# Appendix — Ad Hoc '78 v. Rouse Philadelphia, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0494%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1004 ## Text u, ‘elo f yg FILED 80-A77 SEP 25 1980 No. ments ne oe tes IN THE Supreme Court of the United States October Term, 1980 AD HOC ’78, T. MILTON STREET, Petitioners, v. ROUSE PHILADELPHIA INC.; REDEVELOPMENT AUTHOR- ITY OF THE CITY OF PHILADELPHIA; GIMBEL BROTHERS, INC.; and the GIMBEL BROTHERS REALTY CORPORATION, Respondents. On Writ of Certiorari to the Superior Court of Pennsylvania APPENDIX TO PETITION FOR WRIT OF CERTIORARI GeorcE D, GouLp CoMMUNITY LEGAL SERVICES, INC. Sylvania House Juniper and Locust Streets Philadelphia, Pennsylvania 19107 (215) 893-5306 Counsel for Petitioner Ad Hoc ’78 Joun F. STREET 801 One Penn Square Building Philadelphia, Pennsylvania 19107 (215) LO 8-1670 Counsel for Petitioners T. Milton Street and Ad Hoc ’78 International Printing Co., 711 So. 50th St., Phila., Pa, 19143 — Tel. (215) 727-8711 TABLE OF CONTENTS OF APPENDIX. Opinion of the Superior Court of Pennsylvania ........ Al Opinion Sur Motion for Preliminary Injunction of the Court of Common Pleas of Philadelphia County, EIN, vc ccceescccesensseresessscosees A21 Decree and Order of the Court of Common Pleas of Philadelphia County, Trial Division, Dated January Eek hads ee ee vases vaesisvecasesess A66 Findings of Fact and Conclusions of Law of the Court of Common Pleas of Philadelphia County, Trial EGE cap bess bereeseavecsersvccceenoens A69 Supplemental Opinion Sur Motion for Preliminary In- junction of the Court of Common Pleas of Phila- delphia County, Trial Division ................++. Alll Order and Decree of the Court of Common Pleas of Philadelphia County, Trial Division, Dated February aa ieee ee ees eberceneeessenseuees A159 Order of the Supreme Court of Pennsylvania Denying Petition for Allowance of Appeal ................ A163 Judgment of the Superior Court of Pennsylvania ...... A164 Questions Presented for Review, Petition in Supreme Court of Pennsylvania ...............seeseevees A166 Appendix. OPINION OF THE SUPERIOR COURT OF PENNSYLVANIA AS CORRECTED.° IN THE SUPERIOR COURT OF PENNSYLVANIA Nos. 380, 390 & 444, OcroBeR TERM, 1979 J. 24/1979 ROUSE PHILADELPHIA INC. and REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, Plaintiffs, and GIMBEL BROTHERS, INC. and GIMBEL BROTHERS REALTY CORP., Intervening Plaintiffs, v. AD HOC ’78 and T. MILTON STREET AS AN INDIVIDUAL AND AS A REPRESENTATIVE OF AD HOC ’78 THE UNIN- CORPORATED ASSOCIATION OF PERSONS ACTING IN CONCERT TO BLOCK INGRESS TO AND EGRESS FROM THE GALLERY AT MARKET EAST and * Incorporating corrections contained in letter from Prothono- tary dated January 3, 1980. (Al) A2 Pa. Superior Court Opinion JOHN DOE AND JANE DOE and ALL OTHER PERSONS ACTING IN CONCERT WITH THE NAMED PARTICIPANTS OR OTHERWISE PARTICIPATING IN THEIR AID, Appellants APPEALS FROM THE ORDERS OF THE COURT OF CoMMON PLEAS OF PHILADELPHIA County, Aucust TERM, 1978, No. 4145, GRANTING A PRELIMINARY INJUNCTION AND Ho.pinc T. MILTON STREET IN CiviL CONTEMPT oF CourRT. Berore: VAN Der Voort, WaTKINs and LipEz, JJ. Opinion by Watkins, J. (Filed December 28, 1979) This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Civil Division, and involves defendant’s appeal from an Order of the court below holding him in civil contempt of court. De- fendant was also fined Five Thousand ($5,000.00 ) Dol- lars which fine was made payable to the City of Phila- delphia within six (6) months. On August 25, 1978, the defendant, T. Milton Street, and a large group of persons estimated to be from three to five thousand (3000 to 5000) strong, massed at various locations in and around the entrances to a downtown shopping mall in Center City Philadelphia known as The Gallery. They also converged on Gimbels Department Store located in the same area. Ingress and egress to Pa. Superior Court Opinion A3 both The Gallery and Gimbels was rendered difficult and, at times, impossible, by the group's activities. The defendant and three to five hundred (300 to 500) of the demonstrators then entered The Gallery and marched throughout the mall shouting in loud voices and bringing business therein to a virtual standstill. The de- fendant spoke to the throng with the aid of sound amplifi- cation equipment and urged a boycott of the business in the mall. A temporary restraining order was promulgated by the court below on August 26, 1978, and on January 31, 1979, the court below entered an order enjoining the de- fendant and the persons acting in concert with him from “picketing, handbilling, speechmaking, demonstrating, and boycotting inside or outside The Gallery or Gimbels ” The court defined the area from which defendants were enjoined from engaging in the aforesaid activities as “the public areas therein [The Gallery and Gimbels], or any of the three colonnades located outside the entrance to Gimbels, or the exterior courtyard area, or the sidewalk which forms the immediate perimeter surrounding The Gallery, Gimbels and Strawbridge Store.” On February 22, 1979, the defendant and thirty-seven (37) other persons were arrested at The Gallery for al- legedly violating the January 31, 1979 injunction decree. A hearing was then held at which witnesses testified that: Street and two hundred and fifty (250) to three hundred (300) people had congregated on the northeast corner of 10th and Market Streets in Philadelphia, in front of The Gallery and Gimbels; they also had congregated on the sidewalk and in the colonnades area of the mall; the group shouted and blocked the entrance to The Gallery and Gimbels; because they stood close together they were suc- cessful in preventing people from entering the stores; that during the incident members of the defendant's group A4 Pa. Superior Court Opinion chanted and shouted “boycott” to persons attempting to enter The Gallery; that a police officer, who had been em- powered to enforce the court order enjoining the dem- onstration gave the defendant Street and his attorney copies of the January 31, 1979 order; that an officer then read the court order to the group using sound amplifica- tion equipment but the group continued to shout and chant “boycott” as the order was read to them; and that after giving the group five minutes to disburse the police arrested defendant Street and thirty-seven (37) of his followers. At the hearing defendant Street was given the opportunity to address the court and informed the court that despite the court order he intended “to go back to The Gallery tomorrow’. On February 23, 1979, defendant Street went to The Gallery again and led a group of demonstrators onto the northeast corner of 10th and Market Streets. After being notified of the defendant’s actions the court ordered the arrest of persons violating the January 31, 1979 Order. Street was one of the persons arrested. A hearing was held at 1:30 P. M. on February 23, 1979. Testimony ad- duced at the hearing revealed that at 11:20 A. M., the defendant led a group of thirty-five (35) protestors to the northwest corner of 10th and Market Streets then crossed the intersection. The group was shouting “boycott, boy- cott” throughout the incident. As the police attempted to read the court order of January 31, 1979 to them, the group marched east on the north side of Market Street for a distance of approximately twenty (20) feet then turned around and marched back to the northeast corner. This area lies in front of The Gallery. The defendant then led his group to a SEPTA boarding island which runs east to west in the 900 block of Market Street on the north side and is about twenty (20) feet from the sidewalk. During this period the group continued to chant “boycott, Pa. Superior Court Opinion A5 boycott, boycott The Gallery”, which chanting was clearly audible to persons located at the entrance to aud on the sidewalk in front of The Gallery. At this point defendant and his followers were arrested. After the hearing, the defendant was found in civil contempt of court and was committed for ninety (90) days, conditioned upon his right to purge himself of the contempt by assuring the court that he would, in the fu- ture, abide by the court order until such order was vacated or stayed. He was also fined Five Thousand ($5,000) Dollars. On February 26, 1979, Street filed an appeal to this Court. Defendant’s first argument is that the court order prohibiting the “picketing, handbilling, speechmaking, demonstrating and boycotting of The Gallery” constituted an unconstitutional violation of defendant’s First Amend- ment rights of freedom of speech and expression. De- fendant’s brief states at length defendant’s belief that certain federal monies used in the construction of the downtown shopping mall should have been used instead to provide for low-income housing for residents of North Central Philadelphia. Defendant also claims that his pro- test was justifiable because he was protesting the fact that only one business in the mall was black owned. Defend- ant claims that since The Gallery is owned by The Rede- velopment Authority of Philadelphia (RDA) that his boy- cott was one of a public building. However, the RDA leased the mall to Rouse Corporation for ninety-nine (99) years and Rouse, in turn, rents individual space within the mall to ninety-four (94) private owners. Thus, it is ap- parent that The Gallery is indeed comprised of ninety- four (94) private businesses and boycotting or picketing of it constitutes the boycotting or picketing of private busi- ness. Gimbels and Strawbridge and Clothier are private businesses and own the building adjacent to the mall in A6 Pa. Superior Court Opinion fee simple. Under such circumstances we find that the demonstrations in question were clearly directed at private businesses. Defendant also argues that the court order was not lawful because the objective of the boycott was “to com- municate a message to government regarding the expendi- ture of public monies”. At the various hearings held on this matter it was shown that: the demonstrators shouted and chanted so loudly that normal conversation was im- possible anywhere in the vicinity; that the group occupied virtually all of the walkways, stairs, and escalators in The Gallery; that the demonstrators carried umbrellas and signs which they brandished in a vigorous fashion; that a group of the demonstrators sat down and sprawled in the walkways of The Gallery and in the “Market Fair” area of the mall which is an area containing approximately twenty (20) fast food restaurants in the western end of the mall; that when so situated they listened to and gave speeches over amplifying equipment and stood on tables in the restaurants thereby denying patrons of ingress and egress to the area; that as a result of this activity shops in the mall closed, patrons left the area and business in the mall and other stores was brought to a virtual standstill. It was also shown that on certain occasions during the demonstration several demonstrators had entered a Mc- Donald’s restaurant in the mall and had told patrons that the food was horsemeat and had maggots in it. Ata bakery in the mall (Tiffany’s) disparaging remarks about the quality of food were also made to the store's patrons and one demonstrator stuck her finger in her nose and then touched the produce. Several demonstrators had engaged in violent incidents during the picketing. One demonstrator, a Terrence Potter, had tripped the owner of the bakery during a demonstration. A group of demon- strators then gathered in front of the bakery and shouted wd Pa. Superior Court Opinion A7 obscene comments and racial slurs at the owner. Potter had also threatened to beat up another merchant in the mall. Another demonstrator, Harry Miller, had threatened to break a merchant’s jaw. A group of demonstrators also threatened an elderly female patron of the mall telling her to get out of there “while she could still walk”. The demonstrators also ignited a number of fires throughout the mall by igniting the refuse in trash receptacles located throughout the mall. It was also proven that Street had forged a copy of the court order of October 6, 1978 and had distributed copies of the forged order throughout the throng. The forged document distorted the court order so as to convey the impression that it was leafletting ma- terial. Street and other demonstrators had given several speeches in which they stated that the purpose of the demonstration was to bankrupt merchants in The Gallery and Gimbels. They also demanded “reparations” from Rouse, Gimbels and the other merchants. They demanded that appellees pay money to black, Spanish-speaking and poor white neighborhoods as “reparations” for the money spent by the Redevelopment Authority on the mall. Appellant’s contention that he did not violate the Jan- uary 31, 1979 order of court is patently frivolous. Street claims that by moving the demonstration from The Gal- lery and Gimbels to the medial strip of Market Street, about twenty feet (20) away from the proscribed area, he complied with the court order. On February 22, 1979, Street and his followers picketed and demonstrated on the sidewalks outside The Gallery, Gimbels and Strawbridge and Clothier in direct defiance of the court order. The fact that they later moved to a location twenty (20) feet away from the sidewalk does not alter the fact that they directly violated the order by demonstrating on the side- walk outside The Gallery. In fact, Street had stated in open court that he intended to go back to The Gallery A8 Pa. Superior Court Opinion despite the order. To argue now that he was not aware of the scope of the court order and did not knowingly violate it extends the imagination to incredible limits. We find that Street and his followers did indeed violate the court order of January 31, 1979 on February 22 and Feb- ruary 23, 1979. Appellant also contends that the court order was un- constitutional because it was overly broad and because it violated appellant’s right to freedom of expression. The value to an open society derived from the free flow of ideas is self-evident. For that reason courts have been loathe to sanction any measure which infringes upon a person’s right to communicate his ideas. Pure speech therefore is a right which is to be zealously preserved in our society. However, as a person's activities move away from pure speech and into the area of expressive conduct they require less constitutional protection. As the mode of expression moves from the printed page or from pure speech to the commission of public acts the scope of per- missible regulation of such expression increases. See U. S. v. O'Brien, 391 U. S. 367, 88 S. Ct. 1673, 20 L. ed. 2d 672 (1968); Commonwealth v. Winkleman, 230 Pa. Superior Ct. 265, 326 A. 2d 496 (1974). It should be noted that in our case the very purpose of the court order was not to limit the expression of the ideas appellants were attempt- ing to communicate but was to limit the conduct by which the appellants chose to communicate their ideas. It is apparent that in a highly technological, civilized society a person or group of persons cannot justify participation in any type of conduct, without any limits at all, merely because they allege that their conduct has a higher, sym- bolic purpose which, they allege, brings it within the ambit of protection afforded to free speech. The closing of private business by blocking the entrances thereto with the avowed purpose of bankrupting those businesses, loud Pa. Superior Court Opinion A9 abusive language including the use of obscenities and racial slurs, physical intimidation of patrons and _ store owners, and: the setting afire of trash receptacles in a densely populated, downtown, commercial area are all ac- tivities which cannot be justified by the appellants’ claims that they did these things in order to protest the allocation of government funds to one areas rather than to another. Certainly neither the businesses in The Gallery nor their owners have the power to direct the city to allocate more funds to other areas. Nor can they effectively bring about the ownership of more businesses by blacks. What ap- pellants seem to be saying here is: “if we cannot obtain government funding for our projects then we will destroy those projects which do receive such funding’, and “if members of our racial group do not own as many busi- nesses as we think they should own then we will bankrupt businesses owned by others”. Appellants then clothe their attempts to destroy the businesses and other governmental projects under the guise of free speech. Of course, appel- lants have every right to lobby for the benefits of govern- ment largesse. However, threatening to do harm to third parties is not a legitimate means of expressing their desire for a greater share of government monies. As the court below pointed out: “The slaughter of 11 athletes at Munich as a supposed symbolic and political protest was certainly murder as to the men killed and was by any civilized standard an unacceptable barbarism. In the lesser degree (and absent personal violence) the slaughter of 96 private businesses as a supposed symbolic protest against government conduct is an unacceptable assault upon 5th and 14th Amendment rights to engage in and conduct a business, to work for a livelihood and to hold and use private property.” Al0 Pa. Superior Court Opinion The court went on to classify appellants’ activities as a form of “scapegoat boycotting” which it defined as that boycotting which: _ urges concerted refusal to have business rela- tionships with a ‘target’ consisting of a limited number of persons, for the purpose of protesting against and symbolizing protest against actions and conduct of third parties, although the ‘target’ has no relationship to or involvement in or any control over or power to affect the primary disputes between the protestors and third parties. As to the ‘target’ the sole purpose of the boycott is to cause damage, injury and destruc- tion for symbolic purposes. In a true scapegoat boy- cott the ‘target’ has no power or authority to force concessions from third parties. In a true scapegoat boycott there is no real or bona fide dispute, primary or secondary, between the ‘target’ and the boycotter.” As discussed above the “targets” of appellant's boy- cott have no power to alter the present formulas for the distribution of government largesse throughout the City of Philadelphia. Therefore, there is no real dispute be- tween the protestors and the merchants in The Gallery, Gimbels or Strawbridge and Clothier. Unlike the “sit-in” demonstration cases which arose out of “sit-ins” in lunch counters in the South during the 1950’s and 1960's the “targets” in our case are not enforcing any discriminatory laws, do not refuse to allow persons to patronize their establishments nor refuse employment to anyorie because of racial, ethnic, or religious differences. Thus, this case is readily distinguishable from the sit-in cases such as Brown v. Louisiana, 383 U. S. 131, 86 S. Ct. 719, 15 L. ed. 2d 637 (1966) and U. S. v. Miller, 367 F. 2d 72 (2d Cir. 1966) cert. denied at 386 U. S. 911, cited by appellant. The fact that blacks do not own more businesses in The Pa. Superior Court Opinion All Gallery than they do has nothing to do with any racially discriminatory laws nor, more importantly, with any actions of the “target”. For these reasons we do indeed find that the “targets” in our case were the victims of so- called “scapegoat boycotting”. The question remains, however, as to whether “scapegoat boycotts” are illegal. In a free society no one may force another to refrain from patronizing a particular, lawfully administered busi- ness establishment by unlawful means. Certainly a person or group of persons may attempt to convince others to purchase a certain product or to refrain from purchasing certain products whatever their reason. The question is to what extent may one go in attempting to convince others not to patronize certain establishments? Put another way the question is: “To what extent may the state go in limiting a group’s boycott of private business?”. The answer is that picketing (which involves actions as well as speech and therefore is subject to more regulation than pure speech) in order to enforce a boycott which is conducted for a person contrary to law is unlawful in itself and may be restrained. Hughes v. Superior Ct., 339 U. §. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950); 1621, Inc. v. Wilson, 402 Pa. 94, 166 A. 2d 271 (1960). In Hughes v. Superior Ct., supra, the court stated that: “It has been amply recognized that picketing, not being the equivalent of free speech as a matter of fact is not its legal equivalent. Picketing is not beyond the control of a state if the manner in which the picketing is conducted or the purpose for which it seeks to effectuate gives ground for its disallow- ance ... We cannot construe the due process clause as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would Al2 Pa. Superior Court Opinion support such policy. See Giboney v. Empire Storage & Ice Co., supra.” (Emphasis added) 339 U. S. at 465-66. In Hughes, supra, a group of protestors had conducted boycotts of a certain business establishment which alleg- edly did not employ blacks in the same ratio as the busi- ness’s clientele. In holding that racially-oriented employ- ment practices were contrary to the State of California's public policy the Court upheld the state court's ban on the systematic picketing of the establishment which picketing supported the proscribed practice. In American Radio Association v. Mobile Steamship Association, 419 U. S. 215, 95 S. Ct. 409, 42 L. Ed. 2d 399 (1974), mem- bers of a maritime union peacefully picketed and dis- tributed leaflets at a public dock which urged people to “Ship American”. Unlike our situation in the instant case the demonstrators were peaceful and nonviolent. Upon petition of certain third parties the state court enjoined all of the demonstrators’ activities at the dock which was owned by the State of Alabama. The Supreme Court upheld the trial court’s ban on the picketing reasoning that the demonstrators’ activities were done, in part, with the intention of interfering with business at the state dock. Since tortious interference with business at the public dock was unlawful the picketing on the dock was unlawful and its ban was upheld. In our case, as in American Radio Association, supra, the protestors conduct constituted a tortious interference with business relations. One has a right to pursue his business relations free from interference on the part of other persons except where such interference is justified or constitutes the exercise of an absolute right. Birl v. Phila. Electric Co., 402 Pa. 297, 167 A. 2d 472 (1960); Restatement, Torts, Section 766. As discussed above, the Pa. Superior Court Opinion Al13 right to picket is not absolute because it involves actions as opposed to pure speech. Since the ‘targets’ of the picketing and boycott were “scapegoats” because they did not possess the power to grant the concessions demanded by the demonstrators we find that the injunction issued by the court below which restrained the picketing and boycotting of The Gallery, Gimbels, and the Strawbridge store was lawful. In addition the court below reasoned that the protestors’ activities directed against the “targets” coupled with their demands that the “targets” pay “repara- tions” to black and other minorities constituted an act of extortion. The court also found that the activities of appellant and his followers were aimed at interfering with the effectuation of the Commonwealth’s public policy to promote the public health, safety and welfare of its citizens and to eliminate blighted areas. For all of these reasons appellants’ activities in picketing the proscribed areas were conducted at least in part for purposes con- trary to state law, ie. extortion, tortious interference with business relations, and interference with the Com- monwealth’s public policy of promoting the health, safety and welfare of its citizens. Appellant argues that most of the cases in which picketing has been enjoined were cases involving picketing by labor unions and attempts to distinguish his situation on that basis. We can find no precedent (nor is any such precedent cited by appellant) which holds that non-labor picketing enjoys greater constitutional protection than labor picketing. We note that Hughes v. Superior Court, supra, is a case in which the Supreme Court upheld an injunction against non-labor picketing. It is therefore, apparent that non-labor picketing may be enjoined if it is done, for an unlawful purpose and an injunction is proper if only part of the demonstrators objects in picketing is unlawful. Anchorage, Inc. v. Local 301, A. F. L., 383 Pa. Al4 Pa. Superior Court Opinion 547, 119 A. 2d 199 (1956). We, therefore, reject appel- lant’s argument and hold that the court below acted properly in enjoining the picketing of The Gallery, Gim- bels and Strawbridge and Clothier. The appellants’ activi- ties in yelling obscenities into the ears of patrons who refused to submit to appellants’ directives to refrain from patronizing the “targets”, the setting of fires in the trash receptacles in the indoor mall, the use of amplification equipment to broadcast obscenities at passersby, the threats to set afire certain stores, the extending of their arms in order to block people from entering the stores, the continued trespass on private property (Gimbels ) and the directing of racial slurs to white and to black employees of the area who refused to join in their activities consti- tutes conduct which is violent, abusive and illegal. Appel- lant Street’s avowed intention of disobeying the court order coupled with the record of the protestors’ activities during their demonstrations certainly justified the court’s order enjoining any future demonstrations at the target areas. Because the purpose of the appellants’ activities was un- lawful and because the record indicates a pattern of vio- lent, abusive behaviour during the demonstrations we hold that the court below was justified in enjoining any such future demonstrations. Appellant’s argument that the court order constituted an unlawful prior restraint on free speech is also devoid of merit. In the instant case a full and complete hearing had been held and the conduct enjoined, although expres- sive conduct and therefore afforded some First Amend- ment protection, was correctly found to be unlawful. Thus, appellant has had the benefit of a full and complete hear- ing prior to the entry of any order proscribing his conduct. As such the court’s order is not an impermissible prior restraint on free speech. See Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1964). Pa. Superior Court Opinion Al5 Appellant’s argument that the January 31, 1979 order is overbroad is also meritless. Since the picketing in our case was done for an unlawful purpose and in a violent, unlawful manner which in and of itself may have con- stituted a breach of the peace we hold that the court below acted correctly when it prohibited all such activities at the target areas. Nor is the order vague as claimed by ap- pellant. A reading of the order clearly indicates that it specifically enjoined certain activities (picketing, hand- billing, etc.) in certain specific areas.’ Only an illiterate could fail to understand its scope. Appellant argues that T. Milton Street was not ob- ligated to obey the January 31, 1979 order. This argu- ment is also meritless. Parties must obey a preliminary injunction, even if invalid, if the order is entered by a court with jurisdiction over the subject matter of the order and the parties thereto unless the order is vacated or reversed. Horne v. Internation Union of Operating Engineers, 250 Pa. Superior Ct. 145, 378 A. 2d 868 (1977). The January 31, 1979 order was neither vacated nor re- versed and we have held that the order was properly entered. T. Milton Street conspicuously violated the Jan- uary 31, 1979 order on February 22, 1979 and February 23, 1979. In fact he announced in open court that he i, “1. Defendants, T. Milton Street and Ad Hoc ’78, to- gether with their agents, servants and those acting in their interest or at their direction, are enjoined and restrained pre- liminarily, unti) final hearing, and therafter until further order of this court, from picketing, handbilling, speechmaking, dem- onstrating, and boycotting inside or outside The Gallery or Gimbels, including the public areas therein, or on any of the collonnades located outside the entrance to Gimbels, or the exterior courtyard area, or the sidewalk which forms the im- mediate perimeter surrounding The Gallery, Gimbels and Strawbridge’ stores.” Al6 Pa. Superior Court Opinion would not abide by the order. Therefore, it is readily apparent that the order applied to T. Milton Street and that he violated said order. It is axiomatic that courts have always possessed the inherent power to enforce their orders and decrees by imposing sanctions for failure to comply with said orders. In re: Martorano, 464 Pa. 66, 346 A. 2d 22 (1975); Rule 1529(c), Pennsylvania Rules of Civil Procedure. Con- tempt of court is divided into two classes: (1) civil con- tempt and (2) criminal contempt, (a) direct contempt and (b) indirect contempt. Brocker v. Brocker, 429 Pa. 513, 241 A. 2d 336 (1968). Directed criminal contempt involves those contumacious acts committed in the pres- ence of the court. Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669 (1956). The distinction between criminal contempt and indirect civil contempt lies in the judicial response to the contumacious acts and the judicial responses are classified according to the dominant purpose of the court in issuing the order. If the dominant purpose of the court is to punish an offender for past contumacious acts in dis- obedience to a court directive then the contempt is crim- inal. If the purpose of the court is to coerce the con- temnor to comply with the court directive then the contempt is civil contempt. Several factors indicative of civil contempt are: (1) where the complainant is a private person as op- posed to the government or a governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where the relief re- quested is primarily for the benefit of the complain- ant; and (5) where the acts of contempt complained Pa. Superior Court Opinion Al7 of are primarily civil in character and do not of them- selves constitute crimes or conduct by the defendant so contumacious that the court is impelled to act on its own motion.” Philadelphia Marine Trade Association v. International Longshoreman’s Association, 392 Pa. 500, 140 A. 2d 814 (1958). It is apparent that the contempt in the instant case was indirect civil contempt. The complainant in the case is the Rouse Corporation, a private entity. The mat- ter consisted of a series of hearings and court orders. The contempt proceedings were entitled in the original in- junction action and filed as a continuation of said action. The relief requested was solely for the benefit of private parties, namely, Rouse, The Gallery merchants, Gimbels and Strawbridge and Clothier to protect them from un- lawful interference with their businesses. Holding the defendant in contempt would afford relief to the private parties by preventing the unlawful picketing of their establishments. Finally, the acts committed by defendant Street were not by their nature so contumacious that the court was compelled to find Street in contempt on its own motion (although certain of the acts committed by other demonstrators during the incidents may very well have been criminal in nature). Thus, it is clear that the con- tempt in our case was civil in nature. The fact that the court ordered the Sheriff's Office to enforce the order does not change the nature of the contempt. Subjugation to confinement for civil contempt must provide a condition with which the contemnor is capable of complying and which has the effect of purging the con- temnor of the contempt if he complies with it. Simmons v. Simmons, 232 Pa. Superior Ct. 365, 335 A. 2dn 764 (1975). The court may, however, impose an uncondi- tional fine upon a contemnor which may be payable to the Al8 Pa. Superior Court Opinion United States or the Commonwealth or to the County, or to the private parties who have been injured. Brocker v. Brocker, supra; U. S. V. U. M. W., 330 U. S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947). An unconditional fine can serve two purposes: (1) to punish violators or (2) to deter future or continued violations of the law. Mastran- gelo v. Buckley, 433 Pa. 352, 250 A. 2d 447 (1969). The deterrence of continuous or future violations of a court order is a legitimate interest to be served by the levy of an unconditional fine. In this case the fine was made payable to the City of Philadelphia which had been forced to spend upwards of $1,400,000 in attempting to ensure compliance with the court order. Of this amount approxi- mately $400,000 represents the overtime costs to police and Sheriff's deputies which otherwise would not have been incurred. Such costs were necessarily incurred be- cause of the potentially violent situations created by the protestors. The court below made specific findings to that effect. Where an unconditional fine is imposed which is made payable to the governmental unit required to enforce the court order and to encourage future com- pliance to the benefit of the aggrieved private parties it should be sustained. N. L. R. B. v. J. P. Stevens, Co., Inc., 563 F. 2d 8 (2d Cir. 1977), cert. denied 98 S. Ct. 1240 in 434 U.S. 1064. For these reasons we hold that the court below acted properly in finding appellant in civil con- tempt of court and that the $5,000 fine imposed upon him was lawful. Appellant’s final contention is that the court below failed to provide him with the required due process guar- antees before finding him in contempt of court. Spe- cifically, appellant argues that before he could be held in indirect civil contempt a rule to show cause why an at- tachment should not issue, an answer thereto, a hearing, a rule absolute, a hearing on the contempt citation, and an Pa. Superior Court Opinion Al9 adjudication of contempt had to be held citing Altemose Construction Co. v. Building and Trades Council of Phila., 449 Pa. 194, 296 A. 2d 504 (1972). In Altemose, supra the contempt proceedings were initiated for diso- bedience of a preliminary injunction entered ex parte. The error in that case was the lack of opportunity for appellants to be heard on the propriety of the court order for which they were held in contempt prior to the initia- tion of contempt proceedings. However, the above- mentioned multi-step contempt procedure is clearly not applicable to a situation in which the attachment and con- tempt proceedings are predicated upon the violation of an order or decree which has been entered after a full hearing and which have been served upon the contemnor. These initial procedures are obviously redundant when the contemnor is already in custody by attachment pur- suant to Pennsylvania Rule of Civil Procedure 1529 (c), as was the situation in the instant case. See Common- wealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A. 2d 263 (1969). We hold that contempt proceedings which are predicated upon the violation of an order which has been served on the contemnor and entered after a full hearing on the merits thereof may be commenced by at- tachment, and due process requires no more than notice of the violations alleged and opportunity for explanation and defense. Riccobene Appeal, 439 Pa. 404, 268 A. 2d 104 (1970). In the instant case appellant was given the opportunity to be heard prior to the issuance of the order and even if we were to hold that the Altemose multi-step procedure applied to this situation we would hold that appellant had been provided with the procedural safe- guards guaranteed therein as the court below conducted three hearings at which appellant had the opportunity to be heard prior to holding appellant in contempt of court. A20 Pa. Superior Court Opinion Appellant’s argument that insufficient evidence was adduced at the hearing below in order to find him in con- tempt of court is fatuous. He claims that his activities conducted on the medial strip outside of The Gallery were not a violation of the court order. Whether or not the order proscribed the boycott activity on the medial strip is irrelevant because sufficient evidence was produced to show that he conducted the boycott activities in viola- tion of the January 31, 1979 order immediately outside The Gallery and Gimbels on the northeast corner of 10th and Market Streets, in Philadelphia, prior to moving to the medial strip. This clearly was the area at which such activities had been enjoined. Therefore, we hold that sufficient evidence was adduced at the hearing held by the court below from which appellant could be adjudged to be in violation of the January 31, 1979 order. Orders affirmed. Phila. Court of Common Pleas Opinion A21 OPINIONS AND ORDERS OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIVISION Aucust Term, 1978 No. 4145 ROUSE PHILADELPHIA INC. and ( REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, Plaintiffs, and GIMBEL BROTHERS, INC. and GIMBEL BROTHERS REALTY CORP., Intervening plaintiffs. v. AD HOC 78 and T. MILTON STREET, AS AN INDIVIDUAL AND AS A REPRESENTATIVE OF AD HOC ‘78, THE UNIN- CORPORATED ASSOCIATION OF PERSONS ACTING IN CONCERT TO BLOCK INGRESS TO AND EGRESS FROM THE GALLERY AT MARKET EAST and A22 Phila. Court of Common Pleas Opinion JOHN DOE AND JANE DOE and ALL OTHER PERSONS ACTING IN CONCERT WITH THE NAMED PARTICIPANTS OR OTHERWISE PARTICIPATING IN THEIR AID, Defendants KREMER, J. Dated: January 3lst, 1979 Opinion and Supplemental Opinion Sur Motion for Preliminary Injunction INTRODUCTION We have before us for consideration (as the primary question, as we see it) whether or not a minority and his- torically disadvantaged group with what it conceives to be a correct and justified message and protest, may select as a target of boycott messages third-party non-government individuals with whom there are no real or bona fide dis- putes for the purposes of highlighting protest against the conduct of governmental agencies. The question other- wise phrased is whether the defendants can engage in “scapegoat boycotting” and “scapegoat picketing” for the avowed purpose of injuring and destroying a complex of innocent and uninvolved businesses for demonstrative and symbolic purposes. We have been cautious not to put the issue as a loaded question because our answer rests upon the facts and factual nuances as we have found them. The targets of the defendants’ boycotting, to which we refer, are Rouse, Gimbels, Strawbridges and the 94 business en- tities presently leasing space and operating businesses in The Gallery. We refer to these businesses as “innocent” Phila. Court of Common Pleas Opinion A23 because they are not really guilty of any wrongdoing by any possible stretch or twist of argumentation or imagina- tion. ‘These businesses have not engaged in or fostered any racial discrimination whatsoever; they have not en- gaged in any conduct antithetical to the interests of the defendants. There is not a scintilla of evidence that these businesses are in any way responsible for any of defend- ants’ grievances or that they could do anything to redress or remedy such grievances. We reject the excusatory suggestions that these businesses are somehow culpable simply because they have lawfully accepted benefits from the government, which could have gone to the boycotters and their communities or for other purposes. In net effect the defendants say to the plaintiff busi- nesses, we wish to use you as an example to show that some communities have benefited from the expenditure of urban renewal funds while the black’ communities were getting less than their fair share. This message broadened into general black protest—protest against lack of black business ownership, against inadequate schooling, against alleged police brutality and against an effort to change the City Charter. The integrity of the protest is muddied by the immediacy of Mr. Street's can- didacy and campaign for the state legislature. The de- fendants say, although we do not ‘really have any direct or even indirect conflicts with you, we wish to use you as an example and a scapegoat—as a target for our mixture of social messages and protests. We intend to use you as a focus for our protests. And, if it becomes necessary, we are willing to destroy your businesses as an example of racial discriminations of the past and the failures of the 1. As used in this opinion the reference to “black” will be deemed to comprehend Spanish and poor white communities which are also stated to be represented by the defendants. However, the disputes involved are overwhelmingly ones of black confrontation. A24 Phila. Court of Common Pleas Opinion present. The defendants act on the thesis that only by causing anguished cries of financial pain—even from those immediately innocent—can they get the necessary attention from the governmental and economic power structure which is in the sole possession of the white establishment. A black activist, T. Milton Street, and some other persons and groups have been seeking government ( pri- marily federal) funding for housing redevelopment and community redevelopment in black communities for some period of years. These persons are convinced that they have been given a run-around; that the government funds have been distributed discriminatorily. In order to high- light their complaints against the manner in which the federal, state and city governments have distributed government funds, the defendants selected The Gallery as a target of protest because it represents a highly successful example of an area that has received government funds in the course of urban renewal. There is no doubt that the defendants raise questions in good faith as to the fairness of the City’s area alloca- tions and designations for the use of federal funds for housing purposes. There is substantial and disturbing indication that the black communities may not have been fairly and equally treated, but that question is not before us for consideration or resolution.’ In reaching our decision, we have cautioned ourselves that a dominant segment of society has numerous con- scious and unconscious techniques for maintaining its ascendancy and the status quo—for resisting and slowing the process of change. 2. This and related questions are being litigated in the federal court in a matter in which Community Legal Services, Inc., which represents Ad Hoc here, also represents the litigants in that case. Phila. Court of Common Pleas Opinion A25 The rights of black citizens to convey messages of protest in an effective and significant manner, in an effort to help correct deep-seated historic inequities are amongst the most important aspects of the First Amendment. Picketing, parading and demonstrating in the streets may sometimes be the only communication and expressive out- lets available for the poor and the disadvantaged. Cer- tainly, in a white-dominated society, the defendants have the right to protest against the entrenched results of centuries of discrimination. They have a right to protest for the purpose of highlighting the inequities of the past and the inequities of the present and the threat of con- tinued inequities in the future. It is important and urgent that all legitimate avenues be kept open for First Amendment expressions of com- plaint and protest; but we cannot accept the thesis that the protest may take the form of injury to and destruction of innocent and uninvolved third parties for purposes of symbolism. Respect for the First Amendment does not require knee jerk responses which exclude analysis of other rights. We must avoid First Amendment reference as a magical incantation and we must test each case by its particular facts. Scapegoat boycotting for the effective purpose of injuring or destroying a business goat, without even any semblance of real dispute with such business, cannot be permitted. There is a constitutionally protected Fifth and Fourteenth Amendment business right to sur- vive which must be balanced against First Amendment rights to deliver a message to injure and destroy. The suppression of the dissemination of ideas is the gravest of dangers. Nothing is to be barred from com- munication be it called treason or heresy. The heresies of today may prove to be the truths of tomorrow, and the treasons of today may prove to be tomorrow's needs for social change. We must be ever vigilant that the voice A26 Phila. Court of Common Pleas Opinion we silence is not that of some present-day Galileo. Such high-sounding language is easier to come by when we speak of Galileos. The rights of the poor and the residents of the slums may be in more need of protection. But even the poor and the dispossessed must speak within the boundaries of the law. There are few eternal verities. Heraclitus recited one that all is change and one cannot step into the same river twice. And Einstein recited another that all of physical reality is relative. In these senses social actions and rela- tions are also in constant motion; man is evolving socially as well as physically. The freedom of man to think and to express himself is crucial to social evolution. It is in the memory of that experience that we owe a maximum loyalty to the First Amendment. Our decision is in keep- ing with this command. The slaughter of 11 athletes at Munich as a supposed symbolic and political protest was certainly murder as to the men killed and was by any civilized standard an un- acceptable barbarism. In the lesser degree (and absent personal violence) the slaughter of 96 private businesses as a supposed symbolic protest against government con- duct is an unacceptable assault upon 5th and 14th Amend- ment rights to engage in and conduct a business, to work for a livelihood and to hold and use private property. We conclude that when a message progresses in action to militant picketing and boycotting so as to scapegoat pri- vate citizens and to convey a false impression that they have been responsible for discrimination or that they have anything to do with the protestors’ grievances, then such conduct must be enjoined. Sometimes the law comes down with unequal weight upon disputing parties, par- ticularly where one of the groups is carrying the weight of centuries of discrimination. There is puzzlement as to who shall pay the price—as to how we should struggle to Phila. Court of Common Pleas Opinion A27 rectify. Again and again we are impelled to return to the question of whether it can be constitutionally right to use a few members of the white society as a scapegoat to exemplify the accumulated disparities of three centuries. The answer must be in the negative. We are aware of the fact that persons of great good- will and of deep social concern must address corrective attention to some of the protest subject matters. We are also aware that in a most real sense the defendants are guilty of counter-scapegoating, rather than scapegoating. That circumstance does not lend excuse to selection of an innocent target for destruction. We cannot accept irra- tional counter-hatred as an appropriate answer to irrational hatred. As a trial court we do not have sufficient time for re- laxed study and analysis of the theoretical elements of the First Amendment as it relates to boycotting and picketing. We do not bottom our decision on distinctions between speech and conduct or between speech and speech-plus, or on distinctions between coercion and persuasion. See, e.g., “The Invisible Hand and Clenched Fist: Is There a Safe Way To Picket Under The First Amendment?” 26 Hastings Law Journal 167 (Sept. 1974). We do not rely upon any single concept whether it be of so-called unlawful purpose, or conspiracy, or slander sub silentio or improper and unlawful conduct. Our de- cision is a response to the combination of all of these matters in this case. A felt instinct for fundamental fair- ness impels us to stop the defendants—they have gone too far and too awry in their otherwise forgivable efforts to be heard effectively. To rule otherwise would be a decla- ration that the plaintiffs are beyond the protection of the law, that the plaintiffs are to be denied of the due process right of survival. A28 Phila. Court of Common Pleas Opinion A boycott cannot be for a lawful purpose when it is designed and intended to, inter alia, punish a small group of citizen businessmen for lawfully accepting benefits from City, State or Federal governments. And in this case the benefits result because of long term federal and local programs and planning. The boycott thus seeks to frustrate and defeat crucially significant governmental public welfare programs and policies dealing with prob- lems of urban blight and decay. The defendants have the right to contend that the urban renewal funds used to correct circumstances of center city blight should more wisely and more fairly be used to correct circumstances of housing blight in North Central Philadelphia. We must bear in mind that it is contended that the very government itself permits and promotes these funds to be discriminatorily allocated to benefit primarily white communities. That is an im- portant and valid message. That is a matter for public disclosure, debate and political action. It is not a matter for indiscriminate injury to and destruction of some other recipients of the benefits of governmental plans and pro- grams as a symbol of protest against the government. The court has not decided whether the Redevelop- ment Authority is entitled to injunctive relief. Such de- termination is unnecessary because the non-governmental plaintiffs are entitled to injunctive relief. In this case there is a dispute between the defendants and the R. D. A. insofar as the R. D. A. is a government agency which the defendants claim is dominated by the governmental au- thorities and administration which the defendants accuse of discrimination. The utmost caution should be exer- cised before any court silences criticism of the govern- ment or any of its agencies. In reaching our conclusion we have been mindful of the fact that the present Supreme Court of the United Phila. Court of Common Pleas Opinion A29 States may be narrower in the construction of some con- stitutional protections than our own Supreme Court of Pennsylvania. Therefore, in applying the constitutional protections afforded by the Pennsylvania State Constitu- tion, the state is not bound by narrower federal construc- tions. That was made clear in the case of Willing v. Mazzocone, — Pa. —, 393 A. 2d 1155 (1978). However, if we are correct that we are here concerned with a bal- ance of competing federal constitutional rights, then our state courts are bound by the federal decisions which address the scope of Fifth and Fourteenth Amendment rights of due process as balanced against First Amend- ment speech protections. HISTORY OF CASE The case is before us on plaintiffs’ motion for pre- liminary injunction. There are three plaintiffs. Plaintiff Rouse Philadelphia, Inc. (Rouse) is a Maryland Corpora- tion licensed to do business in Pennsylvania. Rouse is engaged in the operation of an enclosed, four-level shop- ping mall known as The Gallery located in downtown Philadelphia. It leases places of business within The Gal- lery from the Redevelopment Authority of Philadelphia and Gimbels, and sub-leases property to approximately ninety-four merchants. Plaintiff Gimbel Brothers, Inc. (Gimbels) is a New York corporation licensed to do busi- ness in Pennsylvania. Gimbels owns and operates a large department store which anchors the western end of The Gallery complex. Plaintiff Redevelopment Authority of the City of Philadelphia (RDA) is a non-profit Common- wealth authority, established pursuant to the Urban Re- development Law, Act of May 24, 1945, P. L. 991, 35 P. S. 1701 et seq. The Redevelopment Authority is au- thorized, among other things, to exercise the right of eminent domain, to purchase and acquire real estate, to A30 Phila. Court of Common Pleas Opinion clear buildings and other improvements therefrom, to enter into agreements with others, to own real estate and convey or lease it to others, all for the purposes of re- development of real estate and the elimination of blighted areas. The Redevelopment Authority owns The Gallery and was the developer and general contractor for the con- struction of The Gallery. Defendant Ad Hoc ’78 (Ad Hoc) is an unincorpo- rated association of community organizations. They are acting to induce the public to boycott the stores in The Gallery and the Gimbels department store. Defendant T. Milton Street is a representative of and chairman of Ad Hoc 78. Defendants John Doe and Jane Doe are names for unidentified members of Ad Hoc or other individuals, who are acting in concert to boycott The Gallery and Gimbels. This controversy began on August 25, 1978, when approximately three to five thousand persons gathered at 9th and Market Streets at about 1:00 P. M. and engaged in a protest against The Gallery. This demonstration marked the commencement of the defendants’ boycott of The Gallery. Various demonstrators, including political representatives, gave speeches on a variety of subjects. About 500 demonstrators entered The Gallery with- out interference from the police who were present in large numbers.’ Inside The Gallery, the protestors paraded in and about and from level to level constantly shouting and singing and chanting on various themes. The protest inside and outside The Gallery was peace- ful. There was no actual violence or threats of violence or destruction of property. However, the demonstration was so massive and noisy and angry-sounding as to neces- 3. The use of large police presence was a reasonable form of governmental conduct consistent with duties to protect persons and property and within the scope of police judgment and discretion. Phila. Court of Common Pleas Opinion A3l sarily inspire fears of potential violence. The demonstra- tors kept shouting they were not going to take it any more. The businesses in The Gallery were brought to a virtual standstill. Signs were carried relating to police brutality, the charter change, the MOVE situation, absence of any black-owned stores in The Gallery, lack of housing in poor and black neighborhoods, public money being spent on The Gallery and other topics of public concern. Most protest activity took place in the public areas and the courtyards inside and outside The Gallery. The demon- strators continuously conducted themselves in a loud and raucous and militant and bellicose manner. Some of the shouting was done over bullhorns. At various times the demonstrators sat down in the walkways of The Gallery and in the Market Fair area to listen to speeches given over portable amplifying equipment. During such times, egress and ingress to the shops in The Gallery, particu- larly the Market Fair restaurants, was impeded or blocked by the demonstrators, some of whom sat and stood on the tables (reserved for eating) in Market Fair. On the evening of August 25, 1978, the plaintiffs peti- tioned this court (as Emergency Judge) for immediate ex parte injunctive relief. The court, having previously received a telephonic request for opportunity to be heard * from John Street, Esquire, as attorney for defendants, promptly scheduled a hearing for 9:30 P. M. that evening. The hearing was postponed at the request of the plaintiffs and a hearing was then set for 7:00 A. M. the following Saturday morning. After testimony commenced, by agree- ment of all parties, this court issued a temporary injunction 4. Opportunity to participate should be given unless it is im- possible to serve or notify the opposing parties, Apple Storage Co., Inc. v. CEPA, 441 Pa. 309, 314, 272 A. 2d 496 (1971). A32 Phila. Court of Common Pleas Opinion enjoining and restraining mass picketing and defining per- missible conduct. August 31, 1978 was set as the date for hearing on the motion for preliminary injunction. Testimony was heard® until October 26, 1978. The parties submitted numerous requests for findings of fact and conclusions of law and supporting briefs and supplemental briefs. The last supplemental request for findings was filed on No- vember 27, 1978. Constitutional issues of importance are presented. Our detailed findings of fact and conclusions of law are appended to this opinion. We have reviewed and considered and passed upon the very extensive requests for findings submitted by each party. RE. RIGHT TO BOYCOTT Picketing is a form of both assembly and speech and consequently comes within the protective guarantees of both the First Amendment to the Constitution of the United States and Article I, sec. 7 of the Constitution of the Commonwealth of Pennsylvania: ° Thornhill v. Ala- bama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Carlson v. California, 310 U.S. 106, 60 S. Ct. 746, 84 L. Ed. 1104 (1940); Westinghouse Electric Corp. v. United Electrical Workers, 353 Pa. 446, 46 A. 2d 16 (1946); Penn- sylvania L. R. Board v. Bartenders Union, 361 Pa. 246, 64 A. 2d 834 (1949); Wortex Mills v. Textile Workers U. of A., 369 Pa. 359, 85 A. 2d 851 (1952); 1621 Inc. v. Wilson, 402 Pa. 94, 166 A. 2d 271 (1960). Picketing is a legally protected method of expression when used to enlighten 5. At the request of the Administrative Judge, the Emergency Judge continued to handle the matter. 6. Article I, Section 7 of the Pennsylvania Constitution pro- vides, inter alia, that “. . . every citizen may freely speak, write or print on any subject being responsible for the abuse of that liberty.” Phila. Court of Common Pleas Opinion A33 the public about a dispute or grievance with a business. Although it may incidentally discourage customers from entering or patronizing a store or other business, it still remains as protected expressive conduct: Moore v. Newell, 548 F. 2d 671, 672 (6th Cir. 1977). However, there are special circumstances attendant to picketing which characterize this form of expression as “speech plus” as opposed to “pure speech.” Being a hybrid form of speech, picketing does not enjoy the same full measure of First Amendment protection as pure speech and it must be analyzed from a slightly different perspective. “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.” * Because picket lines and picketers can so easily induce action regardless of the message being conveyed, courts have been sensitive to the special circumstances attendant to picketing. Although it is protected conduct, picketing is more susceptible to court regulation than other forms of speech. This results from the inherent nature of picketing which generally publicizes grievances and calls for public support to honor the cause. Oftentimes the grievances involve business practices. Therefore, picketing fre- quently calls into question the property rights of others. Courts are also sensitive to the concomitant constitution- ally protected property rights of the targets of picketing. Balancing First Amendment rights of expression and Fifth Amendment property rights (both of which are applicable 7. International Brotherhood v. Vogt, 354 U. S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347 (1957); See Bakery and P. Drivers and Helpers, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178 (1942); Car- penters and J. Union v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807; 86 L. Ed. 1143 (1942). A34 Phila. Court of Common Pleas Opinion to the states through the Fourteenth Amendment) some- times presents a delicate and difficult task. When First Amendment rights have the effect of infringing upon others’ property interests, it is necessary to take a critical look at the circumstances. It may be that property dam- age is incidental to protected expressions. It also is possible that injury to that property is the very purpose of the expressive conduct. When this is the case, that ex- pression may be an unwarranted and unprotected in- fringement upon others’ property rights. There is no doubt that defendants intend to injure and inflict economic damage upon the plaintiffs’ busi- nesses. The plaintiffs argue that this purpose is malicious and unlawful. They argue that this illegal purpose ren- ders what might otherwise be lawful rights of expression unlawful. Under Pennsylvania law an illegal purpose may make peaceful and orderly picketing unlawful. In Wortex Mills, Inc. v. Textile Workers Union of America, C. I. O., 369 Pa. 359, 85 A. 2d 851 (1952), the Pennsylvania Supreme Court was called upon to decide the lawfulness of mass picketing in the context of a labor dispute. The Court held that mass picketing was illegal, and that, where coercion and intimidation and threats accompanied picket- ing, such picketing was illegal and would be enjoined. The Court noted (at p. 363): “Freedom of speech gives no right of intimida- tion or coercion and no right to damage or injure another’s business or property, except where this re- sults indirectly from peaceful and orderly picketing for a purpose which the law regards as legitimate and lawful.” The Court also stated that an unlawful purpose vi- tiates otherwise lawful picketing (at p. 369): Phila. Court of Common Pleas Opinion A35 “A State Court may enjoin unlawful picketing or picketing which is conducted in an unlawful manner or_for an unlawful purpose. Picketing, if peaceful, orderly and for a legitimate or lawful purpose, is legal and within the protection of the Constitution. How- ever, a State is not required to tolerate in all places and in all circumstances even peaceful picketing by an individual; it is well established that the method or conduct or purpose or objective of the picketing may make even peaceful picketing illegal.” In 1621, Inc. v. Wilson, 402 Pa. 94, 166 A. 2d 27] (1960) the Court recognized a right to obtain equitable relief from a boycott that was being conducted for an objective which violated a legitimate, clearly defined law or public policy of the state. The Court refused to enjoin picketing of a taproom by certain unincorporated neigh- borhood organizations. The picketing continued daily, except Sunday, and included signs such as “Luther King did it why can’t we;” “Please do not patronize excess bar;” “We need classrooms not taprooms;” “We can’t be bought please don’t patronize this bar”. The Court stated (at p. 107-8) that the objective of the picketers was to con- vince passersby, “.. . by means of persuasion, not to patronize the establishment so that in time its operation would become uneconomical and appellant would transfer the liquor license to another location, or failing in that, to persuade the appellant to so police his patrons that the most blatant of evils complained of would cease so that the peacefulness and good character of the neighborhood would not be destroyed.” The picketing was deemed lawful since the purpose was to protest against an admitted nuisance in fact. The A36 Phila. Court of Common Pleas Opinion court carefully noted, however, that if the objective of the picketing violated a “legitimate, clearly defined law or public policy of the state,” it could be prohibited. The 1621 Court focused critical attention on the ob- jective of the picketing. All picketing, regardless of its purpose, serves to some extent to discourage customers from entering or patronizing a business. In 1621, the Court found the picketers’ effect upon the plaintiff's busi- ness to be incidental to their primary objective of pro- tecting their neighborhood against nuisance. It follows then, that a distinction between permissible picketing and impermissible picketing turns on whether the picketers’ activity incidentally harms the plaintiff's business in their pursuit of their primary and lawful purpose, or whether the primary purpose is to maliciously injure the plaintiff's business. The purposes and objectives of the boycott are re- flected in the boycott literature, the actions of the demon- strators, and in Mr. Street’s testimony. The defendants accused the city government of poli- cies of racial discrimination with regard to public housing and job opportunities over a period of more than 25 years. They contended that shopping districts and housing should be developed in other communities and asserted that center city development deprived the poor of needed federal rehabilitation funds. They also charged racial discrimi- nation in education for minorities (of failure to keep the schools open). In the boycott literature the defendants protested that over $25,000,000 of federal monies was spent to build The Gallery and that another $12,000,000 was to be spent for a Gallery II]. The defendants protested that there were housing monies expended to enrich center city business- men and that no money was spent for housing in black and other poor communities—particularly in Mr. Street's Phila. Court of Common Pleas Opinion A37 North Philadelphia area. It was urged that businesses who profit from such activity should not be supported. The boycotters demanded that “the people who planned, built and run The Gallery pay back the full amount of all federal monies, plus interest, to black, spanish-speaking and poor (white) neighborhoods.” A demand was also made that “The same people make sum- mer jobs for Black, Spanish-speaking and Poor White youth and also permanent opportunities (spots) for Black and Spanish-Speaking businesses.” Mr. Street and the boycotters took the position that because the merchants, Gimbels and Rouse received the benefit from use of federal funds which could have been used for housing, that there was an obligation to pay back funds into black communi- ties; that the merchants pay into an escrow fund which could be established for housing and other social prob- lems in North Philadelphia and other communities. Mr. Street stated that Rouse owed an obligation to address problems experienced by the black community; that Rouse should build or rehabilitate some houses. Although Mr. Street stated that he was not telling Rouse, Gimbels or the merchants what to do, that is not accurate. One of the major boycott demands was that payments be made for benefits received particularly in the form of programs in the black and poorer communities. In essence, the picketing began with an avowed pur- pose of demanding “reparations” from the plaintiffs. Thereafter and in the course of the trial the defendants endeavored to soften the impact of such demands. Mr. Street undoubtedly recognized that the original statement of boycott purposes was too broad, bordered on the illegal and was inappropriate as to businesses not really involved in any way with his political disputes and black-white controversies. He knows that his real arguments are with the government and not with the merchants. He tried to create and recite a lawful boycott purpose insofar as A38 Phila. Court of Common Pleas Opinion the innocent businesses were concerned. We do not think he succeeded. Mr. Street testified as follows (on September 19, 1978): “I think that Center City, Market Street East should be developed, but I think it should be devel- oped mutually with the development of the communi- ties. What we had hoped to happen is to send a message to the City, to the federal government, to whomever it is necessary, that you can develop Center City and ignore the communities if you want to, but we will not support you as long as you continue to ignore the needs of the community, the housing needs of the communities where we live. We will not sup- port The Gallery, we will not support your new Gal- lery, we will not support your new Gallery that’s coming, until you change your policy to begin to address yourself to some of the needs that we have in the community where we live.” Mr. Street made it clear that the purpose of the boy- cott was to deliver a message to the City and that The Gallery was to be bankrupted and sunk unless that mes- sage was acknowledged and acted upon. In another approach Mr. Street made it clear that the bankruptcy of The Gallery and its businesses might be a necessary price in order for him to focus attention on the needs of the black community. Mr. Street testified as follows (on September 19, 1978): “Tue Wrirness: I think the obligation should be to—could come in several forms. I think the mer- chants who are receiving that benefit, that substantial benefit from being there, could organize and have an escrow fund to help us with housing in North Phila- Phila. Court of Common Pleas Opinion A39 delphia. They could help us with housing anywhere. I think that they could organize to help us open up a larger business on Columbia Avenue, Susquehanna Avenue. I think that they could make a contribution to organizations that are dealing with social problems in the communities where we live. After all, they are receiving the benefit. They have received the bene- fit from the substantial sums of money that come from the federal government. (N. T. 106-107) c ° ° “THe Witness: Well, what I am saying was, the purpose of the boycott is not just to sink The Gallery. We have no real motive, no real purpose, nothing can be gained by boycotting or bankrupting The Gal- lery. However, there is something to be gained if the people who put all of the—or a substantial amount of public funds into The Gallery, and who intend to put substantial large amounts of funds into the expansion of The Gallery to buy or purchase and rebuild, or to build The Gallery in the ten hundred block of Market Street. We would not hesitate in doing that. By Mr. (JoHN) STREET: Q. You wouldn't hesitate— A. Sinking, bankrupting them.” (N. T. 108) Mr. Street further testified as follows (on October 16, 1978): “A. The merchants wouldn't have to particularly do anything for me to end the boycott. What has to happen is the city administration, we are after the city administration, the Redevelopment Authority, the Rizzo administration, the people who are spend- ing the money, the people who are putting the money A40 Phila. Court of Common Pleas Opinion we are boycotting a public building, a building that was built with a substantial amount of public funds. That’s what we are boycotting. We are asking people not to go in that building for the reasons that I prior stated. The city administration, the Redevelopment Authority, the John Gallery Office—not The Gallery, but John Gallery, those are the people who can re- solve our problem; those are the people that we can talk to about what they can do for North Philadel- phia.” (N. T. 63-64) Although the defendants are very vague as to just how they expect to accomplish their purposes, at the bot- tom line they make it clear that the dispute is not with The Gallery. Their dispute is with the City Administra- tion, the Authority and HUD, which must act to meet and satisfy the boycotters’ demands and needs. It is stated that the plaintiffs’ businesses are boycotted because they occupy a building constructed with the aid of public funds and therefore they reeeive benefits arising out of the ex- penditure of public funds. Mr. Street claimed a First Amendment right to boycott any institution or building that benefited directly or indirectly from public funds which could have gone into the black community. It is conceded that the funds used to construct The Gallery were never allocated or earmarked for housing or any other purposes. Mr. Street tried to portray a dispute with the mer- chants and Gimbels. He did not succeed. He testified (see N. T. 68-69 and 73 of October 16, 1978): “By Mr. (JoHNn) STREET: Q. You have a dispute with the merchants of the Gallery that you have described on direct examination. Phila. Court of Common Pleas Opinion A4l1 A. Absolutely. Q. What must the merchants do to resolve that dispute? A. The merchants can— Q. Not what they can, what must they do? A. They cant. . Q. They couldn’t do anything to resolve it? A. They can't “What I want to know is: what must the mer- chants do in order to resolve the dispute which you and your group have with them? A. I don’t know. Q. You don't? A. Not at this point, I don’t know. Q. What must Gimbels do in order to re- solve the dispute which you have with them, as you have described it? A. I don’t know at this point.” In addition to the foregoing, the demonstrators pro- tested against the fact that Gallery businesses were not owned by blacks. The record and History are clear that the reason that there are only few black business owners in The Gallery is not related to any discrimination by Rouse or any conduct of Rouse or, indeed, to any particular governmental conduct. It is a result of the absence of or limited availability of black capital—which, in turn, is a result of the historical disparities between the accumula- tion of white and black capital. The demonstrators also protested against police bru- tality, the treatment of the Move group, the policies of the City government and in opposition to a proposed change in the City Charter with regard to mayoral succession. A42 Phila. Court of Common Pleas Opinion They also protested about problems of black unemploy- ment and problems relating to schools. The plaintiffs have no relationship to any of these issues whatsoever. Scapegoat is defined in Webster’s Third New Inter- national Dictionary *® as a “person, group, race or institu- tion against whom is directed the irrational hostility and unrelieved aggression of others.” In this case, The Gal- lery * is designated as the “target”—as the goat. None of the defendants’ grievances can be redressed by The Gallery. However seriously the defendants injure the plaintiffs, the plaintiffs remain powerless to meet or satisfy or to affect or effect the demands of the defendants. The defendants assert grievances against the Police Depart- ment, the City of Philadelphia, the Redevelopment Av- thority and the Department of Housing and Urban Development. They do not have any real or actual dis- pute whatsoever with The Gallery collectively, or with the ninety-four individual proprietors, except for their very existence. Yet the demonstrators have chosen as their targeted victim The Gallery which is defenseless to meet the demands of the picketers. Scapegoat boycotting urges concerted refusal to have business relationships with a “target” consisting of a lim- ited number of persons, for the purpose of protesting against and symbolizing protest against the actions and conduct of third parties, although the “target” has no rela- tionship to or involvement in or any control over or power to affect the primary disputes between the protestors and 8. The term “scapegoat” traces to an ancient Biblical ritual described in Leviticus XVI. 10. On the Day of Atonement the high priest symbolically transferred the sins of the people upon a goat, which then was banished into the desert to die. 8A. In this Opinion it is obvious we sometimes use the term “The Gallery” to include Gimbels and Rouse and sometimes Straw- bridge and Clothier. Phila. Court of Common Pleas Opinion A43 the third parties. As to the “target” the sole purpose of the boycott is to cause damage, injury and destruction for symbolic purposes. In a true scapegoat boycott the “tar- get” has no power or authority to force concessions from the third parties. In a true scapegoat boycott there is no real or bona fide dispute, primary or secondary, between the “target” and the boycotters. The absence of any dispute has crucial implications. Assuming a dispute, a picketed business could negotiate an agreement and free itself from the economic effect of the picketing. In this case, the plaintiffs are helpless; there is nothing they can do to affect or effect the stated purposes of the protest. Only the bankruptcy of the plain- tiffs would appease the pickets.’ The defendants hope that an injured or bankrupt Gallery will induce conces- sions from the government. They intend painful message and demand of the City and federal government that they can no longer ignore the defendants’ communities. A boycott such as that which occurred in Claiborne Hardware, Inc. v. NAACP** is not a scapegoat boycott. In the Claiborne case blacks in Port Gibson, Mississippi, protested systematic white racial discrimination. A boy- cott was organized against all local white merchants de- manding that they exert pressure on the city government to enact reforms. The Mississippi court found a con- spiracy in violation of a state antiboycott law and a vio- 9. See and compare E. M. W. Bar Corp. v. Hillard, 20 D. & C. 2d 435 (1959). 9A. No. 78,353 (Miss. Ch. Ct. Aug. 9, 1976). See Madison, “Mississippi's Secondary Boycott Statute: Unconstitutional Depri- vation of the Right to Engage in Peaceful Picketing and Boycott- ing,” 18 How. L. J. 583 (1975); Sandifer & Smith, “The Tort Suit for Damages: The New eat to Civil Rights Organizations,” 41 Brooklyn L. Rev. 559 (1975); Note, “Political Boycott Activity and The First Amendment,” 91 Har. L. Rev. 659 (1978). A44 Phila. Court of Common Pleas Opinion lation of the state antitrust law and a tortious interference with business relations. That court rejected contentions that the state laws violated First Amendment rights of freedom of expression. We do not agree with the rationale of the Mississippi court and we make it clear that this is not a sister opinion to that case. It is valid, indeed, for an oppressed group to protest and disturb the complacent discrimination of a dominant majority.°® And it must be valid, indeed, for a minority group to confront a majority group in protest of its discriminations. legality of purpose is imported only when the protest targets upon one or some few individuals for the purpose of scapegoating and symbolizing them. It is at that point that there is an unlawful invasion of the due process rights of survival of others. The defendants’ testimony clearly indicates the mo- tivation underlying the boycott. The defendants feel that they have come away (comparatively) empty-handed in their attempts to secure housing monies and commitments from the City of Philadelphia and the federal government. Sensing that they have exhausted their administrative and political remedies, they have embarked on a new course of action—the boycott of The Gallery. Through this ef- fort, they seek to communicate their grievances to the government. It is not Rouse or the merchants who can satisfy the demands of the demonstrators and boycotters. The defendants suggest that an injured or bankrupt Gal- lery can induce the government to meet the demands of the picketers, and thereby secure relief for the merchants from the burdens of the boycott. 9B. The bus boycott of 1955 by black citizens of Montgomery, Alabama, to protest racial discrimination (see N. Y. Times, Dec. 6, 1955, at p. 31 and Feb. 22, 1956 at p. 1 and Martin Luther King, Stride Towards Freedom (1958)) was in response to a primary dispute. Phila. Court of Common Pleas Opinion A45 We hold that such strategy is a malicious misuse of the defendants’ exercise of their First Amendment rights. Such scapegoat picketing does not enjoy the protections afforded to other forms of expressive conduct. The Gal- lery has been unlawfully targeted as an economic scape- goat to express the defendants’ grievances against the government. Each plaintiff's business is a property right. Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed. 954, 27 A. L. R. 375 (1921). The property rights of the plaintiffs are protected by the Fifth and Fourteenth Amendments against this assault by the defendants. The defendants’ rights of freedom of expression do not carry a right to maliciously damage and destroy the unrelated property rights of others. Scapegoat picketing goes be- yond the pale of constitutionally protected rights of free expression. It is clearly a tortious invasion of property rights, to purposely injure an innocent and uninvolved party’s business in order to coerce concessions from a third party government. Having no dispute wit’: the picketers and having no power of correction, the plaintiffs’ only re- course is to suffer damages. The defendants are engaged in a thinly disguised coercive assault, with what the law must regard as unlawful purpose and malevolent motives. Such unlawful conduct is not constitutionally protected as a supposed First Amendment expression in such cir- cumstances. The defendants have postulated that the plaintiffs had a duty to contribute to business and housing develop- ment in North Philadelphia and other poor minority neighborhoods because they received and accepted bene- fits from the government which could have gone to others. After an initial indication by the court that such demands might be unlawful, Mr. Street watered down the demand and said that plaintiffs “could” and not “should” set up a fund to help promote black housing and business interests. A46 Phila. Court of Common Pleas Opinion However, in the context of the boycott, it is necessarily indicated that the boycott will continue until the plaintiffs perform their supposed obligations. There is no right or privilege to demand “reparations” or affirmative action from private persons not guilty of past or present discrimi- nation. Affirmative action is a legal obligation of the gov- ernment not of isolated individuals. With regard to all of defendats’ grievances as to housing, black business owner- ship, charter change as to mayoral succession, police bru- tality, treatment of the Move group, education and schools, the plaintiffs have neither responsibility nor power to act. We will not protect the defendants’ First Amendment conduct when expressed for extortionate and illegal pur- poses."” The defendants argue that the court is not to be con- cerned with the plight of the merchants of The Gallery who are not parties to this suit. This contention ignores the effect of the defendants’ actions, as well as the nexus between Rouse and its sub-tenants. Rouse has leased property to the merchants at a rental based in part on a percentage of volume ir sales. Higher volume increases the rentals paid to Rouse. The merchants’ gains or losses are also Rouse’s gains or losses. Although they are not formally joined as parties to the suit, the merchants’ in- terests are interwoven with Rouse’s interests. The defendants have alleged that they do have a dis- pute with Rouse. At the beginning of the trial, they were under the mistaken belief that there were no black store owners in The Gallery. In fact, one of the most common chants during the demonstrations of August 25 and 26, 1978, was “We don’t own, so we don’t shop.” However, Mr. Street testified that the issue of black ownership was really irrelevant; that if The Gallery were entirely black- 10. See United States v. Kubacki, 237 F. Supp. 638, 640 (E. D. Pa. 1965); United States v. Mitchell, 63 F. 2d 187 (8th Cir. 1972). Phila. Court of Common Pleas Opinion A47 owned the boycott would continue because the issue was addressed to the expenditure of public monies on housing. The testimony indicated that approximately 44% of the employees of the retail stores are black and approxi- mately 45 percent of the managerial and supervisory per- sonnel of the retail stores in The Gallery are black; ap- proximately sixty-eight percent of Rouse’s employees are blacks; and approximately fifty percent of Rouse’s super- visory and managerial personnel are black. The defend- ants did not offer a scintilla of evidence that Rouse dis- criminated against blacks in its leasing operations or that Rouse, Gimbels, Strawbridges or any of the 94 Gallery businesses was guilty of any act of discrimination against any minority. This creation of an illusion of discrimination by Rouse and The Gallery businesses where there has been no dis- crimination whatsoever is a serious wrong. The boycott has aspects of libel and slander when it falsely portrays discrimination where there is none. To the extent that the defendants, by their protest, have created an impression to the public that the plaintiffs have been guilty of dis- crimination, that is a cruel hoax and an illegal destruction of the rights of innocent persons to engage in and operate a lawful business. The plaintiffs are entitled to the full protection of the law so that they cannot be cavalierly sacrificed to the supposition that the right to convey an important message imports the right to falsely accuse and resultantly injure or destroy persons who are not in any way party to the problems or plights of disadvantaged minorities. This testimony reaffirms the fact that the defendants’ real focus is upon the needs of the black community that are allegedly being ignored by the city and federal govern- ments. The fact is that the boycott purposes were shifting and confusing in nature. In a sense the defendants simply A48 Phila. Court of Common Pleas Opinion flailed out against The Gallery as a supposed symbol of the entire white community. The boycott arose out of the general economic disparities between whites and blacks and the entire historical patterns of white economic superiority. The defendants’ ultimate focus became the contention that the government itself was the discriminat- ing instrument and that public funds were being funneled discriminatorily into white communities and white opera- tions to the prejudice of black communities in general and to the prejudice of the North Philadelphia black com- munity in particular. The only dispute with The Gallery is its very exist- ence. The City, State and Federal Governments made policy determinations that The Gallery was a project which would share their common support. The Gallery has pro- moted economic stimulation to a formerly decaying part of the city. It provides over one-thousand new jobs and a six fold increased property tax base for the city. The defendants, however, are critical of the expenditure of government monies that do not address their housing grievances. Because The Gallery was the beneficiary of a public policy on the city, state and federal level, the de- fendants assert it is their right to injure or destroy that shopping complex to communicate their dissatisfaction with the policies and priorities of government. Such con- duct is beyond the pale of constitutional protection. In Birl v. Philadelphia Electric Co., 402 Pa. 297, 301, 167 A. 2d 472 (1960), the Court adopted Section 766 of the Restatement of Torts which defines the tort of induc- ing a breach of contract or a refusal to deal: “one who, without a privilege to do so, induces or otherwise pur- posely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business re- lation with another is liable to the other for the harm caused thereby.” This definition was refined to consist of ' Phila. Court of Common Pleas Opinion A49 the following three elements, that “the actor must act (1) for the purpose of causing this specific type of harm to the plaintiff, (2) such act must be unprivileged, and (3) the harm must actually result.” In Glenn v. Point Park College, 441 Pa. 474, 272 A. 2d 895 (1971), the Court adopted the holding made by then Judge, now Chief Justice Eagen, in Locker v, Hudson Coal Co., 87 D & C 264, 267-268 (Lackawanna Co., 1953) : . it seems established that a person’s business is a property right in the pursuit of which he is entitled to protection from tortious interference by a third person, despite the absence of an express contract between the parties to continue their business rela- tionship. This is certainly the trend of the law since the beginning of the twentieth century and the rapid growth of industry and trade. We do believe, how- ever, that in order for there to be an actional wrong, it is necessary to plead and prove in a situation such as this: (1) that the acts complained of were wilful and intentional; (2) that they were calculated to cause damage to plaintiff in his business; (3) that they were done with the unlawful purpose of causing damage and loss to plaintiff without right or justifi- able cause on the part of defendant; (4) that actual damage and loss resulted. The ‘malice’ above re- ferred to does not imply any culpable intent but rather is it the intentional doing of a harmful act without justification or excuse. Defendant may have had under the present stated facts the legal right to do the acts complained of, but if they were done with the intent to injure plaintiff, then they were malicious and the malice makes unlawful that which otherwise would be lawful.” A50 Phila. Court of Common Pleas Opinion In discussing the elements of the tort of inducing a refusal to deal, the Glenn Court found that the existence of a prospective contractual relation between the third person and the plaintiff was a threshold ingredient. In Adler, Barish, Daniels, Levin and Creskoff v. Epstein, et al. — Pa, — , 393 A. 2d 1175 (1978), the Supreme Court recently affirmed the vitality of Birl and Glenn while modifying the privilege element of the tort. The focus is more on whether the conduct is “improper” rather than whether the conduct is “unprivileged.” The Court adopted the guidance of Section 767 of the Restatement (Second) of Torts, which focuses on what factors were to be considered in determining whether conduct is “im- proper’: “In determining whether an actor’s conduct is intentionally interfering with an existing contract or a prospective contractual relation of another is im- proper or not, consideration is given to the following factors: (a) The nature of the actor's conduct, (b) The actor's motive, (c) The interests of the other with which the actor’s conduct interferes, (d) The interests sought to be advanced by the actor, (e) The proximity or remoteness of the actor’s conduct to the interference and (f) The relations between the parties.” Applying the standards of Birl, Glenn, Locker and Adler, it is clear that the defendants are engaged in tortious con- duct. The evidence indicates that (at least in its initial Phila. Court of Common Pleas Opinion A51 stages) the boycott cost Gimbels and other merchants almost one-third to one-half of their estimated sales vol- ume. The boycott, by its very terms, is intended to in- duce prospective customers of The Gallery to refuse to enter into any contractual relationship with The Gallery's merchants. Hundreds of prospective customers have re- fused to deal with the plaintiffs as a result of the defend- ants’ conduct. The purpose of the boycott is to cause this specific type of harm to the plaintiffs. The defend- ants’ conduct is “improper” due to its underlying malicious intent. There is no doubt that the plaintiffs have suffered considerable harm, both as a result of lost sales and in goodwill. All elements of the tort of “wrongful inter- ference with prospective advantage” are here present. The boycott violates Pennsylvania tort law as pro- nounced by the highest court in this Commonwealth, In American Radio Association v. Mobile Steamship Associa- tion, 419 U. S, 215, 95 S. Ct. 409, 42 L. Ed. 399 (1974) the Supreme Court held as did the Pennsylvania Supreme Court in 1621, supra, that such tortious conduct in viola- tion of state law and state policy could be enjoined. In a line of cases that culminates in International Brotherhood v. Vogt, 354 U. S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347 (1957) the Supreme Court clearly established the principle that picketing-conduct or picketing-speech which is conducted for a purpose contrary to state law or state policy is not entitled to protection under the First Amendment. In Giboney v. Empire Storage and Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), the picketing held enjoinable was a single and integrated course of con- duct designed to compel a violation of Missouri's valid anti-trust law. The Court concluded that it was “clear that appellants were doing more than exercising a right of free speech or press. They were exercising their economic A52 Phila. Court of Common Pleas Opinion power together with that of their allies to compel Empire to abide by union rather than by State regulation of trade. Similarly, in Hughes v. Superior Court of California, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950), the objec- tive of the picketing was to secure submission by a retail establishment to 2 demand for employment of Negro workers in proportion to the number of Negro customers. This objective was declared to be unlawful, for, if success- ful, the picketing would have caused the retailer to dis- criminate on the basis of race in its hiring practices, con- trary to the then declared public policy in the State of California. The Supreme Court further added that it is immaterial that the State’s policy is expressed by the judiciary as opposed to the legislature. In International Brotherhood of Teamsters C. W. & H. Union v. Hanke, 339 U. S. 470, 70 S. Ct. 773, 94 L. Ed. 995 (1950), the Supreme Court upheld a state injunction prohibiting picketing where the objective was contrary to a valid public policy of the State of Washington. In Building Service Employees International Union v, Gazzan, 339 U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045 (1950) decided the same day as Hughes and Hanke, the Supreme Court affirmed a State injunction which prohibited picketing where the objective was in violation of the State of Wash- ington’s statutory policy against employer coercion of employees’ choice of bargaining representative. Eventually, in International Brotherhood v. Vogt, supra, the Supreme Court established a definitive principle for application in so-called “unlawful purpose” cases. In that case, unions had sought unsuccessfully to induce some of Vogt’s employees to join the unions. A‘‘er their efforts failed, the unions commenced to picket the entrance to Vogt’s gravel pit. As a result, drivers of several trucking companies refused to deliver and haul goods to and from the plant, and the company was substantially damaged. Phila. Court of Common Pleas Opinion A53 At the request of Vogt, a Wisconsin trial court enjoined the picketing, and the Wisconsin Supreme Court upheld the injunction on the ground that the picketing was for an unlawful purpose, namely, to coerce the employer to inter- fere with its employees and their right to join or not to join the union. An appeal to the United States Supreme Court followed. In rendering the Supreme Court’s decision in Vogt, Justice Frankfurter carefully traced the evolution of the concept that states can enjoin picketing in violation of a valid public policy of the state. Noting the broad pro- nouncements of Thornhill, be observed (at p. 289): “Soon, however, the Court came to realize that the broad pronouncements, if not the specific holding, of Thornhill, had to yield ‘to the impact of facts un- foreseen, or at least not sufficiently appreciated.” Justice Frankfurter further observed that the line of cases subsequent to Thornhill “made manifest that picketing, even though ‘peaceful,’ involved more than just communi- cation of ideas and could not be immune from all state regulation.” Those cases also demonstrated an awareness that the crucial question was not so much one of free speech but, rather, whether the state court had struck a proper balance between the communication activities and the competing interests of state policy. In concluding its discussion, the Court articulated the following principle (at 293): “This series of cases, then, established a broad field in which a state, in enforcing some public policy, whether of its criminal or of its civil law and whether announced by its legislature or its courts, could con- stitutionally enjoin peaceful picketing aimed at pre- venting an effectuation of that policy.” A54 Phila. Court of Common Pleas Opinion Recently the Supreme Court case applied the so-called “unlawful purpose” doctrine in American Radio Assn. v. Mobile Steamship Assn., 419 U. S. 215, 95 S. Ct. 409, 42 L. Ed. 2d 399 (1974). There, maritime unions peacefully picketed and distributed leaflets at a public dock, urging persons to boycott foreign flagships allegedly employing non-American crews at substandard wages. The conduct of the unions was peaceful and non-violent. There was no mass picketing, no trespassing on the property of others, no blocking of ingress and egress, no assaults and no covert acts of force. A State trial court enjoined the unions’ activities at the public dock. The Alabama Supreme Court, relying on Vogt, Hughes and other “unlawful purpose” doctrine cases, held that there was sufficient evidence to support the trial court’s finding that the conduct of the unions was done with the goal of interfering with the business of appellees in their shipping and farming operations, and, therefore, properly enjoined. State public policy was found to be violated because one of the purposes of the unions’ action was to “wrongfully interfere” with appellees’ business. Relying on the Vogt case, the Supreme Court of the United States concluded that there was no labor dispute but that Alabama’s interference with the unions’ activities was well within “the broad field in which a state, enforc- ing some public policy, whether of its criminal or its civil law and whether announced by the legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.” In response to the unions claim that the injunction in American Radio was not supported by a “valid public policy,” the Supreme Court stated (at 231): “In Pennington, the Supreme Court of Alabama indicated that state policy against ‘wrongful inter- ference’ is quite analogous to the federal policy pro- Phila. Court of Common Pleas Opinion A55 hibiting secondary boycotts and is based on similar considerations. The state policy also appears to be based on the state interest in preserving its economy against the stagnation that could be produced by pickets’ disruption of the businesses of employers with whom they have no primary dispute. Under Vogt, supra, the state may prefer these interests over peti- tioners’ interest in conveying their ‘Ship American’ message through the speech-plus device of dockside picketing.” Despite the unions’ claims in the American Radio case that their activities were for informational and publicity purposes only, the Supreme Court found that another purpose of the unions’ activity was to interfere wrongfully with the business at the state dock. Evidence of this pro- hibited purpose was based upon the testimony of a single union official charged with carrying out the picketing, who “had expressed the hope . . . that the port would become cluttered with foreign ships unable to load or unload and that the docks would be shut down.” The Court upheld the Alabama Supreme Court's finding that to “wrongfully interfere” with the appellees’ property interests was against state policy. The Court found Vogt to be controlling, and upheld Alabama’s prohibition of petitioners’ picketing. Thus, American Radio reaffirmed and established un- equivocally that a state may enjoin picketing engaged in for a purpose contrary to the law and public policy of a state. ii In American Radio distinguishable from this case be- cause it is the conduct of the government itself (Rede- velopment Authority) which is addressed in grievances? There would be grave danger if government were the si- lencer of protest against itself. We are not deciding any- thing with regard to the dispute between the defendants A56 Phila. Court of Common Pleas Opinion and government. The defendants, by their conduct, make it clear that that is not the question before us. The de- fendants (perhaps as a sad result of their angers at his- torical and present mistreatment, discrimination and oppression) have moved beyond the pale of permissible conduct and have flailed out on various issues so as to strike at persons innocent of wrongdoing or involvement in these issues and who are admittedly unable to redress defendants’ grievances or to respond to attacks upon them by correcting something. The boycott is a scapegoat boy- cott. The Gallery is unlawfully made a rallying point for what might otherwise be justified dissidence. Instead it is a scapegoat boycott for unlawful purpose. Under the present state of the law in Pennsylvania, picketing is constitutionally protected as a means; how- ever, it is not protected when used for the purpose of accomplishing an unlawful end. 1621, Inc. v. Wilson, supra. The legislature enacted the Urban Development Act to promote elimination of blighted areas and supply sani- tary housing in areas throughout the Commonwealth. The Redevelopment Authorities, throughout the state, are au- thorized to engage in the elimination of blighted areas and to plan and contract with private, corporate or gov- ernmental redevelopers for their redevelopment. The Redevelopment Authority of the City of Philadelphia (RDA) is an agency of the Commonwealth of Pennsyl- vania whose sole purpose is to carry out and effectuate the purposes and provisions of the Urban Redevelopment Act. Faced with a decaying downtown business district, and an exodus of the shopping public to the shopping malls located in the Philadelphia suburbs, RDA undertook to help rejuvenate retail business activity in center city Philadelphia. As part of this urban renewal plan, RDA Phila. Court of Common Pleas Opinion A57 launched development of The Gallery. RDA contracted with the plaintiff, Rouse-Philadelphia, Inc., for the plan- ning and development of The Gallery. The concept of this plan was initiated by the City Planning Commission in the 1960's. Pursuant to its statutory authority, RDA prepared and submitted plans which were approved by City Council. Councilmanic hearings were held so that the general public could present views relative to the plan. When RDA filed its Declaration of Taking, one of the tenants challenged the condemnation. The taking was upheld: Simco v. R. D. A., 455 Pa. 438, 317 A. 2d 610 (1974). The general public had opportunity to make known any views relative to the Market Street East de- velopment. R. D. A., however, was essentially a “pass-through agency which is carrying out the City’s planning objec- tives in the Market Street Project (The Gallery).” (see D-8a). Before R. D. A., and Rouse-Philadelphia, Inc., entered into their lease agreement, they required certain assurances from the City prior to final approval by HUD. HUD’s involvement was crucial because the Market East Project was constructed with some 24.5 million dollars of Federal monies. HUD was concerned that the City protect the public interest and improvements. The Gallery was therefore a project which shared the support of municipal, state and federal governments. The planning and development of the project was an ex- ercise of public policy at three governmental levels de- signed to rejuvenate public and consumer interest in the center-city business district, develop a stronger tax base, provide over one thousand jobs and fight urban decay. It is not within the province of this Court to pass upon the wisdom of such policy decision. We must de- termine whether defendants’ conduct is intended and de- signed to defeat the implementation of the public policy of the State. A58 Phila. Court of Common Pleas Opinion The defendants believe that governmental expendi- ture of public monies in Philadelphia should address their housing grievances. Because The Gallery has benefited from government monies, though not monies which de- fendants would have received, it has been targeted as an economic scapegoat. The defendants state the problem with simplicity—if they are not the beneficiaries of these or other public monies, then they shall act to destroy the Gallery (or any other chosen target) because it was chosen instead as a beneficiary for governmental assistance. Instead of mobilizing their forces for purposes of legislative and policy input, the defendants have chosen to injure the manifestation of what they consider an irresponsible and discriminatory policy. Such unjustified injury is malicious in law. Where the defendants maliciously attempt to in- jure plaintiff's business, they are in violation of Pennsyl- vania tort law and the long term public policy of the State. The law is clear that picketing for purposes con- trary to State law or State policy can be enjoined in its entirety. The people of the City and the Commonwealth have the right to expect that the courts will protect the implementation of public policies. It is troubling that as a result of the illegal objective underlying the defendants’ protestations, they have lost some of their rights to express otherwise protected speech. We considered whether we could carve out and prohibit the unprotected speech, while still permitting the pro- tected informational speech. Unfortunately, a resolution along such lines by way of a bifurcated order appears to be impossible. The protestors’ mob-like activities of August 25 and August 26, 1978, left an indelible false impression in the eyes of some of the public that The Gallery was sup- posedly guilty of discrimination and that it was in some way responsible for defendants’ grievances. Picketing Phila. Court of Common Pleas Opinion A59 continued at The Gallery on virtually a daily basis. The public was left with the impression that The Gallery had done “something” to warrant being picketed. The initial purpose of the picketers was to injure or destroy The Gallery and that is still the picketing and boycott purpose. The defendants engaged in some informational picketing, but their constant advocacy is to “Boycott The Gallery.” Unfortunately the defendants’ unlawful purpose taints the entirety of their expressive conduct. The Pennsylvania Supreme Court held that picketing may be enjoined if one of its objects is unlawful even though not the sole object. Anchorage, Inc. v. Waiters and Waitresses Union, 383 Pa. 547, 119 A. 2d 199 (1956). In this case the otherwise protected speech is inextricably interwoven with the un- protected speech. The public is unable to discern be- tween what constitutes acceptable speech conduct and that which is enjoinable. Otherwise legitimate speech interests lose their special privilege under the law when so intertwined with unlawful purposes. We must there- fore prohibit all of defendants’ speech interests at The Gallery in furtherance of scapegoat boycotting. The defendants have argued a combination of two themes: 1) that under the law and the Constitution of the Commonwealth of Pennsylvania a court of equity will not enter an injunction which operates as a prior restraint on speech, Willing v. Mazzocone, — Pa. —, 393 A. 2d 1155 (1978); and 2) that it is axiomatic in First Amendment cases that there is no right or power in the government to consider the content of speech or to distinguish speech on the basis of its message, Police Department v. Mosley, 408 U. S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).” 1l. Hudgens v. N. L. R. B., 424 U. S. 407, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976); Organization For A Better Austin v. Keefe, 402 U. S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1, (1971); Cohen v. California, 403 U. S. 15, 24, 91 S. Ct. 1780, 29 L. Ed. 2d 284, 293 A60 Phila. Court of Common Pleas Opinion In the Willing v. Mazzocone case, lawyers sought to enjoin a former client from picketing and libelous conduct which falsely charged the attorneys with stealing her money and “selling out” to an insurance company. Her conduct included carrying a sandwich-type board sign denouncing the lawyers, pushing a shopping cart on which she placed an American flag, and continuously ringing a cow bell and blowing a whistle to attract attention. There was some indication she was mentally ill. Mazzocone is not controlling here. It held, inter alia, that defamation will not be enjoined by a court of equity. Mr. Justice Manderino stated on behalf of a 4-3 majority (of which majority 3 were concurrences ) as follows: “Our conclusion that the equity court violated appellant’s state constitutional right to freely speak her opinion—regardless of whether that opinion is based on fact or fantasy—regarding appellees’ pro- fessional integrity obviates the need for any discussion here of federal law.” The Mazzocone case must be distinguished from this case. Mazzocone addressed the power to impose a prior restraint on defamation. This case only minimally in- volves possible defamation insofar as there is a false portrayal of discrimination. This case addresses the power of equity to enjoin speech of the picketing and boycott class, when such picketing-speech is exercised for an un- lawful purpose. The Supreme Court did not consider any 11. (Cont'd. ) (1971); Street v. New York, 394 U. S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 269-270, 84 S. Ct. 710, 11 L. Ed. 2d 686, 700, 95 A. L. R. 2d 1412 (1964) and cases cited; NAACP v. Button, 371 U. S. 415, 445, 83 S. Ct. 328, 9 L. Ed. 2d 405, 425 (1963); Wood v. Georgia, 370 U. S. 375, 388-389, 82 S. Ct. 1364, 8 L. Ed. 2d 569, 579 (1962). Phila. Court of Common Pleas Opinion A61 question as to Ms. Willing’s purpose. The Court did not decide the effect, if any, of an unlawful purpose upon the otherwise undoubted right to freedom of expression. In Mr. Justice Pomeroy’s concurring opinion he re- ferred to Judge (now President Judge) Jacobs’ dissenting opinion (joined by Judges Hoffman and Spaeth) in the Superior Court (246 Pa. Super. Ct. 98, 109, 369 A. 2d 829, 834 (1977)) and incorporated it by reference into his concurrence. In his dissent Judge Jacobs stated (at p. 836): “There are a few exceptions to the rule prohibiting an injunction against libel or slander. For example, an injunction may be granted where the false statements are part of a conspiracy to injure, or where there is intimidation or coercion.” And he stated (at p. 838): “Equitable jurisdiction to inter- dict libelous publication has been assumed . . . where there is a conspiracy to maliciously injury a plaintiff's busi- ness or property (citing cases).” Judge Jacobs noted an absence of such evidence. Thus, in Mazzocone the only reference to free speech in conjunction with an unlawfu! purpose and malicious intent to injure indicates that such speech may sometimes be enjoined. Mazzocone is distinguished on another ground. Ms. Willing had a primary dispute which gave rise to her conduct. She believed, reasonably or unreason- ably, that her attorneys owed her twenty-five dollars. In this case, the demonstrators have no dispute with the plaintiffs. This absence of a dispute has critical signif- icance in the context of an economic boycott. In this case, where no dispute exists, plaintiffs are unable to address or deal with the defendants’ demands. We conclude that the law which prohibits prior restraint does not restrict our authority to enjoin a scapegoat boycott and picketing and speech conducted for unlawful purposes. A62 Phila. Court of Common Pleas Opinion In Police Department v. Mosley, 408 U. S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) the Court stated: “But, above all else, the First Amendment means that govern- ment has no power to restrict expression because of its message, its ideas, its subject matter or its content.” Out of this restriction it is often too flatly stated that the courts, therefore, may not examine or consider the nature of or content of speech. The fact is and the cases show that the courts do examine content and they must examine content in order to make decisions and to determine whether speech enjoys the full protection of the First Amendment. In Chaplinsky v. New Hampshire, 315 U. S. 568, 571- 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) the Court stated: “(1)t is well understood that the right of free speech is not absolute at all times and under all cir- cumstances. There are certain well-defined and nar- rowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the in- sulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” It is not the right to lie which is of value or the sub- ject of First Amendment protection—it is the right to speak (and hopefully and incidentally—but only hope- fully and incidentally—to tell the truth). The power to suppress the right to lie may pour over into a power to suppress ideas and truth. We tend to absolutize the right Phila. Court of Common Pleas Opinion A63 of speech in order to avoid erosion of the right. But we cannot lose sight of the fact that the right of speech is not absolute. In F. C. C. v. Pacifica Foundation, — U. S. —, 98 S. Ct. —, 57 L. Ed. 2d 1073 (1978) Mr. Justice Stevens stated: “The order must therefore fall if . . . the First Amendment prohibited all governmental regulation that depends on the content of speech. Our past cases demon- strate, however, that no such absolute rule is mandated by the Constitution.” In Schenck v. U. S., 249 U. S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919) Mr. Justice Holmes made it clear that both the content and the context of speech are sub- ject to examination by courts in order to determine whether First Amendment protections apply and the scope of such protections. In a boycott speech as a stuff can be lethal. When it is used for such purpose and we evaluate the validity and propriety of purpose we are necessarily examining content. The prohibition is against examining content to evaluate the acceptability of its ideas. There must be examination in order to determine whether the speech violates criminal law, public policy or tort law. There must be examination in order to determine whether the speech is for a lawful or an unlawful purpose. We con- clude that the general rule which prohibits inquiry into the content of speech does not restrict our authority to inquire into the lawfulness of boycott purpose. ENTITLEMENT TO PRELIMINARY INJUNCTIVE RELIEF A preliminary injunction should be issued when three requisites are met: 1) its issuance is necessary to prevent immediate and irreparable harm; 2) greater injury would A64 Phila. Court of Common Pleas Opinion result by refusing the preliminary injunction than by granting it; and 3) until a final determination can be made, the decree properly restores the parties to their status as it existed immediately prior to the alleged wrong- ful conduct. Alabama Binder and Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189 A. 2d 180 (1963). Where the defendants have engaged in an unlawful scapegoat boycott and have engaged in mass demonstra- tions, both inside and outside The Gallery, have wrong- fully interfered with the plaintiffs’ property and business rights, have caused the plaintiffs to lose sales and business, have trespassed on plaintiffs’ property, and have intimi- dated and interfered with customers, employees and mer- chants inside and outside The Gallery and Gimbels, greater injury would result by refusing the preliminary in- junction than by issuing it, and its issuance is necessary to prevent further immediate and irreparable harm. If the parties so wish, they may agree that the Preliminary In- junction Decree shall be and become a final decree and, therefore, immediately appealable. We shall append to this opinion, wherein we have concluded that all scapegoat boycott activity is illegal and must be enjoined, our findings of fact and our conclusions of law. We are also filing herein a Supplemental Opinion upon the assumption that our conclusions that all boycott activity must be enjoined is incorrect. In the Supplemen- tal Opinion we have considered the manner in which boy- cott activity, if lawful, may be conducted. Repetition of our findings of fact and our conclusions of law is unneces- sary. Each opinion should be deemed to incorporate therein all findings of fact implicit in the other opinion. Although this procedure greatly lengthens our opinions, in this way we intend to make the record and our dispo- sition complete, so that an appellate court need not at some future time remand the matter. Phila. Court of Common Pleas Opinion A65 In view of all of the foregoing, we conclude that under the established law and public policy of this Common- wealth, the plaintiffs’ rights to engage in business and earn a livelihood transcends the defendants’ rights to free- dom of speech, particularly when such speech is used for purposes of scapegoat boycotting and to maliciously in- jure and destroy plaintiffs’ business interests. Accord- ingly, we enter the following decree and order: A66_ Phila. Court of Common Pleas Decree and Order IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY TRIAL DIvision Aucust Term, 1978 No. 4145 ROUSE PHILADELPHIA INC, and REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, Plaintiffs, and GIMBEL BROTHERS, INC. and GIMBEL BROTHERS REALTY CORP. Intervening plaintiffs v. AD HOC ’78 and T. MILTON STREET AS AN INDIVIDUAL AND AS A REPRESENTATIVE OF AD HOC '78 THE UN- INCORPORATED ASSOCIATION OF PERSONS ACTING IN CONCERT TO BLOCK INGRESS TO AND EGRESS FROM THE GALLERY AT MARKET EAST and JOHN DOE anv JANE DOE and Phila. Court of Common Pleas Decreeand Order A67 ALL OTHER PERSONS ACTING IN CONCERT WITH THE NAMED PARTICIPANTS OR OTHERWISE PARTICIPATING IN THEIR AID Defendants Decree and Order Anp Now, this 3lst day of January, 1979, the tem- porary and special injunction orders heretofore issued by this court on August 26, 1978 are modified and amended as follows: 1. Defendants, T. Milton Street and Ad Hoc 78, to- gether with their agents, servants and those acting in their interest or at their direction, are enjoined and re- strained preliminarily, until final hearing, and thereafter until further order of this court, from picketing, hand- billing, speechmaking, demonstrating, and boycotting in- side or outside The [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0494%3A2. Public record. Not legal advice.