Duggan v. 807 Liberty Ave., Inc.

Concurring Opinion by

Mr. Justice Roberts:

I concur in the majority’s reversal of the preliminary injunction entered below. Prior to our decision *293 today there existed in this Commonwealth no statute, controlling court decision, 1 or Rule of Civil Procedure which guaranteed, in cases where expression was challenged as obscene, that “[a]ny restraint imposed in advance of a final judicial determination on the merits [would] be limited to the preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.” Freedman v. Maryland, 380 U.S. 51, 59 , 85 S. Ct. 734, 739 (1965). Thus, preliminary injunctions could be issued in. this Commonwealth against allegedly obscene movies or literature without the constitutionally requisite safeguards “to minimize the deterrent effect [upon the exercise of First Amendment rights] of an interim and possibly erroneous” preliminary restraint. Id. at 59 , 85 S. Ct. at 739 . 2 Accordingly, the injunction here must be reversed.

However, I cannot agree with the majority’s failure to establish here a decisional rule which would eliminate once and for all the chilling effect that is occasioned by the present lack of constitutionally adequate safeguards for the issuance of preliminary injunctions against expression that is arguably protected by the First Amendment. The majority, by emphasizing certain language which appeared in Mr. Justice O’Brien’s opinion in Commonwealth v. Guild Theatre, Inc., 432 Pa. 378 , 248 A. 2d 45 (1968), appears to believe that the requisite procedural safeguards must be “clearly embodied in a statute”. I find no support in Freedman *294 v. Maryland, 380 U.S. 51 , 85 S. Ct. 734 (1965); Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 (3rd Cir. 1969), or in logic for such a belief. On the contrary, Article V, Section 10c of our 1968 Constitution vests this Court with specific responsibility in the area of practice and procedure for courts of this Commonwealth.

I would here establish a decisional rule that henceforth in this Commonwealth, once a preliminary injunction is issued against expression that is arguably protected by the First Amendment the party restrained shall have the right to a hearing on whether the preliminary injunction shall be dissolved or made final within five days of the issuance of the preliminary injunction, and the court must render its final adjudication within five days of this hearing.

We here have the opportunity to assure that constitutionally adequate procedural safeguards will accompany the issuance of preliminary injunctions against expression that may be protected by the First Amendment. I see no reason why we should not here proceed in accordance with Article V, Section 10c to rectify this situation.

It must be noted that the majority’s failure to adopt the nonchilling procedures such as here urged (and constitutionally mandated by Freedman and Grove Press) means that the Commonwealth may not successfully seek and the Courts may not constitutionally issue preliminary injunctions in this class of cases.

Mr. Justice O’Brien’s opinion in Commonwealth v. Guild Theatre, Inc., 432 Pa. 378 , 248 A. 2d 45 (1968), cannot be viewed as firmly guaranteeing in cases such as the one before us the right of the party restrained to a prompt final judicial decision. Unfortunately, Mr. Justice O’Brien’s opinion was joined by only myself and one other of the six members of this Court who participated in that decision.

See Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82, 89 (3rd Cir. 1969).