Kingsley Intern. Pictures Corp. v. Regents of University of N.Y.

Decision Date15 May 1958
CourtNew York Court of Appeals Court of Appeals

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Paxton Blair, Albany, of counsel), for appellants.

Ephraim S. London and Stephen A. Wise, New York City, for respondent.

CONWAY, Chief Judge.

This case presents us again with the question of the constitutionality of our motion picture licensing law. Undoubtedly this is often a question of the greatest delicacy. But as we ponder this particular case and what is involved here, we perceive no necessity for apprehension as to the justice or constitutionality of the Board of Regents' determination to deny a license to this film, 'Lady Chatterley's Lover'. This denial was based upon sections 122 and 122-a of the Education Law, Consol.Laws, c. 16 which 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.' It is this portion of the statute only which concerns us here. The vileness of the matter it seeks to reject is clear. It embraces not only films which are visually suggestive and obscene, nor only those which are sexually suggestive and immoral in theme, but those which combine the two. The statutory rejection is aimed at those films which, not being satisfied with portraying scenes of rank obscenity, go further and recommend sexually immoral acts, thus portrayed in a manner appealing to the prurient interest, as proper conduct for the people of our State.

Having clarified the substance of what this case involves, we proceed to a consideration of the serveral issues raised. And we approach them with confidence in our Legislature, concern for our people, and a firm conviction of our solemn constitutional duty which requires us not only to protect the individual from oppressions of government, but the government and the people from abuses by the individual.

This film deals with the relationships of Lady Chatterley with her husband, Sir Clifford Chatterley, and her lover, Mellors. Sir. Clifford returned to his wife from the wars as a cripple doomed to a life in a wheelchair. His war injury rendered him impotent to father offspring. By the standards of the community in which he lived, he was a man of affluence, owning a mine and extensive lands. His status was comparable to that of a feudal lord, and much like a feudal lord he was gravely concerned over the fact that he neither had, nor would have, an heir. This led him to propose to his wife, Lady Chatterley, that she have sexual relations with another man of her own choosing so that she might bear an heir for Sir Clifford. Lady Chatterley appeared to reject this idea, inquiring of her husband whether he still loved her, and whether it would be wise to do such a thing since the possibility existed that she might fall in love with the man to whom she would give her body. Sir Clifford explained that his desire for her to have a child was the highest possible expression of his love, and he pointed out that another love could not be born of the purely physical relationship which he anticipated she would have with such a man. No more was said, and Lady Chatterley left her husband's bedroom in which they had been talking.

Subsequently, Lady Chatterley's sister suggested that she take a vacation from the arduous task of caring for her crippled husband. The city of Venice was suggested, and Sir Clifford heartily indorsed this idea, thinking that such a trip would provide his wife with the ideal circumstances for choosing a lover and committing adultery with him.

Before going to Venice, Lady Chatterley made the acquaintance of Mellors, Sir Clifford's gamekeeper. Mellors was a married man, but was living apart from his wife. It was not long before Lady Chatterley and Mellors indulged in adultery. Scenes of their passion were portrayed. Their affaire, climaxed by the pregnancy of Lady Chatterley, was unfolded through a series of clandestine bedroom scenes during which the two were shown lying in bed in a state of apparent undress before, and again after, acts of adultery; during which Mellors assisted Lady Chatterley in her preparations for the sexual act by unbuttoning her blouse and unzipping her dress; during which Mellors expressed his passion by caressing her buttocks, after reaching with his hand under her dress, noting that she had obligingly come to him clad only in a dress, without undergarments; during which numerous other words, gestures and motions were employed to provide the atmosphere prefatory and subsequent to acts of adultery; and during which, at Lady Chatterley's instigation, Mellors removed from the wall above the mantle piece in his living room a larged framed picture of his wife and destroyed both frame and picture. The scenes were set, interrupted only by brief canvasses of darkness, upon which the imagination was permitted to complete the picture of illicit sexual love. Out of these intimacies was born a 'love' between Lady Chatterley and her lover Mellors which each regarded as binding them in a true marriage, although not a marriage solemnized by church or state, and although their respective spouses were living.

Events followed quickly on the heels of Lady Chatterley's pregnancy her trip to Venice, Mellors' dismissal by Sir Clifford because of scandalous 'rumors' regarding the two, and her return to the manor. When she returned, Mellors was packing his things in preparation for his departure from the estate. She went first to Mellors to profess her love and to tell him that she would forsake her husband, her wealth and her position to live with him. She then went to her husband to admit the truth of the 'rumor' and to tell him of her decision to live with Mellors. Sir Clifford refused to agree to a divorce and insisted that he be given the child when it should be born. Lady Chatterley rejected that and returned to Mellors. The curtain falls as Lady Chatterley and her lover leave his abode for what apparently was regarded by their neighbors who witnessed it from their porches and doorways as a life of illicit intimacy. We make brief mention also of another scene in which Mellors' wife apparently indulges in an act of intercourse with another man beside a body of water.

The dominant theme of the film may be summed up in a few words exaltation of illicit sexual love in derogation of the restraints of marriage. Their relationship was presented as a true marriage. Their complete surrender to the baser instincts was presented as a triumph over the social mores. Their decision to live in adultery was quietly heralded as a conquest of love over the 'form' of marriage. And this entire theme was woven about scenes which unmistakably suggested and showed acts of sexual immorality.

That such is the theme of this motion picture is not open to doubt, particularly in light of respondent's own statement in its brief that the principal theme is that a true marriage exists where there is love, 'not when there is merely a formal relationship sanctioned by law.' And indeed, in its petition to the Board of Regents, respondent stated that '(h)er (Lady Chatterley's) relationship with Mellors, although not sanctioned by law, is portrayed as a true marriage.' Thus, this film unquestionably presents adultery as a proper pattern of behavior. And it does so employing several scenes of obscenity.

However, respondent suggests that the film is nevertheless not immoral according to the mores and moral standards of the community. We think it is beyond cavil that the moral standards and mores of the people of the State of New York (indeed, of our nation) brand adultery as immoral and illegal. The relationship between Lady Chatterley and Mellors was precisely that adultery. To urge that such conduct is not immoral constitutes a confession of values so condemnable as not to warrant further comment. The determination by the Board of Regents, a constitutional body, that this picture is utterly immoral in its theme, and that it presented adultery as proper behavior, was entirely correct as measured by the standards of our community. But beyond that, the Legislature specifically designated such a motion picture as immoral, and the determination by the Regents was mandated by statute. Indeed, adultery has been decreed to be immoral since Moses received the Commandments on Mount Sinai. Any suggestion that this film merely demonstrates the necessity for love in marriage insults a concept of the profoundest nobility, and fails to recognize the clear and familiar distinction between licit and illicit love. To urge that this motion picture merely points up the necessity for love in marriage ignores the facts and the story the whole context.

It is next urged that this statute is unconstitutionally vague and indefinite. The United States Supreme Court has established the necessary principle that motion picture licensing may be conducted only pursuant to a statute which is so clear in its terms that the licensor is furnished with a definite standard which he may apply (Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 504-505, 72 S.Ct. 777, 96 L.Ed. 1098, see, also, Superior Films v. Department of Educ. of Ohio and Commercial Pictures Corp. v. Board of Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329). The purpose underlying this principle is to divest the licensor of unlimited restraining power based upon his own judgment of what shall or shall not be licensed to avoid what may be denominated as discretionary censorship. The standard under consideration here is as explicit and restrictive in its terms as words permit. Our Legislature through section 122-a requires the denial of a...

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