Lead Opinion
The film “ Blue Movie ”, subject of this prosecution under section 235.05 of the Penal Law, is simple pornography unrelieved by any merit. Aсts of sexual intercourse are portrayed, actual or simulated, accompanied by a series of sexual mаnifestations and movements.
The elements which must be established to satisfy the constitutional protection afforded by the First Amendment to freedom of expression as laid down by Both v. United States (
Those еlements justifying prosecution by the State and meeting Federal constitutional requirements are that the dominant theme of the production as a whole appeals to prurient interest in sex; is patently offensive as an affront to community standards; and is without redeeming social value (Bedrup v. New York,
There are, of course, a number of cases holding that in particular publications or films these tests were not met and prosecution would not lie. A recent example is Cain v. Kentucky (
The needs of adjudication must, as a practical matter, be met by such mature and objective judgment as Judges are able to bring to it. A majority of this court, having viewed the film, is in agreement with the trial court and thе Appellate Term that the film is obscene, and that prosecution is not interdicted by the First Amendment.
Appellant argues аlso that before the warrants issued for the seizure of the film and for his arrest, he was entitled to an
The procedure followed here was that the Judge attended thе public theatre at which the film was exhibited and, on seeing it, concluded there was probable cause to institute prоsecution and issued the warrants.
This independent judicial action met fully the basic rule laid down in Marcus v. Search Warrant (
It was noted, on this issue in Marcus, that the warrants for a very large number of magazines and books (11,000 copies) were issued “ on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials ” (pp. 731-732). That is cеrtainly not this case. The warrants involved here were preceded by judicial scrutiny and were the .result of judicial determinаtion.
The additional question is whether the scrutiny should have been followed by an adversary hearing. The Supreme Court has not held that; and its most recent comment on the problem, suggests it is not moving in that direction (Lee Art Theatre v. Virginia,
There a Virginia conviction was reversed on authority of Marcus (supra). Not only was there no judicial scrutiny in advance, but the policeman’s affidavit, used as a basis for the warrant, was both subjective and general. There was an аbsence of “ any inquiry by the justice of the peace into the factual basis for the officer’s conclusions” (p. 637). Of course, that was not enough under Marcus.
But what is of relevancy for the present case is the observation by the Supreme Court that “ wе need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant ” (p. 637). This implies that had the Justice done so, as the Judge in the present case did, it would have been sufficiеnt. There is no suggestion that an adversary hearing, an extreme departure from standard American practice on wаrrants, would also have been required.
There are intrinsic procedural difficulties in requiring such hearings. The usual reason fоr an adversary hearing before a Magistrate as to whether a warrant should or should not issue arises from a close issuе as to whether there is a real basis in fact for probable cause to begin a prosecution.
But when a Magistrate sees a film, it is not much help to him, or indeed to the parties, in deciding probable cause to have counsel on оne side tell him what he has just seen is obscene and on the other that it is not. He is deciding, on the warrant question, not guilt or innocence, but the prima facie sufficiency of ground to prosecute based on probable cause. The legal issue of obscenity on the merits of the charge can quickly be determined when the prosecution begins by appropriate motion.
There is a difference, too, in the impact of a wide-ranging warrant such as that in Marcus (supra) for the seizure of 11,000 publicаtions which could amount to actual suppression of expression, and a single film which at the initial stage of the prosеcution is taken merely as evidence until there has been a final adversary determination on the merits whether it violatеs the statute.
The order should be affirmed.
Dissenting Opinion
If I were to judge the film before us in terms of my personal views of its social value, of its moral and aesthetic wоrth, I would condemn it for its vulgarity no less than for its banality.
Judges Burke, Scileppi, Breitel and Jasen concur with Judge Bergan; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judge Gibson concurs.
Order affirmed.
Notes
. It should be noted that no person under 18 years of age was ever admitted to the theatre where the picture was shown and that there was no claim of pandering or exploitation of its sexual content.