Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
This appeal concerns the validity of Pennsylvania court rules regulating the taking of photographs in and about the courthouse area. The plaintiffs are proprietors and employees of newspapers in Pennsylvania.They sought an injunction against the defendant Sheriff of Westmoreland County in Pennsylvania against the execution of the judgment in contempt proceedings in that County and a declaration that the court order concerning photograph-taking be declared a violation of the Constitution of the United States. The district judge refused the relief requested after keeping the case under advisement during the time in which the plaintiffs tested their rights in the Pennsylvania courts, D.C.W.D.Pa.1957, 153 F.Supp. 486.
The court rule which is subject to attack is that of the Court of Common Pleas of Westmoreland County which reads as follows:
"(a) No pictures or photographs shall be taken, immediately preceding or during sessions of this court or recesses between sessions, in any of the court rooms or at any place in the court house within forty feet of the entrance to any court room.
"(b) No court proceeding shall be broadcast or televised.
"(c) No pictures or photographs of any party to a civil or criminal action, juror or witness, shall be taken in the Law Library or in any office or other room of the court house, except with the knowledge and consent of the person or persons photographed.
"(d) No prisoner or inmate of the County jail shall be photographed in the jail or on his way to or from a session of court."
There is no doubt that the rule was violated by the plaintiffs who took pictures of a notorious prisoner named Wable who had been convicted of murder in Westmoreland County and who was being sentenced the day on which the violation of the rule took place.
The plaintiffs attack the rule as a violation of freedom of speech and press enumerated in the first amendment of the Constitution of the United States and protected against state action by the fourteenth amendment. That the fourteenth amendment does give such protection has been declared many times by the Supreme Court. The authorities are listed in the opinion in Joseph Burstyn, Inc., v. Wilson, 1952, 343 U.S. 495, 500, note 8, 72 S. Ct. 777, 96 L. Ed. 1098.
It is pointed out that the Supreme Court has held that dissemination of pictures is protected against interference in the same way that expression by speech is protected. For this is correctly cited the Burstyn case and Superior Films, Inc., v. Department of Education, 1954, 346 U.S. 587, 74 S. Ct. 286, 98 L. Ed. 329.
We, therefore, have our attention called to the free speech decisions by the Supreme Court. The argument is made that only a clear and present danger can justify an abridgment of free speech and that such danger is not present here. Those cases are well summed up in a statement from Mr. Justice Black in Bridges v. State of California, 1941, 314 U.S. 252, 263, 62 S. Ct. 190, 194, 86 L. Ed. 192. He said, "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."
The various cases cited by the appellants for free speech all have to do with expression of thought in some form. Over and over again the Court, especially through Mr. Chief Justice Hughes, has pointed out that the struggle for freedom of the press "was primarily directed against the power of the licensor." Lovell v. City of Griffin, 1938, 303 U.S. 444, 451, 58 S. Ct. 666, 669, 82 L. Ed. 949. See, also, Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 713, 51 S. Ct. 625, 75 L. Ed. 1357; Mr. Justice Douglas in the Superior Films case above cited; Grosjean v. American Press Co., 1936, 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660. Pennekamp v. State of Florida, 1946, 328 ...