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December 18, 1972

AVON 42ND STREET CORP., Plaintiff,
Bess MYERSON, Commissioner of the New York City Department of Consumer Affairs, Defendant

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

This is an action brought by plaintiff, Avon 42nd Street Corp., pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983, to enjoin enforcement of and to have declared unconstitutional certain ordinances of the City of New York, relating to the licensing of motion picture theatres. Plaintiff owns and operates a motion picture theatre at 133 West 42nd Street, New York City; defendant ("Commissioner") is charged with the enforcement of the challenged ordinances. Each party has moved for summary judgment.

 The ordinances under attack *fn1" essentially vest control over the regulation of motion picture theatres in the Commissioner (§ B32-23.0); licenses are required for the lawful operation of such theatres (§ B32-24.0); the Commissioner controls the granting of the licenses and their renewal (§ B32-25.0); similarly, the Commissioner may revoke or suspend a license, or impose a fine on the licensee, on the basis of complaints of violation of the ordinance (§ 7773a-7.0).

 The facts underlying the suit are uncontested. Plaintiff holds a motion picture license issued by the New York City Department of Consumer Affairs; the complaint recites that plaintiff was incorporated in July, 1971, and since that date has exhibited more than 800 motion pictures. On May 12, 1972, plaintiff, by its attorney, appeared in the New York City Criminal Court to answer a charge of violating New York Penal Law § 235.05 (McKinney's Consol.Laws, c. 40, Supp.1972) by having shown an allegedly obscene film. Instead of answering the charges, plaintiff pleaded guilty to disorderly conduct as defined by New York Penal Law § 240.20(7) and paid a fine of $200; there was no finding made as to the obscenity of the film.

 Thereafter, on July 5, plaintiff was notified by defendant to attend a hearing on July 27 and to "show cause" why its application for a renewal of its license would not be denied, based on the events of May 12. The concluding sentence of this notice read:

"PLEASE TAKE NOTICE that the within proceeding may result in the denial of your application for renewal of motion picture theatre license on the gound [sic] that you may not be a fit and proper person of good character and responsibility qualified to be licensed."

 The hearing was held as scheduled on the 27th of July. The transcript reveals an astonishingly vague discussion centering on the plea of guilty for disorderly conduct and the motion picture involved. No evidence or witnesses were presented, other than plaintiff's counsel and one of its officers. There was no mention of a denial of the application for renewal of the license, or even of its suspension; instead, at the end of the hearing, the Examiner merely asked: "Well, would you say it's fair to fine $25 on each theatre, which are the two subjects of this hearing?" Despite the inconclusiveness of the foregoing, plaintiff received on September 19th a notice that its license was suspended for 30 days, "[based] upon the facts and circumstances contained in the transcript of hearing." *fn2" Plaintiff sought review of the suspension in the Supreme Court of New York, New York County, but did not at that time challenge the constitutionality of the administrative system; that court remanded the case on October 5, 1972 to the defendant on the basis that the penalty was excessive. Finally, on November 16, 1972, defendant reduced the suspension period to seven days.

 Plaintiff challenges here the constitutionality of the licensing system of motion picture theatres in general and as applied. The thrust of the complaint is concisely stated at page 4:

"The claim is made that the challenged ordinances contained in the Administrative Code of the City of New York facially and as applied to motion picture theatres are unconstitutional in that they fail to set adequate standards for issuing, renewing, suspending and revoking licenses and constitute an invalid prior restraint on exercise of freedoms guaranteed by the First Amendment."

 Defendant counters that the licensing system itself is a valid exercise of the police power, and that no censorship or prior restraint is involved in the suspension here because it was based upon an adjudication that there was a violation of the law relating to the operation of a theatre. Defendant further argues that the requirements of due process were met by the notice of charges and hearing prior to the suspension, and that the regulations are not unconstitutionally "vague" because plaintiff should have known that "disorderly conduct" would result in suspension. Finally, the Commissioner urges this court to abstain from deciding the constitutionality of the ordinances attacked before any state court adjudication of their merits.

 For the reasons set out below, I find that the ordinances in controversy are unconstitutional on their face and as applied, insofar as they empower the defendant to suspend or revoke or refuse to reissue movie theatre licenses on the basis of the "character" of the licensee, or the "morality" or "decency" of the exhibition, or on no basis at all.

 Addressing the Commissioner's abstention argument, I note, first, that the case of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) does not compel such a result: there is no pending state prosecution which plaintiff seeks to have enjoined; nor do there seem to be any other underlying policies, as enunciated in Younger, in favor of such abstention. Secondly, there is no possible construction of the provisions in the challenged ordinance which would obviate the necessity of passing on its constitutionality; nor has defendant in fact cited any New York cases which so limit it. In the absence of exceptional circumstances, this court should not abstain from exercising its jurisdiction. Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). "The Supreme Court has repeatedly instructed federal courts confronting constitutional claims arising in this posture to decide the case before them rather than to force plaintiffs to first attempt to vindicate those federal rights in state courts." Wulp v. Corcoran, 454 F.2d 826, 833-834 (1st Cir. 1972). See also, Marks v. City of Newport, Kentucky, 344 F. Supp. 675, 678 (E.D.Ky.1972), (invalidating a municipal ordinance which required the licensing of bookstores and movie theatres, on the grounds that it constituted a "prior restraint on the distribution of printed matter", and was also void for vagueness.) Hence, this court must turn to the merits of this controversy.

 For at least two decades, it has been clear that ". . . expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S. Ct. 777, 781, 96 L. Ed. 1098 (1952). In Burstyn, a New York State statute was attacked which prohibited the showing of any film without a valid license, and which provided that a license could be denied or withdrawn if the film were "sacrilegious". The Supreme Court ruled that the New York statute represented an invalid prior restraint on public expression, since the term "sacrilegious" provided no standard at all for the exercise of authority and the risk remained that legitimate films might be suppressed: "New York cannot vest such unlimited restraining control over motion pictures in a censor." 343 U.S. at 505, 72 S. Ct. at 782.

 Once it is established that the First Amendment protects the distribution of films as well as literature, it follows that no state or municipality may significantly interfere with such expression. Although obscene language is not within the First Amendment protection, Roth v. California, 354 U.S. 476, 485, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and can therefore be restrained by state action, the danger is always present that such restraint will carry over to the non-obscene. Thus ". . . the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected ...

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