In People v. Richmond County News (9 N.Y.2d 578) the court affirmed an order reversing a judgment of conviction for violation, in the sale of a magazine, of section 1141 of the Penal Law, which makes criminal the sale of distribution of material described substantially in the terms of the two statutes which have been referred to.Summary of this case from Larkin v. Putnam's Sons
Argued March 23, 1961
Decided May 25, 1961
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALFRED J. CAWSE, JR., P.J., LOUIS I. KAPLAN and JOSEPH A. SARAFITE, JJ.
John M. Braisted, Jr., District Attorney ( Thomas R. Sullivan of counsel), for appellant.
Jacob Weidenbaum for respondent.
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 prosecution 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 bare 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; 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 [HARLAN, J., concurring]; see, also, Feiner v. New York, 340 U.S. 315, 316; Watts v. Indiana, 338 U.S. 49, 51; Norris v. Alabama, 294 U.S. 587, 589-590; 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 v. Brown, 354 U.S. 436, 440; Roth v. United States, 354 U.S. 476, 481, supra; Alberts v. California, 354 U.S. 476.) 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. California, 361 U.S. 147, 155; see, also, Roth v. United States, 354 U.S. 476, 497-498, supra, HARLAN, J., concurring.) Although the Constitution does not, therefore, stand as a barrier 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, 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 differences on this score among various groups within our contemporary society, we cannot help but be impressed by the extraordinary diversity which is manifest. Under these circumstances, we must interpret our 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.
See Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40; Blanshard, The Right to Read (1955), pp. 138-167; Ernst and Seagle, To the Pure (1928), ch. XIII; Larrabee, The Cultural Context of Sex Censorship, 20 Law and Contemporary Problems 672, 676-681; Weeks, This Trade of Writing (1935), pp. 126-147; Cairns, Freedom of Expression in Literature, 200 The Annals 76, 76-84; Mencken, Prejudices, Fifth Series (1926), pp. 15-21.
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; Dennis v. United States, 341 U.S. 494, 512-513.) And the mere fact that adulterous or other sexually immoral relationships are portrayed approvingly cannot serve as a reason for declaring a work obscene without running afoul of the First Amendment. (See Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688.) The Constitution protects "advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax" ( Kingsley Pictures Corp. v. Regents, 360 U.S., at p. 689).
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. New York, 333 U.S. 507, 510; Hannegan v. Esquire, Inc., 327 U.S. 146, 153, 158.) As the Supreme Court observed in the Winters case (333 U.S., at p. 510), "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, "there is [very] little scientific evidence" on the subject. (St. John-Stevas, Obscenity and the Law , p. 196; see, also, Brown v. Kingsley Books, 1 N.Y.2d 177, 181, n. 3 [affd. sub nom. Kingsley Books v. Brown, 354 U.S. 436]; United States v. Roth, 237 F.2d 796, 812-817, per FRANK, J., concurring [affd. sub nom. Roth v. United States, 354 U.S. 476, 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 behavior". (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.)
See, e.g., Bell, Youth Tell Their Story (1938), pp. 40-42; Ernst and Seagle, To the Pure (1928), ch. XII; Gellhorn, Individual Freedom and Governmental Restraints (1956), pp. 60-67; Jahoda and Staff of Research Center for Human Relations, New York University (1954), The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate; Mead, Sex and Censorship in Contemporary Society, New World Writing, Third Mentor Selection (1953); Scott, Into Whose Hands (1945), p. 20; Wertham, Seduction of the Innocent (1953); Hearings Before the Select Committee on Current Pornographic Materials of the House, 82d Cong., 2d Sess. (1952); Hearings Before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, Sen. Res. 62, 84th Cong., 1st Sess. (1955); Report of the New York State Joint Legislative Committee to Study the Publication of Comics, N.Y. Legis. Doc., 1954, No. 37.
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 , pp. 669-670; Kinsey et al., Sexual Behavior in the Human Male , p. 510.) And a survey made some years ago by the New York City Bureau of Social Hygiene showed that out of 409 college women who responded to the question inquiring what they found most sexually stimulating, 18 said "pictures", 40 said "drama", 95 said "books", and 218 simply said "man". (See Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 73.)
The argument on this score was incomparably stated some centuries ago by Milton in his immortal "Areopagitica": "They are not skilful considerers of human things, who imagine to remove sin by removing the matter of sin * * * Though ye take from a covetous man all his treasure, he has yet one jewel left, ye can not bereave him of his covetousness. Banish all objects of lust, shut up all youth into the severest discipline that can be exercised in any hermitage, ye can not make them chaste, that came not thither so".
In alluding to these commentaries and studies which reflect upon the wisdom and validity of obscenity laws, we do not, of course, mean to approve their conclusions or to suggest that they provide a basis for overturning the statute before us. Even if all these materials were in agreement — and, as we have seen, they are not — this court alone would still have the sole authority and duty of performing the judicial function involved in the interpretation and application of a state statute. However, although the views of expert laymen cannot possibly impeach the legal validity of the statute, their writings do reflect responsible views in the social community which any forward-looking court ought to take into account.
The broader the prohibitions we read into our statute, the more unlikely it is that these prohibitions are reasonably related to the legitimate ends which the legislation seeks to serve. Thus, the constitutional background of the legislation, the inherent nature of the subject of regulation and the available knowledge concerning the possible effects of such legal regulation all point to and necessitate a very limited definition of the statutory prohibition of obscenity.
Turning now to the problem of definition itself, we note, to begin with, that, until very recently, the test of obscenity in this State was that laid down in Regina v. Hicklin (L.R. 3 Q.B. 360 ) and stated by this court to be "whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come into contact with it". ( People v. Muller, 96 N.Y. 408, 411, supra; see, also, People v. Doubleday Co., 297 N.Y. 687, affd. 335 U.S. 848.) This test was justly criticized, however, on two different grounds — the first, that, as applied, a book might be condemned on the basis of isolated passages in it rather than because of its "dominant effect" ( United States v. One Book Entitled Ulysses, 72 F.2d 705, 708, affg. 5 F. Supp. 182, 185) and the second, that it "reduce[d] our treatment of sex to the standard of a child's library". ( United States v. Kennerley, 209 F. 119, 121.)
Not until 1957, however, did the Supreme Court declare impermissible and unconstitutional a standard of obscenity which rested on the tendency of the objectionable material to corrupt the morals of the young or immature. (See Butler v. Michigan, 352 U.S. 380, 382-383; see, also, Brown v. Kingsley Books, 1 N.Y.2d 177, 188-189, supra; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N.Y., 3 N.Y.2d 237, 241-242.) The consequence of such a standard, wrote the court in the Butler case, "is to reduce the adult population * * * to reading only what is fit for children" and it must fall on this account because it is "not reasonably restricted to the evil with which it is said to deal" (352 U.S., at p. 383). In Roth v. United States ( 354 U.S. 476, supra), the Supreme Court went further and repudiated both of the objectionable aspects of the Hicklin rule, declaring (p. 489): "The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press."
It is apparent, however, that, although the Butler and Roth cases destroy the Hicklin rule, they do not lay down a test of obscenity binding on our interpretation of this State's obscenity statute. (See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 55.) In the Butler case ( 352 U.S. 380, supra), the court merely condemned the statute before it without suggesting a constitutionally sanctioned alternative. In the Roth case ( 354 U.S. 476, supra), the court did say that "Obscene material is material which deals with sex in a manner appealing to prurient interest" (p. 487) and that the test was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest" (p. 489). These statements, however, can only indicate the broad boundaries of any permissible definition of obscenity under the United States Constitution; they do not pretend to, and cannot, give specific content to the meaning of "obscene" as it appears in our statute.
As we wrote in Brown v. Kingsley Books ( 1 N.Y.2d 177, 181-182, supra), the concept of obscenity is "imprecise", its "`vague subject-matter' being largely `left to the gradual development of general notions about what is decent'". Accordingly, the problem involved in laying down a standard is to find "the present critical point in the compromise between candor and shame at which the community [has] arrived". ( United States v. Kennerley, 209 F. 119, 121, supra.) To be sure, there are some in the community who regard any realistic portrayal of sexuality, any form of erotic realism, as an insupportable threat to the social order. And there are others who view any intrusion of the State's power in this area as unnecessary and improper. The "critical point in the compromise" lies between these extremes. "All that we can say is that the line [must] be higher than the lowest level of moral principle and practice, and lower than the highest". (Cardozo, Paradoxes of Legal Science, p. 37.)
Mindful of the constitutional necessity to open the door barring state intrusion into this area "only the slightest crack necessary" ( Roth v. United States, 354 U.S. 476, 488, supra), and desirous of erecting a standard which embodies the most universal moral sensibilities and may be applied objectively, we are of the opinion that the prohibitions of section 1141 of the Penal Law should apply only to what may properly be termed "hard-core pornography". The mere undemonstrated possibility of harm to the community from realistic accounts of normal sexuality is not of sufficient moment to warrant the exercise of the public force in their suppression. And this is true whether the narratives concerned may be said to have artistic or scientific justification or whether they lack anything of "any possible value to society". ( Winters v. New York, 333 U.S. 507, 510, supra; see, also, Hannegan v. Esquire, Inc., 327 U.S. 146, 153, 158, supra.)
As the Supreme Court observed in the Roth case ( 354 U.S. 476, 487, supra), "sex and obscenity are not synonymous." (See, also, Mounce v. United States, 355 U.S. 180, revg. 247 F.2d 148; One, Inc., v. Olesen, 355 U.S. 371, revg. 241 F.2d 772; Sunshine Book Co. v. Summerfield, 355 U.S. 372, revg. 249 F.2d 114.) Under our statute, section 1141 of the Penal Law, the test of the obscene, of the pornographic, is not in the tendency or appeal of the material, but rather in its content objectively appraised. (See Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 58-68.) It focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable "by the insult it offers, invariably, to sex, and to the human spirit" (D.H. Lawrence, Pornography and Obscenity , p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt's sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, according to one thoughtful scholar, "a debauchery of the sexual faculty". (Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 65.)
Applying this standard to the issue of the magazine before us, it is plain that it does not fall within the proscribed area. This is so because no one of its stories or pictures is obscene within the meaning of section 1141 of the Penal Law. If any single item, considered as a whole, were pornographic, the circumstance that it was included in a collection otherwise without taint would not save it from criminal prosecution. The fact is, however, that, while the magazine contains many stories or pictures which are aesthetically tasteless and without any redeeming social worth, none of them is pornographic. Numerous pictures and cartoons of nude or semi-nude women and numerous descriptions and depictions of sexual arousal and satisfaction are to be found in "Gent", but it contains nothing which smacks of sick and blatantly perverse sexuality. Whether or not, therefore, the defendant had previous knowledge or notice of the content of the magazine, we may not say that its sale constituted a violation of our obscenity statute.
Were we to judge the magazine before us in terms of our personal views of its social value, of its moral and aesthetic worth, we would condemn it out of hand for its vulgarity no less than for its banality. Basic principles of jurisprudence, however, command us to put to one side all personal predilections, including our distaste for commercial exploitation of sensuality. It is our conclusion that the magazine, appraised as objectively as is possible in the light of First Amendment concepts, may not be adjudged obscene without impairing the vital social interest in freedom of expression.
The order appealed from should be affirmed.
I find in this record satisfactory proof that defendant knew the character and content of the magazine which it sold and which is alleged to be obscene. But the larger question is: was this periodical obscene in the sense that the law uses that ancient adjective, which over the centuries has had so many shades of meaning? In other words, does the magazine come within the prohibition of section 1141 of the Penal Law and, if so, is such a prohibition valid within the "obscenity" exception to the First Amendment's freedom of speech ( Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 572)?
Not only is the meaning and application of the term "obscene" doubtful and controversial, but from the writings of the canon law specialists of old to the modern opinions of the United States Supreme Court the one point of universal agreement is that precise definition is impossible. This is one of the law questions where, as Samuel Johnson observed: "Definitions are hazardous", and yet a workable test is available and accepted. The intrinsic nature, tendency and bent of the work determines whether it is to be banned or its vendor punished. An eminent moral theologian explains, quite consistently with the controlling American decisions: "For a book to be prohibited it is necessary that from its whole tenor the author's intention is evident of teaching the reader about sins of impurity and arousing him to libidinousness" (Noldin, De Preceptis Dei et Ecclesiae, p. 658). St. John-Stevas, one of the soundest and sanest of today's writers on the law of obscenity, says that: "A pornographic book * * * is one deliberately designed to stimulate sex feelings and to act as an aphrodisiac" (Obscenity and the Law, p. 2; cf. Roth v. United States, 354 U.S. 476, 486, 487). The identical thought is in Judge WOOLSEY'S famed Ulysses opinion ( United States v. One Book Called Ulysses, 5 F. Supp. 182, affd. 72 F.2d 705, 707) and in Justice BRENNAN'S famous phrase: "dominant theme of the material taken as a whole appeals to prurient interest" ( Roth v. United States, supra, p. 489). The inquiry for the court, therefore, is whether the publication is so entirely obscene as to amount to "hard-core pornography" (not necessarily dealing with deviate sex relations since while there is a pornography of perversion, "pornography" is not limited to the depiction of unnatural acts).
And who is to decide what is the dominant theme of a particular book or picture or play? The Supreme Court has given us a sufficient answer: "the average person, applying contemporary community standards" ( Roth v. United States, 354 U.S. 476, 489, 490, supra).
Grounded in logic, good morals and precedent is that part of the rule which looks to the "dominant theme" (see United States v. Limehouse, 285 U.S. 424; Kingsley Books v. Brown, 354 U.S. 436; Kingsley Pictures Corp. v. Regents, 360 U.S. 684; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N.Y., 3 N.Y.2d 237, 242). The other part of the rule, which takes into account contemporary community standards, is historically sound also. From the earliest records of our civilization we know that pornographic writings and pictures have been always in circulation and that from the days of ancient Greece and Rome through the period of English ecclesiastical court jurisdiction and common-law times until the present there have been many rises and falls, sudden or gradual, in the levels of community acceptance of sex-concerned books, illustrations and plays. Each change has in turn affected the contemporary law as to obscenity.
Applying the two-element test leaves one at least in reasonable doubt as to whether this magazine can fairly be called "pornographic" using that term as describing the extreme form of gross and all-intentioned sexuality which American statutes and courts may constitutionally punish as criminal. This collection of sexy fiction and illustrations has little of literary merit or artistry and yet it is not in the First Amendment sense filthy or disgusting or deliberately corruptive or offensive to common decency under prevailing standards of taste. Virtuous adults will reject it (as all of us Judges would were we not restrained by the Roth-Alberts legal test). Adolescents may be hurt by it. But our prepossessions are not the law and the reactions of children are not valid tests ( Roth v. United States, 354 U.S. 476, 489, 490, supra).
Law in a pluralist society does not regulate literary standards or give expression to the loftiest virtues. Civil court decisions in such cases must be prudential, must be acts of practical judgment in the social order of our time and place. "Human law cannot prohibit everything which the Natural law prohibits" (St. Thomas Aquinas, 700 years ago, in Summa Theologica, I-II, q. 96, art. 2, ad. 3) but must take full measure of human nature and current traditions. We follow the best ancient and modern legal thought and obey the spirit of our national charter when we interpret strictly — that is, liberally in favor of freedom — laws which restrict the right of free speech (Canon Law, canon 19; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N.Y., 3 N.Y.2d 237, 246, supra).
The order should be affirmed.
For well nigh a century (L. 1868, ch. 430, Penal Code, L. 1881, ch. 676, § 317; Penal Law, § 1141), our Legislature has declared the public policy of this State with respect to the age-old problem of obscenity. The common judgment that obscenity should be restrained is also reflected in the international Agreement for the Suppression of the Circulation of Obscene Publications entered into by more than 50 countries (37 U.S. Stat. 1511; Treaties in Force [U.S. State Dept., Office of Legal Advisor, Oct. 31, 1956], p. 209); in the obscenity laws of our 48 States (1955) (Hearings before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary pursuant to Senate Res. 62, 84th Cong., 1st Sess. [May 24, 1955]); and in the score of obscenity laws enacted by Congress since 1842. ( Roth v. United States, together with Alberts v. California, 354 U.S. 476, 485.)
It is our duty to enforce that public policy in the light of developing constitutional standards, rather than the views expressed in selected articles, though informing and well intentioned, which would justify or acquiesce in the alleged necessity of allowing the distribution of the kind of material complained of in this case. The principal question before us is whether "Gent", the magazine in evidence, is obscene under our statute.
The Supreme Court of the United States, in Roth v. United States ( 354 U.S. 476, supra), crystallized the current standard or test for judging obscenity. It recognized (p. 487), as do we, that "sex and obscenity are not synonymous". It held, as it had previously indicated in Chaplinsky v. New Hampshire ( 315 U.S. 568, 571-572), that "obscenity is not within the area of constitutionally protected speech or press". "Obscene material", the court said, "is material which deals with sex in a manner appealing to prurient interest", which is defined as "material having a tendency to excite lustful thoughts" ( Roth v. United States, supra, 354 U.S. 476, 485, 487).
In that case, the court approved the following instruction of the Trial Judge: "`The words "obscene, lewd and lascivious" as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.'" "The test", Justice BRENNAN stated (p. 489), is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest", which test "provides safeguards adequate to withstand the charge of constitutional infirmity".
In Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N.Y. ( 3 N.Y.2d 237, 240) (then) Judge DESMOND, writing for the majority, defined the term "obscene in the sense in which the law has used that term for centuries" as "sexually impure or filthy", and noted (p. 246) that "`obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all past centuries, a public evil, a public nuisance, a public pollution'". In his concurring opinion, Judge FULD, "in wholehearted agreement" with this latter statement, felt that the "evil * * * may be adequately dealt with by resort to the courts in the first instance, either by criminal prosecution (Penal Law, § 1141) or by injunctive process" (3 N.Y.2d, at p. 247). We are now called upon to deal with a criminal prosecution, not one of prior restraint.
We find nothing in the First Amendment or in the language of the Roth case ( supra) which dictates the strict construction of section 1141 now proposed by Judge FULD. By limiting the applicability of that section only to what he termed "hard-core pornography", we would be adopting a far more stringent test than is required under present constitutional standards, and in effect be opening the door to obscenity so widely as to be tantamount to a repeal in large measure of section 1141. Since we may constitutionally give vitality to the legislative enactment, why is it necessary for us to strain against the definition laid down by the highest court in the land in order to permit the continued distribution of material which the average person would unhesitatingly condemn as obscene and lewd?
There is a broad area between material which all would concede is shockingly and unquestionably obscene, and matter which all would agree is clearly free of obscenity. It is urged that the critical point in the compromise lies between these two extremes, and that, quoting Judge CARDOZO (Paradoxes of Legal Science, p. 37): "All we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest." Yet the determination is promptly made that the statute should apply only to the lowest level, namely, "hard-core" pornography, despite Judge CARDOZO'S further statement: "It [the law] will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous" ( id., p. 37).
Courts may not abdicate their function of judging material between these two extremes by relegating it all to the area deemed free of obscenity. We do not hesitate to adjudicate similarly close and difficult situations in other branches of the law, such as, e.g., determining what is fraud, reasonable doubt, premeditation and deliberation — the latter situations often involving human life itself. Or, as Judge CARDOZO put it, "jurisprudence has its reasonable man, its negligent man and * * * its moral man". We cannot supply scientific definitions or require scientific tests in matters such as these, for law itself is by no means an exact science. "They do better things with logarithms" (p. 1).
Applying the test laid down in Roth v. United States ( supra, at p. 487), a test Judge FULD agrees is within the constitutional "boundaries of any permissible definition of obscenity", all eight Judges below have concluded that the magazine "Gent" is obscene under the statute, and their unanimous judgment, rendered in the exercise of their "function as the spokesmen of the thought and sentiment of the community", should not be lightly set aside ( People v. Pesky, 254 N.Y. 373, 374; People v. Osher, 285 N.Y. 793; People v. Muller, 96 N.Y. 408, 410).
The portrayal of sex in the manner presented here is "without any redeeming social worth", is not for the purpose of promoting art, literature or science, but is nothing more than a distribution of smut — dirt for dirt's sake — by a wholesale distributor to local stores and stands for the sole purpose of selfish commercial exploitation. Judges, who in their broad experience have necessarily had to deal with many sordid aspects of human life, are sometimes prone to forget that it is their duty to examine material of this kind through the eyes of "the average person", whether youth or adult. It cannot be gainsaid — and we require no scientific tests to establish it — that the overwhelming mass of people in our State, by and for whom our public policy is made, are opposed to obscenity as finally defined by the Supreme Court in the Roth case ( supra).
We are not privileged to rule, as a matter of law, in applying the contemporary community standards test, that the courts below were wrong in determining in effect that "the average person" would conclude that the dominant theme of "Gent" taken as a whole appeals to prurient interest. If only "hard-core" pornography may be proscribed, purveyors of magazines and periodicals — on a large scale and with almost free rein — will be at liberty to flood the newsstands and candy stores in every local community in the State with material "the average person" would condemn as obscene and lewd.
In support of the foregoing views, we now turn to the contents of the magazine itself which, we are asked to rule, as a matter of law, are not obscene. In so doing, we feel constrained to deal with it, not in the abstract as in a vacuum — lest our opinions be deemed mere logomachy — but as it was printed and portrayed for the public at large, and let it speak for itself.
Among the numerous pictures in "Gent" of nude or partially nude women, many of which are clearly sexually suggestive, is one found on page 11. It is a picture of a totally nude woman, just starting to slip on an undergarment, and saying to another nude woman, whose nakedness is reflected in a mirror on the wall, "I'd better leave now — before your husband comes home." This picture clearly and openly imports lesbianism — "a debauchery of the sexual faculty".
An article on page 7 describes an experience between a married man and a young woman. It tells how, while walking to her apartment, he "absorbed the view of her breasts standing out in bold relief. In his haziness, he pictured her naked from her fleshy shoulders to her liquid underbelly" (p. 9, col. 1). Then, later, she "expertly worked [her hand] down his body. Her palm pushed in his belly slightly * * *. Her breathing was louder now, and she wriggled to get into a more erotic position" (p. 9, col. 2). On page 10: he "let his finger toy with her nipples until they stood up like pencil erasers. He grabbed her, and drove his tongue to the roof of her mouth. She did it back, and soon they were rubbing and kissing and feeling, and undressing each other. They thrashed on the bed until their rhythmic animal convulsions propelled them to the floor".
In another article, entitled "Outline for an Anthropological Disquisition" (at p. 53), the author describes a somewhat similar experience, and apologizes for his brutality but is invited by the woman to be more brutal next time.
These are but illustrative of the general content of the magazine, although there is some mild attempt at face saving by the inclusion of some material that is free from smut. In our opinion, the magazine, when read as a whole together with its photographs and illustrations, clearly comes within the test of obscenity, as outlined in the Roth case ( supra), and even with the very narrow standards the majority would set. We do not think that, because cases of this kind present problems, courts should make it easy for themselves by holding that only the most depraved situations come within the purview of our statute, as in Brown v. Kingsley Books ( 1 N.Y.2d 177, affd. 354 U.S. 436).
Nor do we have any doubt upon this record of the presence of scienter. Defendant is not a mere retailer, newsstand or candy store owner, but is a wholesaler and distributor engaged solely in this business and with many years of experience. Its general manager Grunin was the only officer active in its management, and he has been engaged in this business for about 40 years. Defendant had the sole and exclusive right to distribute "Gent" for the entire County of Richmond, and the magazine was distributed to approximately 102 local dealers within a period of two days.
The most cursory inspection of the magazine would have put defendant on notice as to its contents, and, even if it did not know, it may not avoid its responsibility by closing its eyes to what should have been apparent, or by deliberately avoiding ascertaining its contents. In response to questioning, the witness Grunin testified that if one of the magazines he handled contained "concededly the most obscene and pornographic pictures that anyone could imagine", he would not know about it. Indeed, he conceded that no one in the corporation was even authorized to examine the magazines distributed, even those which the corporation classified as "Men's Candids", and, if one did so, he would be discharged. Clearly, in the commercial exploitation of these magazines, defendant gave the definite impression of deliberately avoiding the acquisition of knowledge as to the nature of the products it was selling and distributing.
The order appealed from should be reversed, and the judgment of conviction and sentence imposed thereunder by the Court of Special Sessions reinstated.
Judge VAN VOORHIS concurs with Judge FULD; Chief Judge DESMOND concurs in a separate opinion in which Judge DYE concurs; Judge FROESSEL dissents in an opinion in which Judges BURKE and FOSTER concur.