Kingsley International Pictures Corporation v. Regents of the University of the State of New York/Opinion of the Court
Once again the Court is required to consider the impact of New York's motion picture licensing law upon First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States. Cf. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.
The New York statute makes it unlawful 'to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel (with certain exceptions not relevant here), unless there is at the time in full force and effect a valid license or permit therefor of the education department * * * .  The law provides that a license shall issue 'unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacriegi ous, or is of such a character that its exhibition would tend to corrupt morals or incite to crime * * *.'  A recent statutory amendment provides that, 'the term 'immoral' and the phrase 'of such a character that its exhibition would tend to corrupt morals' shall denote a motion picture film or 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.' 
As the distributor of a motion picture entitled 'Lady Chatterley's Lover,' the appellant Kingsley submitted that film to the Motion Picture Division of the New York Education Department for a license. Finding three isolated scenes in the film "immoral' within the intent of our Law,' and Division refused to issue a license until the scenes in question were deleted. The distributor petitioned the Regents of the University of the State of New York for a review of that ruling.  The Regents upheld the denial of a license, but on the broader ground that 'the whole theme of this motion picture is immoral under said law, for that theme is the presentation of adultery as a desirable, acceptable and proper pattern of behavior.' Kingsley sought judicial review of the Regents' determination.  The Appellate Division unanimously annulled the action of the Regents and directed that a license be issued. 4 A.D.2d 348, 165 N.Y.S.2d 681. A sharply divided Court of Appeals, however, reversed the Appellate Division and upheld the Regents' refusal to license the film for exhibition. 4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197. 
The Court of Appeals unanimously and explicitly rejected any notion that the film is obscene.  See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Rather, the court found that the picture as a whole 'alluringly portrays adultery as proper behavior.' As Chief Judge Conways' prevailing opinion emphasized, therefore, the only portion of the statute involved in this case is that part of §§ 122 and 122-a of the Education Law requiring the denial of a license to motion pictures 'which are immoral in that they portray 'acts of sexual immorality * * * as desirable, acceptale or proper patterns of behavior."  4 N.Y.2d 351, 175 N.Y.S.2d 40, 151 N.E.2d 197. A majority of the Court of Appeals ascribed to that language a precise purpose of the New York Legislature to require the denial of a license to a motion picture 'because its subject matter is adultery presente as being right and desirable for certain people under certain circumstances.'  4 N.Y.2d 369, 178 N.Y.S.2d 55, 151 N.E.2d 208 (concurring opinion).
We accept the premise that the motion picture here in question can be so characterized. We accept too, as we must, the construction of the New York Legislature's language which the Court of Appeals has put upon it. Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of R.R. Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. That construction, we emphasize, gives to the term 'sexual immorality' a concept entirely different from the concept embraced in words like 'obscenity' or 'pornography.'  Moreover, it is not suggested that the film would itself operate as an incitement to illegal action. Rather, the New York Court of Appeals tells us that the relevant portion of the New York Education Law requires the denial of a license to any motion picture which approvingly portrays an adulterous relationship, quite without reference to the manner of its portrayal.
What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea-that adultery under certain circumstances may be proper behavior. Yet the First Amendment's basic guarantee is of freedom to advocate ideas. The State, quite simply, has thus struck at the very heart of constitutionally protected liberty.
It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religios p recepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.
Advocacy of conduct proscribed by law is not, as Mr. Justice Brandeis long ago pointed out, 'a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.' Whitney v. People of State of California, 274 U.S. 357, at page 376, 47 S.Ct. 641, at page 648, 71 L.Ed. 1095 (concurring opinion). 'Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech * * *.' Id., 274 U.S. at page 378, 47 S.Ct. at page 649. 
The inflexible command which the New York Court of Appeals has attributed to the State Legislature thus cuts so close to the core of constitutional freedom as to make it quite needless in this case to examine the periphery. Specifically, there is no occasion to consider the appellant's contention that the State is entirely without power to require films of any kind to be licensed prior to their exhibition. Nor need we here determine whether, despite problems peculiar to motion pictures, the controls which a State may impose upon this medium of expression are precisely coextensive with those allowable for newspapers,  books,  or individual speech.  It is enough for the present case to reaffirm that motion pictures are within the First and Fourteenth Amendments' basic protection. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.
^1 McKinney's Consol.N.Y.Laws, c. 16, 1953, Education Law, § 129.
^2 McKinney's Consol.N.Y.Laws, 1953, Education Law, § 122.
^3 McKinney's Consol.N.Y.Laws, 1953, Education Law, § 122-a.
^4 'An applicant for a license or permit, in case his application be denied by the director of the division or by the officer authorized to issue the same, shall have the right of review by the regents.' McKinney's Consol.N.Y.Laws, 1953, Education Law, § 124.
^5 The proceeding was brought under art. 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Cic.Prac., Vol. 6B, 1944, 1949 Supp., § 1283 et seq. See also, McKinney's Consol.N.Y.Laws, 1953, Education Law, § 124.
^6 Although four of the seven judges of the Court of Appeals voted to reverse the order of the Appellate Division, only three of them were of the clear opinion that denial of a license was permissible under the Constitution. Chief Judge Conway wrote an opinion in which Judges Froessel and Burke concurred, concluding that denial of the license was constitutionally permissible. Judge Desmond wrote a separate concurring opinion in which he stated: 'I confess doubt as to the validity of such a statute but I do not know how that doubt can be resolved unless we reverse here and let the Supreme Court have the final say.' 4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d 208. Judge Dye, Judge Fuld, and Judge Van Voorhis wrote separate dissenting opinions.
^7 The opinion written by Chief Judge Conway stated: '(I)t is curious indeed to say in one breath, as some do, that obscene motion pictures may be censored, and then in another breath that motion pictures which alluringly portray adultery as proper and desirable may not be censored. As stated above, 'The law is concerned with effect, not merely with but one means of producing it.' It must be firmly borne in mind that to give obscenity, as defined, the stature of the only constitutional limitation is to extend an invitation to corrupt the public morals by methods of presentation which craft will insure do not fall squarely within the definition of that term. Precedent, just as sound principle, will not support a statement that motion pictures must be 'out and out' obscene before they may be censored.' 4 N.Y.2d 364, 175 N.Y.S.2d 51, 151 N.E.2d 205.
Judge Desmond's concurring opinion stated: '(It is not) necessarily determinative that this film is not obscene in the dictionary sense * * *.' 4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d 208. Judge Dye's dissenting opinion stated: 'No one contends that the film in question * * * is obscene within the narrow legal limits of obscenity as recently defined by the Supreme Court * * *.' 4 N.Y.2d 371, 175 N.Y.S.2d 57, 151 N.E.2d 210. Judge Van Voorhis' dissenting opinion stated: '(I)t is impossible to write off this entire drama as 'mere pornography' * * *.' Judge Van Voorhis, however, would have remitted the case to the Board of Regents to consider whether certain 'passages' in the film 'might have been eliminated as 'obscene', without doing violence to constitutional liberties.' 4 N.Y.2d 375, 175 N.Y.S.2d 60, 151 N.E.2d 212.
^8 This is also emphasized in the brief of counsel for the Regents, which states, 'The full definition is not before this Court-only these parts of the definition as cited-and any debate as to whether other parts of the definition are a proper standard has no bearing in this case.'
^9 In concurring, Judge Desmond agreed that this was the meaning of the statutory language in question, and that 'the theme and content of this film fairly deserve that characterization * * *.' 4 N.Y.2d 366, 175 N.Y.S.2d 52, 151 N.E.2d 206.
^11 Thomas Jefferson wrote more than a hundred and fifty years ago, 'But we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors. And especially when the law stands ready to punish the first criminal act produced by the false reasoning. These are safer correctives than the conscience of a judge.' Letter of Thomas Jefferson to Elijah Boardman, July 3, 1801, Jefferson Papers, Library of Congress, Vol. 115, folio 19761.