Siegel v. Salisbury

• Decision Date: 22 July 1974
• Docket Number: Civ. A. No. CA 74-40 Erie.
• Citation: 379 F. Supp. 317
• Parties: Martin SIEGEL et al. v. Gerald SALISBURY et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

379 F. Supp. 317

Martin SIEGEL et al. v. Gerald SALISBURY et al.

Civ. A. No. CA 74-40 Erie.

United States District Court, W. D. Pennsylvania.

July 22, 1974.

John P. Leemhuis, Erie, Pa., for plaintiffs.

Charles K. Moffatt, Erie, Pa., for defendants.

OPINION AND ORDER

KNOX, District Judge.

The court is concerned here with the rights of freedom of expression contained in the First Amendment to the United States Constitution being Article I of the Bill of Rights¹ which have been applied to the states through the Fourteenth Amendment. The case results from an Ordinance passed by Millcreek Township, Erie County, Pennsylvania, a second-class township of Pennsylvania, copy of which is attached hereto as Appendix I.

While Millcreek is a second-class township under Pennsylvania law, nevertheless we must bear in mind that it is a suburban township surrounding the City of Erie on the south and west and has a population, according to the 1970 census, of approximately 40,000 making it one of the largest, if not the largest, second-class township in the state. It, as well as the hundreds of other local municipalities in Pennsylvania, enjoys the legislative police powers by amendments to the second-class township code in recent years. This Ordinance was enacted pursuant to such police power. See 53 Purdon's Pa.Stats. 65,712, 65,762 and 65,741. This Ordinance prohibiting public displays of photographs, drawings and other visual material depicting nudity or various types of sexual activities declares the same to be a nuisance when so displayed as to be visible without solicitation by members of the public in any building, state highway or township road.

It appears from the testimony taken in this case that the Ordinance at first was sought by a small group of people in the township.² The original object was to prevent displays at drive-in motion picture lots where the screen was visible from the adjacent public highway. As a result of this, members of the public were treated to various scenes from X-rated movies, apparently to their annoyance. As study of the Ordinance went on, however, it was determined to make it broad enough to include displays of magazines and book covers in book stores and other places where books and periodicals were sold. The testimony is, however, that the only prosecutions brought under the Ordinance arise out of displays of magazines at the book store of the plaintiff Jan-Beck, Inc.

The plaintiff, Jan-Beck, Inc., is operator of a book and periodical store in the West Erie Plaza, a shopping center in Millcreek Township, the store being known as the "Candy World Book City". It is an establishment engaged in selling of books, paperback books, magazines and other publications and materials. The plaintiff, Martin Siegel, against whom citations have been issued and scheduled for trial until a temporary restraining order was issued by this court is the leading stockholder and president of this establishment. At the time of hearing on the temporary restraining order, Lakeport Distributors, Inc., a wholesaler and distributor of books and periodicals was added as a party plaintiff pursuant to order of the court. However, its place of business is located in the City of Erie and the evidence does not disclose any threats to institute prosecutions against this corporate entity. Plaintiff Siegel is a director of Lakeport.

The defendants are three Supervisors of Millcreek Township; Marshall, Chief of Police; Stevenson, the Police Officer in charge of enforcement of this Ordinance who issued the citations in question; and Charles R. Wise, District Justice of the Peace before whom prosecutions are now pending.

The Ordinance in question, No. 74-6, was passed April 21, 1974. On May 21, 1974, and again on May 23, 1974, the defendant James Stevenson of the Millcreek Police appeared at the book store in question and on each date issued citations against plaintiff Siegel for allegedly violating the Ordinance through displaying at the book store certain magazines which were offered in evidence at the time of hearing and the covers of which are alleged to violate the Ordinance. The lapse of a day between the first citation and the second citation was for the purpose of determining if plaintiff Siegel would voluntarily comply with the Ordinance. Upon communicating with defendant Marshall, Chief of Police, he was informed that they proposed to enforce the Ordinance. The court determines that this was threat to put into effect the penal provisions of the Ordinance which, in Section 3, provides for a fine or penalty of not more than $300 and costs and in default thereof, imprisonment for not more than 30 days. "Each day's continuance of such violation shall constitute a separate offense punishable by a like fine or penalty". Hearing was set for June 6, 1974, before defendant Wise, Justice of the Peace in Millcreek Township. It is a simple matter of arithmetic to determine that if each day's exhibition of such magazines claimed to be in violation of the Ordinance could result in a $300 fine, then over the year assuming 300 days when the shop would be open, the fines could total $90,000 and in default of payment thereof, Siegel is subject to 9,000 days in jail. The court finds it a fact, as a legitimate inference from the evidence, that the defendants do intend to prosecute the plaintiff Siegel for each and every day in this manner and if it is determined that Siegel is not the one responsible for violation of the Ordinance, then such prosecutions will be brought against the corporation Jan-Beck, Inc. There is no evidence, however, of any threats or indication that the Ordinance will be enforced against Lakeport Distributors, Inc.

This complaint was filed on June 3, 1974, with a motion for temporary restraining order. This member of the court immediately fixed June 5, 1974, at Erie as the time and place of hearing on the application. After a short hearing at which plaintiff's evidence was taken showing a prima facie case of violation of constitutional rights under the First Amendment, a temporary restraining order was issued restraining the prosecution until June 12, 1974, when a hearing was ordered held on plaintiff's application for preliminary injunction. On June 6, 1974, an amended complaint was filed detailing more specifically the grounds for plaintiff's action. Hearing was held on the preliminary injunction on June 12, 1974, and oral arguments were thereafter held on June 14, 1974. The parties, except defendant Wise, have filed extensive briefs in support of their respective positions. By agreement of counsel, the temporary restraining order was extended to and including July 22, 1974. At the hearing on the preliminary injunction, it was stipulated between counsel that defendant Wise did not care to take any position one way or another with respect to the matter, he being a judicial officer, but it was stated that he did consider that he had no authority to declare a municipal ordinance unconstitutional as being in violation of the Constitution of the United States.

The court is thus faced with two issues: I. Are the nudity sections of Ordinance 74-6 in violation of Amendment I to the Constitution of the United States as applied to the states through the Fourteenth Amendment? II. Does this court have any authority to interfere with the prosecutions of the plaintiffs or any of them before Justice of the Peace Wise?

I. The Validity Of The Nudity Sections Of The Ordinance.

This Ordinance represents a novel approach to the problem of obscenity. It does not forbid the sale and distribution of magazines and books which may or may not be obscene under the decisions of the United States Supreme Court. Rather, it limits its impact to the "public displays of photographs, drawings and other visual material depicting nudity - - -" or certain described sexual activities "which appeal predominantly to prurient interest in sex". The prohibitory provision of the Ordinance, Section I, does only apply to material "depicting nudity or sexual conduct or sado masochistic activities which appeal predominantly to prurient interest in sex when displayed so as to be visible and without solicitation by any member of the public at large, etc." It is recited, however, that "regardless whether such displays are `obscene' within the meaning of the penal law and constitutional law, they are not constitutionally protected —".

It will be noted that it is only the magazine covers of certain magazines which are deemed violations of this Ordinance, not the contents of the magazines themselves. As to what constitutes a violation of the Ordinance, there is apparently considerable disagreement between the police department and Mr. Salisbury, the Chairman of the Board of Supervisors. Mr. Salisbury admitted that it was not the intention of the Board of Supervisors to interfere with the production of any work of art. He apparently however, does not consider photography to be an art. From the witness stand, he found only two of the magazines in question which had been seized by the police to be violations of the Ordinance whereas the police found a total of ten to be in violation. This demonstrates the vagueness of the Ordinance as to what material depicting nudity is considered to appeal predominantly to prurient interest in sex. An attempt was made to cover this in Section 2 by defining nudity but if these definitions apply, then as the court pointed out no one would be safe in publishing a picture of Venus De Milo or Michaelangelo's David upon any magazine cover in Millcreek Township.

It is obvious that it can be argued that there is some ambiguity in the Ordinance as to whether nudity in and of itself as defined in Section 2 is automatically prohibited in Section 1 unless in addition to the nudity it appears that the same appeals "predominantly to prurient interests". The confusion which this ambiguity engenders is obvious when examining...