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COMMONWEALTH v. BLUMENSTEIN (07/02/59)

July 2, 1959

COMMONWEALTH
v.
BLUMENSTEIN, APPELLANT.



Appeal, No. 139, Jan. T., 1958, from judgment of Superior Court, Feb. T., 1958, No. 1, affirming judgment of Court of Quarter Sessions of Lackawanna County, Dec. T., 1956, No. 8, in case of Commonwealth of Pennsylvania v. Martin Blumenstein. Judgment reversed. Same case in Superior Court: 184 Pa. Super.Ct. 83. Indictment charging defendant with giving and permitting exhibition of moving picture of lascivious, obscene, indecent and immoral character and tending to corrupt morals. Before EAGEN, J. Verdict of guilty and judgment of sentence entered thereon, defendant appealed to Superior Court which affirmed judgment. Appeal by defendant to Supreme Court allowed.

COUNSEL

Max Rosenn, with him Rosenn, Jenkins & Greenwald, for appellant.

Ralph P. Needle, Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, for appellee.

Edwin P. Rome, with him Morris L. Weisberg, and Julian E. Goldberg, for American Civil Liberties Union, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 396 Pa. Page 419]

OPINION BY MR. JUSTICE BOK

This is an appeal, on allocatur, from the decision of the Superior Court affirming a conviction and sentence.

Defendant was the manager of a drive-in cinema theatre in Lackawanna County and was arrested by state officers for having shown certain films in October, 1956. He was indicted for having unlawfully exhibited obscene motion pictures under the Act of June 24, 1939, P.L. 872, § 528; 18 P.S. § 4528, which reads as follows: "Whoever gives or participates in or being the owner of any premises, or having control thereof, permits within or on said premises, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures of a lascivious, sacrilegious, obscene, indecent or immoral nature and character, or such as might tend to corrupt morals, is guilty of a misdemeanor. ..."

In Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 358, 121 A.2d 584 (1956), this court held invalid the Motion Picture Censorship Act of 1915, as amended, and in the course of the opinion Mr. Chief Justice STERN said: "It need hardly be added that even if all pre-censorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor."

This reference to the common law remedy, apart from statute, is supported by Commonwealth v. Sharpless, 2 S. & R. 91 (1815), and Barker v. Commonwealth, 19 Pa. 412 (1852), both involving common law prosecutions, one for exhibiting an obscene picture, and the other for obscene public speech. The indictment in both cases charged intent, and since the indictment in the case at bar does not, it is clear that the prosecution before us was brought under the statute and not under

[ 396 Pa. Page 420]

    the common law. Hence the efficacy of the common law remedy against obscenity is not in issue.

The decisions of the Federal courts are conclusive.

The word "sacrilegious" was held unconstitutional by the Supreme Court of the United States in Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 777 (1952), a motion picture case. The case held that the cinema is within the free speech and press protection of the First and Fourteenth Amendments.

The test of being "lascivious, indecent, immoral or impure" and "tending to corrupt morals" was rejected by the Supreme Court in reversing, per curiam, Superior Films v. Department of Education of Ohio and Commercial Pictures v. Regents of the University, 346 U.S. 587, 74 S.Ct. 286 (1954), citing Burstyn. This case also involved a motion picture.

The remaining words of Section 528 are "lascivious, obscene, and indecent". In the cases of U.S. v. Clarke, D.C., 38 F. 732 (1889) and U.S. v. Davidson, D.C. 244 F. 523 (1917) "lascivious" and "lewd" are held to be synonymous, and "lewd" and "obscene" are given as definitions for "indecent": see also Swearingen v. U.S., 161 U.S. 446, 16 S.Ct. 562 (1896); U.S. v. Ulysses, 72 F.2d 705 (1934).

This leaves the single term "obscene" to consider.

It was held unconstitutional, per curiam, citing Burstyn and Superior Films, in Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117 (1955), a motion picture case. The phrase under attack was "obscene, indecent, or immoral or such as tend to debase or corrupt morals."

In June, 1957, the United States Supreme Court decided Roth & Alberts v. U.S., 354 U.S. 476, 77 S.Ct. 1304 (1957) a book case, in which "the dispositive question is whether obscenity is utterance within the area

[ 396 Pa. Page 421]

    of protected speech and press", and held that it was not. The opinion refers to "the proper standard for judging obscenity" and states it to be this: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

Five months later the Supreme Court reversed Times Film Corp. v. Chicago, 355 U.S. 35, 78 S.Ct. 115 (1957), a motion picture case, citing Roth & Alberts. The Circuit Court had held: "The ordinance now under attack, as we have seen, uses the words 'immoral or obscene'. The Illinois Supreme Court has held, in speaking of this ordinance, that these words are synonymous and that a motion picture is obscene or immoral, within the meaning of the ordinance, if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. ... With this interpretation of the words 'obscene' and 'immoral' read into the ordinance now before us, we believe the ordinance is not vague, as contended by plaintiff. Those words are precise and they constitute a proper test in the case at bar."

If the Times Film standard could not pass the Roth & Alberts test, a fortiori Section 528 cannot either.

In this posture of the law our conclusion in Hallmark is dispositive: "The picture involved in the present case was disapproved by the Board of Censors because it was 'indecent and immoral and, in the judgment of the Board tended to debase and corrupt morals'. In view of the foregoing decisions of the Supreme Court [not including Roth & Alberts, which was written later], individually and collectively, we are of opinion that these terms must be held subject to the same fatal

[ 396 Pa. Page 422]

    objections as those which invalidated the statutes held unconstitutional by that Court."

Disposition

Judgment reversed and defendant discharged.

ING OPINION BY MR. JUSTICE BELL:

I believe that the decisions of the Supreme Court of the United States on the Constitutionality of statutes which prohibit the obscene or the immoral or the sacrilegious, are confusing, but the recent cases of Roth v. United States and Alberts v. California, 354 U.S. 476 (1957) - subsequent to Burstyn, Inc. v. Wilson, 343 U.S. 495, which compelled this Court's decision in Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 - indicate that these words are no longer considered too vague and indefinite. The Roth and the Alberts cases sustained the validity of statutes which prohibited the obscene.*fn1

An act of obscenity has been an offense against the public for centuries and has been so recognized by the Courts of England, by the Courts of Pennsylvania and by the Federal Courts: Rex v. Curl, 2 Str. 789 (1727); Commonwealth v. New, 142 Pa. Superior Ct. 358, 16 A.2d 437; Commonwealth v. Donaducy, 167 Pa. Superior Ct. 611, 76 A.2d 440; cf. also Chaplinsky v. New Hampshire, 315 U.S. 568; Winters v. People of the State of New York, 333 U.S. 507; Commonwealth v. DeGrange, 97 Pa. Superior Ct. 181; Commonwealth v. Schoen, 25 Pa. Superior Ct. 211.

I believe that the words obscene, immoral and sacrilegious are words of such general and common usage that they have acquired a well and commonly

[ 396 Pa. Page 423]

    understood meaning. I would therefore protect the interests of the moral and deeply religious people of Pennsylvania by sustaining the validity and the Constitutionality of our statutes which punish the obscene or the immoral or the sacrilegious.*fn2

ING OPINION BY MR. JUSTICE MUSMANNO:

By declaring Section 528 of The Penal Code of 1939 unconstitutional, the Supreme Court has today struck from the hands of every District Attorney in Pennsylvania the last remaining available weapon with which to fight the forces of indecency which for a long time have been trying to capture the moving picture screens of this Commonwealth. In 1956 (in the case of Hallmark Productions, Inc. v. Carroll, 384 Pa. 348), this Court dismantled the siege guns of the Motion Picture Censorship Act of 1915 which for 41 years had stopped those invading forces at Pennsylvania's borders. Now, there is nothing left with which to save clean-minded, clean-thinking men, women and children of this State from the vulgarities, obscenities and indecencies which some moving picture producers are determined to inflict on the public for the sake of a greed-soaked dollar.

At the time of the oral argument in the Hallmark case, I asked from the bench what was to happen to the good people who revolt at dirt and filth mixed in with motion picture entertainment, if there was to be no Censorship Board to keep the screen clean. Two or three members of the Court, including the Chief Justice, as it was constituted at the time, replied that whatever apprehensions I might entertain in that respect could be dismissed because if, minus a Censor

[ 396 Pa. Page 424]

Board, an immoral picture was booked at a theatre, the District Attorney could proceed to confiscate the film and arrest its exhibitor under the existing Penal Code.

My colleagues also said that what this Court was striking down was not law enforcement against motion picture indecency, but pre-censorship. This oral assurance was carried from the bench into the official Opinion of this Court which was written by Chief Justice STERN, who said: "It need hardly be added that even if all pre-censorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor."

I wrote a Dissenting Opinion in which I said: "After the decision of the Majority will have been handed down, those same shameful, shameless, degrading films may be projected anywhere in Pennsylvania publicly, the distributors and exhibitors being subject only, after showing, to the penalty provided under criminal law."

Although naturally disappointed with the Court's decision, I at least gained comfort in the realization that the purveyors of the shameful, degrading films would be subject, after the showing, to the penalty provided under criminal law.

But now, the Majority says, that the penalty is non-existent. And so the question naturally propounds itself: What has happened to the protection which this Court proclaimed as vividly as flag signals from a ship? The Act of June 24, 1939, P.L. 872, § 528, under which the defendant in the case before us was indicted, tried and convicted, provides: "Whoever gives or participates in or being the owner of any premises, or having control thereof, permits within or on said premises, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures of a

[ 396 Pa. Page 425]

    lascivious, sacrilegious, obscene, indecent or immoral nature and character, or such as might tend to corrupt morals, is guilty of a misdemeanor."

The Supreme Court knew of this Act in 1956 when it pronounced its decision in the Hallmark case. It practically said that the people did not have to fear they would be deluged with obscenity in motion picture theatres, since The Penal Code would protect them from such obscenity. Now, only three years later, it announces that the protection which it proclaimed has no reality at all. The signals which were flown from the high masts turn out to be beguiling, the lifesavers which were thrown to the public in 1956 turn out to be weighted with ...


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