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May 20, 1969


The opinion of the court was delivered by: MASTERSON

 On April 23, 1969, the City of Philadelphia filed a complaint in equity, No. 5380, April Term, 1969, in the Court of Common Pleas, Philadelphia, Pennsylvania, against the defendants, 19th and Chestnut Street Corporation, David Holt, Donald Rugoff, Rose Rugoff, and Stanley S. Silverman. The corporate defendant and the individual defendants are the owners and operators of the Cinema 19 motion picture theatre which is located at 19th and Chestnut Streets in Philadelphia. Commencing on April 23rd and continuing until the present date the defendants have been exhibiting at the Cinema 19 a film entitled "I Am Curious - Yellow", a Swedish film of controversial nature which has been received in the United States with mixed aesthetic and legal reviews. *fn1"

 In its complaint the City charges that the defendants' exhibition of "I Am Curious" constitutes "* * * a public nuisance as well as a display of public obscenity and pornography." Complaint, P13. The City requests the state court to preliminarily and permanently enjoin this nuisance because the "* * * film is designed to appeal to a prurient interest in sex; is patently offensive in that it affronts the contemporary community standards relating to the description or representation of sexual matters * * * is a graphic portrayal of sexual intercourse between a male and female under varying circumstances including scenes of oral-genital activity * * * is for the purpose, among others, of promoting the vilest behavior in adults as well as minors * * * is wholely devoid of artistic values and is without any redeeming social or entertaining value * * * (and) would cause irreparable harm and damage to the morals of the citizens of the City of Philadelphia * * *". Complaint, P s 9, 11, 12 and 14. The City supports its complaint with an affidavit sworn to by Frank A. Scafidi and Joseph Browne, the Chief Inspector and Staff Inspector respectively of the Philadelphia Police Department, municipal officers who twice have viewed the film and who state that in their opinions the film is obscene. *fn2" It is clear from both the complaint and the affidavit that the City's position that the showing of this film constitutes a nuisance is grounded upon no allegation as to the nature of the film or its manner of exhibition other than the allegation that the film is obscene, and that, in effect, the City's prayer to enjoin a nuisance is actually a prayer to enjoin the exhibition of an allegedly obscene film. *fn3"

 Upon consideration of the complaint, and the affidavit and exhibits attached to it, the Court of Common Pleas on April 23rd granted a rule upon the defendants to show cause why a preliminary injunction should not issue on April 29th restraining the continued exhibition of "I Am Curious". The Complaint, and the rule to show cause, were served upon the defendants on April 24th. No further proceedings have been conducted in the state court due to the filing on April 28th of defendants' Petition for Removal of the case to this Court.

 The defendants advance their petition for removal pursuant to Title 28 U.S.C. §§ 1441 and 1443, and argue that removal is appropriate because the matter in controversy exceeds the sum of $10,000.00, and because the claim asserted by the City arises under the Constitution and laws of the United States and is a claim over which this Court has original jurisdiction pursuant to Title 28 U.S.C. §§ 1331, 1343(3), and 1343(4). In their petition the defendants also urge that removal is supported by a consideration of the following factual circumstances: (1) the equity complaint was filed by the City Solicitor of the City of Philadelphia, contrary to the provisions of Pennsylvania statutory law, Title 18 P.S. § 4524; (2) the City Solicitor instituted this action despite knowledge that the Court of Appeals for the Second Circuit had held the film not to be obscene; (3) the affiants to the complaint allege that the film is obscene despite their knowledge that the Court of Appeals decided to the contrary; and (4) the institution of the suit has had a "chilling effect" on the defendants' First Amendment rights. In an amendment to their petition for removal the defendants further assert that the Pennsylvania Obscenity Law, Title 18 P.S. § 4524, is on its face unconstitutional, and that the City's failure to cite this statute "* * * constitutes a subterfuge designed to disguise the fact that it proceeds in state court on a facially unconstitutional statute." Petition for Removal, P11.

 On May 1, 1969, Grove Press, Inc., a New York corporation which is the importer and national distributor of this motion picture, filed an independent action in this Court, naming the City of Philadelphia as a defendant. Grove claimed federal jurisdiction of its action pursuant to Title 28 U.S.C. § 1332, diversity of citizenship, Title 28 U.S.C. § 1331, the existence of a federal question, and Title 28 U.S.C. § 1343, on the theory that this is a civil rights action under Title 42 U.S.C. § 1983. Grove has asked that this Court preliminarily and permanently enjoin the City of Philadelphia, and its officers and agents, from further prosecutions, proceedings or acts interfering with the continued exhibition in Philadelphia of "I Am Curious". It also requests this Court to render a declaratory judgment under Title 28 U.S.C. §§ 2201, 2202, that "I Am Curious" is not obscene but rather artistic expression protected from governmental interference by the First and Fourteenth Amendments to the United States Constitution.

 In its complaint Grove claims that the pendency of the City's suit in the state court has had, and continues to have, both a "chilling effect" on its constitutional rights of free expression and an irreparably detrimental impact upon its contractual relations with exhibitors in cities other than Philadelphia. In support of these claims Grove offered testimony at a hearing conducted here on May 6, 1969, and both parties argued the merits of the case on Friday, May 9, 1969.


 Although Grove Press is not a named party in Civil Action No. 69-934, which is the case sought to be removed here, it has made an oral motion pursuant to Rule 42 of the Federal Rules of Civil Procedure to consolidate the action it has instituted here, i.e. Civil Action No. 69-972, with Civil Action No. 69-934. Because of the common questions of fact and law involved in both cases consolidation of these cases would seem desirable as a practical matter. But since the Court has concluded that the action started in the state court is not properly removable here, see infra, p. 289, it seems clear that this Court can not acquire jurisdiction over that case by consolidating it with a case over which it unquestionably has jurisdiction. Accordingly, Grove Press's motion to consolidate is denied. Since the Court's holding in the case over which it has jurisdiction has a direct effect on the case which has been removed, however, the Court has concluded that it would be best to decide both cases in a single opinion.

 Having considered the legal and factual contentions of all parties to these actions the Court has decided that: (1) in Civil Action No. 69-972 the defendant's motion to dismiss will be denied, the plaintiff's request for a preliminary injunction will be granted, and the plaintiff's request for further declaratory relief will be denied; and (2), in Civil Action No. 69-934 the plaintiff's motion to remand will be granted conditionally in the event that the injunction granted in Civil Action No. 69-972 is subsequently dissolved.


 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.

 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 ...

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