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HAMAR THEATRES, INC. v. CRYAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, CIVIL DIVISION


July 26, 1973

HAMAR THEATRES, INC., Plaintiff,
v.
John CRYAN, Individually and as Sheriff of Essex County, State of New Jersey, et al., Defendants. C & V THEATRE CORPORATION, and Edward N. Wilson, Jr., Plaintiff, v. James M. COLEMAN, Jr., Individually and as County Prosecutor of Monmouth County, State of New Jersey, et al., Defendants. Howard A. WEIN and Philip J. Guarino, Plaintiffs, v. TOWN OF IRVINGTON et al., Defendants

The opinion of the court was delivered by: GARTH

GARTH, District Judge:

This action was commenced by the filing of three separate complaints in April of 1973, *fn1" all of which challenged the constitutionality of the New Jersey anti-obscenity statute, N.J.S. 2A:115-1 et seq. as well as procedures followed in each action by state, county or municipal authorities in seizing films or publications thought to be obscene. Jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Following hearings on each of the three complaints concerning the necessity of convening three-judge panels, this three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284 to consider the three actions as a consolidated matter. *fn2" A consolidated amended complaint was filed in July of 1973.

PARTIES

 Plaintiff Hamar Theatres, Inc., a New Jersey corporation, operates a motion picture theater known as the Treat Theatre in Newark, New Jersey. Hamar has in the past exhibited sexually oriented adult films and intends to continue such exhibitions in the future. It is uncontested that on April 5, 1973, a certain film entitled "Fast Ball" then being exhibited at the Treat Theatre, was seized by Essex County Sheriff's detectives under the direction of Essex County Sheriff John Cryan and Essex County Prosecutor Joseph P. Lordi, both defendants in this action. The films were seized pursuant to a search warrant issued by the Honorable Ralph L. Fusco, New Jersey Superior Court Judge, on the strength of an affidavit of a Sheriff's detective. Prior to the seizure, Judge Fusco had not seen the film. Moreover, no prior adversary hearing was held as to the propriety of the seizure. The search warrant mentioned no individuals and was not issued in conjunction with any criminal complaint. No criminal complaints or indictments were returned prior to the commencement of Hamar's separate action (now consolidated herein) against the Essex County Sheriff, Prosecutor, and the New Jersey Attorney General.

 Prior to the April 1973 seizure, plaintiff Hamar had experienced other film seizures by the Essex County authorities. As a result of a seizure in May 1972, plaintiff Hamar pleaded guilty to an accusation of "Maintaining a Nuisance." On March 5, 1973, the film "Deep Throat" was seized by defendants under the authority of a Newark Municipal ordinance without a prior adversary hearing. Following alleged harassment by the defendants and the issuance of a federal court order restraining defendants from further harassment of the plaintiff Hamar, the plaintiff pleaded guilty to violations of the Newark Municipal Ordinance dealing with obscenity. Although there are currently no criminal actions proceeding against Hamar, the past seizures have allegedly caused great perturbation among Hamar's employees and have disrupted its business.

 Plaintiff Hamar intends to continue exhibition of the same genre of sexually oriented adult films. Among other relief, Hamar seeks a declaratory judgment invalidating the New Jersey anti-obscenity statute. Hamar also seeks an order enjoining the defendants from enforcing this anti-obscenity statute in any fashion, and in particular, a preliminary injunction prohibiting defendants from making unconstitutional seizures of the films it is and will be exhibiting. *fn3"

 Plaintiff C & V Theatre Corporation also operates a theater which exhibits sexually oriented adult films. On March 6, 1973, Monmouth County officers seized the film "Deep Throat", then being exhibited at its theater. A criminal prosecution against the plaintiff C & V has been commenced based upon the exhibition of "Deep Throat" and is currently pending in the New Jersey state courts. No relief is sought here with respect to that seizure and criminal prosecution. Tr. June 1, 1973 at 18. Plaintiff C & V alleges, however, that subsequent to the "Deep Throat" incident, the Monmouth County officials who had been made defendants in C & V's initial separate complaint, and who now appear as defendants in the consolidated amended complaint, informed C & V that they would continue to review the sexually oriented adult films to be exhibited in plaintiff's theater and would seize films considered obscene with a view toward appropriate criminal proceedings. Plaintiff C & V seeks the same relief requested by the plaintiff Hamar.

 Plaintiffs Wein and Guarino, are owners and operators of a book store known as "Best Adult Book Store" located in Essex County, Irvington, New Jersey, in which sexually oriented adult books, films, magazines and novelties are exhibited and sold. On April 25, 1973, it is alleged that a member of the Irvington Police Department, without advising plaintiffs that he was a police officer, purchased a magazine from defendants, left, and a few minutes later returned with some other police officers who this time identified themselves as such and demanded that plaintiffs return the marked bill with which the initial purchase of the magazine had been made. On April 26, 1973, plaintiffs were served with criminal complaints charging them with violations of the New Jersey anti-obscenity statute, which complaints are still pending. Tr. June 1, 1973 at 17, 18. Plaintiffs allege that they were told by the Deputy Chief of the Irvington Police Department that if they were to remain open for business, the Irvington Police Department would issue daily criminal complaints against them under the New Jersey anti-obscenity statute. Plaintiffs allege similar representations were made to them by other Irvington law enforcement officials. Plaintiffs seek basically the same relief against the Irvington municipal law enforcement officials, the Essex County Prosecutor and the Attorney General of New Jersey as is sought by the plaintiffs Hamar and C & V against their respective defendants. *fn4" Plaintiffs Wein and Guarino also seek to restrain defendants from further prosecution of the criminal complaints presently outstanding against them.

 To the extent that relief is sought by Wein and Guarino against the Town of Irvington, the Municipal Court of the Town of Irvington, and the Town of Irvington Police Department, this court has no jurisdiction under 42 U.S.C. § 1983 to consider the matter and these defendants shall be dismissed from the action. City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973).

 At oral argument on June 1, 1973, all parties agreed that no evidence other than the stipulations already filed with the court, would be presented and that the June 1, 1973 argument would constitute the final hearing before the three-judge panel in this action. *fn5"

 Also at oral argument this panel granted a motion by the plaintiffs to proceed as a class with respect to the constitutionality of the challenged anti-obscenity statute. The panel denied so much of that motion as sought to establish or to have certified a class as to the allegedly illegal seizure procedures which were found to vary considerably 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.

 STANDING

 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. *fn6" 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, *fn7" 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. *fn8" 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.

 YOUNGER ABSTENTION

 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. *fn9" 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 *fn10" without doing violence to the principles of comity on the other. *fn11"

 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. *fn12"

 PULLMAN ABSTENTION

 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. *fn13" 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), *fn14" 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. *fn15" 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."

 Cine-Com, supra, 351 F. Supp. at 49.

 Since the filing of the Cine-Com decision, the United States Supreme Court has promulgated a new definition of obscenity in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973). Moreover, prior to the adoption of a new definition of obscenity by the United States Supreme Court but subsequent to the decision in Cine-Com, a New Jersey Chancery Court construed N.J.S. 2A:115-1.1 as defining obscenity according to the three prong test set forth in Memoirs, supra. Coleman v. Wilson, 123 N.J.Super. 310, 302 A.2d 555 (Ch., 1973). *fn16" These new decisions merit a reconsideration of the Pullman - abstention determination in Cine-Com.17

 PULLMAN ABSTENTION

 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. *fn13" 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), *fn14" 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. *fn15" 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."

 Cine-Com, supra, 351 F. Supp. at 49.

 Since the filing of the Cine-Com decision, the United States Supreme Court has promulgated a new definition of obscenity in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).moreover, prior to the adoption of a new definition of obscenity by the United States Supreme Court but subsequent to the decision in Cine-Com, a New Jersey Chancery Court construed N.J.S. 2A:115-1.1 as defining obscenity according to the three prong test set forth in Memoirs, supra. Coleman v. Wilson, 123 N.J.Super. 310, 302 A.2d 555 (Ch., 1973). *fn16" These new decisions merit a reconsideration of the Pullman- abstention determination in Cine-Com. *fn17"

 In Miller v. California, supra, the Supreme Court redefined obscenity as follows:

 

"The basic guideline for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230, 92 S. Ct. [2245], at 2246 [33 L. Ed. 2d 312] (1972), quoting Roth v. United States, supra, 354 U.S. [476], at 489, 77 S. Ct. [1304], at 1311 [1 L. Ed. 2d 1498] (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

 93 S. Ct. at 2615. The Court explicitly rejected the Memoirs "utterly without redeeming social value test" and in its stead adopted a new "social-value" test -- "whether the work taken as a whole lacks serious literary, artistic, political, or scientific value" [hereinafter referred to, for the purposes of this opinion, as the Miller social-value test]. "At a minimum," said the Court, "prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political or scientific value to merit First Amendment protection." Id.

 In comparing the three-prong definition of Memoirs (See note 14 supra) with that of Miller ; we note another significant difference. The Miller definition, unlike that in Memoirs, requires that to be obscene, material must depict or describe, in a patently offensive way, " sexual conduct specifically defined by the applicable state law " (emphasis supplied). Possible examples of what a state could define as sexual conduct under the second prong of the Miller definition are set forth in the opinion:

 

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

 

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."

 93 S. Ct. at 2615. These definitions are only meant to be examples of the kinds of explicit description of sexual conduct required as a constitutional minimum in any regulation of purportedly obscene materials and do not foreclose states from adopting their own definitions, if sufficiently explicit.

 For purposes of Pullman - abstention, we shall inquire then as to whether N.J.S. 2A:115-1.1 (Supp.1973) can reasonably be construed to embody the Miller definition of obscenity. *fn18" Defendants contend that the primary intent of the New Jersey Legislature in enacting N.J.S. 2A:115-1.1 was to "proscribe obscene matter to the fullest extent possible under the First Amendment." Defendant's brief at 41. It was this construction of legislative intent, say the defendants, that led Judge Lane in Coleman v. Wilson, supra, to construe N.J.S. 2A:115-1.1 in conformity with what was then judged to be the constitutional standard -- the three-prong definition in Memoirs.19 Accordingly, argue the defendants, the statute is now susceptible to a construction in keeping with the new definition in Miller.

 As a matter of statutory construction in certain circumstances, we agree that a statute can be construed to embody a constitutional formulation subsequently promulgated by the Supreme Court. For example, after the Memoirs decision, various courts construed state statutes which adopted the definition of obscenity first set forth in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) *fn20" so as to comport with the three-prong test of Memoirs.21 See, e.g., Entertainment Ventures, Inc. v. Brewer, 306 F. Supp. 802, 814, 815 (M.D.Ala.1969) (three-judge court); Delta Book Distributors, Inc. v. Cronvich, 304 F. Supp. 662 (E.D.La.1969) (three-judge court), reversed on other grounds sub nom. Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971); Great Speckled Bird v. Stynchcombe, 298 F. Supp. 1291, 1292 (N.D.Ga.1969) (three-judge court). The basis of construing the Roth language as embodying the Memoirs standard in all the above cases was that the Supreme Court had stated in Memoirs that the three-prong Memoirs test had always been part of Roth. 383 U.S. at 418, 419, 86 S. Ct. 975. In construing the state statutes containing Roth language as embodying the Memoirs definition, the various courts referred to above merely adopted the construction already adopted by the Supreme Court of the Roth language.

 The present situation, however, is not quite apposite. In the first instance, the Supreme Court in Miller does not contend that the Miller definition is inherent in or embodied in Roth or in any other previous definition of obscenity. Second, as the statutory and legislative history of N.J.S. 2A:115-1.1 demonstrates, the Roth language adopted in the New Jersey statute is not susceptible even to the Memoirs construction, because as was determined in Cine-Com, the New Jersey Legislature turned its back on Memoirs with the specific intent of excluding what it regarded as the too-permissive Memoirs standard. Cine-Com, supra, 342 F. Supp. at 49.

 When the present definition of obscenity was adopted by the New Jersey Legislature in L.1971, c. 449, the law contained a statement of legislative purpose as follows:

 

"The 1971 amendment deleted former subsection (b). L.1971, c. 449, contained a statement which read as follows:

 

'In 1957, the United States Supreme Court enunciated (in Roth v. United States, 354 U.S. 476 [77 S. Ct. 1304, 1 L. Ed. 2d 1498]) the only definition of "obscenity" in which a majority of its members have ever concurred -- viz., that the "obscene" is that which predominately "appeals to prurient interest." In 1962, this Legislature, in two acts, incorporated that definition into our statutes (where it had previously stood undefined). In nearly identical language, P.L.1962, c. 165, § 1 and P.L.1962, c. 166 § 2 defined the term as follows:

 

'The word 'obscene' . . . shall mean that which to the average person, applying contemporary, community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.'

 

'Since then the Federal Supreme Court has fragmented in deciding several obscenity cases, agreeing upon results, but unable to reach a single opinion commanding majority agreement. Such nonmajority opinions do not constitute law binding upon lower courts. In 1966, however, one such binding opinion proved highly influential; in that opinion (in the so-called 'Fanny Hill' case, 383 U.S. 413 [86 S. Ct. 975, 16 L. Ed. 2d 1]) three justices proposed that the test of 'obscenity' should comprise three elements, 'prurient appeal' being only one of them. The other two tests were those which have become known as the 'patent offensiveness' and 'social value' tests. Some States -- New Jersey included -- hastened to incorporate these supposed 'tests' into their statutory law, without reflecting that (a) if the tests were part of a binding Supreme Court decision they were already the 'law of the land' without further action, and (b) if they were not already thus binding, their enactment would unnecessarily hinder law enforcement.

 

Subsequent experience has shown that the additional 'tests' -- particularly that which requires that an item be 'utterly without redeeming social value' -- erect an almost insuperable barrier to prosecution, and allow the most objectionable materials to circulate unhampered. Meanwhile, other jurisdictions, which never adopted the added 'tests,' have been able to make convictions stick. Recently, for example, the United States Supreme Court refused to reverse a Maryland adjudication of the obscenity of a film -- the same film which a New Jersey Superior Court judge in 1969 'reluctantly and with regret' found it necessary to rule not obscene because it 'does possess a modicum of social value.'

 

This bill would return New Jersey law to the pre-1966 standard -- a standard which is constitutionally viable and which would permit action to be taken against the accumulating flood of salacious films and literature which in recent years has seriously alarmed our citizens.

 

To conform to the reestablished standard, this bill would also repeal P.L.1966, c. 199, § 2 (C. 2A:115-1.2), which merely establishes a rule of evidence concerning the 'social value' test; and P.L.1962, c. 166, § 2 (C. 2A:115-1.1), which is a needless duplication of language already found in P.L.1962, c. 165, § 1 and applying to all of chapter 115 in Title 2A."

 N.J.S. 2A:115-1.1 (Supp.1973) (legislative commentary).

 This legislative statement demonstrates that the New Jersey Legislature wished to define obscenity in N.J.S. 2A:115-1.1 (Supp.1973) in accordance with the first prong of the Memoirs definition to the exclusion of the other two prongs. *fn22" It is apparent that the first prong of Memoirs, the first prong of Miller, and N.J.S. 2A:115-1.1 (Supp.1973), as the New Jersey Legislature has intended it to be construed contain the identical definition of obscenity. *fn23" In effect, the New Jersey Legislature has stated that to be obscene, it will suffice under N.J.S. 2A:115-1.1 (Supp.1973), if the material taken as a whole, appeals to the prurient interest without more. In the first instance, therefore, the statute cannot be construed as embodying either the Memoirs or Miller social-value test. To so construe the statute would imply that those two tests were embodied in the first prong of the definition in Memoirs and Miller respectively, but such a construction would render entirely superfluous the third prongs of Memoirs and Miller which contain the respective social-value tests. *fn24"

 For much the same reason, N.J.S. 2A:115-1.1 (Supp.1973) cannot be construed to include the "patently offensive" test embodied in the second prong of Memoirs and carried forward in a more exacting fashion as the second prong of Miller. Proscribed under N.J.S. 2A:115-1.1 (Supp.1973) as a result, are materials which taken as a whole appeal to the prurient interest, but which may not depict or describe in a patently offensive way sexual conduct. On this basis alone, no construction of the New Jersey Statute could satisfy the Miller standard. Moreover, we point out that nowhere does the New Jersey Statute specifically define the sexual conduct the description or depiction of which is to be proscribed as also required in the second prong of Miller. Although Justice Burger speaking for the Supreme Court majority intimated that state obscenity statutes might be capable of a construction embodying a specification of proscribed sexual conduct, *fn25" no such construction of the New Jersey Statute is possible because the New Jersey Legislature by the exclusion of the second and third prongs of Memoirs from its definition of obscenity has purposefully adopted a generalized statute. *fn26"

 A construction of N.J.S. 2A:115-1.1 (Supp.1973) embodying the Miller standard would have to stand upon the premise that a state can enact a statute which, although specifically intending to proscribe certain sexually-oriented material, would "intend" to proscribe something less if the standard it had intended to create turned out to be unconstitutional. To permit this kind of statutory construction, however, is equivalent to condoning a criminal statute that would prohibit "all expression not permitted by the First Amendment." *fn27" The offense to due process inherent in such a vague legislative enactment is apparent. *fn28" For the purpose of determining the propriety of Pullman - abstention, we cannot subscribe to the view that N.J.S. 2A:115-1.1 (Supp.1973) can be construed to forbid obscenity to the fullest permissible extent.

 Defendants finally argue that even assuming that the construction given to N.J.S. 2A:115-1.1 (Supp.1973) in Coleman v. Wilson, supra, is not justifiable, it is possible that the New Jersey Supreme Court could adopt the construction adopted in Coleman and thus find that the New Jersey anti-obscenity statute comports with the constitutional requirements of Miller. In such a case, defendants are correct in saying that the statute so construed, would mean what the New Jersey Supreme Court said it meant and thus would be free from any constitutional infirmity.

 It is true, as Justice Frankfurter said with respect to a federal court's construction of a state statute, that "no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination." Railroad Comm'n v. Pullman Co., 312 U.S. at 499, 61 S. Ct. at 645. In Pullman - abstention situations, the inquiry of the federal court is inexorably reduced to a forecast or prediction of the possible constructions of the statute in question that are available to state courts. As seen above, we have already concluded, as a matter of prediction, as did the federal court in Cine-Com, that the state courts cannot give a saving construction to N.J.S. 2A:115.1.1 (Supp. 1973). How then is the fact that the State Chancery Court in Coleman proved Cine-Com's "prediction" wrong to affect this Court's prediction of the kind of construction available for N.J.S. 2A:115-1.1 (Supp. 1973) in light of Miller ? Our answer is that we are not in a very much different situation than was the Court in Cine-Com at which time no state court had construed the statute. First, since the decision in Miller, no state court has, in fact, construed the statute. Second, although on the one hand Coleman construed the New Jersey anti-obscenity law as Cine-Com predicted it could not be construed, another state court in State v. Shapiro, 122 N.J.Super. 409, 300 A.2d 595 (Law Div., 1973) vindicated Cine-Com's prediction by concluding that N.J.S. 2A:115-1.1 (Supp.1973) intended to exclude the Memoirs social-value test. *fn29" Thus, as the situation stands now, the lower State Courts are divided, the statute has not yet been construed by the Appellate Division in New Jersey, and there is little likelihood of a definitive adjudication from the New Jersey Supreme Court before 1974. We observe that the mere pendency of state proceedings that could settle the issue presented to the federal court does not mandate Pullman - abstention. Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973). This being a First Amendment situation where delay could chill protected expression and all other factors being equal, the balance weighs against abstention. In a situation such as this, the Court is relegated to the same guidelines for predicting what reasonable statutory construction may be arrived at as it would had no lower court cases been decided.

 A federal court cannot abstain on Pullman grounds merely because there exists the distant possibility that a state court will construe a statute so as to avoid a constitutional issue. That distant possibility is present in every case, and if it justifies abstention, then no federal court would ever be called upon to decide the constitutionality of a state statute. Such was not the plain meaning inherent in the scheme establishing review by federal courts of the constitutionality of state statutes. 28 U.S.C. §§ 2201, 2281, 2284. The rule of Pullman - abstention must be predicated upon a prediction by the federal courts that there exists not a distant possibility but rather a reasonable likelihood that a state statute can be construed in a manner which avoids the constitutional issue. We find that the construction suggested by defendants of N.J.S. 2A:115-1.1 (Supp.1973) is not reasonably likely to obtain in the future. As the cases make clear, where no reasonable likelihood of a saving construction exists, it is incumbent upon a federal court to decide the constitutional issue, especially where First Amendment rights weigh in the balance and may be adversely affected by delay. *fn30" Zwickler v. Koota, 389 U.S. 241, 252, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967).

 CONSTITUTIONALITY OF THE STATUTE

 The three-judge court in Cine-Com, supra, 351 F. Supp. at 50 held:

 

"Until Memoirs is explicitly overruled by the Supreme Court or by Constitutional Amendment, it sets the Constitutional standard. Under its holding, the present New Jersey definition of obscenity, N.J.S. 2A:115-1.1 (Supp.1972) cannot stand."

 Now Miller v. California has explicitly overruled Memoirs and has established a new standard for obscenity. However, for the reasons set forth in the discussion on Pullman - abstention above, N.J.S. 2A:115-1.1 (Supp.1973) has no more of a claim to constitutional validity in light of Miller than it did when evaluated against the definition of obscenity in Memoirs. In sum, we hold that N.J.S. 2A:115-1.1 (Supp.1973) is unconstitutional because (1) it would proscribe material that possessed serious literary, artistic, political or scientific value; (2) it would proscribe material that did not depict or describe sexual conduct in a patently offensive manner; and (3) it cannot be construed as specifying the kind of sexual conduct the depiction of which can be proscribed under Miller. To the extent that New Jersey's anti-obscenity laws depend upon the definition of obscenity therein, those laws are unconstitutional. *fn31" No opinion is expressed, however, with respect to the constitutionality of New Jersey's antiobscenity laws as applied to minors since the propriety of those laws and their enforcement against minors is not challenged in the present action. *fn32"

 RELIEF

 Pending the filing of this opinion, the State of New Jersey has been restrained from enforcing N.J.S. 2A:115-1.1 (Supp.1973) against the within class of plaintiffs. *fn33" From the flurry of prosecutorial activity against allegedly obscene materials that precipitated this action and gave rise to the presently existing restraints, it would appear that plaintiffs will suffer irreparable harm if an injunction is not issued. Accordingly, defendants, their agents and all persons acting in active concert with them or subject to their supervision or control shall be restrained from instituting or prosecuting any action, proceeding or prosecution against the within class of plaintiffs under the New Jersey anti-obscenity law herein declared to be unconstitutional and of no effect. This injunction shall not extend, however, to the criminal prosecutions currently pending against the plaintiffs C & V, Wein and Guarino, nor to any criminal proceedings pending against any other plaintiffs in the within class as of June 1, 1973, the date on which the class was certified. Defendants shall likewise be restrained from instituting any civil proceedings or seizures pursuant to or under the authority of N.J.S. 2A:115-1.1 (Supp.1973).

 The individual named plaintiffs herein, not proceeding as a class, *fn34" have also sought a ruling as to the constitutionality of book and film seizures. As to seizures effected under the authority of the New Jersey anti-obscenity statute declared invalid herein, the individual plaintiffs are adequately protected. As to seizures otherwise authorized, however, such as those pursuant to municipal anti-obscenity ordinances the validity of which have not been passed upon here, *fn35" a different issue is raised. We noted earlier that the prospective claims of the plaintiffs C & V, Wein and Guarino could be recognized in spite of the pendency of state criminal proceedings against them because of the class action nature of the challenge to New Jersey's anti-obscenity law. *fn36" With respect to the challenge to seizure procedures, however, no class has been certified, *fn37" and therefore, as to plaintiffs C & V, Wein and Guarino, this court must abstain on Younger grounds. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). *fn38"

  As to the application by the plaintiff Hamar for the return of its film seized by the defendants, no state criminal proceedings are pending. Because the statute under which plaintiff's sole copy of its film was seized has now been declared unconstitutional by this court, the seizure is improper and the film must be returned to the plaintiffs. Defendants shall have one week from the filing of this opinion to make a copy of the film for evidential purposes before returning it to the plaintiff Hamar. The procedure adopted here is designed to accord with the view recently taken by the Supreme Court in Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973).

 An order shall be submitted consistent with this opinion, consented to as to form by all parties, within two weeks. No costs will be granted.


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