The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
This is an action pursuant to 42 U.S.C. § 1983 to enjoin defendant Police Commissioner of the City of New York from regularly and continuously stationing uniformed policemen in plaintiffs' book stores. Plaintiffs' principal contention is that this course of conduct constitutes an unconstitutional restraint on the distribution and sale of books, magazines, pictures and movies sold in their stores in violation of the First and Fourteenth Amendments. Plaintiffs move for a preliminary injunction.
There seems to be little dispute as to the facts. Each plaintiff has a book store on West 42nd Street. Like many other book stores in that area, they deal primarily in books, magazines, pictures and movies of questionable taste with little, if any, literary or artistic merit. Defendant Commissioner has submitted to the court a series of photographs acquired from plaintiffs' stores which depict in the baldest terms acts of sexual intercourse and sodomy. There is no doubt in my mind that by any standards these photographs are hard core pornography and are not entitled to First Amendment protections. See Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). Plaintiffs do not deny that they have sold such items.
However, it is conceded by the defendant Commissioner that the books, magazines and pictures which are openly displayed in plaintiffs' stores do not fall within the category of hard core pornography and are not proscribed by the New York Obscenity Laws. N.Y.Penal Law, § 235.00 et seq. It is alleged that any hard core pornography is kept concealed and is sold only under the counter.
According to the uncontradicted affidavit of First Deputy Police Commissioner Walsh, Judges of the Criminal Court of the City of New York have from time to time issued warrants for the search of plaintiffs' book stores, and pursuant to such warrants the police have seized a quantity of what are apparently hard core pornographic items.
Eleven employees in the plaintiffs' stores have been arrested on a number of occasions during the past two years, including last August, for selling pornographic items in violation of the New York Obscenity statute. Plaintiffs state that "Plaintiff's employees have found it much easier and more economical to plead guilty and pay the fine rather than hire counsel and defend themselves."
In August 1968, instead of making further arrests or obtaining warrants from the Criminal Court, the police consulted the office of the Corporation Counsel of the City of New York "as to how sales of hard core pornography could be properly detected and prevented." The Corporation Counsel's office advised "that it would be proper to post police officers in book stores where the officers would not interfere with patrons leaving or entering the premises and where the officers would not interfere with the conduct of business in items which were not hard core pornography." The Corporation Counsel's office also advised the police it was of the opinion that certain items which had been on sale at plaintiffs' book stores were obscene within the meaning of the New York Obscenity Law.
Commencing on September 10, 1968 uniformed officers were stationed in the store of each plaintiff. The officers so stationed were instructed that
"(a) They should be alert at all times, both inside and outside the stores, to prevent traffic in hard core pornography, particularly photographs and magazines showing sodomy, masturbation and sexual intercourse.
"(b) They should make arrests for the sale or delivery of hard core pornography and seize the evidence when making such arrests.
"(c) They should not interfere with patrons leaving or entering the premises."
Beginning on September 10, 1968, a uniformed policeman appeared on the premises of each of the plaintiffs' stores when they opened and he or a relieving uniformed officer remained on the premises until closing time. The officer on duty stood in the doorway of the store and from time to time entered the store and stood or sat there in full view of patrons. This went on every day during the time the store was open from September 10th forward. The officers have refused to explain their presence to store employees, simply stating they are there "under orders." Apparently the surveilling officers have made no arrests or seizures during these tours of duty.
Deputy Commissioner Walsh states that there are 47 book stores in the Times Square area which deal in material similar to that sold by plaintiffs. It is the intention of the police to institute similar surveillance in the other stores "as departmental resources permit."
According to plaintiffs' affidavits, prior to this police surveillance each of the stores had daily average receipts of approximately $500. Following the stationing of police in the stores in the manner described receipts have fallen to approximately $250 per day. Plaintiffs claim that they cannot continue to operate their stores on this financial basis and ...