Appendix — Pennsylvania v. MacDonald

. Supreme Court, U. &

g@ FILED

75-1073 | JAN 28 1976

SUPPLEMENTARY APPENDIX LWICHAEL RODAE JR. CT

IN THE

Supreme Court of the United States

October Term, 1976

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

vs.

CHARLES MacDONALD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE UNITED STATES

DONALD L. RETHART,

District Attorney,

York County, Pennsylvania,

DANIEL F. WOLFSON,

Assistant District Attorney,

York County, Pennsylvania,

Attorneys for Petitioner.

oe

BATAVIA TIMES, APPELLATE COURT PRINTERS <>

EDWARD UW. SHANNON, SENIOR REPRESENTATIVE

WAROLD L. SERKOBEN, REPRESENTATIVE

1701 PARELINE DOR., PITTSSURGH, PA. 19887

418-001-7468

INDEX TO APPENDIX.

Exhibit No. 1—Judgment ......................055.

Exhibit No. 2—Docket Entries .....................

Exhibit No. 3—Complaint........................4.

Exhibit No. 4—Preliminary Objections ..............

Exhibit No. S—Opinion......................22005-

ee

APPENDIX.

Exhibit No. 1.

JUDGMENT.

COMMONWEALTH of Pennsy!vania,

Appellant,

v.

Charles MacDONALD et al.

COMMONWEALTH of Pennsyivania,

Appellant,

v.

Charles MacDONALD.

Supreme Court of Pennsylvania.

Oct. 30, 1975.

Criminal complaint filed against three defendants in

connection with their exhibition of two motion pictures

was quashed by order entered in M-24 in the Court of

Common Pleas, York County, and one defendant’s

preliminary objections to injunction sought by Common-

wealth to enjoin future exhibition of motion pictures were

sustained in order entered in 34 May Term, 1974, in the

Court of Common Pleas, York County, and Common-

wealth’s appeals were consolidated. The Supreme Court,

Nos. 20, 21 May Term, 1975, Roberts, J., held that statute

which prohibits, inter alia, exhibiting of obscene

photographs, figures or images but which does not

specifically define forbidden conduct, could not

constitutionally be applied to criminally punish expres-

sion on basis of allegedly obscene content of motion pic-

tures unless and until amended to specifically define for-

bidden conduct, that determination of what constituted

common or public nuisance under statute prohibiting

2a

Appendix—Exhibit No. 1—Judgment.

common or public nuisance was not sufficiently specific

to be utilized to criminaily punish expression on basis of

motion pictures’ ailegedly obscene content; that Com-

monwealth was not entitled under theory of commonlaw

public nuisance to enjoin future showing of allegedly ob-

scene motion pictures, and that motion pictures could not

be enjoined under statute authorizing injunctive pro-

ceedings to prevent exhibition of any obscene photograph,

figure, or image until adequate definition of prohibited

conduct was supplied by General Assembly.

Affirmed.

Eagen, O’Brien, and Nix, J.J., concurred in result.

Jones, C. J., dissented.

1. Obscenity—S.

“Motion pictures’ are “photographs” or “images,”

within purview of statute forbidding exhibition or show-

ing of, inter alia, any obscene photograph, figure or im-

age, and thus such statute applies to motion pictures. (Per

Roberts, J., with one Justice concurring and three Justices

specially concurring.) 18 Pa.C.S.A. §5903(a).

See publication Words and Phrases for other

judicial constructions and definitions.

2. Constitutional Law—48(] ).

Supreme Court has duty to so construe a statute as to

sustain its validity if such construction is fairly possible.

(Per Roberts, J., with one Justice concurring and three

Justices specialiy concurring.) | Pa.C.S.A. § 1922(3).

3a

Appendix—Exhibit No. 1—Judgment.

3. Statutes—2] 2.

Definition of “‘sexual conduct” contained in statutes re-

stricting availability of sexually-oriented materials to

persons under the age of 17 years could not be utilized to

give necessary definiteness to statute restricting avail-

ability of obscene data to adults since it could not be pre-

sumed that General Assembly would wish to restrict

adults to receiving material fit for children. (Per Roberts,

J., with one Justice concurring and three Justices specially

concurring.) 18 Pa.C.S.A. §5903(a), (e)(3).

4. Constitutional Law—70. 1 (6).

Where proposed construction of statute restricting

availability of obscene material to adults drew no support

from language of statute and was only one among several

specific definitions of sexual conduct which might be

permissible under First Amendment, Supreme Court

could not choose among them, in absence of guidance

from General Assembly, without intruding upon leg-

islative province. (Per Roberts, J., with one Justice con-

curring and three Justices specially concurring.) 18

Pa.C.S.A. §5903(a); U.S.C.A.Const. Amend. 1.

5. Criminal Law—] 3.1(1 3).

Statute which prohibits, inter alia, exhibiting of ob-

scene photographs, figures or images, but which does not

specifically define forbidden conduct, could not

constitutionally be applied to criminally punish ex-

pression through exhibition of motion pictures on basis of

pictures’ allegedly obscene content. (Per Roberts, J., with

one Justice concurring and three Justices specially con-

curring.) 18 Pa.C.S.A. §5903(a), U.S.C.A.Const. Amend.

1.

4a

Appendix—Exhibit No. 1—Judgment.

6. Criminal Law—] 3.1(2).

Determination of what constitutes common or public

nuisance under statute prohibiting common or public

nuisance was not sufficiently specific to be utilized to

criminally punish expression through exhibition of motion

pictures on basis of pictures’ allegedly obscene content.

(Per Roberts, J., with one Justice concurring and three

Justices specially concurring.) 18 Pa.C.S.A. § 6504.

7. Pleading—214(2).

Preliminary objections admit, for purpose of testing

sufficiency of complaint, all properly pleaded facts, but

not conclusions of law. (Per Roberts, J., with one Justice

concurring and three Justices specially concurring. )

8. Nuisance—S9, 60.

A thing may be a public nuisance either because it is so

decl*red by statute, either explicitly or implicitly, and

alternatively, may be declared a nuisance as a matter of

common law, if, though not prohibited by statute, it un-

reasonably interferes with the rights of the public. (Per

Roberts, J., with one Justice concurring and three Justices

specially concurring. )

9. Nuisance—80.

Commonwealth was not entitled to enjoin future ex-

hibition of allegedly obscene motion pictures on theory

that exhibition of pictures constituted common-law public

nuisance. (Per Roberts, J., with one Justice concurring

and three Justices specially concurring. )

a

Sa

Appendix—Exhibit No. 1—Judgment.

10. Nuisance—80.

Statute authorizing injunction against use of any

building for purposes of fornication, lewdness, assigna-

tion, and/or prostitution proscribes only use of building

for purpose of engaging in illicit sexual conduct and thus

provided no basis for enjoining of future showing of al-

legedly obscene motion pictures in absence of allegations

that any buildings were being used for purpose of engag-

ing in illicit sexual conduct. (Per Roberts, J., with one

Justice concurring and three Justices specially concur-

ring.) 68 P.S. §§ 467-473.

11. Nuisance—80.

Future showing of allegedly obscene motion pictures

could not be enjoined under statute authorizing injunctive

proceedings to prevent exhibition of any obscene photo-

graph, figure or image until adequate definition of ob-

scenity was supplied by the General Assembly. (Per

Roberts, J., with one Justice concurring and three Justices

specially concurring.) 18 Pa.C.S.A. §5903(h);

U.S.C.A.Const. Amend. I.

Donald L. Reihart, Dist. Atty., York, for appellant.

Harold N. Fitzkee, Jr., Donn I. Cohen, York, for

appellees.

Before JONES, C. J., and EAGEN, O’BRIEN,

ROBERTS, POMEROY and NIX, JJ.

OPINION OF THE COURT.

ROBERTS, Justice.

These appeals arise out of a two-pronged effort by the

Commonwealth to prevent the showing of certain alleged-

6a

Appendix—Exhibit No. 1—Judgment.

ly obscene motion pictures. The Commonwealth first filed

a criminal complaint against Charles MacDonald, Raetta

Thompson, and Lance Wolf alleging that they had vi-

olated sections 5903' and 6504* of the Crimes Code by

' 18 Pa.C.S. §5903 (1974). The pertinent portions of this section

provide:

“(ay Offenses defined.—Whoever sells, lends, distributes, ex-

hibits, gives away or shows to any person 17 years of age or older

or offers to sell, lend, distribute, exhibit or give away or show, or

has in his possession with intent to sell, lend, distribute or give

away or to show to any person 17 years of age or older, or

knowingly advertises in any manner any obscene literature, book,

magazine, pamphlet, newspaper, storypaper, paper, comic book,

writing, drawing, photograph, figure or image, or any written or

printed matter of an obscene nature, or any article or instrument

of an obscene neture, or whoever designs, copies, draws,

photographs, prints, utters, publishes or in any manner manufac-

tures or prepares any such book, picture, drawing, magazine,

pamphlet, newspaper, storypaper, paper, comic book, writing,

figure, image, matter, article or thing or whoever writes, prints,

publishes or utters or causes to be printed, published or uttered,

any advertisement or notice of any kind giving information,

directly or indirectly, stating or purporting to state where, how, or

whom, or by what means any obscene book, picture, writing,

paper, comic book, figure, image, matter, article or thing named

in this section can be purchased, obtained or had, or whoever

hires, employs, uses or permits any minor or child to do or assist

in doing any act or thing mentioned in this section, is guiity of a

misdemeanor of the second degree.

“(b) Obscene defined.— Obscene,’ as used in this section,

means that which, to the average person applying contemporary

community siandards, has as its dominant theme, taken as a whole,

an appeal to prurient interest.”

* 18 Pa.C.S. §6504 (1974). This section provides:

“Whoever erects, sets up, establishes, maintains, keeps or con-

tinues, or causes to be erected, set up, established, maintained,

kept or continued, any public or common nuisance is guilty of a

misdemeanor of the second degree.

(Footnote continued on following page)

Ta

Appendix—Exhibit No. 1—Judgment.

exhibiting the motion picutres “Deep Throat” and “The

Devil in Miss Jones.” Subsequently, the Commonwealth

filed a complaint in equity against MacDonald only seek-

ing to enjoin exhibition of those motion pictures in the

future. Appellees filed a petition to quash the criminal

complaint and preliminary objections to the complaint in

equity. The court of common pleas quashed the criminal

complaint on the ground that the statutes in question vi-

olated the First Amendment to the United States Con-

stitution as interpreted by Miller v. California, 413 U.S. 15,

93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It also sustained the

preliminary objections to the complaint in equity on the

ground that the invalidity of the obscenity statute left no

“legal basis upon which the films in question can be

determined to be obscene.” These appeals followed* and

we consolidated them for oral argument. We now affirm.

The criminal charges under sections 5903 and 6504 will

be discussed in parts I and II of this opinion, respectively.

The action in equity will be considered in part III.

(Footnote continued from preceding page)

“Where the nuisance is in existence at the time of the conviction

and sentence, the court, in its discretion, may direct either the

defendant or the sheriff of the county at the expense of the defen-

dant to abate the same.”

* Our jurisdiction over the criminal proceeding is founded upon the

Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L.

673, §202(9), 17 P.S. §211.202 (9). (Supp. 1974). Our jurisdiction over

the equity proceeding is founded upon /d. §202 (4), 17 PS.

§ 211. 202(4).

8a

Appendix—Exhibit No. 1—Judgment.

The charges of violation of section 5903, appearing in

count one of the criminal complaint, read as follows:

“Defendant[s] did exhibit and show to persons over

17 years of age, obscene photographs and images that

were cast upon a motion picture screen. The

photographs and images depicted acts of oral and

anal sodomy and sexual intercourse, and pictured the

genitals of males and females in a state of excitement.

The photographs and images were contained in a mo-

tion picture film, which when taken as a whole was

obscene.”

[1] Appellees moved to quash the indictment on the

ground that it failed to charge a crime, because (1) the

Statute does not prohibit the exhibition of an obscene mo-

tion picture and (2) the statute was unconstitutionally

vague and therefore invalid. The court of common pleas

rejected the first contention but agreed with the second

and quashed count one of the complaint. We agree that

section 5903 does attempt to prohibit exhibition of ob-

scene motion pictures but that it is unconstitutional

insofar as it prohibits distribution or exhibition of ob-

scene materials to persons over the age of 17.‘

Section 5903(a) forbids “any person” to exhibit or

. Show .

“any obscene literature, book, magazine, pamphlet,

newspaper, storypaper, paper, comic book, writing,

drawing, photograph, figure or image, or any written

or printed matter of an obscene nature, or any article

or instrument of an obscene nature .

* The portions of §5903 prohibiting distribution of exhibition of

obscene materials to persons under the age of 17 are not in issue here.

9a

Appendix—Exhibit No. 1—Judgment.

Surely a motion picture is simply a series of “photo-

graphs” or “images.” Nevertheless appellees argue that

the omission from the list of prohibited materials of any

specific references to “motion pictures’ indicates a

legislative intent to omit them from the scope of the pro-

hibition.

The only factor which even lends surface plausibility to

appellees’ proposed construction is the fact that other

portions of section 5903 do specifically mention mvtion

pictures.° From this appellees argue that omission of any

such specific reference from section 5903(a) must have

been intentional. We cannot agree.

Whatever might be the case if the entire statute were

drafted at one time, we believe that the history of this

section precludes the inference which appellees seek to

draw. Section 5903(a) of the Crimes Code was derived,

without any pertinent changes, from section 524 of the

Penal Code.* Thus it is presumed that the General

» Section 5903(c\ 1) prohibits distribution to minors of

“any picture, photograph, drawing, sculpture, motion picture

film, or similar visual representation or image of a person or por-

tion of the human body which depicts nudity, sexual conduct, or

sadomasochistic abuse and which is harmful to minors .. .”

(emphasis added)

Section 5903 prohibits the admission of minors to any

“motion picture show or other presentation which, in whole or in

part, depicts nudity, sexual conduct, or sadomasochistic abuse and

which is harmful to minors . . .” (emphasis added)

“ Act of June 24, 1939, P.L. 872, §524, as amended by Act of Octo-

ber 20, 1939, P.L. 1330, §1 (formerly codified as 18 P.S. §4524 (1963)),

repealed by Act of December 6, 1972, P.L. 1605, No. 334, §5.

10a

Appendix—-Exhibit No. 1—Judgment.

Assembly intended to retain the prior law except as it was

explicitly altered.’ See Statutory Construction Act of

1972, 1 Pa.C.S. §§ 1961, 1962 (Supp.1975). There is no

indication that motion pictures were excluded from the

scope of section 524, which is clearly intended as a com-

prehensive prohibition on the distribution and exhibition

of all types of obscene materials. Nor, we think, can the

addition of new and extremely detailed provisions

governing the exhibition and distribution of obscene

materials to minors be construed to restrict the scope of

the prohibition of or distribution of similar materials to

adults.

Appellee would have us construe the statute to avoid

the constitutional question. While there is some value to

construing statutes narrowly simply to avoid or postpone

constitutional adjudication, we do not believe that this

factor is sufficient to justify disregard of the more

probable intent of the General Assembly when that intent

is expressed as plainly as it is in this case. Consequently,

we conclude that motion pictures are “photographs” or

“images” within the meaning of section 5903(a).

Our analysis of the validity of the statute before us must

begin with the United States Supreme Court’s decision in

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 2d

419 (1973). In Miller the Court ended a long period of

uncertainty regarding the constitutional limits of govern-

* The primary difference between section 524 of the Penal Code and

the pertinent portion of section 5903 is the restriction of section

5903(a) to obscene materials furnished to persons over the age of 17.

This retlected the adoption in section 5903(c), (d) and (e), of a new

comprehensive scheme of regulation covering materials furnished to

minors.

lla

Appendix—Exhibit No. 1—Judgment.

mental power to regulate obscene materials and laid down

a five-part standard for the validity of such regulation:

“We acknowledge . . . the inherent dangers of un-

dertaking to regulate any form of expression. State

statutes designed to regulate obscene materials must

be carefully limited. As a result, we now confine the

permissible scope of such regulation [1] to works

which depict or describe sexual conduct. [2] That

conduct must be specifically defined by state law as

written or authoritatively construed. [3] A state of-

fense must also be limited to works which, taken as a

whole, appeal to the prurient interest in sex, [4]

which portray sexual conduct in a patently offensive

way, and [5] which, taken as a whole, do not have

serious literary, artistic, political, or scientific

value.”

Id. at 24-25, 93 S.Ct. 2614-15 (citation and footnote

omitted).

Examining the pertinent portion of section 5903 on its

face," we find that it fails to satisfy the Miller standard.

Section 5903(a) is a wide-ranging prohibition on the dis-

tribution or exhibition of obscene materials with the

following definition of “obscene” appearing in stction

§903(b):

“ ‘Obscene,’ as used in this section, means that

which, to the average person applying contemporary

community standards, has as its dominant theme,

taken as a whole, an appeal to prurient interest.

On its face this appears to satisfy only what we have

labeled as the third element of the Miller standard.

However, the Miller standard may be satisfied if the

* See note | supra.

12a

Appendix—Exhibit No. 1—Judgment.

Statute, as authoritatively construed, complies with all of

the requirements of Miller." We therefore, turn to past

constructions.

We have not previously construed this precise statutory

provision because it is part of the recently enacted Crimes

Code. However, the portion before us in this case is iden-

tical to a prior statute'’ which we construed in Common-

wealth v. LaLonde, 447 Pa. 364, 368 n. 4, 288 A.2d 782, 784

n. 4 (1972), to incorporate all of the requirements of the

then-understood requirements of the First Amendment:

“[T)hree elements must coalesce: it must be es-

tablished that

(a) the dominant theme of the material taken as a

whole appeals to a prurient interest in sex;

(b) the materia! is patently offensive because it aff-

ronts contemporary community standards relating to

the description of sexual matters; and

(c) the material is utterly without redeeming social

value.”

This construction satisfies four of the Miller require-

ments. Element (a) corresponds to requirement {3] of the

Miller standard. Element (b) insures that requirements [1]

and [4] are met. Finally, it is clear that if material is

“utterly without redeeming social value,” it must certain-

ly lack “serious literary, artistic, political, or scientific

value,” so that requirement [5] of the Miller standard is

met.

" 413 U.S. at 24, 93 S.Ct. at 2615.

- Act of June 24, 1939, P.L. 872, §524, as amended (formerly

codified as 18 PS. §4524 (1963)), repealed by Act of December 6,

1972, P.L. 1605, No, 334, §5.

eee wee

13a

Appendix—Exhibit No. |—Judgment.

However, as the Commonwealth concedes, nothing in

our prior construction of the statutory language satisfies

the remaining requirement of the Miller standard: “That

conduct [whose depiction or description is forbidder}

must be specifically defined by state law . . ..” 413 U.S

at 25, 93 S.Ct. at 2615. Compare 18 Pa.C.S. §5903(c)-(e).*'

'' Those subsections provide as follows:

“(c) Minors.—Iv shall be unlawful for any person knowingly to

sell or loan for monetary or other valuable consideration to a

minor:

(1) any picture, photograph, drawing, sculpture, motion pic-

ture film, or similar visual representation or image of a person or

portion of the human body which depicts nudity, sexual conduct,

or sadomasochistic abuse and which is harmful to minors, or

(2) any book, pamphlet, magazine, printed matter however

reproduced, or sound recording which contains any matter

enumerated in clause (1) hereof, or explicit and detailed verbal

descriptions or narrative accounts of sexual excitement, sexual

conduct, or sadomasochistic abuse and which, taken as a whole, is

harmful to minors.

“«d) Admitting minor to show.—It shall be unlawful for any

person knowingly to exhibit for monetary consideration to a minor

or knowingly to sell to a minor an admission ticket or pass or

knowingly to admit a minor for a monetary consideration to

premises whereon there is exhibited, a motion picture show or

other presentation which, in whole or in part, depicts nudity, sex-

ual conduct, or sadomasochistic abuse and which is harmful to

minors, except that the foregoing shall not apply to any minor ac-

companied by his parent.

“(e) Definitions.—As used in subsections (c) and (d) of this

section:

(1) ‘Minor’ means any person under the age of 17 years.

(2) ‘Nudity’ means the showing of the human male or female

genitals, pubic area, or buttocks with less than a fully opaque

covering, or the showing of the female breast with less than a fully

opaque covering of any portion thereof below the top of the

nipple, or the depiction of covered mate genitals in a discernibly

turgid state.

(Foc ‘note continued on following page)

l4a

Appendix—Exhibit No. 1—Judgment.

Thus, the way is not open for us to follow those jurisdic-

tions which have concluded that their statutes, as con-

strued prior to Miller, satisfy the standard there

delineated. '*

(Footnote continued from preceding page)

(3) ‘Sexual conduct’ means acts of masturbation, homosexu-

ality, sexual intercourse, or physical contact with a person's

clothed or unclothed genitals, pubic area, buttocks or, if such

person be a female, breast.

(4) ‘Sexual excitement’ means the condition of human male or

female genitals when in a state of sexual stimulation or arousal.

(5) ‘Sadomasochistic abuse’ means flagellation or torture by or

upon a person clad in undergarments, a mask or bizarre costume,

or the condition of being fettered, bound or otherwise physically

restrained on the part of one so clothed.

(6) ‘Harmful to minors’ means that quality of any description

or representation, in whatever form, of nudity, sexual excitement,

or sadomasochistic abuse, when it:

(i) predominantly appeals to the prurient, shameful, or morbid

interests of minors: and

(ii) is patently offensive to prevailing standards in the adult

community as a whole with respect to what is suitable material for

minors, and

(iii) is utterly without redeeming social importance for minors.

(7) ‘Knowingly’ means having general knowledge of, or reason

to know, or a belief or ground for belief which warrants further

inspection or inquiry of both:

(i) the character and content of any material described herein

which is reasonably susceptible of examination by the defendant:

and

(ii) the age of the minor: Provided, however, That an honest

mistake shall constitute an excuse from liability hereunder if the

defendant made a reasonable bona fide attempt to ascertain the

true age of such minor.”

'* People v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433 (2d

Dist. 1973), cert. denied, 418 U.S. 937, 94 S.Ct. 3225, 41 L.Ed.2d 1172

(1974). People v. Nissinoff, 43 Cal.App.3d 1025, 118 Cal.Rptr. 457 (ist

Dist. 1974): Slaton v. Paris Adult Theatre 1, 231 Ga. 312, 201 S.E.2d 456

(Footnote continued on following page)

15a

Appendix—Exhibit No. 1—Judgment.

The Commonwealth, however, requests that we now

construe section 5903(b) so that it will meet the require-

ments of Miller. It proffers two suggested constructions

which it contends would accomplish this purpose.

The first of the suggested constructions would adopt the

definition of “sexual conduct” contained in section

5903(e)(3) as a limit on the application of section 5903(a).

That definition provides:

“Sexual conduct’ means acts of masturbation,

homosexuality, sexual intercourse, or physical con-

tact with a person’s clothed genitals, pubic area, but-

* tocks or, if such a person be a female, breast.”

(Footnote continued from preceding page)

(1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173

(1974): Hall v. Commonwealth, 505 $.W.2d 166 (Ky. 1974). State ex rel.

Wampler v. Bird, 499 $.W.2d 780 (Mo. 1973). State v. Little Art. Corp.,

191 Neb. 448, 215 N.W.2d 853 (1974): State v. Harding, N.H., 320 A.2d

646 (1974) (semble) (may have modified construction sub silentio):

People v. Heller, 33: N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805

(1973) (semble) (same): State ex rel. Keating v. A Motion Picture Film

Entitled “Vixen”, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973). Price v.

Commonwealth, 214 Va. 490, 201 S.E.2d 798, cert. denied, 419 U.S.

902, 95 S.Ct. 186, 42 L.Ed.2d 148 (1974).

A number of the decisions listed above were based upon the dubious

premise that the requirement of specifically defined sexual conduct

added nothing to the prior test for ubscenity when that test was con-

sidered together with the requirement that a criminal statute give fair

warning of the prohibited conduct. Hall v. Commonwealth, supra. State

ex rel. Wampler v. Bird, supra. State v. Little Art, Corp., supra: Price v.

Commonwealth, supra. In light of the considerable effort expended on

discussion of the requirement of specific definition in the Miller opin-

ion, see 413 U.S. at 25-26, 93 S.Ct. at 2615, and the nature of the ex-

amples given of definitions which would satisfy the requirement, see

id. and discussion in text accompanying note 11 infra, we cannot

assume that this aspect of the Miller wsi is a nullity.

16a

Appendix—Exhibit No. 1—Judgment.

At first glance, this suggested use of a definition in one

subsection to give the necessary definiteness to another

subsection has considerable attraction. Compare Com-

monwealth v. Morgan, ........ eee er eee

331 A.2d 444, 446 (1975); 2A J. Sutherland, Statutes and

Statutory Construction §47.16 (4th ed. C. Sands 1973).

However, on more careful consideration, the suggested

construction proves unacceptable.

[2] The definitions contained in subsection (e) are

explicitly limited to use in subsections (c) and (d). By it-

self, this would not be an insurmountable obstacle to the

suggested construction, for it is our duty to so construe a

Statute as to sustain its validity if such a construction is

fairly possible. Statutory Construction Act, 1 Pa.C.S.

§1922(3) (Supp.1974); Bentman v. Seventh Ward

Democratic Executive Committee, 421 Pa. 188, 218 A.2d 261

(1966).

[3] What makes the suggested construction unac-

ceptable is the purpose of the limitation on the use of the

definitions in subsection (3). The provisions of the statute

to which the definitions apply'* restrict the availability of

sexually-oriented materials to persons under the age of 17

years, while the provision under consideration here

restricts the availability of obscene matter to adults. We

cannot presume that the General Assembly would wish to

restrict adults to receiving materials fit for children. As

Judge Learned Hand wrote in United States v. Kennerley,

209 F. 119, 121 (S.D.N.Y.1913):

“To put thought in leash to the average conscience of

the time is perhaps tolerable, but to fetter it by the

necessities of the lowest and least capable seems a

fatal policy.”

'* See note 8 supra.

= ee ee

17a

Appendix—Exhibit No. 1—Judgment.

The second construction suggested by the Common-

wealth derives from language in Miller itself. After stating

the applicable standard, the Court continued:

“We emphasize that it is not our function to

propose regulatory schemes for the States. That must

await their concrete legislative efforts. It is possible,

however, to give a few plain examples of what a state

statute could define for regulation under .. . the

standard announced in this opinion, supra:

(a) Patently offensive representations or descrip-

tions of ultimate sexual acts, normal or perverted,

actual or simulated.

(b) Patently offensive representation or descrip-

tions of masturbation, excretory functions, and lewd

exhibition of the genitals.”

413 U.S. at 25, 93 S.Ct. at 2615."*

In the companion case of United States v. 12 200-ft.

Reels of Super 8mm. Films, 413 U.S. 123, 93 S.Ct. 2665, 37

L.Ed.2d 500 (1973), which arose under a federal statute,

the Court remarked in a footnote:

“We further note that, while we must leave to state

courts the construction of state legislation, we do

have a duty toauthoritatively construe federal statutes

where ‘‘‘a serious doubt of constitutionality is

raised” ’ and ‘ “a construction of the statute is fairly

possible by which the question may be avoided.”’

'* The Court also cited “Oregon Laws 1971, c. 743, Art. 29, §§255-

262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session

Laws, Act 9, c. 12, pt. Il, pp. 126-129, as examples of state laws

directed at depiction of defined physical conduct, as opposed to ex-

pression.” 413 U.S. at 25 n. 6, 93 S.Ct. at 2615 n. 6 The pertinent

provisions of the Oregon statute are quoted in People v. Ridens, 59

I11.2d 362, 386, 321 N.E.2d 264, 276-77 (1974) (dissenting opinion).

18a

Appendix—Exhibit No. 1—Judgment.

[citations omitted] If and when such a ‘serious doubt’

is raised as to the vagueness of the words ‘obscene’,

‘lewd’, ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’

as used to describe the regulated material in [certain

federal statutes], we are prepared to construe such terms

as limiting regulated material to patently offensive

representations or descriptions of that specific ‘hard

core’ sexual conduct given as examples in Miller . ...”

Id. at 130 n. 7, 93 S.Ct at 2670 n.7.

The Commonwealth urges us to construe the word “ob-

scene,’’ as used in section 5903(b) to refer only to the type of

material indicated by the Supreme Court’s “examples.”'> We

conclude that we cannot so construe the statute, even to save

its validity.

[4] What the Commonwealth urges is not mere con-

struction but wholesale re-writing. The proposed con-

struction is not even a possible meaning of the words of

the statute when used in their ordinary senses. It draws no

'* This approach has been adopted by a number of jurisdictions.

Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974); Gibbs v. State, 255

Ark. 997, 504 S.W.2d 719 (1974); Rhodes v. State, 283 So.2d 351

(Fla.1973) (prospective application only); People v. Ridens, 59 Il.2d

362, 321 N.E.2d 264 (1974); Mangum v. Maryland State Bd. of Censors,

273 Md. 176, 328 A.2d 283 (1974); State v. Welke, 298 Minn. 402, 216

N.W.2d 641 (1974) (prospective application only), State v. DeSantis, 65

N.J. 462, 323 A.2d 489 (1974) (prospective application only); State v.

Bryant, 285 N.C. 27, 203 S.E.2d 27, cert. denied, 419 U.S. 974, 95 S.Ct.

238, 42 L.Ed. 2d 188 (1974); State v. Watkins, 262 S.C. 178, 203 S.E.2d

429 (1973), cert. denied, 418 U.S. 911, 94 S.Ct. 3204, 41 L.Ed.2d 1157

(1974), West v. State, 514 §.W.2d 433 (Tex.Cr.App. 1974), State v. J-R

Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973), cert. denied,

418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d 1166 (1974) (semble) (may

have been applying pre-Milier construction), State ex rel. Chobot v.

Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973).

19a

Appendix—Exhibit No. 1—Judgment.

support from either surrounding language in the same

statute, compare Commonwealth v. Morgan, ........ Pa.

, 331 A.2d 444, 446 (1975), 2A J.

Sutherland, Statutes and Statutory Construction §47.16

(4th ed. C. Sands 1973), or other statutes in pari materia,

see Statutory Construction Act, 1 Pa.C.S. §1932

(Supp.1974), 2A J. Sutherland, Statutes and Statutory

Construction, supra §45.11. Insofar as any intention of

the General Assembly is concerned, the proposed con-

struction is entirely arbitrary.

Even the necessity for stretching the statutory language

might not prevent adoption of a construction which would

preserve the validity of the statute were there only one

construction which would do so. This was the basis for

our former construction adding the elements of patent of-

fensiveness and utter lack of social value to those

specifically enumerated in the statute. See Commonwealth

v. LaLonde, 447 Pa. 364, 368 n. 4. 288 A.2d 782, 784-85 n.

4 (1972). The First Amendment, as then understood, for-

bade the enforcement of any regulation of obscenity

which faile¢ to include those elements in the definition.

In the present case, however, there are many possible

specific definitions of sexual conduct which might be

permissible under the First Amendment and we cannot

choose among them, in the absence of guidance from the

General Assembly, without intruding upon the legislative

province.

This point was succinctly put by Justice Calogero of the

Louisiana Supreme Court in State v. Shreveport News

Agency, La., 287 So.2d 464 (1974), where that court also

refused to redraft the obscenity statute before it to com-

ply with Miller.

20a

Appendix—Exhibit No. 1—Judgment.

“{T]he State here asks us to corstrue Louisiana’s

nonspecific, vague statute as prohibiting certain

specified conduct.

“But what, or which conduct? The State would

argue that we have several options. There are two

examples of such specifically described conduct in

the Miller decision itself. That would suffice. Or why

not the obscenity statute adopted by the State of

Hawaii, or the State of Oregon? They each have a

good one. Well, for that matter, why not engraft onto

Louisiana’s obscenity statute the specific conduct

outlined in the obscenity ordinance of the City of

New Orleans. After all, it was passed by the New Or-

leans City Council after, and in response to Miller,

and being a studied effort on their part may well

comply with the United States Constitutional

standards outlined in Miller.

e

. [W]e have properly concluded in our opi-

nion that it is not this Court’s province to write an

obscenity law for the State of Louisiana, but rather

the State Legislature’s.”

-Id., 287 So.2d at 472 (concurring opinion).

As a final consideration, it would be peculiarly inap-

propriate for us to engage in statutory draftsmanship

without legislative guidance, for we must ultimately pass

upon the validity of the resulting legislation under article

I, section 7 of the Pennsylvania Constitution. We

therefore decline to embark upon any such foray into the

legislative sphere. In so doing we join the position of our

2la

Appendix—Exhibit No. 1—Judgment.

own Superior Court'*® and the Supreme courts of several

other jurisdictions. '’

[5] We therefore conclude that section 5903(a) fails to

satisfy the Miller standard and therefore may not

constitutionally be applied unless and until it is amended

to specifically define the sexual conduct whose depiction

or description is to be regulated thereby.

[6] We next turn to the portion of the criminal com-

plaint charging violation of section 6504 of the Crimes

Code.'* This accusation was contained in count two of the

complaint, which read:

{Defendants} did set up and maintain a public and

common nuisance by exhibiting, or causing to be ex-

hibited, grossly obscene films for a consideration.

{The allegations regarding the nature of the films in

count one were then incorporated by reference. ]”

“ Commonwealth v. Winkleman, 230 Pa. Super. 265, 326 A.2d 496

(1974) (holding unconstitutional Act of June 24, 1939, P.L. 872, §528.

as amended (formerly codified as 18 P.S. §4528). repealed by Act of

December 6, 1972, P.L. 1605, No. 334, §5). The statute held

unconstitutional in Winkleman prohibited “any dramatic, theatrical,

operatic, or vaudeville exhibition or the exhibition of fixed or moving

pictures of an obscene nature.”

'? Mohnev v. State, Ind., 300 N.E.2d 66 (1973). State v. Wedelstedt,

lowa, 213 N.W.2d 652 (1973): State v. Shreveport News Agency, La., 287

So.2d 464 (1973): Commonwealth v. Horton, Mass., 310 N.E.2d 316

(1974): Art Theater Guild, Inc. v. State, Tenn., 510 $.W.2d 258 (1974).

'* See note 2 supra.

22a

Appendix—Exhibit No. 1_—Judgment.

Appellees contended in their motion to quash the com-

plaint that (1) the conduct described in the complaint

does not constitute a “common or public nuisance” within

the meaning of section 6504 and (2) the concept of “public

nuisance,” if used as a standard to restrict expression is

unconstitutionally vague and overbroad. The trial court

concluded that section 6504 could not constitutionaliy be

applied to the conduct charged in the complaint and

therefore quashed count two. We agree.

Section 6504 does not define the term “common or

public nuisance.” However, that section reenacts language

formerly contained in section 612 of the Penal Code."

Consequently, we must look to constructions of the prior

Statute to ascertain the meaning of section 6504. Statutory

Construction Act, 1 Pa.C.S. §§ 1922(4), 1962 (Supp. 1975).

However, past appellate cases involving criminal

prosecutions for maintaining a public nuisance have not

attempted to define the term. They have instead simply

decided whether to append the label “public nuisance”

without stating reasons for the decision. Generalization is

further hampered by the fact that the great buik of

these cases have concerned a single type of conduct:

* Act of June 24, 1939, P.L. 872, §612 (formerly codified as 18 P.S.

§4612 (1963)), repealed by Act of December 6, 1972, P.L. 1605, No.

334, §5. In addition to the provisions carried forward into §6504, §612

provided:

“All obstructions to private roads, laid out according to law,

shall be nuisances, which would be nuisances in cases of obstruc-

tions to public roads or highways.

“Whoever keeps or exhibits any gaming table, device or ap-

Paratus to win or gain money or other property of value, or

engages in gambling for a livelihood, or aids or assists others to do

so, or who sells tickets or policies in a fottery, is guilty of

nuisance.”

23a

Appendix—Exhibii No. 1—Judgment.

obstructing a public highway.” Nevertheless, it does

appear from the few cases involving other types of con-

duct?' that the offense is defined by reference to the cor-

responding common law crime.

Dean Prosser has briefly sketched the outlines of this

concept at common law:

2” Commonwealth v. Royce, 152 Pa. 88, 25 A. 162 (1892). Common-

wealth v. Hauck, 103 Pa. 536 (1883); Northern Central Ry. Co. v. Com-

monwealth, 90 Pa. 300 (1879): Barker v. Commonwealth, 19 Pa. 412

(1852), Commonwealth v. Church, 1 Pa. 105 (1845); Commonwealth v.

Milliman, 13 Serg. & R. 402 (Pa.1825); Commonwealth v. Passmore, |

Serg. & R. 217 (Pa.1814): Commonwealth v. Mock, 23 Pa.Super. 51

(1903): Commonwealth v. Plymouth Twp., 19 Pa.Super. 408 (1902).

Commonwealth v. Llewellyn, 14 Pa.Super. 214 (1900), Commonwealth v.

Shoemaker, 14 Pa.Super. 194 (1900); Commonwealth v. Jackson, 10

Pa. Super. 524 (1899); Commonwealth v. Cassell, | Pa.Super. 476 (1896).

2" Commonwealth v. Linn, 158 Pa. 22, 27 A. 843 (1893) (indictment

charging that the defendant “did, on the public streets and highways,

profanely curse and swear, and take the name of God in vain, to the

evil example and to the common nuisance of the good citizens . . . of

Pennsylvania” held insufficient to charge the crime in the absence of

an allegation that it was done “in the presence and hearing of citizens

of the Commonwealth passing and repassing on the public streets”);

Delaware Div. Canal Co. v. Commonwealth, 6 Pa. 367 (1869) (carelessly

maintaining canal so that water escaped and formed pools of stagnant

water producing “miasmic vapors” to the nuisance of the public held

indictable); Commonwealth v. Mohn, 52 Pa. 243 (1866) (being a “com-

mon scold” and uttering “wicked, scandalous and infamous words”

upon a public highway in the hearing of citizens with intent “to

debauch and corrupt” their morals held indictable), Commonwealth v.

Van Sickle, 4 Clark 104, 7 Pa.L.J. 104 (Sup.Ct. 1845) (maintaining a hog

pen within the timiis of a city held indictable), Commonwealth v.

McKarski, 208 Pa.Super. 376, 222 A.2d 411 (1966) (false allegation to a

police officer that defendant has been struck by a truck and injured

held not to constitute public nuisance).

24a

Appendix—Exhibit No. 1—Judgment.

“No better definition of a public nuisance has been

suggested than that of an act or omission ‘which ob-

structs or causes inconvenience or damage tu the

public in the exercise of rights common to all Her

Majesty’s subjects.’ The term comprehends a miscel-

laneous and diversified group of minor criminal of-

fenses, based on some interference with the interests

of the community, or the comfort or convenience of

the general public. It includes interferences with the

public health, as in the case of a hogpen, the keeping

of diseased animals, or a malarial pond; with the

public safety, as in the case of the storage of ex-

plosives, the shooting of fireworks in the streets,

harboring a vicious dog, or the practice of medicine

by one not qualified; with public morals, as in the

case of houses of prostitution, iilegal liquor establish-

ments, gambling houses, indecent exhibitions, bull-

fights, unlicensed prize fights, or public profanity;

with the public peace, as by loud and disturbing

noises, or an opera performance which threatens to

Cause a riot, with the public comfort, as in the case of

bad odors, smoke, dust and vibration; with public

coavenience, as by obstructing a highway or a

navigable stream, or creating a condition which

makes travel unsafe or highly disagreeable, or the

collection of an inconvenient crowd; and in addition,

such unclassified offenses as eavesdropping on a jury,

or being a common scold.”

W. Prosser, Law of Torts $88. at 583-85 (4th ed. 1971)

(emphasis added, footnotes omitted); accord, 2 R.

Anderson, Wharton’s Criminal Law & Procedure, §§ 819-40

(1957).*2 This Court has used essentially this standard in

“A nuisance as a criminal offense is the misconduct of the

defendant or his unreasonable use of his property with the result

that unreasonable annoyance, inconvenience, or injury is caused

the public.”

2 R. Anderson, supra §819, at 683-84.

25a

Appendix—Exhibit No. 1—Judgment.

passing upon civil actions to abate a public nuisance. E.

g., Common wed th v. Barnes & Tucker Co., 455 Pa. 392, 410-

14, 319 A.2d 871, 881-83 (1974) (discharge of acid mine

drainage held a public nuisance), Pennsylvania SPCA v.

Bravo Enterprises, 428 Pa. 350, 359-61, 237 A.2d 342, 348

(1968) (bullfighting held a public nuisance),;* Reid v.

Brodsky, 397 Pa. 463, 156 A.2d 334 (1959) (conduct of

taproom in residential neighborhood held a public

nuisance). **

We need not consider the serious problems of vagueness

which might arise from the general use of this standard in

criminal prosecutions, for it is clear that the standard for

determination of what constitutes a “common or public

nuisance” under section 6504 is considerably less specific

than that contained in section 5903, which we have al-

ready found defective under Miller. Consequently, Miller

forbids the use of section 6504 to criminally punish

” “Injury to the public is the essence of a public nuisance.” 428

Pa. at 360, 237 A.2d at 348.

- “*“Tt has been said that a ‘fair test as to whether a business

lawful in itself, or a particular use of property, constitutes a

nuisance, is the reasonableness or unreasonableness of conducting

the business or making the use of the property complained of in

the particular locality and in the manner and under the circum- ©

stances of the case.” . . . It has also been said: Whether the use is

reasonable generally depends upon many and varied facts. No

hard and fast rule controls the subject. A use that would be rea-

sonable under one set of facts might be unreasonable under

another. What is reasonable is sometimes a question of law, and at

other times, a question of fact. No one particular fact is con-

clusive, but the inference is to be drawn from all the facts, proved

whether the controlling fact exists that the use is unreasonable.”

26a

Appendix—Exhibit No. 1—Judgment.

expression on the basis of obscene content. Because no

other basis is offered for declaring the conduct charged in

the complaint to be a “common or public nuisance,” the

complaint must be quashed.

Having thus disposed of the criminal proceeding, we

turn to the action in equity. In that section the Com-

monwealth seeks an injunction against future display by

appellee, MacDonald of the two films involved in this ac-

tion on the ground that their exhibition constituted a

public nuisance. MacDonald filed preliminary objections

in the nature of a demurrer. The trial court sustained

these objections and dismissed the complaint on the

ground that the invalidity of the obscenity statute left “no

legal basis upon which the films in question can be deter-

mined to be obscene.” We affirm.

[7] Preliminary objections admit, for the purpose of

testing the sufficiency of the complaint, all properly

pleaded facts, but not conclusions of law. Ross v. Shawmut

Development Corp., .... Pa. ...., .... m.2, 333 A.2d 751,

752 n.2 (1975), Balsbaugh v. Rowland, 447 Pa. 423, 426,

290 A.2d 85, 87 (1972). The complaint contained al-

legations regarding the character of the films” and the

intention of MacDonald to continue displaying them.

With regard to the characterization of their display as a

public nuisance, it further alleged:

* Because our disposition of this case rests on grounds unrelated to

the content of these particular films, we need not consider these

allegations.

27a

Appendix—Exhibit No. 1—Judgment.

“The films mentioned above have been presented

by the Defendant as X-rated movies, but without

notice that they are, in fact, hard core pornographic

movies and the basest form of obscenity.

“The display of the above films constitute a public

nuisance for the following reasons:

A. They graphically portray perverted sexual acts

that tend to currupt and adversely affect the morals

and welfare of the public;

B. the owner obtains money for admission under the

false pretense that the films provide some socially

acceptable form of entertainment when the films

rather display obscene materials not protected by the

First Amendment of the Constitution of the

United States, and are utterly without redeeming

social value;

C. no warning concerning the true nature of the ob-

scene acts has been given by the Defendant prior to

the entry of members of the public;

D. under the law, children, when accompanied by

their parents, are permitted to view the film;

E. it is highly unlikely that the Commonwealth

would be able to successfully and safely prevent all

persons under the age of seventeen (17) years of age

from viewing the said film; [and]

F. the content and suggestions set forth in the films

are a danger to the public health and welfare.”

The Commonwealth urges three legal bases upon which

it contends an injunction may be founded: section 5903(h)

28a

Appendix—Exhibit No. 1—Judgment.

of the Crimes Code,** the Act of June 23, 1931,”’ and the

common law of public nuisance.** We shall consider these

in reverse order.

* 18 Pa.C.S. §5903(h) (1974). That subsection provides as follows:

“(h) Injunction—The district attorney of any county in which

any person sells, lends, distributes, exhibits, gives away or shows.

or is about to sell, lend, distribute, exhibit, give away or show, or

has in his possession with intent to sell, resell, lend, distribute,

exhibit, give away or show, any obscene literature, book, maga-

zine, pamphlet, newspaper, storypaper. paper, comic book,

writing, drawing, photograph, figure or image. or any written or

printed matter of an obscene nature, or any article or instrument

of an obscene nature, may institute proceedings in equity in the

court of common pleas of said county for the purpose of enjoining

the sale, resale, lending, distribution, exhibit, gift or show of such

obscene literature, book, magazine, pamphlet, newspaper. story-

paper, paper. comic book, writing, drawing, photograph, figure

or image, or any written or printed matter of an obscene nature, or

any article or instrument of an obscene nature. contrary tw the

provisions of this section, and for such purposes jurisdiction is

hereby conferred upon said courts. A preliminary injunction may

issue and a hearing thereafter be held thereon in conformity with

the Rules of Civil Procedure upon the averment of the district at-

torney that the saie, resale, lending, distribution, exhibit, gift or

show of such publication constitutes a danger to the welfare or

peace of the community. The district attorney shall not be re-

quired to give bond.”

* P.L. 1178. 68 P.S. §§467-73 (1965). The pertinent portions of the

Act provide as follows:

“Any building, or part of a building, used for the purpose of

fornication, lewdness, assignation, and/or prostitution is hereby

declared to be a common nuisance: and any person who maintains

such a common nuisance shall be guilty of a misdemeanor, and,

upon conviction, shall be sentenced to imprisonment for not more

than one year. or pay a fine not exceeding one thousand dollars. or

both, at the discretion of the court.”

Id. § 1, 68 P.S. §467.

(Footnote continued on following page)

a

29a

Appendix—Exhibit No. 1—Judgment.

{8} A thing may be a public nuisance because it is so

declared by statute, either explicitly*® or implicitly.®

Alternatively, it may be declared a nuisance as a matter of

common law if, though not prohibited by statute, it un-

reasonably interferes with the rights of the public.*' Be-

cause the statutes** referred to by the Commonwealth in-

junctions independently of the common law doctrine of

public nuisance, we need only consider whether the con-

duct alleged in the complaint constitutes a public nuisance

because it unreasonably interferes with the rights of the

public.

(Footnote continued from preceding page)

“An action to enjoin any nuisances defined in section one of this

act may be brought, in the name of the Commonwealth of Penn-

sylvania, by the Attorney General thereof or by the district at-

torney of the county concerned. Such action shall be brought and

tried as an action in equity in the court of common pleas of the

county.”

Id. §3, 68 P.S. §469.

* See notes 17-21 supra and accompanying text.

** See note 24 supra.

™ See Pennsylvania SPCA v. Bravo Enterprises, 428 Pa. 350, 359-61,

237 A.2d 342, 348 (1968) (bullfighting is public nuisance because

proscribed by statute, even though statute does not explicitly declare it

to be public nuisance).

* See Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 410-14, 319

A.2d 871, 881-83 (1974), (discharge of acid mine drainage). Reid v.

Brodsky, 397 Pa. 463, 156 A.2d 334 (1959) (conduct of taproom in a

residential neighborhood).

® These are section 5903 of the Crimes Code and the Act of June 23,

1931. See notes |, 23, & 24 supra.

30a

Appendix—Exhibit No. 1—Judgment.

[9] This precise theory of common law public

nuisance was urged in Grove Press, Inc. v. City of

Philadelphia, 418 F.2d 82 (3rd Cir. 1969), also an action to

enjoin exhibition of a motion picture. The Third Circuit,

in an opinion by Judge Aldisert, held that the First

Amendment forbade an injunction based upon such a

theory:

“We have concluded that as a_ standard for

regulating First Amendment rights, neither ‘injury to

the public,’ nor ‘unreasonableness,’ standing alone, is

sufficiently narrow or precise to pass constitutional

muster. Each is too elastic and amorphous a standard

by which to restrain the exercise of free expression.

What is encountered with the sprawling doctrine of

public nuisance is an attempt to restrict First Amend-

ment rights by means analogous to those under ‘a

statute sweeping in a great variety of conduct under a

general and indefinite characterization, and leaving

to the executive and judicial branches too wide a

discretion in its application.’ Cantwell v. Connecticut,

310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213

(1940).

“The common law of public nuisance may be a

perfectly valid method by which to implement a

state’s police power in certain defined circumstances

where, for example, it is used to restrain that which is

prohibited by other constitutionally appropriate

standards. It may not be used, however, both to

define the standards of protected speech and to serve

as the vehicle for its retraint.”

Id. at 88. We agree with this analysis and therefore hold

the Commonwealth is not entitled, under a theory of

common law public nuisance, to the injunction it seeks.

“' This disposition of the attempt to obtain an injunction based upon

a theory of common law public nuisance renders it unnecessary to

(Footnote continued on following page)

3la

Appendix—Exhibit No. 1—Judgment.

We next turn to the Commonwealth’s contention that an

injunction might issue in this case under the Act of June

23, 1931. That statute authorizes an injunction against the

use of any building “for the purpose of fornication,

lewdness, assignation, and/or prostitution.”** The Com-

monwealth urges that “lewd” is a synonym for “obscene”,

citing Black’s Law Dictionary, at 1052 (4th ed. 1957),*

and that the statute therefore forbids the use of a building

to exhibit obscene materials. We do not agree.

Far more important than mere dictionary definitions is

the statutory context in which the word “lewdness”

appears. See, e. g., Commonwealth v. Morgan, .... Pa.

ers , 331 A.2d 444, 446 (1975); 2A J. Sutherland,

Statutes ond Statutory Construction §47.16 (4th ed. C.

Sands 1973). That context proscribes use of any building

“for the purpose of fornication, . . . assignation, and/or

prostitution.” All of these forbidden purposes involve

illicit sexual conduct, thus strongly indicating a legislative

intention to proscribe only purposes of this type when it

(Footnote continued from preceding page)

decide the dispute between the parties as to the authority of the district

attorney to maintain an action in equity on such a theory. See Duggan

v. Guild Theatre, Inc., 436 Pa. 191, 195, 258 A.2d 858, 860-61 (1969)

(opinion announcing the judgment) (district attorney had implied au-

thority to seek injunction against exhibition of obscene motion pic-

ture).

See note 24 supra.

® The Commonwealth fails to mention that the definition continues:

“Lustful, indecent, lascivious, lecherous.” This sense of “lewd” is in

accord with the construction we adopt. Moreover the statutory term is

not “lewd” but “lewdness.” .-The primary definition of “lewdness”

given by the Commonwealth’s own authority is “gross and wanton

indecency in sexual relations.”

32a

Appendix—Exhibit No. 1—Judgment.

used the word “lewdness.” Such a construction has the

further advantage of obviating any problems of vagueness

which might be entailed by construing the term

“lewdness” in a broader fashion.

[10] We therefore hold that the Act of June 23, 1931,

proscribes only the use of a building for the purpose of

engaging in illicit sexual conduct. Because the complaint

does not allege that any building is being so used, there is

no basis for issuance of an injunction under the Act of

June 23, 1931.

[il] The final basis on which the Commonwealth

seeks to predicate an injunction is section 5903(h) of the

Crimes Code.*’ This section authorizes injunctive

proceedings to prevent the “exhibit . . . or show of

[any] obscene .. . photograph, figure or image.”

However, it relies upon the definition of obscene con-

tained in section 5903(b),** which we have held inade-

quate to satisfy the Miller standard. Consequently, if that

standard applies to injunctive proceedings as well as

criminal prosecutions, the Commonwealth’s action must

fail. We conclude that the Miller standard does apply to

injunctive proceedings. Therefore, the Commonwealth is

not entitled to an injunction under section 5903(h) in the

absence of a definition of obscenity which complies with

the requirements of Miller.

“ See generally Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct.

2294, 2298-99, 33 L.Ed.2d 222 (1972). and cases there cited: Note, The

Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev.

67 (1960). We clearly must construe this statute in light of the

vagueness doctrine because it makes the cc‘aduct described criminal in

addition to authorizing injunctive proceedings. g

* See note 23 supra.

™ See note | supra.

33a

Appendix—Exhibit No. 1—Judgment.

The starting point for our analysis must be Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed. 2d

446 (1973) [hereinafter Paris Adult Theatre]. Decided the

same day as Miller, Paris Adult Theatre was a case in which

the Georgia courts had concluded that exhibition of two

motion pictures should be enjoined on the ground of ob-

scenity. After rejecting the various arguments of the

petitioners to the effect that their conduct was immunized

from regulation by the First Amendment, the Supreme

Court vacated the judgment and remanded for further

proceedings:

“[N]othing precludes the State of Georgia from the

regulation of the allegedly obscene material exhibited

in Paris Adult Theatre I or II, provided that the ap-

plicable Georgia law, as written or authoritatively in-

terpreted by the Georgia courts, meets the First Amend-

ment standards set forth in Miller v. California, supra,

[413 U.S.] at 23-25 [93 S.Ct. at 2614-2616]. The

judgment is vacated and the case remanded to the

Georgia Supreme Court for further proceedings not

inconsistent with this opinion and Miller v. California,

supra. See United States v. 12 200-Foot Reels of Super

8mm. Film, [413 U.S.] at 130 n. 7 [93 S.Ct. at 2670 n.

1,

413 U.S. at 69-70, 93 S.Ct. at 2642 (emphasis added).

Both the language emphasized in the above passage and

the citation to United States v. 12 200-ft. Reels of Super

8mm. Film® clearly indicate that the Miller standard is

fully applicable to injunctive proceedings such as that in-

volved in Paris Adult Theatre. This conclusion is bolstered

by the fact that it represents the consensus of all jurisdic-

tions which have considered the standard to be applied in

™ The pertinent portion of, the cited footnote is set forth in text at

page 298 supra.

34a

Appendix—Exhibit No. 2—Docket Entries.

injunctive proceedings since the decision in Paris Adult

Theatre. See Slaton v. Paris Adult Theatre I, 231 Ga. 312,

201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S.Ct.

3227, 41 L.Ed.2d 1173 (1974), Hall v. Commonwealth, SOS

S.W.2d 166 (Ky. 1974); Mangum v. Maryland State Board of

Censors, 273 Md. 166, 328 A.2d 283 (1974), State ex rel.

Wampler v. Bird, 499 $.W.2d 780 (Mo.1973), State ex rel.

Keating v. A Motion Picture Film Entitled “Vixen”, 35 Ohio

St.2d 215, 301 N.E.2d 880 (1973); Art Theatre Guild, Inc.

v. State, Tenn., 510 S.W.2d 258 (1974).

Because the definition of obscenity applicable in

proceedings under section 5903(h) is inadequate to satisfy

the Miller standard, the First Amendment forbids issuance

of any injunction under that section unless and until an

adequate definition is supplied by the General Assembly.

Order quashing criminal complaint affirmed. Decree

dismissing complaint in equity affirmed. Each party pay

own costs.

EAGEN, O'BRIEN and NIX, JJ., concur in the result.

JONES, C. J., dissents.

MANDERINO, J., did not participate in the considera-

tion or decision of these cases.

Exhibit No. 2.

DOCKET ENTRIES.

Complaint in Equity filed. Rule filed.

And now, to wit, this 30th day of April, 1974, a rule is

granted upon the Defendant, Charles McDonald, to show

cause why a Preliminary Injunction and the other relief

requested should not be granted as prayed for.

35a

Appendix—Exhibit No. 2—Docket Entries.

This rule shall be returnable on the 13th day of May,

1974, By the Court, Robert I. Shadle, Judge.

May 1, 1974, Served the within complaint in Equity

upon the defendant, Charles McDonald. So answers,

Oliver C. Nace, Sheriff.

May 10, 1974, Preliminary Objections filed. Harold N.

Fitzkee, Jr. and Donn I. Cohen, Attorneys for Defendant.

June 7, 1974, Opinion and Order filed.

And now, to wit, this 7th day of June, 1974, defendants

preliminary objection in the nature of a demurrer to

plaintiff's complaint is sustained and the complaint is

dismissed. An exception is noted for plaintiff. By the

Court, Robert I. Shadle, Judge. (Vide Opinion and Order

filed).

August 5, 1974, Certiorari to the Court of Common

Pleas of York County, Penna. from the Commonwealth of

Pennsylvania Supreme Court, Returnable Forthwith, Rule

on the Appellee, to appear and plead on the return-day of

the writ to No. 34 May Term 1974. Witness, The Honora-

ble Benjamin R. Jones, Doctor of Laws, Chief Justice of

our said Supreme Court at Harrisburg, the 11th day of

June in the year of our Lord one thousand nine hundred

and seventy four.

Certified from the records of the Court of Common

Pieas of York County, Pennsylvania this 14th day of

August, A. D., 1974.

SAMUEL F. MEISENHELDER,

(Seal) Prothonotary.

36a

Appendix—Exhibit No. 3—Complaint.

Served the within Complaint in Equity upon Charles

McDonald the within named defendant by handing to and

leaving with him a true and attested copy of the same at

Yorktowne Motor Inn (Room 827), York, Penna. at 9:00

O’clock A.M., May 1, 1974 and informed him of the con-

tents thereof.

Sheriff’s Costs $11.23 Paid.

So Answers, Oliver C. Nace, Sheriff of York County.

Sworn to this 17th day of May, 1974.

S. F. MEISENHELDER,

Prothonotary.

Exhibit No. 3.

COMPLAINT.

(Filed April 30, 1974.)

3

The Plaintiff is the Commonwealth of Pennsylvania, and

this action is filed by Donald Ly Reihart, District At-

torney of York County, on behalf. of the said Plaintiff.

2.

The Defendant is Charles McDonald, an adult individual,

and owner of the premises located at 30 East Jackson

Street, York, York County, Pennsylvania, known as the

Southern Theatre.

37a

Appendix—Exhibit No. 3—Complaint.

3.

On April 17 and April 18, 1974, the Defend int obtained,

advertised and displayed two films. These films were en-

titled “Deep Throat” and “The Devil and Miss Jones”’.

Both these films were shown as part of a double feature at

the Southern Theatre in York, York County, Penn-

sylvania.

4.

A. “Deep Throat” is a sound motion picture in color

with a running time of about one hour. The film portrays

a woman who repeatedly perpetrates acts of fellatio.

These acts are clearly displayed. In one scene, two nude

males and one nude female engage in various sexual acts

including cunnilingus and fellatio. In this movie there is

the repeated showing of human male and female genitals

in a state of sexual excitement.

B. The sexual scenes depicted appeal to the prurient in-

terests, are patently offensive and have no serious

literary, artistic, political or scientific value.

C. The said movie is obscene as obscenity has been

defined by the Supreme Court of the United States in

Miller vs. California, 93 S. Ct. 2607 (1973), and constitutes

hard core pornography.

5.

A. “The Devil and Miss Jones” is also a sound motion

picture in color with a running time of approximately one

hour. This film is about a virgin who committed suicide

and was sent to a “reviewer” in hell. It was the reviewer’s

purpose to determine what should happen to Miss Jones.

38a

Appendix—Exhibit No. 3—Complaint.

Miss Jones isudicated she wanted to go back and live for

a little more time “Just for lust”. She was introduced to a

man who called himself the “teacher”. The teacher taught

her various sexual acts. In film she graphically engages in

acts of fellatio, cunnilingus and in one scene she sucks

upon the head of a live snake. This film has scenes where

fruit, such as apples and grapes, are placed into the

vagina and rectum, and then removed and eaten.

B. The sexual scenes depicted appeal to the prurient in-

terests, are patently offensive and have no serious

literary, artistic, political or scientific value.

C. The said movie is obscene as obscenity has been de-

fined by the Supreme Court of the United States in Miller

vs. California, 93 S. Ct. 2607 (1973), and constitutes hard

core pornography.

6.

The films mentioned above have been presented by the

Defendant as X-rated movies, but without notice that they

are, in fact, hard core pornographic movies and the basest

form of obscenity.

7.

The Defendant desires to show these films and there is

evidence that copies are available to him.

8.

The display of the above films constitute a public

nuisance for the following reasons:

A. They graphically protray perverted sexual acts that

tend to corrupt and adversely affect the morals and wel-

fare of the public;

39a

Appendix—Exhibit No. 3—Complaint.

B. the owner obtains money for admission under the

false pretense that the films provide some socially accep-

table form of entertainment when the films rather display

obscene materials not protected by the First Amendment

of the Constitution of the United States, and are utterly

without redeeming social value;

C. no warning concerning the true nature of the obscene

acts has been given by the Defendant prior to the entry of

members of the public;

D. under the law, children, when accompanied by their

parents, are permitted to view the film;

E. it is highly unlikely that the Commonwealth would be

able to successfully and safely prevent ail persons under

the age of seventeen (17) years of age from viewing the

said film,

F. the content and suggestions set forth in the films are a

danger to the public heaith and welfare.

9.

On April 18, 1974 following the most recent procedural

guidelines set down by the Supreme Court of the United

States, the above films were seized pursuant to a search

warrant lawfully obtained by a member of the York City

Police Department. The Defendant was charged with a

violation of Sections 5903 and 6504 of the Crimes Code of

Penn«ylvania.

10.

The new Supreme Court guidelines require an adversary

hearing on a question of obscenity to be held promptly.

40a

Appendix—Exhibit No. 3—Complaint.

Under the criminal procedures currently in effect in the

Commonwealth of Pennsylvania, there is no prompt way

that an adversary hearing can be established by the

Commonwealth.

12.

The sale, re-sale, lending, distribution, exhibition, gift or

display of such films as set forth above constitutes a

danger to the welfare and peace of the community.

13.

There is no adequate remedy at law.

14.

The District Attorney of York County has standing to

bring this suit by virtue of the Act of July 5, 1957, P.L.

484, No. 275, Sec. 1; the Act of December 6, 1972, P.L.,

No. 334, Sec. 1; and as a necessary power of the Office of

District Attorney.

WHEREFORE, the Plaintiff prays:

A. That the preliminary hearing be scheduled prompt-

ly to determine whether the films set forth above are ob-

scene;

B. that a preliminary hearing be scheduled promptly

to determine whether the showing of said films constitutes

a public nuisance;

C. that following such a hearing that a preliminary

injunction issue barring the Defendant from exhibiting

said films until a final hearing can be held;

4la

Appendix—Exhibit No. 3—Complaint.

D. that following an appropriate hearing the Court grant

an injunction to enjoin and forever bar the said Devendant

from advertising and displaying to the public the films above

described;

E. such other equitable relief as the Court deems

necessary and proper.

DONALD L. REIHART,

District Attorney of

York County.

Commonwealth of Pennsylvania, es.:

County of York.

Personally appeared before me, Clair R. Stine, Clerk of

Courts in and for the said County and State, Donald L.

Reihart, Esq., District Attorney in and for York County,

Pennsylvania, who, being duly sworn according to law,

deposes and says that the facts set forth in the foregoing

Answer are true and correct to the best of his knowledge,

information and belief.

DONALD L. REIHART, ESQ.,

District Attorney.

Sworn and subscribed to before me this 29th day of

April, 1974.

CLAIR R.. STINE,

(Seal) Clerk of Courts.

42a

Appendix—Exhibit No. 4—Preliminary Objections.

Rule.

AND NOW, TO WIT, this 30 day of April, 1974, a Rule

is granted upon the Defendant, Charles McDonald, to

show cause why a Preliminary Injunction and the other

relief requested should not be granted as prayed for.

This Rule shall be returnable on the 13 day of May,

1974.

BY THE COURT,

ROBERT I. SHADLE, J.

Exhibit No. 4.

PRELIMINARY OBJECTIONS.

(Filed May 10, 1974.)

PETITION RAISING QUESTION OF JURISDICTION

1. Section 5903(h) of the Pennsylvania Crimes Code,

Act of December 6, 1972, P.L. ...., No. 344, Sec. 1, 18

C.P.S.A. Sec. 5903(h) (hereinafter called the “Statute”),

purports to create equitable jurisdiction to enjoin the sale,

resale, lending, distribution, exhibit, gift, or show of cer-

tain things enumerated therein under the circumstances

defined and described in the Statute.

2. The Statute does not mention, refer to, or confer

jurisdiction with regard to motion pictures.

3. The Statute is unconstitutional in that it violates the

Defendant’s rights under the First, Fourth, Fifth, and

Fourteenth Amendments to the Constitution of the United

States.

43a

Appendix—Exhibit No. 4—Preliminary Objections.

4. The procedure set forth in the Statute is uncon-

Stitutional and provides no constitutional basis for an ac-

tion in equity. Gundlach v. Rauhauser, 304 F. Supp. 962

(M.D. Pa., 1969).

5. The procedure adopted by the plaintiff in the

within action lacks constitutional authority and provides

no constitutional basis for an action in equity. Duggan v.

807 Liberty Avenue, Inc., 447 Pa. 281, 288 A.2d 750 (1972).

WHEREFORE, Defendant moves Your Honorable

Court to dismiss the Complaint in that this Court lacks

jurisdiction.

DEMURRER

6. The Complaint fails to set forth what, if any,

community standards relating to the representation of

sexual matters are to be followed in determining the ob-

scenity vel non of the within motion pictures; unless

community standards relating to the representation of

sexual matters are referred to and proved, the application

of the Statute to Defendant is constitutionally barred.

7. The Statute does not apply to motion pictures, and,

further, is violative of the Defendant’s rights under the

First, Fourth, Fifth, and Fourteenth Amendments to the

Constitution of the United States.

WHEREFORE, Defendant moves Your Honorable

Court to dismiss the Complaint in that it fails to state a

constitutional cause of action against the Defendant.

8. The Complaint contains no allegation or allegations

setting forth facts averring conduct on the part of the

Defendant constituting a public nuisance.

44a

Appendix—Exhibit No. 4—Preliminary Objections.

9. The Complaint fails to allege that Plaintiff has suf-

fered or will suffer irreparable harm.

WHEREFORE, Defendant moves Your Honorable

Court to dismiss the Complaint in that it fails to set forth

a cause of action in equity against the Defendant.

10. The Complaint fails to set forth a cause of action

against the Defendant upon which the Plaintiff is entitled

to relief or upon which the Court may act.

WHEREFORE, Defendant moves Your Honorable

Court to dismiss the Complaint in that it fails to set forth

a cause of action against the Defendant.

PETITION RAISING DEFENSE OF LACK OF

CAPACITY TO SUE

11. No authority exists for the District Attorney of

York County to bring this action either in the name of the

Commonwealth or in his own name.

WHEREFORE, Defendant moves Your Honorable

Court to dismiss this action on account of Plaintiff’s lack

of capacity to sue.

PETITION BASED ON PRIOR STAY ORDER

12. On April 26, 1974, Your Honorable Court issued a

Stay Order directing, in effect, a stay of all proceedings

arising out of the showing of the motion pictures in ques-

tion pending determination by Your Honorable Court of

certain motions filed by the Defendant.

13. This equity action on the part of the District At-

torney violates Your Honorable Court’s prior Stay Order. °

4Sa

Appendix—Exhibit No. 4—Preliminary Objections.

WHEREFORE, Defendant moves Your Honorable

Court to dismiss this action as violative of its prior Stay

Order.

In The Alternative

MOTION FOR A MORE SPECIFIC PLEADING

14. The Complaint fails to set forth what, if any,

community standards relating to the representation of

sexual matters are to be followed in determining the ob-

scenity vel non of the within motion pictures; unless

community standards relating to the representation of

sexual matters are referred to and proved, the application

of the Statute to Defendant is constitutionally barred.

WHEREFORE, in the alternative, Defendant moves

Your Honorable Court to direct Piaintiff to file a more

specific pleading setting forth what, if any, community

standards relating to the representation of sexual matters

are to be followed in determining the obscenity vel rion of

the within motion pictures.

Respectfully submitted,

LIVERANT, SENFT AND

*» COHEN,

By Donn I. Cohen.

GAILEY, FITZKEE AND

GATES,

By Harold N. Fitzkee, Jr.

46a

Appendix—Exhibit No. 5—Opinion.

Exhibit No. 5.

OPINION.

(Filed June 7, 1974.)

IN THE COURT OF COMMON PLEAS

Of York County, Pennsylvania

COMMONWEALTH OF PENNSYL- }

VANIA,

>

Vs.

CHARLES MacD NALD. ;

Civil Action

No. 34 May Term, 1974

Equity

Appearances:

Donald L. Reihart, Esquire, District Attorney, for

Plaintiff.

Harold N. Fitzkee, Jr., Esquire, and Donn I. Cohen,

Esquire, for Defendant.

The Commonwealth of Pennsylvania, acting through the

District Attorney of York County, instituted this action in

equity, alleging that defendant displayed, and desires to

continue to display, two motion picture films alleged by

plaintiff to be obscene and to therefore constitute a public

nuisance. The complaint prays that defendant be both

preliminarily and permanently enjoined from such ex-

hibition. The action is brought under Section 5903 (h) of

the Crimes Code of December 6, 1972, P.L. ..... No.

334, 18 C. P. S. A. 5903, which prohibits exhibition of

47a

Appendix—Exhibit No. 5—Opinion.

obscene material as therein defined, and authorizes such

injunctive proceeding to prevent such exhibition. Defen-

dant filed preliminary objections to the complaint, alleg-

ing, inter alia, that it fails to state a cause of action upon

which relict can be granted because the statutory section

upon which it is based is constitutionally invalid. The

issue was submitted on briefs by both parties.

In an opinion filed this date in this court in Com. v.

MacDonald, et al., Criminal Action No. M-24, January

Sessions, 1974, we held Section 5903 of the Crimes Code

to be unconstitutional on the ground that it fails to define

obscenity as required by Miller v. California, 413 U. S. 15,

37 L. Ed(2d) 419 (1973).

Consequently, there being no legal basis upon which the

films in question can be determined to be obscene, there is

no ground upon which defendant can be enjoined from

exhibiting them for that reason.

Order.

AND NOW, TO WIT: This 7th day of June, 1974,

defendant’s preliminary objection in the nature of a

demurrer to plaintiff's complaint is sustained, and the

complaint is dismissed. An exception is noted for plain-

tiff.

BY THE COURT:

ROBERT I. SHADLE,

Judge.