New York Law Review

Tag: obscenity law

  • People v. Illardo, 48 N.Y.2d 408 (1979): Constitutionality of Obscenity Statute’s Affirmative Defenses

    People v. Illardo, 48 N.Y.2d 408 (1979)

    An obscenity statute’s affirmative defenses, which allow for exceptions based on the dissemination of material to scientific, educational, or governmental institutions, or for certain non-managerial employees, are constitutional under due process and equal protection clauses.

    Summary

    Joseph Illardo was charged with promoting obscene material for selling a magazine. He challenged the constitutionality of New York’s obscenity statute, specifically the affirmative defenses in Penal Law § 235.15. He argued that the terms used in the defenses were vague and violated due process, and that the exclusion of bookstore employees from certain defenses violated equal protection. The Buffalo City Court agreed with Illardo, but the Erie County Court reversed. The New York Court of Appeals upheld the statute, finding the affirmative defenses constitutional because the language was sufficiently definite and the classifications had a rational basis.

    Facts

    Illardo sold a magazine deemed obscene to an undercover police officer. He was charged with violating Penal Law § 235.05(1), which prohibits the promotion of obscene material. Illardo did not contest that the magazine was obscene. His defense rested solely on the argument that the affirmative defenses in § 235.15 were unconstitutional, rendering the entire statute invalid.

    Procedural History

    The Buffalo City Court granted Illardo’s motion to dismiss, declaring subsections 1 and 2 of § 235.15 unconstitutional. The People appealed to the Erie County Court, which reversed the City Court’s order. Illardo then appealed to the New York Court of Appeals, which granted leave to appeal.

    Issue(s)

    1. Whether the language of Penal Law § 235.15(1), specifically the terms “scientific,” “educational,” “governmental,” and “other similar justification,” is unconstitutionally vague in violation of due process?

    2. Whether Penal Law § 235.15(2), which provides an affirmative defense to certain non-managerial employees of motion picture theaters but not to bookstore employees, violates the equal protection clause?

    Holding

    1. No, because the terms used are within the compass of the ordinary citizen and the phrase “other similar justification” is limited by the specific words preceding it, thus providing sufficient definiteness.

    2. No, because the legislative classification is not arbitrary and bears a fair and substantial relation to a manifest evil reasonably perceived by the Legislature.

    Court’s Reasoning

    The Court addressed the vagueness challenge, stating that while statutes must be informative on their face, they need not achieve mathematical certainty. The Court noted that the language of the section was taken almost verbatim from the Model Penal Code. It found the terms “scientific”, “educational”, and “governmental” to be within the understanding of the ordinary citizen. The Court applied the principle of ejusdem generis to the phrase “other similar justification,” stating that it is limited by the preceding specific words and does not expand the scope of the section beyond those terms. As the court stated, “Condemned to the use of words, we can never expect mathematical certainty from our language”.

    Regarding the equal protection challenge, the Court stated that legislative classifications must only have a reasonable basis and bear a fair and substantial relation to some manifest evil reasonably perceived by the Legislature. The Court reasoned that the Legislature could have viewed the risk of further dissemination of obscene material by bookstore purchasers as indicative of aggravated culpability, or it may have thought that motion picture theaters employ a larger percentage of non-managerial personnel than bookstores. Therefore, there was a rational basis for the distinction, and the classification did not violate equal protection. The court stated, “the statute might thus permissibly be seen as ‘addressing itself to the phase of the problem which seems most acute to the legislative mind’”.

  • People v. Kirkpatrick, 32 N.Y.2d 17 (1973): Knowledge of Obscenity Inferred from Handling and Displaying Material

    People v. Kirkpatrick, 32 N.Y.2d 17 (1973)

    A bookseller’s knowledge of the obscene content of material can be inferred from the circumstances of its sale, including the conspicuous nature of the material, the seller’s handling of the material, and the seller’s role in ordering and displaying the material.

    Summary

    Defendants, bookstore employees, were convicted of selling obscene material. The trial court found that the magazine “Zap No. 4” was obscene and that the defendants had knowledge of its contents, both through a statutory presumption and an inference drawn from the evidence. The Court of Appeals affirmed the conviction, holding that the circumstances surrounding the sale of the magazine, including its conspicuous display and the defendants’ handling of it, supported an inference of knowledge. The Court also upheld the validity of the statutory presumption that a seller of obscene material knows its contents, finding that it was supported by the probabilities of knowledge in such a situation.

    Facts

    Defendant Dargis managed a bookstore and ordered/reordered “Zap No. 4”, unpacking and shelving copies, and personally sold 20-25 copies. He admitted glancing at the ending pages and noticing the “Adults Only” label. Defendant Kirkpatrick co-managed a bookstore. He ordered 150 copies of “Zap No. 4” and personally sold 25-30 copies. The magazine had distinct, similar drawings throughout.

    Procedural History

    Defendants were convicted in the trial court for violating Penal Law § 235.05 for selling obscene material. The Appellate Term affirmed the convictions. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the evidence was sufficient to establish that the booksellers knew of the obscene contents of the magazine.
    2. Whether the statutory presumption that a seller of obscene materials knows the contents of what they sell is valid (Penal Law, § 235.10, subd. 1).

    Holding

    1. Yes, because the trial court properly inferred knowledge from the defendants’ handling, ordering, and selling of the magazine, as well as its conspicuous display.
    2. Yes, because the statutory presumption is based on the probabilities of knowledge and is not unconstitutional.

    Court’s Reasoning

    The court reasoned that an inference of knowledge can be drawn from possession of contraband, especially when the possessor is actively involved in its sale and distribution. The court cited People v. Reisman, stating, “Generally, possession suffices to permit the inference that the possessor knows what he possesses… This, of course, is an elemental inference based on common experience and all but universal probabilities.” The court emphasized that the defendants’ actions in ordering, unpacking, displaying, and selling the magazine, combined with its “conspicuous display,” supported the inference of knowledge. The court also upheld the statutory presumption of knowledge, finding that it was based on a rational connection between the act of selling obscene material and the likelihood that the seller is aware of its contents. The court noted that this presumption does not eliminate the need for the prosecution to prove guilt beyond a reasonable doubt. The court addressed concerns about censorship, referencing Smith v. California, but distinguished that case by noting that the New York statute allows for a defense based on lack of knowledge. The court stated, “Eyewitness testimony of a bookseller’s perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial”. The court also mentioned the practicality of enforcing obscenity laws, stating that it “behooves the courts to sustain rational efforts at control and not, indirectly on attenuated constitutional speculations, to overthrow serially every restrained effort at control.”

  • People v. Talerico, 27 N.Y.2d 231 (1970): Obscenity Laws & Sales to Minors

    People v. Talerico, 27 N.Y.2d 231 (1970)

    A state statute may prohibit the sale of materials obscene to minors without violating the First Amendment, even if it doesn’t require proof that the seller knew the buyer was a minor, so long as the seller had knowledge of the obscene nature of the material.

    Summary

    Talerico was convicted under a New York law for selling pornographic material to a minor. He argued the law was unconstitutionally vague and violated the First Amendment because it didn’t require proof he knew the buyer was a minor. The New York Court of Appeals upheld the conviction, reasoning that the statute clearly defined prohibited material, required knowledge of the material’s obscene nature, and that imposing strict liability for age was a reasonable means to protect minors, not an unconstitutional burden on free speech.

    Facts

    A 17-year-old, working with “Operation Yorkville,” bought two “girlie” magazines from Talerico’s cigar store. The magazines, titled “Candid,” featured sexually explicit content and were marketed as sexually stimulating. The magazine cover stated, “Sale To Minors Forbidden.” Talerico sold the magazines to the minor after looking at them and pricing them.

    Procedural History

    Talerico was convicted under Section 484-i of the Penal Law for selling pornographic material to a minor. He appealed, arguing the statute was unconstitutional. The New York Court of Appeals affirmed the conviction, upholding the statute’s validity.

    Issue(s)

    1. Whether Section 484-i of the New York Penal Law is unconstitutionally vague, violating due process?

    2. Whether the statute’s failure to require proof of scienter (knowledge) regarding the purchaser’s age violates the First and Fourteenth Amendments?

    Holding

    1. No, because the statute provides reasonably ascertainable standards of guilt readily determinable by men of reasonable intelligence.

    2. No, because imposing strict liability for the sale of obscene material to minors, after establishing scienter of the material’s obscenity, is a reasonable regulation and doesn’t unduly restrict free speech.

    Court’s Reasoning

    The court reasoned that Section 484-i clearly defines the type of material it prohibits, focusing on material “posed or presented in such a manner as to exploit lust for commercial gain” and appealing to the lust or sexual curiosity of minors. This excludes legitimate works of art or educational texts. The court emphasized that the statute requires knowledge of the material’s obscene character, satisfying the Smith v. California standard. The court distinguished between requiring knowledge of the material’s content and requiring knowledge of the purchaser’s age. Imposing strict liability for age, the court reasoned, doesn’t unduly burden free speech because it only requires sellers to inquire about age in doubtful cases, a far less onerous burden than requiring them to inspect every piece of material they sell. The court quoted Smith v. California, stating, “The question then is not one of absolutes—it is one of reasonableness in relation to the legitimate end to be obtained. We think the burden of the statute neither unduly restricts dissemination of protected matter nor unduly inhibits receipt by those who are constitutionally entitled to receipt.” The court concluded that protecting minors from obscenity is a legitimate state interest, and the statute’s method is reasonably tailored to achieve that goal without unduly infringing on First Amendment rights. The court referenced Ginzburg v. United States, noting that the accused publications were openly advertised to appeal to the erotic interest of their customers.

  • 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.

  • Larkin v. G.P. Putnam’s Sons, 14 N.Y.2d 399 (1964): Establishes Standards for Obscenity and Freedom of the Press

    Larkin v. G.P. Putnam’s Sons, 14 N.Y.2d 399 (1964)

    A book should not be suppressed as obscene unless it is demonstrably without redeeming social value and appeals to prurient interest, judged by contemporary community standards, considering the work as a whole.

    Summary

    This case involved an action by the Corporation Counsel of New York City and district attorneys seeking to enjoin the book publisher G.P. Putnam’s Sons from selling and distributing “Memoirs of a Woman of Pleasure” (“Fanny Hill”), arguing that it was obscene under New York law. The trial court dismissed the complaint, but the Appellate Division reversed, finding the book obscene. The New York Court of Appeals reversed the Appellate Division, holding that “Fanny Hill” did not warrant suppression because it possessed slight literary value, offered insight into 18th-century London, and was unlikely to adversely affect contemporary values. The court emphasized the importance of constitutional freedom of the press and the need to resolve doubtful cases in favor of publication.

    Facts

    Defendant G.P. Putnam’s Sons published and distributed “Memoirs of a Woman of Pleasure” (Fanny Hill), a book written in 1749. The Corporation Counsel of New York City and district attorneys brought an action under Section 22-a of the Code of Criminal Procedure, claiming the book was obscene, lewd, lascivious, filthy, indecent, or disgusting. Testimony was presented at trial regarding the book’s literary merit and social value. Some critics, writers, and teachers testified the book had merit, while others held differing opinions.

    Procedural History

    The trial court dismissed the complaint. The Appellate Division reversed and granted the injunction sought by the plaintiffs. G.P. Putnam’s Sons appealed to the New York Court of Appeals.

    Issue(s)

    Whether “Memoirs of a Woman of Pleasure” (“Fanny Hill”) is obscene under Section 22-a of the Code of Criminal Procedure and whether its sale and distribution can be constitutionally enjoined.

    Holding

    No, because “Fanny Hill” has some literary value, offers insight into the life and manners of mid-18th Century London, and is unlikely to have any adverse effect on the sophisticated values of our century, and because recent Supreme Court decisions indicate that state obscenity statutes cannot constitutionally suppress books of this type.

    Court’s Reasoning

    The court considered several factors, including the book’s slight literary value, its insight into 18th-century London, and its unlikely adverse effect on contemporary values. The court reviewed previous Supreme Court decisions, particularly Roth v. United States, Manual Enterprises v. Day, People v. Richmond County News, and People v. Fritch. The court emphasized that judicial definitions are unsafe vehicles in obscenity cases, highlighting the subjectivity inherent in censorship reviews. The court stated that it must respect and follow Supreme Court decisions regarding freedom of the press. The court noted, “When one looks carefully at the record since 1956 of what on constitutional grounds has been allowed to be printed and circulated, and what has been suppressed, ‘Fanny Hill’ seems to fall within the area of permissible publications.” Further, the court noted that recent Supreme Court decisions had overturned state court decisions that had found books with arguably more objectionable content obscene, such as Grove Press v. Gerstein and Tralins v. Gerstein. The court held that, in light of these precedents, New York was without authority to restrain “Fanny Hill.” The court placed a burden on the censor to justify the exercise of their powers constitutionally and to resolve doubtful cases in favor of freedom to print.