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July 22, 1974

Martin SIEGEL et al.
Gerald SALISBURY et al.

Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 The court is concerned here with the rights of freedom of expression contained in the First Amendment to the United States Constitution being Article I of the Bill of Rights *fn1" which have been applied to the states through the Fourteenth Amendment. The case results from an Ordinance passed by Millcreek Township, Erie County, Pennsylvania, a second-class township of Pennsylvania, copy of which is attached hereto as Appendix I.

 While Millcreek is a second-class township under Pennsylvania law, nevertheless we must bear in mind that it is a suburban township surrounding the City of Erie on the south and west and has a population, according to the 1970 census, of approximately 40,000 making it one of the largest, if not the largest, second-class township in the state. It, as well as the hundreds of other local municipalities in Pennsylvania, enjoys the legislative police powers by amendments to the second-class township code in recent years. This Ordinance was enacted pursuant to such police power. See 53 Purdon's Pa.Stats. 65,712, 65,762 and 65,741. This Ordinance prohibiting public displays of photographs, drawings and other visual material depicting nudity or various types of sexual activities declares the same to be a nuisance when so displayed as to be visible without solicitation by members of the public in any building, state highway or township road.

 It appears from the testimony taken in this case that the Ordinance at first was sought by a small group of people in the township. *fn2" The original object was to prevent displays at drive-in motion picture lots where the screen was visible from the adjacent public highway. As a result of this, members of the public were treated to various scenes from X-rated movies, apparently to their annoyance. As study of the Ordinance went on, however, it was determined to make it broad enough to include displays of magazines and book covers in book stores and other places where books and periodicals were sold. The testimony is, however, that the only prosecutions brought under the Ordinance arise out of displays of magazines at the book store of the plaintiff Jan-Beck, Inc.

 The plaintiff, Jan-Beck, Inc., is operator of a book and periodical store in the West Erie Plaza, a shopping center in Millcreek Township, the store being known as the "Candy World Book City". It is an establishment engaged in selling of books, paperback books, magazines and other publications and materials. The plaintiff, Martin Siegel, against whom citations have been issued and scheduled for trial until a temporary restraining order was issued by this court is the leading stockholder and president of this establishment. At the time of hearing on the temporary restraining order, Lakeport Distributors, Inc., a wholesaler and distributor of books and periodicals was added as a party plaintiff pursuant to order of the court. However, its place of business is located in the City of Erie and the evidence does not disclose any threats to institute prosecutions against this corporate entity. Plaintiff Siegel is a director of Lakeport.

 The defendants are three Supervisors of Millcreek Township; Marshall, Chief of Police; Stevenson, the Police Officer in charge of enforcement of this Ordinance who issued the citations in question; and Charles R. Wise, District Justice of the Peace before whom prosecutions are now pending.

 The Ordinance in question, No. 74-6, was passed April 21, 1974. On May 21, 1974, and again on May 23, 1974, the defendant James Stevenson of the Millcreek Police appeared at the book store in question and on each date issued citations against plaintiff Siegel for allegedly violating the Ordinance through displaying at the book store certain magazines which were offered in evidence at the time of hearing and the covers of which are alleged to violate the Ordinance. The lapse of a day between the first citation and the second citation was for the purpose of determining if plaintiff Siegel would voluntarily comply with the Ordinance. Upon communicating with defendant Marshall, Chief of Police, he was informed that they proposed to enforce the Ordinance. The court determines that this was threat to put into effect the penal provisions of the Ordinance which, in Section 3, provides for a fine or penalty of not more than $300 and costs and in default thereof, imprisonment for not more than 30 days. "Each day's continuance of such violation shall constitute a separate offense punishable by a like fine or penalty". Hearing was set for June 6, 1974, before defendant Wise, Justice of the Peace in Millcreek Township. It is a simple matter of arithmetic to determine that if each day's exhibition of such magazines claimed to be in violation of the Ordinance could result in a $300 fine, then over the year assuming 300 days when the shop would be open, the fines could total $90,000 and in default of payment thereof, Siegel is subject to 9,000 days in jail. The court finds it a fact, as a legitimate inference from the evidence, that the defendants do intend to prosecute the plaintiff Siegel for each and every day in this manner and if it is determined that Siegel is not the one responsible for violation of the Ordinance, then such prosecutions will be brought against the corporation Jan-Beck, Inc. There is no evidence, however, of any threats or indication that the Ordinance will be enforced against Lakeport Distributors, Inc.

 This complaint was filed on June 3, 1974, with a motion for temporary restraining order. This member of the court immediately fixed June 5, 1974, at Erie as the time and place of hearing on the application. After a short hearing at which plaintiff's evidence was taken showing a prima facie case of violation of constitutional rights under the First Amendment, a temporary restraining order was issued restraining the prosecution until June 12, 1974, when a hearing was ordered held on plaintiff's application for preliminary injunction. On June 6, 1974, an amended complaint was filed detailing more specifically the grounds for plaintiff's action. Hearing was held on the preliminary injunction on June 12, 1974, and oral arguments were thereafter held on June 14, 1974. The parties, except defendant Wise, have filed extensive briefs in support of their respective positions. By agreement of counsel, the temporary restraining order was extended to and including July 22, 1974. At the hearing on the preliminary injunction, it was stipulated between counsel that defendant Wise did not care to take any position one way or another with respect to the matter, he being a judicial officer, but it was stated that he did consider that he had no authority to declare a municipal ordinance unconstitutional as being in violation of the Constitution of the United States.

 The court is thus faced with two issues: I. Are the nudity sections of Ordinance 74-6 in violation of Amendment I to the Constitution of the United States as applied to the states through the Fourteenth Amendment? II. Does this court have any authority to interfere with the prosecutions of the plaintiffs or any of them before Justice of the Peace Wise?

 I. The Validity Of The Nudity Sections Of The Ordinance.

 This Ordinance represents a novel approach to the problem of obscenity. It does not forbid the sale and distribution of magazines and books which may or may not be obscene under the decisions of the United States Supreme Court. Rather, it limits its impact to the "public displays of photographs, drawings and other visual material depicting nudity /--" or certain described sexual activities "which appeal predominantly to prurient interest in sex". The prohibitory provision of the Ordinance, Section I, does only apply to material "depicting nudity or sexual conduct or sado masochistic activities which appeal predominantly to prurient interest in sex when displayed so as to be visible and without solicitation by any member of the public at large, etc." It is recited, however, that "regardless whether such displays are 'obscene' within the meaning of the penal law and constitutional law, they are not constitutionally protected --".

 It will be noted that it is only the magazine covers of certain magazines which are deemed violations of this Ordinance, not the contents of the magazines themselves. As to what constitutes a violation of the Ordinance, there is apparently considerable disagreement between the police department and Mr. Salisbury, the Chairman of the Board of Supervisors. Mr. Salisbury admitted that it was not the intention of the Board of Supervisors to interfere with the production of any work of art. He apparently however, does not consider photography to be an art. From the witness stand, he found only two of the magazines in question which had been seized by the police to be violations of the Ordinance whereas the police found a total of ten to be in violation. This demonstrates the vagueness of the Ordinance as to what material depicting nudity is considered to appeal predominantly to prurient interest in sex. An attempt was made to cover this in Section 2 by defining nudity but if these definitions apply, then as the court pointed out no one would be safe in publishing a picture of Venus De Milo or Michaelangelo's David upon any magazine cover in Millcreek Township.

 It is obvious that it can be argued that there is some ambiguity in the Ordinance as to whether nudity in and of itself as defined in Section 2 is automatically prohibited in Section 1 unless in addition to the nudity it appears that the same appeals "predominantly to prurient interests". The confusion which this ambiguity engenders is obvious when examining the testimony of Officer Stevenson and comparing it with that of Supervisor Salisbury. There are endless arguments over whether a nipple is concealed by hair falling over the shoulders or not, the latter resulting in impermissible nudity under the Ordinance.

 It may be conceded that much of this Ordinance serves a useful purpose and the definitions of sexual conduct and sado masochistic activities constitute a valid attempt to define obscenity.

 In the present case, however, we are not concerned with obscenity as such or as defined in Sections 2(b) and (c). None of the exhibits constitute obscenity in the usual sense of the word and Siegel himself stated that it is not his policy to deal in magazines displaying any such activities upon their covers. It may be admitted that the Ordinance insofar as nudity is concerned is aimed at the so-called "girlie magazines". It is noted that there is a severability clause in Section 5 of the Ordinance so that if any section or clause of the same is held unconstitutional, this shall not affect the validity of the Ordinance as a whole. Since it cannot be said that the whole Ordinance is permeated with the vice of the attack on so-called nudity, it would not seem that the Ordinance as a whole is unconstitutional. We are, however, primarily concerned in this case with the anti-nudity sections.

 If the construction advocated by the township is correct, then it will mean that every time a prosecution is started, that is every day under the Ordinance, there will have to be a determination as to whether the magazine cover displaying nudity of a male or female is related to a prurient interest in sex or not. Since these are all national magazines which change every month the result will be a flood of litigation over each magazine. It will be noted that there is no attempt to have a prior determination as to whether the obscenity laws are violated before arrests are made.

 At the argument, the township solicitor conceded that nudity in and of itself is not a violation of the obscenity laws. As a matter of fact in the last sentence of the preamble, Millcreek indicates that it does not care whether the displays of nudity are obscene but nevertheless intends to prohibit them anyway.

 That nudity in and of itself is not obscenity is certainly true where the nudity is not concerned with other sexual acts or conduct. In fact, since the hearing on the preliminary injunction in this case, the Supreme Court of the United States has itself spoken in this respect in Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974), where the court said with respect to the motion picture Carnal Knowledge "there are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standard."

 Of course, the reverse is true that the First Amendment furnishes no protection for obscenity and it appears that the supervisors in enacting the Ordinance in question had to some extent relied upon the decision of the Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), which holds that obscenity is to be judged by community standards. Apparently the supervisors thought that they could as the result of this enact an Ordinance forbidding nudity as such. The community standards set up in Miller v. California have been criticized as providing for anarchy throughout the United States and they would obviously become impossible to apply to magazines circulated on a national basis. In its broadest interpretation, this doctrine would permit the Millcreek supervisors to re-enact rules and regulations formerly in effect with respect to the Presque Isle State Park at Erie requiring men to wear tops to their bathing suits. In Jenkins v. Georgia, supra, however, the United States Supreme Court has clearly stated that regardless of local community standards, it intends to reserve to itself the determination of saying that something is not obscene regardless of any local legislation. We find the same situation to exist here and it is our duty to say that nudity in and of itself as defined in this Ordinance is not obscene and cannot be prohibited. This is particularly true of the covers of nationally circulated magazines such as those in evidence. If this were a final order which we were entering in this case, we might be impelled to enter a declaratory judgment holding that Sections 1 and 2 of the Ordinance with respect to nudity alone are invalid as invasions of right of freedom of the press and freedom of speech. The court sees no reason to abstain from so holding until such time as the Pennsylvania courts have interpreted this Ordinance, because as stated regardless of what interpretation is given to it, it is still overly broad and vague with respect to magazine covers depicting nudity alone. The result will be a massive stream of litigation with respect to the cover of each individual magazine as to whether it displays nudity in relation to a prurient interest in sex.

 The question is, though, what can this court do about these ...

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