BEE SEE BOOKS INC. v. Leary

• Decision Date: 23 October 1968
• Docket Number: No. 68 Civ. 3790.,68 Civ. 3790.
• Citation: 291 F. Supp. 622
• Parties: BEE SEE BOOKS INC. and V. I. P. Novelties Inc., Plaintiffs, v. Howard LEARY, Police Commissioner of the City of New York, Defendant.
• Court: U.S. District Court — Southern District of New York

291 F. Supp. 622

BEE SEE BOOKS INC. and V. I. P. Novelties Inc., Plaintiffs, v. Howard LEARY, Police Commissioner of the City of New York, Defendant.

No. 68 Civ. 3790.

United States District Court S. D. New York.

October 23, 1968.

Flaum, Growman, Sassower, Rosenberg & Postel, New York City, for plaintiffs; Emanuel Growman, Harold Bofshever, New York City, of counsel.

J. Lee Rankin, Corp. Counsel of the City of New York, for defendant; James M. Brachman, Asst. Corp. Counsel, of counsel.

OPINION

FREDERICK van PELT BRYAN, District Judge:

This is an action pursuant to 42 U.S.C. § 1983 to enjoin defendant Police Commissioner of the City of New York from regularly and continuously stationing uniformed policemen in plaintiffs' book stores. Plaintiffs' principal contention is that this course of conduct constitutes an unconstitutional restraint on the distribution and sale of books, magazines, pictures and movies sold in their stores in violation of the First and Fourteenth Amendments. Plaintiffs move for a preliminary injunction.

There seems to be little dispute as to the facts. Each plaintiff has a book store on West 42nd Street. Like many other book stores in that area, they deal primarily in books, magazines, pictures and movies of questionable taste with little, if any, literary or artistic merit. Defendant Commissioner has submitted to the court a series of photographs acquired from plaintiffs' stores which depict in the baldest terms acts of sexual intercourse and sodomy. There is no doubt in my mind that by any standards these photographs are hard core pornography and are not entitled to First Amendment protections. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Plaintiffs do not deny that they have sold such items.

However, it is conceded by the defendant Commissioner that the books, magazines and pictures which are openly displayed in plaintiffs' stores do not fall within the category of hard core pornography and are not proscribed by the New York Obscenity Laws. N.Y.Penal Law, § 235.00 et seq. It is alleged that any hard core pornography is kept concealed and is sold only under the counter.

According to the uncontradicted affidavit of First Deputy Police Commissioner Walsh, Judges of the Criminal Court of the City of New York have from time to time issued warrants for the search of plaintiffs' book stores, and pursuant to such warrants the police have seized a quantity of what are apparently hard core pornographic items.

Eleven employees in the plaintiffs' stores have been arrested on a number of occasions during the past two years, including last August, for selling pornographic items in violation of the New York Obscenity statute. Plaintiffs state that "Plaintiff's employees have found it much easier and more economical to plead guilty and pay the fine rather than hire counsel and defend themselves."

In August 1968, instead of making further arrests or obtaining warrants from the Criminal Court, the police consulted the office of the Corporation Counsel of the City of New York "as to how sales of hard core pornography could be properly detected and prevented." The Corporation Counsel's office advised "that it would be proper to post police officers in book stores where the officers would not interfere with patrons leaving or entering the premises and where the officers would not interfere with the conduct of business in items which were not hard core pornography." The Corporation Counsel's office also advised the police it was of the opinion that certain items which had been on sale at plaintiffs' book stores were obscene within the meaning of the New York Obscenity Law.

Commencing on September 10, 1968 uniformed officers were stationed in the store of each plaintiff. The officers so stationed were instructed that

"(a) They should be alert at all times, both inside and outside the stores, to prevent traffic in hard core pornography, particularly photographs and magazines showing sodomy, masturbation and sexual intercourse.

"(b) They should make arrests for the sale or delivery of hard core pornography and seize the evidence when making such arrests.

"(c) They should not interfere with patrons leaving or entering the premises."

Beginning on September 10, 1968, a uniformed policeman appeared on the premises of each of the plaintiffs' stores when they opened and he or a relieving uniformed officer remained on the premises until closing time. The officer on duty stood in the doorway of the store and from time to time entered the store and stood or sat there in full view of patrons. This went on every day during the time the store was open from September 10th forward. The officers have refused to explain their presence to store employees, simply stating they are there "under orders." Apparently the surveilling officers have made no arrests or seizures during these tours of duty.

Deputy Commissioner Walsh states that there are 47 book stores in the Times Square area which deal in material similar to that sold by plaintiffs. It is the intention of the police to institute similar surveillance in the other stores "as departmental resources permit."

According to plaintiffs' affidavits, prior to this police surveillance each of the stores had daily average receipts of approximately $500. Following the stationing of police in the stores in the manner described receipts have fallen to approximately $250 per day. Plaintiffs claim that they cannot continue to operate their stores on this financial basis and that they will therefore be forced out of business by the continuing police surveillance.

Plaintiffs contend that the constant presence of uniformed police in their book stores is a prior restraint upon their distribution of books, magazines, pictures and movies in violation of the First and Fourteenth Amendments. They say that many patrons will not enter their stores at all while a uniformed policeman is there, and others who enter will not buy in fear of the police or because they are under the impression that these are "raided" or off limits premises. They say that this is in effect censorship without any of the procedural safeguards required by the Constitution and violates First Amendment rights of free expression.

Plaintiffs base jurisdiction on 42 U.S. C. § 1983, which, broadly speaking, invests federal district courts with authority to hear suits based on violations of constitutional rights, privileges or immunities by a person acting under color of any statute, ordinance, regulation, custom, or usage, of any state or territory. In light of the nature of the activities questioned in this suit, defendant does not challenge the power of this court to pass on the issues.

However, defendant urges the court to abstain from exercising jurisdiction and to remit plaintiffs to their remedies in the state courts. It is plain that abstention is inappropriate under the present circumstances. The Supreme Court has recently directed that abstention be invoked by the federal courts only in "narrowly limited `special circumstances.'" Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Litigants are not to be sent to state courts to obtain relief for deprivation of their constitutional rights simply because state courts have jurisdiction, concurrent with federal courts, to grant the requested relief. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Zwickler teaches that the reasons for not abstaining take on particular significance when First Amendment rights are involved. "To force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect." 389 U.S. at 252, 88 S.Ct. at 397. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Moreover, this is not a case where the federal courts are asked to enjoin threatened state criminal prosecutions. Zwickler recognized that federal courts are and should be slow to interfere with such threatened prosecutions. 389 U.S. at 253, 88 S.Ct. 391. See Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). At least where state prosecutions are threatened, the complainant is afforded opportunity for the prompt determination of his constitutional claim. There is less danger that the additional burdens of time and expense attendant upon remission to state courts will themselves frustrate effective protection of plaintiffs' constitutional rights. However, in the case at bar where no criminal proceedings have been initiated, whatever advantages, if any, there may be in abstention are plainly outweighed by the dangers to free speech which might result from delay accompanying state proceedings.

Defendant Commissioner points to Dale Book Company v. Leary, 389 F.2d 40 (3d Cir. 1968), a post-Zwickler case involving First Amendment issues, to support his plea for abstention. Assuming that case is consistent with Zwickler, it does not aid defendant. Dale Book involved an attempt to enjoin threatened state criminal prosecutions, a situation which Zwickler recognized as sometimes appropriate for abstention. The situation is quite different from that in the case at bar where no prosecutions are pending and indirect censorship without prosecution is charged.¹

I turn then to the merits.

It is plain that obscenity is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

However, the line between publications barred from constitutional protection because it is obscene and material which is constitutionally protected cannot be drawn with any precision. As Judge Moore pointed out in United States v. One Carton Positive Motion Picture Film, 367 F.2d 889 (2d Cir. 1966), despite the fourteen opinions in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney...