Kingsley International Pictures Corporation v. Regents of the University of the State of New York, No. 394

• Court: United States Supreme Court
• Writing for the Court: STEWART
• Citation: 3 L.Ed.2d 1512,360 U.S. 684,79 S.Ct. 1362
• Parties: KINGSLEY INTERNATIONAL PICTURES CORPORATION, Appellant, v. REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK
• Decision Date: 29 June 1959
• Docket Number: No. 394

360 U.S. 684 79 S.Ct. 1362 3 L.Ed.2d 1512 KINGSLEY INTERNATIONAL PICTURES CORPORATION, Appellant,

v.

REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK.

No. 394. Argued April 23, 1959. Decided June 29, 1959.

Mr. Ephraim London, New York City, for appellant.

Mr. Charles A. Brind, Jr., Albany, for appellee.

Mr. Justice STEWART delivered the opinion of the Court.

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. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.

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

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(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 * * * .¹ The law provides that a license shall issue 'unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacriegi ous, or is of such a character that its exhibition would tend to corrupt morals or incite to crime * * *.'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.'³

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.'

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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

The Court of Appeals unanimously and explicitly rejected any notion that the film is obscene.⁷ See Roth

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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 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, 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

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certain circumstances.'⁹ 4 N.Y.2d 369, 178 N.Y.S.2d 55, 151 N.E.2d 208 (concurring opinion).

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. Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of R.R. Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. That construction, we emphasize, gives to the term 'sexual immorality' a concept entirely different from the concept embraced in words like 'obscenity' or 'pornography.'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 religios p recepts, and the legal code of its citizenry. This

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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.' Whitney v. People of State of California, 274 U.S. 357, at page 376, 47 S.Ct. 641, at page 648, 71 L.Ed. 1095 (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 * * *.' Id., 274 U.S. at page 378, 47 S.Ct. at page 649. ¹¹

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

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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.

Reversed.

Mr. Justice BLACK, concurring.

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 movis i § for this Court to view and appraise each movie on a case-by-case basis. Under these circumstances, every member of the

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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.

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...