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October 17, 1966

Sylvester K. STEVENS, Plaintiff,
Helen C. FRICK, Defendant

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 Sylvester K. Stevens, an historian and author, seeks the aid of this court to prevent what he and his counsel term "a blatant violation of the constitutional right of free press." Specifically, Stevens asks that the defendant, Helen Clay Frick, be enjoined from further prosecuting an action now pending against him in the Court of Common Pleas of Cumberland County, Pennsylvania.

 Jurisdiction of this court is said by plaintiff to rest upon two provisions of the Judicial Code, 28 U.S.C. §§ 1331 and 1343. Dr. Stevens now moves for a preliminary injunction; Miss Frick cross-moves to dismiss the action pursuant to Rules 12(b)(1) and (6) F.R.Civ.P. on the grounds that this court lacks jurisdiction of the subject matter and that the complaint fails to state a claim for which relief can be granted.

 The relevant facts upon these motions are simple and undisputed. In December 1964, Sylvester Stevens published, through Random House, a one-volume general history of Pennsylvania entitled Pennsylvania, Birthplace of a Nation. Miss Frick apparently received a copy of the book for Christmas in 1964. Certain passages therein dealing with her deceased father, Henry Clay Frick, the well-known Pittsburgh industrialist and Carnegie partner, were, in her opinion, erroneous and unfair. Concluding that Stevens' portrayal tarnished "the reputation of one of the greatest citizens of Pennsylvania", she wrote him a letter of complaint. Shortly thereafter, on January 19, 1965, Miss Frick commenced a suit in equity in the Court of Common Pleas of Cumberland County asking that Dr. Stevens be permanently enjoined from distributing, or permitting others to distribute his book. Despite allegations in her Cumberland County complaint that she "has unjustly suffered and will continue to suffer a loss of reputation and public esteem", she seeks no money damages.

 The trial of Miss Frick's case was had before the Cumberland County court without a jury in the fall of 1965. By specific allegations in his answer and by appropriate motions during the trial, Dr. Stevens squarely raised his principal defense that an injunction as sought by Miss Frick would violate his First Amendment right of freedom of expression. The Pennsylvania court has reserved decision on all substantive issues in the case, including the constitutional issue raised by Dr. Stevens as a ground for non-suit. *fn1" Counsel before this court state that the decision of the Cumberland County judge may be forthcoming later this fall.

 Notwithstanding this status of the Pennsylvania action, Dr. Stevens has now moved in this court for a temporary injunction. He does not explain why he has waited so many months to apply for such drastic relief, nor does he allege that the Pennsylvania court has rejected his constitutional arguments. He states simply that "the mere pendency of that action is a burden to [him] and a deprivation of his constitutional right of freedom of expression and the public's right to read".

 The question to be resolved here is whether, under the foregoing circumstances, a federal district court can enjoin the Pennsylvania court from any further proceedings in the Frick suit. Counsel for Dr. Stevens have argued that the fundamental issue before this court is, "the scope of the constitutional right of free press". As already indicated, I disagree. Even if I were to assume that Dr. Stevens' constitutional arguments should prevail, the basic issue here is the power of this court to interfere with the Pennsylvania court. A corollary question is whether, assuming this court does have such "power" or jurisdiction, it should be exercised.

 To begin with, the federal "anti-injunction" statute, 28 U.S.C. § 2283, would seem to effectively bar Dr. Stevens from the relief he seeks here. That statute provides:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

 Concededly, neither of the last two exceptions are applicable in this case. Counsel for Dr. Stevens maintain, however, that express Congressional authorization for a stay is to be found in a section of the Civil Rights laws, R.S. § 1979, 42 U.S.C. § 1983.

 That statute provides that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." *fn2"

 Before determining whether Section 1983 is a valid exception to the firm command of the anti-injunction statute, it is first necessary to inquire if Miss Frick's Pennsylvania litigation is "under color of any statute, ordinance, regulation, custom or usage * * *" of a state - i.e. that the suit in Cumberland County constitutes the requisite degree of "state action" to bring it within the ambit of the former statute. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Counsel for Dr. Stevens, citing Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), asserts that Pennsylvania's provision of a forum, coupled with service of process by an authorized state officer, constitutes sufficient state action to bring his request within the terms of section 1983.

 Counsel's reliance on Shelley v. Kraemer is misplaced. The "judicial action" in Shelley is easily distinguishable from that presented here. Shelley dealt with a situation in which the state had provided "the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners [were] willing and financially able to acquire and which the grantors [were] willing to sell. The difference between judicial enforcement and non-enforcement of the restrictive covenants [was] the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing." Id. at 19, 68 S. Ct. at 845. Noting further that the states had a long-standing policy of enforcing restrictive ...

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