People v. Bookcase, Inc.

• Decision Date: 10 July 1964
• Citation: 201 N.E.2d 14,252 N.Y.S.2d 433,14 N.Y.2d 409
• Parties: , 201 N.E.2d 14 The PEOPLE of the State of New York, Respondent, v. The BOOKCASE, INC., et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 433

252 N.Y.S.2d 433

14 N.Y.2d 409, 201 N.E.2d 14

The PEOPLE of the State of New York, Respondent, v. The BOOKCASE, INC., et al., Appellants.

Court of Appeals of New York.

July 10, 1964.

Emanuel Redfield, New York City, for appellants.

Frank S. Hogan, Dist. Atty. (Michael Juviler and H. Richard Uviller, New York City, of counsel), for respondent.

Horace S. Manges, Jacob F. Raskin and Paul N. Lazarus, III, New York City, for American Book Publishers Council, Inc., amicus curiae.

VAN VOORHIS, Judge.

Appellants have been convicted under section 484-h of the Penal Law, Consol.Laws, c. 40 of selling to a minor under 18 years of age a copy of a book entitled 'Memoirs of a Woman of Pleasure' ('Fanny Hill'). Another case, decided at the same time, involves whether this book is obscene under section 1141 of the Penal Law. That question is not before the court upon this appeal. Both counsel for the appellant and the Assistant District Attorney concede that the conviction of these defendants does not depend upon any finding or conclusion that this book is obscene. The determination that the book is not obscene therefore does not exonerate these defendants from the present charge. Even if the book is not obscene within the meaning of the Constitution, the narrative is mainly concerned with accounts of extra-marital sexual relationships. The conviction of defendants is under that portion of section 484-h of the Penal Law which purports to prohibit the sale to a minor under 18 years of age of 'any book * * * the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality'. The constitutional attack on this statutory provision is based on the grounds that it abridges freedom of speech and of the press in violation of the First Amendment to the Constitution of the United States and that it violates the Fourteenth Amendment by denying due process of law in that the language is too vague for a criminal statute (Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682).

Former subdivision 2 of section 1141 of the Penal Law, as construed in People v. Winters, 294 N.Y. 545, 63 N.E.2d 98, was held by the Supreme Court to be unconstitutional in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. The statute there held to be void prohibited the sale of books and other printed matter 'principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, and stories of deeds of bloodshed, lust, or crime'. Our court had construed this statute as limited to the publication of colections of criminal deeds of bloodshed or lust 'so massed as to become vehicles for inciting violent and depraved crimes against the person' (294 N.Y. p. 550, 63 N.E.2d p. 100). The United States Supreme Court said (333 U.S. pp. 519-520, 68 S.Ct. p. 672): 'The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent crimes, the statute is violated. It does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collection of tales of war horrors, otherwise unexceptionable, might well be found to be 'massed' so as to become 'vehicles for inciting violent and depraved crimes.' Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259, 57 S.Ct. 732, 739, 81 L.Ed. 1066.'

Again, the court said at page 515 of 333 U.S., at page 670 of 68 S.Ct.: 'There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment.' The Supreme Court also held in the Winters case that the statute in question unconstitutionally limited freedom of expression protected by the principles of the First Amendment (pp. 509-510, 512, 519-520, 68 S.Ct. pp. 667, 668, 672).

Subsequent to the decision by the United States Supreme Court in 1948 in Winters v. New York (supra), several bills were passed by the New York State Legislature seeking to overcome its effect. Two of these, one passed in 1949 and the other in 1952, were vetoed by Governor Thomas E. Dewey upon the ground that they were unconstitutional under the Winters case. The 1952 bill (Assem. Int. No. 2799, Pr. No. 2944) would have prohibited the sale of books or other printed matter 'devoted to the publication and principally made up of pictures, whether or not accompanied by any written or printed matter, of fictional deeds of crime bloodshed, lust or heinous acts, which tend to incite minors to violent or depraved or immoral acts.'

In his veto message dated April 12, 1952, Governor Dewey said concerning this bill (Public Papers of Governor Thomas E. Dewey, 1952, pp. 259-260):

'It is similar to legislation disapproved by me in 1949 with memorandum (Senate Introductory 1862, Printed Number 2939) and is subject to the same constitutional infirmities inherent in the 1949 proposal and the statute held unenforceable by the Supreme Court. * * *

'The wording of the present bill is as vague and devoid of specificity as the previous statutory provisions. The minor changes in language do not cure the basic deficiency of the earlier law' as found by the United States Supreme Court in the Winters case.

In signing the present bill, originally enacted as chapter 836 of the Laws of 1955, and later renumbered section 484-h of the Penal Law, Governor Averell Harriman said: 'The constitutionality of some aspects of this bill has been questioned by some, and strongly affirmed by others. In view of the conditions with which we are trying to cope, it seems to me that such questions should be left to the courts for determination.' (Public Papers of Governor Averell Harriman, 1955, p. 282.)

This court is now called upon to cope with one of the more important of these questions.

As was noted in the principal opinion of the Criminal Court of the City of New York, there would have been no occasion for enacting section 484-h of the Penal Law unless it forbade more than was already prohibited by section 1141. 'Section 484-h', said the Criminal Court, 'prohibits the sale to minors of books which exploit, are devoted to, or deal principally in descriptions of illicit sex or sexual immorality. There is no such prohibition contained in section 1141 (People (on Complaint of Daniels) v. Finkelstein (Mag.Ct.), 156 N.Y.S.2d 104).'

This part of the opinion of the Criminal Court indicates the basis on which the case was decided and on which it has to be decided. Section 1141 of the Penal Law already prohibited the sale, exhibition or other disposition of pictures or printed material which are obscene, lewd, lascivious, filthy, indecent or disgusting, and articles or instruments of indecent or immoral use, with the consequence that there is little if anything left to section 484-h that was new except the part to which the opinion of the Criminal Court refers and under which these defendants have been convicted. Material which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality is distinguished, in section 484-h, from what is obscene by the use of the disjunctive 'or'. The prosecution urges that, under the language of this statute, it is not necessary for this book to be obscene in order to sustain the conviction of defendants if it mainly describes or is devoted to illicit sex or sexual immorality. This is not different from the bills passed in 1949 and 1952, which prohibited fictional accounts of lust, except that the present language omits the qualification 'which tend(s) to incite minors to violent or depraved or immoral acts'. The latter words were not included in the statute before the courts in the Winters case, but were added by this court as having been intended by implication (294 N.Y. 545, 63 N.E.2d 98). But when the case reached the Supreme Court of the United States, the 'incitement' clause was expressly held to be too vague for a valid criminal statute. So this time the Legislature omitted these words, as they had been omitted from subdivision 2 of section 1141 in the beginning. We are thus confronted with a constitutional question not unlike that which would have been before the United States Supreme Court in the Winters case, if the 'incitement' clause had not been added to that statute by implication by this court. The Supreme Court is, of course, bound by the construction of State statutes which is placed upon them by the State courts.

The qualify of the printed or pictorial material which is forbidden by the portion of the statutory enactment which is now before us is, consequently, not to be judged by whether it tends to incite minors or adults to immoral acts, or by whether it is in its nature obscene in the eyes of minors or of adults, but whether the Legislature can constitutionally prevent the sale to minors of this age of material which deals mainly with illicit sex or sexual immorality. The purpose and the only object of this clause in the statute, under which defendants stand convicted, was to prevent or limit publications or pictures coming before the eyes of the young which are principally based upon the theme of sexual conduct that is contrary to the mores of society. This statute does not distinguish between material regarded as obscene for teenagers but unobjectionable to adults; it sets no variable standards of what constitutes obscenity according to the age or other type of group at which the material in question is principally aimed, nor does this clause in the statute render it necessary to conviction that the material dealing with illicit sex or sexual immorality...