A New York Criminal Lawyer said that, appellants have been convicted under section 484-h of the Penal Law, Consol.Laws, c. 40 of selling to a minor under 18 years of age a copy of a book entitled ‘Memoirs of a Woman of Pleasure’. Another case, decided at the same time, involves whether this book is obscene under section 1141 of the Penal Law. That question is not before the court upon this appeal. Both counsel for the appellant and the Assistant District Attorney concede that the conviction of these defendants does not depend upon any finding or conclusion that this book is obscene. The determination that the book is not obscene therefore does not exonerate these defendants from the present charge. Even if the book is not obscene within the meaning of the Constitution, the narrative is mainly concerned with accounts of extra-marital sexual relationships.
A New York Sex Crimes Lawyer said that, the conviction of defendants is under that portion of section 484-h of the Penal Law which purports to prohibit the sale to a minor under 18 years of age of ‘any book the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex crime or sexual immorality’. The constitutional attack on this statutory provision is based on the grounds that it abridges freedom of speech and of the press in violation of the First Amendment to the Constitution of the United States and that it violates the Fourteenth Amendment by denying due process of law in that the language is too vague for a criminal statute.
The issue in this case is whether the court erred in convicting the appellants under under section 484-h of the Penal Law, Consol.Laws, c. 40 of selling to a minor under 18 years of age a copy of a book entitled ‘Memoirs of a Woman of Pleasure’.
Former subdivision 2 of section 1141 of the Penal Law. The statute there held to be void prohibited the sale of books and other printed matter ‘principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, and stories of deeds of bloodshed, lust, or crime’. Our court had construed this statute as limited to the publication of collections of criminal deeds of bloodshed or lust ‘so massed as to become vehicles for inciting violent and depraved crimes against the person’. The United States Supreme Court said: ‘The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent sex crimes, the statute is violated. It does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collection of tales of war horrors, otherwise unexceptionable, might well be found to be ‘massed’ so as to become ‘vehicles for inciting violent and depraved crimes.’ Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. If a gun is involved, it’s worse.
There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment.’ The Supreme Court also held in the Winters case that the statute in question unconstitutionally limited freedom of expression protected by the principles of the First Amendment.
This court is now called upon to cope with one of the more important of these questions. As was noted in the principal opinion of the Criminal Court of the City of New York, there would have been no occasion for enacting section 484-h of the Penal Law unless it forbade more than was already prohibited by section 1141. ‘Section 484-h’, said the Criminal Court, ‘prohibits the sale to minors of books which exploit, are devoted to, or deal principally in descriptions of illicit sex or sexual immorality. There is no such prohibition contained in section 1141.
This part of the opinion of the Criminal Court indicates the basis on which the case was decided and on which it has to be decided. Section 1141 of the Penal Law already prohibited the sale, exhibition or other disposition of pictures or printed material which are obscene, lewd, lascivious, filthy, indecent or disgusting, and articles or instruments of indecent or immoral use, with the consequence that there is little if anything left to section 484-h that was new except the part to which the opinion of the Criminal Court refers and under which these defendants have been convicted. Material which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality is distinguished, in section 484-h, from what is obscene by the use of the disjunctive ‘or’. The prosecution urges that, under the language of this statute, it is not necessary for this book to be obscene in order to sustain the conviction of defendants if it mainly describes or is devoted to illicit sex or sexual immorality. This is not different from the bills passed in 1949 and 1952, which prohibited fictional accounts of lust, except that the present language omits the qualification ‘which tend(s) to incite minors to violent or depraved or immoral acts’. The latter words were not included in the statute before the courts in the case, but were added by this court as having been intended by implication. But when the case reached the Supreme Court of the United States, the ‘incitement’ clause was expressly held to be too vague for a valid criminal statute. So this time the Legislature omitted these words, as they had been omitted from subdivision 2 of section 1141 in the beginning. We are thus confronted with a constitutional question not unlike that which would have been before the United States Supreme Court in the case, if the ‘incitement’ clause had not been added to that statute by implication by this court. The Supreme Court is, of course, bound by the construction of State statutes which is placed upon them by the State courts.
The quality of the printed or pictorial material which is forbidden by the portion of the statutory enactment which is now before us is, consequently, not to be judged by whether it tends to incite minors or adults to immoral acts, or by whether it is in its nature obscene in the eyes of minors or of adults, but whether the Legislature can constitutionally prevent the sale to minors of this age of material which deals mainly with illicit sex or sexual immorality. The purpose and the only object of this clause in the statute, under which defendants stand convicted, was to prevent or limit publications or pictures coming before the eyes of the young which are principally based upon the theme of sexual conduct that is contrary to the mores of society. This statute does not distinguish between material regarded as obscene for teenagers but unobjectionable to adults; it sets no variable standards of what constitutes obscenity according to the age or other type of group at which the material in question is principally aimed, nor does this clause in the statute render it necessary to conviction that the material dealing with illicit sex or sexual immorality shall have been presented in a salacious manner. A statute could hardly be drawn which would permit exhibition of intimate sexual details of married life, for example, and at the same time exclude similar presentations where the participants are not married. On the contrary, the only construction of which this statutory language is susceptible is that the subject of illicit sex or sexual immorality is not to be brought before the young by pictures or writings scientific, fictional or otherwise which are devoted principally thereto. Child pornography could have been charged.
The decisions of the United States Supreme Court leave no doubt that legislation designed to restrict the sale or other distribution to adults of material principally devoted to, or even advocating, illicit sex or sexual immorality would be unconstitutional, both upon the grounds of vagueness, in case of criminal statutes, and of abridgment of freedom of speech or of the press in case of all statutes.
No question is here presented concerning how the Legislature might constitutionally provide different standards of obscenity as applicable to different age groups. The statute recommended by the Legislative Committee in 1954 was not adopted, and the next year the same committee, instead of renewing its recommendation of legislation regarding what would be obscene for minors, presented the predecessor of the present section 484-h of the Penal Law. As has previously been stated, the portion of that section under which appellants have been convicted has nothing to do with obscenity. We do not have before us to decide whether ‘Fanny Hill’, having been held to be not obscene for adults, would be obscene for children under 18 years of age. Appellants, it may be repeated, have not been convicted of selling an obscene book to a minor, but one which is principally devoted to descriptions of illicit sex crime or sexual immorality, unrelated to whether the book is obscene. The People concede that no issue of obscenity is before the court on this appeal.
The issue shapes itself into whether the Legislature can constitutionally restrict the sale, circulation or exhibition of pictures or printed material to minors under 18 years, for the reason that it is principally devoted to the subjects of illicit sex or sexual immorality. These words are either too vague to apprise possible defendants of what they mean, or, if they are to be interpreted as referring exclusively to extra marital sex or sexual perversion, then they would forbid all publications or pictures mainly devoted to those subjects, regardless of the manner in which they are presented, whether by way of fiction, sociological discussion, moralizing, or otherwise. It is not suggested that these or other parallel works of literature are likely to be offered for sale at the same newsstands where the type of comic books are purchased which was the main reason for the adoption of this legislation, but the constitutionality of a statute governing publications is to be tested by what can be done under it and not by the particular violation which is charged with having occurred. It seems to us that this statute is drawn so broadly as to render criminal sales or other exhibition to the young of pictures and publications of all kinds which are principally devoted to these subjects, in however serious or dignified a manner, and, in our view, it is so broad and so obscure in its coverage as to abridge the constitutionally protected freedom of speech and of the press as well as the due process clauses in the Federal and State Constitutions. Neither cocaine or marijuana were found.
Likewise it is unnecessary, in view of the ground of decision, to decide whether appellant could be held on account of alleged lack of knowledge on his part that the bookstore clerk would sell this book to a minor under 18 years of age.
Accordingly, the court held that, the judgments of conviction should be reversed and the information dismissed.
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