Gascoe, Ltd. v. Newtown Tp., Bucks County

• Decision Date: 24 October 1988
• Docket Number: Civ. A. No. 88-7131.
• Citation: 699 F. Supp. 1092
• Parties: GASCOE, LTD., a Pennsylvania corporation, t/a American Home Theatres v. NEWTOWN TOWNSHIP, BUCKS COUNTY, a municipal organization of the Commonwealth of Pennsylvania; the Board of Supervisors of Newtown Township, an executive authority established pursuant to the laws of the Commonwealth of Pennsylvania; Nancy Smithson; Vincent Lombardi; John McGurney; David Evans and Donald Williams, Individually and as members of the Board of Supervisors, jointly, severally and in the alternative.
• Court: U.S. District Court — Eastern District of Pennsylvania

699 F. Supp. 1092

GASCOE, LTD., a Pennsylvania corporation, t/a American Home Theatres v. NEWTOWN TOWNSHIP, BUCKS COUNTY, a municipal organization of the Commonwealth of Pennsylvania; the Board of Supervisors of Newtown Township, an executive authority established pursuant to the laws of the Commonwealth of Pennsylvania; Nancy Smithson; Vincent Lombardi; John McGurney; David Evans and Donald Williams, Individually and as members of the Board of Supervisors, jointly, severally and in the alternative.

Civ. A. No. 88-7131.

United States District Court, E.D. Pennsylvania.

October 24, 1988.

Richard B. Gelade, Trenton, N.J., for plaintiff.

Stephen B. Harris, Warrington, Pa., for defendants.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

This case calls into question the precise issue left unanswered by the United States Supreme Court's trio of decisions in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), and Young v. American Mini-Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed. 2d 310 (1976); namely, whether a municipality may, consistent with the First and Fourteenth Amendments, use its zoning power to prohibit entirely the distribution of adult films within its jurisdiction. This court holds that it may not. Such an ordinance inflicts an unconstitutionally overbroad prior restraint on free speech by failing to institute procedural safeguards which limit the restrictions to films satisfying the Supreme Court's definition of obscenity.

I. FACTS

A brief recitation of the facts in this case reveals the inevitable conflict between the First Amendment and the video age. Plaintiff, Gascoe, Ltd., is a Pennsylvania corporation doing business as American Home Theatres. On August 7, 1987, plaintiff entered into a lease agreement with Newtown Village Partnership to lease property in a shopping center in Bucks County, Pennsylvania, known as Village at Newtown Marketplace, for the express purpose of renting and selling recorded and blank videotape cassettes and related equipment to the public. Pursuant to the municipal zoning ordinance, plaintiff made application for a conditional use permit to the Newtown Township Planning Commission. On August 9, 1988, the Planning Commission recommended approval to the Newtown Township Board of Supervisors.

At a public hearing held by the Board of Supervisors on August 30, 1988, plaintiff represented that it intended to rent and sell "adult" films which, based on prior calculations, would account for between 10 and 25 percent of its total business. As a result of this statement, the Board of Supervisors voted unanimously to deny conditional use approval. The Board initially found that the application of American Home Theatres failed to satisfy the provisions of Section 1301(B) of the township's Joint Municipal Zoning Ordinance, which reads in pertinent part:

2. An improvement which shall not be a detriment to the property in the immediate vicinity and which shall be in the best interests of the municipality, the benefit of the community and the public welfare.

In a letter of September 12, 1988, the Township Solicitor clarified the Board's position as follows:

Renting and selling adult films in a shopping center which is open to the general public and which is frequented by persons of all ages and both sexes is not in the interests of the municipality, will not benefit the community and will not further the public welfare. The rental and sale of films which are x-rated for sensuality is offensive to the citizens of Newtown Township and must be prohibited.

Upon its application for reconsideration, plaintiff objected to the Board's decision to exclude all x-rated videos from distribution. Plaintiff argued that such a comprehensive ban necessarily encompassed material protected by the First Amendment. Although plaintiff conceded the validity of reasonable restrictions on the sale, rental and advertising of its adult fare, it believed that the standard practices of American Home Theatres in cordoning off x-rated films from its mainstream inventory would alleviate the Board's concern for the community welfare. As an illustration of its procedures, plaintiff submitted to the Board several lease provisions¹ governing the rental of adult videos at other American Home Theatre outlets and assured compliance with any local ordinance regulating the sale or rental of "obscene" materials.

Despite these assurances, the Board of Supervisors once again denied plaintiff's application for a conditional use permit, but narrowed its definition of objectionable videos to those which would violate the Newtown Township Obscenity Ordinance. Modeled after the Pennsylvania Obscenity Act, 18 Pa.Cons.Stat. § 5903 (Purdon 1983), the ordinance adopts verbatim the Supreme Court's definition of obscenity as enunciated in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). In a letter dated September 19, 1988, the Board stated that obscene videos are those which:

a.) The average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;

b.) The subject matter depicts or describes in a patently offensive way sexual conduct, of a type hereinafter described; and

c.) The subject matter taken as a whole lacks serious literary, artistic, political or scientific value.

The Board then included in its letter the ordinance's definition of patently offensive material.²

Plaintiff now brings this action alleging that defendants' refusal to issue a conditional use permit pursuant to section 1301(B) of the Zoning and Planning Ordinance and the Newtown Township Obscenity Ordinance is an unconstitutional prior restraint on plaintiff's right to free speech under the First and Fourteenth Amendments and 42 U.S.C. § 1983. Plaintiff moves for an injunction requiring the issuance of a conditional use permit, declaratory relief holding the ordinances unconstitutional, both on their face and as applied, monetary damages incurred due to delay in commencing business, and attorney's fees.

II. DISCUSSION

A. Standing

As a threshold matter, defendants assert that plaintiff, a corporation, lacks standing to invoke the protection of the First and Fourteenth Amendments. While this issue as stated remains subject to debate, defendants' argument ignores the essential holding of the Supreme Court's decision in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), which acknowledged the "significant societal interests" served by the First Amendment. Id. at 776, 98 S.Ct. at 1415 (emphasis added). As summarized in the Court's subsequent decision in Pacific Gas & Elec. Co. v. Public Util. Comm'n., 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986), "the identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the `discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." Id. at 8, 106 S.Ct. at 907, quoting, First National Bank of Boston v. Bellotti, supra, 435 U.S. at 783, 98 S.Ct. at 1419. See also Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 533-35, 100 S.Ct. 2326, 2330-32, 65 L.Ed.2d 319 (1980). This argument is especially compelling when the corporation is in the business of conveying speech to the public at large. Bellotti, supra 435 U.S. at 783, 98 S.Ct. at 1419; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969).

Although the sale and rental of videocassettes for profit may not be the classic medium for the communication of core First Amendment speech, the burgeoning role of the video as a unique information source is nonetheless unquestionable. Indeed, the Video Cassette Recorder's (VCR) presence in some 37 million homes has offered both the speaker and listener increased access to the marketplace of ideas. See generally Comment, What Films We May Watch: Videotape Distribution And The First Amendment, 136 U.Pa.L.Rev. 1263 (1988). Moreover the industry's expansion into the adult genre has been at least commensurate with its growth in the entertainment and information field as a whole. See 1 U.S. Department of Justice, Attorney General's Commission on Pornography, Final Report, at 284-91 (1988) (hereinafter "Final Report"). Since the First Amendment clearly protects the distribution of nonobscene adult entertainment, see Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), plaintiff, as purveyor of allegedly protected speech, is properly situated to claim the safeguards of the First Amendment regardless of its rights to corporate self-expression. See Brudney, Business Corporations And Stockholders Rights Under The First Amendment, 91 Yale L.J. 235, 252 (1981).

B. The First and Fourteenth Amendment Claims

Any discussion of the First Amendment's speech clause must begin with the premise that content neutral time, place, and manner restrictions on speech which serve a substantial government interest are not unconstitutional so long as they leave open alternative avenues of communication. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, 2130, 80 L.Ed. 2d 772 (1984); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). A municipality's right to use its zoning power in the public interest is perhaps the paradigm of such a valid restriction. In Young v. American Mini-Theatres, the Supreme Court upheld Detroit's "Anti-Skid Row Ordinance" which limited the licensing of adult theaters to...