People v. Mitchell

• Decision Date: 20 July 1973
• Parties: The PEOPLE of the State of New York v. Parris MITCHELL, Defendant. The PEOPLE of the State of New York v. Charles K. WOODMAN, Defendant. The PEOPLE of the State of New York v. Melvyn ARONOWITZ, Defendant.
• Court: New York City Court

Page 495

346 N.Y.S.2d 495

74 Misc.2d 1053

The PEOPLE of the State of New York v. Parris MITCHELL, Defendant.

The PEOPLE of the State of New York v. Charles K. WOODMAN, Defendant.

The PEOPLE of the State of New York v. Melvyn ARONOWITZ, Defendant.

Criminal Court of the City of New York, New York County, AP 18.

July 20, 1973.

Norman Redlich, Corp. Counsel, by Joseph M. Callahan, Asst. Corp. Counsel, New York City, for the People in the prosecution of Mitchell and Woodman, and by Rene Modry and Joseph A. Esquirol, Jr., Asst. Corp. Counsels, New York City, in the prosecution of Aronowitz for the People.

Herbert S. Kasner, New York City, of counsel, for Kasner & Detsky, New York City, for defendant Melvyn Aronowitz.

Berton Goldwater, New York City, for defendants Parris Mitchell and Charles K. Woodman.

JULIAN A. HERTZ, Judge:

The following opinion determines three separate cases. Trials in the proceedings against defendants Mitchell and Woodman were held in Summons Part on January 23, 1973. At the request of the Assistant Corporation Counsel, decision was withheld pending trial of one or more similar cases, in connection with which the Corporation Counsel prepared an expanded presentation. Although the initial trial of Mitchell and Woodman did not deal with the constitutionality of sections B32--1.0 and B32--4.0 of the Administrative Code of the City of New York, they subsequently raised that issue. Decision was reserved, as was decision on a similar motion to dismiss made by counsel for defendant Aronowitz at a later trial.

Defendants are individuals found to have been managing various premises in New York City on the dates in question. (Mitchell and Woodman, the bookstore at 500 Hudson Street on March 29, 1972 and November 29, 1972 respectively; and Aronowitz, the bookstore at 107 West 42 St. on March 24, 1972, and 801 Eighth Avenue on January 16, 17, and 19, 1973). The facts disclose that these premises are retail stores for the sale of books in which coin-operated motion picture machines have been installed. While no admission is charged to enter or browse, the motion picture machines can only be used by the deposit of a coin to actuate the mechanism. Defendants assert that no one under 21 years of age is permitted to enter the store.

After years of undisturbed operation of so-called 'peep shows', the Department of Consumer Affairs and and Police Department have proceeded against defendants, and many others, for maintaining places or premises of public amusement without a license, pursuant to sections B32--1.0 and B32--4.0 of the Administrative Code.

Section B32--1.0(a) provides that 'It shall be unlawful for any person to operate any place or premises of public amusement or sport, indoor or outdoor, or to exhibit any performance of public amusement or sport in any such place or premises, without a license therefor, upon payment of such fees as may be prescribed by the commissioner, and upon such terms and conditions as he deems necessary for proper regulation and good order.'

Section B32--4.0 states that 'Such licenses, in the discretion of the commissioner, may be subject tro provisions and conditions which, in his judgment, may be essential for the welfare and benefit of the people of and visitors to the city, including provisions and conditions respecting the tickets or other tokens, entitling their holders to admission to such places, and respecting the hours of opening and closing thereof.'

Defendants challenge these provisions as violating their First Amendment constitutional rights. They assert that the showing of movies by means of coin-operated machines is a form of motion picture display constitutionally protected and that the Government may not restrict such expression regardless of message, ideas, subject matter or content. Defendants also allege that the ordinance in question constitutes an impermissible prior restraint upon expression which gives the Commissioner of Consumer Affairs unlimited control over such expression, thus chilling the exercise of First Amendment rights.

It is clear that motion pictures are protected by the First Amendment of the United States Constitution. Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); and Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). Exhibition of motion pictures by means of coinoperated projection machines is similarly encompassed within the First Amendment. City of New York v. S. & H. Book Shop, 41 A.D.2d 637, 341 N.Y.S.2d 292 (1st Dept., 1973); Soof v. City of Highland Park, 30 Mich.App. 400, 186 N.W.2d 361 (1971); and 414 Theatre Corp. v. Murphy, 360 F.Supp. 34 (S.D.N.Y., June 28, 1973).

Therefore, the question for consideration here is whether the licensing scheme which the city is attempting to enforce against the defendants herein constitutes a valid exercise of the police power in an area which clearly impinges on First Amendment freedoms.

The United States Supreme Court has frequently emphasized that 'a system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); and New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

In Shuttlesworth v. Birmingham, 394 U.S. 147, 149, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1967), the Court held that a city ordinance making it an offense to participate in any parade or procession or other public demonstration without first obtaining a permit from the city commission and authorizing the members of the commission to refuse a permit if required to by 'public welfare, peace, safety, health decency, good order, morals or convenience,' was unconstitutional, since it subjected the exercise of First Amendment freedoms to the prior restraint of a license without narrow, objective, and definite standards to guide the licensing authority. An ordinance, the Court stated, which makes the peaceful enjoyment of freedoms guaranteed by the Constitution contingent upon the uncontrolled will of an official--as by requiring a license which may be granted or withheld in the discretion of such official--is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

The Court, in Shuttlesworth, distinguished an earlier case, Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), by explaining that the First and Fourteenth Amendments do not afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways as they afford to those who communicate ideas by pure speech. Although a statute may be enacted which prevents serious interference with the normal usage of streets and parks, licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places are to be condemned. See also Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1947); Kunz v. New York, 340 U.S. 290, 294, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Niemotko v. Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 95 L.Ed. 267 (1951); and Staub v. Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1957), in which the Court stated that 'an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official--as by requiring a permit or license which may be granted or withheld in the discretion of such official--is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.'

In an area affecting First Amendment rights, precision of regulation must be the touchstone. The vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing. Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). In Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1969), the Court, in citing NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964), declared that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." See also Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

Vague or overly-broad licensing systems impinging on First Amendment freedoms have invariably been invalidated by courts faced with such laws. The court in Soof v. City of Highland Park, 30 Misc.App. 400, 186 N.W.2d 361 (1971), asserted that a licensing ordinance which lacks precise standards and thus is incapable of objective measurement is inherently dangerous when First Amendment rights are involved, because the exercise of the protected rights is made entirely dependent upon the discretion of the licensing authority so that the situation becomes fraught with the hazard that the rights of expression will be unconstitutionally restrained. In accord, Marks v. City of Newport, 344 F.Supp. 675 (D.C.Ky., 1972); Gall v. Lawler, 322 F.Supp. 1223 (D.C.Wis., 1972); Griffin v. Mauney, 346 F.Supp. 545 (D.C.N.C., 1972); Plematis v. City of Daytona Beach, 340 F.Supp. 617 (D.C.Fla., 1972); O D v. Wilson, 323 F.Supp. 76 (D.C.D.C., 1971); Dillon v. Municipal Court, 4 Cal.3d 860, 94 Cal.Rptr. 777, 484 P.2d 945 (1971); and Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648 (1971).

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