creates the commercial advertisements and prepares them for delivery through the mails?
We have decided that both of these questions must be answered in the negative.
I. THE COMMERCIAL ADVERTISEMENTS
There is no dispute in this case that the First Amendment prevents the Government from searching for and seizing allegedly obscene materials until there has been an adversary hearing on the issue of obscenity. Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964); Marcus v. Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961). Indeed, even where the materials are later judicially determined to be obscene, the failure to hold an adversary hearing on the issue of obscenity prior to the issuance of the warrant has been held to be enough to allow the granting of a motion to suppress. See Marcus, supra. Anything short of an adversary hearing is constitutionally defective because it fails to adequately safeguard against the possible suppression of nonobscene materials.
The Government argues that, since the materials seized in this case are commercial advertisements, a prior adversary hearing as to their obscenity was not necessary. The apparent theory is that since commercial advertisements are not the "communication of information or dissemination of ideas or opinion," the safeguards of the First Amendment are inapplicable to them. Reliance is placed upon Valentine v. Chrestensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262 (1942), which, although distinguishable on its facts, stands for the proposition that "purely commercial advertisements" are not entitled to the protection of the First Amendment.
The Government's argument must be rejected. The mere fact that a leaflet or pamphlet is designed to sell something does not mean that it cannot also be a vehicle for the dissemination of ideas and opinions. Indeed, as Valentine v. Chrestensen, supra, holds, to offset the protection of the First Amendment, the leaflet must be considered "purely" commercial advertisement. See New York Times v. Sullivan, 376 U.S. 254, 265-266, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). It is our factual conclusion that the leaflets seized in this case go beyond pure commercial advertisement and reach an area which is at least colorably protected by the First Amendment. The leaflets, in addition to containing commercial messages, contain pictorial and verbal excerpts from the publications advertised for sale. These excerpts are a form of expression and are, thus, prima facie entitled to First Amendment protection.
Further, we think that the Government's attempt to remove the matter in question from the protection of the First Amendment by the device of labeling it "advertising" simply begs the question. It is seizable, if at all, not because it is advertising but only because it may be obscene. It is clear that if the Government attempts to restrict the dissemination of anything on the grounds that it is "obscene" it must satisfy the requirements of the First Amendment.
Hence, we hold that the advertisements seized in this case are colorably entitled to the protection of the First Amendment and as such should have been the subject of an adversary hearing on the issue of their obscenity before the search and seizure warrant issued. Accordingly, defendant's motion to suppress the seized advertisements is granted.
II. THE INSTRUMENTALITIES OF THE CRIME
The Government seeks to justify its seizure and retention of the defendant's postal meter machines, envelopes, addressoplates, etc., on the ground that these items are instrumentalities or evidence of the crime charged in the indictment. We believe, however, that since the Government could not seize the commercial advertisements here without a prior adversary hearing as to their obscenity then it could not seize the instrumentalities by which these advertisements are prepared and distributed. Further, even if the advertising in question were determined to be obscene after an adversary hearing, we do not believe that this should give the Government the right to seize and retain the instrumentalities of speech on the ground that they have been used in the production of speech which is obscene where, as here, there is evidence which shows that the defendant also dealt in publications which are colorably, if not unquestionably, not obscene.
We believe that the First Amendment requires such protection of an individual's right to disseminate, and the public's right to receive, constitutionally protected publications.
If the Government's argument on this point is accepted, they would be permitted to seize and retain the printing presses of a large metropolitan newspaper if a single commercial advertisement printed in the newspaper were determined to be obscene. The next step would be to seize a television network on the ground, perhaps, that its instrumentalities were used in connection with the dissemination of an obscene film. The scope of the power asserted is almost limitless. To permit the Government by this device to seize the very instrumentalities of speech would effect a much more drastic suppression of the opportunities of expression than any of the prior restraints which have been heretofore considered and condemned by the United States Supreme Court.
The statutes which the Court considered in those cases by their own terms purported to restrain only limited categories of speech. The power sought here is the right to seize the instrumentalities so that they cannot be used to disseminate any speech at all. Even the most primitive view of the First Amendment's protection would not, in our opinion, sanction so massive and permanent a prior restraint on speech before an adversary hearing had determined that the instrumentalities were used in connection with the production of obscene speech. Further, since the instrumentalities in this case were used in connection with the production of some clearly protected matter, we do not believe that they could properly be seized and retained even after a prior adversary hearing had determined that they were also used in the production of obscene speech.
Accordingly, we will grant the defendant's motion to suppress the seized instrumentalities.
And now, this 30th day of April, 1970, it is hereby ordered that defendant's Motion to Suppress is granted;
It is further ordered that the United States Government shall return forthwith all items seized pursuant to the execution of the search warrant dated February 19, 1970;
It is further ordered that the effect of this Order be stayed until 5:00 P.M., Tuesday, May 5, 1970, to allow the Government, if it is so minded, to apply to the United States Court of Appeals for the Third Circuit for a stay in this Order. No further stays will be granted by this Court.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA CRIMINAL ACTION NO. 70-57
CLARK P. POLAK ORDER
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