and 9 insofar as these sections require a jury determination prior to the issuance of a preliminary injunction.
Whether a violation of the ordinance is a criminal or civil offense is unclear under state law. Compare Babin v. City of Lancaster, 89 Pa. Commw. 527, Commw. , , 493 A.2d 141, 144-145 (1985) (civil offense) with Lower Merion Township v. Schenk, 247 Pa. Super 494, 499-501, 372 A.2d 934, 935-936 (1977) (criminal offense). Our conclusion, however, does not depend upon whether the violation is classified as civil or criminal. If violation of the Ordinance is a civil offense, then the Ordinance could not materially conflict with the State Obscenity Act because the Act does not contemplate the use of civil actions to regulate obscene materials. If, on the other hand, a violation of the Ordinance is a criminal offense, then an order by the Court of Common Pleas refusing to empanel a jury would conflict with the Act; however, we cannot assume that the Court of Common Pleas will issue such an Order.
Nor is the Ordinance violative of the Pennsylvania Constitution's jury trial guarantees. If a violation of the ordinance is a civil, not a criminal, offense, §§ 6 and 9 would not apply to a proceeding for a violation of the Ordinance unless the offense has a basis in common law. See In re Friedman, 72 Pa. Commw. 274, 283, 457 A.2d 983, 988 (1983). Since zoning ordinances were unknown to the common law, see Toll, Zoned America 1, 172-187 (1969) (first comprehensive zoning ordinance in the United States was enacted in New York in 1916), Anderson, 1 Law of Zoning in Pennsylvania § 1.02, no such right could attach. If a violation of the ordinance is a criminal offense, then §§ 6 and 9 would apply and defendant would be entitled to a trial by an impartial jury. Wm. Goldman Theatres v. Dana, 405 Pa. 93, 173 A.2d at 64. Again, we cannot assume that any right to a jury trial will be denied by a Court of Common Pleas.
Finally, we consider the validity under the United States Constitution of the portion of Ordinance No. 339 forbidding activities of the type proscribed by § 5903 in the controlled commercial, commercial and planned business districts. Plaintiffs contend that this portion of the Ordinance is invalid under the First and Fourteenth Amendments because it is an impermissible time, place and manner restriction which operates as a prior restraint and because it lacks the procedural safeguards required by Freedman v. Maryland, 380 U.S. 51, 58-59, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965).
The short answer to this contention is that Ordinance No. 339 does not authorize the prior restraint of the sale or lease of obscene videocassettes; it merely penalizes past conduct. Accordingly, the question of compliance with Freedman does not arise.
"'Behind the distinction [between a prior restraint and criminal sanction for a past communication] is a theory deeply etched in our law; a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.' See Speiser v. Randall, 357 U.S. 513 [2 L. Ed. 2d 1460, 78 S. Ct. 1332] (1958)." Vance v. Universal Amusement Co., 445 U.S. 308, 316 n. 13, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980), quoting from Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975).