Cambist Films, Inc. v. Board of Regents of University of State of N.Y.

• Decision Date: 12 May 1965
• Citation: 260 N.Y.S.2d 804,46 Misc.2d 513
• Parties: Application of CAMBIST FILMS, INC., Petitioner, for an Order pursuant to Article 78 of the Civil Practice Law and Rules, v. The BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Respondent.
• Court: New York Supreme Court

Page 804

260 N.Y.S.2d 804

46 Misc.2d 513

Application of CAMBIST FILMS, INC., Petitioner, for an Order pursuant to Article 78 of the Civil Practice Law and Rules, v. The BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Respondent.

Supreme Court, Special Term, Albany County.

May 12, 1965.

Alpert & Rosenberg, New York City (Donald B. Rosenberg, New York City, of counsel), for petitioner.

Charles A. Brind, Jr., Albany, for respondent.

SYDNEY F. FOSTER, Justice.

In this proceeding, pursuant to Article 78 of the CPLR, petitioner, the distributor of a motion picture entitled 'The Unsatisfied', seeks a judgment directing the respondent Board of Regents to issue a license for its film. The Board of Regents, by way of counterclaim, seeks a declaration: (1) that the film is obscene within the meaning of Section 122 of the Education Law and not entitled to be licensed; and (2) that Part II of Article 3 of the Education Law (§§ 120-132) and Section 221 (8 NYCRR 12.9) of the Rules of the Board of Regents and adopted March 26, 1965 are valid and constitutional. Upon the argument of this motion, counsel for the Board of Regents asserted that this proceeding should be transferred to the Appellate Division (CPLR 7804, subd. [g]), but as will be noted in the opinion, the nature of the proceeding and current case law make it one which must be passed upon by this court.

Pursuant to statute (Education Law, § 122) and the Rules of the Board of Regents relating to its Motion Picture Division (8 NYCRR, Part 12, §§ 12.1-12.10), petitioner, on or about November 30, 1964, applied for a license to exhibit the above-entitled motion picture. On December 9, 1964, the Motion Picture Division, after a review of the film, directed that certain eliminations be made in scenes which were found to be obscene. In pursuance of a request for re-examination (8 NYCRR 12.4), the Director of the Division, on December 16, 1964, sustained the original determination with one exception. Thereafter the petitioner, on February 23, 1965, appealed to the Board of Regents (Education Law, § 124; 8 NYCRR 12.9) ¹, and a committee thereof, after viewing the film, unanimously concluded on March 26, 1965 that the decision of the Director of the Motion Picture Division should be sustained. On the same day the Board of Regents voted to confirm the action of the committee and directed 'that appropriate action be instituted forthwith for judicial determination as to the exhibition of such motion picture'.

It appears that this direction was in accordance with new Rule 221 (8 NYCRR 12.9) which was adopted by the Regents on March 26, 1965 (filed with the Secretary of State on March 20, 1965). The new rule provides:

'Procedure on review.

'(a) Within five days after the submission of a motion picture to the division, the director of the division shall render a determination thereon. In the event that an application for a license or permit is not granted by the director of the division or by an officer authorized to issue the same, such action of the director or officer shall be reviewed pursuant to Section 124 of the Education Law.

'(b) Such review shall be by the Commissioner of Education or by an deputy, associate or assistant commissioner designated by him, who shall hear and determine the matter within seven days after the determination of the director or other officer not to grant such license or permit.

'(c) In the event that an application for a license or permit is denied by the commissioner or other designated officer upon review, the department shall forthwith institute appropriate action for judicial determination as to the exhibition of such motion picture.'

No action, however, was taken by the Board of Regents until petitioner obtained an Order to Show Cause on April 7, 1965 instituting the present proceeding.

What precipitated the adoption of the new rule was the determination of the Supreme Court of the United States on March 15, 1965 in Trans-Lux Distributing Corp. v. Board of Regents, 380 U.S. 259, 85 S.Ct. 952, 13 L.Ed.2d 959, reversing the New York Court of Appeals (14 N.Y.2d 88, 248 N.Y.S.2d 857, 198 N.E.2d 242 ²) in a Per Curiam decision merely citing the case of Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (decided March 1, 1965).

I think it is a fair interpretation to say that the Supreme Court held in Freedman v. State of Maryland (supra) that the Maryland motion picture censorship statutory scheme failed to provide adequate safeguards against undue inhibition of protected expression; and therefore this failure rendered the Maryland requirement of prior submission of films to a reviewing board an invalid previous restraint. As Mr. Justice Douglas pointed out in his concurring opinion in the Freedman case (380 U.S., supra, at 61n, 85 S.Ct. at 740), the Court held 'that a system of movie censorship must contain at least three procedural safeguards if it is not to run afoul of the First Amendment: (1) the censor must have the burden of instituting judicial proceedings; (2) any restraint prior to judicial review can be imposed only briefly in order to preserve the status quo; and (3) a prompt judicial determination of obscenity must be assured'. The Supreme Court carefully did not strike down submission of motion pictures in advance of exhibition as necessarily unconstitutional (see also, Gate Film Club v. Pesce, D.C., 236 F.Supp. 828, affd. 2 Cir., 339 F.2d 888, cert. den. 380 U.S. 944, 85 S.Ct. 1023, 13 L.Ed.2d 963 [March 15, 1965]; Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403), but the Court did emphasize once again that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, [372 U.S. 58] at 70 [83 S.Ct. 631, at 639, 9 L.Ed.2d 584]' (Freedman v. State of Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, supra.)

The reasoning of the Freedman case applies with equal force to the New York procedural scheme (Trans-Lux Distributing Corp. v. Board of Regents, 380 U.S. 259, 85 S.Ct. 952, supra): the absence in our laws of 'adequate safeguards against undue inhibition of protected expression' (Freedman v. State of Maryland, 380 U.S. 51, 60, 85 S.Ct. 734, 740, supra) renders invalid the underlying requirement of prior submission to censorship. (See also, Matter of Trans-Lux Distributing Corp. v. Board of Regents, 16 N.Y.2d 536, 260 N.Y.S.2d 648, 208 N.E.2d 456 [April 22, 1965] in which the Court of Appeals denied a motion by the Board of Regents to stay the showing of the picture, 'A Stranger Knocks', which had already opened for exhibition in New York City following the decision of the Supreme Court. Although the Court of Appeals had held certain scenes in the film to be obscene (14 N.Y.2d 88, 248 N.Y.S.2d 857, 198 N.E.2d 242, supra), it is nowhere argued that the reversal by the Supreme Court was on grounds that than the procedural deficiences of the New York licensing scheme.)

The statutory procedure for review in New York is incorporated in Section 124 of the Education Law, which provides:

'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 agents. The regents, however, by rule may provide that such reviews may be heard and determined by a committee of the regents, the commissioner of education, the deputy commissioner of education or an assistant commissioner of education. A determination upon such review refusing a license shall be reviewable by a proceeding under article seventy-eight of the civil practice act [CPLR] at the instance of the applicant.' (emphasis supplied)

It is this very statute, as well as previous Rule 221 implementing the statute, which the Board of Regents seeks to modify by the new rule....