Bookcase, Inc. v. Broderick

• Decision Date: 07 July 1966
• Citation: 271 N.Y.S.2d 947,18 N.Y.2d 71,218 N.E.2d 668
• Parties: , 218 N.E.2d 668 The BOOKCASE, INC., et al., Appellants, v. Vincent L. BRODERICK, as Commissioner of Police of the City of New York, etal., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 947

271 N.Y.S.2d 947

18 N.Y.2d 71, 218 N.E.2d 668

The BOOKCASE, INC., et al., Appellants, v. Vincent L. BRODERICK, as Commissioner of Police of the City of New York, etal., Respondents.

Court of Appeals of New York.

July 7, 1966.

Emanuel Redfield and Benjamin E. Winston, New York City, for appellants.

J. Lee Rankin, Corporation Counsel (Benjamin Offner and Seymour B. Quel, New York City, of counsel), for Vincent L. Broderick, New York City, respondent.

Frank S. Hogan, Dist. Atty. (John A. K. Bradley and H. Richard Uviller, New York City, of counsel), for Frank S. Hogan, as District Atty., respondent.

Horace S. Manges, Arthur F. Abelman, New York City, and Stuart M. Rosen, New York City, for American Book Publishers Council, Inc., amicus curiae.

KEATING, Judge.

Appellants challenge the power of the State to prohibit sales, to persons below a certain age, of literature not 'obscene' within existing judicial standards for suppression of sales to the general public.

In 1963, appellant Bookcase, Inc., was prosecuted for selling a book, 'The Memoirs of a Woman of Pleasure' (better known as 'Fanny Hill'), to a person under the age of 18 in violation of former section 484--h Consol.Laws, c. 40 which prohibited sales to persons under 18 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'. Though the defendant was convicted initially, the judgment was later reversed and former section 484--h was held unconstitutional (People v. Bookcase, Inc., 14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14).

In response to the rulings of this court in Bookcase, supra, and in People v. Kahan, 15 N.Y.2d 311, 258 N.Y.S.2d 391, 206 N.E2d 333, the Legislature in 1965 added the present section 484--h (L.1965, ch. 327) which has the same objective but is far more detailed and applies to those under 17, and section 484--i (L.1965, ch. 372) which is a similar provision for persons under the age of 18.

Appellants are now seeking a judgment declaring these new sections unconstitutional. Their challenge, however, is limited Solely to the power of the State to pass such statutes. they are Not challenging (as they did in Bookcase, supra) the particular statutes on grounds of vagueness, lack of proper Scienter requirements, and other problem areas normally involved in a constitutional challenge to the validity of obscenity laws. ¹

This court held in Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760, that 'Fanny Hill' was Not obscene and could be sold to the general public, but appellants admit that the book does fall within the prohibition of sections 484--h and 484--i as regards sales to persons under 17 or 18. Appellants argue that such a distinction on the basis of age is an unconstitutional infringement upon the freedom of the press.

The decisions of the Supreme Court of the United States and of this court have indicated that a concept of variable obscenity for the protection of children, in a properly drawn statute, is not only within the power of our Legislature but is a desirable and even necessary provision. The statutes in question embody that concept and we uphold the validity of such a concept.

Appellants' challenge stems from the following Supreme Court statement: '(O)ur holding in Roth ² does not recognize any state power to restrict the dissemination of books which are not obscene'. (Smith v. People of State of California, 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205.) Since, appellants argue, this court has ruled that 'Fanny Hill' is not obscene, its distribution is protected and the statutes restricting its dissemination are unconstitutional. It is worthwhile, therefore, to go back to Roth and trace the development in the Supreme Court of the concept of obscenity.

Roth was heard and decided together with Alberts v. State of California, 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60, one being a violation of a Federal obscenity statute and one a State statute. In upholding both convictions, the Supreme Court stated that obscenity was outside the constitutional protection intended for speech and the press and defined obscene material as that which deals with sex in a manner appealing to the prurient interest; that is, material having a tendency to excite lustful thoughts and utterly without redeeming social importance. The test was said to be 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest' (Roth, supra, 354 U.S. p. 489, 77 S.Ct. p. 1311).

After Smith, supra, in which the court shed additional light on the Roth tests, the court, in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, held that under its tests for obscenity a certain film was not obscene and, therefore, a conviction under a State statute for exhibiting it to the general public could not be sustained. Indicative of the lack of certainty in this area was the fact that no majority opinion could be agreed upon and no less than six separate opinions and one concurrence without opinion were filed. Nevertheless, though there was disagreement on the Roth tests and its application to the particular film and statute in question, certain principles were gleaned, upon which a majority of the Justices appeared to agree.

The opinion of Mr. Justice Brennan, who wrote for the court in Roth and Smith, concurred in by Mr. Justice Goldberg, contained the following suggestion to the States: 'We recognize the legitimate and indeed exigent interest of States and licalities throughout the Nation an preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to 'reduce the adult population * * * to reading only what is fit for children.' Butler v. State of Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412. State and local authorities Might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination.' (Jacobellis, supra, p. 195, 84 S.Ct. p. 1682, emphasis added.) Since the conviction in question was for exhibition at large and not merely to children, the judgment, according to Mr. Justice Brennan, had to be reviewed under the strict standard applicable on a national basis. The implication was that in a statute limited to 'distribution of objectionable material to children' State or local interests would be determinative.

In a dissenting opinion concurred in by Mr. Justice Clark, the Chief Justice recognized that the use to which materials are put--not the words or pictures themselves--must be considered in determining obscenity. 'A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time, 'obscene' in the extreme when sold or displayed to children' (supra, p. 201, 84 S.Ct. p. 1685).

Finally, in the recent case of Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56, appellant argued that the books in question did not satisfy the prurient-appeal requirement because they did not appeal to the prurient interest of the average person. The court rejected the argument as being an unrealistic interpretation of the requirement: 'Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of of that group. * * * We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group' (supra, pp. 508--509, 86 S.Ct. pp. 963--964).

The clear implication of these cases is that material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may very according to the group to whom the questionable material is directed or from whom it is quarantined. Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.

The decisions of our own court point to a similar result. In Bookcase we struck down the predecessor of section 484--h because it was too broad and too obscure in tis coverage, but we did not challenge the power of the Legislature to provide different standards for children. (See dissenting opinion per Scileppi, J., 14 N.Y.2d p. 424, 252 N.Y.S.2d p. 445, 201 N.E.2d p. 26.)

This was spelled out more clearly in People v. Kahan, supra, 15 N.Y.2d pp. 311--312, 258 N.Y.S.2d p. 392, 306 N.E.2d p. 334 where the Per Curiam opinion repeated that Bookcase 'implied that a constitutionally valid statute...