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

605 F.2d 41, 4 Media L. Rep. (BNA) 1968, 1979 U.S. App. LEXIS 17701

• Court: Court of Appeals for the Second Circuit
• Decided: January 10, 1979
• Docket: Nos. 780, 950 and 951, Dockets 77-7603, 77-7623 and 78-7027
• Status: Published

Opinions

VAN GRAAFEILAND, Circuit Judge:

In 1975, appellee, St. Martin’s Press, commenced publication of the English edition of a book called Show Me!, originally published in Germany by an “educationally and religiously oriented publishing-firm.” The book consists largely of full-page photographs of naked adults and children, and a number of the photographs are of a sexual or sex-oriented nature. The publishers assert that the photographs, which were taken in Germany between 1969 and 1973, have “educational, ethical, and psychological significance.”

In 1977, the Legislature of the State of New York, declaring that “the care of children is a sacred trust” and that the “public policy of the state demands the protection of children from exploitation through sexual performances”, added Article 263 to the New York Penal Law. Section 263.15 of Article 263 makes it unlawful knowingly to promote any performance that includes sexual conduct by a child less than sixteen years of age. “Sexual conduct” is defined in Article 263 to include “masturbation”; “performance” is defined to include “photographs”; “promote” is defined to include “sell”, “publish”, and “circulate”.

On October 28, 1977, twelve days prior to the effective date of Article 263, St. Martin’s Press and two bookstore owners commenced this action seeking a declaration that section 263.15 is unconstitutional on its face and may not constitutionally be applied to the publication and sale of Show Me!. Plaintiffs also sought an injunction preliminarily and permanently restraining defendants from enforcing the statute against plaintiffs and their customers, and an award of costs, disbursements, and attorneys’ fees. By order to show cause, plaintiffs moved for preliminary injunctive relief. Appellants cross-moved to dismiss the complaint on the ground that no justiciable controversy was alleged and that there was no proper case or controversy for the district court to determine.

Affidavits were submitted by both appellants and appellees, and the district court heard oral argument. On November 28, 1977, the district judge issued a written opinion, reported at 440 F.Supp. 1196, which was followed by the order here on appeal. The order granted appellees’ motion for a preliminary injunction and denied appellants’ motion to dismiss. We reverse.

For many years, the Supreme Court, under its self-imposed rules, refused to pass upon the constitutionality of state statutes where the constitutional question might be avoided through statutory construction. See Railroad Commission v. Pullman Co., 312 U.S. 496, 500-01, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Although this rule has not been totally abrogated by recent decisions, see Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 510-13, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972), it is not inevitably applied when the challenged statutes abridge free expression on their face. See Dombrowski v. Pfister, 380 U.S. 479, 489-90, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Another longstanding rule of the federal courts has been that they will not use their equitable powers to interfere with or embarrass criminal proceedings in state courts, save in exceptional cases. Douglas v. City of Jeannette, 319 U.S. 157, 162-64, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). This doctrine, too, has been substantially eroded by the restriction of its application, to ongoing criminal proceedings. See Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

There remains, however, Art. Ill of the Constitution, which limits the jurisdiction of federal courts to cases or controversies. Federal courts have no power per se to declare statutes unconstitutional. Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The constitutional requirement of a justiciable controversy is met only where plaintiff has sustained, or is in immediate danger of sustaining, some direct injury, as a result of which there arises an honest and active antagonistic assertion of rights. O’Shea v. Littleton, 414 U.S. 488, 493-95, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). There must be a genuine threat of enforcement of a disputed state criminal statute before a case or controversy involving that statute may be said to exist. Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Steffel v. Thompson, 415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). For purposes of standing, “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972); see Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

In the instant case, the district attorneys of three New York counties have been enjoined, upon penalty of contempt, for doing nothing, absolutely nothing. They have not prosecuted the plaintiffs. They have not threatened to prosecute the plaintiffs. They have shown no interest in or concern over plaintiffs’ book. Clearly, plaintiffs had no reason to believe that appellants intended to prosecute them under section 263.15 for disseminating their “educational” work.

We disagree with the district court’s holding that appellees’ book comes within the language of section 263.15, “and therefore the absence of affirmative conduct on the part of defendant prosecutors is not dispositive.” 440 F.Supp. at 1201. The photograph of a young man masturbating, which appellees contend brings them within the reach of the statute, was taken in Germany before 1973, and section 263.15 was not enacted until 1977.¹ We cannot believe that the New York courts would construe section 263.15 to apply to children throughout the world, regardless of the moral and legal standards of the country in which they live, and would disregard the fact that the photograph in question was taken years pri- or to the enactment of the statute and the photograph’s “promotion”. We fail to see how the New York legislature in 1977 could have had any legitimate concern with the welfare of German children in the years before 1973, and we believe the New York courts would hold that the legislature had none.²

The district court’s holding did not result from a “clash of adversary argument.” See United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 5 L.Ed.2d 476 (1960). Appellees, alone, take the position that section 263.15 “unquestionably applies” to their book. There is, of course, no litigious controversy unless appellants contend that it does not apply. Appellants refuse, however, to make this anomalous argument, limiting themselves to the “academic” observation that the statute may not be applicable to appellees, a posture which the district court described as “non-committal”. Appellants likewise take no position concerning the statute’s constitutionality, because, from their standpoint, this question too is academic. Their position can be summed up in the remarks that counsel for the District Attorney of New York County addressed to the trial court:

I’m frankly a little at a loss to understand why it is that the District Attorney of New York County is here before your Honor. I know procedurally we were served and there is a lawsuit and we are here but it’s a suit to enjoin us from doing something which we have never done in the past, which we have not threatened to do and which we don’t contemplate doing and more than that I can’t say.

The district court misinterprets New York law in holding that appellants have a duty to enforce section 263.15 as written and that they would be unable to “obviate the threat” of prosecution in this case. 440 F.Supp. at 1202. The choice between prosecuting and not prosecuting is entirely within the discretion of a district attorney. People v. Eboli, 34 N.Y.2d 281, 289, 357 N.Y.S.2d 435, 313 N.E.2d 746 (1974); In re Hassan v. Magistrate’s Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (Sup.Ct.1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dep’t), motion for leave to appeal dismissed, 8 N.Y.2d 750, 201 N.Y.S.2d 765, 168 N.E.2d 102, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed.2d 68 (1960). A district attorney may, if he so decides, withhold prosecution forever. McDonald v. Goldstein, 191 Misc. 863, 865, 83 N.Y.S.2d 620 (Sup.Ct.), aff’d, 273 App.Div. 649, 79 N.Y.S.2d 690 (2d Dep’t 1948).

There is nothing in the record to indicate that any appellant plans to prosecute appellees under section 263.15 for publishing and selling their book. In short, this is a case of the wicked fleeing where none pursue.³ It does not involve a case or controversy which justifies intervention by a federal court.⁴ The order appealed from is reversed, and the complaint against appellants is dismissed.

1 . Plaintiffs offered no proof supporting the allegation in their complaint that the “child” in question was under the age of sixteen. The district court made no express finding in this regard, but apparently accepted plaintiffs’ “concession” that the subject of the photograph fell within in the age limitations of § 263.15. 440 F.Supp. at 1201. Our own examination of the photograph does not prepare us to accept plaintiffs’ concession so readily. No expertise in anatomy is needed to determine that, if the mature model for the photograph was not sixteen at the time he posed, he was surely sixteen by the time the statute was enacted and the photograph was “promoted”.

2 . The fact that the district court and this Court are in disagreement as to the interpretation of § 263.15 illustrates well why federal courts should try to abstain from interpreting unclear state statutes when the state courts have not yet spoken. Where there has been no harassment of anyone under the statute and statutory construction by the state courts might eliminate the constitutional issue, abstention is the appropriate course to follow. Bellotti v. Baird, 428 U.S. 132, 146-47, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Colorado River Water Conservation District v. United States, 424 U.S. 800, 816-17, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

3 . Proverbs 28:1.

The district court did not find that appellees had any ulterior motive in bringing this suit, and we do not imply any. We would be blind, however, not to recognize the publicity value of litigation concerning an out-of-the-ordinary book such as the one plaintiffs are attempting to sell. Absent a clearly recognizable threat against the publication, litigation of this sort should not be encouraged.

4 . The requirement that there be a “genuine threat of prosecution” applies with equal force to the issuance of an injunction. Wooley v. Maynard, 430 U.S. 705, 710 (1977). An injunction is “strong medicine”, Perez v. Ledesma, 401 U.S. 82, 111 (1971), and an “obvious irritant”, County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 190 (1959). It will issue against the enforcement of a state criminal statute only in “exceptional circumstances” and upon a clear showing of necessity. Wooley v. Maynard, supra, 430 U.S. at 712 (citing Spielman Motor Co. v. Dodge, 295 U.S. 89, 95 (1935)).

This Court adheres to the principle that a defendant will not be enjoined from doing what he is not attempting to do. Cortright v. Resor, 447 F.2d 245, 254 (2d Cir. 1971), cert. denied, 405 U.S. 965 (1972).