Grove Press, Inc. v. City of Philadelphia

• Decision Date: 03 November 1969
• Docket Number: No. 17956.,17956.
• Citation: 418 F.2d 82
• Parties: GROVE PRESS INC. v. CITY OF PHILADELPHIA, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

418 F.2d 82 (1969)

GROVE PRESS INC. v. CITY OF PHILADELPHIA, Appellant.

No. 17956.

United States Court of Appeals Third Circuit.

Argued August 26, 1969.

Decided November 3, 1969.

COPYRIGHT MATERIAL OMITTED

Levy Anderson, Thomas A. Matthews, Asst. City Solicitor, George J. Ivins, Deputy City Solicitor, Matthew W. Bullock, Jr., Second Deputy City Solicitor, Edward G. Bauer, Jr., City Solicitor, Philadelphia, Pa., for City of Philadelphia.

Aaron M. Fine, Dilworth, Paxson, Kalish, Kohn & Levy, Harold E. Kohn, Philadelphia, Pa., for appellee.

Before HASTIE, Chief Judge, BIGGS and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

On April 23, 1969, a Swedish motion picture titled "I Am Curious (Yellow)" opened for showing in the City of Philadelphia. That same day, the city solicitor filed an action in equity in the Court of Common Pleas of Philadelphia County seeking to enjoin exhibition of the film on the grounds that it was obscene and a public nuisance.¹ In this ex parte proceeding, a Rule to Show Cause why a preliminary injunction should not issue was returned against the theatre, the 19th and Chestnut Street Corporation, and the individual defendants, its owners.

In its complaint for injunctive relief the City made the following averments:

"Paragraph 9: The City has been informed, believes and therefore avers that the dominating theme of the said moving picture film is designed to appeal to a prurient interest in sex; is patently offensive in that it affronts the contemporary community standards relating to the description or representation of sexual matters; and is a graphic portrayal of sexual intercourse between a male and female under varying circumstances including scenes of oral-genital activity.

"Paragraph 10: Plaintiff avers that the said film is obscene and pornographic * * *

"Paragraph 12: Plaintiff has been informed, believes and therefore avers that the said film is wholly devoid of any artistic values and is without any redeeming social or entertaining value but is displayed solely for a financial profit to be made at the expense of the public welfare and public morals of the community.

"Paragraph 13: Plaintiff further avers that the continued display of said moving picture film constitutes a public nuisance as well as a display of public obscenity and pornography."

The City's complaint was thus a blend of common law concepts of public nuisance and certain language found in Pennsylvania's criminal obscenity statute.² This duality was manifested in a colloquy between the court and counsel for the City:

"THE COURT: In other words, you are asserting a right to ban further showing of the film judicially on the ground that it was a nuisance?

MR. IVINS: That is right, Sir.

THE COURT: Without reference to the obscenity statute?

MR. IVINS: The only time the obscenity statute can come into it is where someone wants to know what will make a matter obscene, what will make a matter a public nuisance. If indirectly it were decided that this film corrupts the morals, someone may say: on what basis are you alleging that?

It may well be I would have to bring in obscenity. But at this moment and in the present posture of this case we are proceeding on the ground that this is a public nuisance."

Before the return date of the rule, however, the defendant exhibitors removed the action to the United States District Court for the Eastern District of Pennsylvania, citing as justification for the removal the original jurisdiction of the federal courts over matters involving a federal question arising under the Constitution of the United States. The City presented an opposing motion to remand the action to the state court.

Thereafter, on May 1, 1969, with the removed action still pending in the district court, a separate suit was filed before the federal forum by Grove Press, Inc., a New York corporation and distributor of the Swedish film in the United States. Grove was not a party to the prior action commenced by the City in the state court. In its suit Grove alleged diversity of citizenship, the existence of a federal constitutional question and violations of federal Civil Rights legislation as the basis for the district court's jurisdiction. Grove sought to enjoin the City from interfering with the exhibition of the film and requested a declaratory judgment that the movie was not obscene under federal constitutional standards.

The district court granted Grove's prayer for an injunction and restrained the City from proceeding in the state courts on a theory of public nuisance. The court found the City's actions "repugnant to the Due Process Clause of the Fourteenth Amendment," because the concept of public nuisance was too broad and too vague a test to proscribe activities as beyond First Amendment protection. Citing the doctrine of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the court also viewed the Pennsylvania procedures in equity as "an additional threat to the freedom of expression," because they failed to guarantee prompt final judicial determination of the First Amendment issue which was the subject of preliminary restraint.

In granting the injunction the court was careful to point out that it was not finding the film constitutionally protected, but only that the City could not attempt to prohibit its exhibition under the theory of a common law nuisance.

The court made a specific finding that its action was "not based on a conclusion that the City proceeded against the film in bad faith." Indeed, the court concluded that the question of the film's nonobscenity was not so clear that the mere institution of a proceeding to enjoin it under a properly drawn obscenity statute would be violative of federal constitutional rights. 300 F.Supp. 281, 287.

I.

Preliminarily, it is important to note what is not before us in this appeal. Although the court below did issue the injunction requested by Grove, it refused the prayer for declaratory judgment on the issue of the film's obscenity. There was no appeal taken from this denial. Accordingly, declaratory judgment considerations are not before us. Additionally, because the film is no longer being shown by the defendant-exhibitors at the 19th & Chestnut Street Theatre, the appeal in the remand case has been dismissed on the ground of mootness.³ This latter disposition does not affect the present appeal since public advertisements reveal that the film is now being shown in four locations in rerun movie houses in the City of Philadelphia.

We therefore move to consider whether the district court acted correctly in enjoining Philadelphia from further interference with the showing of the film. In so doing, a threshold question of fundamental importance must command our attention: When may a federal court intervene in proceedings before a state forum?

Because the power and jurisdiction of the lower federal courts are subject to Congressional supervision, we begin with an analysis of the relevant legislation. 28 U.S.C.A. § 2283 provides:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

Thus it is evident that the maintenance of a delicate balance between federal and state judicial functions is a Congressional mandate which, under ordinary circumstances, prohibits a federal court from enjoining state proceedings.

This court has previously held, however, that the Civil Rights Act of 1871, 42 U.S.C.A. § 1983, invoked by Grove, creates an express statutory exception to the general prohibition of Section 2283. Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950).⁴ It is questionable, however, that federal intervention in this case should lean on so slender a reed. We are not at all certain that an appropriate case of deprivation of civil rights was properly pleaded. In the absence of an averment alleging state court procedural deficiencies interfering with those rights, Grove seems to be arguing that it is a deprivation of one's civil rights to have a state court consider that state's law of common law public nuisance and its laws of obscenity. Although we know of no interpretation of § 1983 by any court which has given such breadth to the statute, yet, we do not deem it necessary to reach this question, for we prefer to focus our attention on those judicially recognized exceptions to the general prohibition against federal intervention.

The basic rule is expressed in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943) which, consonant with the letter of 28 U.S.C.A. § 2283, discourages federal interference with a state's good faith administration of its civil and criminal proceedings. This is based on the assumption that the state courts will observe constitutional limitations, and "the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings." Dombrowski v. Pfister, 380 U.S. 479, 484-485, 85 S.Ct. 1116, 1120 (1965).

Even so, the Supreme Court has recognized that federal intervention is proper under special circumstances where the utilization of state procedures may itself chill the very constitutional right sought to be protected. Thus in Dombrowski the harassment caused by bad faith enforcement of a valid state law by state officers for the purpose of abridging free expression was deemed sufficient to merit federal interference. And in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), abstention was held to be inappropriate because a New York statute was on its face an unconstitutional abridgment of protected expression. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335 (1968), reiterated the continuing vitality of Douglas in the absence of these...