The opinion of the court was delivered by: MCLAUGHLIN
This is a suit to enjoin certain New Jersey law enforcement authorities from proceeding under the law of that State against a book titled 'Tropic of Cancer'. The principal plaintiff is the book's publisher who advertises its book on the cover page of same as '* * * an unbridled obscenity which it is'. We do not reach the question of whether that deliberate statement is true because, as will appear, in its present status the controversy is clearly an issue for the State of New Jersey to resolve.
The basic facts are simple. Since at least 1868, New Jersey has had laws declaring 'the distribution of obscene material to be criminal conduct and punishable as such.' State v. Hudson County News Co., 35 N.J. 284, 286, 173 A.2d 20, 21 (1961). The present one (N.J.S. 2A:115-2) reads:
'Any person who, without just cause, utters or exposes to the view of another, or possesses with intent to utter or expose to the view of another, or to sell, any obscene or indecent book, pamphlet, picture or other representation, however made, or who in any way advertises the same, or in any manner, whether by recommendation against its use or otherwise, gives any information how or where any of the same may be had, seen, bought or sold, is guilty of misdemeanor.'
With a strong unanimous opinion by Justice Jacobs, the State Supreme Court in the Hudson News decision upheld the constitutionality of that statute and construed it, p. 294, 173 A.2d p. 25, '* * * as though it expressly embodied the word 'knowingly". Holding that the 'without just cause' phrase 'modifies all of the later prohibitory provisions including those embodied in the 1957 and 1959 amendments', the court rejected the contention that the clause '* * * is too vague on its face and therefore violative of due process requirements.'
The book involved was published in this country in June 1961. In October 1961 Guy W. Calissi, Prosecutor of Bergen County, New Jersey, read it and in his opinion found it to be obscene and indecent. Following that the Prosecutor became acquainted with the decision of Besig v. United States, 208 F.2d 142 (9 Cir. 1953) which held the book obscene under the federal statute prohibiting the importation of obscene literature into the United States, 19 U.S.C.A. § 1305(a). He also knew the Upham v. Dill opinion, 195 F.Supp. 5, 10 (S.D.N.Y.1961) where the court held that the question of whether this book was obscene was one of fact 'not resolvable on a motion for summary judgment.'
The first count of the amended complaint is directed to those seizures with the exception of Schiller's. They are alleged to be against the First and Fourth Amendments to the United States Constitution.
The second count goes on the theory that the proceeding against Schiller was under N.J.S. 2A:152-5 and not under N.J.S. 2A:115-2. There is not only no support for this in plaintiff's voluminous affidavits, but it is directly contrary to the steps which were taken by the Paramus chief of police in this seizure and arrest.
The third count alleges the arrest of the sellers and includes plaintiff Irvin Jones, a mechanic of a book vending corporation, as one of those arrested. The allegation is that the arrests were contrary to the First and Fourteenth Amendments.
The fourth count alleges a conspiracy between the Bergen County law enforcement people concerned to deprive plaintiffs of their rights, privileges and immunities under the United States Constitution.
The fifth and sixth counts are against Essex County, New Jersey, law enforcement personnel for moving in two instances under N.J.S. 2A:115-2, against booksellers by seizing copies of the book.
The seventh count assails the state obscenity statute, N.J.S. 2A:115-2, as unconstitutional claiming that it is 'so vague as to deprive plaintiffs of their property and liberty without due process of law' and that it 'makes acts of plaintiffs criminal without any requirement of criminal intent.'
The eighth count asserts that the book 'is not obscene'. It asks for such affirmative declaration by this court.
The complaint admits that the seizures and the arrests 'were made possible only because said defendants were and are clothed with the authority of State law and said acts were taken and performed under color of the statutes, ordinances, regulations, customs, or usages of the State of New Jersey, the County of Bergen, and, as the case may be, the Boroughs of Cliffside Park, Fort Lee, Lodi, and Paramus, and the Township of River Vale * * * the County of Essex, and the City of ...