diversity jurisdiction. See, Title 28 U.S.C. § 1332. It is clear as well that there is federal jurisdiction over this case pursuant to Title 28 U.S.C. §§ 1331, 1343, since Grove Press has charged that the City's attempt to prohibit the exhibition of "I Am Curious - Yellow" constitutes a violation of Title 42 U.S.C. § 1983 and a violation of the First and Fourteenth Amendments to the Constitution.
As noted supra p. 284, Grove Press has requested this Court to grant it both injunctive and declaratory relief. Primarily, Grove seeks this relief for the purpose of vindicating its alleged constitutional right of freedom of expression as that right has been infringed by the pendency of the City's state equity action. Although Grove is not a party to the state suit its commercial relationship with the defendants in that action confers standing upon it to maintain this action. See, Kingsley International Pictures Corp. v. Blanc, 396 Pa. 448, 455, 153 A.2d 243 (1959). Grove also seeks relief in this Court for purposes of preventing the financial injury which it alleges has, and will, follow from the institution of the City's suit against the local exhibitor.
Grove contracted with the 19th and Chestnut Street Corporation which operates the Cinema 19 Theatre in Philadelphia, for an exclusive showing of "I Am Curious - Yellow" for a minimum period of six weeks. As consideration for its license to Cinema 19 Grove Press receives a percentage of the theatre's gross receipts. It is therefore apparent that Grove Press has a continuing direct financial interest in exhibition of this film, the value of which will vary in relation to the number of persons who view the film in any given week. Grove can expect to derive substantial revenue from the exhibition of "I Am Curious - Yellow" at the Cinema 19 for a period of time significantly longer than six weeks since the contract provides for continuing exhibitions at that theatre until receipts in any one week fail to equal or exceed $17,000.00 and since current receipts are in the order of $80,000.00 a week.
This Court has concluded that the complaint filed by the City of Philadelphia in the state courts is on its face offensive to the constitutional rights of Grove Press. For reasons discussed below, Grove Press is therefore entitled to an injunction prohibiting the City of Philadelphia both from continuing its current civil prosecution in the state courts, and from instituting any future actions to prohibit the exhibition of the film "I Am Curious - Yellow" on the ground that such exhibition constitutes a "nuisance".
The City has urged that this Court abstain from ruling on Grove's request for preliminary injunction because of the pendency of the proceedings in the state court. Although these proceedings involve different parties, the City urges that the same issues raised in this case can and should, be decided by the state court in that proceeding.
In Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444, the court held that it was improper for a federal court to abstain from ruling on a complaint seeking a declaratory judgment and an injunction where the allegation was that a statute regulating First Amendment rights was over-broad on its face. The court there made it clear that where the plaintiff's allegations were in substance that the over-breadth of a state regulatory scheme itself had a chilling effect on First Amendment rights, the Federal District Court was required to examine this claim on its merits and not abstain. Although a consideration of the Pennsylvania Obscenity Statute is not necessary for the result which we reach in this case, nonetheless the analogy between an over-broad statute which attempted to regulate First Amendment rights and an administrative attempt to regulate them on the ground that they constitute public nuisances is clear enough to require us to examine the merits of the plaintiff's claim.
Request For Injunctive Relief
The Supreme Court of the United States has repeatedly held that the First Amendment guarantee of freedom of speech which has been incorporated as a limitation on state action through the Fourteenth Amendment, prevents the states from interfering with freedom of speech except under the narrowest circumstances:
"The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." Roth v. United States, 354 U.S. 476, 488, 77 S. Ct. 1304, 1311, 1 L. Ed. 2d 1498 (1956).
See also, Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655, 71 L. Ed. 1108 (1927), Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931); Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931); Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937); Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938), and Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). And, of course, motion picture films have been classified as within the ambit of First Amendment protection. See, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S. Ct. 777, 96 L. Ed. 1098 (1951).
The result of this trend of decision has been that almost all state censorship laws which have been challenged have been found to be unconstitutional prior restraints on First Amendment rights. See Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 682-683, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1967), and cases cited therein. And, although states may attempt to regulate obscenity, which has been held to be beyond the protection of the First Amendment, see, Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 (1969), Times Film Corp. v. City of Chicago, 365 U.S. 43, 44, 49-50, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1960), and Roth, supra, 354 U.S. at 484, 77 S. Ct. 1304, even in this area a state is "* * * not free to adopt whatever procedures it pleases * * * without regard to the possible consequences for constitutionally protected speech", Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S. Ct. 1708, 1716, 6 L. Ed. 2d 1127 (1960). Thus where a state seeks to exercise its power to prevent dissemination of allegedly obscene material it must establish precise objective standards by which the work may be judged, as well as procedural safeguards adequate to insure that constitutionally-protected expression will not be unduly curtailed. See, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963), and Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1964).
It follows a fortiori from those cases in which federal courts have held invalid state statutory schemes regulating obscenity that suppression of expression on the "common law" ground that it is a public nuisance is necessarily prohibited by the First and Fourteenth Amendments. This conclusion has been recognized by the Supreme Court since the germinal case of Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S. Ct. 900, 84 L. Ed. 1213 (1939), in which the Court overturned a state conviction for the common law offense of breach of the peace when the state initiated its prosecution because of the defendant's expression of inflammatory religious views on a public street. In Cantwell the Court emphasized the important distinction between regulating speech and expression pursuant to a state statute narrowly drawn to prohibit a particular evil and attempting such restriction "* * * on a common law concept of the most general and undefined nature." The Court explained the critical defect in the former procedure in the following language:
"Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization and leaving to the executive and judicial branches too wide a discretion in its application." Ibid., 310 U.S. at 308, 60 S. Ct. at 905.
In seeking to enjoin exhibition of "I Am Curious - Yellow" the City of Philadelphia concededly has not proceeded under the Pennsylvania Statute which authorizes the regulation of the dissemination or exhibition of obscene materials. See, Title 18 P.S. § 4254 (Supp.1969).
This Statute may be an appropriate state legislative attempt to define specifically those kinds of materials which may be prohibited as obscene and, as narrowed by state judicial construction, it may establish a constitutionally valid scheme for proceeding against those who allegedly distribute and/or sell obscene material. See, Commonwealth v. Baer, 209 Pa.Super. 349, 227 A.2d 915 (1967). Although counsel for the City has suggested that reference to this Statute could be made in the course of the state proceeding, such reference, at best, would only be for the limited purpose of presenting some evidence of the state standard of obscenity and would not cure the substantial constitutional problems which characterize the nuisance proceeding.
The City's attempt to enjoin the continued exhibition of "I Am Curious - Yellow" on the ground that such exhibition is a nuisance is a procedure repugnant to the Due Process Clause of the Fourteenth Amendment in two respects; first, the substantive standard by which the alleged obscenity of the movie is to be judged, i.e., whether it is a "common law nuisance" is so broad as to sweep within its purview not only properly regulated activities but also constitutionally protected activities; and secondly, the same standard is so vague as to be meaningless to those whose activities are sought to be measured by that standard.
In Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967), the Supreme Court explained, in invalidating a state statutory scheme analogous to the state common law scheme here, why governmental regulation of speech must be carried out pursuant to precisely-worded, narrowly-drawn standards. It proscribed overly broad standards by noting that,
"* * * a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade an area of protected freedoms.", Ibid., 389 U.S. at 250, 88 S. Ct. at 396.