Calderon v. City of Buffalo

• Decision Date: 01 March 1978
• Citation: 402 N.Y.S.2d 685,61 A.D.2d 323
• Court: New York Supreme Court — Appellate Division
• Parties: , 3 Media L. Rep. 2454 Hyman CALDERON d/b/a Neisner's Smoke Shop, Respondent, v. The CITY OF BUFFALO et al., Appellants.

Page 685

402 N.Y.S.2d 685

61 A.D.2d 323, 3 Media L. Rep. 2454

Hyman CALDERON d/b/a Neisner's Smoke Shop, Respondent, v. The CITY OF BUFFALO et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

March 1, 1978.

Leslie G. Foschio, Corp. Counsel, Buffalo, for appellants; Patricia Pancoe, Buffalo, of counsel.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, for respondent; Paul J. Cambria, Jr., Buffalo, of counsel.

Before MOULE, J. P., and SIMONS, DILLON, HANCOCK and DENMAN, JJ.

DENMAN, Justice.

The plaintiff, Hyman Calderon was approached at his place of business Neisner's Smoke Shop, by a Buffalo police officer from the Salacious Literature Unit, who advised him that he was selling magazines in violation of Chapter 9, Section 35, of the Ordinances of the City of Buffalo (commonly known as the Anti-Obscenity and Display to Minors Ordinance). The officer either refused or was unable to explain to plaintiff exactly what the ordinance prohibited. A number of days later the same officer returned to the Smoke Shop, bought a magazine entitled "Hustler," and requested to see another magazine but again indicated to plaintiff that he could not tell him what he was doing that constituted a violation of the ordinance. Two days later the officer returned with a photographer who took pictures of the magazines on display. Plaintiff was told to follow the police officer to Police Headquarters, where he was charged with violation of the above ordinance. He was arraigned on that charge in the City Court of Buffalo; some months later the charge was dismissed upon the City's failure to appear for trial.

Plaintiff thereafter initiated an action for declaratory judgment and injunctive relief on the grounds that the sections of the ordinance prohibiting display of certain materials are unconstitutionally broad and vague. Special Term entered judgment holding that subdivisions j(1), j(2) and j(3) of Chapter 9, Section 35, of the Ordinances of the City of Buffalo are unconstitutional and permanently enjoining the City from enforcing them. The City of Buffalo appeals from that judgment.

The City raises the issue of plaintiff's standing to institute an action for declaratory judgment, asserting that no justiciable controversy exists, that application of the ordinance to plaintiff is hypothetical, and that plaintiff must await prosecution before he may raise constitutional issues. Although such assertions might have validity in other circumstances, traditional rules of standing have been expanded in the area of First Amendment rights. Where such rights are at stake, litigants "are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression" (Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830). Nor in this delicate area is a person required to show that his own conduct could not be regulated by a narrow construction of the statute under attack (Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22).

Even without the special exception granted litigants seeking to preserve their right of free expression, the applicability to plaintiff of the ordinance in question is plain (see, Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 49 L.Ed.2d 310), and he should not be forced to await prosecution on criminal charges before seeking a determination of the law's validity (Bunis v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d 435, lv. to app. den. 17 A.D.2d 1036, 235 N.Y.S.2d 831).

The proper method of testing the constitutional validity of such a statute is by an action for declaratory judgment (Matter of Merced v. Fisher, 38 N.Y.2d 557, 381 N.Y.S.2d 817, 345 N.E.2d 288; New York Foreign Trade Zone Operators, Inc. v. State Liquor Authority, 285 N.Y. 272, 34 N.E.2d 316; Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 11 N.E.2d 728; Bunis v. Conway, supra ). Inasmuch as petitioner seeks to resolve a First Amendment challenge to an ordinance under which he has once been criminally charged and has been threatened with further prosecution, the court properly entertained his request for declaratory relief. The reasons for declaratory relief are even more compelling in a situation such as the one here in which threat of prosecution imposes an informal censorship on vendors of books and magazines, thus raising serious questions of prior restraint under the First and Fourteenth Amendments.

Our courts have consistently recognized the state's legitimate interest in attempting to stem the tide of commercialized obscenity (see, e. g., Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312; Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498). Threading through the cases which have developed the law on obscenity is an awareness, sometimes articulated, sometimes implied, that rights and interests other than those of the particular litigants must be protected. These include the interests of the community in the quality of life in which we all participate and the tone of the societal atmosphere which we must of necessity share. Indeed, "what is commonly read and seen and heard and done intrudes upon us all, want it or not. (22 The Public Interest 25-26 (Winter 1971)" (Paris Adult Theater I v. Slaton, supra, 413 U.S. p. 59, 93 S.Ct. p. 2636)).

Even more compelling than the state's interest in regulating the dissemination of obscenity to the public at large is its interest in protecting children from the onslaught of sexually offensive material. The State may " 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" (Ginsberg v. New York, 390 U.S. 629, 636, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195). Despite the continuing and often heated controversy ¹ as to what speech, if any, can be prohibited consistently with the First Amendment, there is a general consensus that the healthy emotional development of our young people permits the state to intervene in support of the parental role in preventing young minds from being adversely affected by sexually explicit material with respect to which they lack mature and discriminating judgment (Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125; Paris Adult Theater I v. Slaton, supra; Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225; Ginsberg v. New York, supra; People v. Tannenbaum, 18 N.Y.2d 268, 274 N.Y.S.2d 131, 220 N.E.2d 783, app. dsmd., 338 U.S. 439, 87 S.Ct. 2107, 18 L.Ed.2d 1300, reh. den. 389 U.S. 892, 88 S.Ct. 15, 19 L.Ed.2d 204; Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 271 N.Y.S.2d 947, 218 N.E.2d 668, mot. to amd. remittitur den., 18 N.Y.2d 708, 752, 274 N.Y.S.2d 144, 220 N.E.2d 793; People v. Kahan, 15 N.Y.2d 311, 258 N.Y.S.2d 391, 206 N.E.2d 333). As enunciated by former Chief Judge Fuld in his concurring opinion in People v. Kahan, supra, p. 312, 258 N.Y.S.2d p. 392, 206 N.E.2d p. 334,

"The constitution does not secure to them (children) the same, almost absolute, right assured to adults to judge and determine for themselves what they may read and what they should reject.

"While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendant interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodies in legislation aimed at controlling dissemination of such material to adults."

While enactment of such legislation is within the authority of the state, nevertheless it is "essential that legislation aimed at protecting children from allegedly harmful expression no less than legislation enacted with respect to adults be clearly drawn and that the standards adopted be reasonable precise so that those who are governed by the law and those that administer it will understand its meaning and application. It is equally important that such legislation be drawn so as not to bring about the suppression of the sale to adults of material that is, in fact, constitutionally protected. (See, Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, * * *)" (People v. Kahan, supra, p. 313, 258 N.Y.S.2d p. 393, 206 N.E.2d p. 335). With these principles in mind, we examine the ordinance before us.

"(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...