New York Law Review

Tag: First Amendment

  • Bookcase, Inc. v. Broderick, 18 N.Y.2d 71 (1966): Variable Obscenity and the Protection of Minors

    Bookcase, Inc. v. Broderick, 18 N.Y.2d 71 (1966)

    The state has the power to prohibit the sale to minors of literature that, while not obscene to adults, is harmful to children, reflecting the concept of variable obscenity.

    Summary

    Bookcase, Inc. challenged the constitutionality of New York statutes prohibiting the sale of certain literature to minors. The New York Court of Appeals held that the state has the power to enact statutes protecting children from materials deemed harmful, even if those materials are not considered obscene for adults. The court reasoned that the concept of obscenity varies depending on the audience and that the state’s interest in protecting children justifies restricting their access to certain materials. This case establishes the principle of “variable obscenity.”

    Facts

    Bookcase, Inc. sought a declaratory judgment that New York Penal Law sections 484-h and 484-i were unconstitutional. These statutes prohibited the sale of certain materials to minors under 17 and 18, respectively. The challenge was limited to the state’s power to pass such statutes, not specific issues like vagueness or scienter. Bookcase, Inc. conceded that the book “Fanny Hill” fell within the prohibition of these statutes regarding sales to minors, even though the court had previously held that “Fanny Hill” was not obscene for adults.

    Procedural History

    The case began as a challenge to the constitutionality of New York Penal Law sections 484-h and 484-i in the lower courts. The lower court ruled in favor of Broderick, upholding the constitutionality of the statutes. Bookcase, Inc. appealed to the New York Court of Appeals.

    Issue(s)

    Whether the State has the constitutional power to prohibit the sale to minors of materials that are not obscene for adults, based on a concept of variable obscenity?

    Holding

    Yes, because the concept of obscenity can vary depending on the group to whom the material is directed and because the State has a compelling interest in protecting the health, safety, welfare, and morals of its community, especially its children.

    Court’s Reasoning

    The court relied on Supreme Court precedent, including Roth v. United States, which established that obscenity is outside the protection of the First Amendment. The court also examined subsequent cases like Jacobellis v. Ohio and Mishkin v. New York, which refined the definition of obscenity and acknowledged the legitimacy of considering the audience to whom the material is directed. The court cited Jacobellis v. Ohio where Justice Brennan suggested that states might better serve their objectives by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination. The court noted the three-point definition used in section 484-h: (1) predominantly appeals to the prurient, shameful or morbid interest of minors, (2) is patently offensive to prevailing standards of what is suitable for minors, and (3) is utterly without redeeming social importance. The court emphasized that “obscenity” is not inherent but varies with the circumstances of dissemination. The court explicitly rejected the argument that constitutional freedoms are unbounded by age. Quoting Judge Desmond, the court stated: “Obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil, a public nuisance, a public pollution. When its effective control requires censorship, I see no reason why democratic government should not use democratic processes on a high administrative level, under the control of the courts, to suppress such obscenity.” The court affirmed the Legislature’s power to protect children from harmful material, deferring questions of vagueness and scienter to future cases. Judge Van Voorhis dissented, arguing that the court should not render a declaratory judgment on constitutionality in the abstract.

  • Trans-Lux Distributing Corp. v. Board of Regents, 14 N.Y.2d 88 (1964): State Authority to Censor Obscene Film Behavior

    Trans-Lux Distributing Corp. v. Board of Regents, 14 N.Y.2d 88 (1964)

    A state may prohibit the licensing of films depicting explicit sexual conduct, similar to its power to regulate public displays of the same conduct, as such depictions are considered conduct rather than protected speech under the First Amendment.

    Summary

    Trans-Lux Distributing Corp. challenged the Board of Regents’ decision to require the removal of two scenes from the film “A Stranger Knocks” as a condition for licensing. The Board deemed the scenes, which depicted explicit sexual behavior, as obscene. The New York Court of Appeals considered whether the state’s film licensing statute, as applied to these scenes, violated the First Amendment. The court held that the state has the authority to regulate obscene conduct depicted in films, just as it can regulate similar conduct in public, because films can be viewed as conduct rather than pure speech in certain contexts.

    Facts

    Trans-Lux Distributing Corp. sought a license to exhibit the film “A Stranger Knocks” in New York. The Board of Regents mandated the removal of two scenes due to their alleged obscenity. The first scene showed a man and woman on a beach embracing, leading to a depiction of the woman’s facial expressions indicative of orgasm. The second scene showed the woman astride the man in bed, with movements suggestive of sexual intercourse and the woman displaying similar expressions. This scene was the film’s climax, coinciding with the woman’s realization that the man was her husband’s murderer.

    Procedural History

    The Board of Regents directed the elimination of two scenes from the film as a condition for granting a license. The Appellate Division annulled the Board’s determination. The case was appealed to the New York Court of Appeals.

    Issue(s)

    Whether the state’s motion picture licensing statute, as applied to prohibit the exhibition of scenes depicting explicit sexual conduct, violates the First Amendment’s guarantee of freedom of speech.

    Holding

    Yes, because a filmed presentation of sexual intercourse, whether real or simulated, is subject to state prohibition to the same extent as the actual conduct would be if engaged in publicly. The state’s power to regulate conduct extends to its depiction on film when the conduct itself is deemed obscene and against public policy.

    Court’s Reasoning

    The court reasoned that while the First Amendment protects various forms of expression, including films, this protection is not absolute. Films, like conduct, can be regulated when they cross the line into obscenity. The court distinguished between advocating an idea (protected speech) and engaging in conduct (subject to regulation). The court stated, “Films, by their nature, may lie on either side of the division between speech and conduct.” The court analogized the depiction of sexual intercourse on film to public sexual exhibitionism, which the state has the power to prohibit. The court emphasized that the state’s regulation of films is not aimed at suppressing ideas but at proscribing certain behavior that is offensive and destructive of moral standards. The court stated: “It is my view that a filmed presentation of sexual intercourse, whether real or simulated, is just as subject to State prohibition as similar conduct if engaged in on the street.” It further explained that, “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” The court concluded that the scenes in question were obscene and thus subject to regulation under the state’s licensing statute.

  • People v. Finkelstein, 9 N.Y.2d 342 (1961): Obscenity and the First Amendment; “Tropic of Cancer”

    9 N.Y.2d 342 (1961)

    A book can be deemed obscene and outside First Amendment protection if, taken as a whole, its dominant theme appeals to prurient interest, is patently offensive to contemporary community standards, and constitutes hard-core pornography, regardless of some literary merit.

    Summary

    Defendants were convicted of selling Henry Miller’s “Tropic of Cancer” in violation of New York’s obscenity law. The County Court reversed, finding the book not obscene as a matter of law. The New York Court of Appeals considered whether the book was obscene under the statute and the First Amendment. The court held that “Tropic of Cancer” was obscene, finding it appealed to prurient interests, was patently offensive, and constituted hard-core pornography. The court rejected the argument that literary merit protected the book and ordered a new trial on the issue of the defendants’ knowledge (scienter) of the book’s obscenity.

    Facts

    The defendants were convicted after a jury trial for selling “Tropic of Cancer” by Henry Miller. The book contains numerous explicit descriptions of sexual acts and uses offensive language. The prosecution argued that the book was obscene and violated New York Penal Law § 1141, which prohibits the sale of obscene materials. The defendants argued that the book had literary merit and was protected by the First Amendment.

    Procedural History

    The trial court convicted the defendants. The County Court reversed the convictions and dismissed the information, concluding that “Tropic of Cancer” was not obscene as a matter of law and that the jury’s finding on scienter was against the weight of the evidence. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether “Tropic of Cancer” is obscene under New York Penal Law § 1141 and therefore not protected by the First Amendment.

    Holding

    Yes, because the book, taken as a whole, appeals to prurient interests, is patently offensive to contemporary community standards, and constitutes hard-core pornography. The presence of some literary merit does not automatically shield it from obscenity laws.

    Court’s Reasoning

    The court applied the three-part test for obscenity derived from Roth v. United States and Manual Enterprises v. Day, requiring the material to (1) appeal to prurient interest, (2) be patently offensive, and (3) constitute hard-core pornography (as interpreted in People v. Richmond County News). The court emphasized its duty to make an independent constitutional appraisal of the book. After carefully reading the book, the court concluded that “it is nothing more than a compilation of a series of sordid narrations dealing with sex in a manner designed to appeal to the prurient interest.” The court found the book to be “devoid of theme or ideas” and filled with “a constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences.” The court explicitly rejected the argument that substantial literary merit could save an otherwise obscene work, stating, “This court will not adopt a rule of law which states that obscenity is suppressible but that well-written obscenity is not.” While acknowledging the importance of scienter, the court remanded for a new trial on that issue because the County Court had also ruled against the weight of the evidence on that point. The court quoted Kingsley Pictures Corp. v. Regents, characterizing the book as “dirt for dirt’s sake… and dirt for money’s sake.”