The Common Council hereby declares the possession, sale or exchange
of obscene materials or items within the City of Buffalo to be injurious
to public health, safety and morals and a nuisance. The Council further
declares the sale, loan, gift or display at newsstands or any other
business establishment within the City of Buffalo frequented by minors
of any material describing or depicting illicit sex or sexual immorality
to be injurious to public health, safety and morals and a nuisance.
As used in this article, the following terms shall have the
meanings indicated:
COMMUNITY STANDARDS
The standards of the community from which the jury is drawn
or would be drawn if it were the trier of the fact.
MATERIAL
Anything tangible which is capable of being used or adapted
to arouse interest, whether through the medium of reading, observation,
sound or in any other manner.
OBSCENE
Any material or performance is "obscene" if it is an obscene
work.
OBSCENE WORK
A work which, when taken as a whole, appeals to the prurient
interest in sex, which portrays sexual conduct in a patently offensive
way and which, taken as a whole, does not have serious value. In determining
whether or not a work is an "obscene work," the trier of fact must
find:
A.
That the average person, applying contemporary community standards,
would find that the work, taken as a whole, appeals to the prurient
interest;
B.
That the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by this Article or authoritatively
construed by the courts of this jurisdiction as being a portrayal
of patently offensive sexual conduct as that phrase is used in the
definition of an "obscene work"; and
C.
That the work, taken as a whole, lacks serious value.
PATENTLY OFFENSIVE SEXUAL CONDUCT
Includes any of the following described forms of sexual conduct
if depicted or described in a patently offensive way:
A.
An act of sexual intercourse, normal or perverted, actual or
simulated, including genital-genital, anal-genital or oral-genital
intercourse, whether between human beings or between a human being
and an animal.
B.
Sadomasochistic abuse, meaning flagellation or torture by or
upon a person who is nude or clad in undergarments or in a revealing
costume or the condition of being fettered, bound or otherwise physically
restrained on the part of one so clothed.
C.
Masturbation, excretory functions and lewd exhibitions of the
genitals, including any explicit, close-up representation of a human
genital organ or spread-eagle exposure of female genital organs.
D.
Physical contact or simulated physical contact with the clothed
or unclothed pubic areas or buttocks of a human male or female or
the breasts of the female, whether alone or between members of the
same or opposite sex or between humans and animals in an act of apparent
sexual stimulation or gratification.
E.
A device designed and marketed as useful primarily for stimulation
of the human genital organs.
F.
Male or female genitals in a state of sexual stimulation or
arousal.
G.
Covered male genitals in a discernibly turgid state.
PERFORMANCE
Any play, motion picture, dance or other exhibition performed
before an audience.
PROMOTE
Manufacture, issue, sell, give, provide, lend, mail, deliver,
transfer, transmit, publish, distribute, circulate, disseminate, present,
exhibit or advertise or to offer or agree to do the same.
SERIOUS VALUE
Serious literary or artistic or political or scientific value.
WHOLESALE PROMOTE
To manufacture, issue, sell, provide, mail, deliver, transfer,
transmit, publish, distribute, circulate, disseminate or to offer
or agree to do the same for purposes of resale.
If any of the depictions or descriptions of sexual conduct described in §
299-2 are declared by a court of competent jurisdiction to be unlawfully included therein because such depictions or descriptions are constitutionally protected or for any other reason, such declaration shall not invalidate this Article to other patently offensive sexual conduct included herein.
No person, within the City of Buffalo, when knowing its content
and character, shall wholesale promote or possess with intent to wholesale
promote any obscene material.
No person shall within the City of Buffalo, knowing its content
and character:
A. Promote or possess with intent to promote any obscene material.
B. Produce, present or direct an obscene performance or participate
in the portion thereof which is obscene or which contributes to its
obscenity.
Nothing contained in this Article shall be construed to apply
to:
A. The purchase, distribution, exhibition or loan of any work of art,
book, magazine or other printed or manuscript material by any accredited
museum, library, school or institution of higher learning.
B. The exhibition or performance of any play, drama, tableau or motion
picture by any theater, museum, school or institution of higher learning,
either supported by public appropriation or which is an accredited
institution supported by private funds.
C. Persons who may possess or distribute obscene matter or participate
in conduct otherwise proscribed by this Article when such possession,
participation, distribution or conduct occurs in the course of law
enforcement activities or in the course of bona fide scientific, educational
or comparable research or study or like circumstances of justification.