St. Martin's Press, Inc. v. Carey

TIMBERS, Circuit Judge,

dissenting:

The rather long period of gestation for this case — more than 13 months since the preliminary injunction was entered in the district court on December 7,1977 — perhaps is justified by what appears to be the clear import of the majority opinion, namely, that the appellant district attorneys have not prosecuted the appellee book publisher and book sellers under N.Y. Penal Law § 263.15 (McKinney Supp.1977); and they do not intend to prosecute them in the event they sell and distribute the book Show Me! or any of the material therein.1 *46 This being so, as a practical matter, one might wonder what harm would result if the injunction were left undisturbed and why it has required 9 months for this Court to resolve the case on appeal.

In view of the majority opinion, I believe that appellees have been impermissibly forced to choose between their right of free expression guaranteed by the First Amendment and the threat of imprisonment imposed by N.Y. Penal Law § 263.15. Accordingly, I respectfully dissent.

Judge Ward’s careful, comprehensive opinion, 440 F.Supp. 1196 (S.D.N.Y.1977), presents a well reasoned explanation of why this case is appropriate for preliminary injunctive relief. I agree with it and would affirm on that opinion, adding only the following observations as to why I regard today’s majority opinion as particularly unfortunate.

This case arises from New York State’s commendable efforts to control the ugly traffic in child abuse. Toward that end, the Legislature in 1977 enacted new Article 263 of the New York Penal Law, defining offenses involving the use of a child under 16 in a sexual performance or the promotion of such a performance. Chapter 910, 1977 N.Y.Laws. The crime was very broadly defined to include acts to “procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise” a photograph or other visual representation of a sexual performance by a child. Stringent penalties — up to seven years in jail — were provided.

The Legislature, finding “that there has been a proliferation of exploitation of children as subjects in sexual performances,” § 1, Chapter 910, 1977 N.Y.Laws, went on to issue a crusading call for the elimination of the target vice in every manifestation:

“The legislature further finds that the sale of these movies, magazines and photographs depicting the sexual conduct of children to be so abhorrent to the fabric of our society that it urges law enforcement officers to aggressively seek out and prosecute both the peddlers of children and the promoters of this filth by vigorously applying the sanctions contained in this act.” (emphasis added).

Id.

One such sanction is set forth in § 263.15, which makes criminal the knowing promotion of the sexual performance of a child. Under the very broad definitions of § 263.-00, “performance” includes a photograph, and “promotion” includes the sale of a book containing a photograph, even though both book and photograph are not obscene. Cf. N.Y. Penal Law § 263.10 (McKinney Supp. 1977) (dealing with promotion of an obscene sexual performance by a child). The district court preliminarily enjoined enforcement of § 263.15 pending the trial of plaintiffs’ claim that it was both unconstitutional on its face and unconstitutional as applied to them.

Appellee St. Martin’s Press is the publisher in the United States of the sex education book Show Me!. Appellees Crutcher & Newman and Ince are booksellers who stocked it in their bookstores. The book advocates a “realistic and explicit presentation” of sex to children to avoid the creation of feelings of fear and guilt, according to the president of St. Martin’s. Ostensibly to achieve that goal, the book is illustrated with photographs of children and adults engaged in various types of sexual activity. The children depicted vary in age. The photographs were taken by an American in West Germany between 1969 and 1973. The sale and possibly the production of Show Me! appear to fall squarely within the conduct the Legislature intended to prohibit by enacting Article 263 2

*47 Shortly before Article 263 was to take effect, appellees commenced this action, seeking to have the statute declared unconstitutional and to restrain the district' attorneys of New York, Westchester and Suffolk Counties from prosecuting them under § 263.15 for selling Show Mel.

The majority concludes that, because no state prosecution of Show Me! appears on the immediate horizon, appellees’ assertions of deprivation of their constitutional rights are insubstantial — that “they flee where none pursue.” In my view, however, today’s majority decision forces appellees to choose between exercising their constitutional rights and conforming to New York law, to the injury of both — precisely the dilemma recognized by the Supreme Court in Steffel v. Thompson, 415 U.S. 452, 462 (1974):

“[Wjhile a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. Dombrowski v. Pfister, 380 U.S. 479, 490 (1965).”

With deference, I think the majority’s focus here is wide of the mark when it says in effect that, since no state prosecution has been commenced, appellees are unhindered in the exercise of their rights and the federal courts must stay their hands.

To me, the statute, and-the legislative intent underlying the statute, are so broad and so clear that they provide the guaranty of actual adverse interest, without which we might otherwise require a prosecution. The impact of this statute on appellees is no mere “subjective chill,” Laird v. Tatum, 408 U.S. 1, 13-14 (1972); it is an ominous winter storm which already has blanketed the protected activities of appellees. It is undisputed that distribution of Show Me! has been halted by the prospect of criminal liability. Appellees assuredly have sustained “injury in fact,” Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970), sufficient to create the adversity of interests necessary for an Article III case or controversy. Pierce v. Society of Sisters, 268 U.S. 510 (1925).

The absence of any ongoing state prosecution, rather than creating a barrier to equitable relief, simply assures that there is no risk of intercourt friction or duplicative litigation arising from the instant federal action. Doran v. Salem Inn, Inc., 422 U.S. 922, 930-31 (1975); Steffel v. Thompson, supra, 415 U.S. at 462. See generally Note, The Implication of the Younger Cases for the Availability of Federal Equitable Relief When No State Prosecution Is Pending, 72 Colum.L.Rev. 874 (1972).

The determination of whether a case or controversy exists is not made in a vacuum free of the substantive law involved in a particular case. Compare United Public Workers v. Mitchell, 330 U.S. 75 (1947) (decision on constitutionality of Hatch Act avoided on ripeness grounds where workers had proposed merely to conduct certain political activities) and Adler v. Board of Education, 342 U.S. 485, 497 (1952) (Frankfurter, J., dissenting, opposed reaching constitutional challenge to state law which allowed dismissal of teachers for advocating subversive doctrines where plaintiffs were two parents, two taxpayers and four teachers, who alleged neither prosecutions under state law nor having engaged in the conduct it prohibited) with Adler, supra, 342 U.S. at 491-96 (majority reached the merits) and Adler, supra, 342 U.S. at 508 (Douglas, J., dissenting, favored reaching merits but to find statute unconstitutional). And, where the substantive law involved is so clear that the factual context of a particular case is relatively unimportant, the justiciability thresholds have been lowered. See *48 generally Comment, Threat of Enforcement — Prerequisite of a Justiciable Controversy, 62 Colum.L.Rev. 106 (1962).

Particularly where First Amendment rights are involved, courts must be sensitive to the first whisper of a chilling wind — the whisper picked up first by the beeches before the pines. The “chill” here was not that felt by appellees alone, Laird v. Tatum, supra; nor is this a case where appellees have scoured the statute books in an effort to obtain judicial repeal of statutes from which they felt that a future menace of harassment might arise. Boyle v. Landry, 401 U.S. 77, 81 (1971). Rather, appellees here were faced with a blunt, hard, choice: on the one hand, to exercise their constitutionally guaranteed right of expression— even at the risk of prison or fines or both; or, on the other hand, to maintain their silence — at the loss of economic benefit, possibly irreparably, thus sacrificing “a prized American privilege.” Bridges v. California, 314 U.S. 252, 270 (1941).

It was to avoid this Hobson's choice that appellees invoked the aid of the federal courts. The case is not one where an old law has been almost forgotten. Poe v. Ullman, 367 U.S. 497 (1961). Article 263 is “recent and not moribund.” Doe v. Bolton, 410 U.S. 179, 188 (1973). Similarly, the possibility that prosecutors may choose in their discretion not to proceed against Show Me! or any other book under the statute is more than offset by the Legislature’s vehement exhortation that law enforcement officers “aggressively seek out and prosecute . promoters of this filth.” We have before us, therefore, not merely a case where “there will be extreme pressure upon [prosecutors] ... in case of a violation,” Baird v. Bellotti, 393 F.Supp. 847, 852 (D.Mass.1975) (three-judge court), vacated and remanded on other grounds, 428 U.S. 132 (1976); rather, the Legislature here has written that pressure into the very law that is challenged.

Under the extraordinary circumstances of this overly broad statute, coupled with the Legislature’s battle cry for enforcement, the absence of a threatening docket entry in the state courts should not preclude a finding of ripeness in the federal courts. Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 86 n. 1 (1977). “[T]he ultimate impact of the challenged action on-the petitioner is sufficiently probable and not too distant ....”, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 154-57 (1951) (Frankfurter, J., concurring).

In view of the double-barrelled attack by this statute on both the production and promotion of “this filth”, I do not share my colleagues’ confidence that the New York courts would decline to apply New York law to this case because the production took place abroad before the statute was enacted. It is undisputed that promotion of the book, within the meaning of the law, took place in New York after Article 263 was enacted. The New York Legislature, as my colleagues assert, may have no interest in the welfare of German children photographed almost a decade ago. But it was not merely direct harm to the depicted children which was the concern of Article 263. An equally important goal appears to have been the elimination of the derivative harm to society at large.

Assuming arguendo that it were to be determined by the highest court of New York that the taking of the pictures was beyond the scope of the law, that would not foreclose a prosecution based on the present promotion, by sale, of those pictures in New York. The promotion provision of the law cannot be reconciled so easily with the First Amendment, unless the statute’s goal of preserving the fabric of society from such materials is to be forgotten entirely.3

I would affirm the judgment of the district court in all respects on the excellent opinion of Judge Ward. From the refusal *49 of the majority to do so, I respectfully dissent.

. The corollary to this of course is that, in the event the district attorneys should change their minds and either threaten or commence prose *46 cution under the statute, nothing in today’s majority opinion would foreclose appellees from seeking injunctive relief in the district court.

. Appellees urged before the district court that the statute not only squarely included Show Me!, but in fact had been aimed specifically at suppressing it, relying on a legislative committee meeting at which the book was circulated and a newspaper account. Noting that this “legislative history” was hearsay in nature, Judge Ward concluded that it was “insufficient to show that § 263.15 was enacted with the legislative intent to ban specifically the sale of Show Me!.” 440 F.Supp. at 1201 n.8.

. Indeed, the constitutionality of the entire statute recently has been upheld by the New York Supreme Court in the context of a criminal prosecution. One searches the opinion in vain for any reference to . whether New York has sufficient contacts with the child-exploiting films involved apart from their having been sold to an undercover agent in New York. People v. Ferber, 409 N.Y.S.2d 632 (Sup.Ct., N.Y.Co., 1978).