
    The People of the State of New York, Respondent, v. The Bookcase, Inc., et al., Appellants.
    Argued March 31, 1964;
    decided July 10, 1964.
    
      Emanuel Redfield for appellants.
    I. The statute inhibits the freedom of the press. (Larkin v. Putnam’s Sons, 40 Misc 2d 28; Kingsley Books v. Brown, 354 U. S. 436; Winters v. New York, 333 U. S. 507; Lanzetta v. New Jersey, 306 U. S. 451; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Roth v. United States, 354 U. S. 476; Kingsley Pictures Corp. v. Regents, 360 U. S. 684; Manual Enter
      
      prises v. Day, 370 U. S; 478; Boyd v. United States, 116 U. S. 616; Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters, 268 U. S. 510.) II. The burden of ascertaining age impinges on the liberty of expression. (Smith v. California, 361 U. S. 147; Thomas v. Collins, 323 U. S. 516; Matter of Ross’s Dairies v. Rohan, 10 A D 2d 987, 11 A D 2d 714; Matter of Sheibar v. Yew York State Liq. Auth., 4 A D 2d 442, 4 N Y 2d 984; Matter of Erin Wine & Liq. Store v. O’Connell, 283 App. Div. 443, 307 N. Y. 768; People v. Mishlanie, 24 Misc 2d 277; People v. Marks, 146 App. Div. 11; Wieman v. Updegraff, 344 U. S. 183.) III. The statute is vague and indefinite. (Holmby Prods. v. Vaughn, 350 U. S. 870.) IV. The conviction of defendant Weisfeld and the corporation cannot be sustained; otherwise they will be denied due process of law. (People v. Brainard, 192 App. Div. 816; People v. Dalsis, 5 A D 2d 28; People v. Lewis, 138 App. Div. 673; People v. Rochester Ry. & Light Co., 195 N Y. 102.)
    
      Frank S. Hogan, District Attorney (Michael Juviler and H. Richard Uviller of counsel), for respondent.
    I. Defendants’ guilt was proved beyond a reasonable doubt. (People v. Rochester Ry. & Light Co., 195 N. Y. 102; People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N. Y. 25; People v. Dalsis, 5 A D 2d 28; United States v. Roth, 237 F. 2d 796, 354 U. S. 476; Price v. United States, 165 U. S. 311; Andrews v. United States, 162 U. S. 420; Rosen v. United States, 161 U. S. 29; Grimm v. United States, 156 U. S. 604; Board of Comrs. of Excise of Onondaga County v. Backus, 29 How. Prac. 33; People v. Williams, 38 Misc 2d 80; People v. Conrad, 102 App. Div. 566, 182 N. Y. 529; People v. Lerner, 270 App. Div. 828; Ross v. People, 17 Hun 591; People v. Hartstein, 49 Misc. 336; Hanish v. United States, 227 F. 584, 239 U. S. 645.) II. Section 484-h of the Penal Law is a valid exercise of the State police power and violates no constitutional provision. (People v. Richmond County News, 9 N Y 2d 578; Sunshine Book Co. v. Summerfield, 249 F. 2d 114, 355 U. S. 372; One, Inc., v. Olesen, 241 F. 2d 772, 355 U. S. 371; Kovacs v. Cooper, 336 U. S. 77; United States v. Harriss, 347 U. S. 612; Jordan v. De George, 341 U. S. 223; Beauharnais v. Illinois, 343 U. S. 250; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Breard v. Alexandria, 341 U. S. 622; United Public Workers v. Mitchell, 330 U. S. 75; Near v. 
      Minnesota, 283 U. S. 697; State v. Settle, 90 R. I. 195; Paramount Film Distr. Corp. v. City of Chicago, 172 F. Supp. 69; Prince v. Massachusetts, 321 U. S. 158.)
    
      Horace S. Manges, Jacob F. Raskin and Paul N. Lazarus, 111, for American Book Publishers Council, Inc., amicus curice.
    
    I. Section 484-h of the Penal Law is unconstitutional in that it renders criminally actionable the circulation of publications that are not obscene. (Smith v. California, 361 U. S. 147; Roth v. United States, 354 U. S. 476; Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 N Y 2d 237; Winters v. New York, 333 U. S. 507; Butler v. Michigan, 352 U. S. 380; People v. Richmond County News, 9 N Y 2d 578.) II. Section 484-h is unconstitutionally vague and indefinite. (Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Superior Films v. Department of Educ., 346 U. S. 587; Holmby Prods. v. Vaughn, 350 U. S. 870.)
   Van Voorhis, J.

Appellants have been convicted under section 484-h of the Penal Law of selling to a minor under 18 years of age a copy of a book entitled “ Memoirs of a Woman of Pleasure ” (“Fanny Hill”). Another case, decided at the same time, involves whether this book is obscene under section 1141 of the Penal Law. That question is not before the court upon this appeal. Both counsel for the appellant and the Assistant District Attorney concede that the conviction of these defendants does not depend upon any finding or conclusion that this book is obscene. The determination that the book is not obscene therefore does not exonerate these defendants from the present charge. Even if the book is not obscene within the meaning of the Constitution, the narrative is mainly concerned with accounts of extra-marital sexual relationships. The conviction of defendants is under that portion of section 484-h of the Penal Law which purports to prohibit the sale to a minor under 18 years of age of “ any book * * * the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality ’ ’. The constitutional attack on this statutory provision is based on the grounds that it abridges freedom of speech and of the press in violation of the First Amendment to the Constitution of the United States and that it violates the Fourteenth Amendment by denying due process of law in that the language is too vague for a criminal statute (Connally v. General Constr. Co., 269 U. S. 385, 391; People v. Firth, 3 N Y 2d 472).

Former subdivision 2 of section 1141 of the Penal Law, as construed in People v. Winters (294 N. Y. 545), was held by the Supreme Court to be unconstitutional in Winters v. New York (333 U. S. 507). -The statute there held to be void prohibited the sale of books and other printed matter “ principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime ”. Our court had construed this statute as limited to the publication of collections of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person ” (294 N. Y., p. 550). The United States Supreme Court said (pp. 519-520): " The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent crimes, the statute is violated. It does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collection of tales of war horrors, otherwise unexceptionable, might well be found to be massed ’ so as to become vehicles for inciting violent and depraved crimes.’ Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Herndon v. Lowry, 301 U. S. 242, 259.”

Again, the court said at page 515: “ There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment.” The Supreme Court also held in the Winters case that the statute in question unconstitutionally limited freedom of expression protected by the principles of the First Amendment (pp. 509-510, 512, 519-520).

Subsequent to the decision by the United States Supreme Court in 1948 in Winters v. New York (supra), several bills were passed by the New York State Legislature seeking to overcome its effect. Two of these, one passed in 1949 and the other in 1952, were vetoed by Governor Thomas E. Dewey upon the ground that they were unconstitutional under the Winters case. The 1952 bill (Assem. Int. No. 2799, Pr. No. 2944) would have prohibited the sale of books or other printed matter “ devoted to the publication and principally made up of pictures, whether or not accompanied by any written or printed matter, of fictional deeds of crime, bloodshed, lust or heinous acts, which tend to incite minors to violent or depraved or immoral acts.”

In his veto message dated April 12, 1952, Governor Dewey said concerning this bill (Public Papers of Governor Thomas E. Dewey, 1952, pp. 259-260):

“It is similar to legislation disapproved by me in 1949 with memorandum (Senate Introductory 1862, Printed Number 2939) and is subject to the same constitutional infirmities inherent in the 1949 proposal and the statute held unenforceable by the Supreme Court. * * *

“ The wording of the present bill is as vague and devoid of specificity as the previous statutory provisions. The minor changes in language do not cure the basic deficiency of the earlier law” as found by the United States Supreme Court in the Winters case.

In signing the present bill, originally enacted as chapter 836 of the Laws of 1955, and later renumbered section 484-h of the Penal Law, Governor Averell Harriman said: ‘ ‘ The constitutionality of some aspects of this bill has been questioned by some, and strongly affirmed by others. In view of the conditions with which we are trying to cope, it seems to me that such questions should be left to the courts for determination.” (Public Papers of Governor Averell Harriman, 1955, p. 282.)

This court is now called upon to cope with one of the more important of these questions.

As was noted in the principal opinion of the Criminal Court of the City of New York, there would have been no occasion for enacting section 484-h of the Penal Law unless it forbade more than was already prohibited by section 1141. “ Section 484-h ”, said the Criminal Court, “ prohibits the sale to minors of books which exploit, are devoted to, or deal principally in descriptions of illicit sex or sexual immorality. There is no such prohibition contained in section 1141 (People v. Finkelstein, 156 N. Y. S. 2d 104).”

This part of the opinion of the Criminal Court indicates the basis on which the case was decided and on which it has to be decided. Section 1141 of the Penal Law already prohibited the sale, exhibition or other disposition of pictures or printed material which are obscene, lewd, lascivious, filthy, indecent or disgusting, and articles or instruments of indecent or immoral use, with the consequence that there is little if anything left to section 484-h that was new except the part to which the opinion of the Criminal Court refers and under which these defendants have been convicted. Material which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality is distinguished, in section 484-h, from what is obscene by the use of the disjunctive “ or ”, The prosecution urges that, under the language of this statute, it is not necessary for this book to be obscene in order to sustain the conviction of defendants if it mainly describes or is devoted to illicit sex or sexual immorality. This is not different from the bills passed in 1949 and 1952, which prohibited fictional accounts of lust, except that the present language omits the qualification “which tend[s] to incite minors to violent or depraved or immoral acts ’ ’. The latter words were not included in the statute before the courts in the Winters case, but were added by this court as having been intended by implication (294 N. Y. 545). But when the case reached the Supreme Court of the United States, the “incitement” clause was expressly held to be too vague for a valid criminal statute. So this time the Legislature omitted these words, as they had been omitted from subdivision 2 of section 1141 in the beginning. We are thus confronted with a constitutional question not unlike that which would have been before the United States Supreme Court in the Winters case, if the “incitement” clause had not been added to that statute by implication by this court. The Supreme Court is, of course, bound by the construction of State statutes which is placed upon them by the State courts.

The quality of the printed or pictorial material which is forbidden by the portion of the statutory enactment which is now before us is, consequently, not to be judged by whether it tends to incite minors or adults to immoral acts, or by whether it is in its nature obscene in the eyes of minors or of adults, but whether the Legislature can constitutionally prevent the

sale to minors of this age of material which deals mainly with illicit sex or sexual immorality. The purpose and the only object of this clause in the statute, under which defendants stand convicted, was to prevent or limit publications or pictures coming before the eyes of the young which are principally based upon the theme of sexual conduct that is contrary to the mores of society. This statute does not distinguish between material regarded as obscene for teenagers but unobjectionable to adults; it sets no variable standards of what constitutes obscenity according to the age or other type of group at which the material in question is principally aimed, nor does this clause in the statute render it necessary to conviction that the material dealing with illicit sex or sexual immorality shall have been presented in a salacious manner. A statute could hardly be draAvn which would permit exhibition of intimate sexual details of married life, for example, and at the same time exclude similar presentations where the participants are not married. On the contrary, the only construction of which this statutory language is susceptible is that the subject of illicit sex or sexual immorality is not to be brought before the young by pictures or writings — scientific, fictional or otherwise which are devoted principally thereto.

The decisions of the United States Supreme Court leave no doubt that legislation designed to restrict the sale or other distribution to adults of material principally devoted to, or even advocating, illicit sex or sexual immorality would be unconstitutional, both upon the grounds of vagueness, in case of criminal statutes, and of abridgment of freedom of speech or of the press in case of all statutes (Winters v. New York, supra; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Superior Films v. Department of Educ., 346 U. S. 587; Commercial Pictures Corp. v. Regents, 346 U. S. 587, revg. 305 N. Y. 336, where a motion picture had been censored under Education Law, § 122, as immoral and tending to corrupt morals; Gelling v. Texas, 343 U. S. 960; Holmby Prods. v. Vaughn, 350 U. S. 870, where the statute prohibited productions tending to debase or corrupt morals; One, Inc., v. Olesen, 355 U. S. 371, revg. 241 F. 2d 772; Times Film Corp. v. City of Chicago, 355 U. S. 35, revg. 244 F. 2d 432; Sunshine Book Co. v. Summerfield, 355 U. S. 372, revg. 249 F. 2d 114; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, upholding the right to portray or advocate other standards of sexual conduct than those approved by the community).

The question remains whether the constitutionality of section 484-h of the Penal Law is saved by the circumstance that it relates only to minors under 18 years of age. Insofar as the statutory language may be construed to be vague for a criminal statute under the decisions cited, it would appear to involve no distinction that it is addressed to minors under 18 years of age. It is noteworthy that the 1954 Report to the Legislature of the committee on whose recommendation the present section 484-h of the Penal Law was originally adopted recommended an addition to the obscenity statute proposed to be known as section 1141-b, which would have forbidden the commercial distribution to minors of material ‘which, for a minor, is obscene, lewd, lascivious, filthy, indecent or disgusting ’ (Italics supplied.) A recognition that printed material or pictures may be classified as obscene for minors which would not be so for adults would have been in accord with statutes adopted in a number of other jurisdictions (see “For Adults Only: The Constitutionality of Governmental Film Censorship by Age Classification”, 69 Yale L. J. 141; Lockhart and McClure: Censorship of Obscenity, 45 Minnesota L. Rev. 5, esp. pp. 68-88 on constant and variable obscenity and effect upon the sexually immature; Gerber: A Suggested Solution to the Riddle of Obscenity, 112 U. of Pa. L. Rev. 834, esp. pp. 847-852 on variable obscenity). Proposals have been made to restrict the attendance of teenagers at certain motion pictures. The American Law Institute Model Penal Code (Tent. Draft No. 6, 1957, § 207.10, subd. [2]) has stated that “Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audience if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.” A discussion of this aspect in other countries is found in a book by St. John-Stevas, entitled “ Obscenity and the Law” (1956), at pages 212-213, 221-231, 243, 247-250, 256. Variable obscenity, depending upon the type of person to whom it is mainly addressed, was considered in Manual Enterprises v. Day (289 F. 2d 455, revd. on other grounds 370 U. S. 478); United States v. 31 Photographs. (156 F. Supp. 350, 354, 356, 359); and by Chief Justice Wabreet concurring in Roth v. United States (354 U. S. 476, 494, 495).

No question is here presented concerning how the Legislature might constitutionally provide different standards of obscenity as applicable to different age groups. The statute recommended by the Legislative Committee in 1954 was not adopted, and the next year the same committee, instead of renewing its recommendation of legislation regarding what would be obscene for minors, presented the predecessor of the present section 484-h of the Penal Law (N. T. Legis. Doc., 1954, No. 37; 1955, No. 37). As has previously been stated, the portion of that section under which appellants have been convicted has nothing to do with obscenity. We do not have before us to decide whether “ Fanny Hill”, having been held to be not obscene for adults, would be obscene for children under 18 years of age. Appellants, it may be repeated, have not been convicted of selling an obscene book to a minor, but one which is principally devoted to descriptions of illicit sex or sexual immorality, unrelated to whether the book is obscene. The People concede that no issue of obscenity is before the court on this appeal.

The issue shapes itself into whether the Legislature can constitutionally restrict the sale, circulation or exhibition of pictures or printed material to minors under 18 years, for the reason that it is principally devoted to the subjects of illicit sex or sexual immorality. These words are either too vague to apprise possible defendants of what they mean, or, if they are to be interpreted as referring exclusively to extra-marital sex or sexual perversion, then they would forbid all publications or pictures mainly devoted to those subjects, regardless of the manner in which they are presented, whether by way of fiction, sociological discussion, moralizing, or otherwise. The Oedipus legend in classic Greek drama would be forbidden because it is principally devoted to incest, the Tristan and Isolde legend and Hawthorne’s “ Scarlet Letter ” would be illicit reading for the young because it is principally made up of adultery, Bernard Shaw’s “ Mrs. Warren’s Profession” would be outlawed for obvious reasons, as well as all writings dealing with homosexuality. Such a list could be extended almost indefinitely. It is not suggested that these or other parallel works of literature are likely to be offered for sale at the same newsstands where the type of comic books are purchased which was the main reason for the adoption of this legislation, but the constitutionality of a statute governing publications is to be tested by what can he done under it and not by the particular violation which is charged with having occurred. It seems to us that this statute is drawn so broadly as to render criminal sales or other exhibition to the young of pictures and publications of all kinds which are principally devoted to these subjects, in however serious or dignified a manner, and, in our view, it is so broad and so obscure in its coverage as to abridge the constitutionally protected freedom of speech and of the press as well as the due process clauses in the Federal and State Constitutions.

This being our conclusion, it is unnecessary to consider whether the ruling in Smith v. California (361 U. S. 147) would require that the bookseller have notice that the purchaser is under 18 years of age. The analogy of sales of liquor to minors is not perfect, for the same reasons the United States Supreme Court regarded scienter as a constitutional necessity on the part of a bookseller of the contents of a book. It was held that if scienter were not required, it would interfere with the sale of books and magazines to such an extent as to constitute an abridgment of freedom of the press. We express no opinion at this time on whether the same result would be reached if the bookseller were to be held criminally liable without notice that the purchaser was under 18 years of age, or on whether carrying books on the shelves of a bookstore might be deemed to be with intent to sell to minors as well as to adults and what effect, if any, that might have on restricting sales to adults.

Likewise it is unnecessary, in view of the ground of decision, to decide whether appellant Weisfeld could be held on account of alleged lack of knowledge on his part that the bookstore clerk would sell this book to a minor under 18 years of age.

The judgments of conviction should be reversed and the information dismissed.

Burke, J.

(dissenting). If there was ever a statute that set forth its object in unmistakable language section 484-h of the Penal Law is it. A court, moreover, has seldom been favored with as complete a legislative history to guide its understanding as that present in this record. Nor will a glance at the hundreds of exhibits of magazines and books in the legislative committee reports (N. Y. Joint Legis. Committee Reports 1949-1963) leave us lacking in tangible evidence of the precise evil sought to be corrected by the Legislature. The companion case handed down this day, legitimizing the general sale of ‘ ‘ Fanny Hill ’ ’, the international archetype of banned pornography for over 200 years, only underscores the keenly felt necessity for legislation that will protect the young from books and magazines that ‘‘ loudly proclaim their dedication to coarse sensuality” (People v. Richmond County News, 9 N Y 2d 578, 580), without trenching on the right of the adult population to read and look at pretty much what they will. (See the discussion in Butler v. Michigan, 352 U. S. 380).

Yet we this day unblushingly inform the Legislature that we are not quite sure what it is talking about when, after 11 years of study, it decides to prohibit the sale to youngsters of material which “ exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality”. For this court to view this language, with the background of legislative history spread out on this record, as possibly reaching “ serious ” or “dignified” treatments of the subject of illicit sex can only be put down as a studied and cynical avoidance of a well-chartered legislative path. While we are reminded that the sword of vagueness is often used more out of “ antagonism to legislative policy rather than uncertainty concerning legislative meaning” (2 Sutherland, Statutory Construction [3d ed., 1943], § 4920, p. 447), I had not yet thought that the doctrine had become simply an infinitely plastic deus ex machina for the circumvention of legislative purpose without a formal denial of legislative power. After this display of self-induced puzzlement, there is hardly a statute on the books that is proof against the resourcefulness of the judicial mind.

Transparent as the court’s use of notions of vagueness may be in this case, there remains an even more unusual deviation from established, and even routine, judicial practice—one as to which no justification is even attempted. If the court were genuinely puzzled and worried lest section 484-h carry within its sweep sociological and otherwise serious treatments and expressions of opinion on the subject of illicit sex, it could simply give the section a definitive construction, avoiding the possible overbroadness. Even granting an initial infirmity of vagueness, it can hardly be denied that the language will bear an interpretation limiting its applicability to material that “ exploits ”, “is devoted to ”, or “ is principally made up of ” — “descriptions of illicit sex”. Description is commonly defined as a detailed narrative or a mental picture (Century Dictionary; Webster’s New Int. Dictionary [2d ed.]). As applied to illicit sex, the meaning is unmistakable. A statute covering material that exploits, is devoted to or is principally made up of blow by blow narratives of illicitly sexual events leaves untouched all material which, when sold to children, could conceivably be held protected under the First Amendment. What possible justification is there for failing not only to attend to the hundreds of exhibits and the findings in the numerous legislative reports illustrating precisely what this statute forbids, but for failing to even mention in passing section 484-e which sets forth as law the legislative findings of the sort of thing found to impair the wholesome development of young people? I cannot understand how anyone after studying the reports of the Legislature and reading sections 484-e and 484-h could possibly conclude that they refer to the works of Shaw, Hawthorne, the Tristan and Isolde legend, or other literature containing references to illicit sex relationships, or advocating unconventional standards of behavior. It is plain that the law aims at books and magazines containing provocative pictures and writings that amount to “word pictures ’ ’ of illicit sex.

We are not commentators, critically reviewing for our audience defects in the draftsmanship of legislation. This court is a branch of government, charged with the duty of interpreting and applying legislation to cases that come before us. If, therefore, in the course of this duty questions of interpretation arise requiring us to mark off the bounds within which legislation may constitutionally operate, we may not simply note the difficulty and walk away. To leave legislation uninterpreted and hence invalid—when there is a constitutionally permissible construction—is to fail in one of the highest duties a court is called upon to perform. As Mr. Justice Holmes said in United States v. Jin Fuey Moy (241 U. S. 394, 401): “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” (Accord Dennis v. United States, 341 U. S. 494, 501; Courtesy Sandwich Shop v. Port of N. T. Auth., 12 N Y 2d 379, 389; Matter of Coates, 9 N Y 2d 242, 252; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44.) In the case of a penal statute, there is the further doctrine of narrow construction. All of this the court ignores. Even those of us most deeply opposed to laws of this sort as a matter of policy are nevertheless expected to feel bound by standards that transcend personal preferences even in so controversial an area as free speech.

When confronted with Federal legislation, as distinguished from State statutes which it has no power to definitively interpret, the United States Supreme Court has said: ‘ ‘ This is a federal statute which we must interpret as well as judge. Herein lies the fallacy of reliance upon the manner in which this Court has treated judgments of state courts. Where the statute as construed by the state courts transgressed the First Amendment, we could not but invalidate the judgments of conviction.” (Dennis v. United States, 341 U. S. 494, 502, supra.)

“ Illicit sex ” and “ sexual immorality ” are well-known terms especially understandable in the context of “ descriptions ” thereof. “ Sexual immorality ” has long formed a part of the United States Supreme Court’s definition of obscenity (Swearingen v. United States, 161 U. S. 446, 451; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 695-696, 704-705). The validity of a statute such as section 484-h is tested according to “ ‘ the operation and effect of the statute in substance.’ ” (Kingsley Books v. Brown, 354 U. S. 436, 441.) Since a formula such as vagueness serves, beyond the compulsions of genuine uncertainty, as a hedge or buffer against legislation abutting on sensitive freedoms (Smith v. California, 361 U. S. 147, 151; Baggett v. Bullitt, 377 U. S. 360), the rigor with which it is applied must vary according to the potentially inhibited area. Here, we start off with a limitation to children, a factor the absence of which was noted as controlling in Butler v. Michigan (352 U. S. 380, supra) and the presence of which turned the scales in Prince v. Massachusetts (321 U. S. 158). Its impact is further limited to the commercial distribution of literature mainly describing acts of illicit sex, leaving the home, school and library unaffected. It is in this light that I find today’s use of the vagueness doctrine most disoriented and misapplied.

Since the court has merely raised up the constitutional spectre of vagueness without resolving it, the basic free speech question is not met. If section 484-h were interpreted as the State argues (and I have outlined) there would be no constitutional infirmity. The hearings of the various State and Federal legislative committees which form part of the record before us amply demonstrate the damaging effect sordid pictorial and written sex literature have upon the development in children of a wholesome attitude and outlook on this very important area of life. A typical instance from one well-known public figure is the testimony of Mr. Norman Thomas before the United States Senate Sub-Committee to Investigate Juvenile Delinquency. He said: “ I think there is a great deal of dangerous nonsense in this appeal to the First Amendment and to the freedom of the press when one is dealing with this kind of thing. I do not believe that in order to protect the fundamental liberties of the press we have to turn our children, who are, in a sense, the root of all our society, over to the kind of visual exploitation of base emotion, and the arousal of base emotion to which, of course, this literature * * * is directed. I think it is nonsense to say that we are bound by a very extreme interpretation of the freedom of the press that we cannot act.” Mr. Thomas was only reaffirming values known to the architects of a free press, such as John Stuart Mill, who wrote in 1859: “ It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury” (Mill, On Liberty [Oxford Univ. Press ed.] 15; see, also, Chafee, Free Speech in the United States [1941], 31F-315, 543). This legislative attempt to protect children against the “ Fanny Hills ” of literature is almost identical to the statutes of many States (R. I. Gen. Laws, § 11-31-10 [1956]; Conn. Gen. Stat. Ann., § 53-244 [1955]; Ky. Rev. Stat., §§ 436.550, 436.560 [1956]; Mont. Rev. Code, § 94-3601 [1955]; Idaho Code, tit. 18, §§ 1507, 1508 [1957]; Mass. Laws Ann., ch. 272, § 30 [1956]; Chicago Mun. Code, § 192-10.1 [1956]; Utah Code, § 76-39-5 [1963]; Md. Code Ann., art. 27, § 418B [1961]; See A. L. I. Model Penal Code [Tent. Draft No. 6, 1957], § 207.10, subd. [2]).

Rhode Island’s statute, identical to ours in relevant part, has been upheld by that State’s highest court (State v. Settle, 90 R. I. 195). It is an interesting comment on the majority’s reliance on United States Supreme Court decisions that, in the most recent obscenity case in that court, the Settle decision (supra) was cited with approval as an example of the sort of specific and narrowly drawn legislation that best meets The legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children.” (Jacobellis v. Ohio, 378 U. S. 184.)

However, if the court chooses to understand the language of this statute as inviting unconstitutional restrictions on free speech, and, further, to leave such invitation unanswered by interpretation, so be it. Equally with Humpty Dumpty in ‘ Through the Looking Glass ’ ’, this court has the power to make words mean just what it wants them to mean, neither more nor less. And despite the temporizing language in the court’s opinion, I doubt whether all the king’s horses and all the king’s men can put this statute back together again. The juvenile market has been made safe for “ Fanny Hill ” et al.

The judgment below should be affirmed.

Scileppi, J.

(dissenting). Forgotten, in the majority’s haste to strike down section 484-h of the Penal Law, is the basic canon of statutory construction that courts will declare a solemn legislative enactment unconstitutional only with great reluctance and as a last resort (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 150). This precept is particularly applicable in a case such as this where we are presented with a statute enacted after much study and research in an effort to solve a serious community problem. There can be no doubt about the legislative purpose — the statute was designed to protect children under 18 years of age from the pernicious and deleterious effects of the material which it proscribes. It was not, as has been suggested, intended to indoctrinate our children or to form their minds or characters according to the State’s will. It was enacted to shield and protect our youth from material calculated to corrupt, deprave and debauch their impressionable minds and their morals. It is regrettable that freedom of expression—one of our most cherished liberties — is used by those who profit from the salacious as a spurious rallying cry to defeat the high purpose contained in this legislation.

We are not called upon to decide in this case whether “Memoirs of a Woman of Pleasure” (“Fanny Hill”) is obscene by constitutional standards and in violation of section 1141 of the Penal Law. The sole question before us is whether section 484-h of the Penal Law is constitutional.

It is conceded by the majority that not only does this State have the right under its governmental police power to regulate the sale and distribution of obscene literature, but that it also may classify as obscene for minors material which might not be such for adults. In other words, the majority’s quarrel with section 484-h is not that the Legislature lacked the power to set different standards of obscenity with respect to sales to minors; rather it is the precision of its language in the exercise of this acknowledged power which is questioned.

In State v. Settle (90 R. I. 195) the Supreme Court of Rhode Island upheld a statute almost identical to section 484-h against the same attack pressed upon us here. The statute in question there (General Laws, 1956, § 11-31-10), as here, proscribed the sale of “ any book * * * which exploits, is devoted to, or is particularly made up of descriptions of illicit sex or sexual immorality”. There, as here, the statute was attacked as (1) vague and indefinite, and (2) so broad in its definitions as to encompass acts or words which are included in the constitutional freedoms of the First Amendment. In answer to the first attack the court held (90 R. I. 195, 203): “No publication is labeled obscene and therefore a statute which condemns writings of that nature must use language such as is found in the instant statute, namely, ‘ is devoted to, or is principally made up of * * V We are of the opinion that the language of the statute under consideration is so clear that ‘ men of common intelligence,’ to use Mr. Justice Sutherland’s expression in Connally v. General Construction Co., 269 U. S. 385, can act under it with certainty as to its meaning.”

And, in answer to the second, it stated (90 R. I. 195, 199-200, supra): “ Obscenity is not within the area of constitutionally protected speech or press. * * * Lewd, lascivious and indecent are but synonyms of obscene. * * * The alternatives mentioned are nothing more than examples of what is obscene, lewd, lascivious and indecent and are to a degree explanatory of the words used earlier.”

No more compelling parallel can be found. Our New York statute, if anything, is more clear and definite than the one approved in the Settle case. Its language is just as clear and unambiguous as a statute can be drawn. Our courts should not sit as superlegislators to judge the wisdom of the States in protecting their citizens, for a Legislature is entitled to its own judgment as to the causes of juvenile delinquency and the relationship of salacious and obscene material to crime, and its effect upon the welfare of our youth generally; and, in checking the Legislature, courts should not read into the Constitution their own theories of psychology and criminology via the due process clause in order to find a way to strike down an otherwise perfectly salutary and legally sound statute. To say that section 484-h of the Penal Law is vague and indefinite is to make it literally impossible for the Legislature to use any language that would satisfy the scrutiny of the majority here. We need only point out that precision in definition or language is lacking in such concepts as “ due process ”, “ reasonable doubt ”, “ criminal negligence ” or “ fair trial ”, just to mention a few.

The judgment herein should be affirmed.

Opinion by Judge Van Voorhis; all concur except Judges Burke and Scileppi who dissent in separate opinions in each of which the other concurs and Chief Judge Desmond who concurs in both.

Judgment reversed and the information dismissed. 
      
       E.g., as in modem fiction by James Michener, John O’Hara, or Mary McCarthy (“The Group”).
     
      
       Although first enacted in 1955 (Penal Law, § 542, L. 1955, ch. 836), the statute was transferred to the article concerning “ Children ” in the Penal Law and renumbered § 484-h (L. 1963, ch. 548). See 1963 Report of Joint Legis. Committee Studying the Publication and Dissemination of Objectionable and Obscene Materials, N. Y. Legis. Doc., 1963, No. 81.
     