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

Decision Date24 July 1957
Citation165 N.Y.S.2d 681,4 A.D.2d 348
PartiesApplication of KINGSLEY INTERNATIONAL PICTURES CORPORATION, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Act, v. The REGENTS OF The UNIVERSITY of The State OF NEW YORK, Respondent.
CourtNew York Supreme Court — Appellate Division

London, Simpson & London, New York City (Ephraim S. London and Sherman P. Kimball, New York City, of counsel), for petitioner.

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

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.

Charles Ballon, Nanette Dembitz, and Jacob M. Usadi, New York City, Attorneys for New York Civil Liberties Union, amicus curiae.

Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.,

COON, Justice.

The motion picture under review is 'Lady Chatterley's Lover', an adaptation of the novel of the same name by D. H. Lawrence. The motion picture division of the State Education Department denied a license unless three sequences which were regarded as 'immoral' were deleted. In appeal by petitioner the Regents not only upheld the original licensing authorities, but determined that the entire picture was immoral under section 122 of the Education Law as modified by section 122-a (L.1954, ch. 620), largely upon the ground that the picture presents 'adultery as a desirable, acceptable and proper pattern of behavior.' This criterion comes from the language of section 122-a, obviously adopted in an attempt to add definiteness and clarity to the words used in section 122, and with the intended purpose of overcoming the United States Supreme Court decisions which held, in effect, that the terms 'immoral' and 'tend to corrupt morals,' as used in section 122, were too vague to meet constitutional requirements. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Superior Films, Inc., v. Department of Education of State of Ohio (Commercial Pictures Corp. v. Regents of University of State of New York), 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329.

The Legislature, in enacting section 122-a, has demonstrated a legislative intent to continue prior restraint in New York State, and has attempted to supply the necessary definiteness to the terms 'immoral' and 'of such a character that its exhibition would tend to corrupt morals.'

Section 122-a illustrates the difficulty of defining such words. Subdivision 1 thereof provides: 'For the purpose of section one hundred twenty-two of this chapter, 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.'

Ordinarily such a word as 'immoral', which might have one meaning to one person or group of persons and another meaning to another person or group of persons, cannot be defined with such exactness or precision as would leave no field of individual opinion and discretion open to the viewer. Adding more adjectives or more words which are likewise open to different opinion helps little. In fact, counsel for respondents stated in his brief before the Supreme Court in the Commercial Pictures case: 'The New York statute, we think, is as clear as it can possibly be made * * *.' (Referring to section 122 before the amendment.)

For instance, under section 122-a, the censoring body must determine what 'the dominant purpose or effect' of a picture is, a matter upon which different people or groups of people might disagree. The same is true as to what constitutes 'acts of sexual immorality, perversion, or lewdness.'

As we interpret the decisions of the Supreme Court of the United States in the Burstyn case, the Commercial Pictures case, and Holmby Productions v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770, a statute which leaves any field open to...

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