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DE SALVO v. CODD

December 23, 1974

Robert DE SALVO, Plaintiff,
v.
Michael J. CODD, Individually, and as Police Commissioner of the City of New York, et al., Defendants



The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge:

Plaintiff instituted this civil rights action under 42 U.S.C. § 1983 seeking a declaration that New York's criminal and civil anti-obscenity statutes, New York Penal Law art. 235 McKinney's Consol. Laws, c. 40 ("the criminal statute") *fn1" and New York Civil Practice Law and Rules § 6330 ("the civil statute"), *fn2" are unconstitutionally vague and overbroad, both on their face and as construed, and that the procedure established by CPLR § 6330 is unconstitutional insofar as it authorizes a total restraint upon the exhibition of a motion picture prior to a final determination of obscenity. He further seeks an injunction against the enforcement of both statutes.

In a memorandum decision filed June 24, 1974, this Court, sitting as a single judge, denied plaintiff's application to convene a three-judge court to determine the constitutionality of Penal Law art. 235 and the procedural aspects of CPLR § 6330, finding that these claims failed to raise a substantial federal question. This three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284 to determine the remaining question raised by plaintiff's complaint -- whether the civil statute is so vague and overbroad on its face as to be constitutionally unenforceable. *fn3"

 Plaintiff, the lessee and operator of the Lincoln Art Theater in the borough of Manhattan, has in the past exhibited at his theater sexually oriented films which

 
include in varying degrees some or all of the following representations of sexual conduct.
 
a. Actual portrayal of ultimate sex acts.
 
b. Actual portrayal of non-ultimate sex acts.
 
c. Simulated portrayal of ultimate sex acts.
 
d. Simulated portrayal of non-ultimate sex acts.
 
e. Any of the above with respect to normal sex acts.
 
f. Any of the above with respect to abnormal sex acts.
 
g. Any of the above with respect to perverted sex acts.
 
h. Actual portrayal of masturbation.
 
i. Simulated portrayal of masturbation.
 
j. Actual portrayal of excretory ...

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