In 1992, Nassau County, New York, passed an ordinance making it illegal to sell trading cards which depict a "heinous crime, an element of a heinous crime, or a heinous criminal" to minors. The statute was passed in response to the release of a set of "True Crime" trading cards which depicted violent crimes and infamous criminals such as Jeffrey Dahmer, Charles Manson, and Lizzie Borden. Eclipse Enterprises, the publisher of the cards, brought suit against the county for violating its right to free speech. In the magistrate's order, he hypothesizes the censorship called for in the ordinance as potentially banning a trading card describing Ty Cobb's infamous assault on a crippled fan in the 1920s or a set of historical cards regarding the Stalinist purges.
ECLIPSE ENTERPRISES, INC., et al.,
THOMAS GULOTTA, et al.,
REPORT AND RECOMMENDATION
CV 92-3416 (ADS)
ORENSTEIN, United States Magistrate Judge
District Judge Arthur Spatt referred the matter to this Court to conduct an evidentiary hearing and to report and recommend its findings. A hearing was conducted on March 23 and 28, April 7, and May 23, 1994. This Court was requested inter alia to report and recommend whether 1) Nassau County Local Law Number 11-1992 ("the law" or "law") violates the First Amendment or is the least restrictive means to further the County's interest in providing for the well-being of minors; and 2) whether the types of trading cards prohibited by the statute are "harmful to minors" as defined in the statute.
As a content-based restriction, the Law is subject to the strictest First Amendment scrutiny. For the reasons set forth below, this Court reports and recommends that Nassau County Local Law Number 11-1992 is 1) an unconstitutional restraint of free speech in that it is not narrowly tailored to further the ordinance's stated purpose; 2) is overbroad and 3) is void for vagueness. The Court further finds that no definitive evidence was presented at the hearing from which this Court could conclude that the type of trading cards at issue are "harmful to minors" as defined in the statute. Moreover, Defendant failed to present evidence to support its claimed connection between the trading cards in question and the commission of or increase in juvenile crime, or that the cards impair the "ethical and moral development of youth."
The Legislative Intent section of Local Law 11-1992 provides in pertinent part:
"The Board of Supervisors finds that in light of their limited experience, education and emotional development, children under the age of seventeen are impressionable and susceptible to the influence of violence and criminal conduct in our society. The dissemination of materials devoted to the depiction of heinous crimes and heinous criminals is a contributing factor to juvenile crime, a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the citizens of Nassau County."Section 1, Law 11-1992.
The ordinance prohibits the sale of trading cards which depict heinous crimes or heinous criminals and are harmful to children. Local Law 11-1992 Section 3. The ordinance explicitly defines "heinous crime" as murder, assault, kidnapping, arson, burglary, robbery, rape or other sexual offenses. Local Law 11-1992 Section 2(C). A "heinous criminal" is defined as one who has been found guilty of committing a heinous crime. Local Law 11-1992 Section 2(D).
Speech which contains depictions of crime or violence is not considered "obscene" and is thus accorded the protection of the First Amendment. See Winters v. New York, 333 U.S. 507, 508 (1948) (holding magazines and other written material depicting stories of bloodshed, lust, or crime protected under the First Amendment); Video Software Dealers Ass'n v. Webster, 968 F. 2d 684, 688 (8th Cir. 1992) (video cassettes depicting violence protected under the First Amendment); American Booksellers Ass'n., Inc. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985) (television violence is protected speech), aff'd, 475 U.S. 1001 (1986); Sovereign News Co. v. Falke, 448 F. Supp. 306, 394 (N.D. Ohio 1977) (violent material given the highest degree of First Amendment protection).
Plaintiff's products, and trading cards by other manufacturers, are sets of cards which digest various topical material. Some contain depictions of violence or of persons who committed crimes of violence. One set of cards, True Crime (Plaintiff's Exhibit, hereinafter "Pl. Ex." 10), comprises cards that create an encyclopedic history of infamous criminals. However, not all sets of cards focus on violent individuals or activity. Coup D'etat (Pl. Ex. 3), published by the plaintiff, is a set of cards which discusses the assassination of President John F. Kennedy. The individual cards which discuss the shooting of the President, Officer Tippit, and Lee Harvey Oswald contain depictions of "heinous crimes" as defined in the statute. Similarly, The Rise and Fall of the Soviet Union (from Lenin to Yeltsin), contains a comprehensive introduction to the history of the Soviet Union (Pl. Ex. 6). One card in the set discusses the murder of the Czar and his family, another, the wholesale murder of millions in the Stalinist "purges" of the early 1930's. The set Foul Ball (Baseball's Greatest Scandals, Scoundrels and Screw-ups), (Pl. Ex. 28), contains a card which discusses Ty Cobb's violent assault on a spectator, and another card which digests a former major league catcher's violent bat-wielding assault on a former major league pitcher during their active playing days. Inspection of the sets reveals that only some of the cards fall within the purview of the law.
Nevertheless, the County relies upon the Local Law's legislative intent of protecting the physical and psychological well-being of minors. (Defendant's Post-hearing Memorandum of Law, hereinafter "Def. Mem. of Law" at 1.) The County argues that Local Law 11-1992 is an appropriate exercise to "shield minors from the influence of literature that is not obscene by adult standards." (Id. at 1-2.)
There is no doubt that the protection of the physical and psychological well-being of minors is a compelling governmental interest, and that the government may constitutionally regulate protected speech in order to promote such an interest. Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (citing Ginsberg v. New York, 390 U.S. 629, 639-40 (1968)); New York v. Ferber, 458 U.S. 747, 756-57 (1982). In furtherance of their goal, the government may adopt more stringent controls on what communicative material is available to minors as opposed to adults. Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975). Minors are entitled to significant First Amendment protection. Therefore, the government's ability to prohibit public dissemination of protected materials is limited to "relatively narrow and well-defined circumstances." Id. at 212-13. To withstand constitutional scrutiny, the government must act by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with a minor's First Amendment freedoms. Sable 492 U.S. at 126 (citing Schaumburg v. Citizens for a setter Environment, 444 U.S. 620, 637 (1980) (citations omitted)). Even in the context of regulating a minor's access to sexually oriented materials, the Supreme Court has held that "speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks is unsuitable for them." Erznoznik, 422 U.S. at 213-14.
Local Law 11-1992 is clearly content-based. It prohibits the sale to minors of trading cards depicting violent acts, while allowing athletic and other topical cards to be sold. As a content-based restriction, the Law is subject to the highest First Amendment scrutiny. Defendant must prove that the regulation is narrowly tailored to serve a compelling governmental interest without unnecessarily interfering with First Amendment freedoms. Perry Educ. Ass'n. v. Perry Local Educ. Ass'n., 460 U.S. 37, 45 (1983) . Additionally, the government must choose the least restrictive means to further the articulated interest. Sable Communications, 492 U.S. at 126. The government must demonstrate that the "ordinance 'does not burden substantially more speech than is necessary to further the government's legitimate interests. Turner Broadcasting, 114 S. Ct. at 2470 (quoting Ward v. Rock Against Racism, 491 U.S. 791, 799 (1989) .
The government has failed to meet its burden of demonstrating that the ordinance is narrowly tailored to achieve or serve its stated compelling interest. See Turner Broadcasting, 114 S. Ct. at 2470; Sable, 492 U.S. at 126; Perry, 460 U.S. at 45. Legislative bodies are not required to draft legislation with scientific certainty. Ginsberg v. New York, 390 U.S. 629, 642-43 (1968) (citing Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911)). However, even in the context of commercial speech, with its attendant lower "rational relation" standard, the Supreme Court requires the governmental body seeking to sustain a restriction on protected speech to demonstrate that the restriction directly advances the state interest involved. Edenfield v. Fane, 113 S. Ct. 1792, 1800 (1993) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 564 (1980)). "The regulation may not be sustained if it provides only ineffective or remote support for the government's purpose." Id. The government's burden is not satisfied by "mere speculation or conjecture," Edenfield, 113 S.Ct. at 1800, and must do more than simply "'posit the existence of the disease sought to be cured. Turner Broadcasting Sys., Inc. v. F.C.C., 114 S. Ct. 2445, 2470 (1994) (quoting Quincy Cable Television, Inc. v. F.C.C., 768 F. 2d 1434, 1455 (D.C. Cir. 1985)). In Edenfield, the Supreme Court noted the lack of any studies, empirical data, or anecdotal evidence indicating a connection between the government's stated interests and the restriction on protected speech. 113 S. Ct. at 1800-01.
In the instant case the evidence presented by Nassau County is similarly weak and insufficient to justify the broad restriction. The Local Law concludes that the dissemination of communications about heinous crimes or heinous criminals "is a contributing factor to juvenile crime, [and] a basic factor in impairing the ethical and moral development of [county] youth. Local Law 11-1992 Section 1. At the hearing, a member of the county legislature testified that in passing the ordinance, the Board had no evidence that any crime had been linked to the reading of a trading card depicting heinous crimes or criminals. (Hearing Transcript, hereinafter "Tr." at 4:73-74.)[fn 2] Moreover, the same witness testified that the Board did not consult any mental health professionals with respect to the effect on minors of this genre of trading cards. (Tr. at 4:74.) In fact, the witness testified that the County's conclusion that trading cards which depict crimes or criminals are a contributing factor to juvenile crime was based solely upon "surmise." (Tr. at 4:83-85.)
Defendant's witnesses testified that no study, scientific or otherwise, has ever been conducted to examine whether trading cards which depict crime or criminals affect minors. (Tr. at 1:58; 1:197.) Much testimony focused upon the effect of violence in the media on minors. Most studies have specifically addressed violence on television and not violence in literature. Yet, television or videos and films combine the senses of sight and hearing. Trading cards are merely speech, or involve the sense of sight.
Even assuming that the studies on violence in the media are analogous to trading cards, evidence of a causal relationship is contradictory and inconclusive. See Stephen J. Kim, Viewer Discretion Advised: A Structural Approach To The Issue Of Televised Violence, 142 U. Pa. L. Rev. 1383, 1383-85 (1994) (noting the various conflicting studies and debates regarding the effects of violence in television on society). The only obvious conclusion to be drawn is the clear difference of opinion over this sensitive issue. Accordingly, little in the testimony and exhibits justifies the regulation of the protected speech herein.
In addition, the County fails to offer any justification for a distinction between trading cards and other forms of communication that depict violence in furthering its interest of preventing juvenile crime and protecting the welfare of minors. See Simon & Shuster, 112 S. Ct. at 510 (no justification offered for distinction between regulating profits of criminals from books and other assets). Books, magazines, and other forms of media contain depictions of the very same crimes and criminals as the trading cards at issue. Plaintiff demonstrated that hundreds of such books are available to minors in the County's schools and public libraries. (Pl. Exs. 24, 25.)
Defendant urges that Local Law 11-1992 is narrowly tailored because its language is specific and contains strict definitions, in contrast to the ordinance in Video Software Dealers Ass'n. v. Webster, 968 F. 2d 684 (8th Cir. 1992). (Def. Mem. at 5.) The Court agrees that Webster is distinguishable in this respect. In Webster the court relied primarily on the failure of Missouri's statute to define the type of violence at issue. Here, however, the Court draws its conclusions not from the County's failure to clearly define the type of communication which is banned, but from the utter failure of the County to demonstrate that the restrictions placed on the First Amendment are in any way tailored to attain the compelling interest sought to be achieved. The statute unnecessarily infringes on freedom of expression. See Sable, 492 U.S. at 126.
However, based upon the testimony of Defendant's own experts, it is clear that the Local Law's comprehensive definitions inevitably create this very defect. The ordinance's broad definition of heinous crimes covers murder in a war context, an assaultive tackle on a football card, and a fictional story or thriller. A card which would depict and tell the story of Cain slaying Abel comes within the Law's purview, as does a card which would depict the Holocaust. Cards which selectively copy photographs from the True Crime set include cards about Elliot Ness and J. Edgar Hoover, in addition to cards about Al Capone and "Lucky" Luciano. (Pl. Ex. 10.) The set also contains a card detailing the kidnapping of the Lindberg baby, in addition to the St. Valentine's Day massacre. Id. Defendant's own experts noted numerous innocuous cards that, in their expert opinion, would not contribute to juvenile crime yet would be banned for sale to minors. (Tr. at 1:68, 69, 70, 77-78, 79, 81, 84; 2:25, 39, 49.)
The law fails to account for the varying degrees of violence that might be revealed in a particular card. Additionally, the context of the violence is not taken into account. For example, the reprint set of trading cards Horrors of War details the early days of World War II and the Spanish civil war. (Pl. Ex. 8.) Each and every card in the set ends its digest with the epitaph, in bold print, "To know the HORRORS OF WAR is to want PEACE." (Id.) Local Law 11-1992 would prevent minors in Nassau county from purchasing cards with that message. The law sweeps within its ambit every trading card which contains a depiction of violence regardless of context or pervasiveness, and no matter how tangential or incidental the violence may be. See Simon & Shuster, 112 S. Ct. at 511; Erznoznik, 422 U.S. at 213.[fn 3]
A statute must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited" and "provide explicit standards for those who apply [the statute]" so as to avoid "arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); see also Smith v. Goguen, 415 U.S. 566, 572-73 (1974); Bantam Books v. Sullivan, 372 U.S. 58, 71 (1963).
Defendant contends that any trading card which depicts a "heinous crime" or "heinous criminal" is de facto "harmful to minors." Therefore, so the argument goes, one need only look to the definitions to determine what trading cards are prohibited. (Def. Mem. at 9.) However, this assertion fails to acknowledge the statutory language of the criteria required for a determination that a card is harmful to minors. The County has adopted a modification of the Miller v. California obscenity test in an attempt to provide guidelines for the statute's application of what is "harmful to minors." "Harmful to Minors" means that quality of any description or representation in whatever form of a heinous crime, an element of a heinous crime or a heinous criminal, when it 1) considered as a whole, appeals to the depraved interest of minors in crime; and 2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and 3) considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
The Court finds the application of this test "elusive." See Video Software, 968 F.2d at 690 (adoption of Miller obscenity test for regulation of sale to minors of violent video cassettes void for vagueness). In a clear exposition of the inability of one of ordinary intelligence to reasonably know what is prohibited, Defendant's own psychological experts contradicted each other, and themselves, as to whether certain cards are "harmful to minors." Dr. Sandra Kaplan testified that a card depicting General Suharto from the Friendly Dictators, featuring 36 of America's Most Embarrassing Allies trading card set (Pl. Ex. 2) would not be harmful. (Tr. at 1:79.) Later, Dr. Kaplan testified that the very same card was harmful. (Tr. at 1:126.) In another example, Dr. Kaplan testified that a card depicting Rick Mazzeo from the Rotten to the Core, The Best and Worst of New York City's Politics (Pl. Ex. 4) trading card set was harmful.[fn 4] (Tr. at 1:60.) Another defendant expert, Dr. Miriam Miedzian, testified that the Rick Mazzeo card was "certainly not a problem." (Tr. at 2:70.)
The Court finds that under Local Law 11-1992, a person of ordinary intelligence cannot reasonably distinguish between those trading cards which are "harmful to minors" and those that are not. 92 S. Ct. at 2298-99.
The First Amendment requires that statutes imposing criminal sanctions for distribution of unprotected speech must contain a scienter requirement. New York v. Ferber, 458 U.S. 747, 765 (1982); Smith v. California, 361 U.S. 147, 151-53 (1959) (strict liability for possession of obscene material is unconstitutional as it carries the risk of self-censorship); Video Software, 968 F.2d at 690 (lack of knowledge requirement renders statute unconstitutional).
Moreover, "a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary', and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, 395 U.S. 6, 36 (1969); accord Young v. Abrams, 698 F.2d 131, 136 (2d Cir. 1983); see also Tot v. United States, 319 U.S. 463, 467-68 (1943).
Defendant asserts that "there is clearly a rational connection between the sale of trading cards depicting "heinous crimes" and/or "heinous criminals" and the presumption that one sold a package of these cards with knowledge of its contents." (Def. Mem. at 13). Contrary to Defendant's assertions, neither the United States Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968), nor the New York Court of Appeals in People v. Hartman, 244 N.E. 2d 710 (N.Y. 1968), endorsed the presumption provision of 235.22 of the New York State Penal Law. In fact, both cases were decided under 484-h, the earlier version of 235.22, which did not contain Section 4 of the present Nassau County Local Law 11-1992. See Ginsberg, 390 U.S. at 632 n. 1; Hartman, 244 N.E.2d at 711.
Nevertheless, the Court finds that the presumption provision of Nassau County Local Law 11-1992 is neither irrational nor arbitrary. Specifically, the Court concludes that it is more likely than not that a disseminator of trading cards depicting heinous crimes and/or criminals deemed harmful to minors would have knowledge of the general character and content of such materials. In so holding, the Court emphasizes that Section 4 of Local Law 11- 1992 merely sets forth a permissive, not mandatory inference of fact and is rebuttable. See Young, 698 F.2d at 136 (discussing New York Penal Law 235.10, which contains an almost identical presumption provision in the obscenity context). The presumption that a disseminator of trading cards had knowledge of the contents & character of his materials may constitutionally be substituted for direct evidence on the issue of scienter. See Young, 698 F.2d at 136-37; Overstock Book Co. v. Berry, 436 F.2d 1289, 1294 (2d Cir. 1970) (both cases upholding constitutionality of New York Penal Law 235.10); see also Smith, 361 U.S. at 154 ("Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.") (Brennan, J., opinion).
The law is overbroad in that all cards which depict violence are targeted, even if the violence is tangential or incidental.
The Court further finds that the law is vague and ambiguous in that no reasonable person can determine whether a particular trading card or set of cards taken as a whole is harmful to minors.
Finally, the Court finds that no credible or empirical evidence was presented from which this Court could conclude that the trading cards cause juvenile crime or impair moral and ethical development.
Despite this Court's findings and recommendations, the County's attempt to deal with a societal problem is praiseworthy. Today, more and more children are exposed to more and more senseless activity. Many are born addicted to narcotic drugs or with fetal alcohol syndrome. Unlike a generation ago, children today are raised in a culture where violence is depicted in the media on a daily basis. As a result, children are growing up desensitized to the horrors of the violence around them, which could very well predispose them to certain anti-social behaviors. But, however praiseworthy the local law and its goals, the County cannot enact legislation which fails to pass constitutional muster. The burdens of living in a democracy are great. One of those burdens is that we must often accept offensive or tasteless speech.
"Madison admonished us: A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power knowledge gives."
Writings of James Madison 103 (G. Hunt ed. 1910) as quoted in Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982).
Any objections to this report and recommendation must be filed with the Clerk of the Court with a copy to the undersigned within 15 days of the date of this report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992), cert. denied, 113 S. Ct. 825 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
Dated: Uniondale, New York, October 6, 1995
/s/MICHAEL L. ORENSTEIN United States Magistrate Judge
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