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December 23, 1974

Robert DE SALVO, Plaintiff,
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 functions.


k. Simulated portrayal of excretory functions.


i. Exhibition of the genitals, both male and female, in various poses.


(Complaint para. 3)

 He alleges that he wishes to continue exhibiting non-obscene films of like character but is inhibited from doing so for fear of coming within the proscriptions of the civil statute. Plaintiff argues that the civil statute violates his constitutional right to exhibit non-obscene films under the First and Fourteenth Amendments because it is vague and overbroad. Specifically, he argues that the civil statute is unconstitutionally vague in light of the standards established in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) in that it does not specifically define those categories of sexual conduct which when portrayed in a patently offensive manner will be labelled obscene and, thereby, constitutionally unprotected and in that it does not define that community with reference to which the predominant appeal and patent offensiveness of the material is to be judged. He argues that the statute is overbroad in that its proscriptions extend beyond that category of expressive material which is defined as obscene by the criminal statute.


 A threshold question is whether this Court should abstain from deciding the constitutional issue posed by this controversy and postpone the exercise of its conceded jurisdiction until a construction of the civil statute, in light of Miller, may be obtained from the New York Court of Appeals. In deciding whether to stay its hand, this Court must be mindful that


abstention is a "judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, [61 S. Ct. 643, 85 L. Ed. 971], [that] sanctions . . . escape [from immediate decision] only in narrowly limited 'special circumstances,' Propper v. Clark, 337 U.S. 472, 492, [69 S. Ct. 1333, 1334, 93 L. Ed. 1480]," Zwickler v. Koota, 389 U.S. 241, 248, [88 S. Ct. 391, 395, 19 L. Ed. 2d 444] (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Louisiana State Board Medical Examiners, 375 U.S. 411, 418, [84 S. Ct. 461, 466, 11 L. Ed. 2d 440] (1964). Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972).

 The paradigmatic circumstance in which it may be appropriate for a federal court to invoke the abstention doctrine is when "resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law." Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 1182, 14 L. Ed. 2d 50 (1965). However, abstention does not follow automatically from the confrontation with an ambiguity in state law. Rather what is required is a judicious exercise of discretion. The determination that the "special circumstances", requisite for the application of the doctrine, exist can only be made after a balancing of all the relevant factors and competing policies on a case-by-case basis. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964).

 After considering all the factors, we conclude that this is not a case where abstention would be appropriate. First, we note the importance of the right alleged to be abridged and the impairment of that right which would be attendant upon the delay abstention involves. *fn4" When statutes are attacked on their face as abridging free expression, as in the instant case, abstention is inappropriate. Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). No opinion of the New York Court of Appeals construing this statute is imminent, thus distinguishing this case from United Artists Corp. v. Proskin, 363 F. Supp. 406 (N.D.N.Y.1973) and Detco, Inc. v. McCann, 365 F. Supp. 176 (E.D.Wis.1973).

 Another factor which persuades us to reach the merits is that we find sufficient guidance as to the construction to be given the statute in the decisions of the New York Court of Appeals *fn5" to render abstention unwarranted. This is not a case where the challenged statute has never been construed by any state court. Compare Lake Carriers' Assn. v. MacMullan, supra ; Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959). Our view of the construction given the statute by the New York courts, particularly the decision in People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973), cert. denied sub nom., Buckley v. New York, 418 U.S. 944, 94 S. Ct. 3231, 41 L. Ed. 2d 1175 (1974), therefore, distinguishes this case from United Artists Corp. v. Harris, 363 F. Supp. 857 (W.D.Okl.1973).

 This case is also distinguished from those where abstention has been ordered in that there is no real independent question of state law. Rather, to abstain here, remitting the plaintiff to state court, would be to force him to litigate the same claim there. "'Assertion of a federal claim in a federal court [need not] await an attempt to vindicate the same claim in a state court.'" Askew v. Hargrave, 401 U.S. 476, 478, 91 S. Ct. 856, 858, 28 L. Ed. 2d 196 (1971), quoting from McNeese v. Board of Education, 373 U.S. 668, 672, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). Compare Askew v. Hargrave, supra ; Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970).

 While recognizing that the statute is not without ambiguity, for the reasons noted, this Court, in the exercise of its discretion, will not abstain.


 It is with reluctance that this Court now mires itself in what has been called "the intractable obscenity problem", Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968) (Harlan, J., dissenting and concurring). Our starting point is that the dissemination of obscene material is not constitutionally protected. "This much has been categorically settled by the [Supreme] Court." Miller v. California, 413 U.S. at 23, 93 S. Ct. at 2614. However, the problem which has vexed both courts and legislatures, in the nearly two decades since obscenity was authoritatively constitutionally ostracized, has been what statutory formulation, combined with judicial absolution, will suffice to exorcise pornography without trammelling constitutionally protected expression. As the court in Miller described its own forays into the thicket, "Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power." 413 U.S. at 22, 93 S. Ct. at 2614. Against this jurisprudential backdrop, we are asked to determine whether the New York civil statute must fall because it casts its net too broadly. The standard to be applied is whether "it offends the constitutional principle that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly.'" Zwickler v. Koota, supra, 389 U.S. at 250, 88 S. Ct. at 396.

 It is clear from the language of the statute that its proscription extends to material proscribed by the criminal statute. The question here is whether the statute applies to material which is not within the Penal Law definition and, thus, not constitutionally subject to suppression.

 To determine the scope of the statute's prohibition and the meaning to be given its terms, we must turn to the construction given the statute by the New York courts in the past, Miller v. California, supra, 413 U.S. at 24, 24 n. 6, 25, 27, 93 S. Ct. 2607, and the interpretations given by those courts to analogous statutes, Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

 The present civil statute is derived from and, in its operative language, is nearly identical to § 22-a of the New York Code of Criminal Procedure. That statute was enacted in 1941 together with Penal Law § 1141, (hereinafter "§ 1141"), the predecessor of the criminal statute. Ch. 925 (1941), Laws of New York 2116. As enacted, the two statutes incorporated the same operative standard. *fn6" However, rather than merely restating the standard of § 1141, § 22-a applied to matter described therein or "described in section eleven hundred forty-one of the penal law." Thus, by use of the disjunctive, it would appear by implication that its proscriptions extended beyond those of § 1141. However, in Brown v. Kingsley Books, 1 N.Y.2d 177, 151 N.Y.S.2d 639, 134 N.E.2d 461 (1956), aff'd 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957), the New York Court of Appeals rejected such an interpretation and limited the statute's application to obscene matter proscribed under § 1141. The Court stated that


. . . no injunction may issue under section 22-a except after a full trial of the issues, and only upon a finding that the challenged publication is of the same character as would subject the defendant to punishment under the pertinent provisions of the Penal Law. What the statute does is to provide an additional sanction against the dissemination of obscene matter. 151 N.Y.S.2d at 642-643, 134 N.E.2d at 464.

 Had § 1141 remained unchanged, our task here would be at an end. In 1967, however, § 1141 was amended to codify what may be called the R oth-Memoirs test. People v. Heller, 352 N.Y.S.2d at 609, 307 N.E.2d at 811. The standard set forth in the civil statute remained unchanged. We must, therefore, examine the New York cases to determine if Brown's equation of the scope of the civil and criminal statutes is still valid.

 In addition, the Court of Appeals in Brown construed the civil statute to proscribe only obscenity. 151 N.Y.S.2d at 639, 134 N.E.2d at 461. See also Brown v. Kingsley Books, 354 U.S. 436, 445, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957). Our examination of the New York cases indicates that since that time there has been only one definition of obscenity. That definition is the same whether suppression be sought by means of the criminal statute or the civil statute. In either case, obscenity is defined with reference to constitutional requirements as they are embodied in decisions of the United States Supreme Court and in former Penal Law art. 235.

 In Larkin v. G. P. Putnam's Sons, 14 N.Y.2d 399, 252 N.Y.S.2d 71, 200 N.E.2d 760 (1964), an action was commenced under the civil injunction statute to suppress Memoirs of a Woman of Pleasure, known as Fanny Hill. In holding that the book was not enjoinable as obscene, the court stated:


The suppression of a book requires not only an expression of judgment by the court that it is so bad, in the view of the Judges, that it is offensive to community standards of decency as the Legislature has laid them down, but also that it is so bad that the constitutional freedom to print has been lost because of what the book contains. 252 N.Y.S.2d at 73, 200 N.E.2d at 761.

 It is clear from the court's decision that it applied contemporary community standards in determining the appeal and offensiveness of Fanny Hill, id. at 73, 74-75, 200 N.E.2d at 761, 762-763 and that it applied the "redeeming social value" test, id. at 74, 200 N.E.2d at 763. That is, the tests used were substantially those found in Penal Law art. 235 prior to its 1974 amendment.

 In interpreting the civil statute, the Court of Appeals has relied on its precedents under the older penal statute and the United States Supreme Court cases embodying the standards for determining obscenity. See, e.g., Larkin v. G. P. Putnam's Sons, supra ; Larkin v. G. I. Distributors, 14 N.Y.2d 869, 252 N.Y.S.2d 81, 200 N.E.2d 768 (1964), aff'g 41 Misc.2d 165, 245 N.Y.S.2d 553 (Sup.Ct.1961). The Court of Appeals has adopted the definition of obscenity formulated in People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681 (1961). Our reading of that case convinces us that the definition of obscenity there established is equivalent to that codified in Penal Law art. 235. The elements of the definition are whether, to the average person, applying contemporary standards, the dominant theme of the material as a whole appeals to the prurient interest, 216 N.Y.S.2d at 375, 175 N.E.2d at 685, portraying sex in a patently offensive manner, id. at 376, 175 N.E.2d at 686, and totally lacking in social value, Id. at 372, 375-376, 175 N.E.2d at 685-686. In shorthand form, what is obscene is "hard-core pornography." Id. at 375, 175 N.E.2d at 685.

 In People v. Heller, supra, the Court of Appeals construed the definition of obscenity contained in Penal Law art. 235 as applying to what it termed "hard core pornography" and stated that this "hard core pornography test" has been consistently applied both under that statute and its predecessor Penal Law § 1141. 352 N.Y.S.2d at 612, 307 N.E.2d at 813. Thus, the Court of Appeals has authoritatively construed prior New York case law as embodying the constitutionally sufficient definition of obscenity subsequently codified in the criminal statute.

 Since New York's highest court has construed its decisions under Penal Law § 1141 as applying a definition of obscenity equivalent to that contained in Penal Law art. 235, prior to the 1974 amendment, and since our reading of the New York cases convinces us that that definition of obscenity has been consistently applied in proceedings pursuant to the civil statute, we conclude that the construction given the civil statute in Brown is still valid. That is, what may be enjoined pursuant to the civil statute is only that which would subject one to prosecution under the criminal statute. As so construed, the civil statute is not unnecessarily broad.


 Having concluded that what is enjoinable as obscenity under the civil statute is the same as what is obscene under the criminal statute, our task here is greatly simplified.

 Penal Law art. 235 as amended effective September 1, 1974 is a legislative codification of the standards for determining obscenity established in Miller, including the Miller examples of specific hard-core sexual conduct which a state statute could constitutionally proscribe. This statute, then, cannot be condemned as unconstitutionally vague.

 As the definition of obscenity for purposes of the civil statute is the same as that for the criminal statute, the civil statute is, likewise, not unconstitutionally vague. We are fortified in this conclusion by the New York Court of Appeals' decision in People v. Heller, supra. There, the court said that what was hard-core pornography under both Penal Law § 1141 and Penal Law art. 235 was


"patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated [and/or] Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." (413 U.S. at p. 25, 93 S. Ct. at p. 2615). 352 N.Y.S.2d at 612, 307 N.E.2d at 813.

 Nor is the community with reference to which prurient appeal and patent offensiveness is to be determined vague. The Court of Appeals in Heller has authoritatively established a statewide community as the standard.

 For all the foregoing reasons, we hold that the New York civil statute is not on its face so unconstitutionally vague and overbroad that it cannot be enforced. This is not to say that the statute may not hereafter be applied or construed in an unconstitutional manner. When such a case presents itself, we stand ready to protect the first amendment rights involved. All that the instant case requires us to hold is that the statute, as it has been construed, is not constitutionally void on its face.

 Accordingly, the complaint is dismissed.

 Settle order on notice.

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