21 Misc. 2d 551 | New York County Courts | 1959
The indictment accuses “ the defendants in the County of St. Lawrence in or about the month of September, 1959, sold and distributed obscene, lewd, lascivious, filthy, indecent and disgusting magazines, which magazines were designed, composed, written and illustrated as a whole to appeal to prurient interest and to exploit the same commercially ’ ’, pursuant to section 1141 of the Penal Law, and 31 additional counts alleging a specific issue of a specific magazine. The defendants demurred on the grounds that the facts stated do not constitute a crime. Therefore, the resolution of this demurrer is dependent upon the concept of crime.
A crime is an inexcusable act committed by an individual in excess of his personal liberties and injures person or property within the victims’ personal freedom or property right.
Liberty and freedom are our heritage starting with the Magna Oharta (“ 2. We also have granted to all the freemen of our kingdom, for us and for our heirs for ever, all the unwritten liberties, to be had and holden by them and their heirs, of us and our heirs forever ”) and following with the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and pursuit of Happiness.”). The Preamble of the United States Constitution advises that the document was passed to “ secure the Blessings of Liberty to ourselves and
The history of our country has shown an increased awareness
If our criminal law is to harmonize with our profession of constitutional belief in the inviolable individual liberty and freedom, then, as repugnant as it may be to some, we must insure that no individual is punished when innocent, even at the public expense of some unpunished guilty. The horrible alternative of guaranteed punishment to all guilty is the danger of punishing an occasional innocent.
The indictment does not allege behavior beyond the defendants’ protected sphere of freedom.
Obscenity statutes may have been our heritage — as have other “ laws ” which have been tested against our principles of freedom and liberty and then discarded on our upward progress to better law. Obscenity cannot be compared with libel
Subdivision 1 of section 1141 of the Penal Law is contrary to the letter and spirit of the Fourteenth Amendment of the United States Constitution and section 8 of article I of the Constitution of the State of New York and the indictment should be dismissed.
. Roth v. United States, 354 U. S. 476, 509.
“By these standards punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment. Even the ill-starred Dennis case conceded that speech to be punishable must have some relation to action which could be penalized by government. Dennis v. United States, 341 U. S. 494, 502-511. Of. Chafee, The Blessings of Liberty (1956), p. 69. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity 1 * * *
“ The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts hut that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, ‘ The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom.’ Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn. L. Rev. 295, 387.
“If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards.
“‘There are a number of reasons for real and substantial doubts as to the soundness of that hypothesis. (1) Scientific studies of juvenile delinquency demonstrate that those who get into trouble, and are the greatest concern of the advocates of censorship, are far less inclined to read than those who do not become delinquent. The delinquents are generally the adventurous type, who have little use for reading and other non-active entertainment. Thus,
“The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society’s interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control. * * *
“The standard of what offends ‘the common conscience of the community’ conflicts, in my judgment, with the command of the First Amendment that ‘ Congress shall make no law * * * abridging the freedom of speech, or of the press.’ Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned ?
“Any test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment.”
. Both v. United States, 354 U. S. 476, 508.
“When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States.”
. Both v. United States, 354 U. S. 476, 501.
“We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. See Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250, 287. The States’ power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of
. See Footnote No. 1.
. John Stuart Mill, Essay on Liberty, American State Papers, Encyclopedia Britannica, Inc., Vol. 43, p. 270.
“ The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion, That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
“This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral,
“No society in which these liberties are not, on the whole, respected is free, whatever may be its form of government; and one is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as. we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each other to live as seems good to the rest.”
. Both v. United States, 354 U. S. 476, 483.
(1) “In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais V. Illinois, 343 U. S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.”
. Both v. United States, 354 U. S. 476, 484.
“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. * '* *
“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained ”.
. Both v. United States, 354 TJ. S. 476, 507.
“ I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is ' utterly without redeeming social importance.’ ”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 207.10, p. 5.
“ Punishment for obscenity was a matter almost exclusively within the jurisdiction of the Church in England prior to the Eighteenth Century. As late as 1708 it was held that the writing of an obscene book is not indictable”.
Roth v. United States, 354 U. S. 476, 482 — 483.
“As early as 1712, Massachusetts made it criminal to publish ‘ any filthy, obscene, or profane song, pamphlet, libel or mock sermon ’ in imitation of mimicking of religious services.”
. Roth v. United States, 354 U. S. 476, 495.
“ To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 207.10, p. 7.
“A modern law relating to obscenity must also reflect changes in men’s views of the importance of freedom of expression in ideas and in art. Since any effort to repress obscenity involves some restriction of the freedom, those who set a high value on the freedom will be cautious about extending obscenity controls.”
. Bible, Exodus 20 :3-17.
. Bible, Matthew 22:36-40. Mark 12:29-31.
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 270.10, p. 8.
“Much that is sinful and immoral in the opinion of large groups in the community must nevertheless be omitted from the penal code because other equally large groups have different views, or because the threat to society is so minimal that prosecutors and juries will simply disregard the law.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 270.10, p. 7.
“Public order probably depends considerably on religion and morality in general; but there is very little information as to the influence of obscenity on behavior.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 270.10, p. 22.
“ (b) Minority Definition: Tendency to Cause Criminal Behavior; Clear and Present Danger ”.
“ Preventing sexual (or other) misbehavior would be a rational goal for obscenity legislation and a few notable recent opinions sought to relate the definition of obscenity directly to tendency to incite crime. This position was powerfully presented by' Judge Curtis Bok in Commonwealth v. Gordon, where he adapted to the law of obscenity the ‘ clear and present danger ’ doctrine, taken from the field of sedition law where it operates both as a constitutional limitation of the legislative power to repress anti-government utterance and as a rule of statutory construction. His opinion would limit obscenity to cases:
“
“Unfortunately, both for those who seek to confine obscenity laws to an identifiable evil and for those who seek to expand controls with the hope of reducing juvenile delinquency, we know little or nothing about the consequences of reading obscene or shocking literature. The verdict of two eminent scholars on this point is as follows: ' Although the whole structure of obscenity censorship hinges upon the improved assumption that “ obscene ” literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assumption by singling out as factor for study the effect of sex literature upon sex conduct.’ Indeed, for an undetermined number of individuals, the writing or reading of obscenity may be a substitute for rather than a stimulus to physical sexuality.”
Both v. United States, 354 U. S. 476, 486-487.
“But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at p. 266:
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 207.10, pp. 10, 11, 13.
“We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which ' tends to corrupt or debase.’ If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehavior follows from contact with obscenity. Evidence of such consequences is lacking.
“ Evidence as to any significant relationship between comic book horrors and delinquent juvenile behavior consists largely of undocumented opinion by laymen; the weight of professional opinion based on such studies as have been made is against the hypothesis.
“ Judge Frank’s concurring opinion marshals the literature to demonstrate that no connection between obscenity and misbehavior has ever been proved.”
Pornography and the Law — Drs. Eberhard & Phyllis Kronhausen.
“The body of clinical and psychological experience to date strongly points to much deeper causative factors in violent crime than reading. For example.
“ There is much corroborative evidence to back up Dr. Karpman’s argument in favor of the therapeutic effect of expressing antisocial impulses (sexual or otherwise) through the operation of fantasy instead of by direct action. The whole concept of ‘ catharsis ’ or ‘ ab-reaetion ’ of such tendencies is a therapeutic setting — in the ease of children, with various play materials, destructible dolls, darts, toy guns, etc., or in the ease of adults, with symbolic representations of strong emotional reactions, free indulgence in otherwise unacceptable fantasies, swearing and cursing, expression through art media or in psycho-drama — are standard accepted clinical practice.
“ Our experience in the projective testing of schizophrenics completely coincides with that of other clinicians with regard to the hostility content in the fantasy stories the patients tell in response to the pictures of the Thematic Apperception Test. This problem has its eminently practical side in decisions about the hospital discharge of mental patients who express, in tests such as the TAT, the Rorschach inkblot test, Sentence Completion Tests, etc. hostile and violent fantasies, often with a decidedly sexual flavor.
“ The inexperienced clinician in these situations is frequently tempted to assume that patients with aggressive fantasies are greater discharge risks than those who only express benign and lovely ideas. Contrary to this assumption, clinical experience has led to the conclusion that those patients whose projective test records show a conspicuous absence of hostile and aggressive, suicidal, or sexual fantasies, are more apt to act out their antisocial impulses than those who are able to express them verbally.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957, Comments, § 207.10, p. 8.
“1. * * * Finally, a modern obscenity law must reflect modern views of the purpose and proper field of operation of criminal law. Criminal law is not, and cannot be, a code defining right behavior.”
Both v. United States, 354 U. S. 476, 504.
“ Congress has no substantive power over sexual morality.”
. Both v. United States, 354 U. S. 476, 488.
“ The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 207.10.
“ 4. * * * In support of this position it can be argued that there is no proof that obscenity leads to anti-social behavior, and that adults at least should have the right to procure what pleases them and does not harm others ” (p. 15, italics supplied).
“ * * * as wui he seen below in the discussion of criminal tendency tests, no connection between obscenity and misbehavior has ever been established ” (p. 21; italics supplied).
Both v. United States, 354 U. S. 476, 513-514.
“ I do not think that the problem can be resolved by the Court’s statement 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. Giboney v. Empire Storage, 336 U. S. 490, 498; Labor Board v. Virginia Power Co., 3Í4 U. S. 469, 477-478. As a people we cannot afford to relax that standard.”
. American Law Institute Model Penal Code (Tentative Draft No. 6, 1957), Comments, § 207.10, p. 9.
“ Furthermore, repression by criminal law may function more liberally than extra-legal controls by private boycott, which might be employed even more extensively than now if no legal remedies were available.”
. See 6 above.
. See 15 above.