People v. Richmond County News, Inc.

• Decision Date: 25 May 1961
• Citation: 175 N.E.2d 681,9 N.Y.2d 578,216 N.Y.S.2d 369
• Parties: , 175 N.E.2d 681 PEOPLE of the State of New York, Appellant, v. RICHMOND COUNTY NEWS, INC., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 369

216 N.Y.S.2d 369

9 N.Y.2d 578, 175 N.E.2d 681

PEOPLE of the State of New York, Appellant, v. RICHMOND COUNTY NEWS, INC., Respondent.

Court of Appeals of New York.

May 25, 1961.

John M. Braisted, Jr., Dist. Atty., Staten Island (Thomas R. Sullivan, Staten Island, of counsel), for appellant.

Jacob Weidenbaum, New York City, for respondent.

FULD, Judge.

Charged by an information with selling and distributing an allegedly obscene magazine in violation of section 1141 of the Penal Law, the defendant Richmond County News, Inc., was convicted in the Court of Special Sessions of the City of New York. Upon appeal, the conviction was reversed and the information dismissed; although the Appellate Division agreed with the trial court that the magazine was obscene, it decided that the proof failed to establish that the defendant had knowledge of the magazine's obscene character.

We believe that the reversal was required, but for a different reason. It is our view that the magazine is not obscene and, accordingly, we do not reach the question as to the kind of knowledge required for a conviction under this statute or the question whether the evidence would justify a finding that such knowledge existed.

The defendant is a wholesaler of magazines, paper-covered books and newspapers. Among the 700-odd items carried by the defendant, which it receives from national distributors, was the magazine 'Gent', and it was the sale and distribution of its April, 1957 issue which occasioned the prosection under section 1141.

The photocover of 'Gent' is similar to that of numerous other magazines which loudly proclaim their dedication to coarse sensuality. The contents, like the cover, exhibit the same attempt to pander to and commercialize upon man's taste for the bawdy and the ribald behind a bard disguise of aesthetic respectability. Thus, together with short stories of apparent literary merit, reprinted with permission from standard editions of the authors' works, which are inoffensive under any standard of sexual sensitivity, there appear the usual staples of this form of sexual provocation, including 'artistic' photographs, salacious cartoons and short stories of sexual seduction.

The courts below have characterized the magazine as 'obscene', but whether that finding is justified requires us despite contrary intimations in some of our decisions (see People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y. 408, 410) to make an independent constitutional appraisal of the magazine. This court, as the State's highest tribunal, no less than the United States Supreme Court, cannot escape its responsibility in this area 'by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene,' for, if 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.' Roth v. United States, 354 U.S. 476, 497-498, 77 S.Ct. 1304, 1315-1316, 1 L.Ed.2d 1498 (Harlan, J., concurring); see, also, Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 295; Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Norris v. State of Alabama, 294 U.S. 587, 589-590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 114-120. It involves not a simple question of fact, but a mixed question of fact and constitutional law, calling upon the court to make an appraisal of a publication and its contents against the requirements embodied in both State and Federal Constitutions (N.Y. Const., art. I, § 8; U.S.Const., 1st and 14th Amdts.). Consequently, if an appellate court were to rely upon and be bound by the opinion of the trier of the facts as to the obscenity of a publication it would be abdicating its role as an arbiter of constitutional issues.

It is settled doctrine that a state may constitutionally convict those who publish, sell or keep for sale publications 'incontestably found to be obscene' without offending against the guarantees of the First Amendment. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1327, 1 L.Ed.2d 1469; Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1306, 1 L.Ed.2d 1498, supra; Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. But the existence of the State's power to prevent the distribution of obscene matter 'does not mean that there can be no constitutional barrier to any form of practical exercise of that power'. Smith v. People of State of California, 361 U.S. 147, 155, 80 S.Ct. 215, 219, 220, 4 L.Ed.2d 205; see, also, Roth v. United States, 354 U.S. 476, 497-498, 77 S.Ct. 1304, 1315-1316, 1 L.ed.2d 1498, supra, Harlan, J., concurring. Although the Constitution does not, therefore, stand as a barrie against legislation making obscenity criminal, it does stand as a limitation on such legislation of such a sort as to compel us to construe it strictly. The danger of a violation of cherished First Amendment rights necessitates narrow construction; we may open 'the door barring federal and state intrusion into this area * * * only the slightest crack necessary'. Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1311, supra.

Whether we focus upon the historical development of social and judicial attitudes towards writings or art work dealing with sex, or whether we view the defferences on this score among various groups within our contemporary society, we cannot help but be impressed by the extraordinary diversity which is manifest. ¹ Under these circumstances, we must interpret out statute to include only those prohibitions which find the widest acceptance, and which reflect the most universal moral sensibilities. 'The law', said Judge Cardozo, 'will not hold the crowd to the morality of saints and seers' (Paradoxes of Legal Science, p. 37); nor, we would add, will it hold the crowd to the literary or artistic fashion of the hour.

An interest in upholding the legislation also demands that its impact be limited to its legitimate sphere, so that it will not be held applicable to the advocacy of ideas. The urging of doctrine, for instance, even if mischief would result were it followed, is within the protection of the Constitution. See Yates v. United States, 354 U.S. 298, 318, 322, 77 S.Ct. 1064, 1076, 1078, 1 L.Ed.2d 1356; Dennis v. United States, 341 U.S. 494, 512-513, 71 S.Ct. 857, 868-869, 95 L.Ed. 1137. And the mere fact that adulterous or other sexually immoral relationships are portrayed approvingly cannot serve as a reason for declaring a wokr obscene without running afoul of the First Amendment. See Kingsley Intern. Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512. The Constitution protects 'advocacy of the opinion that adutery may sometimes be proper, no less than advocacy of socialism or the single tax'. Kingsley Intern. Pictures Corp. v. Regents of University of State of New York, 360 U.S. at page 689, 79 S.Ct. at page 1365.

The same protection applies even if the material which is subject to prohibition is a form of entertainment, rather than an exposition of ideas, and even if we conclude that it is lacking in all social value. 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, 158, 66 S.Ct. 456, 460, 462, 90 L.Ed. 586. As the Supreme Court observed in the Winters case, 333 U.S. at page 510, 68 S.Ct. at page 667, 'What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.'

It is noteworthy that, despite the reams of material on the effect of books, magazines and other media of expression on sexual conduct, ² 'there is (very) little scientific evidence' on the subject. St. JohnStevas, Obscenity and the Law (1956), p. 196; see, also, Brown v. Kingsley Books, 1 N.Y.2d 177, 181, note 3, 151 N.Y.S.2d 639, 641, (affirmed sub nom. Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469); United States v. Roth, 2 Cir., 237 F.2d 796, 812-817, per Frank, J., concurring affirmed sub nom. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, supra. Indeed, two authoritative writers in the field have concluded that, 'although the whole subject of obscenity censorship hinges upon the unproved assumption that 'obscene' literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assumption by singling out as a factor for study the effect of sex literature upon sexual behaviour'. Lockhart and McClure, Obscenity in the Courts, 20 Law and Contemporary Problems 587, 595; see, also, American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207, 10, p. 44. Some commentators have gone even further and suggested that 'for an undetermined number of individuals, the writing or reading of obscenity may be a substitute for rather than a stimulus to physical sexuality.' American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207. 10, p. 24.

Other writers, expressing a somewhat different view, argue that the obscenity laws themselves, in forbidding the publication, sale and distribution of obscenity, can have little effect on sexual crime or other anti-social conduct. Some studies seem to suggest that 'erotic responses', whether normal or abnormal, are as frequently evoked by objects and literature which are not, in the conventional sense, sexual as by the conventional sexual stimuli. See Kinsey et al., Sexual Behavior in the Human Female (1953)...