
    The People of the State of New York, Respondent, v. Charles Tannenbaum, Appellant.
    Argued May 2, 1966;
    decided September 29, 1966.
    
      
      Osmond K. Fraenkel for appellant.
    
      Frank S. Hogan, District Attorney (John A. K. Bradley and H. Richard Uviller of counsel), for respondent.
   Keating, J.

In response to the deeply felt needs of the community, our State Legislature enacted two statutes (L. 1965, ch. 327, eff. Sept. 1, 1965; L. 1965, ch. 372, eff. July 1, 1965) proscribing the dissemination, to infants under 17 and 18 years of age' respectively, of materials obscene as to such infants, though not necessarily obscene as to the adult community.

The statutory scheme is no broader than necessary to reach the desired end. The adult community remains free to read what it wishes. Dissemination of material, obscene only as to children, is proscribed only as to children. The unconstitutional infirmity pointed out in Butler v. Michigan (352 U. S. 380) is overcome. The adult population is not restricted to reading only that which is fit for children.

In Bookcase, Inc. v. Broderick (18 N Y 2d 71), we upheld the Legislature’s power to employ variable concepts of obscenity. The questions not then being presented, we left it for another day to determine whether the statutes, in their application, squared with the mandates of the First and Fourteenth Amendments to the Federal Constitution. The present case poses these questions with regard to the statute effective on July 1,1965 (Penal Law, § 484-i).

On July 19,1965, at the instigation of Operation Yorkville, 17-year-old Anthony Sciacovelli approached the appellant’s cigar store, examined an outside stand containing “girlie” magazines, selected two and entered the store. Appellant looked at them, priced them at $2.25 and sold them to Sciacovelli, who thereafter departed. Once outside, Sciacovelli wrote his name and the time and place of purchase on an inside cover without further examining the magazines ’ contents.

Candid is the name of the magazine which appellant sold to Sciacovelli and for the sale of which he was subsequently convicted pursuant to section 484-i of the Penal Law (sale or delivery of pornographic material to minors under the age of 18). Candid’s cover shows a girl seductively posed beside a couch wearing the skimpiest of undergarments. In addition, the cover describes the contents: “ Smut For Women Only “ How To Undress With Class”, “Sex With a Twist”, “ Picadilly Prostitute ” and “ Should She or Shouldn’t She ”, The lower left-hand comer states: “Sale To Minors Forbidden ”.

What the cover promises, the contents delivers. Candid is devoted purely to sex, told pictorially by nndes in almost every conceivable pose and by tales of sex orgies in picture and prose. The advertisements, in line with the over-all theme, are for mail-order photographs and motion pictures of nudes, lingerie, and sexual devices and handbooks.

We have no difficulty concluding, on the basis of the proof offered at the trial, that Candid falls within the ban of the statute and that the appellant, with knowledge of its contents, sold the magazine to a person under the age of 18 years.

We turn now to the constitutional questions. Specifically, appellant contends that section 484-i is unconstitutionally vague, in violation of due process of law, and that the statute’s failure to require proof of scienter as to the age of the purchaser renders it unconstitutional as a limitation on the freedom of speech and the press as guaranteed by the First and Fourteenth Amendments.

Section 484-i divides the material to which it applies into three subdivisions: (1) photographs, drawings and motion pictures depicting specified parts of the body or acts; (2) a combination of such photographs, drawings or motion pictures ‘ ‘ depicted or shown in such a posture or way that the viewer’s attention or concentration is primarily focused on” described parts of the body, and (3) books, magazines, phonograph records or similar sound reproductions containing details, descriptions or narrative accounts of specified sex acts. The material thus made subject to restriction is defined with precision and clarity.

The ‘ ‘ obscenity ’ ’ standard is virtually the same in all three subdivisions. It must be: “ posed or presented in such a manner as to exploit lust for commercial gain and which would appeal to the lust of persons under the age of eighteen years or to their curiosity as to sex or to the anatomical differences between the sexes ”.

Appellant urges that under the statute a conviction may lie based on material which does no more than appeal to the minor’s ‘ ‘ curiosity as to sex or to the anatomical differences between the sexes”. Clearly this is not so. The thrust of the statute is against pandering the obscene to minors. Material which merely appeals to the minor’s “ curiosity as to sex or to the anatomical differences between the sexes ’’without more does not fall within the ban of the statute. In addition, as already noted, the material must be ‘ posed or presented in such a manner as to exploit lust for commercial gain”. Thus the last-quoted portion appears followed by the conjunctive “ and ” rather than the disjunctive “ or If this were not the case, we would be presented with a different question entirely (see People v. Bookcase, Inc., 14 N Y 2d 409). But clearly the statute is not intended to and does not spill over into the area of constitutionally protected matter.

By explicit provision, the obscene is distinguished from ‘‘ flat and factual statements of the facts, causes, functions or purposes of the subject of the writing or presentation, such as would be found in bona fide medical or biological textbooks ”. The sine qua non of any prosecution under section 484-i goes to the purpose of the material — “ posed or presented in such a manner as to exploit lust for commercial gain” — and this clearly excludes legitimate works of art, educational texts and literature with redeeming social value.

Notwithstanding the concededly imprecise definition of the term “ obscene ”, workable standards are available. “ The intrinsic nature, tendency and bent of the work determines whether it is to be banned or its vendor punished ” (Chief Judge Desmond concurring in People v. Richmond County News, 9 N Y 2d 578, 588). Other quotes from the same opinion elaborate the same recurring theme: “‘For a book to be prohibited it is necessary that from its whole tenor the author’s intention is evident of teaching the readers about sins of impurity and arousing him to libidinousness- ’ (Noldin, De Preceptis Dei et Ecclesiae, p. 658).” ‘“A pornographic book * * * is one deliberately designed to stimulate sex feelings and to act as an aphrodisiac ’ ([St. John-Stevas,] Obscenity and the Law, p. 2).” And again in the recent decision by the Supreme Court in Ginzburg v. United States (383 U. S. 463, 467): “ each of the accused publications was originated or sold as stock in trade of the sordid business of pandering — ‘ the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.’ Roth v. United States, supra, 354 U. S. [476], at 495-496 (Warren, C. J., concurring). ”

By proscribing specified materials ‘ ‘ posed or presented in such a manner as to exploit lust for commercial gain ”, the statute gives clear and unequivocal warning of the conduct to be avoided. We perceive nothing vague or uncertain about the statutory prohibition and thus hold that the statute provides reasonably ascertainable standards of guilt readily determinable by men of reasonable intelligence (see Herndon v. Lowry, 301 U. S. 242).

The second point urged by appellant presents a question of constitutional law which, although raised, has never before been directly ruled on. (See People v. Kahan, 15 N Y 2d 311; People v. Bookcase, Inc., 14 N Y 2d 409, 418, supra.) It arises from the paradoxical nature of the statute under consideration which, while proscribing certain materials to those under 18, nonetheless affords full First Amendment protection to the same material when considered with relation to those 18 years of age and older. This dichotomy, the appellant contends, requires proof of scienter of age as a predicate to a conviction under the statute.

Section 484-i requires scienter of obscenity, i.e., some knowledge by the bookseller of the character of the book being sold. This is the constitutional mandate of Smith v. California (361 U. S. 147). Its rationale was stated by Mr. Justice Brennan at page 153: “ By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the state will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature * * * And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. ” (See, also, Mishkin v. New York, 383 U. S. 502.) Of course this rule has been followed in New York (People v. Finkelstein, 9 N Y 2d 342).

The appellant now urges that scienter as to age is also a requirement of the Constitution. He contends that a statute which does not in some maimer require proof of scienter as to the age of the purchaser, as section 484-i does not, is subject to the same unconstitutional infirmities as one not requiring proof of scienter as to obscenity. We cannot agree.

There is a substantial difference, we think, between permitting a conviction without proof of scienter — i.e., some reason to know of the prohibition which attaches to the banned material— and imposing strict liability for the sale of such material to those under the proscribed age after scienter of obscenity exists. The First Amendment does not protect obscenity (Roth v. United States, 354 U. S. 476) and we deal here, not with material which falls under the umbrella of protection, but with material, the dissemination of which may be controlled by the State.

The appellant’s First Amendment argument, we note, seeks no protection for the infant under 18, nor in fact is it directly aimed at his own protection with reference to those in the same age category. His right of dissemination depends on a correlative right in the public to receipt of such material and we have seen that, as to those under 18, no such right exists. The right, if any, belongs to those 18 and over for, as to them, dissemination and receipt are fully protected.

The point urged then is that, absent a requirement of proof of scienter as to age, the bookseller will tend to restrict the sale of such materials to those who he can be sure are over 17 for, so the argument goes, he would rather forego the sale than risk the possibility of conviction. Thus, he says, dissemination to those over 17 will be severely.curtailed in violation of the First Amendment.

The contention, we think, lacks merit. It fails to the extent that there is a major difference between requiring the bookseller to read every piece of material which he chooses to sell and requiring him, to inquire after and establish the age of those persons who will fall within the the doubtful age bracket. Obviously, the number of situations in which such inquiry will be necessary will be quite few. The eye of experience easily perceives the difference between an infant and an adult. Where the area greys, inquiry is required. We have no. doubt that the Legislature could affirmatively mandate such inquiry and we see no reason why the same result cannot be attained by indirection.

As the Supreme Court said in Smith v. California (361 U. S. 147, 154-155, supra): “ Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene Tbe 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.

“ Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse ” (Near v. Minnesota, 283 U. S. 697, 708; see, also, Kingsley Books, Inc. v. Brown, 354 U. S. 436). Thus, in the final analysis, the answer to the problem must turn on whether the method adopted for coping with a public evil is kept within the narrowest bounds necessitated by the situation, so as not to impinge on the full measure of guarantees afforded by the First Amendment. We are unable to say that the method adopted by the Legislature, of imposing strict liability on the bookseller for the knowing sale of obscene matter to a minor, infringes upon his constitutional rights or tends to inhibit the free dissemination of literature. That being the case, it is not, of course, for us to determine whether strict liability is the better of two available alternatives. That is a question for the State Legislature. (Compare Penal Law, § 484-i and § 484-h.)

We have examined the appellant’s other alleged assignments of error and find them to be without merit.

The judgment appealed from should be affirmed.

Fuld, J.

(dissenting). The defendant Tannenbaum was convicted of violating section 484-i of the Penal Law, prohibiting the sale of certain material to children. Since, as I have already indicated (People v. Kahan, 15 N Y 2d 311, 312), I have no doubt that the Legislature may constitutionally act to protect youngsters from the sort of objectionable matter contained in the magazine before us (see, also, Bookcase, Inc. v. Broderick, 18 N Y 2d 71), it is with some reluctance that I vote to reverse his conviction. I do not see how, if there is to be compliance with the demands of the Constitution, section 484-i may be upheld. Laudable though the purpose of the section may be, it offends essential guarantees, since it punishes the distribution of constitutionally protected communication. Indeed, it contains the same defects “ in respect of its substantive definitions ” as led this court in People v. Kahan (15 N Y 2d 311, 312, supra) to invalidate former section 484-h.

Section 484-i proscribes the sale to minors “ actually or apparently under the age of eighteen years ’ ’ of photographs and other representations of certain parts of the human body if such material appeals to the “ curiosity ” of children “ as to sex or to the anatomical differences between the sexes”. These criteria, standing by themselves, are patently insufficient and impermissible predicates for penal liability. Quite apart from the fact that the statute would improperly cover both married teenagers and children of tender years (cf. Griswold v. Connecticut, 381 U. S. 479, 485-486), it would indiscriminately punish the dissemination of material that stimulates healthy, as well as morbid, curiosity about sex and sexual differences. Taken literally, the provision would outlaw every course in sex education and feminine hygiene taught in the schools and would bar access by children to reproductions of, for example, the paintings by Michelangelo in the .Sistine Chapel as well as the works of other great masters. (See Roth v. United States, 354 U. S. 476, 487; People v. Bookcase, Inc., 14 N Y 2d 409, 417-418.)

It is claimed, however, that the statute is limited in its application by the requirement that the specified material be presented in such a manner as to exploit lust for commercial gain ”. Even if this be so, the legislation is still too broad. Although the manner in which a work is sold may have some bearing in determining the question of obscenity “ in close cases ” (Ginzburg v. United States, 383 U. S. 463, 474; see, also, Memoirs v. Massachusetts, 383 U. S. 413, 420-421), the intent of the seller, or his presentation (assuming that the presentation is not itself punishable), does not deprive publications or other works which are not questionable of their constitutional protection. (See Ginzburg v. United States, 383 U. S. 463, 475-476, supra.) And yet, on its face, section 484-i punishes the sale of nonquestionable, constitutionally protected, material. What is more, the language ‘ presented in such a manner as to exploit lust for commercial gain” — upon which the majority now relies to sustain the section’s constitutionality — is the exact phrase which this court recently held unconstitutionally vague in the Kahan case (15 N Y 2d 311, supra), and it surely has not gained precision by re-enactment. On the contrary, it is clear that the quoted provision does not sufficiently limit the reach of section 484-i and does not enable booksellers and others within its purview to know with any reasonable degree of certainty exactly what material is condemned. In this respect, the statute violates ‘ ‘ the first essential of due process of law”. (Connally v. General Constr. Co., 269 U. S. 385, 391; see, also, Winters v. New York, 333 U. S. 507, 519-520; People v. Bookcase, Inc., 14 N Y 2d 409, 415-416, supra; People v. Firth, 3 N Y 2d 472, 474-476.)

It is difficult to understand the place which section 484-i is intended to fill in the legislative scheme. Within a few days after enacting section 484-h — to replace the similarly numbered section which the court ruled invalid in Kahan (15 N Y 2d 311, supra) — the Legislature adopted present section 484-i dealing with the identical subject, the distribution of objectionable materials to minors. The basic difference between the two pieces of legislation is that the former incorporates a number of safeguards, omitted from section 484-i, designed to prevent unconstitutional application of the law. Among such safeguards are these: (1) the material must “ predominantly appeal * * * to the prurient, shameful or morbid interest of minors (2) it must be “ patently offensive ” when judged in accordance with prevailing community standards for minors; and (3) it must be “utterly without redeeming social importance for minors”. Section 484-i, on the other hand, does not require proof of any of those items to support prosecution of the vendor.

In a proceeding to punish the dissemination of material to the general public on the ground that it is obscene, the People must, of course, prove that the material has a predominant appeal to prurient interest, that it is so patently offensive as to affront current community standards of decency and that it has no redeeming social value, (See Memoirs v. Massachusetts, 383 U. S. 413, 418, supra; Mishkin v. New York, 383 U. S. 502, 508-509; Manual Enterprises v. Day, 370 U. S. 478, 482; Roth v. United States, 354 U. S. 476, 489, supra.) The standards of a law punishing the sale of obscene or objectionable matter to youngsters need not be so stringent. This is so not because children may be denied the constitutional right of access to communication but, rather, because children may, in the exercise of that right, be beset by dangers that do not affect adults or, if they do, not to the same degree. (See Censorship by Age Classification, 69 Yale L. J. 141, 147-148.) The responsibility and authority of the State are for that reason greater and its powers more extensive when it legislates for the protection of children. (See Bookcase, Inc. v. Broderick, 18 N Y 2d 71, supra; Prince v. Massachusetts, 321 U. S. 158, 168.) Be that as it may, however, it is essential that such legislation be clearly drawn and “ restricted to the evil with which it is said to deal.” (Butler v. Michigan, 352 U. S. 380, 383; see, also, Winters v. New York, 333 U. S. 507, 509 et seq., supra.) When a State statute affecting the constitutional right of free speech is broader in its application than necessary to effect its purpose, as is section 484-i, it violates the First and Fourteenth Amendments of the Federal Constitution. (See Ashton v. Kentucky, 384 U. S. 195, 200-201; Butler v. Michigan, 352 U. S. 380, supra; see, also, People v. Richmond County News, 9 N Y 2d 578, 584, 586.)

Section 484-h of the Penal Law — the statute to which I have previously referred — also requires, as an additional prerequisite to prosecution, that the defendant bookseller knew or had “reason to know” that his customer was under age. The statute provides that an honest mistake in this regard is a complete defense, provided the seller made a reasonable and bona fide attempt to ascertain the buyer’s age. Section 484-i, on the other hand, completely ignores this requirement of scienter as to age, an element which, I note, three of the fonr judges comprising the majority in the Kahan case (15 N Y 2d 311, supra) explicitly declared to be indispensable in such a statute. I have come on no other case which considered this precise issue but, in Smith v. California (361 U. S. 117), the Supreme Court held that a conviction for selling obscene literature could not be sustained unless there was some requirement as to scienter on the part of the seller with respect to the contents of the' boots involved. The court reasoned that, ‘ ‘ if the bookseller is criminally liable without knowledge of the contents * * *, he will tend to restrict the books he sells to those he has inspected; and thus the State will.have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature” (361 U. S., at p. 153). This rationale would seem to be equally applicable to scienter as to age when the youth of the buyer is an element of the crime. Absolute liability without regard to whether the bookseller was put on notice that his customer was under age would necessarily restrict and curtail the distribution of literature to adults, particularly women, whose youthful appearance belied mature years. In its efforts to protect children, the State is not privileged to so hinder the flow of information and ideas.

The People would have us analogize the sale of books to the sale of liquor for which, it is settled, there is strict accountability. (Alcoholic Beverage Control Law, § 65, subd. 1; see People v. Werner, 174 N. Y. 132, 134.) The analogy is, however, imperfect and cannot stand analysis. Unlike traffic in liquor which is a privilege that the State may limit or even withdraw at any time (U. S. Const., 21st Arndt.), traffic in books — with its coextensive guarantee of freedom of expression —is a constitutionally protected right. As the Supreme Court put it in the Smith case (361 U. S. 147, 152-153, supra), “ There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller.”

Finally, the argument is advanced that, if scienter as to age is a constitutional imperative, then, this court should read that element into the statute instead of invalidating it. (See People v. Finkelstein, 9 N Y 2d 342.) But the language of section 484-i is manifestly too explicit and specific to permit such a construction. The People acknowledge that, in the clause “knowingly sells • * * * to a person actually or apparently under * * * eighteen”, the word “ apparently” is confusing and nonsensical. It is, however, noteworthy that the exact same verbiage was used by the Legislature in prohibiting the sale of liquor to children (Alcoholic Beverage C'ontrol Law, § 65, subd. 1) and, since that wording has consistently been interpreted to impose strict criminal liability (see, e.g., People v. Werner, 174 N. Y. 132, 134, supra; Matter of Barnett v. O'Connell, 279 App. Div. 449), there can be no doubt — as, indeed, the majority so holds — that a similar meaning was intended for section 484-i.

In short, I think it clear that section 484-i, by virtue of its confusing text and its exclusion of constitutionally mandated criteria, infringes First Amendment rights and the demands of due process. (See People v. Kahan, 15 N Y 2d 311, supra; see, also, Note, 34 Fordham L. Rev. 692, 705-707.) The defendant’s conviction should be reversed and the information dismissed.

Bergan, J.

(concurring for reversal). In People v. Kahan (15 N Y 2d 311) this court held section 484-h of the Penal Law, as it then read, was constitutionally deficient and at the same time suggested careful draftsmanship could provide a constitutionally valid statute for the protection of young persons against obscene publications.

With the aid of District Attorneys and other specialists, a constitutionally sound statute was enacted by the Legislature by a new section 484-h (L. 1965, ch. 327) which meets the test laid down in Kahan and in the Federal eases. At the same session of the Legislature, for some reason not made clear, section 484-i was also enacted (L. 1965, ch. 372) which, as Judge Fuld demonstrates, was so drafted as to be open.to constitutional defects in important respects similar to those considered in Kahan. If due respect is to be paid to the prior decisions of this court, it must be held that section 484-i is defective in draftsmanship.

On pragmatic grounds if there is open to the prosecution a choice between a soundly conceived statute and a defective statute, the prosecution should rest on the strong law rather than the weak one. To insist on prosecution under section 484-i, with its patent defects in draftsmanship, unnecessarily opens up a potential field of litigation in the Federal courts with the ultimate decision on constitutionality, and hence the enforcement of this statute to protect the young, left in doubt.

This can be avoided if, consistent with Kahan, the section 484-i enactment is now held unconstitutional. This would, in turn, require prosecutions to be made in pursuance of the soundly drafted provision of section 484-h. I concur, also, in the views expressed by Judge Fulo.

Opinion by Judge Keatihg. All concur except Judge Fuld who dissents in an opinion in which Judges Vast Vooehis and Beegah concur, Judge Beegah dissenting in a separate opinion in which Judge Vau Vooehis also concurs.

Judgment affirmed. 
      
      . Since section 484-h is not before us, references to it are for comparative purposes only.
     
      
      . Where the material is designed for and primarily disseminated to a particular deviant sexual group, its prurient appeal is determined “ in terms of the sexual interests of its intended and probable recipient group ”. (Mishkin v. New York, 383 U. S. 502, 509.)
     
      
      . In a prosecution in this State under section 1141 of the Penal Law, the People must also establish that the book or other material in question is “ hardcore pornography”. (People v. Richmond County News, 9 N Y 2d 578, 586-587; People v. Fritch, 13 N Y 2d 119, 123.) Consequently, as the Supreme Court recently observed in Mishkin v. New York (383 U. S., at pp. 506, 508), our court, by so construing section 1141, has adopted a more limited definition of “ obscenity” than that adopted in the Roth case (354 U. S. 476, supra).
      
     
      
      . While the supervision of children’s reading is best left to their parents, the knowledge that such parental control or guidance cannot always be provided justifies broader regulation in this area.
     
      
      . As the fourth judge, I found it “unnecessary” to consider the question in view of the other and more basic reasons assigned by the court for holding the statute under review — old section 484-h — unconstitutional (15 N Y 2d 311, 314).
     
      
      . In any event, even if the statute could possibly be interpreted to require proof of scienter as to age, a reversal is compelled in the present case since the trial court did not so read the statute. (See People v. Finkelstein, 9 N Y 2d 342, supra; Shuttlesworth v. Birmingham, 382 U. S. 87, 91-92.)
     