Brown v. Kingsley Books, Inc.

• Decision Date: 27 April 1956
• Citation: 1 N.Y.2d 177,134 N.E.2d 461,151 N.Y.S.2d 639
• Parties: , 134 N.E.2d 461 Peter Campbell BROWN, Corporation Counsel of the City of New York, Respondent, v. KINGSLEY BOOKS, Inc., et al., Appellants, and Metropolitan Book Shop, Inc., et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 639

151 N.Y.S.2d 639

1 N.Y.2d 177, 134 N.E.2d 461

Peter Campbell BROWN, Corporation Counsel of the City of New York, Respondent, v. KINGSLEY BOOKS, Inc., et al., Appellants, and Metropolitan Book Shop, Inc., et al., Defendants.

Court of Appeals of New York.

April 27, 1956.

Emanuel Redfield, New York City, for Kingsley Books, Inc., and another, appellants.

Peter Campbell Brown, Corp. Counsel, New York City, in pro. per. (Seymour B. Quel and Fred Iscol, New York City, of counsel).

FULD, Judge.

Although we are all agreed for affirmance, we reach that conclusion by somewhat different routes. The importance and perplexities of the constitutional issue presented persuade me that there must be more full discussion than some of my associates believe necessary of the reasons for and the reach of the decision being made.

Enacted in 1941, L.1941, ch. 925, and amended in 1954, L.1954, ch. 702, section 22-a of the Code of Criminal Procedure was designed to supplement existing criminal sanctions by providing an additional civil remedy in the Supreme Court, by way of an action for an injunction, against the sale and distribution of written or printed matter found, after trial, to be obscene. Modeled on the language of section 1141 of the Penal Law, Consol.Laws, c. 40, the statute prohibiting the sale and distribution of items obscene, section 22-a, insofar as here pertinent, embraces 'any book, magazine, pamphlet, comic book, story paper, writing, paper, picture, drawing, photograph, figure, image or any written or printed matter of an indecent character, which is obscene, lewd, lascivious, filthy, indecent or disgusting'. It vests the right to maintain the action in the chief executive or legal officer of any city, town or village and provides that it may be brought against anyone who 'sells or distributes or is about to sell or distribute or has in his possession with intent to sell or distribute or is about to acquire possession with intent to sell or distribute' any such matter, subd. 1. If an injunction is granted, the statute continues the resulting order or judgment must direct the defendant to 'surrender' the offending matter to the sheriff who 'shall be directed to seize and destroy the same.' Subd. 3.

The present suit, instituted by the Corporation Counsel of the City of New York against a number of book sellers with premises in that city, concerns a series of paper-bound booklets collectively entitled 'Nights of Horror'. Members of the police force testified at the trial that the booklets had been displayed for sale in defendants' stores and that they had purchased a number of copies from the various defendants, at prices ranging from $2 to $4 each. The publications themselves were also introduced in evidence. The trial judge, in a carefully considered opinion, found that the booklets were plainly obscene and pornographic, 'dirt for dirt's sake', and held that the statute did not violate any constitutional guarantee. He thereupon granted judgment (1) permanently enjoining defendants from distributing, selling, or acquiring possession of such publications, (2) requiring them forthwith to surrender to the sheriff for destruction all copies in their possession and (3) directing the sheriff to seize and destroy such copies, in the event of defendants' failure to surrender them.

The paper-covered booklets before us are indisputably pornographic, indisputably obscene and filthy. Defendants concede as much and also acknowledge, in effect, that, had they been criminally prosecuted for violating the obscenity provisions of the Penal Law, no constitutional argument could successfully have been leveled against resulting convictions. Indeed, not questioning the definiteness of the statutory standard, not challenging the test of obscenity applied by the trial judge, who concluded that the booklets were obscene under any of the judicially announced criteria and not objecting to the failure to require a jury trial, ¹ defendants' sole attack upon the statute is that the remedy by injunction constitutes an unconstitutional 'prior restraint,' interfering with freedom of speech and press, U.S.Const. 1st and 14th Amendts,; N.Y.Const. art. I, § 8. ²

There is, of course, no doubt that freedom of speech and press, so basic to a free and dynamic society, extends to all media of expression (see Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 501-502, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098; see, also, Chafee on Free Speech in the United States (1941), p. 545), that it protects distribution as well as initial publication (see Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660) and that it embraces writings or other forms of expression designed for entertainment or amusement, as well as those concerned with the exposition of ideas. (See Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840; Hannegan v. Esquire, Inc., 327 U.S. 146, 153, 66 S.Ct. 456, 460, 90 L.Ed. 586.) While the right of free expression is not absolute or unqualified under all circumstances, it is clear that any invasion of that right must find justification in some overriding public interest, and that restricting legislation must be narrowly drawn to meet an evil which the state has a substantial interest in correcting. (See Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. 495, 502-504, 72 S.Ct. 777, 780-782; Feiner v. People of State of New York, 340 U.S. 315, 319, 71 S.Ct. 303, 305, 95 L.Ed. 267; Niemotko v. State of Maryland, 340 U.S. 268, 271-272, 71 S.Ct. 325, 327-328, 95 L.Ed. 267; Winters v. People of State of New York, supra, 333 U.S. 507, 509, 68 S.Ct. 665, 667; Cantwell v. State of Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213; Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 105, 60 S.Ct. 736, 741-742, 745, 84 L.Ed. 1097.)

That clearly drawn regulatory legislation to protect the public from the evils inherent in the dissemination of obscene matter, ³ at least by the application of criminal sanctions, is not barred by the free speech guarantees of the First Amendment, has been recognized both by this court (see People v. Doubleday & Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed by equally divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 799; People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y 408) and by the United States Supreme Court. (See United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457; Winters v. People of State of New York, supra, 333 U.S. 507, 510, 518, 520, 68 S.Ct. 665, 667, 671, 672; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843; see, also, Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 768-769, 86 L.Ed. 1031; Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357; Beauharnais v. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919.) Imprecise though it be its 'vague subject-matter' being largely 'left to the gradual development of general notions about what is decent' (per L. Hand, J., United States v. Kennerley, D.C., 209 F. 119, 121) the concept of obscenity has heretofore been accepted as an adequate standard. Indeed, in the Winters case, supra, 333 U.S. 507, 68 S.Ct. 665, 668, the court not only indicated that collocation of the very words found in section 1141 of our Penal Law, 'obscene, lewd, lascivious, filthy, indecent or disgusting', is sufficiently 'well understood through long use in the criminal law' to satisfy the due process requirements of definiteness and certainty, 333 U.S. at page 518, 68 S.Ct. at page 671, but actually pointed to the provision as 'an example' of a statute wherein 'apt words' are used 'to describe the prohibited publications', 333 U.S. at page 520, 68 S.Ct. at page 672. ⁴

Thus, by virtue of section 1141, it has long been a misdemeanor in this state, punishable by imprisonment or fine or both, to sell or distribute any written or printed obscene material of the kind described in section 22-a of the Code, and similar statutes are in effect in almost all of the other jurisdictions in this country (see Note, 22 U. of Chicago L.Rev. 216). The legislature, however, apparently concluded that such penal sanctions were inadequate to stem the rising tide of obscene and pornographic publications that have, in recent years, flooded the book and periodical market, and the supplemental remedy of an equity action for an injunction was thereupon devised. (Cf. Report of New York State Joint Legislative Committee to Study the Publication of Comics, N.Y.Legis.Doc., 1954, No. 37, pp. 31-32.) Whether or no the legislature acted wisely is, of course, no concern of the courts. Our inquiry is limited to whether its act transcends constitutional limits.

As already noted, no injunction may issue under section 22-a except after a full trial of the issues, and only upon a finding that the challenged publication is of the same character as would subject the defendant to punishment under the pertinent provisions of the Penal Law. What the statute does is to provide an additional sanction against the dissemination of obscene matter.

It is however, defendants' position that the constitution limits the state to the imposition of punishment, and that distribution of the writing itself may not be prevented. An injunction, such as the present one, even though it is issued after publication and after a judicial trial, is characterized as such suppression and censorship as to stamp it an impermissible 'prior restraint.' In other words, it is urged that as long as the publisher or vendor of a writing is willing to risk the imposition of criminal penalties he has an absolute right to proceed with its publication or distribution and any restriction of that right...