors in general. Given the unusual procedural posture of this case, and the significance of the First Amendment claims raised, we review, initially, general principles of standing.

Relying on United States Supreme Court procedents, the Pennsylvania Supreme Court, in Wm. Penn Parking Garage, Inc., v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-281 (1975), summarized the concept of standing:

[A] person who is not adversely affected in any way by the matter he seeks to challenge is not "aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be "aggrieved" to assert the common interest of all citizens in procuring obedience to the law. (Citations omitted.)

In determining whether the interest asserted renders a litigant "aggrieved," the Court must ascertain whether the interest is "substantial," "direct," "immediate," and "not a remote consequence" of the challenged action. As Mr. Justice Roberts elaborated,

[T]he requirement of a "substantial" interest simply means that the individual's interest must have substance--there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.

Id., at 195, 346 A.2d at 282.

The additional requirement, that the interest be direct,

simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains.

Id.

The remaining requirements, that the interest be "immediate," and "not a remote consequence" reflect a single concern.

Here the concern is with the nature of the causal connections between the action complained of and the injury to the person challenging it.

Id., at 197, 346 A.2d at 283.

Thus, to justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct. 9

As the representative of its members, an association may also have standing. An association must allege that its members, or any one of them, are suffering immediate or threatened injury, resulting from the challenged action, sufficient to satisfy the Wm. Penn Parking Garage, Inc. standard. If this can be demonstrated, and if the nature of the claim asserted and the relief sought does not render the individual participation of each injured party indispensable to proper resolution of the issue, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction. See 1000 Grandview Ass'n v. Mt. Wash. Assoc., 290 Pa.Super. 365, 434 A.2d 796 (1981), quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343, 362 (1975) (citations omitted.) 10

In the First Amendment realm, traditional standing rules have been further modified. Thus, a litigant is permitted to question, on grounds of overbreadth, the constitutionality of legislation as applied to persons in situations not before the court. As noted in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the doctrine of overbreadth accords standing by reason of the chilling effect that a particular law might have upon the exercise of first amendment rights.

Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Id., at 612, 93 S.Ct. at 2916, 37 L.Ed.2d at 840.

See also, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), noted with approval in Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978). Nevertheless, this modification is limited. A litigant has no standing to assail legislation on the basis of overbreadth, where he does not claim specific, subjective harm, or the threat of specific future harm, or where the alleged overbreadth is not substantial, when judged in relation to the statute's plainly legitimate sweep. Commonwealth v....

To continue reading

Request your trial
5 cases
  • American Booksellers Ass'n, Inc. v. Webb, Civ. A. No. C84-697A.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 26 Septiembre 1986
    ......1361 (D.Minn.1985); M.S. News v. Casado, 721 F.2d 1281 (10th Cir.1983); American Booksellers Association v. Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984). The United States Court of Appeals for the Eleventh Circuit has yet to consider the issue. . ......
  • Ranch House, Inc. v. Amerson, CV 98-PT-1638-E.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • 30 Septiembre 1998
    ...... Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34, 96 S.Ct. 2440, 2453, n. 34, ... at 1163. .         In American Booksellers v. Webb, supra, 919 F.2d at 1500-01, the court stated: . ... to material that is not obscene as to them must be reasonable); Rendell, 332 Pa.Super. at 581, 481 A.2d at 941 ("incidental restrictions on First ......
  • American Civil Liberties Union v. Ashcroft, 99-1324.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 6 Marzo 2003
    ... . 322 F.3d 240 . AMERICAN CIVIL LIBERTIES UNION; Androgyny Books, Inc. d/b/a A Different Light Bookstores; American Booksellers Foundation for ...Rendell, 332 Pa.Super. 537, 481 A.2d 919 (1984) (upholding statute prohibiting ......
  • American Booksellers v. Webb, 87-8199
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 27 Diciembre 1990
    ......News Co. v. Casado, 721 F.2d 1281, 1289 (10th Cir.1983); American Booksellers Ass'n v. Rendell, 332 Pa.Super. 537, 581, 481 A.2d 919, 941 (1984). "[W]hen conduct plus speech is involved, the ... Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2838-39, 106 L.Ed.2d 93 (1989) (invalidating total ban on ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT