De Salvo v. Codd

OAKES, Circuit Judge

(dissenting):

In this wonderful branch of the law, under Miller v. California, 413 U.S. 15, 24 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973), the Supreme Court (or a five-man majority thereof) is the ultimate censoring body having to decide what is appealing “to the prurient interest” of the average person applying contemporary standards and what is a “patently offensive ‘hard core’ ” depiction of sexual conduct. Compare Jenkins v. Georgia, 418 U.S. 153 , 94 S.Ct. 2750 , 41 L.Ed.2d 640 (1974), with Handing v. United States, 418 U.S. 87 , 94 S.Ct. 2887 , 41 L.Ed.2d 590 (1974). An inferior federal judge is bound to follow the Miller “standards,” so-called, no matter how much he may think they are simply a verbal reformulation of the proposition that five judges can ultimately prescribe what the rest of the adult public, paying its own money, can read, see, listen to or otherwise take in through its senses. 1 See Brennan, J., dissenting in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 92 , 93 S.Ct. 2628 , 37 L.Ed.2d 446 (1973).

As such I am required to agree that N.Y. Penal Law § 235.00 , as amended effective September 1, 1974, N.Y. Laws 1974, ch. 989 (McKinney’s Session Laws 1974), read in the light of that rather remarkable piece of judicial legislation, People v. Heller, 33 N.Y.2d 314 , 352 N.Y.S.2d 601 , 307 N.E.2d 805 (1973) (4-3 decision), cert. denied sub nom., Buckley v. New York, 418 U.S. 944 , 94 S.Ct. 3231 , 41 L.Ed.2d 1175 (1974) (5-4 decision), may stand under Miller . Thus, as Judge Gabrielli for the Heller majority declared, 352 N.Y.S.2d at 613 , 307 N.E.2d at 813 , “the average man, whether he be the smut peddler or the policeman,” —he does not mention the newstand operator or the movie exhibitor—knows precisely what to sell or prosecute as the case may be (at least until the next magazine or movie comes along).

*1302 The question before us in this three-judge court case is, then, whether the obscenity injunction statute, C.P.L.R. § 6830, is the verbal and substantive equivalent, or civil alter ego, of the new § 235.00 of the Penal Law. The Appellate Division, First Department, before People v. Heller, supra, engaged in exactly the same kind of judicial legislation as did the majority in Heller by construing the standards of Miller into C.P.L.R. § 6330. The Appellate Division put it nicely and neatly with a wave of the judicial wand, viz., “that the New York courts should synthesize by judicial construction the requirements of the Miller standards into CPLR 6330 . .” Redlich v. Capri Cinema, Inc., 43 A.D.2d 27 , 349 N.Y.S.2d 697, 700 (App.Div.1973). So despite the fact that § 6330 says one thing (permitting the enjoining of, e. g., an “obscene, lewd, lascivious, filthy, indecent or disgusting” book, etc., something which is insufficiently specific under Miller or any non-obscenity canon of constitutional law), § 6330 has been held by the Appellate Division to permit only the enjoining of the very “narrow” class of materials that fall within the Miller standards, so-called. In the light of the Court of Appeals’ own legal prestidigitation in Heller one would doubt whether it would look askance at the Appellate Division’s in Capri Cinema, especially in the light of its own Brown v. Kingsley Books, Inc., 1 N.Y.2d 177 , 151 N.Y.S.2d 639 , 134 N.E.2d 461 (1956), aff’d, 354 U.S. 436 , 77 S.Ct. 1325 , 1 L.Ed.2d 1469 (1957). 2

But when Brown equated the penal and injunction statutes, they both contained the same language. See Winters v. New York, 333 U.S. 507 , 511 n.2, 68 S.Ct. 665 , 92 L.Ed. 840 (1948). Massachusetts has refused to say, in Justice Kaplan’s happy turn of phrase, “that the tired words of our statute have the magical property of instantly conforming their meaning to the hypothesized statute . . . .” Commonwealth v. Horton, Mass., 310 N.E.2d 316, 325 (1974) (Kaplan, J., concurring). And the New York Court of Appeals has not yet pulled the § 6330 rabbit out of its legal hat. The facts that the composition of that great court has materially changed since it decided the 4-3 People *1303 v. Heller case on remand from the Supreme Court, and that in this field of law the verities of one year are apt to be the fallacies of the next, impel me to consider the civil statute to mean what it says. I say this having in mind that the predecessor machinery of C.P.L.R. § 6330 was upheld in the United States Supreme Court only by a 5-4 vote. Brown v. Kingsley Books, Inc., supra. 3 I say this also having in mind the Appellate Division’s plainly wrong statement that § 6330 is to be “liberally” construed, 349 N.Y.S.2d at 701 . If the statute were liberally or broadly construed (in the sense of what could be enjoined) it would obviously fail. I interpret the Appellate Division to have meant that the statute will be “liberally” construed to effectuate the “strict” Miller construction, that is, the words will be said to mean something they do not mean in order to narrow and hopefully to validate the statute.

My view, which does not go out of its way to legislate for the State of New York, is based, I might add, not so much on~ a concern for the film operators or magazine sellers, since the commercial purveyors can, as a calculated risk of doing business, devise borderline material that will keep the courts full and busy for years; I am much more concerned with what I have referred to elsewhere as the “freedom of reception”' for adult Americans, regardless of taste. See United States v. Cangiano, 491 F.2d 906, 915 (2d Cir. 1973) (dissenting opinion), petition for cert. filed, 43 U.S.L.W. 3002 (U.S.Apr. 11, 1974) (No. 73-1526). See also Salem Inn, Inc. v. Frank, 501 F.2d 18 , 21 nn.3 and 4 (2d Cir. 1974).

I therefore dissent.

. While the formulation set forth in ilMller attempts to produce specificity and predictability, the writer is one of those who thinks achieving either not only improbable but also almost totally subjective. As Professor Emerson says of the “hard core” pornography test, now adopted by Miller :

Vagueness and uncertainty are by no means eliminated. Even if the hard-core pornograj)hy test allows more specific description of the materials proscribed, the court must still decide by what standards certain types of material are to be included or excluded. Furthermore, the terms used are not so precise as they may seem on first impression. Like the Roth [v. United States, 354 U.S. 476 [ 77 S.Ct. 3304 , 1 L.Ed. 2d 1498 ] (1957)] test, the hard-core pornography test does not really intend to exclude all the material which satisfies the description. Ancient pottery, or a picture by a famous artist, are not meant to be covered. The failure to achieve precision is well illustrated by the Mishkin [v. New York, 383 U.S. 502 [ 86 S.Ct. 958 , 16 L.Ed. 2d 56 ] (1966)] case, in which the New York Court of Appeals found material to be hard-core pornography but Justice Stewart, patron saint of the hard-core pornography test, judged it otherwise.

Taking the requirement of artistic merit and the absence of commercial exploitation together, the hard-core pornography test is, like the Roth test, a way of allowing high-class, elegantly packaged pornography, while denying pornography to the less affluent, educated, or supposedly intelligent. Also like the Roth test, it does not rest on any demonstrable relation to the effect of the material in causing social harm or on any serious effort to conform to the requirements of a system of freedom of expression.

T. Emerson, The System of Freedom of Expression 491-92 (1970).

. The majority here takes the view that the Court of Appeals’ holding in People v. Richmond County News, Inc., 9 N.Y.2d 578 , 216 N.Y.S.2d 369 , 175 N.E.2d 681 (1961), that the April, 1957, issue of the magazine “Gent” was not “hardcore pornography” and therefore not within the prohibition of old § 1141 of the Penal Law leads to the conclusion that C.P.L.R. § 6330 and new § 235.00 of the Penal Law adopt an equivalent definition of obscenity. The majority sees Richmond County News as having construed § 1141 as § 235.00 is now written and construed in light of Miller . While the Supreme Court might be surprised to learn that Miller was anticipated by the New York Court of Appeals in 1961, the Richmond County News case is just another example of how impossible it is to define even “hard core pornography” except in terms that are subjective to the reader (and therefore indefinite):

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 Lock-hart 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 [1930], 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 rep-presents, according to one thoughtful scholar, “a debauchery of the sexual faculty”. Murray, Literature and Censorship, 14 Books on Trial 393, 394; see, also, Lock-hart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 65.

Id. at 376, 175 N.E.2d at 686 . With all respect to my brethren I fail to see how Richmond County News equates with Miller , even if Miller does not give us its definition of “hard core.”

. With the new emphasis on community standards in Miller , Mr. Justice Brennan’s dissent in Brown v. Kingsley Books, Inc., that community standards can be determined only by a jury, 354 U.S. at 448, 77 S.Ct. 1325 , becomes more persuasive. Thus it is not beyond the realm of the possible that the Supreme Court would reexamine Brown in the light of Miller .