Motion to Dismiss — Bookcase, Inc. v. Leary

~ BLANK.

PAGE

Offiee-Supreme Court, U.S.

FILED

* Ly JUL 19 1966 \

“MRT me

= 2 i, Sa] _JOHN F. DAVIS, CLERK

iN THE

Supreme Court of the United States

OCTOBER TE 1

No. : 33 D

—s

—

THE Booxcasr, Inc, and IRWIN WEISFELD,

Appellants,

—against—

Howarp R. Leary, as Commissioner of Police of the

City of New York and Frank S. Hogan, as

District Attorney of New York County,

Appellees.

MOTION TO DISMISS

J. LEE RANKIN /

Corporation Counsel

Attorney for Appellee Leary

: Municipal Building

New York, N.Y. 10007

SEYMOUR B. QUEL

BENJAMIN OFFNER 7

of Counsel |

BLANK

PAGE.

TABLE OF CONTENTS|

PAGE

oS ey eer ere ery ert ire ae

Ecce elk cyaea ken ee as Reese vs tee eee a.

oo Re eae er eer Mare ewes 2

The appeal should be dismissed for Jack of a

substantial constitutional question and for

EE RY ooh a ee 3

IN shoo Rocce an a es ees 7

Cases CITED

Butler v. Michigan, 352 U.S. 380 .:............. 4

Jacobellis v. Ohio, 378 U.S. 185 ............... |

Larkin v. Putnam’s Sons, 14 N Y 2d 399, 200

FS Pere rer ys Sree ee Pe ee 3,4

Peoplé v. Kahan, 15 N Y 2d°311, 206 N.E. 24 333 4

Prince v. Massachusetts, 321 U.S. 158 ........... 4

Smith v. California, 361 U.S. 147 ............. 3

State v. Settle, 90 R. I. 195, 156 A. 2d 921 ...... 4

STATUTES ;

i habs reece eviews 4,6

Penal Law of New York

Oar gx oe PEN RE ar eee ee 1

IN THE

‘Supreme Cnet of the United States:

OCTOBER TERM, 1965

No.

»™

a

TxHE Booxcase, Inc. and Irwin WEISFELD,

—against—

Howarp R. Leary, as Commissioner of Police of the

City of New York and Frank 8S. Hoaan, as

. District Attorney of New York County,

A enellets,

>.

a

MOTION ‘0 DISMISS

Opinions Below

The opinion of the New York’ Court of Appeals was

rendered on July 7, 1966 and has not as yet. been

reported. The opinion of the Supreme Court of the

State of New York, County of New York, where this

action was brought, is reported in 49 Mise 2d 355, 267

N.Y.S. 24.415.

Statement

Penal Law, of the State of, New York, sec. 484-h

forbids the sale to a minor under the age of seventeen

of any book, magazine, photograph, ete. that depicts

or contains descriptions of nudity, sexual conduct, or

Appellants,

a

2

sado-masochistic abuse and which is harmful to

minors. The latter nouns and the phrase ‘‘harmful

to minors’’ are explicitly defined in subdivision 1 of

the statute. : |

Section 484-i forbids the sale to minors under the

age of eighteen of any book, magazine, ete. containing

descriptions of acts of sexual. activities which would

appeal to the lust or curiosity of such minors, exclud-

ing medical or biological textbooks.

Violation of~either statute is punishable as a mis-

demeanor. °

The Complaint (R. 9-12)

The corporate plaintiff is a retail bookseller and the

individual plaintiff is its president (Complaint, pars.

‘*First and Second’’). The. gravamen of. their ‘com-

plaint is contained in paragraphs ‘‘Thirteenth’’ and

‘“‘Seventeenth’’.’ In the former they ad that the

statutes above mentioned

‘‘are severally unconstitutional in 1 violation of the

Fourteenth Amendment to the Constitution of the °

United States in that the prohibition of the sale or

dissemination of literature to a person under 18

years and 17 years of age, respectively, or under

any age, is an infringement of the right of the

freedom. of-the press’’. (R. 11)

In paragraph ‘‘Seventeenth”’ plaintiffs assert the

unconstitutionality of the statutes upon the ame

ground but in abbreviated form:

“The plaintiffs claim that sections 484-1 and

484-h of the Penal Law severally are an invasion

3

of plaintiffs’ constitutional rights under the Con-

stitution of the United States as aforesaid in that

the dissemination of literature may not be im-

paired on the basis of the age of the _purchaser. ‘“

(R. 11-12).

The complaint (pars. ‘‘Sixth’’ and ‘‘Twelfth’’) al-

leges that in Larkin v. Putnam’s Sons, 14 NY 2d 399

200 N.E. 2d 760, the Court of Appeals of the State of

New York held that the book entitled ‘‘The Memoirs

of a Woman of Pleasure’’ by John Cleland, popularly

known as ‘‘Fanny Hill’’ is not obscene. Paragraph

‘‘Fourteenth”’ of the complaint alleges that this book

‘contains details, descriptioys or narrative accounts

of acts of sexual intercourse” and is ‘‘embraced within

_ the scope and intendment of said statutes”’.

The appeal should be dismissed for lack of a sub-

stantial constitutional question and for lack of finality.

(1)

The theory upon which this action for a deélara- -

tory judgment was brought is that the states are

without the power to forbid the sale to minors below -

a designated age of material which is not Obscene .

under the Roth test (Roth v. United States, 354 U.S. :

476 [1957]). Relying upon statements by this Court

in Roth and in Smith v. Califorma, 361 U. S. 147

(1959), plaintiffs say that the dissemination of only

obscene matter may be constitutionally prohibited;

that obscenity is the sole test of constitutionality and

that unless the material is obscene its dissemination

may not be banned regardless of the age of the pur-

chaser.

4

In Butler v. Michigan, 352 U. S. 380, 384 (1957)

this Court intimated and in Jacobellis v. Ohio, 378

‘U.S. 184, 195 :(1964) it was held that the states may

constitutionally prohibit the sale to children of matter

deemed harmful to them although not obscene under

the Roth test. This principle was also’ stated in

Larkin v. Putnam’s Sons, 14 N Y 2d 399, 417, 200

N.E. 2d 760 (1964), in People v. Kahan; 15 N Y 2d

311, 312, 206 N.E. 24,333 (1965) and in Stute v. Set-

tle, 90 R.I. 195, 156 A: 2d 921 (1959), which was cited

with approval in Jacobellis v. Ohio, supra. ef. Prince

v. Massachusetts, 321 U. S. 158, 165-168 (1944).

It is thus clear that the states may constitutionally

enact legislation banning dissemination to children

of material harmful to them under standards that

could not -be constitutionally applied to adults. The

statutes are free of the alleged constitutional infirmity

upon which the complaint is based.

(2)

Plaintiffs invoke the jurisdiction of this Court un-

der 28 U. 8S. C. §1257(2), which authorizes an appeal

from a final judgment or decree ‘‘where is drawn in

question the validity of a statute of any state on the

ground of. its being repugnant to the Constitution,

treaties or laws of the United States, and: the deci-

sion is in favor of its validity’’.

(—]

The judgment of the New York Supreme Court

does not establish the constitutional validity of the

challenged statuites. As was noted by that Court (R.

20), the ‘‘sole basis for the requested constitutionality

om

declaration’’ is plaintiffs’ claim that the New York

- Legislature has attempted to establish'a ban on .the

dissemination of literature based on the age of the

purchaser. The judgment of that Court did no more

than to reject plaintiffs’ limited objection to the con-

stitutionality of the statutes.

The New York Court of Appeals, in affirming the

judgment below, said (Jur. St., App. Az p. 12):

‘‘Appellants are now seeking a judgment de-

- claring these [statutes] unconstitutional. Theii -

challenge, however, is limited solely to the power —

of the state to pass such‘statutes. They are not

_ challenging (as they did in Bookcase, supra) the

particular statutes on grounds of vagueness, lack

of proper scienter requirements, and other prob-

lem areas normally involved in a constitutional

challenge to the validity of obscenity laws.*

* Appellant in People v. Tannenbaum (17 NY a2 —),

decided this day, did challenge section 484-i on grotinds

of vagueness and lack of proper scienter requirements. ’’

(The statement in the Court’s footnote that People °

v. Tannenbaum was decided the same day that this

opinion was handed down [July 7, 1966] is incorrect. -

The Court has not decided Tannenbaum /[see New

York Law Journal, July 12, 1966, col. 5] and ‘will not

decide it until. after the Court reconvenes in Septem-

ber. The opinion of the Court of Appeals as printed

in Appendix A to the Jurisdictional Statement is a

reproduction of an unofficial opinion issued by that

Court and marked ‘‘Unrevised and Uncorrected. Not

for Publication.” It'is anticipated that when the

opinion is revised for inclusion in the official reports

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ar | the reference to the decision in Tannenbaum will be.

| corrected. ) \

"a to In the concluding ‘paragraph of its opinion the

oo _ Court of Appeals said (Jur. St., App. A., p. 19):

“The Legislature, after many years of care-

ful study, has decided that certain kinds of writ-

) ten matter, though suitable for adult consump-

| tion, should be kept away from children. A prior

statute with that objective was ruled unconsti-

tutional for vagueness. The challenge here to

sections 484-h and 484-i does not inelude such

‘ vw * grounds. We hold only that the Legislature has

\ + the constitutional power :to pass such a statute.

_.~ Questions of vagueness and scienter require-

> ments must await other cases. (See Tannenbaum,

‘” supra.)’’ (emphasis added.)

“Judge Van’ Vooruis dissdated ‘“‘upon the ground

that jurisdiction should not be assumed to render

declaratory judgment of a question of constitutional-

ity in the abstract without ruling upon the validity of

—? any particular statute. ”* (ibid,)

It is thus clear that all the J udges of the Court of

A were in agreement that the Court did not

adjudicate the constitutional validity of the chal-

lenged statutes. The jurisdictional basis for this ap-

peal is, therefore, lacking for the reason that there

- ' is no decision by the highest court of the state “‘in

~\ favor of [the] validity’’ of the statutes. 28 U. 8S. C.

cos §1257(2). . | t

~

CONCLUSION |

The motion to dismiss the appeal should be granted.

July 15, 1966. . |

Respectfully submitted,

J. Lee RANKIN

Corporation Counsel -

Attorney for Appellee Leary —

SEYMOUR B. QUEL j

Ben} ian OFFNER .

of Counsel |