text:
    Louise Steinhilber, Appellant, v John M. Alphonse, as President of the Communications Workers of America, Local 1120, Defendant, and Richard Martini et al., Respondents.
    Argued September 2, 1986;
    decided October 23, 1986

      POINTS OF COUNSEL

      Jon A. Simonson and John F. Tobin for appellant.
    I. Being mixed rather than pure expressions of opinion, the defamatory statements made in the taped telephone message and in the banner were not constitutionally protected. (Cole Fisher Rogow, Inc. v Carl Ally, Inc., 29 AD2d 423, 25 NY2d 943; Hoeppner v Dunkirk Print. Co., 254 NY 95; Triggs v Sun Print. & Pub. Assn., 179 NY 144; Grower v State of New York, 23 AD2d 506, 19 NY2d 625; Briarcliff Lodge Hotel v Citizen-Sentinel Publishers, 260 NY 106, 261 NY 537; Lauderback v American Broadcasting Cos., 741 F2d 193; Gertz v Robert Welch, Inc., 418 US 323; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Rand v New York Times Co., 75 AD2d 417.) II. The taped telephone message and the banner constituted libel rather than slander. (Hartmann v Winchell, 296 NY 296; Matherson v Marchello, 100 AD2d 233; Shor v Billingsley, 4 Misc 2d 857.) III. Whether they constituted libel or slander, the taped telephone message and the banner were actionable per se and thus the pleading of special damages was not required. (Sydney v MacFadden Newspaper Pub. Corp., 242 NY 208; Tracy v Newsday, Inc., 5 NY2d 134; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Matherson v Marchello, 100 AD2d 233; Cruikshank v Gordon, 118 NY 178; Nadrowski v Wazeter, 29 AD2d 741, 23 NY2d 899.) IV. Defendant Martini’s taped telephone message was not made in the course of a labor dispute, was made with malice, and was not protected by Federal labor law. (Linn v Plant Guard Workers, 383 US 53; Letter Carriers v Austin, 418 US 264.) V. A jury should determine whether defendants acted maliciously and are not protected by a "qualified privilege” to communicate with union members. (Shapiro v Health Ins. Plan, 7 NY2d 56; Andrews v Gardiner, 224 NY 440; Thomas v Flavin, 58 AD2d 1031; O’Rorke v Carpenter, 55 NY2d 798; Byam v Collins, 111 NY 143; Toker v Pollak, 44 NY2d 211; Ostrowe v Lee, 256 NY 36.)

      Stephen L. Fine for respondents.
    I. Because the words complained of fall within the protection of Federal labor policy favoring free speech, Steinhilber was required to show "actual malice” and special damages. (Letter Carriers v Austin, 418 US 264; Thomas v Flavin, 58 AD2d 1031; Barclay’s Ice Cream Co. v Local No. 757, 41 NY2d 269, 436 US 925; National Labor Relations Bd. v Silver Spur Casino, 623 F2d 571, 451 US 906, 452 US 931; Central Hardware Co. v NLRB, 407 US 539; National Labor Relations Bd. v Associated Milk Producers, 711 F2d 627; Mushroom Transp. Co. v National Labor Relations Bd., 330 F2d 683; Randolph Div. v National Labor Relations Bd., 513 F2d 706; Pioneer Natural Gas Co. v

      National Labor Relations Bd., 662 F2d 408; Dreis & Krump Mfg. Co. v National Labor Relations Bd., 544 F2d 320.) II. Defendants’ statements are constitutionally protected expressions of opinion, not actionable statements of fact. (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Hotchner v CastilloPuche, 551 F2d 910, cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; Rand v New York Times Co., 75 AD2d 417; Lyons v New Am. Lib., 78 AD2d 723, appeal withdrawn sub nom. Lyons v Breslin, 53 NY2d 704; Aronson v Wiersma, 65 NY2d 592; Silsdorf v Levine, 59 NY2d 8, 464 US 831; James v Gannett Co., 40 NY2d 415, 990; Cianci v New Times Pub. Co., 639 F2d 54; Edwards v National Audubon Socy., 556 F2d 113, cert denied sub nom. Edwards v New York Times Co., 434 US 1002; Buckley v Littell, 539 F2d 882, 429 US 1062.) III. Defendants’ statements were not defamatory per se as a matter of law and plaintiff’s failure to show special damages required dismissal of her claims. (Ostrowe v Lee, 256 NY 36; Privitera v Town of Phelps, 79 AD2d 1, 53 NY2d 796; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Lyons v New Am. Lib., 78 AD2d 723; Klein v McGauley, 29 AD2d 418; Hartmann v Winchell, 296 NY 296; Grinaldo v Meusburger, 34 AD2d 586, 27 NY2d 598; Shor v Billingsley, 4 Misc 2d 857, 4 AD2d 1017, 5 AD2d 768; Ladany v Morrow & Co., 465 F Supp 870.)
   OPINION OF THE COURT

Hancock, Jr., J.

It is a settled rule that expressions of an opinion "false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions” (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380, cert denied 434 US 969). The question here is whether the Appellate Division has properly applied this rule in dismissing plaintiff’s defamation action under CPLR 3211 (a) (7) upon the ground that the two allegedly defamatory communications, complained of in separate causes of action, are pure opinions and, as such, not actionable as a matter of law.

I

The essential facts appear from plaintiff’s complaint and her supplementary affidavit. Plaintiff was a member of defendant Communications Workers of America, Local 1120, and employed at New York Telephone Company in Saugerties, New York. On August 7, 1983 the union declared a strike. Plaintiff continued to work and did so as a union member in violation of the strike order and union rules until August 11, 1983 when she resigned from the union. In January 1984 the union assessed a fine against her for working during the strike, and, in March of that year, the membership authorized the officers of the union to take necessary steps to collect the fine which she had not paid.

The communication giving rise to plaintiffs first cause of action was a tape-recorded telephone message made by defendant Martini, vice-president of Local 1120, which played automatically on April 25, 1984 to anyone dialing the private telephone number provided to union members. (The union maintained a telephone answering and information service for its members.) The recorded message stated: "Wednesday, April 25th It is with amazement I report to you, the good membership of this union that Louise the scab Steinhilber has been named secretary of the week by a local radio station. Even further beyond comprehension is the fact that a union member, Barbara Van Etten, is the one who called the radio station to suggest Louise the scab be considered for what should be an honorable position. In Barbara’s case, brains aren’t everything. In fact, in her case they are nothing. She has a soft heart and a head to match. Louise the scab, years ago, she was an unknown failure. Now she is a known failure. She lacks only three things to get ahead, talent, ambition, and initiative. But she has friends. In fact, if you have her for a friend, you don’t need any enemies. In times of trouble, she is waiting to catch you * * * bent over at the right angle. At least, she looks like a million, every year of it. Her boyfriend drinks ten cups of coffee a day to steady his nerves, just so he can look at her face. When she comes into a room, the mice jump up on chairs. But she could be a perfect model, for a shipbuilder. If she ever gets into an elevator, if she could fit in it, it better be going down. And, in case I haven’t made my point, 1986 is closing in upon all of us. Let’s choose our friends by their deeds. Only in solidarity can we expect to be successful. For the Communication Workers of America, Local 1120, this is Rick Martini.”

Plaintiff bases her second cause of action on a banner displayed on August 11, 1983 — during picketing activity — on the pickup truck of defendant Schatzel, the area representative of Local 1120. The words on the banner, which plaintiff concedes "formed a part of the [union] protests,” were:

"#1 SCAB LOUISE STEINHILBER SUCKS”.

Defendants moved to dismiss both causes of action on two grounds: (1) that because the communications grew out of a labor dispute and were entitled to the protection afforded by section 7 of the National Labor Relations Act (29 USC § 158 [c]), the allegations of malice and of actual damage in the complaint were insufficient and the complaint was subject to dismissal under the rules established in Letter Carriers v Austin (418 US 264) and Linn v Plant Guard Workers (383 US 53); and (2) that, in any event, the communications were statements of pure opinion, not statements of fact or of mixed fact and opinion, and, as such, not actionable. Because it was not alleged that defendant Schatzel was connected in any way with the taped message or that defendant Martini had had anything to do with the display of the banner, Special Term dismissed the first cause of action as to Schatzel and the second as to Martini. In all other respects, it denied the motion.

The majority at the Appellate Division held that the banner, but not the taped message, was a communication made "in the context of a labor dispute” (115 AD2d 844, 845). It did not, however, reach the question of the adequacy of the complaint under Letter Carriers v Austin (supra) and Linn v Plant Guard Workers (supra), because it concluded that both communications were statements of pure opinion and that the complaint should, for that reason, be dismissed. The Appellate Division, therefore, modified the order and granted the motion dismissing the complaint in its entirety. The dissenters at the Appellate Division would have denied the motion as to the first cause of action holding that the statement in the taped recorded message — "she lacks only three things to get ahead, talent, ambition, and initiative” — was an expression of mixed fact and opinion which, as distinguished from a statement of pure opinion, is actionable (115 AD2d 844, 847-848).

For reasons which will appear, we agree with the majority at the Appellate Division that both statements in issue were expressions of pure opinion. The order dismissing the complaint should, therefore, be affirmed. We find it unnecessary to reach defendant’s contentions that the statements arose out of a labor dispute and that the complaint does not contain the allegations of malice and actual damages required by Letter Carriers and Linn.

II

In addressing the decisive question, whether the statements are opinions and thus privileged, we observe that in framing the issue both parties have assumed the applicability of Gertz v Robert Welch, Inc. (418 US 323). Under Gertz, if the statements are held to be expressions of opinion, they are entitled to the absolute protection of the First Amendment by virtue of the Supreme Court’s categorical statement that: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas” (418 US, at pp 339-340, supra).

The rule to be applied may be simply stated. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be (see, Rinaldi v Holt, Rinehart & Winston, supra, at p 380; Gertz v Robert Welch, Inc., supra, at pp 339-349). A "pure opinion” is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless, be "pure opinion” if it does not imply that it is based upon undisclosed facts (see, Ollman v Evans, 750 F2d 970, 976 [DC Cir], cert denied 471 US 1127; Buckley v Littell, 539 F2d 882, 893 [2d Cir], cert denied 429 US 1062; Restatement [Second] of Torts § 566 comment c). When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion” and is actionable (see, Hotchner v CastilloPuche, 551 F2d 910, 913 [2d Cir], cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834; cf. Cianci v New Times Pub. Co., 639 F2d 54, 64, 65 [2d Cir]). The actionable element of a "mixed opinion” is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking. (Rand v New York Times Co., 75 AD2d 417, 422; cf. Silsdorf v Levine, 59 NY2d 8, 14, where the complaint alleged not only that the opinion was defamatory but that the accompanying recitation of facts upon which it was based was either a "gross distortion” or "misrepresentation of fact”.)

While it is clear that expressions of opinion receive absolute constitutional protection under Gertz, determining whether a given statement expresses fact or opinion may be difficult. The question is one of law for the court and one which must be answered on the basis of what the average person hearing or reading the communication would take it to mean (see, Rinaldi v Holt, Rinehart & Winston, supra, at p 381; Mr. Chow of N. Y. v Ste. Jour Azur S.A., 759 F2d 219, 227-228). There is no definitive test or set of criteria (see, Mr. Chow of N. Y. v Ste. Jour Azur S.A., supra, at pp 225-226). The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion (see, Restatement [Second] of Torts § 566 comment c).

While the Supreme Court in Gertz did not focus on the distinction between fact and opinion, the court, in a case decided on the same day as Gertz, Letter Carriers v Austin (418 US 264, supra), has provided a helpful precedent. In Letter Carriers, involving a newsletter sent out during a labor dispute, the question involved libel judgments based on references to plaintiffs as "scabs” followed by a quoted description of a "scab” as "a traitor to his God, his country, his family and his class” attributed to author Jack London. In reversing the judgments and holding that the "scab” description was absolutely protected under the National Labor Relations Act, the court considered both the context of the entire communication and the type of "intemperate, abusive, or insulting language” (id,., at p 283) that would commonly be employed in the particular social setting of a labor dispute. It concluded that no reader of the newsletter would have understood the union "to be charging the appellees with committing the criminal offense of treason” and that London’s words were "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join” (id., at pp 285, 286). (See also, Greenbelt Pub. Assn. v Bresler, 398 US 6, 14, relied on in Letter Carriers v Austin, supra, where the court weighed the broader social context in considering news reports of statements made at a public zoning meeting characterizing plaintiff’s negotiating position as "blackmail” and concluded that "even the most careless reader must have perceived that the word ['blackmail’] was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [plaintiff’s] negotiating position extremely unreasonable”.)

We eschew any attempt here to reduce the problem of distinguishing fact from opinion to a rigid set of criteria which can be universally applied. The infinite variety of meanings conveyed by words — depending on the words themselves and their purpose, the circumstances surrounding their use, and the manner, tone and style with which they are used — rules out, in our view, a formulistic approach. A court must have the flexibility to consider the relevant factors and to accord each the degree of importance which the specific circumstances warrant. It should be noted, however, that in adopting various approaches to separating fact from opinion, some courts have emphasized specific criteria and set forth general guidelines. (See, e.g., Mr. Chow of N. Y. v Ste. Jour Azur S.A., 759 F2d 219, 225-226 [2d Cir], supra, adopting and applying analysis set forth in plurality opn in en banc decision in Ollman v Evans, 750 F2d 970, cert denied 471 US 1127, supra; Ollman v Evans, supra, at pp 977-984, majority opn, Starr, J., positing a four-factor analysis [discussed infra]; but see, Oilman, concurring opn, Bork, J., at pp 993-1010, rejecting any "mechanistic rule” based on the semantic nature of the assertion in favor of a determination on "totality of the circumstances”; and see also, Oilman, concurring opn MacKinnon, J., at p 1016, and Oilman, dissenting in part opn, Robinson, Ch. J., at pp 1021-1028; Information Control Corp. v Genesis One Computer Corp., 611 F2d 781 [9th Cir], adopting a multifactor, totality of circumstances test; Hotchner v Castillo-Puche, 551 F2d 910, 913 [2d Cir], cert denied sub nom. Hotchner v Doubleday & Co., 434 US 834, supra, emphasizing the verifiability vel non of the statement in issue; Buckley v Littell, 539 F2d 882, 895 [2d Cir], cert denied 429 US 1062, supra, concentrating on the context of the statement and whether the concept conveyed was "loosely definable”, and "variously interpretable”.)

While none of the opinions in the Federal cases cited above purports to devise a universal test, several discuss general criteria. One, which contains a helpful discussion, is Judge Starr’s plurality opinion in Ollman v Evans (supra), setting out four factors which should generally be considered in differentiating between fact and opinion. The four factors are: (1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might "signal to readers or listeners that what is being read or heard is likely to be opinion, not fact” (Ollman v Evans, supra, at p 983; see, discussion of four factors, id., at pp 978-984).

Ill

In analyzing whether the statements that plaintiff lacked "talent, ambition, and initiative” would be understood by the average listener as pure opinion or as implying that the speaker had an undisclosed basis for the statements, as plaintiff contends, we first examine the content of the whole communication as well as its tone and its apparent purpose. Like Jack London’s description of a "scab” (n 2, supra) it is evident that the tape-recorded message was intended to be invective expressed in the form of heavy-handed and nonsensical humor. In what could be viewed as a clumsy effort to imitate London, the message strives in a juvenile way to achieve humor in, for example, the comments that plaintiff "looks like a million, every year of it”, that her "boyfriend drinks ten cups of coffee a day to steady his nerves, just so he can look at her face”, and that when plaintiff "comes into a room, the mice jump up on chairs.” The sentence which plaintiff selects from the message and claims is "factually laden” — impugning her as lacking in "talent, ambition, and initiative” 6 — is preceded and followed by statements which are clearly part of the attempt at humor prevailing throughout: "In Barbara’s case, brains aren’t everything. In fact, in her case they are nothing. She has a soft heart and a head to match. Louise the scab, years ago, she was an unknown failure. Now she is a known failure. She lacks only three things to get ahead, talent, ambition, and initiative. But she has friends. In fact, if you have her for a friend, you don’t need any enemies. In times of trouble, she is waiting to catch you * * * bent over at the right angle” (emphasis added). We conclude, contrary to the view expressed in the dissent at the Appellate Division, that the statement’s verbal context would clearly suggest to the ordinary person listening to the message that the comment concerning plaintiff’s lack of "talent, ambition, and initiative”, like the rest of the message, was not intended to be understood as an assertion of fact or as opinion based on undisclosed facts.

Consideration of the circumstances and of the broader social context (i.e., the factual background leading to the preparation of the tape recording for the union members possessing the special number of the information line) confirms the conclusion that the recorded message would be taken by the ordinary person not literally, but figuratively. As noted, we do not reach defendants’ contention that the taped message was protected speech under the National Labor Relations Act. But it by no means follows that we may not, for the purpose of distinguishing fact from opinion, consider the most significant circumstance of the broader social context: that the message was prepared and played as part of the union’s effort to punish a former member. Plaintiff concededly was a "scab” during the strike. For defiance of the strike order, the union assessed a fine against her which she did not pay. In the emotional aftermath of a strike when animosity would be expected to persist — particularly against a former member who was seen as a "traitor” to the cause — it is not surprising that union officials would speak of plaintiff to the membership in highly unflattering terms. As observed by the Supreme Court in Letter Carriers: "such exaggerated rhetoric [as applying the word 'traitor’ to an employee who crossed the picket line] [is] commonplace in labor disputes” (418 US 264, 286, supra). An analysis of the statement that plaintiff lacks "talent, ambition, and initiative” in the light of the third and fourth Oilman factors (the full verbal context of the statement and its broader social context) thus compels the conclusion that the statement would be taken as pure opinion.

To be sure, in another context, a flat statement that a person lacks talent or ambition or initiative might be viewed as a factual assertion, if considered under the first and second Oilman factors: whether the statement is sufficiently specific to convey "a precise core of meaning for which a consensus of understanding exists” (Ollman v Evans, supra, at p 979) and whether it is "capable of being objectively characterized as true or false” (Ollman v Evans, supra, at p 979). But, "even apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an 'audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole’ ” (Information Control Corp. v Genesis One Computer Corp., 611 F2d 781, 784 [9th Cir], supra). Here, the inescapable conclusion from the verbal context of the entire message and all of the circumstances under which it was delivered is that the statement would be understood by the ordinary listener for what it is: a tasteless effort to lampoon plaintiff for her activities as a "scab”, conduct which to the union was an unpardonable transgression.

What we have said applies with even greater force to plaintiff’s second cause of action based on the scurrilous banner displayed as part of the picketing activity during the strike. The majority at the Appellate Division held that the banner, in "the context in which the statement was made”, was intended as "an expression of disapproval” and that it was, as such, an opinion and not actionable (115 AD2d 844, 847). We agree with these conclusions and observe that the dissenters at the Appellate Division have not taken issue with them.

The order of the Appellate Division should, therefore, be affirmed, with costs.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs.

      . Accordingly, we do not consider whether the statements in issue could he viewed as speech about a private person by nonmedia defendants concerning matters which arguably were not of public concern and, thus, not constitutionally protected under Gertz v Robert Welch, Inc. (418 US 323) (see, Philadelphia Newspapers v Hepps, 475 US —, 106 S Ct 1558, 1562-1564; Dun & Bradstreet v Greenmoss Bldrs., 472 US 749, 757-762) or whether the statements could be actionable absent such constitutional protection (see, Restatement [Second] of Torts § 566 comment c, at 173).

      . Although the statement is dictum, it has been interpreted by a majority of Federal courts and our court (see, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 380) as a statement of controlling law that an expression of an opinion is absolutely protected (see, Oilman v Evans, 750 F2d 970, 974, n 6; but see, Oilman, concurring opn Bork, J., id., at pp 998, 999).

      . The rule as set forth in the Restatement (Second) of Torts § 566 is as follows: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”

      . London’s full description follows:
      "The Scab
      "After God had finished the rattlesnake, the toad, and the vampire, He had some awful substance left with which He made a scab.

        "A scab is a two-legged animal with a corkscrew soul, a water brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.
      "When a scab comes down the street, men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of hell to keep him out.
      "No man (or woman) has a right to scab so long as there is a pool of water to drown his carcass in, or a rope long enough to hang his body with. Judas was a gentleman compared with a scab. For betraying his Master, he had character enough to hang himself. A scab has not.
      "Esau sold his birthright for a mess of pottage. Judas sold his Savior for thirty pieces of silver. Benedict Arnold sold his country for a promise of a commission in the British Army. The scab sells his birthright, country, his wife, his children and his fellowmen for an unfulfilled promise from his employer.

        "Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class. ” (418 US 264, 268 [emphasis supplied].)

      . Although it was not emphasized in the briefs or at argument, plaintiff also contends that the statement "she is a known failure” is an assertion of fact, not an opinion. Our comments concerning the verbal and broader social context of the communication apply equally, of course, to this contention. Moreover, the bald statement that someone is a "failure”, standing alone and removed from any context, would, we believe — even more than an assertion that a person lacks "talent, ambition, and initiative” — be understood as opinion.


source: Caselaw Access Project

author: Simons, J. Hancock, Jr., J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v P. J. Video, Inc., Doing Business as Network Video, and James Erhardt, Respondents.
    Argued September 8, 1986;
    decided October 28, 1986

      POINTS OF COUNSEL

      Richard J. Arcara, District Attorney (John J. DeFranks and Jo W. Faber of counsel), for appellant.
    The search warrant at issue should be upheld under the New York State Constitution. (Roaden v Kentucky, 413 US 496; Marcus v Search Warrant, 367 US 717; People v P. J. Video, 65 NY2d 566; People v Johnson, 66 NY2d 398; People v Smith, 59 NY2d 454; A Quantity of Books v Kansas, 378 US 205; Lee Art Theatre v Virginia, 392 US 636; Stanford v Texas, 379 US 476; Heller v New York, 413 US 483; Franks v Delaware, 438 US 154.)

      Paul J. Cambria, Jr., and Mary Good for respondent.
    I. The decision of the Court of Appeals was based on its interpretation of the New York State Constitution and it should be affirmed on remand. (People v Class, 67 NY2d 431; People v Johnson, 66 NY2d 398; People v Potwora, 48 NY2d 91; People v Hanlon, 36 NY2d 549; Roaden v Kentucky, 413 US 496; People v Abronovitz, 31 NY2d 160; Roth v United States, 354 US 476.) II. The Court of Appeals should reaffirm the principles expressed in its opinion under NY Constitution, article I, § 8. (Cooper v Morin, 49 NY2d 69; Marcus v Search Warrant, 367 US 717; People v Rothenberg, 20 NY2d 35; Stanford v Texas, 379 US 476; SHAD Alliance v Smith Haven Mall, 66 NY2d 496; Lee Art Theatre v Virginia, 392 US 636; Illinois v Gates, 462 US 213; Heller v New York, 413 US 483; Franks v Delaware, 438 US 154.)
   OPINION OF THE COURT

Simons, J.

In our earlier decision in this case (65 NY2d 566), we held that the issuing magistrate erred in approving a warrant authorizing the seizure of video cassette films as evidence that defendants were promoting obscenity. The warrants were void, we said, although supported by police affidavits itemizing several scenes of patently offensive sexual conduct, because the evidence before the magistrate did not establish probable cause to believe that the films were obscene within the three-part definition of Penal Law § 235.00. On certiorari review the Supreme Court of the United States found the evidence satisfied the requirements of the Fourth Amendment to the Federal Constitution and it therefore reversed our decision and remanded the case to us so that we could decide whether article I, § 12 of the State Constitution imposes a more exacting standard for the issuance of search warrants authorizing the seizure of allegedly obscene material than does the Federal Constitution (People v P. J. Video, 65 NY2d 566, 572, revd & remanded New York v P. J. Video, 475 US —, 106 S Ct 1610). We hold that it does and we therefore affirm the order of County Court suppressing the films.

I

The appeal arises from proceedings instituted in the Village of Depew Justice Court charging defendants with multiple counts of obscenity in the third degree based upon their knowing possession, with intent to promote, of allegedly obscene video cassette films (Penal Law § 235.05 [1]). After arraignment, defendants moved to suppress the films contending that the warrant authorizing seizure was not based on probable cause. Justice Court granted the motion and dismissed the informations. County Court affirmed its order and a Judge of this court granted the People leave to appeal. Upon review we addressed both procedural and substantive issues. The procedural issue concerned the extent of the inquiry a magistrate must make before issuing a warrant to seize materials that may enjoy First Amendment protection. Inasmuch as the magistrate had not viewed the films nor questioned the police but rather relied solely on the police officer’s affidavit for each film, the substantive issue posed was whether the affidavits presented sufficient evidence to enable the magistrate to make an objective determination that there existed probable cause to seize the films because they constituted the fruits, instrumentalities or evidence of a crime. Applying established law, we resolved the procedural issue by stating that the determination of probable cause had to be made by the magistrate, not the police, that it had to be made from information submitted or available to him, and that — because the materials presumptively enjoyed First Amendment protection — the magistrate was required to perform his duty with "scrupulous exactitude” (People v P. J. Video, 65 NY2d 566, 569-570, supra, citing Stanford v Texas, 379 US 476, 481-485). We held that the magistrate was not required to view the films, or even supplement the affidavits by questioning the investigating officers. If he relied solely on affidavits, however, the allegations contained in them had to satisfy the legal standards of probable cause, i.e., the information must be sufficient to warrant a person of reasonable caution in the belief that a crime has been committed or that evidence of a crime would be found in a particular place (see, e.g., People v Bigelow, 66 NY2d 417, 423; Wong Sun v United States, 371 US 471, 479; see also, 1 LaFave, Search and Seizure § 3.1 [b]; § 3.7 [d]).

On the substantive issue, we noted that before a person may be found guilty of promoting obscenity the materials he promotes must be more than sexually explicit, they must be obscene under the statutory definition. That definition contains three elements: the material must not only be patently offensive but also, when considered as a whole and judged by the average person applying contemporary community standards, its predominant appeal must be to prurient sex, and it must lack serious literary, artistic, political and scientific value (see, People v P. J. Video, 65 NY2d 566, 572, supra [construing Penal Law §235.00 (l)]). Acknowledging that, in this case, the magistrate had cause to believe that the films violated paragraph (b) of the statutory definition, we held that he nevertheless erred because the affidavits on which he acted contained only an itemized list of sexual acts, and the police officer’s conclusory assertion that the list represented the "content and character” of the films or that such scenes appeared "throughout” the films. Accordingly, we held the magistrate did not have probable cause to support issuance of a warrant to seize the films as evidence of the crime of promoting obscenity because he had permitted the police officer to make the determination for him that the films as a whole appealed predominantly to prurient sex and lacked value (People v P. J. Video, 65 NY2d 566, 572, supra).

On certiorari review, the Supreme Court judged probable cause by applying the totality of the circumstances/fair probability test of Illinois v Gates (462 US 213). The Gates rule originally was adopted to test the reliability of anonymous informants’ tips. It overruled the established two-pronged Aguilar-Spinelli test (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) which required a court to review both the basis of the informant’s knowledge and the reliability of his information, to permit a magistrate to now decide whether, given all the circumstances set forth in the police affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. In this case, the Supreme Court extended the reach of this "totality of the circumstances/fair probability” standard and applied it, for the first time, to an obscenity case to permit the magistrate to focus generally on the explicit nature of pornographic material without specifically considering the other statutory elements of the crime (see, New York v P. J. Video, 475 US —, 106 S Ct 1610, 1615-1616, supra [construing Gates]). Having done so, it remanded the case to us for our further consideration.

II

State courts are bound by the decisions of the Supreme Court when reviewing Federal statutes or applying the Federal Constitution. Under established principles of federalism, however, the States also have sovereign powers. When .their courts interpret State statutes or the State Constitution the decisions of these courts are conclusive if not violative of Federal law. Although State courts may not circumscribe rights guaranteed by the Federal Constitution, they may interpret their own law to supplement or expand them (see, e.g., PruneYard Shopping Center v Robins, 447 US 74, 81; Cooper v California, 386 US 58, 62; see also, 1 Rotunda, Nowak and Young, Constitutional Law § 1.6 [a]; see, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489 [1977]). Thus, notwithstanding that the evidence before the magistrate was sufficient to establish probable cause under the Federal Constitution, we have the power on remand to interpret article I, § 12 of the New York Constitution as requiring more. We turn then to the question whether we should measure probable cause in this case by different standards under the State Constitution.

Courts and commentators have identified many considerations and concerns upon which a State court may rely when determining that its Constitution accords greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution (see generally, State v Hunt, 91 NJ 338, 450 A2d 952 [Handler, J., concurring]; Symposium: Emergence of State Constitutional Law, 63 Tex L Rev 959-1318 [1985]; Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731 [1982]; Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv L Rev 1324-1502 [1982]; Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873, 934-944 [1976]). One basis for relying on the State Constitution arises from an interpretive review of its provisions. If the language of the State Constitution differs from that of its Federal counterpart, then the court may conclude that there is a basis for a different interpretation of it (see, Maltz, Dark Side of State Court Activism, 63 Tex L Rev 995, 1000-1001). Such an analysis considers whether the textual language of the State Constitution specifically recognizes rights not enumerated in the Federal Constitution; whether language in the State Constitution is sufficiently unique to support a broader interpretation of the individual right under State law; whether the history of the adoption of the text reveals an intention to make the State provision coextensive with, or broader than, the parallel Federal provision; and whether the very structure and purpose of the State Constitution serves to expressly affirm certain rights rather than merely restrain the sovereign power of the State. To contrast, noninterpretive review proceeds from a judicial perception of sound policy, justice and fundamental fairness (see, id., at 1001). A noninterpretive analysis attempts to discover, for example, any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.

Our determination rests on noninterpretive grounds. We rely principally on established Federal and State law because we believe the arguments supporting that body of law are more persuasive than the arguments supporting application of the Gates rule in this obscenity case, and are consistent with the admonition of an earlier Supreme Court that constitutional provisions for the security of persons and property are to be liberally construed (see, Boyd v United States, 116 US 616, 634). Our decision, however, is also based on principles of federalism and on New York’s long tradition of interpreting our State Constitution to protect individual rights. In this case, we consider two fundamental rights, the right of free expression and the right of citizens to be free from unlawful governmental intrusions.

Ill

In the past we have frequently applied the State Constitution, in both civil and criminal matters, to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties (see, e.g., Rivers v Katz, 67 NY2d 485 [right of involuntarily committed mental patients to refuse antipsychotic medication]; Bellanca v State Liq. Auth., 54 NY2d 228, cert denied 456 US 1006 [blanket ban on topless dancing]; Sharrock v Dell Buick-Cadillac, 45 NY2d 152 [statutory provisions for foreclosure of garageman’s possessory lien]; People v Isaacson, 44 NY2d 511 [due process limits on police conduct]; People v Hobson, 39 NY2d 479 [right to counsel]; see generally, Galie, State Constitutional Guarantees and Protection of Defendants’ Rights: The Case of New York 1960-1978, 28 Buffalo L Rev 157 [1979]). Our conduct in the area of Fourth Amendment rights has been somewhat more restrained because the history of section 12 supports the presumption that the provision "against unlawful searches and seizures contained in NY Constitution, article I, § 12 conforms with that found in the 4th Amendment, and that this identity of language supports a policy of uniformity between State and Federal courts” (People v Johnson, 66 NY2d 398, 406). Based on this, we have sought to fashion search and seizure rules that promote consistency in the interpretations we have given these parallel clauses (see, id., at pp 406-407 [citing People v Gonzalez, 62 NY2d 386 (inventory search of closed container); People v Ponder, 54 NY2d 160 ("automatic standing” rule); People v Roman, 53 NY2d 39 (inventory search of cigarette case)]). The interest of Federal-State uniformity, however, is simply one consideration to be balanced against other considerations that may argue for a different State rule. When weighed against the ability to protect fundamental constitutional rights, the practical need for uniformity can seldom be a decisive factor (see, Developments in the Law, op. cit, 95 Harv L Rev, at 1395; see also, Galie, State Constitutional Guarantees and Protection of Defendants’ Rights: The Case of New York 1960-1978, 28 Buffalo L Rev 157). Thus, notwithstanding an interest in conforming our State Constitution’s restrictions on searches and seizures to those of the Federal Constitution where desirable, this court has adopted independent standards under the State Constitution when doing so best promotes "predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens” (People v Johnson, 66 NY2d 398, 407, supra; see also, People v Class, 67 NY2d 431, on remand from New York v Class, 475 US —, 106 S Ct 960 [search for vehicle identification number predicated on stop for traffic violation]; People v Gokey, 60 NY2d 309 [warrantless search incident to arrest]; People v Belton, 55 NY2d 49, on remand from New York v Belton, 453 US 454 [automobile exception to warrant requirement]; People v Elwell, 50 NY2d 231 [probable cause predicated on informant’s tip]; People v Marsh, 20 NY2d 98 [search incident to motor vehicle stop]). In addition, we have sought to provide and maintain "bright line” rules to guide the decisions of law enforcement and judicial personnel who must understand and implement our decisions in their day-to-day operations in the field. To this end, we have rejected the reasoning behind the so-called good-faith exception to the warrant requirement recently articulated by the Supreme Court, refusing, on State constitutional grounds, to apply it (see, People v Bigelow, 66 NY2d 417, 426-427, supra [discussing United States v Leon, 468 US 897; Massachusetts v Sheppard, 468 US 981]). Similarly, although asked to do so, we have not reached out to adopt the Gates "totality of the circumstances” test in warrant cases (see, 66 NY2d, at pp 424-425), and we have declined to extend it to review warrantless arrests predicated on hearsay information (see, People v Johnson, 66 NY2d 398, 407, supra; People v Landy, 59 NY2d 369, 375).

These decisions reflect a concern that the Fourth Amendment rules governing police conduct have been muddied, and judicial supervision of the warrant process diluted, thus heightening the danger that our citizens’ rights against unreasonable police intrusions might be violated. We see the Supreme Court’s present ruling as a similar dilution of the requirements of judicial supervision in the warrant process and as a departure from prior law on the subject. As we read the court’s decision, it condones a probable cause determination by a magistrate based only upon the strength of the showing of probable cause as it relates to one of several necessary elements of the crime involved. While the "totality of the circumstances/fair probability” formulation may satisfy some as an acceptable analytical framework when used to evaluate whether an informant’s tip should be credited as one element bearing on probable cause, the argument for its validity breaks down where, as here, the standard is applied in a different, nonhearsay, probable cause context. In Gates, all available pertinent information known to the police was presented to the magistrate, and brought to bear on the issue of whether the informant’s tip was creditable, to establish the elements of a crime (see, 462 US 213, 225-227, supra). In this case, the Supreme Court’s "totality of the circumstances/fair probability” approach sanctioned a determination of probable cause based solely on the police affiant’s showing that the films contained numerous sexually explicit scenes and his conclusory assértions that the scenes were representative of the films as a whole (see, New York v P. J. Video, 475 US —, 106 S Ct 1610, 1615-1616, supra). According to the Supreme Court, the magistrate’s action in issuing the warrant was acceptable because the court deemed the evidence of explicit, offensive sexual content sufficiently strong to compensate for the officer’s failure to submit evidence that the films lacked intrinsic worth and violated community standards.

Several years ago we summarized our past decisions on the subject, restating a rigorous, fact-specific standard of review imposed upon the magistrate determining probable cause.

"The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute (CPL art 690) and decisional law (see, e.g., People v Marshall, 13 NY2d 28, supra; People v Brady, 16 NY2d 186).

* * *

"Therefore when the Magistrate undertakes this factual determination, he should consider all aspects of the information supporting the application. Of particular relevancy in this process is an evaluation of the sources of information and the manner in which it was acquired. The Magistrate should also consider the experience and expertise of the officers involved and the extent to which the information has been verified. Further attention should be given to the nature of the crime and the exigencies, if any, involved. In sum, the Magistrate must evaluate the search warrant application consistent with these and other considerations which evince reliability.

"Where it appears that the Magistrate has conducted such a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged (People v Williams, 20 NY2d 388; Ker v California, 374 US 23). By the same token, where the Magistrate merely acts as a rubber stamp the validity of the warrant will be suspect.”

(People v Hanlon, 36 NY2d 549, 559, supra [emphasis supplied].) That decision established a clear and definable standard of review. It imposed a specific, nondelegable burden on the magistrate which required that he, not the police, determine probable cause, and it required that his determination be objectively verifiable (see, Beck v Ohio, 379 US 89, 97; cf. United States v Leon, 468 US 897, supra; and see generally, 1 LaFave, Search and Seizure § 3.2 [b]). This is the standard that should be applied to protect the rights of New York citizens.

Our decision to rely on article I, § 12, rather than on the Supreme Court’s Fourth Amendment pronouncement in this case, is motivated also by concerns of federalism and separation of powers (cf. Maltz, op. cit., 63 Tex L Rev, at 1016-1023 [discussing institutional factors justifying independent State court review]). The States exist as sovereign entities independent of the national Government and the Tenth Amendment reserves to them and the people "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States” (US Const 10th Amend). Thus, the "structure of state governments and their sphere of operations simply are not the subjects of the Constitution, except insofar as the Constitution shifts power from the states to the national government, or protects the rights of individuals from governmental violations” (Tribe, American Constitutional Law § 5-20, at 300). One of the powers reserved to the States is the power to define what conduct shall be criminal within its borders. As Justice Marshall noted in his dissent, the determination whether a work is obscene and therefore criminal — or a determination whether probable cause exists to believe a work violates State proscriptions against obscenity — is a "matter of state law and the rightful province of the state courts” (New York v P. J. Video, 475 US —, 106 S Ct 1610, 1619, supra [Marshall, J., dissenting]). New York courts, pursuant to an express statutory enactment, are bound to construe our Penal Law and its provisions according to the fair import of their terms in order to promote justice and effect the objects of the law (see, Penal Law § 5.00; McKinney’s Cons Laws of NY, Book 1, Statutes § 276). We have interpreted this requirement to mean that criminal responsibility cannot be extended beyond the fair scope of the relevant penal statute (see, People v Gottlieb, 36 NY2d 629, 632). Additionally, a warrant to search and seize cannot issue absent a magistrate’s careful consideration of the elements of the crime involved and a seárching review of the facts alleged to support the affiant’s belief that this crime has been committed (see, People v Hanlon, 36 NY2d 549, 559, supra). Given that our Legislature, consonant with Federal constitutional mandates (see, Miller v California, 413 US 15, supra), has determined that an offensive, explicit depiction of sexual conduct, standing alone, is not obscene (see, Penal Law § 235.00 [1]), neither an issuing magistrate nor a reviewing court can legitimately override that legislative intent and find probable cause that the crime of obscenity has been committed based solely on a showing that sexually oriented material is explicit and offensive (see, People v Heller, 33 NY2d 314, 332-334, on remand from Heller v New York, 413 US 483 [construing Penal Law former § 235.00 in light of Miller v California, 413 US 15, supra]). The Supreme Court’s decision in this case has, in effect, stated that certain elements of our statutory definition of a crime are not significant. We are not free to similarly ignore or recast the legislative mandate.

Finally, it should be noted that obscenity cases differ from other crimes because, by definition, they are predicated on contemporary community standards. While fundamental First Amendment restraints on State power do not vary from community to community, "[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity” (Miller v California, 413 US 15, 33, supra [Burger, Ch. J.]). When viewed as a whole, a challenged work may be a valueless piece of pornography, appealing only to the prurient interests, and the proof before the magistrate may establish this in the view of the reviewing Judges. But the work is not criminally obscene unless so judged when applying contemporary community standards. The parameters of the "community” whose standard is to be applied are not only nonnational, but also are to be defined according to State law (see, People v Heller, 33 NY2d 314, 323, supra [adopting a State-wide community standard for New York, rather than a locality-based one]). Thus, New York law requires the magistrate, or the finder of fact at trial, to determine the average New Yorker’s evaluation of, and reaction to, the challenged material (see, United States v Various Arts. of Obscene Mdse., 709 F2d 132, 135-136). This perception of "the average New Yorker” involves a mix of factors peculiar to this State, including our legal traditions and our cultural and historical position as a leader in the educational, scientific and artistic life of our country, as well as a recognition that New York is a State where freedom of expression and experimentation has not only been tolerated, but encouraged.

The legal reasoning supporting our views, our understanding of principles of federalism, and this State’s legal and cultural traditions all lead us to conclude that we should depart from the Federal rule stated in this case. We hold, therefore, that this warrant application did not demonstrate the probable cause required under the provisions of article I, § 12 of the State Constitution and accordingly, on reargument following remand from the United States Supreme Court, we affirm the order of the County Court.

Hancock, Jr., J.

(dissenting). I concur without reservation in much of the articulate and persuasive opinion of Judge Simons. It must be understood that Judge Simons is writing for a unanimous court in his general comments concerning the circumstances when State courts, including our own, should rely on their respective Constitutions to accord "greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution” (majority opn, at p 302). Certainly, when it appears that some preexisting right which has been guaranteed under our common law or "the history and traditions of the State” (majority opn, at p 303) is no longer protected under the Federal Constitution we should not hesitate to rely on our State Constitution.

Thus, in a case involving a warrantless search (People v Johnson, 66 NY2d 398) we adhered to our established State constitutional standard based on the two-pronged veracity and basis of knowledge Aguilar-Spinelli test and declined to apply the less protective "totality of the circumstances” rule recently formulated by the Supreme Court in Illinois v Gates (462 US 213). And in People v Bigelow (66 NY2d 417, 426, 427), in holding that the exclusionary rule must be applied to evidence seized pursuant to a warrant issued on less than probable cause, we refused to apply the Supreme Court’s recently adopted "good faith exception” to the rule (United States v Leon, 468 US 897). Similarly, in People v Class (67 NY2d 431), a decision in which I concurred, we held that our State Constitution provided protection from an unreasonable police intrusion into the interior of an automobile where the Supreme Court had found no protection under the Federal Constitution (New York v Class, 475 US —, 106 S Ct 960). In each of these cases the differences between the applicable rules under the State and Federal Constitutions were sharply defined. Each case involved important and fundamental rights and presented considerations which fully explained our decision to reject the new and less protective Federal rule and to adhere to our State Constitution in spite of the acknowledged desirability of promoting uniformity and consistency in the State and Federal rules pertaining to searches and seizures (see, e.g., People v Johnson, 66 NY2d 398, 406, 407, supra; People v Gonzalez, 62 NY2d 386, 389-390; People v Ponder, 54 NY2d 160, 165; People v Roman, 53 NY2d 39, 41-42).

Here, the majority’s decision to invalidate the search warrant under the State Constitution proceeds on the premise that, as in Class, Bigelow, and Johnson, it is doing no more than preserving preexisting rights which have heretofore had protection under New York law but which are no longer protected under the Federal Constitution. It perceives the Supreme Court’s present ruling as a "dilution of the requirements of judicial supervision in the warrant process and as a departure from prior law on the subject” (majority opn, at p 305; emphasis added). The Supreme Court, the majority concludes, has "extended the reach of this 'totality of the circumstances/fair probability’ standard [of Illinois v Gates (462 US 213, supra)] and applied it, for the first time, to an obscenity case to permit the magistrate to focus generally on the explicit nature of pornographic material without specifically considering the other statutory elements of the crime” (majority opn, at p 301). The standard that should be applied, the majority states, is what has long been established in New York as the "clear and definable standard of review” (majority opn, at p 307) — the rule as stated in People v Hanlon (36 NY2d 549). It should adhere to this established standard and eschew the newly adopted and less protective rule of the Supreme Court because, among other things, New York law requires the court "to determine the average New Yorker’s evaluation of, and reaction to, the challenged material” and such judicial determinations "involve^ a mix of factors peculiar to this State, including our legal traditions and our cultural and historical position as a leader in the educational, scientific and artistic life of our country, as well as a recognition that New York is a State where freedom of expression and experimentation has not only been tolerated, but encouraged” (majority opn, at p 309).

If I could accept the majority’s major premises — that the Supreme Court in its decision in this case has diluted "the requirements of judicial supervision in the warrant process” and departed "from prior law on the subject” (majority opn, at p 305) and that New York is merely adhering to the existing level of protection afforded in People v Hanlon (supra) — I would willingly concur in the result. In my opinion, however, the majority’s premises do not withstand analysis. On the contrary, as I read the opinion in the light of our earlier decision (People v P. J. Video, 65 NY2d 566) and other existing New York precedents, the majority has established a more stringent rule pertaining to what is required for a warrant to seize materials for use as evidence in an obscenity case — a rule which differs from what, until today, has been the law in this State and, I submit, remains the established Federal constitutional law notwithstanding the Supreme Court’s decision in New York v P. J. Video (475 US —, 106 S Ct 1610). Because the considerations which clearly called for reliance on our State Constitution to afford protection for the constitutional rights of the defendants in Class, Bigelow and Johnson are not present here, I must dissent.

I

It has never been suggested that the warrant issued here authorized a seizure of the type which constitutes prior restraint under the First Amendment thus making it necessary to surmount the "higher hurdle in the evaluation of reasonableness” (Roaden v Kentucky, 413 US 496, 504) required by the Supreme Court decisions where a prior restraint is involved. Nevertheless, I think it is clear that we are adopting what amounts to the higher standard of evaluation (required for seizures involving prior restraints) although the warrant here was issued only for the seizure of specified videocassettes as evidence. To see whether this conclusion is correct it is necessary to discuss briefly our prior decision in this case and the basis for the Supreme Court’s reversal.

A) In our original decision we rejected the basis upon which Erie County Court had ordered suppression of the videocassettes as evidence — that Supreme Court Justice Easier, acting as magistrate, had not personally viewed the cassettes before issuing the warrant. We specifically held that there was no need for the issuing magistrate to "view the film or even a part of it before approving a warrant” (65 NY2d, at p 571). We affirmed the invalidation of the warrant on an entirely different ground. Citing the Supreme Court’s decisions in Roaden v Kentucky (413 US 496, supra); Marcus v Search Warrant (367 US 717, 730-731); Stanford v Texas (379 US 476, 481-485); Maryland, v Macon (472 US 463, 465-470), we found the affidavits insufficient under the standard for review enunciated in those cases. In reversing our order in which we affirmed Erie County Court’s holding that the warrant was invalid, the Supreme Court described our reasoning as follows:

"The New York Court of Appeals likewise affirmed, although on a different theory than that of the Justice Court. According to the Court of Appeals, 'there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v. Kentucky, [413 U.S. 496], 504 [93 S.Ct. 2796, 2801, 37 L.Ed.2d 757] [1973]; Marcus v. Search Warrant, 367 U.S. 717, 730-731 [81 S.Ct. 1708, 1715-16, 6 L.Ed.2d 1127] [1961]). In applying the [Fourth] Amendment to such items, the court must act with "scrupulous exactitude” (Stanford v. Texas, 379 U.S. 476, 481-485 [85 S.Ct. 506, 509-12, 13 L.Ed.2d 431] [1965]; see also, Maryland v. Macon, 472 U.S. —, 105 S.Ct. 2778, 86 L.Ed.2d 370 [1985]).’ 65 N.Y.2d, at 569-570, 493 N.Y.S.2d, 991, 483 N.E.2d, at 1123 (footnote omitted). Using this 'higher’ probable cause standard to review the affidavits submitted in support of the warrant application, the Court of Appeals stated:
" 'Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films * * * The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the "character” or "theme” of the movies by settings having nothing to do with the plot * * * He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their "predominant appeal” was to prurient interest. In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole.’ Id., at 570-571, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.” (475 US, at p —, 106 S Ct, at p 1613.)

After pointing out that we had invalidated the warrant under "this [Roaden v Kentucky] 'higher’ probable cause standard” (106 S Ct, at p 1613), the Supreme Court reversed our determination on the ground that under the Federal Constitution that higher standard of review is not applicable for the issuance of a warrant not involving a prior restraint where the materials are sought only to be used as evidence. In reversing, the Supreme Court stated:

“The New York Court of Appeals construed our prior decisions in this area [see, e.g., Roaden v Kentucky, supra, and Marcus v Search Warrant, supra] as standing for the additional proposition that an application for a warrant authorizing the seizure of books or films must be evaluated under a 'higher’ standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a 'higher’ standard is required by the First Amendment. In Heller, we said:
" '[SJeizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible * * *
" 'The necessity for a prior judicial determination of probable cause will protect against gross abuses * * *’ 413 U.S., at 492-493, 93 S.Ct., at 2795 (emphasis added; footnotes omitted).” (106 S Ct, at pp 1614-1615.)

The majority, in its opinion here, does not say specifically that it is now adopting, as a matter of New York constitutional law, the Roaden v Kentucky (supra) higher standard of review as the standard required for a warrant to seize a limited number of items solely for use as evidence in an obscenity case. Nevertheless, a fair reading of the opinion compels the conclusion that this higher standard is precisely the rule that is being adopted. Nowhere in the opinion does the majority say that this is not so.

B) Whether or not in its opinion the majority is purposefully adopting the higher Roaden v Kentucky (supra) “prior restraint” standard, one thing seems evident: in its holding that the affidavits are inadequate to support the warrant, the majority is applying the “prior restraint” standard or one very close to it — a standard which is considerably more stringent than what has heretofore been required. An analysis of the majority holding and prior case law supports this conclusion.

The affidavits are insufficient, the majority says, under the established New York standard stated in People v Hanlon (36 NY2d 549, 559, supra) because, while "[m]any of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard” (People v P. J. Video, 65 NY2d 566, 570-571, supra), the information provided "relates to [only] one of several necessary elements of the crime involved” (majority opn, at p 305). Put more specifically, the majority holds that although the affidavits undoubtedly show that the videos are "patently offensive”, they do not establish whether their predominant appeal is to "prurient sex” or whether they "lack serious literary, artistic, political and scientific value” (majority opn, at p 300). The significant question here is not whether Investigator Groblewski’s affidavits did, in fact, contain sufficient information so that Justice Easier could reasonably conclude that all three elements of the obscenity definition in Penal Law § 235.00 (1) had been satisfied. The real question concerns the quantum and the degree of detail of the information pertaining to each of the three elements of the obscenity definition which the majority now requires and whether in its holding that Investigator Groblewski’s affidavits were inadequate on two of the elements the court is creating a new and more stringent New York rule.

Neither the defendants nor the majority cite a Federal decision, a New York decision, or one from another jurisdiction where a court has held a warrant invalid because the warrant application, although sufficient to establish that the materials were patently offensive (Penal Law § 235.00 [1] [b]), nevertheless, lacked sufficient information so that the magistrate could determine whether the materials appealed to prurient interest in sex (Penal Law § 235.00 [1] [a]) and lacked serious literary, artistic, political and scientific value (Penal Law § 235.00 [1] [c]). Certainly, nothing in People v Potwora (48 NY2d 91) supports the proposition. In Potwora, the sole basis set forth in the affidavits for the issuing magistrate’s determination of probable cause was unsupported hearsay— the affiants’ statements that the described magazines had been found obscene by City Court Judges in Rochester and Buffalo. (Id., at p 93.) Nor does People v Rothenberg (20 NY2d 35) support the proposition. The warrant in Rothenberg was clearly illegal as a general warrant authorizing "a search on appellant’s premises for and a seizure of 'obscene, indecent and "hard core pornographic” pictures, photographs and motion picture films’ ”. (Id., at p 38.) Similarly, the warrant held invalid in People v Abronovitz (31 NY2d 160) was a general warrant which permitted the police "to search for and seize any material which depicted 'scenes of nude persons’ and which 'expose the female and male genital organs, the female and male pubic areas’ ” (id., at pp 162-163) and under which the police seized "over 1,000 magazines and calendars” (id., at p 163). On the other hand, a warrant application for obscene materials has been held valid on affidavits far less detailed and specific than the ones here (see, Monserrate v Upper Ct. St. Book Store, 49 NY2d 306, 309 [involving a warrant application which merely set forth the title of two magazines and a cursory description of an item to be seized; although the court invalidated the seizure of thousands of items not listed in the application, it held valid the seizure of the described items]).

The majority’s sole authority for the rule it imposes is People v Hanlon (36 NY2d 549, supra), the decision it characterizes as establishing "a clear and definable standard of review” (majority opn, at p 307). But there is nothing in Hanlon to support the holding that Supreme Court Justice Kasler did not have enough before him in the affidavits (although concededly sufficient for a finding that the videocassettes were "patently offensive”) to exercise his judgment and to come to what necessarily would be an opinion based on individual perception and taste® with respect to the other statutory elements. Nor does Hanlon or, for that matter, the majority opinion explain what additional factual information Investigator Groblewski should have supplied, beyond the description of the sexual acts in the affidavits, which would, in some way, have assisted Justice Kasler in reaching his conclusions. Indeed, it is difficult to conceive of any possible additional content that Investigator Groblewski could have supplied which would not have amounted to a meaningless statement of his personal opinion that the films appealed to prurient sex and lacked literary or artistic value. The holding that the warrant application is fatally defective because of the insufficiency of Groblewski’s statements on these two elements of the obscenity definition seems directly contrary to the very thrust of the Hanlon opinion appearing in that portion which the majority does not set forth (majority opn, at p 306): "When considering whether probable cause exists no infallible formula is available; ideally we consider the probabilities as perceived by a reasonable, cautious and prudent police officer and evaluated by an independent Magistrate. However, in the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of a volatile situation. Consequently such search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience and accorded all reasonable inferences. (See, e.g., United States v Ventresca, supra; Brinegar v United States 338 US 160, 175.)” (36 NY2d, at p 559; emphasis added.)

Our court several years ago held that an adversary hearing on the issue of obscenity is not required before a warrant to seize materials for evidence may be issued (People v Heller, 29 NY2d 319). In Heller v New York (413 US 483), the Supreme Court affirmed this holding of our court and declined to hold that a prior viewing is required. (Id., at p 488.) Both the majority and the Supreme Court in this case now agree that a warrant may validly issue without a prior viewing by the magistrate. In adopting a rule which requires the affiant to supply more detailed and descriptive factual material than supplied here by Investigator Groblewski so as to satisfy the requirements of subdivisions (1) (a) and (1) (c) of Penal Law § 235.00 one wonders whether the practical effect will not be to require either a viewing or an obscenity determination before a warrant is issued although neither procedure is presently necessary.

II

An analysis of the Supreme Court’s opinion in this case and its opinion of Illinois v Gates (462 US 213, supra) simply does not support the proposition that the Supreme Court has diluted "the requirements of judicial supervision in the warrant process” (majority opn, at p 305) by adopting what it refers to as the "totality of the circumstances/fair probability” formulation of Illinois v Gates.

It is significant that, although the majority refers repeatedly to what seems to have become a "buzzword” — the phrase "totality of the circumstances” — that phrase never appears in the Supreme Court opinion (New York v P. J. Video, 475 US —, 106 S Ct 1610, supra). The reason for this, I believe, is obvious. As the majority itself notes (majority opn, at p 301) the Illinois v Gates decision applied to a totally dissimilar type of warrant application — one based on hearsay information supplied to the affiant by an informant. The holding in Illinois v Gates was simply that the rigid "two-pronged test” under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant was abandoned and replaced by the more flexible "totality of the circumstances” test. The phrase "totality of the circumstances” as describing the method of judging the sufficiency of information supplied in a warrant application has meaning only in the context of an application based on hearsay informotion from an informant — and even then it has meaning only as an alternative to what was, before the decision in Illinois v Gates, the strict two-pronged "veracity” and "reliability” test of Aguilar and Spinelli.

Here, the application is on personal knowledge of Investigator Groblewski who saw the films himself. There is no informant. The question before us relates solely to the adequacy of Investigator Groblewski’s description of what he saw. "Totality of the circumstances” is meaningless in this context. Nothing in the Supreme Court’s reference to Illinois v Gates suggests that the court was applying anything other than its established rule for assessing the adequacy of an application for a warrant to seize materials as evidence in an obscenity case where the seizure will not result in a "prior restraint” (see, Heller v New York, 413 US 483, supra).

Ill

My differences with my colleagues come to this. I believe that in holding that this warrant application is insufficient we are creating a new and more stringent standard under New York constitutional law for testing applications for a warrant to seize evidence in obscenity cases where prior restraint is not involved. I heartily agree that there are cases where we should, as the highest court in this State, apply our State Constitution to protect important and basic rights which are not afforded protection under the Federal Constitution. In my opinion, however, this is not such a case. Thus, with full respect for the contrary views of my colleagues, I am compelled to disagree.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander and Titone concur with Judge Simons; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion.

On reargument, following remand from the United States Supreme Court, order affirmed.

      . Article I, § 12 provides, in pertinent part: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . In response to the dissent (dissenting opn, point I, at pp 312-318), we would merely point out that our original opinion cited Maryland v Macon (472 US 463); Roaden v Kentucky (413 US 496); Stanford v Texas (379 US 476); and Marcus v Search Warrant (367 US 717) solely on this procedural issue, to determine whether the magistrate had adhered to the warrant process (see, People v P. J. Video, 65 NY2d 566, 567-570). We did not in our prior opinion, nor do we in this opinion, apply those cases to require that a higher level of substantive proof be submitted to the magistrate.

      . Penal Law § 235.00 (1) defines "Obscene” as follows: "1. 'Obscene.’ Any material or performance is 'obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.” This statutory definition resulted from the Legislature’s 1974 amendments to the obscenity law which sought to bring New York’s definition into conformity with the Supreme Court formulation of obscenity articulated in Miller v California (413 US 15) (see, Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 235.00, p 196).

        . The guarantee against unreasonable searches and seizures found in section 12 was originally contained in a statute, Civil Rights Law § 8, and there is little in the section’s textual language, the history of its incorporation into the State Constitution in 1938, or the purpose of the incorporation which would support an interpretation that it was to be applied more expansively than the Fourth Amendment. Indeed, for over 100 years it was not deemed necessary to incorporate the guarantee into the State Constitution because the statutory provision, now section 12, was deemed generally coextensive in scope with the Fourth Amendment. Before the Supreme Court decisions in Wolf v Colorado (338 US 25) and Mapp v Ohio (367 US 643), the only difference between the two was in the application of the exclusionary rule (see generally, 1938 NY State Constitutional Convention Committee, Problems Relating to the Bill of Rights and General Welfare, at 215-218). Accordingly, we do not rely on textual or historical distinctions from the Federal Constitution to support our decision.

      . Contrary to the contention found in point II of the dissent (at pp 318-319), the Supreme Court did rely upon the totality of the circumstances/fair probability standard enunciated for the first time in its recent decision, Illinois v Gates (462 US 213). Gates was the only decision cited or quoted in the opinion to define the substantive test of probable cause. The court employed the language of Gates to reach a determination that the magistrate was given "more than enough information to conclude that there was a 'fair probability’ that the movies satisfied the first and third elements of the statutory definition” (New York v P. J. Video, 475 US —, 106 S Ct 1610, 1616).

      . In People v Johnson (66 NY2d 398, 407), for example, we based our decision to reject the "totality of the circumstances” rule of Illinois v Gates (462 US 213), in part, on the need for "predictability and precision in judicial review of search and seizures cases” and for providing " 'bright line’ guidance to police personnel in performing their duties.”

      . The affidavits upon which the warrant was granted by the issuing magistrate (Supreme Court Justice Theodore S. Easier) are printed in full as an appendix to the Supreme Court opinion (475 US, at p —, 106 S Ct, at pp 1616-1619) and as an appendix to the dissenting opinion to our prior decision (65 NY2d, at pp 585-588). They are summarized at 106 S Ct, at page 1616 and at 65 NY2d, at page 580. These affidavits describe the contents of what were advertised by defendants as "adult cassette movies” (entitled "Taboo II”, "California Valley Girls”, "All American Girls”, "Taboo”, "Debbie Does Dallas”). Each affidavit describes consensual acts of deviant sexual intercourse (106 S Ct, at p 1616). It is conceded that "[m]any of the scenes described [in the affidavits] contain explicit sexual activity, patently offensive by any constitutional standard” (People v P. J. Video, 65 NY2d 566, 570, 571).

      . The warrant was issued solely for the purpose of seizing one or two copies of specifically identified videocassettes for use as evidence in the criminal prosecution. Had defendants shown that other copies of these videocassettes were not available, the court would have had the videos copied and immediately returned to defendants pursuant to Heller v New York (413 US 483, 492-493). In all, 13 cassettes were seized. This was not a large scale seizure of presumptively protected materials (compare, e.g., Marcus v Search Warrant, 367 US 717, involving a warrant authorizing a seizure of materials which in the opinion of police officers were obscene and under which 11,000 copies of 280 publications books and pictures were seized) or the seizure of a film from a movie theater resulting in an abrupt halt of the public’s right to see the movie (compare, e.g., Roaden v Kentucky, 413 US 496, 504) or a general warrant authorizing a wholesale seizure (compare, e.g., Stanford v Texas, 379 US 476, 477, involving a warrant authorizing the seizure of unspecified "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments” under which 2,000 items were seized).

      . It would serve no purpose to debate anew (see, People v P. J. Video, 65 NY2d 566, 570-571, 580-584) whether the affidavits are sufficiently complete and detailed so that Supreme Court Justice Kasler acting as a neutral and detached magistrate could conclude that the videocassettes were not only patently offensive but also appealed to prurient sex and lacked serious literary or artistic value. Suffice to say that on this question the Supreme Court has stated: "Respondents concede that the affidavits describing the five films adequately established probable cause with respect to the second of the three elements of obscenity under the statute, namely, that the movies depicted 'in a patently offensive manner’ the various kinds of sexual conduct specified in the statute. See N.Y. Penal Law § 235.00 (1) (b) (McKinney 1980). Our review of the affidavits convinces us that the issuing justice also was given more than enough information to conclude that there was a 'fair probability’ that the movies satisfied the first and third elements of the statutory definition, namely, that the 'predominant appeal [of the movies] is to the prurient interest in sex,’ and that the movies 'lac[k] serious literary, artistic, political, and scientific value.’ See N.Y. Penal Law §§ 235.00 (1) (a), (c) (McKinney 1980).” (475 US, at p —, 106 S Ct, at p 1616.)

      . The oft-quoted statement of Justice Stewart pertaining to the difficulty in defining pornography in his concurring opinion in Jacobellis v Ohio (378 US 184) seems apt here: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”. (Id., at p 197.)

      . Under Heller v New York (413 US 483, 490-491) defendants had an absolute right to demand "a prompt judicial determination of the obscenity issue in an adversary proceeding”. It is significant that they did not do so. Neither did they challenge the accuracy of Investigator Groblewski’s descriptions of the videocassettes or his sworn statements that "content and character” of each of the videocassettes was as set forth in the description of the various sexual acts which followed. Had defendants chosen to challenge Investigator Groblewski’s statements, they could have availed themselves of the hearing procedure for doing so (see, Franks v Delaware, 438 US 154). They did not.

      . That the Supreme Court’s reference in its opinion here to Illinois v Gates (462 US 213) was not for any purpose pertaining to the so-called "totality of the circumstances” rule but merely for the purpose of restating the established general rule for probable cause appears clearly from the following: "We believe that the analysis and conclusion expressed by the dissenting judge are completely consistent with our statement in Gates that 'probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’ 462 U.S., at 244, n. 13, 103 S.Ct., at 2335, n. 13.” (475 US, at p —, 106 S Ct, at p 1616.)