*1 INTERNATIONAL PICTURES CORP. KINGSLEY THE OF THE REGENTS OF UNIVERSITY STATE OF NEW YORK. Argued April 23,
No. 1959. Decided June 1959. 394. the cause Ephraim argued appellant. London for With Seymour him H. A. Stephen on the brief were Chalif Wise. Brind, A. Jr. the cause a brief argued
Charles and filed appellees. delivered the Mr. Justice Stewart Court. again impact
Once to consider the required Court is upon law First licensing of New York’s motion picture liberties, protected Amendment the Fourteenth infringement by Joseph Amendment from the States. Cf. Wilson, Burstyn, Inc. v. S. 495. U. makes it exhibit,
The New York statute unlawful “to sell, any or to lease or lend place for exhibition pay any amusement for connection with business film York, the state of New or reel there here], unless not relevant exceptions certain [with license or and effect valid in full force at the time *2 . . .”1 department. education of the therefor permit such a shall issue “unless that license provides The law inhu- immoral, film obscene, indecent, a part'thereof or its a character that exhibi- sacrilegious, or is of such man, 2 incite to crime----” corrupt morals or to tion would tend “the.term provides that, statutory amendment A recent its ‘of such a character phrase and the ‘immoral’ denote a corrupt morals’ shall tend woúld exhibition purpose the dominant part thereof, film or picture por- which or pornographic; which is erotic or effect of or lewdhess, or immorality, perversion, trays acts of sexual impliedly presents expressly or such.acts or 3 patterns of behavior.” acceptable proper or desirable, “Lady entitled picture a motion distributor of As the submitted Kingsley the Chatterley’s appellant Lover/’ of the York Division New that film to the Motion Picture Finding a three iso- license. Department Education “ intent of in the film ‘immoral’ the scenes within lated a the refused issue license until Law,” our the Division peti- The question were deleted. distributor scenes University State of New Regents tioned the the ruling.4 Regents upheld The York for a review a license, ground the denial of but on broader immoral under theme of this motion “the whole adultery theme law, presentation for that is the said proper pattern of behavior.” desirable, acceptable 1McKinney’s Laws, Law, 1953, Y. Education 129. N. § 2 McKinney’s Laws, 1953, Law, 122. Y.N. Education § 3 (Cum. Law, McKinney’s Laws, Supp. 1958), Education N. Y. 1953 §122-a. application his permit, or in case applicant “An for a. license by authorized the director of the division officer denied right regents.” same, shall have the review to issue Law, McKinney’s 1953, 124. Laws, N. Y. Education § judicial Kingsley sought Regents’ review of determ Appellate The ination.5 Division an unanimously Regents nulled the action and directed that a 4 App. license be issued. Div. 2d 165 N. Y. S. 2d sharply A Appeals, 681. divided Court however, Appellate upheld reversed Division and Regents’ refusal to license the film for exhibition. 4 N. Y. 2d 151 N. E. 2d 175 N. Y. S. 2d 39. Appeals
The Court of unanimously and explicitly rejected notion that the film is obscene.7 See Roth proceeding brought under Art. 78 of New York was Act, Prac., Civil Practice N. Y. 6B, 1944, Gilbert-Bliss’ Civ. Vol. seg. Supp., also, McKinney’s 1283 et See Laws, 1953, N. Y. § Law, Education 124. § 6Although *3 judges four of the Appeals seven of the Court of voted Appellate Division, only to reverse the order the three of them opinion were of the clear permissible that denial of a license was Judge Conway under the Constitution. Chief opinion wrote an in' Judges concurred, concluding which Froessel and Burke that denial constitutionally was permissible. Judge of the license Desmond wrote separate concurring opinion a in which he stated: “I Confessdoubt validity toas the of such a statute but I do not know how that can be unless doubt resolved we reverse here and the Supreme let say.” 369, the 4 Y. 2d, 2d, Court have final 208, at 151 N. E. at N. 2d, Judge Dye, Judge Fuld, 175 N. Y. S. at 55. Judge Van separate dissenting opinions. Voorhis wrote opinion 7 The Judge Conway written Chief stated: is “[I]t say breath, do, curious to one indeed as some that motion obscene pictures may censored, be and then another breath that motion pictures alluringly portray adultery proper as and desirable may As above, not be censored. stated ‘The law is with concerned merely effect, but producing not with one means of it.’ It must be firmly give defined, borne in mind .that to obscenity, as the stature only constitutional is limitation to extend an invitation to corrupt public presentation morals methods of which craft squarely insure will do fall within the definition that term. Precedent, just principle, support as sound will not a statement that pictures must be out’ they may ‘out and before obscene States, United Rather, 476. court found 354 U. S. adultery a “alluringly portrays as whole Conway’s prevail- Judge behavior.” As Chief proper therefore, only portion' of ing emphasized, in this is that part §§122 statute involved case of a requiring 122-a of the Education the denial Law pictures to' motion “which are immoral license portray they immorality ‘acts of sexual ... as desir- ”8 .able, acceptable proper patterns behavior.’ Y. 2d, 2d, 4 N. Y. at E. at 175 N. 351, 197, N. S. Appeals A majority at 40. of the Court of ascribed 2d, precise Leg- to a the New York language purpose license a motion require denial islature subject adultery presented matter is picture “because its under right people and desirable certain being 205, N. Y. 2d, 2d, 4 N. Y. at 151 N. E. at S. censored.” 2d, at 51.
Judge concurring opinion neces Desmond’s stated: “[It not] dictionary sarily is not determinative that film obscene Y. 2d, 2d, N. at 175 N. S. sense. . Y. at E. . 4 N. 2d, at Judge Dye’s dissenting opinion “No one contends stated: 55. legal narrow limits of question is within the that the film in obscene Supreme N. Y. recently by the Court. ...” obscenity as defined 2d, Judge 2d, 2d, 210, 175 Y. S. at 57. 371, 151 E. at N. N. impossible to write dissenting opinion'stated: Van Voorhis’ “[I]t Judge pornography’ Van off this entire drama as ‘mere Voorhis, however, to the Board of would have remitted case “might Regents “passages” in the film *4 to consider whether certain doing to con have as without violence been eliminated ‘obscene’ 212, 375, 2d, N. E. at 175 2d, 4 N. Y. at 151 stitutional liberties.” 2d, Y.N. at 60. S. 8 Regents,, for the emphasized is also in the brief of counsel This only these states, not this which “The full definition is before Court — any as to whether other parts debate definition cited —and no proper bearing has parts the definition are a standard case.”
688 9 N. at 151 N. E. 2d, 369, 4 Y. certain circumstances.” 2d, (concurring opinion). N. S. at 55 at 175 2d, Y. ' here in picture accept premise the motion We accept too, as we can be so characterized. question, We Legislature’s of the York the construction- New must, put upon has it. Appeals which the Court of language Millard, v. 242; Albertson v. 345 U. S. United States Burnison, Mayflower 339 S. Transit Co. v. 87; U. Aero Comm’rs, Board R. R. 495. That U. S. construc emphasize, gives immorality” we the term tion, to “sexual entirely concept concept different from the- embraced “obscenity” words like or “pornography.” Moreover, it film suggested-that itself operate would an illegal incitement Rather, to action. the New York Appeals Court of tells us portion that the relevant New York Education requires Law the denial of a license to. motion picture portrays an approvingly relationship, adulterous quite without reference portrayal. manner its done, therefore,
What New York has is to prevent the of a picture exhibition motion picture because that advo- an cates idea —that adultery under certain circumstances may be proper behavior. Yet the First Amendment’s guarantee basic is of freedom advocate ideas. The quite State, simply, has thus struck the very at heart of constitutionally protected liberty.
It
contended that
the State’s action
justified
was
because the
attractively portrays a rela-
tionship which is contrary to the moral standards,
religious precepts,
legal
and the
its
code of
citizenry. This
Judge
concurring,
agreed
In
Desmond
meaning
this was statutory language
question,
“the
theme and content
fairly
of this film
deserve that
2d,
characterization.
...”
4 N. Y.
at
2d,
N. E.
2d,
175 N. Y. S.
at 52.
by way
Swearingen
contrast,
States,
See
v. United
161 U. S.
446;
Limehouse,
States
United
argument misconceives expression is not confined to. the guarantee protects. Its aby majority. or shared are conventional of ideas adultery may the advocacy of protects It advocacy of socialism no than less proper, sometimes be n it protects realm of ideas And the single tax. the is no than that which eloquent less expression is unconvincing. not, is as Mr. proscribed by law
Advocacy conduct “a out, justification long ago pointed Justice Brandéis falls short advocacy, speech free whére denying is to indicate that nothing and there incitement Whitney v. immediately acted on.” advocacy would (concurring opinion). U. S. California, 274 ordinarily applied, to be men, the deterrents “Among free for viola prevent punishment are education and to crime free rights of law, abridgment of thé tions of the Id., speech. . . at 378.11 Fork The inflexible command which New State'Legislature thus has to Appeals attributed freedom as to core of constitutional cuts so close examine the in this case to quite to make it needless to consider Specifically, there no occasion periphery. entirely with- appellant’s contention the State prior films require out kind to be licensed power to determine'whether, we to exhibition. Nor need here their peculiar to motion the controls despite problems pictures, may impose upon expression this medium which State fifty years Thomas wrote more than a hundred and Jefferson demoralizing nothing reasonings ago, from the f‘But we have fear their errors. And some, if are left free to demonstrate others ready punish especially the first criminal when law stands act reasoning. produced These are correctives false safer judge.” Letter of Thomas Jefferson t of- a than conscience o Library Congress, July 3, Papers, Elijah Boardman, Jefferson Vol. folio 19761. for news- those allowable
are coextensive with precisely *6 speech'.14 enough It is for or individual papers,12 books,13 pictures that motion are case to reaffirm present pro- basic and Fourteenth Amendments’ First within the Wilson, Inc. v. S. 495. Joseph Burstyn, U. tection.
Reversed.
Black,
concurring.
Me. Justice
judgment
I
and
but add
concur
Court’s
opinions by several
concurring
a.
because of
few words
rely
Lady
on their
of the movie,
Justices who
appraisal
Chatterley’s Lover
York cannot con-
holding
New
it.
stitutionally
them,
bar
Unlike
have not seen the
picture. My
is that stated Me.' Justice
view
Douglas,
prior censorship moving pictures
prior
like
cen-
sorship
newspapers
and books violates the First and
despite
Fourteenth Amendments.
If
Constitution,
however,
dangerous
Nation is to embark on the
road
of censorship, my belief is that
this Court is about
inappropriate Supreme
most
Board of Censors that could
be found. So far as I know, judges possess
special
no
expertise providing exceptional competency to set stand-
supervise
ards and to
the private morals of the Nation.
In addition,
the Justices of this Court seem especially
unsuited to make the kind of value judgments
to—as
what movies are good or bad for local communities—
which the concurring opinions appear
require.
We are
only way
told that the
we can decide whether a State or
municipality
constitutionally
can'
bar movies is for this
Court to
and appraise
view
each movie on case-by-case
a
basis. Under
circumstances, every
these
member of the
Cf. Near v.
Minnesota,
13 Kingsley Books,
Cf.
Inc. v.
Brown,
436;
354 U. S.
Alberts v.
California,
The different standards which different pictures about the are well illustrated decide badness by contrasting opinion mentioned' the the standards concurring and the Appeals of the New York Court here. I opinion of Mr. As read Justice Frankfurter im- the New York movie was held court’s adültery and banned it makes too allur- moral because Mr. ing. quotes Lawrence, Justice Frankfurter Mr. made, of the book from which the movie was author censorship applied only to believing publica- should be ugly, is, as I understand it, that make sex look that tions alluring. less my permit
In this Court should not itself to judgment, controversies, the of such get very policy into center in common with lawsuits. have so little Frankfurter, in the concurring Justice result. Mr. hardly qualifies taste in art and literature As one whose I am avant-garde, surprised, him the more than after York that the authorities viewing picture, should New “Lady Chatterley’s Lover.” To assume have banned have this motion would offended Victorian rely only on the stuffiest of Vic- moral sensibilities is to personal preferences torian conventions. one’s Whatever may matters, be about such the refusal to license exhi- bition of this on the of the 1954 amendment picture, basis only to the York can mean that Law, New State Education film' public showing enactment forbids adultery except way- that deals with sermonizing condemnation or depicts any. physical manifestation of an illicit amorous relation. Since- the denial of a license by the Regents Board of highest was confirmed court of State, have no but agree choice with this Court’s judgment holding the State exceeded the bounds expression of free protected by “liberty” the Fourteenth Amendment. But I also believe that the Court’s opinion takes ground that exceeds appropriate limits for decision. By way of reinforcing my brother objections scope to the Court’s opinion, Harlan’s I add the following.
Even the author of “Lady Chatterley’s Lover” did not altogether rule out nor censorship, passionate was his zeal on behalf of society’s profound interest in. endeavors of true artists so doctrinaire as to be .unmind- ful of the facts of life regarding the sordid exploitation of man’s nature and impulses. He knew there was such a thing as pornography, dirt for dirt’s sake’ or, to be more accurate, dirt.for'money’s sake. This is what D. H. Lawrence wrote:
“But even I would genuine censor pornography, rigorously. R would not be very difficult. In the first place,, genuine pornography is almost always underworld, it doesn’t come into the open. In the you second, can recognize it the-insult it offers invariably, to sex, and to the human spirit.-
“Pornography attempt is the to insult sex, to do , dirt on it. This unpardonable. Take very lowest instance, post-card sold underhand, I have seen What most cities. underworld, in by cry. you to make ugliness of an been have of them a vital the insult to body, the human The insult make cheap they and Ugly relationship! human make they degraded and nudity, ugly the human id. (D. nasty.” and cheap act, trivial and sexual 12-13.) pp. Obscenity, and Pornography Lawrence, wrote. This since Lawrence lessened has traffic of the In the course increase. is on the it Apparently on the of Parliament Houses in both debate recent way passage,, its now on Bill, Publications Obscene hazards of too from the authors free British designed to rul day of Lord Cockburn’s in our rigorous application v. Hicklin, B.Q. L. 3R. Regina in in ing, extensive regarding experience was adduced weighty Par materials.1 See pornographic dissemination December (Tuesday, C.,H. No. Debates, liamentary Parliamentary De seq., et 16, 1958), cols. 992 2, 1959), cols. 489 June L., (Tuesday, No. 77 bates H. believe that on this any reason to is there seq. et Nor has a diminution there side of the ocean been. a flourish years, ago sought business which
pornographic secondary schools for leading market in some of ing in the boys had more means than presumably boys, who schools.- public high elo- therefore, pertinacious, that the surprising,
It is not liberalizing legis- free-spirited promoters quent the needs of Britain did not conceive lation Great to those society, assuring the utmost freedom civilized artists, art possible authors,. make literature and who — easily attainable producers, book publishers, sellers — dogmas freedom. unqualified abstract and about sounding course, enquiries, impressed with the of our we have been “In pornography . . . .” and lucrative trade existence of a considerable House on to the Report of the Select Committee Obscene Publications Commons, 20, 1958, p. IV. March *9 expression freedom of They had a keen awareness freedom, an aware- is than other no more an absolute Holmes Mr. Justice opinions ness that is of reflected Mi;. predominantly we Brandéis, Justice whom safeguards on behalf of present owe the constitutional Minnesota, freedom of And see Near expression. constitutionally on 697, 715-716, U. S. for limitations- protected speech.2 of freedom may against
In is an evil which State short, there may whatever we think constitutionally protect itself, The real policy problem about the involved. questions constitutionally safeguards is the allowable formulation may against impinging take without society evil free upon necessary dependence society upon of a the. expression. fullest free One cannot scope of read debates in the House the House Commons and of Lords difficulty reconciling and not realize the these conflict- ing interests, framing legislation on the ends of which there those agreement, gen- was even for who most erously espouse freedom expression without which all freedom .gradually withers. is
It not our province to meet these prob- recalcitrant lems of legislative drafting. Ours is the vital very' but scrutinizing limited task of work the draftsmen in order they to determine whether kept have within censorship narrow limits kind of which even D. H. Lawrence necessary. legislation deemed must not be language so vague, loose, so to leave to thos'’ who have to it apply toó awide discretion for sweeping within its condemnation what is permissible expression as objection “The principle has also been made that the as to immu nity previous from broadly, restraint every is stated too if such prohibited. restraint undoubtedly deemed to be true; That protection previous absolutely even as to restraint is not unlimited. But the recognized only limitátion been exceptional has cases . .. .” S., at 283 U. 715-716. Always re- prohibit. society may permissibly as what
well *10 given scope of freedom to be the widest membering that the human exercise of imaginative and the to adventurous in lan- phrased legislation have struck down spirit, we responsive it be to the vague, unless intrinsically guage though suscep- not understanding of men even common reason for definition. ultimate explicit tible of timidity lead to they laws is that invalidating such expression the boldness of thereby discourage inertia and society. a indispensable progressive product of 1954 was the of legislation The New York of this lawyers sought who to meet decisions careful motion-picture that a Court had left no doubt inherently scope outside the of the licensing law is not of a State under the Fourteenth regulatory powers law down Amendment. The Court does not strike the York vagueness, prior because struck down New we it the New legislation. judgment Nor does reverse would, applying York as I Appeals, Court because “Lady the New York it Chatterley’s law to Lover” applied applied it to a to which it cannot be area free ex- invading, constitutionally without pression. The seems difficulty which the Court finds expressions to derive from some culled here and there opinion Judge from the of the Chief of the New Appeals. Court, York This leads give phrase immorality “acts of . as desirable, sexual . acceptable proper patterns of behavior”. an innocent content, meaning, effect, subject an allowable matter But, for discussion. to attribute that surely, result of Appeals, the decision of the Court on the basis of a few detached of Chief phrases Judge Conway, is to break faggot pieces,' forget meaning a into is to language phrases is to be felt and its not to be treated immorality” is disjointedly. phrase “Sexual new implications and its in this branch law dominate the the Court hardly possible I conceive no context. statute the federal strike as unconstitutional would down matter, and lascivious against mailing lewd, obscene nearly a hundred of the land for which has been the law 3, 1865, 507, of March Stat. years, see Act instances specific March 17 Stat. whatever may prohibition. its In be found not within allowable sustaining legislation gave this' this Court the words saying concreteness “lewd, obscene and lascivious” they immorality.” only very And concern “sexual recently constitutionality of the Court sustained States, Roth United 476. statute. U. S. it strikes Court, misread
Unless in order the task legislation escape down the New York t<? *11 a deciding particular picture of whether is entitled to protection expression under the Fourteenth Amend- judicial function, ment. an exercise of the how- Such very ever onerous or inheres in' the ungrateful, nature of judicial Due enforcement of the Process Clause. We escape instance-by-instance, case-by-case .cannot such application of that clause in all the varieties of situations that come before this Court. It would comfortable if, by a comprehensive formula, we could decide when a confession 'is coerced so. as to vitiate a state conviction. There is no such Every talismanic formula. Term we have to examine the particular par- circumstances of a ticular case in generalities order to apply which no one disputes. It equally would be comfortable if a general formula could determine the unfairness of trial state a. in except capital want counsel. But, cases, we have to thread our way, Term, Term after through par- ticular particular circumstances of a in case relation to a particular defendant in order to ascertain whether due process was in unique denied situation before us. We constantly are upon called to consider alleged miscon- prosecutor duct of a vitiating as the fairness a partic- ular. trial or the in public opinion inflamed state particular undermining right case as the constitutional process. in Again, coming the series cases here due courts, from the state due process was invoked separation to enforce of church and state, decision certainly particularities turned on the specific situations before the Court. It is needless to multiply instances. It is the nature of the concept process, due and, venture to its believe, high serviceability our' judicial system, enforcement of constitutional the Due Clause is the very Process of a Pro antithesis crustean rule. recognized This was the first full-dress discussion of the Dué Process Clause of the Fourteenth Amendment, when the Court defined the nature of the problem “gradual process as a judicial inclusion and exclusion, presented cases for decision require, shall with reasons on decision may be which such founded.” Orleans, Davidson v. New U. S. 104. The task is onerous demanding exacting, it does the utmost discipline objectivity, personal severest control of predilections. But it cannot be escaped, not even disavowing that such is the nature of our task.
Mr. whom with Mr. Justice Black Douglas, Justice joins, concurring. *12 I in join
While
the opinion of the
I
Court,
adhere to
I
in
expressed
views
Superior Films v. Department of
Education, 346
U. S.
588-589,
censorship of
movies is
since it is a
unconstitutional;
“previous
form of
restraint” that is as
much
war with the First Amend
ment,
applicable
made
to the
through
States
the Four
teenth,
censorship
struck
in
down Near v. Minne
sota,
If particular
whéther
or a
a
cast, editing
play,
previewing
a novel
ór
movie.
practice.
British
and British
is made to
law
Reference
problem,
relevance to
since
they
But
have little
we
oui^
is
Constitution.
entrusted to
live under a
What
written
is
legislature
England
from
of the
keeping
protected
here.. As
legislative
regulation
or
we stated
interference
Bridges
California,
252, 265,
“No purpose
v.
U. S.
Rights
than
ratifying
the Bill of
was clearer
that of
securing-for
people
greater
of the United States much
assembly,
of religion, expression,
petition
freedom
than the
ever
If
people
ehjoyed.”
of Great Britain had
we had
in our
provision
Constitution for “reasonable”
regulation
such
has
press
as India
included in hers,1
argument
there would
censorship
be room
in the
interests of morality
permissible.
Judges
would be
some
times try to
read
into the
word “reasonable”
First
or make the rights
grants subject
Amendment
it
to rea
regulation
sonable
Illinois,
Beauharnais v.
(see
U. S.
States,
262;
v. United
expression interests, alia, in the inter “decency morality or . . . incitement an This strictly offence.” .defamation limitation construed; any “imposition” restriction amounting to an which will “operate speech harshly” press on or'the will held invalid. See Magistrate, Tangare, Ct.) v. District (Sup. 41 A. I. Seshadri R. 747, 749.
699 has censorship put few roots Happily government down in country. represented this The American tradition Minnesota, supra. McClure, See Lockhart and by Near Obscenity, and the Literature, Constitution, Law of 324-325; Minn. L. Judicial Censor Rev. 295, Alpert, 52 Harv. L. Rev. ship Literature, of Obscene have seq. counterpart et in the United States no We England’s who is censor oyer of the Chamberlain Lord late six of only systems As as 1941 States had stage. in Speech Free censorship Chafee, movies. United (1941), p. 540. That number has now been re States Maryland, New Kansas, York, duced to four2 — Even censor Virginia plus areas, cities. these few — gives by reason way of movies on television ship shown B. Federal Act. Allen Du Communications See Carroll, 184 F. 153. And from mont Laboratories v. 2d movie do not seem available, information censors what part of the very to be active.3 residual Deletion cen the elimination of sorship that remains would constitute rights. First an institution that intrudes on Amendment Clark, concurring in the result. Mr. Justice the New York majority can take words clear, unsophisticated Appeals only their 122-a .and meaning. They say that §§.122 common óf a “require Law the denial New York’s Education they are pictures which immoral to ^motion license immorality desirable, ... ‘acts sexual portray ” That court of behavior.’ proper patterns acceptable language: in the case states the issue what is only and, our concern “Moving pictures are only pictures to the those motion point, more 326, 328, Note, n. 14. See 71 Harv. L. Rev. 3 Id., p. 332. immorality proper acts sexual
alluringly present *14 361, 151 4 Y. N. 2d behavior.” N. 2d E. N. Y. 2d 39, 175 S. 48 . significant 14-page it' is to note that in its
Moreover, says again times, that court and fact 15 again, proscribed picture “Lady that the Lover” is Chatterley’s “desir immorality because of its of sexual as “espousal” “proper people able” or as conduct of our State.”* however, of minority my here, brothers this twist holding requires “obscenity into Act one New York’s just or incitement, expressions opinion.” abstract of repeated But cannot so obliterate the declarations only by above-mentioned were made not times the Court of Appeals but which were the basis of Board of Regents’ decision as well. Such a construction many would raise problems, not the of least would be our failure to accept interpretation York’s New of the scope of its Act. I feel, own as majority does the here, bound their holding.
In context, the Act within the comes ban of Joseph Burstyn, Inc., Wilson, v. S. 495 (1952). U. “expression held We there by means of pic- phrase *The always is not identical but varies from the of words statute, immorality “acts of desirable, sexual acceptable ... as proper patterns behavior,” to such proper terms “as conduct people for the State”; of our “exaltation of illicit sexual love derogation of the marriage”; restraints of proper pattern as “a behavior”; espousal sexually “the acts”; immoral “which debase morality by fundamental portraying sexual its people converse alluring as desirable”; alluring] and portrays sexually-im “which proper behavior”; “by moral acts as presentmg . . . [adultery] a clearly approbatory manner”; alluringly portrays adultery “which as proper behavior”; alluringly portray “which immorality acts sexual (here adultery) and proper way recommend them as a life”; alluringly portray adultery “which proper desirable”; and alluringly portray “which immorality adultery acts of sexual proper behavior.” press free and free speech within the tures included Id.,. Amendments.” First Fourteenth guaranty Minnesota, U. S. Near Referring to at 502. First “a major-purpose.of we that while (1931), said prevent prior press free was of a guaranty Amendment to. un- was not protection such upon publication” restraints heavy State “a burden place did on the limited but excep- challenged” was the limitation demonstrate that Id., applied there was 503-504. The standard tional. it set the censor and we found “sacrilegious” the word conflicting myriad sea amid a upon “adrift boundless Id., .” at 504. struck . . . We religious views currents it down. *15 “acts sexual of of portrayal is the
Here the standard pat- or proper immorality desirable, acceptable ... as. have invariably picture plays Motion of behavior.” terns plot, a location, a supporting characters, a hero, villain, a usually a moral. the main theme and a from diversion Burstyn: “They may public attitudes in affect As we said ranging from- direct variety ways, and behavior a of subtle of social doctrine espousal political a or expres- all artistic shaping thought which characterizes may at What be to one viewer S'., sion.” U. 501. being “desirable, acceptable an glorification idea as entirely proper” may to notions of another be or a limits on teaching. only devoid such the censor’s understanding of within discretion is his what -included noth- “desirable, acceptable proper.” the term or This is a ing roving less than commission in which individual impressions yardstick action,- become the and result regulation in accordance with beliefs individual regulation by censor than Even three of rather law. here my this film regard depicting anything brothers “cannot than unusual, pathetic, more a somewhat rather ‘love ” At least four —of mem- triangle,’ perhaps three — York’s I highest thought bers New court otherwise. obscurity presents of the standard say need that the only experienced even the most such a choice of difficulties that dagger’s find themselves at point. Conway public
It “that our may said, as Chief be, Judge every than ever needs morality, possibly before, more protection at government give.” 2d, can N. Y. my N. E. Y. 2d, 2d, And, 175 N. S. at 50. 204-205, points Brother Harlan “each time statute out, such struck the State is more confusion.” This is down, left employed leaving true grounds where broad no indica- are may requirements tion as necessary to what meet the of due I process. grounds confusion, see no however, were a to ban or those that “pornographic” films, statute “portray acts of immorality, perversion sexual lewd- ness.” If had been New York’s statute so construed its highest require- court I'believe it would have met the ments process. Instead, placed emphasis it more due on what the film on depicts. teaches than what it There is where the confusion enters. For reason, would authority Burstyn. reverse on' the whom Mr. Harlan, Justice Justice Frank- Mr. and Mr. join, concurring furter Justice Whittaker the result.
I think the Court swiftly has moved too in striking down a product statute which is the of a deliberate and *16 conscientious effort part on the of New York to meet objections constitutional by raised this Court’s decisions respecting predecessor statutes this field. But al- though disagree I with the 122 §§ parts and 122-a New York Education Law, 16 N. Y. Laws Ann. 122 (McKinney 1953), § Y. 16 N: Laws Ann. (McKinney § 122-a Supp. 1958), here particularly in- volved are on unconstitutional their face, believe that .in application their film to this constitutional bounds were exceeded.
I. Section 122-a of the State Education Law was passed in 1954 to meet this Court’s decision in Commercial Regents, Pictures Corp. v. 346 U. S. which overturned in In re Com- the New York Appeals’ holding Court of Corp. Regents, Pictures v. Board mercial 305 N. Y. La Ronde could be' 336, 113 N. E. 2d the-film “tend[ing] banned “immoral” and as to corrupt morals” Commercial Pic- under 122.1 The Court’s § decision tures per was but one line curiam with a citation Wilson, Joseph Burstyn, Inc. S. 495, U. which in turn had held for naught not the word “immoral” but the term “sacrilegious” the statute.
New York, nevertheless, set about repairing its statute. This it did enacting § 122-a which in the respects emphasized in the present opinion of Chief Judge Conway pertinent here defines an “immoral” motion film “ as one portrays ‘acts of sexual immorality ... ” as desirable, acceptable proper patterns of behavior.’ 4 N. 349, 351, Y. 2d 151 N. E. 2d N. Y. 2dS. 39.2 The Court now holds this part of New effort York’s jf provides: Section 122 “The director picture] [motion or, division when regents, authorized the officers of a local office or bureaú shall promptly cause to be every examined picture film submitted required, to-them as herein and unless such part obscene, film or a ihdecent, immoral, thereof is inhuman', sacrile gious, or is of such a character that its corrupt exhibition would tend to issue, crime, morals or incite to shall a license therefor. If such or, authorized, director when so such officer shall not license submitted, film he applicant shall furnish to the therefor a written report of the description reasons for his refusal rejected and a of each part rejected’ filma in toto.” provides: Section 122-a purpose
“1. For the twenty-two of section one hundred of this chapter, the phrase ‘immoral’ term ‘of such a character that corrupt its exhibition would tend morals’ shall denote a motion *17 unconstitutional on its face under the Fourteenth Amend- agree. ment. Í cannot Court, suggest provisions
The does not these vagueness.3 Any bad such suggestion appears are for. part picture thereof, purpose film or the which dominant or effect of immorality, pornographic; portrays is erotic or or acts of sexual which lewdness, expressly impliedly presents perversion, or or or which desirable, acceptable proper patterns such acts as or of behavior. twenty-two purpose hundred of this “2. For of section one chapter, picture the term ‘incite to. crime’ shall denote a motion suggest purpose dominant or effect of which is to com- desirable, contempt profitable, or mission of criminal acts for law behavior; acceptable, respectable or advocates or teaches which habit-forming drugs.” of, of, the use or the methods of use narcotics or request of The that became 122-a was introduced at the bill § Department, noted in a memorandum Education State such, bill. censorship, that “the issue of is not involved in this merely attempts This out the criticism of the United bill to follow Supreme by .defining States the words ‘immoral’ and ‘incite ” Legis. Ann., In a memorandum accom- crime.’ N. Y. S. 36. York, measure, panying approval the then Governor of New his lawyer, himself a wrote: required has
“Since the Education Law of State licensing pictures for of motion and authorized refusal of a license ‘obscene,indecent, which is immoral’ or which would corrupt 'tend to morals or incite to crime.’ Supreme the term “Recent Court decisions have indicated that may sufficiently purposes. not be definite for ‘immoral’ constitutional primary purpose ‘tend to of this bill is to define ‘immoral’ and requirements corrupt apparent morals’ in conformance with defining It them in terms of ‘sexual im- these cases. does so judicial morality.’ The selected this definition are based on words given opinions exhaustive and reasoned treatment to which have subject. licensing system, expand .new “The bill does create enlarge permissible
scope picture censorship, or the area of of motion give pre- purpose is to to the section more prior restraint. Its sole the tenor of recent it conform to court decisions and cision to make It exploitation of ‘filth for sake of filth.’ does so proscribe the *18 long-standing usage in view of the me untenable to to immorality” “sexual concept the in this Court of g., e. “obscenity.” See, meaning of part the explain Instead, States, 451.4 446, S. Swearingen v. United 161 U. provisions vice these a constitutional the Court finds nor “obscenity” is neither they require, said, so.it that strike of their immorality,” to but “sexual incitement adultery at mere “an idea —that advocacy force the of own behavior”; be may proper certain under circumstances may be adultery that sometimes “opinion of expressions these .” I of . . . think this characterization proper them put upon the misconceives construction provisions Appeals. in the Court of prevailing opinions the public advocacy Granting that the abstract discussion or adultery, portrayal obscene unaccompanied of may to such not constitu- behavior, actual incitement tionally proscribed by be do not read those State, its undertakes opinions hold that statute on face accurately through language permits as well understood in ‘words long Winters, (1948)]. [People 507, use.’ v. S. U. language Supreme States,
“The in a of United opinion precise problem, be recent of this should noted: “ liberty expression by pictures ‘To hold that means of motion guaranteed by however, Amendments, First is is and Fourteenth problem. of It that not end our does not follow the Constitution every every requires picture- motion absolute freedom exhibit places.’ [Burstyn Wilson, kind at all times and all 343 U. S. 502], at long interdicting responsibility for
“So the State has the pictures transgress decency, re- we have the bounds charged furnishing guide agency with sponsibility for. lines to the Id., enforcing the law.” at 408. adultery Certainly it is a form of not cannot claimed immorality”; adultery made a crime in New York. “sexual indeed §§100-103, Y. Penal 39 N. Y. Laws Ann. N. Law §§100-103 1944). (McKinney Conway’s opinion, Judge Chief proscription. .such judges of of the seven joined by
which was two others more in the thrust of which one the Court of Appeals, 2d,Y. (4 states N. concurred, doubt, to be sufe with some 44); at 175 N. Y. at 2d, 2d, 151 N. E. S. emphasized scope first be “It should in' expression mere section 122r-a of a lecture' whose sub- form, example, filmed ject espousal adultery. matter is the reiterate We espousal sexually this case involves (here adultery) plus actual scenes immoral acts suggestive (Emphasis and obscene nature.” original.) *19 as indeed also the case elsewhere, is with 122 122-a themselves in independently
§§ and when read their is entirety, instinct with the notion that mere expressions opinion regarding desirability abstract of the sexual, immorality, unaccompanied by obscenity5 of or incitement, proscribed. are not See 4 N. Y. 2d 349, especially 351-352, at 354, 356-358, 361, 363-364; 151 E. 2d 197, 197, 199, 200-201, 203, 204-205; N. at 39, 40, N. Y. S. 2d at 42, 44-46, 48, 50-51; and Notes 2, supra. and is corruption It the public morals, of by occasioned the inciting of a particular por effect trayal or what New York has deemed the necessary obscenity, effect of at the which statute is In aimed. the Judges words of Conway, “There is no Chief. differ-
5 Nothing Judge Dye’s dissenting in opinion,-to which the Court' in opinion, militating :against refers Note of its can be taken as prevailing the opinions Judge this view of Appeals. the Court'of in disagreed Dye simply majority with the Appeals of the Court of as adequacy to the of the 122-a definition of “immoral” to overcome § prior objections constitutional 2d, term. See 4 N. Y. at 2d, 209-210, 2d, 57; 151 N. E. at 175 N. Y. S. at see the also dissenting opinion Judge Voorhis, 2d, 374, 151 Van 4 N. Y. at N. E. 2d, 212, 175 2d, at N. Y. S. at 60. are pictures between
ence substance suggestive, sexually morals, public corruptive of -the those scenes, suggestive predominance because of only presenting effect the same precisely which achieve manner clearly approbatory in a scenes several such concerned the film. The law is course of throughout producing means but one merely with effect, urith upon in the corrosive objection . lies it . . effect Y. morality 2d, sense sexual public 4 N. 2d, (Emphasis Y. at 46. 175 N. S. 2d,
N. E. at. original.) question Court would
I do not understand that portions of the constitutionality particular ,if the Court are here concerned which we statute with majority opinions I the. read, dó, as obscenity provisions require Appeals construing these expressions opin- incitement, not mere abstract just why Court should It is difficult to understand ion. it Our usual course read has. opinions strain to those adjudication opposite. precisely constitutional n. film a dif- quite to this application the statute
.The the view ferent matter. have heretofore ventured latitude in this field States have wider constitutional *20 separate than the Federal See the Government. writer’s California, United Alberts v. opinion in Roth v. States and I have approach, 354 U. 496. viewed S. With this film.
Giving descriptive expression to what in matters this analysis kind are in the last bound to be but individual subjective objectively try impressions, one'may to dis- I charge judge, repaying. his as a is not to be duty apt myself saying that, according shall therefore content with I with, sympathetic full respect to, hope, considera- for, expressed by tion and characterizations views others, regard anything I this film as depicting cannot unusual, pathetic, more than a somewhat and rather in triangle,” lacking anything properly “love that could corruptive public be termed obscene or morals I by inciting adultery. commission of therefore think that this film banning New York has exceeded constitutional limits.
I with conclude one further It is observation. some- times said Court should shun considering the particularities of individual cases in this lest difficult field the Court become a final censorship.” “board But cannot why thought understand it should be process of judgment constitutional this realm somehow stands apart from that fields, involved other particu- larly those presenting questions of due process. Nor can I see, short of holding that all “censorship” state laws are constitutionally impermissible, from course carefully the Court is abstaining, hope how the can ultimately spare the necessity itself for individualized adjudication. In very of'things problems nature in this area are ones of individual.cases, see Roth v. United States and Alberts v. California, supra, 496-498, a “censorship” statute can be hardly contrived that would in effect self-executing. And, lastly, time each such a statute is struck down, the State is left more con- fusion, as witness experience New York’s with its statute.
Because I believe the New York statute was uncon- applied stitutionally in this instance I concur in the judgment of the Court.