Outdoor American Corporation v. City of Philadelphia

• Decision Date: 30 June 1964
• Docket Number: No. 14697.,14697.
• Citation: 333 F.2d 963
• Parties: OUTDOOR AMERICAN CORPORATION, G. & L. Distributors and George A. Rosenbloom, Appellants, v. CITY OF PHILADELPHIA, Howard R. Leary, James C. Crumlish, Jr., the Evening Bulletin, Triangle Publications, Inc., and Columbia Broadcasting System, Inc.
• Court: U.S. Court of Appeals — Third Circuit

333 F.2d 963 (1964)

OUTDOOR AMERICAN CORPORATION, G. & L. Distributors and George A. Rosenbloom, Appellants, v. CITY OF PHILADELPHIA, Howard R. Leary, James C. Crumlish, Jr., the Evening Bulletin, Triangle Publications, Inc., and Columbia Broadcasting System, Inc.

No. 14697.

United States Court of Appeals Third Circuit.

Argued March 6, 1964.

Decided June 30, 1964.

Rehearing Denied July 21, 1964.

Certiorari Denied November 9, 1964.

Benjamin Paul, Philadelphia, Pa., for appellants.

Matthew W. Bullock, Jr., Deputy City Sol., Philadelphia, Pa. (James L. Stern, Second Deputy City Sol., Edward G. Bauer, Jr., City Sol., Philadelphia, Pa., on the brief), for appellees.

Before McLAUGHLIN and FORMAN, Circuit Judges, and LEAHY, District Judge.

Certiorari Denied November 9, 1964. See 85 S.Ct. 192.

LEAHY, District Judge.

Plaintiffs are publishers and distributors of nudist magazines and paperback books. In October, 1963, defendants confiscated a large quantity of plaintiffs' publications and arrested and are prosecuting plaintiff Rosenbloom in the Pennsylvania criminal court for violation of the Pennsylvania statute which makes dealing in obscene publications a felony.¹ Suit was brought by plaintiffs in the United States District Court for the Eastern District of Pennsylvania for a declaratory judgment and injunctive relief under the Civil Rights Act.² Upon defendants' motion, the district court dismissed the complaint on the grounds there was no showing of irreparable injury, clear and imminent, so as to justify interference in state proceedings and the City of Philadelphia is not a proper party under the Civil Rights Act. Though the entire complaint was dismissed, plaintiffs appeal only from dismissal of their cause against City of Philadelphia, Police Commissioner Howard R. Leary, and District Attorney James C. Crumlish, Jr.

Plaintiffs allege defendants are depriving them of their constitutional rights, privileges and immunities under color of the Pennsylvania Statute. Also, the arrests and deprivation is part of a deliberate campaign by defendants to prevent wholesale or retail sale or display of plaintiffs' publications which they, acting as censors, have determined are obscene. Further, plaintiffs allege defendants have adopted a criterion that nudity is obscenity; valuable property has been taken without due process of law; freedom of speech and freedom of expression have been denied them; the arrests are illegal; and the actions of defendants are without any basis in law.

Relief sought includes a declaration none of the publications in question constitutes hard-core pornography, or is obscene, or is subject to governmental suppression in accordance with the definition of obscenity stated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); a preliminary injunction (thereafter to be made permanent) against continuation of prior practices, procedures and conduct of defendants; restraining defendants from threatening plaintiffs or their customers with arrest, search, seizure or prosecution of their publications; directing defendants to return seized publications; and declaring defendants' actions violative of plaintiffs' constitutional rights of property, freedom of speech, and freedom of press.

Decisive of this appeal is the question whether the district court in the exercise of its discretion was correct in refusing to use its equitable power. Plaintiffs concede federal courts will not interfere with a state's criminal prosecution. However, they contend a reading of their complaint demonstrates only one prayer for relief among several concerned suppression of evidence. Thus, plaintiffs argue, the fact they may not be entitled to all relief sought does not warrant dismissal of the entire action. We disagree with plaintiffs' basic contention only one request requires interference with state proceedings. All, at least by indirection, do.

Plaintiffs' prayer for a declaration the publications in question are not obscene is a circuitous way of requesting the district court "to interfere with or embarrass" state proceedings. Whether the court should abstain from passing upon the merits of this litigation, leaving that decision to the state courts, is the crucial question raised by the request for a declaratory judgment. No reason for the district court to involve itself with the basic question of obscenity at this time exists. The decision of the state courts may result in plaintiffs' obtaining the objectives they now seek. If not, petition to the Supreme Court of the United States for writ of certiorari remains. As Mr. Chief Justice Stone for the Supreme Court in Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943) stated:

"Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing this independence of the states — though they might otherwise be given — should be withheld if sought on slight or inconsequential grounds."

Danger of irreparable injury both "clear and imminent" has not been shown. Since there are three plaintiffs in the matter before the federal court and only one involved in state proceedings, it is argued a finding of not guilty in the state courts of one of plaintiffs is no protection to the others. The fact only one plaintiff is being prosecuted in the state courts is without independent legal significance, since publications involved are the same as to each plaintiff. All issues plaintiffs are raising in the federal court may be brought before the state courts, and there is no reason to believe state officials will enforce the Pennsylvania statute against plaintiffs not involved in state proceedings if the...