Appeal from order of Superior Court, Oct. T., 1969, Nos. 1075 and 1076, affirming judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1963, No. 152, in case of Commonwealth of Pennsylvania v. Eugene Armao and Arnold Orsatti.
Angelo A. Guarino and David F. Maxwell, with them Obermayer, Rebmann, Maxwell & Hippel, for appellants.
David Richman, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice O'Brien dissent. Former Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.
We must here decide whether the Pennsylvania statute pertaining to criminal libel, Act of June 24, 1939, P. L. 872, § 412, 18 P.S. § 4412,*fn1 and the Act of April 11, 1901, P. L. 74, § 1, 19 P.S. § 801,*fn2 as modified by Article I, Section 7 of the Pennsylvania Constitution,*fn3
is of any further force or effect in light of a series of recent decisions by the United States Supreme Court concerning libel and the First Amendment.*fn4 Upon review we find that neither the statutes nor the last sentence of Article I, Section 7, comport with our basic federal constitutional guarantees concerning freedom of speech and freedom of the press.
Little dispute exists as to the relevant factual background. Appellant Arnold R. Orsatti owned and published a weekly newspaper, Il Popolo Italiano, on which appellant Eugene V. Armao served as the Managing Editor. According to its signature, the paper is "Circulated From Coast-to-Coast And Throughout Italy With Major Bureaus in Philadelphia and Rome" and is "The Largest Weekly Newspaper in both English and Italian in America."
On April 10, 1963, an article appeared on the front page of the paper, authored by Armao and headlined: "Liquor Trade Tabloid 'Observer' Linked to Operation of Notorious S. A. Club". The pertinent portion of the article containing the alleged libelous matter reads: "The name James Buchanan, Associate Editor of the liquor trade tabloid 'Observer' (which wields considerable influence with members of the liquor industry and the Pennsylvania State Liquor Control Board) also appears as the President and Director of the notorious S. A. Club (Sports Alliance) at 212 South 13th Street, while Mr. James Buchanan is also listed as a director of the CR Club (Club Revel, Incorporated) at 810-12 South Darien Street. The S. A. Club has been well-known as a hangout for sex deviates. It is housed in a building owned by Cove, Inc., with relatives of Frank Palumbo on the Board."
Appellants were subsequently indicted and charged with several counts of criminal libel in violation of the Act of June 24, 1939, supra. Trial was held before a court sitting without a jury, and on August 28, 1964, appellants were adjudged guilty solely on Bill No. 152 concerning the Il Popolo Italiano article. Post trial motions were made on their behalf, and while the motion in arrest of judgment was denied, the motion for a new trial was granted on June 23, 1965, because of possible prejudice to appellants due to the consolidation of the numerous libel counts, on all but one of which they had been found not guilty.
After a motion to quash the indictment was denied, appellants were retried on Bill No. 152 on June 18, 1968, before a court and a jury, and again they were adjudged guilty. Post trial motions were denied by the court en banc on January 23, 1969, and on July 3, 1969, appellant Orsatti was sentenced to fifteen days in prison and appellant Armao received a $400 fine.
The Superior Court affirmed per curiam without opinion on March 20, 1970,*fn5 and ...