The opinion of the court was delivered by: LORD, JR.
Defendants are the various officials of the City and County of Philadelphia, identified in the caption, who took part in the seizure of publications distributed by the plaintiff, Dale Book Company, Inc. (hereafter to be at times referred to as Dale).
Defendants' Motion to Dismiss having been denied, the three-day hearing on preliminary injunction revealed the essential facts to be as follows.
On September 12, 1963, the District Attorney, James C. Crumlish, Jr., together with Assistant District Attorney, Martin Weinberg, caused the arrest of a newsstand operator at 18th and Arch Streets, Philadelphia, at which time, pursuant to search warrant, several thousand Dale nudist magazines were seized. On September 18, 1963, the Police Department arrested the same dealer at the same newsstand and seized an additional 218 nudist magazines. On October 1, 1963, arrests were made of 21 Newsdealers and a distributor not a party to this action, and more than 2,000 nudist magazines, distributed by Dale, were seized in connection with the arrest. All these arrests and seizures were pursuant to the provisions of the Pennsylvania Obscenity Statute, 18 P.S. 783.
Although Plaintiff in its complaint had attacked the constitutionality of the Pennsylvania Obscenity Statute lastmentioned, that attack was withdrawn during the course of argument on Defendants' Motion to Dismiss.
There was no evidence of prior threats, warnings or other orders relative to these arrests and seizures. Indeed, the testimony was entirely to the contrary as to the assertion of prior restraint (N.T. pp. 45-46, 128, 172, 189, 245 and 277), as appears in the specific findings which follow.
No officer of plaintiff was arrested for possessing or disseminating the nudist publications for which it is the distributor in this area. No nudist publications were seized from plaintiff. Indeed, no official action has ever been directed against plaintiff to prevent distribution of nudist publications. The arrest of Dale customers, the newsdealers mentioned above, have indirectly affected Dale in two ways. First, the dealers in Philadelphia are apparently afraid to buy Dale publications for fear of being arrested for violation of the Pennsylvania Obscenity Statute. Secondly, Dale is obligated by trade custom and practice to give the arrested dealers a credit for those magazines distributed by Dale which were seized on the three occasions already described. In turn, Dale has certain return privileges with the national distributors as to domestic publications, at least (N.T. p. 273). Finally, backdate publications in this field have a certain discounted sale value. The president of Dale, Mr. Silverberg, testified that such resale value would approximate 35% (N.T. p. 274).
Numerous exhibits have been submitted in addition to those introduced by plaintiff and defendants in the course of testimony. It was ruled at the hearing that examples of the seized periodicals to be submitted thereafter to the court should become part of the record (N.T. p. 269).
Plaintiff claims infringement on its civil rights by virtue of numerous violations of constitutional rights. In the view of this Court, however, the essential claims of deprivation to be considered are rights secured by:
First Amendment: free speech;
Fourth Amendment: search and seizure; and
Fourteenth Amendment § 1: due process of law.
Plaintiff earnestly asserts that the publications in question are free from any taint of obscenity, and seeks a declaration to that effect.
To this Court it appears that there is a further question: is this a matter in which a federal court should intervene at this stage in any event? This question, which is usually called the Doctrine of Abstention, in the opinion of this Court, seems to foreclose, in any event, a decision on the merits of the publications.
In order to make disposition of this case as complete as possible, however, three separate sets of findings will be made, covering the three sets of questions or issues for disposition. They will be discussed, however, in the following order: (1) Civil Rights; (2) Abstention; (3) Obscenity.
A recent decision of the United States Court of Appeals for the Third Circuit dealt with a seizure by the City of Philadelphia of a group of nudist publications similar to those in question here. Outdoor American Corporation v. City of Philadelphia, No. 14,697, 333 F.2d 963 (3rd Cir., 1964); affirming Outdoor American Corporation v. City of Philadelphia, No. 34316 (E.D.Pa., November 20, 1963, Legal Intelligencer, Dec. 6, 1963). The essential difference in that case was that the plaintiffs there were not only distributors but also publishers, and that one of the plaintiff distributors (as well as various newsdealers) was then under indictment for violation of the Pennsylvania Obscenity Statute. The plaintiffs in Outdoor sought the same kind of relief which is asked here, however. In affirming the District Court's dismissal of the complaint, the Court of Appeals observed that
'* * * All issues plaintiffs are raising in the federal court may be brought before the state courts, and there is no reason to believe state officials will enforce the Pennsylvania statute against plaintiffs not involved in state proceedings if the publications are found not obscene in the pending criminal prosecution. If held obscene, plaintiffs not involved in state proceedings cannot complain of enforcement of the statutes. Nor should a federal court of equity ambush the state courts by deciding the fundamental basis of obscenity.' ( No. 14,697, 333 F.2d 965, 3rd Cir., June 30, 1964, supra.) (Emphasis added)
In view of that statement, this Court approaches the question of obscenity with great reluctance. Only because no direct proceedings have been undertaken against Dale as was done in the Outdoor case does the court even consider the obscenity aspect. The distinction between the two cases, however, impelled the court to conduct a full hearing in the present case, and then to consider as an alternative or contingent ground the merits of the publications themselves.
Only in the event that it be determined that this Court is in error on the first part of the problem, civil rights, need the second be considered. Again, and only in the circumstance that there is error in this Court's conclusion that the situation in any event is not one for federal interference at this stage, do the findings in the third part concerning obscenity become in any way part of this decision.
1. Plaintiff, Dale Book Company, Inc., a Pennsylvania corporation, is a wholesale distributor of nudist magazines in Philadelphia and surrounding areas.
2. Defendants are Howard R. Leary, Philadelphia Police Commissioner; James C. Crumlish, Jr., Philadelphia District Attorney; Martin Weinberg, Philadelphia Assistant District Attorney; Clarence J. Ferguson, Philadelphia Police Captain and Commander of the Special Investigation Squad; Edmond Bivens and Cecil Satterfield, police officers assigned to the Special Investigation Squad; all are citizens and residents of Philadelphia, Pennsylvania.
3. On September 12, 1963, pursuant to orders of defendant District Attorney Crumlish, defendant Assistant District Attorney Weinberg and several detectives from that office arrested Jerome Shapiro, a newsstand operator at 18th and Arch Streets, Philadelphia, Pennsylvania, and pursuant to a search warrant seized a large quantity of paper books and magazines, some of which were nudist magazines distributed by plaintiff. Shapiro was held for court, after preliminary hearing, for violation of the Pennsylvania Obscenity Statute, 18 P.S. § 783.
4. On September 18, 1963, Jerome Shapiro was again arrested, this time by officers of the Philadelphia Police Department, and 218 nudist magazines were seized from his stand at 18th and Arch Streets, some of which were publications distributed by plaintiff. Shapiro was again held for court on the same charges.
5. On October 1, 1963, 21 newsdealers were arrested by Philadelphia Police and pursuant to search warrants, 2,083 nudist magazines and calendars were seized from newsstands throughout the City, some of which magazines and calendars were publications distributed by the plaintiff. The 21 dealers were arrested and, after preliminary hearings, held for court on charges of violating the Pennsylvania Obscenity Statute, 18 P.S. § 783.
6. The only relationship between the plaintiff and the 22 newsdealers who were arrested is that the latter are purchasers from or customers of plaintiff who sells nudist magazines and calendars to them at wholesale. Those dealers and other customers of plaintiff have the privilege of returning for full credit unsold, damaged or destroyed nudist publications to plaintiff, which in turn has the privilege of returning all domestically published nudist periodicals (constituting more than 75% Of all nudist publications distributed by plaintiff) to the national distributor thereof for partial reimbursement (N.T. pp. 273-275).
7. Since the arrests on October 1, 1963, neither plaintiff nor its newsdealer customers have purchased or sold any nudist magazines in Philadelphia solely because of their fear of being arrested for violation of the Pennsylvania Obscenity Statute.
8. No action has been undertaken by the defendants against plaintiff corporation and none of its officers or employees has been arrested for the possession or sale of nudist publications, at any time pertinent to this action, by defendants or any other officials or employees of the City of Philadelphia.
9. No nudist publications or any other publications have been seized or taken from the plaintiff by defendants or any other City officials or employees at any time pertinent to this action.
10. Neither the defendants nor any other officials or employees of the City of Philadelphia have ordered, warned or instructed plaintiff or any newsdealers to refrain from selling nudist publications.
11. Neither the defendants nor any other officials or employees of the City of Philadelphia have imposed any prior restraints on the dissemination of nudist publications by the plaintiff or any newsdealers who purchase such publications from the plaintiff.
So much of this ground was covered in the case cited earlier that discussion will not attempt to explore all phases of the legal questions involved. Outdoor American Corp. v. City of Philadelphia, No. 14,697, 333 F.2d 963 (3rd Cir., 1964), affirming No. 34316 (same caption) (E.D.Pa., Nov. 20, 1963, Legal Intelligencer, Dec. 6, 1963).
Beyond question, plaintiff is suffering financial loss while the criminal prosecutions against its customers are pending in the Pennsylvania courts. Prior to the seizures from the newsstands, plaintiff sold regularly to 150 customers in Philadelphia (N.T. p. 271). Total volume of Dale's Philadelphia sales of periodicals retailing up to $ 1.50 per copy was 30,000 to 50,000 per month (N.T. p. 283). Gross profit was in the vicinity of $ 5,000 per month (N.T. p. 289). In itself, such inconvenience and possible financial loss is no ground for federal intervention. Outdoor American, (No. 14,697, 3rd Cir.) supra, 333 F.2d p. 965, citing Douglas v. City of Jeannette, 319 U.S. 157, 164, 63 S. Ct. 877, 87 L. Ed. 1324 (1943) and adding in footnote 'Cf. Grove Press, Inc. v. Calissi, D.C.N.J., 208 F.Supp. 580, and Toth v. Silbert, N.D. Ohio, 184 F.Supp. 163. In both cases complainants as businessmen suffered the same kind of inconvenience and possible financial loss plaintiffs herein are alleged to be suffering. In both cases, as in the present case, there is no suggestion the Federal Constitution and laws will not be respected by the state court.'
Plaintiff relies heavily upon In re Louisiana News Company v. Dayries, 187 F.Supp. 241 (E.D.La.1960). In that unusual case, under color of the Louisiana statute, the police had made wholesale seizures of the complete stock of 28 or more publications from the warehouse and newsstands. There was no pretense of a search for pornography; the police officers had been sent out to confiscate borderline material -- that which displayed female breasts, or the buttocks of the male as well as the female. There was no shadow of observance of the settled principle that mere nudity is not an appeal to prurient interest. See Sunshine Book Co. v. Summerfield, 335 U.S. 372, 78 S. Ct. 365, 2 L. Ed. 2d 352 (1958). The Roth test was disregarded. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). Accordingly, return of copies of the periodicals not necessary for use ...