Appeals from order of Court of Quarter Sessions of Philadelphia County, Feb. T., 1965, Nos. 266 and 297, in cases of Joseph Smith and William Mullan v. James C. Crumlish, District Attorney for City of Philadelphia.
David L. Creskoff, Assistant District Attorney, with him Stanley M. Shingles and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, in propria persona, for appellant.
Jacob Kalish, with him Harold Kohn, and Dilworth, Paxson, Kalish, Kohn & Dilks, for appellee.
Maurice Pollon, for appellee.
Jacob S. Richman, for American Civil Liberties Union under Rule 46.
Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Ervin, P. J., joins in this dissent.
[ 207 Pa. Super. Page 518]
This appeal raises important constitutional questions concerning the seizure of allegedly obscene motion picture films and the prosecution of exhibitors under certain sections of The Penal Code.
On November 23, 1964, in response to citizens' complaints, a member of the District Attorney's staff and a county detective viewed "Olga's House of Shame," a film which was being shown at the Devon Theater and the Art Spruce Theater. The following day the detective applied to a Philadelphia magistrate for a search and seizure warrant, alleging that the motion picture was obscene and in violation of § 528*fn1 and § 529*fn2 of the Pennsylvania Penal Code. The magistrate found probable cause to believe that the film was obscene and issued the warrant. Later that day the managers of both theaters were arrested and the films were seized. A preliminary hearing was scheduled for November 25, 1964, but was continued at the request of the defense attorneys to enable them to view the motion picture. At a preliminary hearing on January 21, 1965, the magistrate held the defendants for action by the Grand Jury which subsequently indicted them on January 28, 1965. On February 8, 1965, defendants filed motions to quash the indictments and to suppress the evidence in the Court of Quarter Sessions of Philadelphia County. On March 19, 1965, the court below quashed the indictments holding that §§ 528 and 529 are unconstitutional.
[ 207 Pa. Super. Page 519]
Freedom of speech by means of motion pictures is protected by the First and Fourteenth Amendments to the Federal Constitution. While motion pictures may not necessarily be subject to the precise rules applicable to other modes of expression, the basic principles of free speech, as enunciated by the United States Supreme Court, make freedom of expression the rule, and limits on that freedom the exception. One recognized exception is that obscenity is not within the area of protected speech. Roth v. United States, 354 U.S. 476 (1957).
The principal question presented here is not whether the Commonwealth has the power to deal with obscenity, but whether the statutory language employed in the penal code is so broad or so vague as to inhibit legitimate expression. It is well established that a statute which is vague or overbroad is unconstitutional insofar as it may operate in the area of First Amendment freedoms. "The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a ...