in each case and thus to present different factual and legal issues best resolved on a case-by-case basis. The class certified by this panel under Rule 23(b)(2) was the class of all movie theater operators in the State of New Jersey that exhibit "X"-rated and/or sexually oriented adult films and the class of all bookstore owners in the State of New Jersey that sell sexually oriented adult books and magazines.
Defendants contend that the plaintiffs do not have standing to challenge the New Jersey anti-obscenity statute since the statute, as written, will not be enforced against the plaintiffs. After a three-judge panel for the District of New Jersey declared N.J.S. 2A:115-1.1 invalid on November 20, 1972 because of the failure of that statute to include "utterly without redeeming social value" in its definition of obscenity, Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D.N.J.1972), the Attorney General of the State of New Jersey modified the State's enforcement policy so as to include the "social-value" test in the definition of obscenity when applying N.J.S. 2A:115-1 et seq. to prosecutors' investigations, arrests, and indictments.
Defendants argue that since plaintiffs will be investigated, arrested and indicted under a standard which received constitutional approval in Cine-Com, and since all formal prosecutions will be held in abeyance pending the determination of Cine-Com which is now on appeal before the Third Circuit,
plaintiffs are not subject to any direct injury as a result of the enforcement of the statute under the Attorney General's policy, and therefore, under the doctrine of Poe v. Ullman, 367 U.S. 497, 504, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), they do not have standing to challenge its validity.
Defendants' argument is without merit. Unlike the situation in Poe v. Ullman, in which Connecticut's anti-contraceptive statute had been enforced against only two doctors and one nurse (in 1940) since its enactment in 1879, and there existed no prospect of its enforcement against the plaintiffs therein, there is no question that New Jersey's anti-obscenity statute has been and will be enforced -- under one interpretation or another -- against the within plaintiffs. That the standard applied by the prosecutor's office under its new enforcement policy may be constitutional is irrelevant to the question of standing. Standing is accorded to petitioners to challenge a statute where they are subject to its enforcement, and where they can demonstrate that they are directly affected thereby. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968). The direct effect to which petitioners may be subject does not depend upon the constitutionality of the statute but rather upon the practical nexus between its enforcement and the petitioners' activities or livelihood; consideration of the constitutionality of the enforcement policy or the statute itself must be reserved for the consideration of the case on its merits once the issue of standing has been independently resolved.
Plaintiffs herein have alleged sufficient facts to demonstrate that they will be directly and adversely affected by the continued enforcement of the statute in any guise, and are therefore entitled to standing. See Cine-Com, supra, 351 F. Supp. at 44, 45. The fact that prosecutions may be held in abeyance under the present enforcement policy does not dilute the stake that the present plaintiffs have in the outcome of this litigation.
Investigations, seizures and indictments of theater operators and bookstore owners for the exhibition and/or sale of allegedly obscene materials possess, in themselves, a sufficient disruptive potential of plaintiffs' businesses to afford them standing. The pendency of such prosecutions in themselves may chill the exercise of First Amendment rights.
Defendants contend that at least with respect to three of the named plaintiffs, -- C & V Theatre Corporation, Wein and Guarino -- this Court should defer to a State court determination of plaintiffs' claims as a matter of equitable abstention under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). As to C & V, although in this action it does not challenge its pending prosecution by the State for its exhibition of "Deep Throat", defendants argue that it cannot thereby escape the logic of Younger. Defendants point out that C & V occupies the identical position occupied by Dr. Hallford in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Dr. Hallford in Roe had sought to "distinguish his status as a present state defendant from his status as a 'potential future defendant.'" The Supreme Court rejected that distinction and remitted Dr. Hallford to his defenses in the state criminal proceedings. Specifically, however, the Supreme Court did not consider the question of "what different result, if any, would follow if Dr. Hallford's intervention were on behalf of a class." 93 S. Ct. at 714.
The fact that the present action is a class action modifies to a certain extent the usual Younger considerations. First, it should be noted that as to the plaintiff Hamar, Younger abstention is inappropriate since no criminal prosecution is pending against it.
Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971). It would prove anomalous to grant relief to Hamar and to the class of theater owners of which Hamar is a representative excepting therefrom only the plaintiff C & V as to future prosecutions merely because a prosecution is currently pending against it. Where such class relief is sought, it furthers the purposes of class adjudication to distinguish between C & V's status as a present criminal state defendant and its status as a potential future defendant. Relief may be prescribed as to the effect and validity of N.J.S. 2A:115-1 et seq. equally with respect to the class of all theater owners that exhibit sexually-oriented or "X"-rated adult films and all bookstore owners who sell sexually oriented adult books and magazines without interfering with the proper course of pending state prosecutions against individual plaintiffs by limiting such relief to prospective matters only. Restricting class relief in this fashion accommodates the interests of class adjudication on the one hand
without doing violence to the principles of comity on the other.
As to the plaintiffs Wein and Guarino, they occupy a slightly different position than C & V since they actively seek an injunction against the prosecution currently pending against them. In view, however, of our accommodation of Younger interests to class action interests, we find this to be a "distinction without a difference." Relief may be granted with respect to prospective proceedings threatened against Wein and Guarino, but the plaintiffs Wein and Guarino will be remitted to their defenses in the pending state proceedings against them.
Defendants argue that this Court should abstain from deciding the constitutionality of N.J.S. 2A:115-1.1 (Supp. 1973) under the doctrine enunciated by Justice Frankfurter in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) because the statute is susceptible to a "saving construction" that would avoid or modify the constitutional question presented.
On November 20, 1972, a three-judge panel for the District of New Jersey invalidated the identical statute challenged here, and in so doing, determined that Pullman - type abstention was not appropriate. Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F. Supp. 42 (D.N.J.1972). In Cine-Com, the Court found that the New Jersey Legislature had explicitly expunged from its definition of obscenity in N.J.S. 2A:115-1.1 (Supp.1973) the requirement that to be obscene published material had to be "utterly without redeeming social value" [hereinafter termed the " Memoirs social-value requirement or test"]. The Court premised its determination on a specific legislative finding incorporated into the statute to the effect that the Legislature did not believe that the plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1967),
expressed the proper Constitutional standard, and that in order to facilitate obscenity prosecutions, the Legislature could constitutionally strike the Memoirs social-value requirement from its definition of obscenity. Cine-Com, supra, 351 F. Supp. at 47-49; N.J.S. 2A:115-1.1a.
The Cine-Com court concluded:
"The statute is thus susceptible to only one interpretation, an interpretation which rejects the social-value test. Since no New Jersey court could thus interpret the statute so as to avoid the Constitutional question, abstention is improper, and it is the duty of the federal court to decide whether or not the statute is Constitutional."