Brightbill v. Rigo, Inc.

• Decision Date: 11 January 1980
• Citation: 418 A.2d 424,274 Pa.Super. 315
• Parties: , 5 Media L. Rep. 2496 David J. BRIGHTBILL v. RIGO, INC., Rebecca W. Bollerman, Stan Stepnowski and Richard Gomes, Appellants.
• Court: Pennsylvania Superior Court

Page 424

418 A.2d 424

274 Pa.Super. 315, 5 Media L. Rep. 2496

David J. BRIGHTBILL v. RIGO, INC., Rebecca W. Bollerman, Stan Stepnowski and Richard Gomes, Appellants.

Superior Court of Pennsylvania.

Argued June 11, 1979.

Filed Jan. 11, 1980.

Howard N. Stark, Allentown, for appellants.

David J. Brightbill, pro se.

Before SPAETH, STRANAHAN and SUGERMAN, JJ. ^*

SUGERMAN, Judge:

The instant appeal is before us as the result of an injunction entered by the Court of Common Pleas of Lebanon County against the sale, distribution or exhibition of assertedly obscene magazines and motion picture films.

On January 6, 1978, the District Attorney of Lebanon County filed a complaint in equity against Appellant, Rigo, Inc., a corporation operating an "Adult Book Store" in Lebanon County, and against Appellants, Rebecca W. Bollerman, allegedly an officer of Rigo, Inc., Richard Gomes, manager of the store, and Stan Stepnowski, assistant manager of the store.

The complaint in equity, filed pursuant to and one day following the effective date of Pennsylvania's so-called Obscenity Statute, Act of 1977, Nov. 5, P.L. 221, No. 68 § 1, enacted as an amendment to the Crimes Code of Pennsylvania, Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 5903, ("Crimes Code") asserted that Appellants sold in the past and continued to sell and exhibit certain obscene books, magazines and motion picture films in violation of the Crimes Code. The complaint set forth, as examples of the materials offered for sale, the specific titles of 15 magazines and books, and one motion picture film. In his prayer for relief, the District Attorney asked, inter alia, that the Defendants be enjoined from selling, uttering or exhibiting obscene materials, and from writing, printing, publishing or uttering any advertisement or notice stating where, how or from whom obscene materials can be purchased.

Section 5903(g) of the Crimes Code permits the District Attorney to institute an action in equity in a Court of Common Pleas to enjoin a violation of the Code. The court may issue an injunction only after written notice to a defendant, and hearing. The burden of proving a violation of the Crimes Code is upon the District Attorney, by proof beyond a reasonable doubt, and a defendant is entitled to a trial by jury upon the issue of obscenity. Finally, an injunction may issue only against a defendant named in the action.

Availing themselves of the right to trial by jury, Appellants demanded and on January 12, 1978, received such trial on the question of whether the named materials were obscene under the Crimes Code. At trial, the Commonwealth produced and caused to be admitted into evidence a number of exhibits, including 15 specifically titled magazines and five motion picture films. The jury ultimately by special findings, determined that each of the named magazines and films were obscene within the meaning of the Crimes Code.

Following the trial, on January 13, 1978, the lower court filed a Decree enjoining the Corporate Appellant and "its agents, servants and employees," and the individual Appellants, and their "agents, servants and employees" or any person acting on behalf of the individual Appellants, from selling, uttering or exhibiting any of the named magazines or films found to be obscene by the jury. ¹ In addition, Appellants were enjoined from selling, uttering or exhibiting ". . . any other book or magazine of the like kind or similar kind." The court in its Decree then added this sentence:

". . . The foregoing injunction shall also apply to movies and pictures of like kind or of a similar kind."

Finally, the lower court enjoined the Appellants from writing, printing, publishing or uttering any advertisement or notice announcing where, how or from whom any of the named magazines or films, ". . . or a like or similar kind . . ." can be purchased or obtained.

Following the entry of the injunction, Appellants filed a timely appeal in this court. In their appeal, Appellants do not contest the jury's finding the specific magazines and films in evidence to be obscene, and they do not here challenge the statute underlying the proceedings. Appellants do, however, contend that the language of the injunction purporting to enjoin the sale, display or advertising of unnamed publications and films of "like kind or similar kind" is both constitutionally offensive as a prior restraint and in violation of the principle that the prohibitory language of an injunction, to be valid and enforceable, must be definite and certain and fairly apprise the enjoined party of the nature of the prohibited acts or conduct.

As a second contention, Appellants assert that the attempt by the court to enjoin the corporate and individual Appellants' "agents, servants and employees" and "any person acting on behalf" of the individual Appellants, from engaging in the prohibited conduct is void and unenforceable as in violation of the clear language of the Crimes Code, permitting as it does, an injunction only against persons named as defendants in the action, after notice and hearing. We consider Appellants' contentions seriatim.

I.

As we have observed, at trial, 15 magazines and five films were received in evidence, viewed by the jury and each, by special finding, determined to be obscene. The lower court thereupon not only enjoined the sale, exhibition and advertising of each of the specifically named magazines and films, but also purported to enjoin the sale, exhibition and advertising of unnamed magazines and films of a "like or similar kind." Appellants contend first that such language operates as a prior restraint upon the distribution of printed material and motion picture films protected by the Constitutions of the United States and Pennsylvania.

A. Prior Restraint

It is of course clear, as Appellee instantly notes, that obscene material is not protected by the First Amendment to the Constitution of the United States. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

It is equally clear, however, that the power of a State to suppress obscenity is limited by the constitutional protections accorded free expression and there is thus no power to restrict the dissemination of publications or films which are not obscene. Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

It is therefore no departure from the teaching of more than two centuries of recorded American jurisprudence to suggest that the dissemination of printed materials and other forms of expression is one of our most zealously protected rights, and is thus accorded protection by the First Amendment. ² Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and by Article 1, § 7 of the Constitution of Pennsylvania. Commonwealth ex rel. Davis v. Van Emberg, 464 Pa. 618, 347 A.2d 712 (1975); 46 S. 52nd St. Corp. v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960).

As there is thus no power in a state to prohibit constitutionally protected speech, a state "is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech . . ." Marcus v. Property Search Warrant, supra at 731, 81 S.Ct. at 1716, 6 L.Ed.2d at 1135.

One of the barriers erected to guard against invasions of constitutionally protected communications is commonly known as the doctrine of prior restraint, espousing the principle that no legal restraint may prevent publication or speech, although criminal or civil actions may follow such publication or speech ³.

The principle has most often been associated, although never exclusively, with injunctions against the publication of newspapers or the making of speeches, and it was just such an injunction that led the Supreme Court of the United States, in Near v. Minnesota, supra, to declare that prior restraints, while not absolutely prohibited in all instances, require the most exigent circumstances for justification. The doctrine of prior restraint remains viable yet today, and the court in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), said again,

". . . Prior restraints have been accorded the most exacting scrutiny in previous cases. . . ." Id. at 102, 99 S.Ct. at 2670, 61 L.Ed.2d 404. ⁴

In Near, a Minnesota statute provided for the abatement by injunction, as a public nuisance, of publications found to be "malicious, scandalous and defamatory ⁵." Under this statute, the county attorney brought an action to enjoin the publication of what was described in the complaint as a malicious, scandalous and defamatory newspaper, magazine or periodical, based upon a series of articles already published. The State court, following trial, found that the previously published articles were malicious, scandalous and defamatory, concluded that the periodical constituted a public nuisance and perpetually enjoined the defendants

". . . from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law . . ." Id. at 706, 51 S.Ct. at 627.

In striking down the injunction as a constitutionally impermissible prior restraint, the court said, pertinent to the case at bar:

"If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or...