The opinion of the court was delivered by: FRANKEL
This three-judge court has been convened to consider applications for injunctive and other relief by plaintiffs in two consolidated cases who assert that their rights under the First Amendment, as it applies via the Fourteenth, are being infringed by state arrests and prosecutions on obscenity charges.
In one case plaintiffs are Milky Way Productions, Inc., and two of its officers, engaged in publishing a weekly tabloid called "Screw, The Sex Review." The other suit is brought by New York Feed Company, Inc., and Stephen Heller, who publish a bi-weekly tabloid entitled "The New York Review of Sex & Politics." Defendants in both cases are Howard R. Leary, Police Commissioner of New York City, and Frank S. Hogan, New York County District Attorney.
The publishers of "Screw," in their complaint filed August 18, 1969, charge that defendants, in May of 1969, "embarked upon a plan and series of acts the purpose and effect of which has been to suppress the public sale of several issues of subject tabloid newspaper and to deprive the public of its right to read the tabloid and now threatens to suspend completely the publication and dissemination of subject tabloid." Specifically, it is charged, plaintiffs Goldstein and Buckley were arrested in May and charged with violating New York Penal Law, McKinney's Consol.Laws, c. 40, § 235.05
by promoting Issues No. 14 and No. 15 of "Screw." Thereafter, the complaint continues, the plaintiffs were advised by their counsel that "the only real basis to justify the arrests" was found in certain pictures, and they "proceeded in subsequent Issues to eliminate those pictures which apparently were deemed or appeared to be most objectionable."
Nevertheless, it is alleged, Goldstein and Buckley were arrested again on June 26, 1969, again on charges under § 235.05, because of their Issue No. 17. At the same time, "the distributor and several newsdealers" were arrested for promoting this issue. Moreover, plaintiffs charge, since May 21 "defendants, and particularly members of the Police Department told, advised and threatened newsdealers and others that they would be arrested for selling any Issue of the publication Screw, including, of course, Issue No. 18 which was not subject to any process, civil or criminal."
As a result of these official actions, plaintiffs allege, sales of their Issues 18 and 19 have dropped from a former level of 75,000 to about 17,000. And this has happened, they say, even though "defendants * * * are or should be fully aware that Issues No. 17, 18, 19, 20 * * * did not and do not contain pictures falling within the definition of hard-core pornography, to wit: pictures showing a consummated sexual act."
The complaint goes on to allege "still further arrests" on August 15, 1969, for promoting Issues 22 through 24.
According to the complaint, defendants have been asked, but have refused, to employ alternative procedures, such as civil injunctions or informal advance consultations with plaintiffs, in lieu of criminal charges under the obscenity statute.
As a result of the acts alleged, plaintiffs say, their business is being destroyed and First Amendment freedoms are being chilled. Allegedly lacking any other adequate remedy, they seek (in addition to damages) injunctive and declaratory relief of kinds, and on grounds, more particularly stated below.
Plaintiffs in the second case, publishers of "The New York Review of Sex & Politics," plead a similar cause, with some variations. On June 20, 1969, they allege, plaintiff Heller, "among others," was charged with violating Penal Law § 235.05 on the basis of the "Review's" Issue No. 9. In addition to Heller, Alvin Druss, principal of a distributing company, and "a number of newsstand dealers" (not named) are alleged to have been arrested. Circulation of the "Review" has dropped from 40,000 to 30,000. 193 newsstands carried it before June 20, but the number has since decreased to about 75. It is alleged that Heller was arrested again on August 15, 1969, this time for Issue No. 12 of the "Review." On this occasion, it is alleged, "some 70 or less
newsstand dealers, some of whom are blind, others who are handicapped and disabled," were also arrested. Unlike the complaint about "Screw," that concerning the "Review" makes much of the allegedly "tasteful" and otherwise valuable aspects of the publication, but this dubiety turns out to have little or no significance for purposes of the questions before us.
The alleged pattern of arrests, said to be pursued "recklessly and promiscuously," is assailed as an "effective prior restraint" forbidden by the Federal Constitution. Moreover, plaintiffs allege, with arrests being made before there has been an adversary ruling on obscenity, "defendants are acting in bad faith in that they are attempting to accomplish, and are in fact accomplishing, by extra judicial means what could not be achieved if the legal processes were followed." As in the companion case, plaintiffs connected with the "Review" seek both damages and injunctive relief.
By motions returnable on September 16, 1969, both sets of plaintiffs have applied for relief pendente lite. While the motions are not identical, the sum total of the relief sought and the contentions raised by both may be outlined as follows:
(1) Temporary injunctions are sought
(a) to forbid arrests unless there has first been an adversary hearing before a judicial officer to determine whether the publications in question are obscene;
(b) to require that defendants negotiate and "pinpoint" alleged qualities of obscenity before instituting criminal proceedings;
(c) to forbid threats of arrest or warnings by police officers to newsdealers that sale of the publications will or may lead to arrest.
(2) Declaratory rulings are requested invalidating N.Y. Penal Law § 235 in several respects hereinafter detailed.
(3) Likewise, a declaration is sought that §§ 148-150 of New York's Code of Criminal Procedure are unconstitutional facially and as applied because they assertedly allow suppression of publications as "contraband" without a prior adversary hearing, contrary ...