De Salvo v. Codd

• Decision Date: 23 December 1974
• Docket Number: No. 74 Civ. 2055.,74 Civ. 2055.
• Parties: Robert DE SALVO, Plaintiff, v. Michael J. CODD, Individually, and as Police Commissioner of the City of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

386 F. Supp. 1293

Robert DE SALVO, Plaintiff, v. Michael J. CODD, Individually, and as Police Commissioner of the City of New York, et al., Defendants.

No. 74 Civ. 2055.

United States District Court, S. D. New York.

December 23, 1974.

Kassner & Detsky, New York City, for plaintiff; Herbert S. Kassner, New York City, of counsel.

Richard H. Kuh, Dist. Atty., New York County, New York City, defendant pro se; Allen G. Swan, New York City, of counsel.

Adrian P. Burke, Corp. Counsel, New York City, defendant pro se; Renee Modry, Joseph I. Lauer, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, amicus curiae; Arlene R. Silverman, New York City, of counsel.

Before OAKES, Circuit Judge, and MacMAHON and WARD, District Judges.

ROBERT J. WARD, District Judge:

Plaintiff instituted this civil rights action under 42 U.S.C. § 1983 seeking a declaration that New York's criminal and civil anti-obscenity statutes, New York Penal Law art. 235 McKinney's Consol.Laws, c. 40 ("the criminal statute")¹ and New York Civil Practice Law and Rules § 6330 ("the civil statute"),² are unconstitutionally vague and overbroad, both on their face and as construed, and that the procedure established by CPLR § 6330 is unconstitutional insofar as it authorizes a total restraint upon the exhibition of a motion picture prior to a final determination of obscenity. He further seeks an injunction against the enforcement of both statutes.

In a memorandum decision filed June 24, 1974, this Court, sitting as a single judge, denied plaintiff's application to convene a three-judge court to determine the constitutionality of Penal Law art. 235 and the procedural aspects of CPLR § 6330, finding that these claims failed to raise a substantial federal question. This three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284 to determine the remaining question raised by plaintiff's complaint — whether the civil statute is so vague and overbroad on its face as to be constitutionally unenforceable.³

Plaintiff, the lessee and operator of the Lincoln Art Theater in the borough of Manhattan, has in the past exhibited at his theater sexually oriented films which

include in varying degrees some or all of the following representations of sexual conduct.

a. Actual portrayal of ultimate sex acts.

b. Actual portrayal of non-ultimate sex acts.

c. Simulated portrayal of ultimate sex acts.

d. Simulated portrayal of non-ultimate sex acts.

e. Any of the above with respect to normal sex acts f. Any of the above with respect to abnormal sex acts.

g. Any of the above with respect to perverted sex acts.

h. Actual portrayal of masturbation.

i. Simulated portrayal of masturbation.

j. Actual portrayal of excretory functions.

k. Simulated portrayal of excretory functions.

i. Exhibition of the genitals, both male and female, in various poses.

(Complaint ¶ 3)

He alleges that he wishes to continue exhibiting non-obscene films of like character but is inhibited from doing so for fear of coming within the proscriptions of the civil statute. Plaintiff argues that the civil statute violates his constitutional right to exhibit non-obscene films under the First and Fourteenth Amendments because it is vague and overbroad. Specifically, he argues that the civil statute is unconstitutionally vague in light of the standards established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) in that it does not specifically define those categories of sexual conduct which when portrayed in a patently offensive manner will be labelled obscene and, thereby, constitutionally unprotected and in that it does not define that community with reference to which the predominant appeal and patent offensiveness of the material is to be judged. He argues that the statute is overbroad in that its proscriptions extend beyond that category of expressive material which is defined as obscene by the criminal statute.

Abstention

A threshold question is whether this Court should abstain from deciding the constitutional issue posed by this controversy and postpone the exercise of its conceded jurisdiction until a construction of the civil statute, in light of Miller, may be obtained from the New York Court of Appeals. In deciding whether to stay its hand, this Court must be mindful that

abstention is a "judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, that sanctions . . . escape from immediate decision only in narrowly limited `special circumstances,' Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1334, 93 L.Ed. 1480," Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Louisiana State Board Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964). Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972).

The paradigmatic circumstance in which it may be appropriate for a federal court to invoke the abstention doctrine is when "resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). However, abstention does not follow automatically from the confrontation with an ambiguity in state law. Rather what is required is a judicious exercise of discretion. The determination that the "special circumstances", requisite for the application of the doctrine, exist can only be made after a balancing of all the relevant factors and competing policies on a case-by-case basis. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

After considering all the factors, we conclude that this is not a case where abstention would be appropriate. First, we note the importance of the right alleged to be abridged and the impairment of that right which would be attendant upon the delay abstention involves.⁴ When statutes are attacked on their face as abridging free expression, as in the instant case, abstention is inappropriate. Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). No opinion of the New York Court of Appeals construing this statute is imminent, thus distinguishing this case from United Artists Corp. v. Proskin, 363 F.Supp. 406 (N.D. N.Y.1973) and Detco, Inc. v. McCann, 365 F.Supp. 176 (E.D.Wis.1973).

Another factor which persuades us to reach the merits is that we find sufficient guidance as to the construction to be given the statute in the decisions of the New York Court of Appeals⁵ to render abstention unwarranted. This is not a case where the challenged statute has never been construed by any state court. Compare Lake Carriers' Assn. v. MacMullan, supra; Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). Our view of the construction given the statute by the New York courts, particularly the decision in People v. Heller, 33 N.Y.2d 314, 352 N.Y.S. 2d 601, 307 N.E.2d 805 (1973), cert. denied sub nom., Buckley v. New York, 418 U.S. 944, 94 S.Ct. 3231, 41 L.Ed.2d 1175 (1974), therefore, distinguishes this case from United Artists Corp. v. Harris, 363 F.Supp. 857 (W.D.Okl.1973).

This case is also distinguished from those where abstention has been ordered in that there is no real independent question of state law. Rather, to abstain here, remitting the plaintiff to state court, would be to force him to litigate the same claim there. "`Assertion of a federal claim in a federal court need not await an attempt to vindicate the same claim in a state court.'" Askew v. Hargrave, 401 U.S. 476, 478, 91 S.Ct. 856, 858, 28 L.Ed.2d 196 (1971), quoting from McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Compare Askew v. Hargrave, supra; Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970).

While recognizing that the statute is not without ambiguity, for the reasons noted, this Court, in the exercise of its discretion, will not abstain.

Overbreadth

It is with reluctance that this Court now mires itself in what has been called "the intractable obscenity problem", Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, J., dissenting and concurring). Our starting point is that the dissemination of obscene material is not constitutionally protected. "This much has been categorically settled by the Supreme Court." Miller v. California, 413 U.S. at 23, 93 S.Ct. at 2614. However, the problem which has vexed both courts and legislatures, in the nearly two decades since obscenity was authoritatively constitutionally ostracized, has been what statutory formulation, combined with judicial absolution, will suffice to exorcise pornography without trammelling constitutionally protected expression. As the court in Miller described its own forays into the thicket, "Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power." 413 U.S. at 22, 93 S.Ct. at 2614. Against this jurisprudential backdrop, we are asked to determine whether the New York civil statute must fall because it casts its net too broadly. The standard to be applied is whether "it offends the constitutional principle that `a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly.'" Zwickler v. Koota, supra, 389 U.S. at 250, 88 S.Ct. at 396.

It is clear from the language of the statute that its proscription extends to material proscribed by the criminal statute...