kingsley - international pictures
kingsley international pictures corp. v. regents of the university of the state of new york
kingsley international pictures corp. v. regents 360 u. s. 684 (1959 )
kingsley international pictures corp. v. regents 360 u. s. 684 (1959 )
kingsley international pictures corp. v. regents 360 u. s. 684 (1959) .
kingsley international pictures corp. v. regents 360 u. s. 684 (1959) | urltoken
kingsley international pictures corporation, appellant, v. regents of the university of the state of new york .
empire pictures distributing company, inc. , and kingsley international pictures corporation v... ., 273 f. 2d 529 – urltoken
empire pictures distributing company, inc. , and kingsley international pictures corporation, appellants, v. city of fort worth et al. , appellees .
kingsley international pictures corporation v. regents of the university of new york, 360 u. s. 684 (1959 )
home politics encyclopedias almanacs transcripts and maps kingsley international pictures corp. v. regents 360 u. s. 684 (1959 )
» kingsley international pictures corporation v. regents of the university of new york, 360 u. s. 684 (1959 )
kingsley international pictures corp. v. regents of the university of new york, 360 u. s. 684 (1959 )
kingsley international pictures corporation, appellant, v. regents of the university of the state of new york. | us law | lii / legal information institute
see the concurring opinion of mr. justice harlan in kingsley international pictures corp. v. regents of the university of state of new york, 1959 ,
kingsley international pictures corp. v. regents 360 u. s. 684 (1959) .
encyclopedia of the american constitution. . retrieved july 09, 2018 from urltoken urltoken
kingsley international pictures corp. v. regents 360 u. s. 684 (1959) .
encyclopedia of the american constitution. . encyclopedia. com. (july 9, 2018). urltoken
in kingsley international pictures corp. v. regents the state of new york had refused to issue a license for the motion picture lady chatterley' s lover because it
alluringly portrays adultery as proper behavior .
there was no claim that the film constituted an incitement to unlawful conduct. without deciding whether all licensing schemes for motion pictures were unconstitutional the supreme court held that the refusal to grant this license violated the first amendment. the court reaffirmed that motion pictures were within the scope of the first amendment and proclaimed that the amendment' s
basic guarantee
is
the freedom to advocate ideas ,
including the idea that adultery may in some cases be justified .
alleging that the case arises under the constitution of the united states, appellants empire pictures distributing company, inc. , a texas corporation, and kingsley international pictures corporation, a new york corporation, brought this action to have two ordinances of the city of fort worth, texas declared to be violative of their rights under the first and fourteenth amendments of the constitution of the united states, and to have their enforcement enjoined. the defendants, appellees here, are the city of fort worth, a municipal corporation, its mayor, city manager and chief of police, along with the members of the board of censorship created by one of the ordinances .
' 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 .
moving pictures are our only concern and, what is more to the point, only those motion pictures which [ 700 ] alluringly present acts of sexual immorality as proper behavior .
4 n. y. 2d 349, 361, 151 n. e. 2d 197, 203, 175 n. y. s. 2d 39, 48 .
the motion picture division of the new york state education department was authorized to issue licenses for the exhibition, sale, lease, or distribution of motion pictures. licenses could be denied to any motion picture portraying in whole or in part, either ‘‘expressly or impliedly’’ immoral, perverse, or lewd sexual acts as ‘‘desirable, acceptable, or proper patterns of behavior. ’’ when kingsley international pictures submitted a filmed version of h. d. lawrence’s novel, lady chatterley’s lover to the education division for a license, it was denied on the grounds that isolated scenes were immoral. the corporation appealed to the university of new york regents who upheld the decision after they concluded the film presented adultery as acceptable and proper behavior. a lower court annulled the regents’ decision, but a sharply divided new york court of appeals reinstated the rescission and upheld the regents. the court of appeals declared that although lady chatterley’s lover was not obscene, it nevertheless ‘‘alluringly portrays adultery as proper behavior. ’’
343 u. s. 495 (1952). we held there that
expression by means of motion pictures [ 701 ] is included within the free speech and free press guaranty of the first and fourteenth amendments .
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 .
' 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 .
cf. kingsley books, inc. , v. brown, 354 u. s. 436, 77 s. ct. 1325, 1 l. ed. 2d 1469; alberts v. state of california, 354 u. s. 476, 77 s. ct. 1304, 1 l. ed. 2d 1498 .
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.'
' 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.'
' 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.' [
it was alleged that kingsley was the sole owner of the right to exhibit a motion picture film
and god created woman
in the united states, and that empire was owner of the rights to distribute the film in the state of texas, and that empire had contracted with a theater in fort worth to exhibit the picture, but it had been unable to do so because the city refused to issue a permit for such exhibition, without which permit appellants would be subject to the penalties of one of the ordinances. the complaint charged that the ordinances provided for a system of censorship of motion pictures and that the ordinances were, on their face and as interpreted by defendants, in contravention of their rights guaranteed by the first and fourteenth amendments of the constitution .
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 .
section 122a 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. 1 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 .
7. the opinion written by chief judge conway stated :
it 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, at 364, 151 n. e. 2d, at 205, 175 n. y. s. 2d, at 51 .
305 n. y. 336, 113 n. e. 2d 502, that the film la ronde could be banned as
immoral
and as
tend [ ing ] to corrupt morals
under § 122. [ note 1 ] the court' s decision in commercial pictures was but a one line per curiam with a citation to
black and douglas shared the view thatnew york’s law involved prior censorship of motion pictures and thus violated the precedent set in near v. minnesota (1931) barring prior restraint. black wrote separately to lament the court’s ‘‘individualized determination’’ of whether publications or motion pictures were obscene had converted it into a ‘‘supreme board of censors. ’’ frankfurter and harlan agreed with the majority’s judgment but not its rationale. both thought the court’s opinion failed to address the issue of ‘‘vagueness, ’’ which had been the grounds for earlier decisions against new york’s law; that the opinion misconstrued the views of the new york courts; and that even though they agreed, new york’s law was constitutional its application to lady chatterley’s lover exceeded constitutional bounds .
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 [ 690 ] are precisely coextensive with those allowable for newspapers, [ note 12 ] books, [ note 13 ] or individual speech. [ note 14 ] it is enough for the present case to reaffirm that motion pictures are within the first and fourteenth amendments' basic protection .
kingsley sought judicial review of the regents' determination. [ note 5 ] the appellate division unanimously annulled the action of the regents and directed that a license be issued. 4 app. div. 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, 151 n. e. 2d 197, 175 n. y. s. 2d 39. [ note 6 ]
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, 12 books, 13 or individual speech. 14 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 .
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. 4 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. 5 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. 6
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.'
that court states the issue in the case in this language :
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 ,
the 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. [ note 4 ] 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 .
the different standards which different people may use to decide about the badness of pictures are well illustrated by the contrasting standards mentioned in the opinion of the new york court of appeals and the concurring opinion of mr. justice frankfurter here. as i read the new york court' s opinion this movie was held immoral and banned because it makes adultery too alluring. mr. justice frankfurter quotes mr. lawrence, author of the book from which the movie was made, as believing censorship should be applied only to publications that make sex look ugly, that is, as i understand it, less alluring .
the different standards which different people may use to decide about the badness of pictures are well illustrated by the contrasting standards mentioned in the opinion of the new york court of appeals and the concurring opinion of mr. justice frankfurter here. as i read the new york court' s opinion this movie was held immoral and banned because it makes adultery too alluring. mr. justice frankfurter quotes mr. lawrence, author of the book from which the movie was made, as believing censorship should be applied only to publications that make sex look ugly, that is, as i understand it, less alluring .
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 122a 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 :
' 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) ) .
attached to the complaint also was a copy of article 527 (509) of the texas code, vernon' s ann. p. c. art. 527, providing punishment of any person who should engage in exhibition of lewd, lascivious or depraved motion pictures, or any figure, image, article or thing portraying nude or partly denuded female figures in compromising and obscene poses. the action did not involve any state officer, however, and no part of the argument is devoted to an attack upon this state statute. in fact, in the argument it was conceded that the district judge properly refused to have a three - judge court convened upon the admission that no state statute was involved .
ordinance 3475 creates a board of censors for the city of fort worth. it is the duty of the board
to supervise all motion picture exhibitions * * * and to cause the suppression of any such entertainment deemed by the board indecent or injurious to the morals of the citizens, or encouraging or promoting juvenile delinquency .
an exhibitor must apply for a permit. but
no permit shall be issued * * * for the showing of motion pictures * * * which are, in the opinion of the board, indecent or injurious to the morals of the citizens of fort worth, or which would tend to promote or encourage indecency, immorality or racial or sectional prejudices, or juvenile delinquency .
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 [ 707 ] 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 precisely the same effect by presenting only several such scenes in a clearly approbatory manner throughout the course of the film. the law is 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 358, 151 n. e. 2d, at 201, 175 n. y. s. 2d, at 46. (emphasis in original. )
the other ordinance, no. 3475, creates a board of censors to supervise motion picture exhibitions and other forms of theatrical entertainment, requires a permit to exhibit a motion picture, prohibiting such exhibition without a permit, prescribes regulations for the granting or refusal of permits, regulates advertisements, etc. the board of censors was to consist of four men and four women whose duty it was to supervise all motion picture exhibitions, and its decisions were subject to appeal to a board consisting of its own membership supplemented by three named officials of the city of fort worth or tarrant county. the board was given the right to have motion pictures shown in advance to its membership; had a right to refuse a permit
if a majority of the board of censors * * * shall condemn said picture or other form of theatrical entertainment as being indecent or injurious to the morals of the citizens, or as tending to promote or encourage indecency, immorality, or racial or sectional prejudices, or juvenile delinquency .
354 u. s. 476. rather, the court found that the picture as a whole
alluringly portrays adultery as proper behavior .
as chief judge conway' s 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, acceptable or proper patterns of behavior.'
[ note 8 ] 4 n. y. 2d, at 351, 151 n. e. 2d, at 197, 175 n. y. s. 2d, at 40. 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 presented as being right and desirable for certain people under [ 688 ] certain circumstances .
[ note 9 ] 4 n. y. 2d, at 369, 151 n. e. 2d, at 208, 175 n. y. s. 2d, at 55 (concurring opinion) .
the court of appeals unanimously and explicitly rejected any notion that the film is obscene. 7 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 122a 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 .
8 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.' 9 4 n. y. 2d 369, 178 n. y. s. 2d 55, 151 n. e. 2d 208 (concurring opinion) .
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 503504, 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 .
the opinion elsewhere, as indeed is also the case with §§ 122 and 122a 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 5 or incitement, are not proscribed. see 4 n. y. 2d 349, especially at pages 351352, 354, 356358, 361, 363364, 175 n. y. s. 2d 39, at pages 4041, 4243 4449, 5051, 151 n. e. 2d 197, at pages 197, 199, 200201, 203, 204205; 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 concur in the court' s opinion and judgment but add a few words because of concurring opinions by several justices who rely on their appraisal of the movie lady chatterley' s lover for holding that new york cannot constitutionally bar it. unlike them, i have not seen the picture. my view is that stated by mr. justice douglas, that prior censorship of moving pictures like prior censorship of newspapers and books violates the first and fourteenth amendments. if despite the constitution, however, this nation is to embark on the dangerous road of censorship, my belief is that this court is about the most inappropriate supreme board of censors that could be found. so far as i know, judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the nation. in addition, the justices of this court seem especially unsuited to make the kind of value judgmentsas to what movies are good or bad for local communitieswhich the concurring opinions appear to require. we are told that the only way we can decide whether a state or municipality can constitutionally bar movis i § for this court to view and appraise each movie on a case - by - case basis. under these circumstances, every member of the court must exercise his own judgment as to how bad a picture is, a judgment which is ultimately based at least in large part on his own standard of what is immoral. the end result of such decisions seems to me to be a purely personal determination by individual justices as to whether a particular picture viewed is too bad to allow it to be seen by the public. such an individualized determination cannot be guided by reasonably fixed and certain standards. accordingly, neither states nor moving picture makers can possibly know in advance, with any fair degree of certainty, what can or cannot be done in the field of movie making and exhibiting. this uncertainty cannot easily be reconciled with the rule of law which our constitution envisages .
i concur in the court' s opinion and judgment but add a few words because of concurring opinions by several justices who rely on their appraisal of the movie lady chatterley' s lover for holding that new york cannot constitutionally bar it. unlike them, i have not seen the picture. my view is that stated by mr. justice douglas, that prior censorship of moving pictures like prior censorship of newspapers and books violates the first and fourteenth amendments. if despite the constitution, however, this nation is to embark on the dangerous road of censorship, my belief is that this court is about the most inappropriate supreme board of censors that could be found. so far as i know, judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the nation. in addition, the justices of this court seem especially unsuited to make the kind of value judgments - - as to what movies are good or bad for local communities - - which the concurring opinions appear to require. we are told that the only way we can decide whether a state or municipality can constitutionally bar movies is for this court to view and appraise each movie on a case - by - case basis. under these circumstances, every member of the [ 691 ] court must exercise his own judgment as to how bad a picture is, a judgment which is ultimately based at least in large part on his own standard of what is immoral. the end result of such decisions seems to me to be a purely personal determination by individual justices as to whether a particular picture viewed is too bad to allow it to be seen by the public. such an individualized determination cannot be guided by reasonably fixed and certain standards. accordingly, neither states nor moving picture makers can possibly know in advance, with any fair degree of certainty, what can or cannot be done in the field of movie making and exhibiting. this uncertainty cannot easily be reconciled with the rule of law which our constitution envisages .
under provisions of the new york education law which were construed by the court of appeals of new york as requiring the denial of a license to show a motion picture when
its subject matter is adultery presented as being right and desirable for certain people under certain circumstances ,
that court sustained denial of a license to show a motion picture which it found
alluringly portrays adultery as proper behavior .
held: as thus construed and applied, the new york statute violates the freedom to advocate ideas which is guaranteed by the first amendment and protected by the fourteenth amendment from infringement by the states. pp. 684 - 690. [ 684 ]
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 .
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 [ 685 ] [ 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... .
[ note 1 ] the law provides that a license shall issue
unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime... .
[ note 2 ] 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 .
[ note 3 ]
the court of appeals unanimously and explicitly rejected any notion that the film is obscene. [ note 7 ] see
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 .
aero mayflower transit co. v. board of r. r. comm' rs ,
332 u. s. 495. that construction, we emphasize, gives to the term
sexual immorality
a concept entirely different from the concept embraced in words like
obscenity
or
pornography .
[ note 10 ] 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 religious precepts, and the legal code of its citizenry. this [ 689 ] 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 .
274 u. s. 357, at 376 (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... .
in my judgment, this court should not permit itself to get into the very center of such policy controversies, which have so little in common with lawsuits .
as one whose taste in art and literature hardly qualifies him for the avant - garde, i am more than surprised, after viewing the picture, that the new york authorities should have banned
lady chatterley' s lover .
to assume that this motion picture would have offended victorian [ 692 ] moral sensibilities is to rely only on the stuffiest of victorian conventions. whatever one' s personal preferences may be about such matters, the refusal to license the exhibition of this picture, on the basis of the 1954 amendment to the new york state education law, can only mean that enactment forbids the public showing of any film that deals with adultery except by way of sermonizing condemnation or depicts any physical manifestation of an illicit amorous relation. since the denial of a license by the board of regents was confirmed by the highest court of the state, i have no choice but to agree with this court' s judgment in holding that the state exceeded the bounds of free expression protected by the
liberty
of the fourteenth amendment. but i also believe that the court' s opinion takes ground that exceeds the appropriate limits for decision. by way of reinforcing my brother harlan' s objections to the scope of the court' s opinion, i add the following .
even the author of
lady chatterley' s lover
did not altogether rule out censorship, nor was his passionate zeal on behalf of society' s profound interest in the endeavors of true artists so doctrinaire as to be unmindful 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 censor genuine pornography, rigorously. it would not be very difficult. in the first place, genuine pornography is almost always underworld, it doesn' t come into the open. in the second, you can recognize it by the insult it offers invariably, to sex, and to the human spirit .
pornography is the attempt to insult sex, to do dirt on it. this is unpardonable. take the very lowest instance, the picture post - card sold underhand, [ 693 ] by the underworld, in most cities. what i have seen of them have been of an ugliness to make you cry. the insult to the human body, the insult to a vital human relationship! ugly and cheap they make the human nudity, ugly and degraded they make the sexual act, trivial and cheap and nasty .
( d. h. lawrence, pornography and obscenity, pp. 12 - 13. )
this traffic has not lessened since lawrence wrote. apparently it is on the increase. in the course of the recent debate in both houses of parliament on the obscene publications bill, now on its way to passage, designed to free british authors from the hazards of too rigorous application in our day of lord cockburn' s ruling, in 1868, in
l. r. 3 q. b. 360, weighty experience was adduced regarding the extensive dissemination of pornographic materials. [ note 1 ] see 597 parliamentary debates, h. c. , no. 36 (tuesday, december 16, 1958), cols. 992 et seq. , and 216 parliamentary debates h. l. , no. 77 (tuesday, june 2, 1959), cols. 489 et seq. nor is there any reason to believe that on this side of the ocean there has been a diminution in the pornographic business which years ago sought a flourishing market in some of the leading secondary schools for boys, who presumably had more means than boys in the public high schools .
it is not surprising, therefore, that the pertinacious, eloquent and free - spirited promoters of the liberalizing legislation in great britain did not conceive the needs of a civilized society, in assuring the utmost freedom to those who make literature and art possible - - authors, artists, publishers, producers, book sellers - - easily attainable by sounding abstract and unqualified dogmas about freedom. [ 694 ] they had a keen awareness that freedom of expression is no more an absolute than any other freedom, an awareness that is reflected in the opinions of mr. justice holmes and mr. justice brandeis, to whom we predominantly owe the present constitutional safeguards on behalf of freedom of expression. and see
283 u. s. 697, 715 - 716, for limitations on constitutionally protected freedom of speech. [ note 2 ]
in short, there is an evil against which a state may constitutionally protect itself, whatever we may think about the questions of policy involved. the real problem is the formulation of constitutionally allowable safeguards which society may take against evil without impinging upon the necessary dependence of a free society upon the fullest scope of free expression. one cannot read the debates in the house of commons and the house of lords and not realize the difficulty of reconciling these conflicting interests, in the framing of legislation on the ends of which there was agreement, even for those who most generously espouse that freedom of expression without which all freedom gradually withers .
it is not our province to meet these recalcitrant problems of legislative drafting. ours is the vital but very limited task of scrutinizing the work of the draftsmen in order to determine whether they have kept within the narrow limits of the kind of censorship which even d. h. lawrence deemed necessary. the legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what is permissible expression as [ 695 ] well as what society may permissibly prohibit. always remembering that the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit, we have struck down legislation phrased in language intrinsically vague, unless it be responsive to the common understanding of men even though not susceptible of explicit definition. the ultimate reason for invalidating such laws is that they lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society .
the new york legislation of 1954 was the product of careful lawyers who sought to meet decisions of this court which had left no doubt that a motion - picture licensing law is not inherently outside the scope of the regulatory powers of a state under the fourteenth amendment. the court does not strike the law down because of vagueness, as we struck down prior new york legislation. nor does it reverse the judgment of the new york court of appeals, as i would, because in applying the new york law to
lady chatterley' s lover
it applied it to a picture to which it cannot be applied without invading the area of constitutionally free expression. the difficulty which the court finds seems to derive from some expressions culled here and there from the opinion of the chief judge of the new york court of appeals. this leads the court to give the phrase
acts of sexual immorality... as desirable, acceptable or proper patterns of behavior
an innocent content, meaning, in effect, an allowable subject matter for discussion. but, surely, to attribute that result to the decision of the court of appeals, on the basis of a few detached phrases of chief judge conway, is to break a faggot into pieces, is to forget that the meaning of language is to be felt and its phrases not to be treated disjointedly .
sexual immorality
is not a new phrase in this branch of law and its implications dominate the [ 696 ] context. i hardly conceive it possible that the court would strike down as unconstitutional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly a hundred years, see the act of march 3, 1865, 13 stat. 507, and march 3, 1873, 17 stat. 599, whatever specific instances may be found not within its allowable prohibition. in sustaining this legislation this court gave the words
lewd, obscene and lascivious
concreteness by saying that they concern
sexual immorality .
and only very recently the court sustained the constitutionality of the statute .
unless i misread the opinion of the court, it strikes down the new york legislation in order to escape the task of deciding whether a particular picture is entitled to the protection of expression under the fourteenth amendment. such an exercise of the judicial function, however onerous or ungrateful, inheres in the very nature of the judicial enforcement of the due process clause. we cannot escape such instance - by - instance, case - by - case application of that clause in all the varieties of situations that come before this court. it would be 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 talismanic formula. every term we have to examine the particular circumstances of a particular case in order to apply generalities which no one disputes. it would be equally comfortable if a general formula could determine the unfairness of a state trial for want of counsel. but, except in capital cases, we have to thread our way, term after term, through the particular circumstances of a particular case in relation to a particular defendant in order to ascertain whether due process was denied in the unique situation before us. we are constantly called upon to consider the alleged misconduct of a prosecutor as vitiating the fairness of a particular [ 697 ] trial or the inflamed state of public opinion in a particular case as undermining the constitutional right to due process. again, in the series of cases coming here from the state courts, in which due process was invoked to enforce separation of church and state, decision certainly turned on the particularities of the specific situations before the court. it is needless to multiply instances. it is the nature of the concept of due process, and, i venture to believe, its high serviceability in our constitutional system, that the judicial enforcement of the due process clause is the very antithesis of a procrustean rule. this was recognized in the first full - dress discussion of the due process clause of the fourteenth amendment, when the court defined the nature of the problem as a
gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasons on which such decision may be founded .
96 u. s. 97, 104. the task is onerous and exacting, demanding as it does the utmost discipline in objectivity, the severest control of personal predilections. but it cannot be escaped, not even by disavowing that such is the nature of our task .
mr. justice douglas, with whom mr. justice black joins, concurring .
283 u. s. 697. if a particular movie violates a valid law, the exhibitor can be prosecuted in the usual way. i can find in the first amendment no room for any censor [ 698 ] whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.
kingsley-international pictures was an american film importing and releasing agency , located in new york , active between 1952 and 1962 with its product distributed by union motion picture distributors . the company specialized in importing foreign art house film , mainly french but also some independent british titles , such as carrington v.c. ( 1955 ) , lucky jim ( 1957 ) , the league of gentlemen ( 1960 ) , and only two can play ( 1962 ) . the company was started and run by edward kingsley ( 1914-1962 ) , a pioneer in " art house " film distribution in the us . kingsley began as a publicist for paramount pictures in 1933 . in 1949 , he began distributing french films in partnership with arthur mayer , another art house distribution pioneer , but after a few years he branched out on his own by starting kingsley-international pictures . the company is mainly famous for two things : in 1957 it introduced brigitte bardot to the american audience via and god created woman , which created a bardot fever in the usa , and it released the first film version of lady chatterley 's lover , the 1955 french film l'amant de lady chatterley , which in 1955 was banned by new york state board of regents , not because of any sex scenes , but because it " promoted adultery " . the film was eventually released in 1959 after the us supreme court ruled the banning unconstitutional . that court ruling is seen as a landmark decision forming modern us views on censorship . in 1956 , the company became the art house subsidiary of columbia pictures , not because of a sudden interest from columbia for foreign films in general , but as a way for the hollywood major to distribute and make money from and god created woman without having to submit the film to the pca for approval , which the company as member of the mpaa was obliged to do . when kingsley died in 1962 , at the age of 47 , the company was dissolved . 
kingsley-international pictures was an american film importing and releasing agency, located in new york, active between 1952 and 1962 with its product distributed by union motion picture distributors. the company specialized in importing foreign art house film, mainly french but also some independent british titles, such as carrington v.c. (1955), lucky jim (1957), the league of gentlemen (1960), and only two can play (1962). the company was started and run by edward kingsley (1914-1962), a pioneer in " art house " film distribution in the us. kingsley began as a publicist for paramount pictures in 1933. in 1949, he began distributing french films in partnership with arthur mayer, another art house distribution pioneer, but after a few years he branched out on his own by starting kingsley-international pictures. the company is mainly famous for two things: in 1957 it introduced brigitte bardot to the american audience via and god created woman, which created a bardot fever in the usa, and it released the first film version of lady chatterley's lover, the 1955 french film l'amant de lady chatterley, which in 1955 was banned by new york state board of regents, not because of any sex scenes, but because it " promoted adultery ". the film was eventually released in 1959 after the us supreme court ruled the banning unconstitutional. that court ruling is seen as a landmark decision forming modern us views on censorship. in 1956, the company became the art house subsidiary of columbia pictures, not because of a sudden interest from columbia for foreign films in general, but as a way for the hollywood major to distribute and make money from and god created woman without having to submit the film to the pca for approval, which the company as member of the mpaa was obliged to do. when kingsley died in 1962, at the age of 47, the company was dissolved.
kingsley-international pictures was an american film importing and releasing agency, located in new york, active between 1952 and 1962 with its product distributed by union motion picture distributors. the company specialized in importing foreign art house film, mainly french but also some independent british titles, such as carrington v.c. (1955), lucky jim (1957), the league of gentlemen (1960), and only two can play (1962). the company was started and run by edward kingsley (1914-1962), a pioneer in " art house " film distribution in the us. kingsley began as a publicist for paramount pictures in 1933. in 1949, he began distributing french films in partnership with arthur mayer, another art house distribution pioneer, but after a few years he branched out on his own by starting kingsley-international pictures. the company is mainly famous for two things: in 1957 it introduced brigitte bardot to the american audience via and god created woman, which created a bardot fever in the usa, and it released the first film version of lady chatterley's lover, the 1955 french film l'amant de lady chatterley, which in 1955 was banned by new york state board of regents, not because of any sex scenes, but because it " promoted adultery ". the film was eventually released in 1959 after the us supreme court ruled the banning unconstitutional. that court ruling is seen as a landmark decision forming modern us views on censorship. in 1956, the company became the art house subsidiary of columbia pictures, not because of a sudden interest from columbia for foreign films in general, but as a way for the hollywood major to distribute and make money from and god created woman without having to submit the film to the pca for approval, which the company as member of the mpaa was obliged to do. when kingsley died in 1962, at the age of 47, the company was dissolved.