Kingsley International Pictures Corporation v. Regents of the University of the State of New York/Concurrence Clark
Mr. Justice CLARK, concurring in the result.
I can take the words of the majority of the New York Court of Appeals only in their clear, unsophisticated and common meaning. They say that §§ 122 and 122-a of New York's Education Law 'require the denial of a license to motion pictures which are immoral in that they portray 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior." (4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197.) That court states the issue in the case in this language:
'Moving pictures are our only concern and, what is more to the point, only those motion pictures which alluringly present acts of sexual immorality as proper behavior.' 4 N.Y.2d 349, 175 N.Y.S.2d 39, 48, 151 N.E.2d 197, 203.
Moreover, it is significant to note that in its 14-page opinion that court says again and again, in fact 15 times, that the picture 'Lady Chatterley's Lover' is proscribed because of its 'espousal' of sexual immorality as 'desirable' or as 'proper conduct for the people of our State.' 
The minority of my brothers here, however, twist this holding into one that New York's Act requires 'obscenity or incitement, not just mere abstract expressions of opinion.' But I cannot so obliterate the repeated declarations above-mentioned that were made not only 15 times by the Court of Appeals but which were the basis of the Board of Regents' decision as well. Such a construction would raise many problems, not the least of which would be our failure to accept New York's interpretation of the scope of its own Act. I feel, as does the majority here, bound by their holding.
In this context, the Act comes within the ban of Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. We held there that 'expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.' Id., 343 US. at page 502, 72 S.Ct. at page 781. Referring to Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, we said that while 'a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication' such protection was not unlimited but did place on the State 'a heavy burden to demonstrate that the limitation challenged' was exceptional. Id., 343 U.S. at pages 503-504, 72 S.Ct. at page 781. The standard applied there was the word 'sacrilegious' and we found it set the censor 'adrift upon a boundless sea amid a myriad of conflicting currents of religious views * * *.' Id., 343 U.S. at page 504, 72 S.Ct. at page 782. We struck it down.
Here the standard is the portrayal of 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior.' Motion picture plays invariably have a hero, a villain, supporting characters, a location, a plot, a diversion from the main theme and usually a moral. As we said in Burstyn: 'They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.' 343 U.S. at page 501, 72 S.Ct. at page 780. What may be to one viewer the glorification of an idea as being 'desirable, acceptable or proper' may to the notions of another be entirely devoid of such a teaching. The only limits on the censor's discretion is his understanding of what is included within the term 'desirable, acceptable or proper.' This is nothing less than a roving commission in which individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor rather than regulation by law. Even here three of my brothers 'cannot regard this film as depicting anything more than a somewhat unusual, and rather pathetic, 'love triangle." At least three-perhaps four-of the members of New York's highest court thought otherwise. I need only say that the obscurity of standard presents such a choice of difficulties that even the most experienced find themselves at dagger's point.
It may be, as Chief Judge Conway said, 'that our public morality, possibly more than ever before, needs every protection government can give.' 4 N.Y.2d 363, 175 N.Y.S.2d 50, 151 N.E.2d 204-205. And, as my Brother HARLAN points out, 'each time such a statute is struck down, the State is left in more confusion.' This is true where broad grounds are employed leaving no indication as to what may be necessary to meet the requirements of due process. I see no grounds for confusion, however, were a statute to ban 'pornographic' films, or those that 'portray acts of sexual immorality, perversion or lewdness.' If New York's statute had been so construed by its highest court I believe it would have met the requirements of due process. Instead, it placed more emphasis on what the film teaches than on what it depicts. There is where the confusion enters. For this reason, I would reverse on the authority of Burstyn.
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, concurring in the result.
I think the Court has moved too swiftly in striking down a statute which is the product of a deliberate and conscientious effort on the part of New York to meet constitutional objections raised by this Court's decisions respecting predecessor statutes in this field. But although I disagree with the Court that the parts of §§ 122 and 122-a of the New York Education Law, 16 N.Y.Laws Ann. § 122 (McKinney 1953), 16 N.Y. Laws Ann. § 122-a (McKinney Supp. 1958), here particularly involved are unconstitutional on their face, I believe that in their application to this film constitutional bounds were exceeded.
Section 122-a of the State Education Law was passed in 1954 to meet this Court's decision in Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, which overturned the New York Court o Ap peals' holding in Commercial Pictures Corp. v. Board of Regents, 305 N.Y. 336, 113 N.E.2d 502, 505, that the film La Ronde could be banned as 'immoral' and as 'tend(ing) to corrupt morals' under § 122.  The Court's decision in Commercial Pictures was but a one line per curiam with a citation to Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, which in turn had held for naught not the word 'immoral' but the term 'sacrilegious' in the statute.
New York, nevertheless, set about repairing its statute. This it did by enacting § 122-a which in the respects emphasized in the present opinion of Chief Judge Conway as pertinent here defines an 'immoral' motion picture film as one which portrays "acts of sexual immorality * * * as desirable, acceptable or proper pattern of behavior." 4 N.Y.2d 349, 351, 175 N.Y.S.2d 39, 151 N.E.2d 197.  The Court now holds this part of New York's effort unconstitutional on its face under the Fourteenth Amendment. I cannot agree.
The Court does not suggest that these provisions are bad for vagueness.  Any such suggestion appears to me untenable in view of the long-standing usage in this Court of the concept 'sexual immorality' to explain in part the meaning of 'obscenity.' See, e.g., Swearingen v. United States, 161 U.S. 446, 451, 16 S.Ct. 562, 563, 40 L.Ed. 765.  Instead, the Court finds a constitutional vice in these provisions in that they require, so it is said, neither 'obscenity' nor incitement to 'sexual immorality,' but strike of their own force at the mere advocacy of 'an idea-that adultery under certain circumstances may be proper behavior'; expressions of 'opinion that adultery may sometimes be proper * * *.' I think this characterization of these provisions misconceives the construction put upon them by the prevailing opinions in the Court of Appeals. Granting that the abstract public discussion or advocacy of adultery, unaccompanied by obscene portrayal or actual incitement to such behavior, may not constitutionally be proscribed by the State, I do not read those opinions to hold that the statute on its face undertakes any such proscription. Chief Judge Conway's opinion, which was joined by two others of the seven judges of the Court of Appeals, and in the trust of which one more concurred, to be sure with some doubt, states (4 N.Y.2d at page 356, 175 N.Y.S.2d at page 44, 151N.E .2d at page 200):
'It should first be emphasized that the scope of section 122 a is not mere expression of opinion in the form, for example, of a filmed lecture whose subject matter is the espousal of adultery. We reiterate that this case involves the espousal of sexually immoral acts (here adultery) plus actual scenes of a suggestive and obscene nature.' (Emphasis in original.)
The opinion elsewhere, as indeed is also the case with §§ 122 and 122-a themselves when independently read in their entirety, is instinct with the notion that mere abstract expressions of opinion regarding the desirability of sexual immorality, unaccompanied by obscenity  or incitement, are not proscribed. See 4 N.Y.2d 349, especially at pages 351-352, 354, 356-358, 361, 363-364, 175 N.Y.S.2d 39, at pages 40-41, 42-43 44-49, 50-51, 151 N.E.2d 197, at pages 197, 199, 200-201, 203, 204-205; and Notes 1 and 2, supra. It is the corruption of public morals, occasioned by the inciting effect of a particular portrayal or by what New York has deemed the necessary effect of obscenity, at which the statute is aimed. In the words of Chief Judge Conway, 'There is no difference in substance between motion pictures which are corruptive of the public morals, and sexually suggestive, because of a predominance of suggestive scenes, and those which achieve rec isely the same effect by presenting only several such scenes in a clearly approbatory manner throughout the course of the film. The law in concerned with effect, not merely with but one means of producing it * * * the objection lies in the corrosive effect upon the public sense of sexual morality.' 4 N.Y.2d at page 358, 175 N.Y.S.2d at page 46, 151 N.E.2d at page 201. (Emphasis in original.)
I do not understand that the Court would question the constitutionality of the particular portions of the statute with which we are here concerned if the Court read, as I do, the majority opinions in the Court of Appeals as construing these provisions to require obscenity or incitement, not just mere abstract expressions of opinion. It is difficult to understand why the Court should strain to read those opinions as it has. Our usual course in constitutional adjudication is precisely the opposite.
The application of the statute to this film is quite a different matter. I have heretofore ventured the view that in this field the States have wider constitutional latitude than the Federal Government. See the writer's separate opinion in Roth v. United States and Alberts v. State of California, 354 U.S. 476, 496, 77 S.Ct. 1304, 1315, 1 L.Ed.2d 1498. With that approach, I have viewed this film.
Giving descriptive expression to what in matters of this kind are in the last analysis bound to be but individual subjective impressions, objectively as one may try to discharge his duty as a judge, is not apt to be repaying. I shall therefore fore content myself with saying that, according full respect to, and with, I hope, sympathetic consideration for, the views and characterizations expressed by others, I cannot regard this film as depicting anything more than a somewhat unusual, and rather pathetic, 'love triangle,' lacking in anything that could properly be termed obscene or corruptive of the public morals by inciting the commission of adultery. I therefore think that in banning this film New York has exceeded constitutional limits.
I conclude with one further observation. It is sometimes said that this Court should shun considering the particularities of individual cases in this difficult field lest the Court become a final 'board of censorship,' But I cannot understand why it should be thought that the process of constitutional judgment in this realm somehow stands apart from that involved in other fields, particularly those presenting questions of due process. Nor can I see, short of holding that all state 'censorship' laws are constitutionally impermissible, a course from which the Court is carefully abstaining, how the Court can hope ultimately to spare itself the necessity for individualized adjudication. In the very nature of things the problems in this area are ones of individual cases, see Roth v. United States and Alberts v. State of California, supra, 354 U.S. at pages 496-498, 77 S.Ct. at pages 1315-1316, for a 'censorship' statute can hardly be contrived that would in effect be self-executing. And lastly, each time such a statute is struck down, the State is left in more confusion, as witness New York's experience with its statute.
Because I believe the New York statute was unconstitutionally applied in this instance I concur in the judgment of the Court.
^1 The phrase is not always identical but varies from the words of the statute, 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior,' to such terms 'as proper conduct for the people of our State'; 'exaltation of illicit sexual love in derogation of the restraints of marriage'; as a 'proper pattern of behavior'; 'the espousal of sexually immoral acts'; 'which debase fundamental sexual morality by portraying its converse to the people as alluring and desirable'; 'which alluringly portrays sexually immoral acts as proper behavior'; 'by presenting * * * (adultery) in a clearly approbatory manner'; 'which alluringly portrays adultery as proper behavior'; 'which alluringly portray acts of sexual immorality (here adultery) and recommended them as a proper way of life'; 'which alluringly portray adultery as proper and desirable'; and 'which alluringly portray acts of sexual immorality by adultery as proper behavior.'
^1 Section 122 provides: 'The director of the (motion picture) division or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that it exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto.'
^2 Section 122-a provides:
'1. For the purpose of section one hundred twenty-two of this chapter, the term 'immoral' and the phrase 'of such a character that its exhibition would tend to corrupt morals' shall denote a motion picture film of part thereof, the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.
'2. For the purpose of section one hundred twenty-two of this chapter, the term 'incite to crime' shall denote a motion picture the dominant purpose or effect of which is to suggest that the commission of criminal acts or contempt for law is profitable, desirable, acceptable, or respectable behavior; or which advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs.'
^3 The bill that became § 122-a was introduced at the request of the State Education Department, which noted in a memorandum that 'the issue of censorship, as such, is not involved in this bill. This bill merely attempts to follow out the criticism of the United States Supreme Court by defining the words 'immoral' and 'incite to crime." N.Y.S. Legis. Ann., 1954, 36. In a memorandum accompanying his approval of the measure, the then Governor of New York, himself a lawyer, wrote:
'Since 1921, the Education Law of this State has required the licensing of motion pictures and authorized refusal of a license for a motion picture which is 'obscene, indecent, immoral' or which would 'tend to corrupt morals or incite to crime.'
'Recent Supreme Court decisions have indicated that the term 'immoral' may not be sufficiently definite for constitutional purposes. The primary purpose of this bill is to define 'immoral' and 'tend to corrupt morals' in conformance with the apparent requirements of these cases. It does so by defining them in terms of 'sexual immorality.' The words selected for this definition are based on judicial opinions which have given exhaustive and reasoned treatment to the subject.
'The bill does not create any new licensing system, expand the scope of motion picture censorship, or enlarge the area of permissible prior restraint. Its sole purpose is to give to the section more precision to make it conform to the tenor of recent court decisions and proscribe the exploitation of 'filth for the sake of filth.' It does so as accurately as language permits in 'words well understood through long use.' (Winters v. People of State of N.Y., 1948, 333 U.S. 507, 518 (68 S.Ct. 665, 92 L.Ed. 840)).
'The language of the Supreme Court of the United States, in a recent opinion of this precise problem, should be noted: "To hold that liberty and expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.' ((Joseph) Burstyn (Inc.) v. Wilson, 343 U.S. 495, at (page) 502 (72 S.Ct. 777, at page 780)).
'So long as the State has the responsibility for interdicting motion pictures which transgress the bounds of decency, we have the responsibility for furnishing guide lines to the agency charged with enforcing the law.' Id., at 408.
^4 Certainly it cannot be claimed that adultery is not a form of 'sexual immorality'; indeed adultery is made a crime in New York. N.Y. Penal Law §§ 100-103, 39 N.Y. Laws Ann. §§ 100-103 (McKinney's Consol.Laws, c. 40, 1944, c).
^5 Nothing in Judge Dye's dissenting opinion, to which the Court refers in Note 7 of its opinion, can be taken as militating against this view of the prevailing opinions in the Court of Appeals. Judge Dye simply disagreed with the majority of the Court of Appeals as to the adequacy of the § 122-a definition of 'immoral' to overcome prior constitutional objections to that term. See 4 N.Y.2d at page 371, 175 N.Y.S.2d at page 57, 151 N.E.2d at pages 209-210; see also the dissenting opinion of Judge Van Voorhis, 4 N.Y.2d at page 374, 175 N.Y.S.2d at page 60, 151 N.E.2d at page 212.