In People v. Kahan (15 N.Y.2d 311) this court held section 484-h of the Penal Law, as it then read, was constitutionally deficient and at the same time suggested careful draftsmanship could provide a constitutionally valid statute for the protection of young persons against obscene publications.Summary of this case from People v. Tannenbaum
Argued January 12, 1965
Decided March 18, 1965
Appeal from the Supreme Court in the Second Judicial Department, RICHARD F. DALY, J., MAURICE H. MATZKIN, J., RAYMOND A. TIERNEY, J.
Aaron E. Koota, District Attorney ( Harry Brodbar and Raymond J. Scanlan of counsel), for appellant in the first two above-entitled actions.
Frank S. Hogan, District Attorney ( Michael Juviler and H. Richard Uviller of counsel), for appellant in the third above-entitled action.
Osmond K. Fraenkel for respondents.
The decision in People v. Bookcase, Inc. ( 14 N.Y.2d 409) implied that a constitutionally valid statute defining obscenity in its impact on the young, as distinguished from obscenity in respect of adults, might emerge under careful draftsmanship. We find defects in draftsmanship of section 484-h of the Penal Law which seem to be remediable both in respect of its substantive definitions and in respect of scienter as to contents and the age of the customer. (Cf. Smith v. California, 361 U.S. 147.)
The orders should be affirmed.
Underlying the First Amendment is the premise that government cannot be trusted to regulate thought or opinion and that the people may and, in fact, must be left to reject for themselves false or harmful doctrine whether it involves political, moral or other precepts. (See Thomas v. Collins, 323 U.S. 516, 545, per JACKSON, J., concurring; Whitney v. California, 274 U.S. 357, 375-376, per BRANDEIS, J., concurring.) But the same reliance need not be and has never, either in theory or practice, been placed on the judgment of children, and the Constitution does not secure to them the same, almost absolute, right assured to adults to judge and determine for themselves what they may read and what they should reject.
As Mr. Justice JACKSON expressed the idea in the course of his concurring opinion in the Thomas case (323 U.S., at p. 545), "it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us."
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 transcendent 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 embodied in legislation aimed at controlling dissemination of such material to adults. And I have no doubt that such a law, punishing the sale or distribution to children of matter deemed objectionable, under criteria that would not be permissible if applied to adults, may be drafted so as not to violate the constitutional guarantees of freedom of expression. (See Butler v. Michigan, 352 U.S. 380; Jacobellis v. Ohio, 378 U.S. 184, 195; cf. Prince v. Massachusetts, 321 U.S. 158, 165-168.)
It is, however, 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 reasonably 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. Michigan, 352 U.S. 380, supra.) In my judgment, section 484-h of the Penal Law, when viewed in this manner, is not sufficiently clear or precise to meet constitutional demands.
A reading of section 484-h cannot help but leave one in doubt as to the standards and criteria to be applied in enforcing it. More specifically, it is impossible to discern, from the language of the provisions themselves, any difference between the standards regulating the sale of pornographic material to children (Penal Law, § 484-h) and those governing the dissemination of such matter to the reading public in general (Penal Law, § 1141). It is suggested, however, that the word "obscene" as used in section 484-h has another meaning which differs substantially from the meaning given it in section 1141 or in other laws applicable to adults.
The interpretation given the term "obscene" by the Supreme Court in Roth v. United States ( 354 U.S. 476) is, of necessity, as that court itself recognizes (354 U.S., at pp. 491-492; see, also, Jacobellis v. Ohio, 378 U.S. 184, 197, per STEWART, J., concurring, supra,), somewhat imprecise and elastic. But the Supreme Court has found that statutes employing "obscene" as a standard by which to prohibit and punish the general sale and distribution of certain material do not violate constitutional guarantees when stringent limitations are placed on the meaning and application of that term, when its coverage is limited, for instance, to material which is utterly without value and is patently offensive to prevailing standards of decency. (See, e.g., Roth v. United States, 354 U.S. 476, 484, 489, supra; Manual Enterprises v. Day, 370 U.S. 478, 488-491; Jacobellis v. Ohio, 378 U.S. 184, 191 et seq., supra.)
If, though, as is argued, these limitations were not to be imposed on the term in section 484-h and the concept of obscenity as there employed were held to be a variable, having a meaning different from its meaning in other statutes, then, the vagueness of the term, far from being in any way alleviated, would be compounded and the section rendered unconstitutionally vague and indefinite. (See Winters v. New York, 333 U.S. 507, revg. 294 N.Y. 545; Paramount Film Distr. Corp. v. City of Chicago, 172 F. Supp. 69, 71-72.) Just as this court's attempt in the Winters case ( 294 N.Y. 545, supra) to expand the legally accepted concept of "indecency and obscenity" deprived those terms of whatever definiteness and certainty they acquired from past usage and from prior court opinions (see 333 U.S., at pp. 512-514, 518-520), so here — to cull from the Supreme Court's opinion in Winters (333 U.S., at p. 519) — it would be utterly impossible, if the word "obscene" in section 484-h were interpreted as the dissenting opinion suggests, for "the actor or the trier to know where this new standard of guilt would draw the line between the allowable and the forbidden publications." Indeed, it might well be asked, how could the booksellers in the cases before us, or anyone else for that matter, possibly have known that the term "obscene" had a meaning in section 484-h different from that in section 1141?
I would only add that I find it unnecessary on this appeal to consider whether those prosecuted under a validly drawn statute (aimed at prohibiting the sale of objectionable material to children under 18 years of age) must be shown to have knowledge not only of the nature of such material but also of the age of the child involved.
The order appealed from in each case should be affirmed.
Respondents in these cases have been convicted under section 484-h of the Penal Law of selling allegedly obscene pictures and publications to minors under 18 years of age. These are what are commonly known as "girlie" magazines. Under the decisions of the United States Supreme Court and of this court they would not be classified as obscene in the case of adults ( Larkin v. Putnam's Sons, 14 N.Y.2d 399; People v. Revo, 15 N.Y.2d 743, and cases cited). The question here is whether these publications can be held to have been obscene when sold to children younger than 18 years old, under the alternative part of section 484-h, which was not before the court in People v. Bookcase, Inc. ( 14 N.Y.2d 409). It was pointed out in that decision that the Legislative Committee on whose 1955 report the present section 484-h of the Penal Law was enacted had recommended in the previous year a statute which would have forbidden distribution to minors of material "`which, for a minor, is obscene, lewd, lascivious, filthy, indecent or disgusting'. (Italics supplied.)" The majority of the court pointed out ( 14 N.Y.2d 416-417) that "A recognition that printed material or pictures may be classified as obscene for minors which would not be so for adults would have been in accord with statutes adopted in a number of other jurisdictions" making reference to certain decisions and other legal publications. No question was presented in People v. Bookcase, Inc., of variable standards of obscenity as applied to different age groups, nor involving obscenity at all. The majority of the court was concerned exclusively with the portion of section 484-h which purported to prohibit the sale to minors of material "which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality". That part of the statute was held to be unconstitutional without passing upon the rest. The majority of the court pointed out that the portion of section 484-h just quoted, and under which Bookcase, Inc., had been convicted, had no relation to material regarded as obscene for teenagers but unobjectionable to adults, and had nothing to do with whether variable standards could be set of what constitutes obscenity for different age or other type groups. They concluded: "As has previously been stated, the portion of that section under which appellants have been convicted has nothing to do with obscenity. We do not have before us to decide whether `Fanny Hill', having been held to be not obscene for adults, would be obscene for children under 18 years of age. Appellants, it may be repeated, have not been convicted of selling an obscene book to a minor, but one which is principally devoted to descriptions of illicit sex or sexual immorality, unrelated to whether the book is obscene. The People concede that no issue of obscenity is before the court on this appeal" (p. 417).
On the appeals presently before us the People urge, in effect, that, even though the Legislature did not adopt the language which its Committee had earlier recommended referring to material "which, for a minor, is obscene," section 484-h as enacted should be interpreted as implying a definition of "obscene" which would mean what is obscene for the age group to which sales or other commercial distributions are prohibited. In other words, by prohibiting commercial distribution of "obscene" material to persons under 18 years of age, the Legislature impliedly used the words "obscene, lewd, lascivious, filthy, indecent or disgusting" with a different and broader meaning from that ascribed to them in section 1141 of the Penal Law which prohibits the distribution of such material to any person regardless of age.
The majority of the court pointed out in People v. Bookcase, Inc., that "Material which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality is distinguished, in section 484-h, from what is obscene by the use of the disjunctive `or'" (p. 414) and held the quoted part invalid. We were not called upon to construe or apply the remaining portions of that section. The opinion in Bookcase made clear that we were not ruling against the constitutionality of statutes designed to apply a more restrictive standard of obscenity in the case of the young than would apply to adults.
In People ex rel. Alpha Portland Cement Co. v. Knapp ( 230 N.Y. 49, 60, 62-63) the court in an opinion written by Judge CARDOZO said that " we have gone far in subdividing statutes, and sustaining them so far as valid". (Italics supplied.) The purpose and object of a statute is a matter which may properly be considered as an aid to its interpretation ( People v. Ryan, 274 N.Y. 149, 152), and when that is determined the language must, if possible, be construed to make the intent effective ( Skenandoa Rayon Corp. v. Halifax Fire Ins. Co., 245 App. Div. 279, 283 [LEWIS, J.], affd. 272 N.Y. 457). For these reasons, and not withstanding that the part of section 484-h of the Penal Law not passed upon in People v. Bookcase, Inc., does not expressly provide a different standard of obscenity for the young in forbidding the circulation among children of pictures and printed matter which is "obscene, lewd, lascivious, filthy, indecent or disgusting", it seems to us that this must have been the intention of the Legislature, and consequently that the magazines involved in these appeals could constitutionally be held to be obscene when addressed to that age group. "Here, we start off with a limitation to children, a factor the absence of which was noted as controlling in Butler v. Michigan ( 352 U.S. 380, supra) and the presence of which turned the scales in Prince v. Massachusetts ( 321 U.S. 158)." Again "I find today's use of the vagueness doctrine most disoriented and misapplied." ( People v. Bookcase, Inc., 14 N.Y.2d 409, 422.) This is particularly so here because one of the United States Supreme Court opinions in Jacobellis v. Ohio ( 378 U.S. 184, 195) cited State v. Settle ( 90 R.I. 195) which upheld a statute with language identical to the language challenged here as an example of the sort of narrowly drawn legislation that best meets "the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children." ( Jacobellis v. Ohio, supra, p. 195.)
In each appeal: The order of the Appellate Term should be reversed and the case remitted to the Appellate Term for its determination of the facts (Code Crim. Pro., § 543-a, subds. 2, 4; § 543-b).
Judges DYE, VAN VOORHIS and BERGAN concur in Per Curiam opinion, Judge FULD concurring in a separate opinion; Judge BURKE dissents in an opinion in which Chief Judge DESMOND and Judge SCILEPPI concur.