The opinion of the court was delivered by: SIMMONS
Today this Court is called upon to review the legality of actions taken by a local public official in calling for the removal of Hustler magazine from local newsstands. This is not an obscenity case; nor does this Court rule on the obscenity of Hustler magazine.
This is an action for injunctive and declaratory relief under 42 U.S.C. §§ 1983 and 1988 and under the First and Fourteenth Amendments to the United States Constitution. In this action the plaintiffs seek to enjoin the City of Pittsburgh, acting through its Mayor, Richard S. Caligiuri, and other City employees, from prohibiting the exhibition, distribution and sale of the May, 1984 edition of Hustler magazine.
On April 17, 1984, plain clothes City police officers were dispatched to local newsstands to determine whether the May, 1984 edition of Hustler was being distributed. After the police surveillance determined that the magazine was being sold, Mayor Caliguiri released a letter to local media organizations addressed to "all magazine and news dealers." In his open letter, the Mayor expressed his personal distaste of the contents of Hustler magazine and "urged every business person who sells Hustler to immediately remove the so called Easter edition from their shelves. . . ." In concluding, the Mayor noted that the news dealers "cooperation [would] eliminate the need for the City to engage in a massive sweep of all news stands and stores and the initiation of criminal proceedings. . . ."
On the basis of the Mayor's action, the American Civil Liberties Union (ACLU) and several named plaintiffs filed this suit seeking injunctive and declaratory relief. In short, the ACLU contends that the Mayor's conduct amounts to an unconstitutional prior restraint on First Amendment freedoms in that it "chilled" the plaintiffs rights to secure constitutionally protected information.
Because no vendors are named plaintiffs, the City contends that the ACLU has no standing to bring this action. In addition, the City asserts that the Mayor's conduct did not rise to the level of a prior restraint because it merely called for voluntary compliance with state and local obscenity laws; no newsstands were raided, nor were any publications seized. The ACLU disagrees and argues that the publications were constructively seized and that the plaintiffs have standing to bring this action.
II. Standing: Who Can Sue?
The threshold consideration in this case is whether the ACLU and the several named plaintiffs are the proper parties to this litigation. Standing is a jurisdictional question and must be determined at the outset, for it concerns the power of federal courts to hear and decide cases. See Weiner v. Bank of King of Prussia, 358 F. Supp 684, 695 (E.D. Pa. 1973). The standing to sue doctrine is a legal requirement that the plaintiffs have been injured or threatened with injury by the governmental action complained of. In essence, a party must have a sufficient stake in a justiciable controversy to obtain judicial resolution of that controversy. See Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). The standing requirement is satisfied only if the plaintiffs have a legally protectible and tangible interest at stake in the litigation, for the essence of standing is that no person is entitled to assail the constitutionality of an act unless he is adversely affected.
The plaintiffs in this case are the American Civil Liberties Union Greater Pittsburgh Chapter and three named individuals. The ACLU is a non-profit organization chartered in the Commonwealth of Pennsylvania. It has a local membership of approximately 2,000 persons and is dedicated to the preservation of constitutional rights. The ACLU avers that its members have an interest in being able to freely obtain constitutionally protected publications and, as citizens in a free society, to determine for themselves whether it offends their personal sensibilities.
Samuel Moore, a named plaintiff, is a resident of the City of Pittsburgh. Moore testified that he frequently purchased Hustler magazine for its religious satire. Barbara Paull, also a named plaintiff, is a free-lance journalist who frequently writes on topical issues. Paull testified that as a writer her "livelihood depends on being informed" and that she has an interest in the publication to determine if she wishes to write about the edition. Doctor Daniel Milberg, also a named plaintiff, is a Professor of Psychology at the University of Pittsburgh. Doctor Milberg teaches courses in human sexuality and the psychology of women. Doctor Milberg testified that in his classes he often discusses matters of current interest and that he was particularly interested in the publication after it became controversial. Each of the named plaintiffs attempted to purchase a copy of Hustler magazine after the Mayor released his letter, but were unable to do so.
Broadly put, the question the City raises is whether these litigants are entitled to have this Court decide the merits of the legal controversy before it. The City alleges that, without the vendors as named plaintiff, the ACLU cannot demonstrate the type of concrete and particularized injury to themselves sufficient to confer standing. This Court does not agree.
Prior decisions of the United States Supreme Court have unequivocally established an independent right to receive information sought to be communicated as a protected right under the First Amendment. See generally Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748, 756, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1975); Procunier v. Martinez, 416 U.S. 396, 408-09, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-63, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972); Lamont v. Postmaster General, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965). In the case of Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976), the Supreme Court has declared that "freedom of speech presupposes a willing speaker. But where a speaker exist . . . the [First Amendment] protection afforded is to ...