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filed: August 24, 1984.


No. 863 Philadelphia, 1982, Appeal from the Final Decree in the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, December Term, 1980, No. 3035.


Michael A. Bamberger, New York City, for appellants.

Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for appellees.

Rowley, Popovich and Montgomery, JJ.

Author: Rowley

[ 332 Pa. Super. Page 549]

This is an appeal from the Final Decree entered by the Honorable William J. Marutani, upholding Pennsylvania's obscenity statute against First Amendment attack. Following our review of the record, and consideration of the arguments presented within the briefs and at oral argument, we affirm.

On December 18, 1980, plaintiff-appellants,*fn1 representing publishers, wholesalers and retailers involved in the dissemination of printed materials, as well as the reading public, filed a Complaint in Equity seeking to have 18 Pa.Cons.Stat. § 5903(a)(1) declared unconstitutional. Section 5903(a)(1) prohibits the "display of any explicit sexual materials as defined in subsection (c) . . ."*fn2 Appellants requested special

[ 332 Pa. Super. Page 550]

    injunctive relief, to forestall enforcement of the statute prior to the preliminary hearing. Appellant's further sought a preliminary injunction, pending disposition of their request for a permanent remedy. Named as defendants were prosecutorial and law enforcement personnel within Philadelphia and Montgomery Counties.*fn3

The Honorable Eugene Gelfand scheduled a hearing on appellants' request for a preliminary injunction. Judge Gelfand declined, however, to issue the special injunction sought by appellants. Nevertheless, two of the defendants-appellees agreed to forego institution of criminal proceedings under the amended statute until after the preliminary hearing.*fn4

Following the preliminary hearing, held before the Honorable Stanley Greenberg, an Order was entered enjoining appellees Smyth, Bambi and Reedel, who had not appeared at the hearing, from enforcing or threatening to enforce the challenged provision against appellants or any member of

[ 332 Pa. Super. Page 551]

    appellant associations.*fn5 Furthermore, a final hearing was scheduled for December 26, 1980.*fn6

At no time prior to initiation of this action had any of the appellants been charged with violation of § 5903, or threatened with prosecution under the statute.*fn7 At the final hearing before Judge Marutani, however, the testimony of appellants' witnesses evidenced a perception on the part of booksellers and distributors that compliance with the statute necessitated the exclusion of all minors from store premises, or the display solely of materials suitable for children.

On December 11, 1981, Judge Marutani issued a written Adjudication with Decree Nisi finding § 5903(a)(1) constitutionally sound, and thus denying appellants' request for declaratory and permanent injunctive relief. The trial judge also dismissed the Complaint in Equity with prejudice.

Appellants' timely exceptions were dismissed on March 1, 1982, and the Decree Nisi was made final. Notice of Appeal to this court was filed on March 9, 1982.

On appeal from a final decree, the test is whether the trial court, in entering the decree, abused its discretion or committed an error of law. Neshaminy Const. v. Philadelphia, Etc., 303 Pa. Super. 420, 449 A.2d 1389 (1982). Appellants raise before us the following questions:

1. Are the terms "harmful to minors," "display," "minor," and "as part of the general public or otherwise" so vague that reasonable persons are not given notice of prohibited conduct?

[ 332 Pa. Super. Page 5522]

. Given its ambiguity, does § 5903(a)(1) impose an impermissible prior restraint on booksellers, by forcing them to choose between censoring publications prior to their display, or risking prosecution?

3. Does § 5903(a)(1), by reference to the statutory definition of "harmful to minors," unreasonably restrict adult access to non-obscene materials?

4. Does § 5903(a)(1) unreasonably restrict the access of minors to constitutionally protected materials, in that compliance with the statute may result in the exclusion of minors from bookstores, etc., thereby precluding their exposure to non-obscene (non-harmful) materials stocked therein?

5. Does the obscenity statute violate federal and state equal protection provisions by specifically exempting non-commercial establishments from its prohibitions?

6. Will the Rules of Statutory Construction permit the obscenity statute, as amended, to be construed as constitutional, given the equal protection violation?

Although responding to the substantive issues asserted here, appellees initially question appellants' standing to challenge the obscenity statute at this time. We address this latter contention first.

I. Standing

Appellants are four trade association,*fn8 one non-profit organization, one wholesale and two retail book distributors,

[ 332 Pa. Super. Page 553]

    and one individual. Collectively, appellants questioned the constitutional validity of the obscenity statute's display provision as applicable to them, although none of them had been prosecuted or threatened with prosecution. Furthermore, appellants alleged that enforcement, or the threat of enforcement, of the display provision will result in the constitutionally impermissible denial of protected materials to adults and minors in general. Given the unusual procedural posture of this case, and the significance of the First Amendment claims raised, we review, initially, general principles of standing.

Relying on United States Supreme Court procedents, the Pennsylvania Supreme Court, in Wm. Penn Parking Garage, Inc., v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-281 (1975), summarized the concept of standing:

[A] person who is not adversely affected in any way by the matter he seeks to challenge is not "aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be "aggrieved" to assert the common interest of all citizens in procuring obedience to the law. (Citations omitted.)

In determining whether the interest asserted renders a litigant "aggrieved," the Court must ascertain whether the interest is "substantial," "direct," "immediate," and "not a remote consequence" of the challenged action. As Mr. Justice Roberts elaborated,

[T]he requirement of a "substantial" interest simply means that the individual's interest must have substance -- there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.

Id., 464 Pa. at 195, 346 A.2d at 282.

[ 332 Pa. Super. Page 554]

The additional requirement, that the interest be direct, simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains.


The remaining requirements, that the interest be "immediate," and "not a remote consequence" reflect a single concern.

Here the concern is with the nature of the causal connections between the action complained of and the injury to the person challenging it.

Id., 464 Pa. at 197, 346 A.2d at 283.

Thus, to justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct.*fn9

As the representative of its members, an association may also have standing. An association must allege that its members, or any one of them, are suffering immediate or threatened injury, resulting from the challenged action, sufficient to satisfy the Wm. Penn Parking Garage, Inc. standard. If this can be demonstrated, and if the nature of the claim asserted and the relief sought does not render the individual participation of each injured party indispensable to proper resolution of the issue, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction. See 1000 Grandview Ass'n v. Mt. Wash. Assoc., 290 Pa. Super. 365, 434 A.2d 796 (1981), quoting Warth v. Seldin, 422 U.S. 490, 511, 95

[ 332 Pa. Super. Page 555]

S.Ct. 2197, 2211, 45 L.Ed.2d 343, 362 (1975) (citations omitted.)*fn10

In the First Amendment realm, traditional standing rules have been further modified. Thus, a litigant is permitted to question, on grounds of overbreadth, the constitutionality of legislation as applied to persons in situations not before the court. As noted in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the doctrine of overbreadth accords standing by reason of the chilling effect that a particular law might have upon the exercise of first amendment rights.

Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Id., at 612, 93 S.Ct. at 2916, 37 L.Ed.2d at 840.

See also, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), noted with approval in Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978). Nevertheless, this modification is limited. A litigant has no standing to assail legislation on the basis of overbreadth, where he does not claim specific, subjective harm, or the threat of specific future harm, or where the alleged overbreadth is not substantial, when judged in relation to the statute's plainly legitimate sweep. Commonwealth v. DeFrancesco, supra.

With these principles in mind, we conclude that appellant book distributors and trade associations have standing to litigate the questions here presented, and that appellants

[ 332 Pa. Super. Page 556]

Nina Landsberg and the Freedom to Read Foundation do not.*fn11

Appellant book distributors and trade associations have alleged specific, substantive harms to their members. These appellants have maintained that the continued viability of § 5903(a)(1) would compel their members to (1) withdraw questionable material from public view, (2) completely bar minors from their premises or (3) face arrest and prosecution under the allegedly unconstitutional statute. Thus, appellants have alleged that their members' First Amendment rights were threatened, if not already impaired, at the time relief was sought. Unquestionably, the loss of First Amendment freedoms, for even minimal periods of time, constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547, 565 (1976). Furthermore, the financial harm asserted, no less than the significant constitutional deprivation averred, warrants characterization of the injury as "substantial." See, Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) (Where parking tax was imposed upon their patrons, parking lot operators, who alleged that they would suffer losses of net income due to reduced patronage of their facilities, had met "substantial interest" component of standing test).

In addition, we view the injury claimed here -- the need to choose between self-censorship and criminal prosecution -- as a "direct" consequence of the 1980 amendment to the obscenity statute. The commercial activity of booksellers unquestionably falls within the scope of the amended legislation, designed to restrict the method of presentation of "explicit sexual materials." Moreover, apprehension concerning the applicability of an allegedly vague and overbroad

[ 332 Pa. Super. Page 557]

    penal statute may adversely impact on publishers and wholesale distributors as well, in that the variety of books and magazines ordered from them for retail display may become limited. We find, then, a causal connection between the injury alleged and the challenged statute.

The nature of the causal link here, however, initially appears too attenuated to confer standing on any of the parties.

Prior to commencement of this action, none of the appellants had been prosecuted, or threatened with prosecution, for violation of § 5903(a)(1). Pending disposition of this matter by the trial court, an agreement by the Philadelphia defendants and an order enjoining the remaining defendants precluded enforcement of the display provision against any of the plaintiffs. Yet, as the trial judge observed, no indication had been given that the Commonwealth would not thereafter seek to enforce the statute. Conversely, there had been no showing that appellants' apprehensions of criminal prosecution were more than speculations; appellants' own testimony merely evidenced their perceptions of the risks involved. Nonetheless, a causal connection fairly traceable to the amended provision can be discerned.

The language of the United States Supreme Court is instructive.

A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms . . . When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases.

Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-1121, 14 L.Ed.2d 22, 28 (1965) (Citations omitted and emphasis added.)

[ 332 Pa. Super. Page 558]

In Dombrowski, arrests had been made pursuant to Louisiana subversive activity statutes. Subsequently the arrest warrants were quashed as not based on probable cause, and the defendants, officers of the Southern Conference Educational Fund, Inc., were discharged. Although criminal proceedings had not been re-instituted at the time these citizens brought an action seeking declaratory and injunctive relief, Louisiana officials had continued to threaten them with prosecution.*fn12 On appeal from the dismissal of the complaint, Mr. Justice Brennan remarked,

Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their tights . . . If the rule were otherwise, the contours of regulation would have to be hammered out case by case -- and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation . . . By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful ...

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