concurring:
I concur in the result, and wish to present certain additional explanations.
The majority opinion states that Nassau County Local Law 11-1992 is neither necessary nor narrowly tailored to meet a compelling state interest. However, there is no analysis in the majority opinion as to why the particular language and terms of the Local Law suffer from these deficiencies. While the law is quoted in the introductory portion of the opinion, when it comes to analyzing why the law fails to pass the strict scrutiny test, the language of the law is not mentioned. Instead there is merely a reference to “a prohibition on the sale of crime trading cards.” But the Nassau County Board of Supervisors did not simply pass a general, unqualified law prohibiting the sale of crime trading cards to minors, but went to some pains to articulate a law which, at least to some extent, is “narrowly tailored” to meet an admittedly compelling interest in protecting the psychological well-being of minors and in combating juvenile crime. It seems to me to be appropriate to take the law as actually drafted and to consider whether that law passes constitutional muster.
Also, I believe that the case is closer and less one-sided than is indicated by the majority opinion. In my view, to the extent the position of the County has merit, it is only fair to recognize this, particularly since we are dealing with a local legislative body and its effort to ensure the welfare of juveniles and to protect against juvenile crime, worthy objectives indeed.
*69Section 1 of Local Law 11-1992 is entitled “Legislative Intent” and states:
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. The County has a responsibility and an exigent interest to protect the welfare of its children and to see that they are safeguarded from influences which might prevent their growth into free and independent well-developed citizens by preventing the distribution to children of material deemed harmful to children.
The Board of Supervisors further finds that for generations, children have purchased and collected trading cards depicting war heroes, sports heroes and other luminaries whom they revere and emulate. In such form, trading cards are not harmful to children. When, however, trading cards which depict heinous crimes and heinous criminals and which appeal to the depraved interest of minors in crime are disseminated to our youth, they are harmful.
Section 3 is headed “Disseminating Indecent Crime Material to Minors,” and provides:
A person is guilty of disseminating indecent crime material to minors when, with knowledge of its character and content, he sells or loans to a minor for monetary consideration in Nassau County any trading card which depicts a heinous crime, an element of a heinous crime, or a heinous criminal and which is harmful to minors. Disseminating indecent crime material to minors shall be a Class A misdemeanor.
Section 2 contains definitions, and defines “heinous crime” to mean murder, assault, kidnaping, arson, burglary, robbery, rape or other sexual offense. “Heinous criminal” means a person who has been convicted of a heinous crime or who has been found not responsible for the commission of such a crime by reason of mental disease or defect. Section 2.E provides:
E. “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 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 law is obviously modeled after the standard established by the Supreme Court for dealing with obscenity. The statement of legislative intent in Section 1 contains a number of passages found in Justice Brennan’s majority opinion in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) — both statements by Justice Brennan and statements quoted by him from other sources; The three-part definition of “harmful to minors” is based to some extent upon the definition of obscenity found in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). The phrase “depraved interest of minors in crime” in the Local Law is substituted for “prurient interest” in the obscenity definition.
If the analogy to obscenity were a mere gimmick — if the Supervisors were only trying to clothe themselves in false colors — that would be one thing. However, in my view, the analogy to obscenity, while not perfect, and while not placing violence and crime in the same legal category as obscenity, nevertheless has substance from a factual standpoint. As to the legal category, I agree with the majority opinion that portrayals of violence and crime are not, like obscenity, completely outside the protection of the First Amendment, and that the Local Law in ques*70tion is a content-based restriction on speech which is subject to strict scrutiny to determine its constitutionality. Still it was reasonable for the Supervisors to use the obscenity analogy to the extent that facts and circumstances made it logical to do so.
The obscenity standard is derived in large part from the realization that there have been, and will be, masses of writings, films, paintings, sculptures, etc. dealing with sex and nudity. Only a narrow category constitutes “obscenity” beyond First Amendment protection.
In the case of violence and crime, all kinds of depictions exist both by way of fiction and non-fiction. If there is a category that can be banned without violating the First Amendment, it would surely be most restricted. Thus, in fashioning such a ban, there would need to be, as in the case of obscenity, exclusions for the large body of materials routinely circulated and available in any community.
Thus, subsections E.2 and E.3 of Local Law 11-1992 are designed to immunize from the prohibitions of the law the great mass of writings about violence and crime that find their way into homes, libraries, and movie theaters. What is prohibited by the law according to subsection E.l are crime trading cards which appeal to “the depraved interest of minors in crime.”
In my view, the Supervisors made a conscientious attempt to enact a narrowly drawn law to protect the well-being of juveniles and to combat juvenile crime. The question remains whether that effort is sufficient to pass constitutional muster. In answering this question, it is only fair to take into account the evidence about the kind of crime trading cards that the Board of Supervisors had in mind when it passed Local Law 11-1992.
Supervisor Gregory Peterson testified regarding the particular cards that impelled the enactment of the law. They were introduced as Defendants’ Exhibits 2, 3 and 4 at the hearing. Exhibit 2 consists of cards from a series entitled “Famous 52 Murders.” Exhibit 3 is from the series entitled “Cold Blooded Killers Trading Cards, A Collection of Mad Men.” Exhibit 4 is from the series “Incredible True Life Murderers.” Most of the cards consist of a drawing of the criminal on one side and a narrative on the other side. A few examples will show the nature of these cards. Two of the cards deal with Ian Brady and Myra Hindley, who were criminal partners. The cards describe how Brady mutilated animals as a “young kid.” After he teamed up with Hinley, they perpetrated sexual molestations and murders on “the very young,” performing sexual acts during the murders in order to obtain orgasm, all of which was filmed. Another of the cards depicted Edmund Emil Kemper, who had sadistic fantasies in his early teens and cut the family cat into pieces. He shot and stabbed his father and stepmother to avenge his parents’ separation. On several occasions, he picked up girls, murdered and dismembered them. On one occasion he engaged in sex acts with the body of a decapitated girl. Finally, he killed his mother and cut out her larynx because she talked too much. Another card described Dean Allen Corll, who killed at least 27 young teenage boys after sodomizing them. He removed the genitals of some and used a dildo in various sexual acts. Still another card dealt with Albert Fish, who inserted sharp needles into his own genitals to increase his sexual sensations. He killed a 12 year old girl, cut her head off, then dismembered her and stewed her flesh and organs with vegetables for a meal.
If the case were limited to the question of whether these types of cards could be prohibited, there would surely be a strong argument in favor of the County on the constitutional question. In my view, Supervisor Peterson and his fellow supervisors had a basis for believing that they were dealing with materials that could create the most depraved kinds of images in the minds of juveniles. To be sure, Peterson admitted in his testimony that the supervisors did not receive reports or statements from psychologists and psychiatrists, but he stated that his support for the law was based upon his experience as a father, as a lawyer, and as someone who has dealt with youth in the community and has dealt with the schools.
*71The majority opinion states that Peterson admitted that the Local Law was drafted on the basis of surmise. Although Peterson did adopt the cross-examiner’s word “surmise” in two of his answers, Peterson was obviously referring to inferences and judgments based on the cards themselves and his experience in the community.
The majority opinion gives great weight to the absence of expert studies to justify the law. In this connection, Justice Brennan’s discussion in Ginsberg v. New York, 390 U.S. at 641-43, 88 S.Ct. at 1281-83, is apt. Dealing with the issue of the effect of obscenity on minors, he stated that there was no lack of studies demonstrating that obscenity is or is not harmful. He concluded by stating that scientifically certain criteria is not demanded of legislators.
Despite all that I have said about the attempts to narrowly draw the law, and about the evidence regarding certain types of crime trading cards which might constitutionally be prohibited, there remains a serious problem which prevents the County from succeeding in this action. In addition to the types of trading cards previously described, there are large numbers of other crime trading cards in evidence. For instance, there is a series of cards dealing with the assassination of President Kennedy. There are sets of cards dealing with criminal trials. There are cards describing the careers of famous criminals such as A1 Capone. The descriptions in these cards are what might be found in any widely circulated news articles or historical works. There is no possibility that the First Amendment permits the banning of the sale of such cards to either adults or minors.
In this litigation, the County has offered no satisfactory definition or limitation on the types of trading cards it would find to be within the prohibition of Local Law 11-1992. The County has not taken the position that the application of the Local Law would be limited to the kinds of cards described by Supervisor Peterson. The County’s brief states:
Trading cards that present crimes in a sensationalized manner, confusing violence and humor, and that look cartoonlike or contain a psychedelic emphasis are indicative of inappropriate cards.
The County further advises that, where infamous crimes are depicted, a purveyor of crime trading cards can avoid the ban of the Local Law if the cards show “the punishment as well as the crime,” and indicate a “critical” view of criminal behavior. The criteria articulated by the County in its brief offer little in the way of satisfactory limits, and indeed would inject a degree of interference with the contents of published materials which cannot be constitutionally justified.
This points to the ultimate problem with the County’s case. The definition in the Local Law, “appeals to the depraved interest of minors in crime,” while by no means devoid of meaning, is not sufficiently precise. Indeed, since the supervisors modeled the Local Law on the obscenity standard, it must be noted that they did not go far enough in embodying that standard. In Miller v. California, supra, the Court stated that the permissible scope of the regulation of obscenity was confined to works that depicted or described sexual conduct. The Court stated further:
That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.
Id. at 25, 93 S.Ct. at 2615. In describing the guidelines to be used in determining whether a work is obscene, the Court stated that one part of the test is whether the work “appeals to the prurient interest.” But the Court added that another part of the test is whether the work “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Id. at 24, 93 S.Ct. at 2614-15 (emphasis added). Finally, the Court gave examples of what a state statute “could define for regulation,” including representations of ultimate sex acts and lewd exhibition of bodily parts. Id. at 25, 93 S.Ct. at 2615. The Supreme Court recently reaffirmed the views expressed in Miller. See, Reno v. American Civil Liberties Union, — U.S. -,-, 117 S.Ct. 2329, 2332, 138 L.Ed.2d 874 (1997).
■ Local Law 11-1992 is not drafted with the kind of specificity referred to in Miller and *72Reno. Whether a law dealing with depictions of violence and crime could actually be enacted to meet constitutional standards is surely debatable. But Local Law 11-1992 certainly does not go the necessary distance. For one thing, there is no language which attempts to limit the law to the kinds of cards the supervisors were referring to when they enacted the law.
An Eighth Circuit decision is closely on point. Video Software Dealers Ass’n. v. Webster, 968 F.2d 684 (8th Cir.1992), dealt with a Missouri statute that prohibited the rental or sale of certain videos to minors. As in the present case, the statute had a three-part definition of the types of videos prohibited, modeled after the obscenity standard. The first part of the definition provided that videos were prohibited which would have “a tendency to cater or appeal to morbid interest in violence for persons under the age of 17.” The court held that the statute was not narrowly drawn as constitutionally required, and was unconstitutionally vague. The statutory language about “morbid interest in violence” did not clearly identify the targeted material. The State had argued inconsistently about the meaning of the law, one time putting forth a very broad application, and another time arguing that it was limited to “slasher” videos displaying bestial and graphic scenes of murder, rape, masochism, mutilations and assorted perversions. The court noted the State’s inconsistency and noted that the statute itself was not, by its terms, limited to slasher videos, although a more precise law limited to such slasher films would be “less burdensome on protected expression.” Id. at 689.
I conclude that, although there is considerable substance to the evidence and the arguments presented by the County, Local Law 11-1992 is not drawn in a sufficiently narrow and clear manner and thus violates the First Amendment.