Vogel v. W. T. Grant Co. , 458 Pa. 124 ( 1974 )

Concurring Opinion by

Mr. Justice Manderino:

I concur that the decree of the trial court must be reversed. I do not, however, reach the question of whether the appellees, Vogel and Smith, have a cause of action. Even if they do, the eqmtable remedy of injunctive relief should not be affirmed when, as under the circumstances of this case, it operates as a prior restraint on free speech. The potential chilling effect on a person’s constitutional right of freedom of expression is more than sufficient reason for a court, in the exercise of its equitable authority, to always recognize that its authority is limited by the Constitution, whether or not a party calls attention to that fact.

“The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L. Ed. 2d 212, 216 (1972). The injunction in this case is unconstitutional. U. S. Const., amend. I; Pa. Const. art. 1, §7.

“[W]e look at [an] injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down.” United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 581, 91 S. Ct. 1076, 1080, 28 L. Ed. 2d 339, 344 (1971). The injunction in this case is a prior restraint and there is “a ‘heavy presumption’ against its validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 1578, 29 L. Ed. 2d 1, 5 (1971).

“Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgement.” Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S. Ct. 347, 351, 21 L. Ed. 2d 325, 331 (1968). Since the injunction here is a prior restraint upon freedom of expression, I concur in the reversal of the trial court’s decree.