Calderon v. City of Buffalo
| Decision Date | 22 March 1977 |
| Citation | 397 N.Y.S.2d 655,90 Misc.2d 1033 |
| Parties | Hyman CALDERON d/b/a Neisner's Smoke Shop, Plaintiff, v. The CITY OF BUFFALO, and the Buffalo Police Department, Thomas R. Blair, Commissioner, and the Salacious Literature Unit of the Buffalo Police Department, Defendants. |
| Court | New York Supreme Court |
Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Paul J. Cambria, Jr., Buffalo, of counsel), for plaintiff.
Leslie G. Foschio, Corp. Counsel, Buffalo (Anthony Gregory, Asst. Corp. Counsel, Buffalo, of counsel), for defendants.
Plaintiff has brought an action for declaratory judgment before this Court.
In this declaratory judgment action, plaintiff challenges the constitutionality of the Buffalo Anti-Obscenity and Display to Minors Ordinance, Chapter 9, Section 35, Subdivisions (J)(1) and (J)(2).
I. Plaintiff Hyman Calderon is the sole proprietor of Neisner's Smoke Shop engaged in the sale of all types of smoking accessories and magazines. On August 19, 1976 he was arrested and charged with violating the Buffalo Anti-Obscenity Ordinance for displaying materials which were "devoted to or principally made up of descriptions or depictions of illicit sex or sexual immorality, or which consisted of pictures of nude or partially denuded figures presented in a manner to provoke or arouse lust or passion, or to exploit sex, lust or perversion for commercial gain".
The ordinance provides:
"(J) Sale or exhibition to minors of indecent publications, pictures or articles.
(1) No person within the City of Buffalo shall willfully or knowingly engage in the business of selling, lending, giving away, showing, advertising for sale or distributing to any person under the age of seventeen (17) years or have in his possession with intent to engage in the said business or to otherwise offer for sale or commercial distribution to any individual under the age of seventeen (17) years any pornographic motion picture, or any still picture or photograph or any book, pocketbook, pamphlet or magazine the cover or content of which exploits, is devoted to, or is principally made up of descriptions or depictions of illicit sex or sexual immorality or which is obscene, lewd, lascivious, or indecent, or which consists of pictures of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain or any article or instrument of indecent or immoral use.
(2) No person within the City of Buffalo shall display at newsstands or any other business establishment frequented by minors under the age of seventeen (17) years or where said minors are or may be invited as a part of the general public any pornographic motion picture, or any still picture or photograph or any book, pocketbook, pamphlet or magazine the cover or content of which exploits, is devoted to, or is principally made up of descriptions or depictions of illicit sex or sexual immorality or which is obscene, lewd, lascivious, or indecent, or which consists of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain, or any article or instrument of indecent use.
(3) For the purposes of this subsection "descriptions or depictions of illicit sex or sexual immorality" shall mean:
a. Human genitals in a state of sexual stimulation or arousal;
b. Acts of human masturbation, sexual intercourse or sodomy;
c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.
"Nude or partially denuded figures" shall mean:
a. Less than completely and opaquely covered (a) human genitals, (b) pubic regions, (c) buttocks and (d) female breast below a point immediately above the top of the aerola; or
b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
Although the charge was later dismissed, plaintiff brought this declaratory judgment action to test the validity of the ordinance, alleging that he and others similarly situated suffered a real and substantial "chilling effect" from the threat of future prosecution. Plaintiff further alleges that he has suffered an economic injury through loss of sales resulting from his attempted compliance with the ordinance. These allegations are not controverted by the City of Buffalo which in effect has consented to the request for declaratory judgment.
Plaintiff challenges the ordinance on two grounds: first, that it is overbroad in violation of the First and Fourteenth Amendments to the U. S. Constitution in that the ordinance prohibits the possession and display of materials which are not obscene either as to adults or minors; and second, that the ordinance is void for vagueness in violation of the due process clause of the Fourteenth Amendment.
II. Overbreadth. It is well established that governmental regulation of activities involving freedom of speech and of the press may not be accomplished by means which sweep unnecessarily broadly. That this principle applies to obscenity regulation was made clear by the Supreme Court in Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973):
"State statutes designed to regulate obscene materials must be carefully limited."
This requirement equally applies to obscenity regulation directed at the protection of children. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), the Supreme Court stated:
"It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults . . . Nevertheless, minors are entitled to a significant measure of First Amendment protection . . ., and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." 422 U.S. at 212-213, 95 S.Ct. at 2274 (citations omitted)
Subdivisions (J)(1) and (J)(2) of the ordinance involved in this case prohibit the display of three classes of sexually oriented materials. First are banned those materials which describe "illicit or immoral sex" as defined in (J)(3), without regard to the offensiveness of the description and without regard to whether the material, taken as a whole, lacks serious value for minors. This language thus seeks to prohibit the display of sexually explicit material without regard to the context in which it is presented. The subdivision goes on to prohibit the display of materials which are obscene as to minors. The definition of obscenity as to minors may be found in subdivisions (f) and (g) of the ordinance; it closely parallels the provisions of Article 235 of the Penal Law that were upheld in Ginsberg v. New York,390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1967). The subdivision concludes with a prohibition of the display of material containing descriptions of nude or partially denuded figures "posed or presented in a manner to provoke or arouse lust or passion . . .". Again, this language seeks to prohibit the display of sexually oriented material which may or may not be "harmful to minors".
These provisions thus proscribe the display of materials which are not proscribed for sale by Subdivision (g). Because the ordinance bans the display of sexually oriented material which may not be obscene, it is overbroad and unconstitutional.
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) the Supreme Court explicitly recognized that sex and obscenity are not synonymous:
"The portrayal of sex, e. g. in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.
. . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." 354 U.S. at 487, 77 S.Ct. at 1310, 1311, 488 (footnotes omitted).
In Miller, supra, the court reaffirmed that the state could prohibit only hard-core pornography, laying down a three-pronged test for obscenity; only that material which contains descriptions of explicit sexual conduct in a patently offensive way and which lacks serious literary, artistic or scientific value as a whole can be prohibited as obscene. Under these standards, the portrayal of nudity or illicit sex alone is not sufficient to justify a finding of obscenity, and New York courts have so held. Excelsior Pictures Corp. v. Regents of University of State of New York, 3 N.Y.2d 237, 165 N.Y.S.2d 42, 144 N.E.2d 31 (1957); People v. Bookcase, Inc.,14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14 (1964); People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815, cited with approval in People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973).
In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1967) the Supreme Court lent its sanction to the concept of variable obscenity developed by the Court of Appeals in Bookcase, Inc. v. Broderick 18 N.Y.2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668 (1966), quoting:
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Franza v. Carey
...aff'd 272 N.Y. 668, 5 N.E.2d 385 (1936). It is often used to test the facial validity of a statute. See, e.g., Calderon v. City of Buffalo, 90 Misc.2d 1033, 397 N.Y.S.2d 655, aff'd 61 A.D.2d 323, 402 N.Y.S.2d 685 (1978); Merced v. Fisher, 38 N.Y.2d 557, 381 N.Y.S.2d 817, 345 N.E.2d 288 (197......