Excelsior Pictures Corp. v. Regents of University of State of N.Y.

• Decision Date: 03 July 1957
• Parties: , 144 N.E.2d 31 In the Matter of EXCELSIOR PICTURES CORP., Respondent, v. REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 42

165 N.Y.S.2d 42

3 N.Y.2d 237, 144 N.E.2d 31

In the Matter of EXCELSIOR PICTURES CORP., Respondent, v. REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Appellants.

Court of Appeals of New York.

July 3, 1957.

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, for appellants.

Charles J. Tobin, Jr., Albany, Porter R. Chandler and John B. Coleman, Jr., New York City, for New York State Catholic Welfare Committee, amicus curiae, in support of appellants' position.

Sol A. Rosenblatt, Julian B. Rosenthal and Charles Roden, New York City, for respondent.

DESMOND, Judge.

Under review in this case is the denial to petitioners, by the Regents, of a license to exhibit in New York State a motion picture called 'Garden of Eden'. The film, which this court has viewed, is a fictionalized depiction of the activities of the members of a nudist group in a secluded private camp in Florida. There is nothing sexy or suggestive about it. It has been shown in 36 States and in many foreign countries. In it the nudists are shown as wholesome, happy people in family groups practising their 'sincere if misguided theory that clothing, when climate does not require it, is deleterious to mental health by promoting an attitude of shame with regard to natural attributes and functions of the body' (American Law Institute, Model Penal Code, Tentative Draft No. 6, p. 35).

The pictured episodes are 'honestly relevant to the adequate expression of innocent ideas' (United States v. Kennerley, D.C., 209 F. 119, 120-121) just as are figures of nude men and women in the decor of public buildings including New York court houses, and in the pages of National Geographic Magazine and in ultra-respectable travel pictures. Nevertheless, the Motion Picture Division of the New York State Education Department rejected the film (and respondents Board of Regents confirmed the rejection) on the ground that it is 'indecent'. These censors, however, did not declare it to be obscene as, indeed, they could not. We will not in this opinion quibble or quarrel as to concepts of decorum or delicacy or manners, since 'the court is not a censor of plays and does not attempt to regulate manners' (People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. 799). We need not reassert our deeply felt conviction that censorship for real, true obscenity is valid and essential in our society (Legal Problems on Censoring, 40 Marq.L.Rev. 38). But we do say and we will show in this opinion that this picture cannot lawfully be banned since it is not obscene in the sense in which the law has used that term for centuries. Nothing sexually impure or filthy is shown or suggested in 'Garden of Eden' and so there is no legal basis for censorship (see People v. Muller, 96 N.Y. 408, 411; United States v. One Book Called 'Ulysses', D.C. 5 F.Supp. 182, 184; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843; American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585, appeal dismissed 348 U. S. 979, 75 S.Ct. 572, 99 L.Ed. 763; Roth v. United States and Alberts v. State of California, 77 S.Ct. 1304; and generally, Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295). Since the film is certainly not 'obscene' in the eyes of the law, it cannot, under United States Supreme Court decisions hereinafter listed and binding on us, constitutionally be subjected to prior restraint. To repeat, we are not called upon to pass judgment on nudism or nudists. We are simply obeying the supreme law which binds us as well as everyone else. So confining ourselves and leaving our individual predilections for debate at some more appropriate time, we analyze the applicable law.

Appellants, the Board of Regents of the University of the State of New York, are the policy-making officers of the State Education Department (Education Law, Consol.Laws, c. 16, §§ 206, 207). Under sections 122 and 124 of the Education Law the Regents control the licensing and exhibitions of motion pictures in this State and are required to issue such a license unless the 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' (Education Law, § 122; and see § 122-a thereof for further or sub-definitions of 'immoral' and 'tend to corrupt morals'). By a series of decisions handed down during the last five years (Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films v. Department of Educ. (Commercial Pictures Corp. v. Regents), 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Holmby Prods. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770), the United States Supreme Court has stricken down as unconstitutional nearly all the grounds for license refusal listed in sections 122 and 122-a of the New York Education Law, supra. Those cited decisions of the United States Supreme Court need not be separately analyzed here. Their cumulative result is that a motion picture may not be denied license by State censors because it is 'immoral' or because it is 'sacrilegious' or 'because its exhibition would tend to corrupt morals or incite to crime'. As to denial because of obscenity, the Burstyn majority opinion (343 U.S. 495, 505, 72 S.Ct. 777, 782, supra) said that the court found it unnecessary 'to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films.' Recognizing in that language the customary conservatism of high court opinions, we treat it as a holding that obscenity is under the First and Fourteenth Amendments the only (other possible exceptions are not pertinent here) lawful ground for denying a license. That such is the meaning of the Burstyn excerpt, supra, is more than a guess. It is solidly based on the history of censorship Recent and remote (Brown v. Kingsley Books, 1 N.Y.2d 177, 189, 190, 151 N.Y.S.2d 639, 648-649; St. John-Stevas, Obscenity and the Law, Legal Problems Involved in Censoring, 40 Marq.L.Rev. 38; Censoring the Movies, 29 Notre Dame Law. 27).

Another Supreme Court expression as to obscenity, Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (Feb., 1957), narrowed even more the permissible range of governmental action. Held invalid in that case was a Michigan statute (and, presumably, similar statutes in 11 other States not including New York) which made it criminal to distribute to the general public a book containing obscene language 'tending to the corruption of the morals of youth'. The Butler decision (and the series of decisions re obscenity handed down by the court on June 24, 1957) means that in the United States as in England (Regina v. Martin Secker & Warburg, Ld., (1954) 1 Weekly L.R. 1138) the question of obscenity may no longer be decided by the old Hicklin test (Regina v. Hicklin, L. R. 3 Q.B. 360, 371) of 'whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.' The law now, since Butler v. State of Michigan, supra, is that the young may be kept away from certain movies by appropriate State action (cf. New York Penal Law, Consol.Laws, c. 40, § 484) but, unless the picture be really obscene in the traditional, historic sense of that term, license to exhibit it to adults may not be withheld.

That obscenity is an exception (and for our purposes the only exception) to the First Amendment's free speech guarantee was flatly and finally announced by the Supreme Court on June 24, 1957 in Roth v. United States (Alberts v. State of California), 77 S.Ct. 1304, 1309 supra. In the Roth-Alberts opinion Justice Brennan wrote that 'obscenity is not within the area of constitutionally potected speech or press.'

Since the Constitution forbids any prior restraint of a motion picture which is not obscene and since this film has not been found to be obscene or rejected because of obscenity and since it is not obscene by any standard we ever heard of, we could end this opinion right here. Nudity in itself and without lewdness or dirtiness is not obscenity in law or in common sense. 'It is a false delicacy and mere prudery which would condemn and banish from sight all such objects as obscene, simply on account of their nudity. If the test of obscenity or indecency in a picture or statue is its capability of suggesting impure thoughts, then indeed all such representations might be considered as indecent or obscene. The presence of a woman of the purest character and of the most modest behavior and bearing may suggest to a prurient imagination images of lust, and excite impure desires, and so may a picture or statue not in fact indecent or obscene' (Judge Andrews writing in 1884 for a unanimous Court of Appeals in People v. Muller, 96 N.Y. 408, 411, supra). For more than a century the New York courts have held that exposure of the body to the view of others is not criminal if there be no lewd intent (Miller v. People, 1849, 5 Barb. 203; cf. People ex rel. Lee v. Bixby, 4 Hun 636, opinion in 67 Barb. 221). Even the strictest moralists tell us that 'an obscene nude is a nude that allures' (Vermeesch, Theologiae Moralis, 1936, p. 94).

The State, nevertheless, says that the picture 'Garden of Eden' is 'indecent', that indecent films are censorable under the statute (Education Law, § 122, supra) and that the courts as well as the Regents must obey that law. We will now analyze those positions.

It is settled that 'indecent', standing alone and read literally, is much too broad and vague a term to make a valid censorship standard. 'Indecent' may include anything from vulgarity or impropriety to real obscenity (...