Golden Triangle News, Inc. v. Corbett

689 A.2d 974, 1997 Pa. Commw. LEXIS 65, 1997 WL 54964
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 23, 1997
Docket1161 M.D. 1996
StatusPublished
Cited by24 cases

This text of 689 A.2d 974 (Golden Triangle News, Inc. v. Corbett) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Golden Triangle News, Inc. v. Corbett, 689 A.2d 974, 1997 Pa. Commw. LEXIS 65, 1997 WL 54964 (Pa. Ct. App. 1997).

Opinion

LEADBETTER, Judge.

On December 16, 1996, petitioners filed a petition for review in the nature of a complaint in equity on behalf of themselves as well as other similar adult-oriented establishments.1 According to the averments of their petition, petitioners are engaged in the retail sale of general interest magazines, novelty items and non-obscene, sexually-oriented magazines and videotapes. In addition, petitioners make available to their patrons non-obscene, sexually explicit videotapes which can be rented or viewed on their premises in enclosed booths, cubicles or stalls. In Count I of their petition, petitioners seek a declaration that Act 120 of 1996 (the Act)2 is unconstitutional3 on the basis that it, inter alia: [978]*978(1) imposes a prior restraint on petitioners’ right to engage in the dissemination of constitutionally protected expression; (2) chills the exercise of both petitioners’ and their patrons’ exercise of constitutional rights; (3) constitutes an impermissible content-based restriction on protected expression; (4) is unconstitutionally vague; (5) authorizes random warrantless searches without the existence of probable cause; and (6) fails to employ the least restrictive means to further any legitimate governmental interest. In Count II of the petition, petitioners seek injunctive relief on the basis that enforcement of the Act will cause irreparable harm.

In conjunction with their petition for review, petitioners filed the motion now before this court requesting that respondents be preliminarily enjoined from enforcing the provisions of the Act.4 A hearing on the motion for preliminary injunction was held on December 20, 1996. Although testimony was not taken at that time, the parties entered into stipulations of fact for purposes of the preliminary injunction hearing only. In addition, briefs were submitted and extensive oral argument was presented.

In order to obtain a preliminary injunction, petitioners must demonstrate that the right to relief is clear, the need for relief is immediate and the injury will be irreparable if the injunction is not granted. Zebra v. School Dist. of the City of Pittsburgh, 449 Pa. 432, 436, 296 A.2d 748, 750 (1972). A preliminary injunction is an extraordinary remedy which is to be granted only when each of these factors has been clearly established. Committee of Seventy v. Albert, 33 Pa. Cmwlth. 44, 381 A.2d 188, 190 (1977).

In assessing whether petitioners have demonstrated that their right to relief is clear, we must first consider the heavy burden which must be met by persons seeking to enjoin enforcement of a criminal statute. In Cooper v. McDermott, 399 Pa. 160, 159 A.2d 486 (1960), the Pennsylvania Supreme Court stated:

While there have been rare and unusual instances wherein courts of equity have enjoined public officers from proceeding with the enforcement of penal statutes, in those cases the validity of the statutes under which the proceedings had begun was seriously and substantially challenged and, in addition, it was clearly apparent that irreparable damage and harm would be done to property by a continuation of the prosecution. Both of these elements are indispensable.

Id. at 163, 159 A.2d at 489 (emphasis in original) (citations omitted). Moreover, all legislative actions are entitled to a strong presumption of constitutionality. 1 Pa.C.S. § 1922(3); Pap’s A.M. v. City of Erie, 674 A.2d 338, 341 (Pa.Cmwlth.1996). For the reasons set forth below, the court holds that petitioners have not sustained their burden.

Turning to the constitutional claims, petitioners first argue that the Act’s requirement that the display of constitutionally protected materials occur in well-lighted areas, which are open and visible from a common area, imposes an unconstitutional burden on their expressive freedoms. According to petitioners, these provisions will prohibit them [979]*979from displaying non-obseene videos to law-abiding patrons in the privacy of an enclosed area and in the traditional darkness of a movie theater, and, consequently, their patrons will be prohibited from viewing their materials in the desired and customary setting.

In addressing whether the regulation involved does violate Article I, § 7 of the Pennsylvania Constitution,5 we must first determine whether the regulation constitutes a direct or “prior” restraint upon speech or whether it is merely a time, place and manner restriction. This distinction is critical because it determines the standards by which the court must analyze the statute.

Petitioners, relying heavily upon Insurance Adjustment Bureau v. Insurance Comm’r., 518 Pa. 210, 542 A.2d 1317 (1988), argue vigorously that the Act’s restrictions are a direct or prior restraint. In Insurance Adjustment Bureau, the Pennsylvania Supreme Court addressed whether a statutory provision, which prohibited public adjustors from soliciting business within twenty-four hours of a disaster, unconstitutionally restricted freedom of speech. There, the Insurance Adjustment Bureau (the Bureau) argued that the twenty-four hour ban on solicitation impermissibly burdened its members’ right to free speech because public adjusters routinely approached property owners within hours of a disaster in order to explain their services (and begin work, if retained). The Bureau further argued that the restricted time period was crucial to their communication because it was often necessary to locate property owners before they moved to a temporary, unlisted location due to the disaster. The Commonwealth argued, on the other hand, that the time restraint, which did not ban speech altogether, was permissible because it was a reasonable time, place and manner restriction.

The Supreme Court quite clearly concluded that the restriction constituted a prior restraint when it opined as follows:

The Commonwealth, of course, asserts that the restrictions involved in this case are only time, place and manner restrictions, since public adjusters and public adjuster solicitors are not banned altogether from soliciting business. Although it is true that the restriction in this case affects only twenty-four hours, the period of time immediately following the disaster may be the only time during which the property owner can be located before moving to an unknown address because of disaster....

Id. at 224-25, 542 A.2d at 1323. This conclusion is further supported by the court’s statement that “Article I, Section 7 [of the Pennsylvania Constitution], will not allow the prior restraint or other restriction of commercial speech by any governmental agency where the legitimate, important interests of government may be accomplished'practicably in another, less intrusive manner.” Id. at 225, 542 A.2d at 1324.

Insurance Adjustment Bureau,

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Bluebook (online)
689 A.2d 974, 1997 Pa. Commw. LEXIS 65, 1997 WL 54964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golden-triangle-news-inc-v-corbett-pacommwct-1997.