Burke v. Kingsley Books, Inc. | Cases | Westlaw

The Penal Law of this State has for some time made it a misdemeanor to sell or distribute ‘any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure or image, or any written or printed matter of an indecent character’, Penal Law, § 1141, subd. 1. More recently, the Legislature enacted section 22–a of the Code of Criminal Procedure, providing that, ‘The supreme court has jurisdiction to enjoin the sale or distribution of obscene prints and articles' as defined there and in section 1141 of the Penal Law, and in the event that a final judgment of injunction be issued, the judgment ‘shall contain a provision directing the person, firm or corporation [against whom the injunction is granted] to surrender to the **738 sheriff of the county in which the action was brought any of the matter described in paragraph one hereof and such sheriff shall be directed to seize and destroy the same.’ The Code section provides further that the person authorized to maintain the action is the chief executive or legal officer in any city, town or village in the State, subd. 1. In the City of New York, the latter official would be the corporation counsel.

Pursuant to section 22 –a, the plaintiff, as Corporation Counsel of the City of New York, has instituted this action against a number of persons, firms and corporations, for the purpose of (1) permanently enjoining the defendants from acquiring, selling or distributing any of the issues of a series of booklets entitled ‘Nights of Horror’; (2) directing the defendants to surrender to the Sheriff of the County of New York all issues *154 of the publication within their possession and control; and (3) directing the Sheriff to seize and destroy them. Those defendants who have answered deny the allegation of the complaint that the publication is obscene, and in effect interpose three separate defenses: that the plaintiff lacks the required legal authority to maintain this action; that section 22–a is an unconstitutional restraint on freedom of the press; and that section 22–a violates the constitutional protection against unreasonable seizures. This case has been considered by the parties, and found by the court, to be the first submission of the constitutional issues thought to be involved in the application of section 22–a. (The statute is set forth in the margin).^*

Some of the defendants have denied that the publications fall within the proscription of section 22–a. The classic legal test for obscenity is ‘whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’ (Regina v. Hicklin, L.R. [1868] 3 Q.B. 360, 371). This definition, expressed long ago, seems rather strict and has been often criticized. United States v. One Book Called ‘Ulysses', D.C., 5 F.Supp. 182, affirmed United States v. One Book Entitled Ulysses by James Joyce, 2 Cir., 72 F.2d 705; United States v. Levine, 2 Cir., 83 F.2d 156; United States v. Dennett, 2 Cir., 39 F.2d 564, 76 A.L.R. 1092; United States v. Kennerley, D.C., 209 F. 119; Ernst and Lindey, The Censor Marches On, pp. 2, 22, 188; Buchsbaum, Constitutional Law—Censorship—Statutory Construction, 16 Ga.B.J. 494; Lockhart and McClure, op. cit., supra, at 326–350. It nevertheless appears to be the standard sustained by our Court of Appeals, People v. Doubleday & Co., Inc., 297 N.Y. 687, 77 N.E.2d 6, affirmed 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; People v. Muller, 96 N.Y. 408, 411; People v. Berg, 241 App.Div. 543, 272 N.Y.S. 586, affirmed 269 N.Y. 514, 199 N.E. 513; but see People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. 799.

*157 The only question before the court in Besig v. United States, 9 Cir., 208 F.2d 142, was whether the books were obscene. Obscene was defined, **741 Id., at page 145, as ‘indecent, smutty, lewd or salacious reference to parts of the human or animal body or to their functions * * *.’ The court found the books in that case to be just that, and the language therein ‘related without the slightest expressed idea of its abandon.’ (ibid.) Judge Stephens felt that not only must the young and pure be protected, but that the Congress must have realized, when the statute there involved [19 U.S.C.A. § 1305(a)] was passed, ‘that salacious print in the hands of adults, even in the hands of those whose sun is near the western horizon, may well incite to disgusting practices and to hideous crime.’ 208 F.2d at page 146. The court continued: ‘We share the general antipathy to censorship and we are aware that individual tastes and special occasions and different times and different peoples differ as to what is offensive language. Yet we risk the assertion that there is an underlying, perhaps universal, accord that there is a phase of respectable delicacy related to sex, and that those compositions which purposefully flaunt [flout?] such delicacy * * * come under the ban of the statute.’ Id., at page 147.

In determining what is obscene in any particular case, ‘ [t]he law will not hold the crowd to the morality of saints and seers' (Cardozo, Paradoxes of Legal Science, p. 37). Neither will the law honor the views of the bestial and the debased. Nor should it be governed by the morals of the prude on the one hand or of the perverted on the other. ‘All that we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest.’ (Cardozo, supra, p. 37.) Sex relationships can be and normally are beautiful, profound, inspiring and healthy. And some of the finest literature of all time—of fact and fancy, lasting and cherished through the ages—has presented and discussed, analyzed and novelized the concept of sex. Not so the present publications. If ever there could be found appropriate applicability for section 22–a, this case emerges as the perfect example of what the Legislature has sought to curb. Judge Learned Hand felt that the word ‘obscene’ should ‘be allowed to indicate the present critical point in the compromise between candor and shame’. United States v. Kennerley, D.C., 209 F. 119, 121. No such problem is here presented; for ‘Nights of Horror’ will be found resting at the foot of the scale, clearly marked ‘shame’. No matter how strict the test or how broad the criteria, these volumes will readily measure up to and even *158 surpass the most generous standard. The booklets in evidence offer naught but glorified concepts of lustful and vicious concupiscence, and by their tenor deride love and virtue, invite crime and voluptuousness, and excite lecherous desires. See People v. Wendling, 258 N.Y. 451, 453, 454, 180 N.E. 169, 170, 81 A.L.R. 799. There is no true dissemination of lawful ideas—rather is there a direct incitement to sex crimes and the sordid excitement of brutality. These booklets are sold indiscriminately to all who may wish to purchase them—men and women, adults and youths of **742 both sexes. The publications have a libidinous effect upon ordinary, normal, healthy persons; their effect upon the abnormal individual may be disastrous to him and to others as well.

These booklets are not sex literature, as such, but pornography, unadulterated by plot, moral or writing style. That there is no attempt to achieve any literary standard is obvious. Each issue is a paper-covered booklet of from 70 to 96 pages, with a suggestive sex drawing on the front cover under the caption ‘Nights of Horror’. The price varies from $1.98 to $3.00 per issue. The volumes are replete with misspelled words, typographical errors, faulty grammar, misplaced pages and generally poor workmanship. While these factors do not, of course, classify the issues as pornographic, they are somewhat helpful in ascertaining whether there truly exists a genuine literary intent. ‘Nights of Horror’ makes but one ‘contribution’ to literature. It serves as a glossary of terms describing the private parts of the human body (notably the female breasts, buttocks and vagina), the emotions sensed in illicit sexual climax and various forms of sadistic, masochistic and sexual perversion. The volumes before me are not a description of a period of history or the people and characters of an earlier time and of their conduct and habits of life. They are not a relating of folk tales or stories of primitive people living in isolated regions. They do not purport to depict the lives and customs of those who are here now or are expected to inhabit this land or this earth in the time to come: See People v. Berg, 241 App.Div. 543, 544, 272 N.Y.S. 586, 587, affirmed 269 N.Y. 514, 199 N.E. 513.

‘Nights of Horror’ is no haphazard title. Perverted sexual acts and macabre tortures of the human body are repeatedly depicted. The books contain numbers of acts of male torturing female and some vice versa—by most ingenious means. These gruesome acts included such horrors as cauterizing a woman's breast with a hot iron, placing hot coals against a woman's breasts tearing breasts off, placing hot irons against a female's armpits, pulling off a girl's fingernails with white-hot pincers, *159 completely singeing away the body hairs, working a female's skin away from her flesh with a knife, gouging and burning eyes out of their sockets, ringing the nipples of the breast with needles. Hanging by the thumbs, hair pulling, skin burning, putting on bone-compressing iron boots, were usual. The torture rack abounded. Self-torture was frequent. Sucking a victim's blood was pictured; and so was pouring molten lead into a girl's mouth and ears; and putting honey on a girl's breasts, vagina and buttocks—and then putting hundreds of great red ants on the honey. Sodomy, rape, lesbianism, seduction prevail. Youngsters disrobing in the presence and to the detailed recorded delight of elderly males was described. Incidental training of the teen-ager to narcotic addiction and sexual perversion was part of the activities engaged in. The volumes expressed a philosophy of man's omnipotent physical power over the female of the species. On occasion, the young woman is said to have gained **743 satisfaction from the brutal beatings and horrible tortures. If she did not enjoy them, she received the beatings and tortures anyway—until she submitted to the sex acts desired by her tormentor. These brutalities were ‘my supreme pleasure’ to the male, and resulted in ‘I'll be your slave’ to the female. (It is not to be taken that I have, in any measure, given a complete report of the ‘Nights of Horror’. I felt that I had to mention some, not the most sordid, features of this publication in view of the serious issues raised in this case—but I need not, I think, describe all I was compelled to read.)

The authors have left nothing to fantasy or to the unimaginative mind. The volumes are vividly detailed and illustrated. The many drawings that embellish these stories are obviously intended to arouse unnatural desire and vicious acts. Violence—criminal, sexual—degradation and perversion—are the sole keynote. Sadism and masochism are pictured as appropriate characteristics of human nature and pleasure. In short, the volumes of ‘Nights of Horror’ in evidence before me are obscene and constitute pornography—‘dirt for dirt's sake’, United States v. One Book Called ‘Ulysses', D.C., 5 F.Supp. 182, 184, bestiality, lust, crime, horror, for their unfortunate sake—and for the ugly sake of filthy commerce in human weakness. Anne Lyon Haight has compiled a revised and enlarged edition of ‘Banned Books: Informal Notes on Some Books Banned for Various Reasons at Various Times and in **744 Various Places' (2d ed., 1955). This chronological list of books banned from 387 B.C. to 1954 A.D. (with no attempt to be all inclusive) was compiled with the idea of showing the trend of censorship throughout the years and the change in thought and taste. Most of the books there recorded fall under a ban because of religion, politics or morality, making the offense one of heresy, treason or obscenity. Among them are books which have withstood the condemnation of their immediate times to become the classics of today. ‘Nights of Horror’ does not deserve to be listed among the missing when the next edition of ‘Banned Books' is published.

It is urged by all of the contesting defendants that, notwithstanding any determination that I make as to the obscene character of ‘Nights of Horror’, section 22–a is unconstitutional on its face and therefore void. It is contended, firstly, that the statute violates federal and state constitutional guarantees against interference with a free press; and, secondly, that in part it violates constitutional protections against unlawful seizures. I shall examine these points separately.

The First Amendment to the Constitution of the United States provides that ‘Congress shall make no law * * * abridging the freedom of speech, or of the press'. The First Amendment is applicable to the several states via the due process clause of the Fourteenth Amendment. Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138; Near v. State of Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357; *161 Grosjean v. American Press Co., Inc., 297 U.S. 233, 249, 56 S.Ct. 444, 80 L.Ed. 660. Article I, Section 8, of the Constitution of the State of New York, provides that ‘Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.’ Each of these constitutional provisions is a grave mandate requiring sincere and primary recognition when legislation is challenged as running afoul of their powerful protection, and, in my view, compels devoted judicial obeisance.

No doubt, ‘the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.’ Pound, J., dissenting, in People v. Gitlow, 234 N.Y. 132, 158, 136 N.E. 317, 327, affirmed 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. And no doubt, too, the rights of the best of books are dependent upon the judicial protection to be afforded those having the least social value. Indeed, even publications of no social worth are entitled to be shielded from unlawful or unconstitutional restraint. Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840. Were the ‘Nights of Horror’ works which indicated the slightest effort to contribute to our culture or knowledge, I might find myself in the position of ‘holding my nose with one hand’ and ‘upholding with the other the right of free speech’ that they are claimed to represent (see Judge Curtis Bok, ‘If We Are **745 to Act Like Free Men’, Saturday Review, Feb. 13, 1954, p. 9, at p. 10, col. 3). But the volumes before me are so totally lacking in merit, and so obviously pornographic in intent, that their banning poses no threat to freedom of expression in literature or otherwise. To borrow a thought from Judge Learned Hand, I can well say that the plea of the present defendants, invoking the sacred constitutional guaranty of free press, is an effort to ‘misuse the privilege as a cover for lewdness and a stalking horse from which to strike at purity’. United States v. Kennerley, D.C., 209 F. 119, 121.

I would not want or (if I could avoid it) permit this court to become a licensor, a censor, a book-burner. But a judicial tribunal should not and cannot avoid its responsibility. ‘Publications found by fair process to violate literate, adult and clearly defined standards of decency or other criminal safeguards can serve no useful purpose for the community, and [judicial(?)] interference with their dissemination we find non-objectionable.’ (Report on Book Burning, Committee on the Bill of Rights, The Record of the Association of the Bar of the City of New York, Vol. 10, No. 3, March, 1955, p. 143.)

*162 At this point, I shall note two cardial and basic tenets for my view that the statute is not vulnerable on the ground of an allegedly unconstitutional infringement of the freedom of the press—that of ‘clear and present danger’ and that of ‘no prior restraint’. Let me delineate.

While section 1141 of the Penal Law was designed to punish the offenders, that has been found not to be sufficient (Report of the New York State Joint Legislative Committee to Study the Publication of Comics, Leg.Doc. [1954] No. 37, p. 32). The Penal Law provides for punishment of the guilty, but the susceptible public remains contaminated with pornographic filth and stimulation. So long as enforcement of this criminal law is not effective (for whatever reason), for so long as publishers and distributors are willing to risk spasmodic misdemeanor convictions for the huge profits which apparently accrue from the exploitation of poronographic vice, section 22–a was deemed necessary. And if one is willing to risk (and unable *163 to escape) repeated punishment for the sake of keeping an obscene publication alive, he could go to (and for a time remain in) jail, but his obscenity would survive. It was not considered in the best interests of the State to have jail cells overcrowded, be it with publishers and distributors who have violated section 1141 of the Penal Law or with teen-agers and others whose latent abnormal emotions have become aroused by such lascivious and vicious material as that which makes up the ‘Nights of Horror’. The legislative intent and purpose are to keep such books as the ‘Nights of Horror’ from the impressionable public. While this court has sufficient confidence in the people of this state to feel that ‘Nights of Horror’ can never survive, the immediate and long-range public interests were thought by the Legislature to require that the death blow be hastened. The Legislative Committee found that ‘the reading of these publications contributes to juvenile delinquency, stimulates sexual desire, lowers standards of morality and interferes with the normal development of sexual tendencies in both adolescents and adults'. (Report, supra, pp. 34–35). The Legislature held injunction and suppression to be the only effective means to combat such a malignancy. It is not for the court—on the evidence before me—to say that there is no basis for this legislative finding and that the suggested remedy in these times is necessarily wrong. Indeed no evidence whatsoever was sought to be submitted by the defendants which would tend in any way to challenge or controvert the legislative finding.

**748 *165 In the circumstances, the contention that there is here an unconstitutional prior restraint is invalid. Near v. State of Minnesota, 283 U.S. 697, 702, 51 S.Ct. 625, 626, 75 L.Ed. 1357, relied upon so heavily by the defendants, is not a holding to the contrary. The Minnesota statute provided that a person who possessed or circulated ‘'(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical” (Minn.Stats.1927, § 10123–1) was guilty of a nuisance which could be enjoined. The question before the Court did not involve the obscenity provision of the statute, but clause ‘b’, relating to an alleged ‘scandalous and defamatory newspaper’ known as ‘The Saturday Press'. The Supreme Court of the United States included in its opinion several basic expressions which clearly differentiate its holding there from the one I am about to make in the case at bar. At pages 715–716 of 283 U.S., at page 631 of 51 S.Ct., the Court said: ‘The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.’ And then the Court stated in 283 U.S. at page 716, 51 S.Ct. at page 631, that one of these exceptions is that ‘the primary requirements of decency may be enforced against obscene publications' and that ‘[t]he security of the community life may be protected against incitements to acts of violence’. And in the more recent case of Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (which struck down, as repugnant to the First and Fourteenth Amendments, a licensing statute with respect to motion picture films), the Court expressly reserved the question ‘whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films.’ 343 U.S. at page 506, 72 S.Ct. at page 782.

It may be that, in certain cases, it would be helpful to obtain the fair verdict of a jury of reasonable adults in the community as to whether any particular publication is or is not obscene within the meaning of the statute. No doubt a jury is generally better fitted than a court to determine whether some books are obscene. ‘Far better than we, is a jury drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feeling, fitted to say whether the defendant had reasonable ground to believe that a book such as this was obscene or indecent.’ Halsey v. New York Society for Suppression of Vice, 234 N.Y. 1, 6, 136 N.E. 219, 220.

The corporation counsel has, however, gone beyond pleading for an injunction to restrain acquisition and distribution of what has been and is; he seeks to enjoin what he contends might be. He urges me to enjoin not only the ‘further sale’ and ‘further distribution’—to use the precise language of the empowering statute, section 22–a—of the issues of the obnoxious publication in evidence, but also the sale and distribution of later issues a well. The statute does not, in express terms, compel such a determination. Only be implication and construction could it be said that the legislative prohibition was intended to cover not only a publication presently in existence, but one not yet in being and therefore not subject to judicial examination. I am of the view that to rule against a volume not offered in evidence would do just what the courts have held is constitutionally forbidden—that is, to impose an unreasonable prior restraint upon freedom of the press.

Our constitutional jurisprudence abounds with precedents denying unlawful previous restraints upon the cherished freedoms guaranteed by the Constitution. Prior restraints have been held invalid not only in Near v. State of Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357, but this basic doctrine of constitutional law has been applied in every area of the First Amendment: speech, press, assembly, and religion. Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (permit for use of sound trucks); Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (permit required to hold public worship meetings on street); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (permit required for distribution of pamphlets); Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (permit *168 required for solicitation of moneys for religious causes); Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (previous restraint on speech and assembly); Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280 (permit for use of park for holding meeting); Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (permit for soliciting orders for books or various household articles); Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (distribution of hand bills); Schneider v. State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (distribution of pamphlets without permit); Grosjean v. American Press Co., Inc., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (tax on newspaper circulation); Superior Films, Inc., v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, and **751 Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (vague general standard in pre-licensing of motion pictures). The Court of Appeals of New York spoke out on this subject as early as 1839, Brandreth v. Lance, 8 Paige 24, but the most articulate pronouncement was not to be heard until Chief Justice Hughes' opinion in 1931 in Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. There, the United States Supreme Court declared invalid a state statute as a previous restraint upon the freedom of the press as guaranteed by the First and Fourteenth Amendments. Since the injunction in that case sought to suppress future issues of a periodical (found to have been defamatory in the past), it was held that the decree was too broad as an unreasonable restraint upon the press, and that either civil or criminal libel after publication would have afforded an adequate remedy.

The defendants also contend (without argument or citation) that the judgment which I am about to render would amount to an unconstitutional seizure, U.S.Const. Amend. IV; N.Y.Const. Art. I, sec. 12. I hold this claim to be wholly without merit.

The Charter of the City of New York provides for the appointment of a corporation counsel by the mayor, Section 391. Section 394, subd. a, of the Charter reads: Except as otherwise provided by law, the corporation counsel shall be attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the city and its agencies and in which the city is interested.' (Emphasis supplied.) In Section 30 of the City Home Rule Law, the Legislature specifically reserved to itself the power ‘to pass laws regulating matters of state concern’ (emphasis supplied); (See also Article 9 of the State Constitution).

I hold that Section 22 –a of the Code of Criminal Procedure is an instance in which ‘otherwise’ was ‘provided by law’. In addition, what may be ‘matters of state concern’ may also be something ‘in which the city is interested.’ The publication and distribution of material devoted to obscenity, lewdness, lasciviousness, filth, indecency and disgust—to crime, sex, horror, terror, brutality, lust and depravity—have been found by the Legislature to be a contributing factor to juvenile delinquency, a basic factor in impairing the ethical and moral development of our future citizens, and a clear and present danger to the people of our State. As such, these are, it seems to me, ‘matters of state concern’ ‘in which the city is [also] interested.’

*171 Judgment is rendered in the plaintiff's^*** favor on the merits to the extent herein indicated. The defendants^*** will be permanently enjoined from distributing, selling or acquiring possession of any of the volumes of the publication entitled ‘Nights of Horror’ received in evidence upon the trial, and they will be directed to surrender to the Sheriff of the City of New York (New York County Division) all copies of these volumes now in their possession, and the Sheriff will be directed to seize and destroy them. Settle judgment accordingly. (The parties having duly waived findings of facts and conclusions of law, this opinion will constitute the decision of the court in pursuance of the provisions of the Civil Practice Act.)