The opinion of the court was delivered by: WARD
Plaintiff St. Martin's Press, Incorporated ("St. Martin's") is the publisher of a book entitled Show Me!, and plaintiffs Crutcher and Newman Book Sellers, Inc., and Patricia Ince ("booksellers") are in the business of selling books at retail, including the book Show Me!. They instituted this action on October 28, 1977, seeking declaratory and injunctive relief. On the same date, they brought on an order to show cause why the defendants should not be preliminarily enjoined from enforcing newly enacted § 263.15 of the Penal Law of New York against them or their employees with respect to the book Show Me!.
Claiming violation of 42 U.S.C. § 1983 and the first and fourteenth amendments to the United States Constitution, plaintiffs base jurisdiction on 28 U.S.C. § 1343 and 28 U.S.C. § 1331(a). They allege that § 263.15, which is entitled "Promoting a sexual performance by a child,"
prohibits the publication, distribution, advertisement or sale of the book Show Me! by imposing up to seven years imprisonment upon any person who publishes, distributes, advertises or sells Show Me! in the State of New York.
Defendants are the Governor of New York, the District Attorney of New York County where St. Martin's has its principal place of business, and the District Attorneys of Westchester and Suffolk
Counties where the booksellers have their principal places of business, or reside, own and operate their respective bookstores.
Defendant Carl A. Vergari, District Attorney of Westchester County, joined by the other defendants, has cross-moved to dismiss for lack of a justiciable controversy. Argument on the motions was held by the Court on November 3, 1977.
For the reasons hereinafter stated, plaintiffs' motion for a preliminary injunction is granted and defendants' cross-motion to dismiss is denied.
Section 263.15 which became effective on November 9, 1977 provides in part:
A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.
Plaintiffs assert that § 263.15 is unconstitutionally overbroad on its face because it applies to motion pictures or photographs whether or not they are obscene,
in violation of the principle that where first amendment interests are involved, regulations which proscribe both protected and unprotected expression are invalid. In addition, plaintiffs assert that § 263.15 is unconstitutional as applied to this book for three reasons. First, plaintiffs argue that § 263.15 is unconstitutional as applied to Show Me! because Show Me! is not obscene, but is a serious, artistic, educational and scientific book designed for parents to use in educating their children about the emotional and physical aspects of sex. Second, insofar as the statute's purpose is to prevent New York children from being exploited or otherwise affected by their unwitting involvement in sexual enterprises,
it can have no rational application to Show Me!, which was photographed entirely in Munich, Germany between 1969 and 1973, where the book was first published. Therefore, in making criminal the sale or distribution of such a book New York has exceeded its police powers and thereby denied plaintiffs substantive due process. Third, plaintiffs contend that § 263.15 is unconstitutional as applied to Show Me! because it is violative of the right of parents to receive and distribute such information. Therefore, the statute infringes the constitutionally protected right of privacy of parents to teach their children about such personal matters as sex.
Defendants contend that this case is not ripe for adjudication. It is undisputed that defendants have not prosecuted, charged, arrested or investigated plaintiffs' activities with respect to Show Me!. This is not surprising since § 263.15 had not taken effect at the time suit was brought and argument was held on the preliminary injunction motion. Yet, if plaintiffs' injuries are only "imaginary," Younger v. Harris, 401 U.S. 37, 42, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), or amount to "nothing more than speculation about the future," Boyle v. Landry, 401 U.S. 77, 81, 27 L. Ed. 2d 696, 91 S. Ct. 758 (1971), the case is not ripe. The problem, then, is to determine whether there is a genuine risk of prosecution notwithstanding the lack of activity on the part of the defendants.
Analysis of the ripeness cases involving attacks on criminal laws reveals three types of fact patterns. In the first category, state officials have taken some kind of action against the plaintiffs, ranging from, for example, ongoing prosecution in Younger v. Harris, 401 U.S. 37, 41, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), to arrest and seizures of materials deemed obscene but no prosecution in Black Jack Distributors, Inc. v. Beame, 433 F. Supp. 1297 (S.D.N.Y. 1977), to threat of arrest and prosecution, coupled with the prosecution of the federal plaintiff's companion in Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). Further, a mere threat to enforce a law against the federal plaintiff sufficed to make Police Department of Chicago v. Mosley, 408 U.S. 92, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972), ripe. Moreover, a prosecuting official's affirmative response to an individual's inquiry regarding the prospect of prosecution has been held to constitute a threat sufficient to make a federal challenge ripe. Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973), vacated and remanded for reconsideration in light of Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 . .. and Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (in addition to responses from officials, other persons previously had been prosecuted in connection with similar activities). Finally, an individual's general inquiry of prosecutors regarding the constitutionality of a law and whether the state would enforce it, and the prosecutors' general response that public officials must obey the law and are duty bound to enforce the law, were held sufficient to make a federal court challenge ripe. Resident Participation of Denver, Inc. v. Love, 322 F. Supp. 1100, 1102 (D. Colo. 1971) (3-judge court).
In the second category of cases, no action of any kind had been taken against the federal plaintiffs by state officials; rather, other persons had been the subject of some prosecutorial action under the challenged, or similar law. E.g., Doe v. Bolton, 410 U.S. 179, 188, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973) (history of enforcement of the predecessor to the statute under attack was sufficient to permit federal plaintiffs to challenge the new law even though it had not yet been enforced against anyone); Naprstek v. City of Norwich, 545 F.2d 815 (2d Cir. 1976) (56-year history of enforcement of the city's curfew ordinance against other persons sufficed to make plaintiffs' suit ripe).
The final category of cases involves challenges to statutes which have not been enforced nor threatened to be enforced. In Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), where the injury with which plaintiffs were imminently threatened was the withdrawal of pupils from their schools as a result of an Oregon law making it a crime for parents to send their children to private schools, the Supreme Court affirmed a federal court grant of a preliminary injunction restraining enforcement of the statute even though it was not to take effect, and there clearly would be no prosecutions thereunder, until more than one year after the Supreme Court's decision. Further, in Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968), a high school teacher was permitted to attack Arkansas' anti-evolution law even though there had been no recorded prosecutions since the law's adoption in 1928, and it was therefore "possible that the statute [was] presently more of a curiosity than a vital fact of life." 393 U.S. at 102.
In determining whether a genuine risk of prosecution exists, one indicium of a concrete controversy is the clarity of the application of the challenged statute to the plaintiff's conduct. Where it is unclear if the law covers that conduct, as in Steffel v. Thompson, supra, it is more essential for there to be overt action by the prosecuting officials towards the plaintiffs; conversely, where the statute clearly applies to plaintiffs' conduct, as this Court finds infra, no prosecutorial action is necessary. E.g., Doe v. Bolton, supra; Epperson v. Arkansas, supra; Pierce v. ...