Com. v. Guild Theatre, Inc. | Cases | Westlaw

The hearing which transpired on July 19, 1968 was reminiscent of the Star Chamber proceedings of yore. *381 It was held ex parte, and no record was made of those proceedings. Without desiring to impugn the motives of any who participated in these proceedings, it must be apparent that such practices must not be allowed to continue. Rule 1531(a) of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix provides:

However, even if a proper hearing had been held, the instant proceeding was fatally defective in another respect. There is no doubt that motion pictures are protected by the constitutional guarantee of freedom of speech. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). It is true that obscenity is not within the purview of the protections of the First and Fourteenth Amendments. Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and a long line of cases cited therein. However, the very question at issue here is whether this picture is obscene, and until it is judicially so adjudged, it is indeed entitled to those protections. The procedures involved must be ‘adequate to avoid suppression of constitutionally protected publications. ’* * * (T)he line between speech unconditionally guaranteed and speech which *382 may legitimately be regulated, suppressed or punished is finely drawn. * * * The separation of legitimate from illegitimate calls for * * * sensitive tools. “ A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 210, 212, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrants, etc., 367 U.S. 717, 730, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Although we cannot agree with appellants' contention that **48 no prior restraint on the exhibition of a motion picture is permissible, it is clear that any such restraint must be very carefully circumscribed. In Freedman v. State of Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965) the Supreme Court discussed the ‘procedural safeguards designed to obviate the dangers of a censorship system.’ One of these safeguards was a prompt, final judicial decision. Just this year, the High Court struck down as unconstitutional a Chicago censorship ordinance because, among other things, it lacked such a provision for a prompt judicial decision. Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968). See also Smith v. Crumlish, 207 Pa.Super. 516, 523, 218 A.2d 596 (1966). The fact that appellants may have been offered a full dress Hearing within four days of the original restraint does not suffice. Quite clearly, there is no provision for a prompt Decision. It is vital that the continuance of First Amendment freedoms not be dependent upon the efficiency of a particular judge but upon procedural safeguards clearly embodied in a statute. We can only suggest, as did the Court in Freedman, supra, that a model for such a statute which can safeguard both the First Amendment freedoms of exhibitors and publishers, and the freedom from obscenity of society as a whole can be found in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The New York statute there provided for a trial within one day after joinder of issue and a decision within two days of the conclusion of the trial. The instant procedure falls far short of that required.