The faces and life stories of Jeffrey Dahmer, Charles Manson, and other infamous criminals are printed on baseball-like trading cards published by Eclipse Enterprises in California.

In response to Eclipse's "True Crime" card series, Nassau County in New York passed an ordinance making it illegal to sell to minors trading cards that depict a "heinous crime, an element of a heinous crime, or a heinous criminal."

Eclipse brought suit against the county for violating its right to free speech. This is the magistrate's Oct. 6, 1995 report and recommendation.

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
 
 
ECLIPSE ENTERPRISES, INC., et al., 
 
Plaintiffs, 
 
-against- 
 
THOMAS GULOTTA, et al., 
 
Defendants. 
 
 
REPORT AND RECOMMENDATION 
 
CV 92-3416 (ADS) 
 
 
ORENSTEIN, United States Magistrate Judge  
 
 
INTRODUCTION 
 
Plaintiff Eclipse Enterprises, Inc. ("Eclipse") challenges the 
constitutionality of Nassau County Local Law Number 11-1992 
which makes it a Class A misdemeanor to sell to minors trading 
cards which depict a "heinous crime, an element of a heinous 
crime, or a heinous criminal and which is harmful to minors." 
(Local Law 11- 1992 is attached herein as an appendix to the 
Report and Recommendation). Plaintiff publishes "True Crime" 
trading cards, and other sets of trading cards similar in kind 
which are targeted by the ordinance. Defendant County of 
Nassau ("County") asserts that the ordinance is an appropriate 
exercise of its power to protect the welfare of children.[fn 1]  
 
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."  
 
DISCUSSION 
 
The stated purpose of Local Law 11-1992 is to protect the 
welfare of children generally, and 1) prevent juvenile crime and 
2) ensure the proper moral and ethical development of county 
youth specifically. Local Law 11-1992 Section 1. The 
substantive portion then attempts to execute its intent by 
criminalizing the sale of trading cards containing depictions of 
violence and criminals to children under the age of seventeen.  
 
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. 
 
1. Protected Speech 
 
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.  
 
2. Content-Based Ordinance 
 
Laws that "by their terms distinguish favored speech from 
disfavored speech on the basis of the ideas or views expressed 
are content-based." Turner Broadcasting System, Inc. v. F.C.C., 
114 S. Ct. 2445, 2459 (1994). Regulations which attempt to 
control expression on the basis of content are presumptively 
invalid. Simon & Schuster v. N.Y. Crime Victims Board, -- U.S. 
--, 112 S. Ct. 501, 508 (1991); Regan v. Time, Inc., 468 U.S. 
641, 648-49 (1984). The danger of such regulations is that 
government may effectively drive certain ideas or viewpoints 
from the marketplace based solely on disagreement with the 
message conveyed. Simon & Schuster, 112 S. Ct. at 508. The 
Supreme Court has repeatedly warned against prohibiting 
expression simply because society finds the idea offensive or 
disagreeable. See, e.q., Texas v. Johnson, 491 U.S. 397, 414 
(1989); Hustler Magazine Inc. v. Falwell, 485 U.S. 46, 55 
(1988) ("the fact that society may find speech offensive is not a 
sufficient reason for suppressing it.").  
 
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) .  
 
3. Narrowly Tailored 
 
No empirical evidence, beyond mere speculation or conjecture, 
was presented at the hearing from which the Court could find 
any causal connection between the sale to minors of this genre 
of trading cards and juvenile crime or that such sale impairs the 
ethical or moral development of minors.  
 
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.  
 
4. Overbreadth 
 
Under the law, heinous crime has been defined as "murder, 
assault, kidnapping, arson, burglary, robbery or other sexual 
offenses." Local Law 11-1992 Section 2. Plaintiff argues that 
the law is overbroad and sweeps within its prohibition virtually 
all discussion of history, politics, and current events. (Pl. Mem. 
at 16-17.) Defendant argues that the overbreadth doctrine must 
be employed only as a last resort. (Def. Mem. at 6). The County 
further argues that in any event, the statute's clearly defined 
terms prevent application of the ordinance in an overbroad 
manner. (Id. at 6-7.)  
 
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]  
 
5. Vagueness 
 
Plaintiff also maintains that the law is void for vagueness. (Pl. 
Mem. at 17.) Defendant claims that the statutory language 
provides explicit definitions from which an ordinary person 
could determine which trading cards could not be sold to 
minors. (Def. Mem. at 9.) Local Law 11-1992 requires a 
determination not only of whether the particular cards contain 
depictions of "heinous crimes or "heinous criminals," but also 
whether the particular card is "harmful to minors." Plaintiff does 
not dispute that the ordinance provides explicit definitions and 
guidelines with respect to what is a "heinous crime" or "heinous 
criminal." (Pl. Mem. at 18.) The plaintiff challenges the 
vagueness of the term "harmful to minors." Id.  
 
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.  
 
6. The Statutory Presumption 
 
Section 4 of the ordinance provides for a presumption of 
"knowledge of the character and content of the material sold or 
loaned." Local Law 11-1992 Section 4. Plaintiff challenges the 
ordinance on the basis that it imposes strict liability on one who 
disseminates speech in the form of trading cards targeted by the 
local law. (Pl. Mem. at 19.) Defendant asserts that the 
presumption is a proper inference which may substitute for 
direct evidence of intent. (Def. Mem. at 12.).  
 
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).  
 
CONCLUSION 
 
Based upon the foregoing, this Court reports and recommends 
that Nassau County Local Law 11-1992 is an unconstitutional 
restriction on the distribution of free speech and ideas. The law 
is not narrowly tailored to further the ordinance's stated 
purposes of preventing juvenile crime and protecting the welfare 
of children under the age of 17.  
 
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).  
 
SO ORDERED. 
 
Dated: Uniondale, New York, October 6, 1995  
 
/s/MICHAEL L. ORENSTEIN 
United States Magistrate Judge 
 
 
Endnotes 
 
1.  In the defendant's Post-hearing memorandum of law, the 
defendant argues that the law is a permissible regulation of 
commercial speech. (Def. Mem. at 16.) The Court finds no merit 
to this argument. See Virginia State Bd. of Pharmacy v. Virginia 
Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) 
(commercial speech is limited to that which proposes a 
commercial transaction).  
 
2.  In citing to transcripts of the hearing, the designation N:pp 
indicates the volume number followed by the page number. 
Volume 1 of the transcript refers to that portion of the hearing 
conducted on March 23, 1994; Volume 2, March 28, 1994; 
Volume 3, April 7, 1994; Volume 4, May 16, 1994; and Volume 
5, May 23, 1994.  
 
3.  In a recent case before the District of Columbia Circuit 
Court, Action For Children's Television v. FCC, 1995 WL 
384630 (D.C. Cir. 6/95), the court concluded that the Public 
Communications Act of 1992, which banned indecent 
broadcasting on television between the hours of 6:00 A.M. until 
midnight, was constitutional. That case is distinguishable due to 
the unique nature of broadcasting, and the limited First 
Amendment concerns in that context. The trading cards in 
question do not present the "captive audience" or unwilling 
listener problem, and involve more serious First Amendment 
concerns. The cards, similar to the indecent phone call in Sable, 
require affirmative acts to obtain a desired message. 
Unsuspecting or innocent youngsters are not in danger of 
viewing the cards, like a passing indecent scene on television or 
the evening television news broadcasts.  
 
The Communications Act seeks to channel indecent messages to 
certain times of the day, while the Nassau County law attempts 
to ban all sales of cards to minors at all times. Lastly, the 
Nassau County law is broadly defined and supported by 
minimal evidence, while the Public Communications Act is 
narrowly defined, and adequately supported by FCC studies.  
 
4.  The Court also notes that Dr. Kaplan's courtroom testimony 
with respect to the Rick Mazzeo card was different than at her 
deposition. (Tr. at 1:60.)