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decided: November 12, 1968.


Appeal from decree of Court of Common Pleas of Allegheny County, Oct. T., 1968, No. 888, in case of Commonwealth v. Guild Theatre, Inc. et al.


Hubert I. Teitelbaum, with him Martin M. Sheinman, Sidney Silverblatt, Edmund C. Grainger, of the New York Bar, and Morris, Safier & Teitelbaum, for appellants.

Gerald C. Paris, Assistant District Attorney, with him Louis Abromson, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Jones join in this concurring opinion.

Author: O'brien

[ 432 Pa. Page 379]

The defendants, appellants here, are the Guild Theatre, Inc., and S. Ralph Green and Millard B. Green, officers of the defendant corporation. On July 16, 1968, the appellants began the exhibition of the motion picture, Therese and Isabelle. Late in the afternoon of July 19, 1968, the District Attorney of Allegheny County filed a complaint in equity alleging that the movie was obscene and requesting an injunction restraining the defendants from exhibiting the movie. Appellants received no notice of the filing of the complaint, nor of the hearing which took place later that evening before Judge Brosky. Apparently there was some testimony that the picture was obscene, but there is no record of that ex parte hearing. An injunction against the showing of the movie was issued, and the District Attorney proceeded to the theater around ten o'clock in the evening to close the movie. A hearing on a final injunction was set for July 23, 1968, at

[ 432 Pa. Page 380]

    which time appellants' counsel requested a continuance to study the problem. On July 30, 1968, appellants' counsel filed preliminary objections, raising several objections to the procedure followed. These included assertions that: (1) An injunction should not have been issued without notice. (2) An injunction should not have been issued to restrain the showing of a motion picture without a prior determination of obscenity in an adversary judicial proceeding. (3) The District Attorney had no authority to file the complaint in equity. (4) There was a complete and adequate remedy at law. Oral argument was had before Judge Weis on these preliminary objections, at the conclusion of which oral argument the court requested the District Attorney to file a brief by August 2, 1968. On Monday, August 5, 1968, further argument was held following which the court delivered an oral opinion from the bench overruling the preliminary objections, holding that the District Attorney had the power to enjoin an obscene movie as a public nuisance. Although the court expressed its readiness to proceed to the merits of the obscenity question, the defendants chose to appeal to this Court.*fn1

We hold that the court below erred in granting the injunction and overruling the preliminary objections. The procedure followed in this case was shockingly defective in at least two respects -- the hearing without notice on the evening of July 19th, and the censorship without provision for a prompt judicial decision.

The hearing which transpired on July 19, 1968 was reminiscent of the Star Chamber proceedings of yore.

[ 432 Pa. Page 381]

It was held ex parte, and no record was made of those proceedings. Without desiring to impugn the motives of any who participated in these proceedings, it must be apparent that such practices must not be allowed to continue. Rule 1531(a) of the Pennsylvania Rules of Civil Procedure provides: "A court shall issue a preliminary injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held . . ." (Emphasis ours). Here no attempt to give notice was made. In the several hours that elapsed between the filing of the complaint and the hearing, it may well have been possible to give notice. In any event, the viewing of the motion picture by a few hundred people could hardly constitute such irreparable injury as to justify the abandonment of the precious safeguard of an adversary hearing, and the granting of an injunction, without even a bond to protect appellants' financial position.

However, even if a proper hearing had been held, the instant proceeding was fatally defective in another respect. There is no doubt that motion pictures are protected by the constitutional guarantee of freedom of speech. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S. Ct. 777 (1952). It is true that obscenity is not within the purview of the protections of the First and Fourteenth Amendments. Roth v. United States, 354 U.S. 476, 481, 77 S. Ct. 1304, and a long line of cases cited therein. However, the very question at issue here is whether this picture is obscene, and until it is judicially so adjudged, it is indeed entitled to those protections. The ...

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