about to achieve the suppression of a publication he personally deemed objectionable and succeeded in his aim. The parties stipulated that prior to the release of the Mayor's letter, May, 1984 editions of Hustler magazine were available at local newsstands. Shortly thereafter, Hustler magazine could not be locally obtained. The testimony established that the City dispatched plain clothes police officers to survey newsstands to monitor and assure compliance with the Mayor's mandate. Several vendors testified that they removed the publication because of the Mayor's letter. In addition, the plaintiffs testified that they attempted to purchase the magazine after the Mayor's edict, and could not do so.
Against this evidence, this Court rejects as untenable the City's position that the vendors voluntarily removed the publications from their shelves. When confronted with threats of prosecution, as we are in this case, the Supreme Court has held that courts are to look through form to the substance to determine if informal censorship has sufficiently inhibited circulation of a protected publication. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963).
In Bantam Books, 372 U.S. 58, 9 L. Ed. 2d 584, 83 S. Ct. 631, the Supreme Court examined the legality of a state created commission whose practice was to notify a distributor that it had received books or magazines that the commission found objectionable for distribution to youth. After receiving the notice, the distributors would stop further circulation. Thereafter, a local police officer would visit the distributor to determine what action had been taken. The Supreme Court held that the scheme in Bantam Books constituted an impermissible prior restraint on First Amendment freedoms. In particular, the Court noted that the distributors and retailers, by reason of intimidation and threat of prosecution, were forced to cease selling the publications.
The method adopted and enforced by Mayor Caliguiri in this case is indistinguishable from the prior restraint in Bantam Books. The Mayor, through the use of a calculated scheme that involved public announcements and systematic police visits to retailers effected a "constructive seizure" of Hustler magazine. The evidence in this case conclusively establishes that the acts of the City officials directly and designedly stopped circulation of Hustler magazine throughout the City of Pittsburgh.
In this case, like the cases of Bantam Books, 372 U.S. at 68, and Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353, 1360 (5th Cir. 1980), the vendors would have violated no law if they had refused to cooperate with the Mayor's directives. In Bantam Books and Penthouse the courts nonetheless held that compliance was not voluntary. Similarly, the vendors' compliance with Mayor Caliguiri's directives in this case was not voluntary. The law does not exist in a vacuum apart from the facts and courts are not required to blind themselves to matters of human experience. As the Supreme Court noted in Bantam Books, "people do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around. . . ." Id. at 68. Both human experience and the facts of this case demonstrates that the mere threat of police action will in most cases result in the threatened person desisting from the contemplated action, although the proposed action may be entirely legal. See United Artists Corporation v. Gladwell, 373 F. Supp 247 (N.D. Ohio 1974). On this point, this case is particularly instructive.
In this case, the Mayor's letter and the police surveillance can be reasonably interpreted as conveying to the vendors that some form of punishment would follow if they failed to accede to the Mayor's official request. To employ coercive state power to stifle protected speech, as was done in this case, amounts to an informal system of prior restraint. The plaintiffs have demonstrated by a clear preponderance of the evidence that the distribution of a publication, which has not been judicially determined to be obscene, has been deterred by the Mayor's official pronouncements. Thus, this Court concludes that the procedures employed by the City officials in this case has resulted in a "constructive seizure" of Hustler from the shelves of Pittsburgh's newsstands and created an informal system of prior restraint. See Penthouse International, Ltd., 610 F.2d at 1361. Accord, Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983); Drive In Theatres, Inc. v. Huskey, 435 F.2d 228, 230 (4th Cir. 1970); United Artists Corporation v. Gladwell, 373 F. Supp. 247, 250 (N.D. Ohio 1974).
IV Constitutionality of Mayor's Prior Restraint.
A judicial finding of prior restraint does not end this Court's inquiry. For prior restraints are not per se unconstitutional. See Bantam Books, 372 U.S. at 70 n. 10; Near v. Minnesota, 283 U.S. 697, 716, 75 L. Ed. 1357, 51 S. Ct. 625 (1931). Our courts have never recognized an absolute or unbridled right of free speech. However, "any system of prior restraint . . . 'comes to this Court bearing a heavy presumption against its constitutional validity. '" See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975), citing, Bantam Books, 372 U.S. at 70. (citations omitted).
Prior restraints of free speech require the most exigent circumstances for justification. See Near v. Minnesota, 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct. 625 (1932). To be lawful, a system of prior restraint "first, must fit within one of the narrowly defined exceptions to the prohibition against prior restraint, and, second, must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech". Southeastern Promotions, 420 U.S. at 559, citing, Bantam Books, 372 U.S. at 71. It is against this background of judicial analysis of prior restraint, that any system of civil regulation of supposedly obscene material must be reviewed, bearing in mind that until there has been a judicial determination of obscenity, there is a strong presumption that words and speech are within the range of First Amendment protection.
The case before this Court does not present an established judicial exception to the doctrine of prior restraint. The City did not seek to reasonably regulate the time, place or manner of a facility. See Cox v. New Hampshire, 312 U.S. 569, 574, 85 L. Ed. 1049, 61 S. Ct. 762 (1971). Nor is there a need to balance competing equities because the rights of others may be infringed. See Kovacs v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448 (1949). This is not a captive audience case. See Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (1974). Nor was this a case of a mere temporary bar of one's First Amendment rights pending necessary judicial proceedings. See Heller v. New York, 413 U.S. 483, 37 L. Ed. 2d 745, 93 S. Ct. 2789 (1973).
Clearly, the Mayor's conduct does not fall within a recognized judicial exception to the doctrine of prior restraint. The city does not argue to the contrary. Nor was the restraint in this case accomplished with the procedural safeguards required by law. The Supreme Court has repeatedly held "that a system of prior restraint 'avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. '" See Southeastern Promotions, 420 U.S. at 559, citing, Freedman v. Maryland, 380 U.S. 51, 58, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965).
Publications presumptively protected by the First Amendment enjoy substantial procedural safeguards before there can be a lawful "constructive seizure." The Supreme Court has held that the Constitution, at minimum, requires the imposition of a neutral, detached magistrate to make an independent judicial determination of obscenity, vel non, before the seizure of allegedly obscene material. See Heller v. New York, 413 U.S. 483, 37 L. Ed. 2d 745, 93 S. Ct. 2789 (1973); Roaden v. Kentucky, 413 U.S. 496, 37 L. Ed. 2d 757, 93 S. Ct. 2796 (1973). This is true "because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression. . . ." See Freedman v. Maryland, 380 U.S. 51, 58, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965). Otherwise, absent adequate procedural safeguards, a system of prior restraint runs afoul of the First Amendment.
Prima facie, the Pennsylvania obscenity statute provides the necessary procedural safeguards to ensure against the danger of a censorship system suppressing constitutionally protected speech. See 18 Pa. Cons. Stat. § 5903 (Purdon's 1973). The plaintiffs do not assail the constitutionality of the Commonwealth's obscenity statute; nor does this court address that question. It is enough to note that a valid state procedure for determining obscenity exists, but was not resorted too in this case. Herein lies the legal infirmity of the Mayor's actions.
The procedure adopted and enforced by Mayor Caliguiri was dramatic and devastating. His actions directly resulted in the suppression of every May, 1984, edition of Hustler magazine in the City of Pittsburgh. The Mayor's constructive seizure was accomplished prior to an independent determination by a neutral, detached magistrate or judge that the constructively seized publication was in fact obscene. The issue of obscenity was never examined by a judicial tribunal in advance of the Mayor's actions. To date, there has been no adjudication on the issue of obscenity.
In essence, Mayor Caliguiri unilaterally suspended the public's fundamental right of due process of law, such as adequate notice and an opportunity to be heard on the question of obscenity. These minimum procedural safeguards are clearly provided for in the Pennsylvania obscenity statute.
Moreover, the United States Supreme Court has held that these safeguards are constitutionally required. "For if seizures of books precedes an adversary determination of their obscenity, there is a real danger of abridgement of the right of the public in a free society to unobstructed circulation of non obscene books." Bethview Amusement Corp. v. Cahn, 416 F.2d 410, 412 (2d Cir. 1969). In sum, the City's enforcement activities in this case, prior to an adjudication upon the issue of obscenity, amounts to an informal prior restraint in violation of the First and Fourteenth Amendment. Injunctive and declaratory relief against this form of prior restraint is clearly appropriate.
It is important to note that this is not an obscenity case. The issue of obscenity is not before this Court. Today, this Court does not address the question of whether the Easter edition of Hustler magazine is obscene under the state or local obscenity laws. Nor does this Court rule on the correctness of the Mayor's belief that the suspect edition of Hustler magazine is legally obscene. Likewise, that question is not before this Court because the proper mechanism for assessing the obscenity of a publication has not been engaged and no judge or jury has been requested to pass on the question of whether the Easter edition of Hustler magazine is legally obscene.
What this Court does today is to condemn the Mayor's informal and unlawful prior restraint on the distribution of any supposedly obscene publication without first availing himself of the proper remedies provided by law. Even assuming that the suspect publication is obscene under the local or state obscenity laws, and that the Mayor acted in a good faith belief that the magazine was obscene, this Court's decision nonetheless rejects the notion that an elected public official can use unlawful means to achieve a lawful objective, i.e., to thwart the publication or distribution of obscene material. Today, this Court affirms the long standing principal, that as a nation of laws, our society rightfully expects its public officials to observe proper and lawful procedures in enforcing the law; lest we make a mockery of the concept of government by the people, for the people.
Moreover, this case points up the inherent vice of an informal system of censorship. Throughout these proceedings, the City has stringently maintained that the Mayor acted with great restraint by seeking voluntary compliance instead of instituting civil or criminal proceedings against the vendors. To this end, counsel for the City maintained that "it takes an extreme act of cowardice to require the Mayor to arrest four dollar an hour [wage earning retail clerks] so that others can enjoy First Amendment rights".
To be sure, the City raises salutory concerns. But the concerns expressed by the City in this case are not the proper focus of First Amendment objectives. It is the City's misplaced concerns, however, that pointedly illustrates the perils of prior restraint. For example, the Mayor's letter indicates that he had not actually reviewed the Easter edition of Hustler magazine prior to the issuance of his ban. The standards used to determine the obscenity of Hustler magazine was based on the Mayor's personal sensibilities, derived from a hearsay description of the magazine's contents, not from a judicial application of the legal standards provided for in the Pennsylvania obscenity statute. In this case, no judge, magistrate or jury was requested to rule on the question of obscenity; no notice was given; and no hearing was held. These are the proper concerns of fundamental fairness, due process of law and the First Amendment; rights that are not to be taken lightly. The record amply demonstrates that the concerns of due process of law played no role in the Mayor's unilateral determination that the publication was obscene. For this reason the Supreme Court has consistently denounced the power of public officials to censor in advance of actual expression, publication or circulation. In this regard, the Supreme Court has declared that "the danger of censorship and abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 553. For these reasons, this Court is compelled to grant the plaintiffs' petition for permanent injunction against the defendants in this case.