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ACLU v. CITY OF PITTSBURGH

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


April 25, 1984

THE AMERICAN CIVIL LIBERTIES UNION, GREATER PITTSBURGH CHAPTER, INC., a Pennsylvania Corporation, SAM MOORE, BARBARA PAULL, and DANIEL MILBERG, individuals who reside in the City of Pittsburgh, Plaintiffs,
v.
CITY OF PITTSBURGH, a Home Rule Charter Municipality, RICHARD S. CALIGUIRI, individually and as Mayor of the City of Pittsburgh, Defendants

The opinion of the court was delivered by: SIMMONS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AND NOW, to wit, this 25th day of April, 1984, in aid and support of the accompanying written Opinion and the previously rendered Bench Opinion, this Court makes the following specific Findings of Fact and Conclusions of Law:

I. Findings of Fact.

 1. The American Civil Liberties Union, Greater Pittsburgh Chapter, Inc., is a non-profit organization, chartered in the Commonwealth of Pennsylvania and is dedicated to the preservation of constitutional rights.

 2. The named plaintiffs, Samuel Moore, Barbara Paull and Daniel Milberg, are residents of the City of Pittsburgh who have purchased Hustler magazine on previous occasions and have a continuing interest and desire to purchase the same.

  3. The defendant City of Pittsburgh is a Home Rule Charter Municipality organized pursuant to the laws of Pennsylvania.

 4. Defendant Richard S. Caliguiri is the Mayor of the City of Pittsburgh.

 5. On April 17, 1984, defendant Mayor Caliguiri directed a letter to the attention of all magazine and news dealers urging that they cease selling and immediately remove the 1984 Easter edition of Hustler magazine from their shelves and return the magazine to the publisher or distributor.

 6. In addition, the defendant Mayor's letter threatened "a massive sweep of all newsstands and stores and the initiation of criminal proceedings under state or local obscenity laws against all vendors who persist in selling [the 1984 Easter edition of Hustler ] magazine."

 7. At no time prior to the issuance of the defendant Mayor's letter had the defendant City sought a judicial determination, before a proper judicial tribunal, on the issue of whether the 1984 Easter edition of Hustler magazine violated state or local obscenity laws.

 8. Before the issuance of the defendant Mayor's letter, copies of the 1984 Easter edition of Hustler magazine could be obtained from magazine vendors within and from without the defendant City of Pittsburgh.

 9. Immediately after the issuance of the defendant Mayor's letter, no copies of the 1984 Easter edition of Hustler magazine could be obtained within the defendant City, but they could be obtained outside the defendant City.

 10. As a direct and proximate result of the directives contained in the defendant Mayor's letter, magazine vendors in the defendant City of Pittsburgh ceased and desisted from selling, circulating and distributing the 1984 Easter edition of Hustler magazine.

 11. Defendant City police officers were dispatched to magazine vendors throughout the City both before and after the issuance of the defendant Mayor's letter to determine first, the availability of the 1984 Easter edition of Hustler magazine and second, to monitor compliance with the defendant Mayor's directives.

 12. The parties in this litigation have stipulated that this case is ripe for the Court to resolve the plaintiffs' request for permanent relief.

 II. Conclusions of Law.

 a. Standing.

 13. The plaintiffs in this action have a legally protectible and tangible interest at stake in this litigation by virtue of their desire to receive a presumptively protected publication.

 14. The defendant Mayor's and the defendant City's actions in this case have caused and threatened and continues to cause and threaten the plaintiffs with irreparable harm and injury by a clear deprivation of their cognizable legal right to purchase, receive and read a presumptively protected publication, namely Hustler magazine.

 15. The plaintiffs in this action have a constitutionally protected right to purchase, receive and read the 1984 Easter edition of Hustler magazine, which at all relevant times and at the present time presumptively enjoys First Amendment protection.

 16. As potential recipients of Hustler magazine, a presumptively constitutionally protected publication, the plaintiffs herein have standing to bring this suit in the United States District Court for the Western District of Pennsylvania. See Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748, 756, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1975).

 b. Prior restraint.

 17. The defendant Mayor's and the defendant City's police actions directly and designedly stopped the circulation and distribution of Hustler magazine in the City of Pittsburgh.

 18. Although the vendors would have violated no law had they refused to accede to the defendant Mayor's official directive, their compliance with the defendant Mayor's directive was involuntary.

  19. The defendant Mayor and the defendant City, through the use of a calculated scheme that involved public announcements and systematic City police visits to local vendors, effected a "constructive seizure" of Hustler magazine in the City of Pittsburgh which violated the constitutional rights of the plaintiffs. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963).

 20. In substance, the defendant Mayor's and the defendant City's "constructive seizure" of Hustler magazine, without the benefit of a prior judicial determination of obscenity, created an informal system of prior restraint contrary to the provisions of the First and Fourteenth Amendments to the United States Constitution. See Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980).

 c. Constitutionality.

 21. The defendant Mayor's and the defendant City's conduct in this case does not fall within one of the recognized exceptions to the doctrine of prior restraint.

 22. Publications such as Hustler magazine are presumptively protected by the First Amendment and enjoy substantial procedural safeguards before there can be a lawful "constructive seizure" of such publications. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975).

 23. The United States Constitution requires the imposition of a neutral detached judicial officer to make an affirmative independent judicial determination of obscenity before the seizure of an allegedly obscene publication can be lawful. Heller v. New York, 413 U.S. 483, 37 L. Ed. 2d 745, 93 S. Ct. 2789 (1973).

 24. On its face, the Pennsylvania obscenity statute provides constitutionally adequate safeguards to ensure against the dangers of the informal system of censorship practiced by the defendants in this case. 18 Pa. Cons. Stat. ยง 5903 (Purdon's 1973).

 25. The defendant Mayor's and the defendant City's unlawful system of censorship "chilled" the First Amendment rights of publishers, distributors, vendors, retailers and potential recipients of Hustler magazine, a presumptively protected publication.

 26. The defendant Mayor's threatened "massive sweep" and "initiation of criminal proceedings" against vendors of Hustler magazine, prior to a judicial determination that the Easter edition of Hustler magazine was in fact obscene, is unconstitutional because it ignored constitutionally required procedural safeguards.

 27. The defendant Mayor's and the defendant City's unlawful system of prior restraint in this case amounts to an unconstitutional abuse of power in violation of the First and Fourteenth Amendments to the United States Constitution.

 28. Injunctive and declaratory relief against the defendant's system of prior restraint in this case is appropriate and is therefore granted.

 29. An appropriate order has been framed and filed in the above-captioned case.

19840425

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