Lordi v. UA New Jersey Theatres, Inc.

• Decision Date: 09 December 1969
• Citation: 259 A.2d 734,108 N.J.Super. 19
• Parties: Joseph P. LORDI, Prosecutor of Essex County, Plaintiff, v. UA NEW JERSEY THEATRES, INC., a New Jersey Corp. and Grove Press, Inc., a New York Corp., Defendants. Edward J. DOLAN, Prosecutor of Middlesex County, Plaintiff, v. GROVE PRESS, INC., a New York Corp. and NGC Theatre Corporation, a Delaware Corp., Defendants. Leo KAPLOWITZ, Prosecutor of Union County, Plaintiff, v. WOOD PLAZA THEATRE CORPORATION and Grove Press, Inc., a New York Corp., Defendants.
• Court: New Jersey Superior Court

Page 19

108 N.J.Super. 19

259 A.2d 734

Joseph P. LORDI, Prosecutor of Essex County, Plaintiff, v. UA NEW JERSEY THEATRES, INC., a New Jersey Corp. and Grove

Press, Inc., a New York Corp., Defendants.

Edward J. DOLAN, Prosecutor of Middlesex County, Plaintiff, v. GROVE PRESS, INC., a New York Corp. and NGC Theatre

Corporation, a Delaware Corp., Defendants.

Leo KAPLOWITZ, Prosecutor of Union County, Plaintiff, v. WOOD PLAZA THEATRE CORPORATION and Grove Press, Inc., a New

York Corp., Defendants.

Superior Court of New Jersey Chancery Division.

Dec. 9, 1969.

Robert L. Podvey, Asst. Prosecutor, for plaintiff Essex County Prosecutor (Joseph P. Lordi, Prosecutor attorney).

David J. Monyek, Asst. Prosecutor, for plaintiff Middlesex County Prosecutor (Edward J. Dolan, Prosecutor attorney).

Stanley Kaczorowski and Fredric Shauger, Asst. Prosecutors, for plaintiff Union County Prosecutor (Leo Kaplowitz, Prosecutor attorney).

Richard L. Amster, Newark, for all defendants (Nathan Lewin, of the New York and District of Columbia Bars, Washington, D.C., of counsel; Douglas S. Liebhafsky of the New York Bar, New York City, of counsel, for defendant UA New Jersey Theatres, Inc.; Donald S. Engel, of the New York Bar, New York City, of counsel for defendant NGC Theatre Corp.; Bernard Kuttner, Newark, of counsel for defendant Wood Plaza Theatre Corp.).

MINTZ, J.S.C.

In these consolidated proceedings the prosecutors of Essex, Union and Middlesex Counties allege that the motion picture film entitled 'I Am Curious (Yellow)' is obscene within the purview of N.J.S.A. 2A:115--1.1 et seq. They seek to enjoin the showing of this film in the theatres in their respective counties. N.J.S.A. 2A:115--3.5. The prosecutor of Bergen County did not file a formal complaint but indicated that he would abide by the judgment of the court in these proceedings. Defendants deny that the motion picture is obscene within the meaning of N.J.S.A. 2A:115--1.1 and affirmatively assert that it is within the area of constitutionally protected freedom of speech and press under the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article I, par. 6 of the Constitution of the State of New Jersey.

'I Am Curious (Yellow)' was produced in Sweden. The dialogue is in Swedish with English subtitles added. This film was adjudged not obscene in a 2--1 decision in United States v. A Motion Picture Film Entitled 'I Am Curious--Yellow', 404 F.2d 196 (2d Cir. 1968). The court reversed a judgment of forfeiture and confiscation entered in the federal district court upon a jury verdict of obscenity. Judge Hays, writing for the majority, recognized that there may be differences of opinion as to what the picture is 'about,' but said:

* * * It would perhaps not be demonstrably wrong to say that it is concerned with that subject which has become such a commonplace in contemporary fiction and drama, the search for identity. It is the story of a young girl who is trying to work out her relationship to such political, social, and economic problems as the possibility of a classless society, the acceptance of the Franco regime, and the policy and practice of nonviolence. At one point the girl experiments with oriental religious ritual and meditation. The girl's inter-personal relationships are also pictured, including particularly her relation to her father, presented as an idealist who has become disillusioned and has given up meaningful activity. A fairly large portion of the film is devoted to the relations between the girl and her young lover.

A number of different techniques are employed in the production of the film. For example much of the early part is in terms of 'cinema verite ,' showing the girl asking questions on subjects of public importance of the ordinary man or woman in the street. The Problem of the nature of reality is suggested by passages representing the girl's fantasies and by the injection into the story of material concerning the making of the picture itself, such as the director's relations with the leading actress.

There are a number of scenes which show the young girl and her lover nude. Several scenes depict sexual intercourse under varying circumstances, some of them quite unusual. There are scenes of oral-genital activity. (at 198)

The sex scenes leave very little to the imagination. One unusual scene is an episode of copulation in the crook of a very large old tree. Nearby a group of fundamentalist Christians are singing. There was testimony to the effect that this scene symbolizes the rebellion of youth against authority and tradition. There is also a scene of intercourse on the balustrade of the Royal Palace in Stockholm, in rhythm to the Swedish National Anthem while a palace guard endeavors to stand at attention watching the antics of the lovers. Apparently this was intended as a humorous incident and was explained by some witnesses as symbolic of the rebellion of youth against authority. Other sexual scenes are shown with greater candor.

The sexual content is frankly presented and, as Judge Hays observed in 'I Am Curious--Yellow,' supra, 'with greater explicitness than has been seen in any other film produced for general viewing. The question for decision is whether, going farther in this direction than any previous production, the film exceeds the limits established by the courts.' (at 198)

N.J.S.A. 2A:115--1.1 provides that:

(a) The word 'obscene' wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.

(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:

(1) The dominant theme of the material taken as a whole appeals to a prurient interest;

(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and

(3) The material is utterly without redeeming social value.

This statute is a codification of the law finally enunciated in Mr. Justice Brennan's opinion for the United States Supreme Court in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), hereinafter referred to as Memoirs. As observed in that opinion, all three criteria set forth in the cited statute must coalesce to justify a finding of obscenity. Each of the three criteria is to be applied independently. The social value of the film can neither be weighed against nor cancelled by its prurient appeal or patent offensiveness. If the material in question possesses only a modicum of social value, it is not 'utterly without redeeming social value.' Memoirs, at 419, 86 S.Ct. 975.

All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the protection of the First Amendment unless excludable because they encroach upon the limited area of more important interests. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. However, obscenity is not within the area of constitutionally protected speech or press. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

Obscenity is excluded from the constitutional protection only because it is utterly without redeeming social value. The portrayal of sex in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Roth v. United States, supra, 354 U.S. at 487, 77 S.Ct. 1304. Material dealing with sex in a manner that advocates ideas, Kingsley International Pictures Corp. v. Regents of the University of the State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959), or that has literary, scientific or artistic value, or any other form of social importance may not be termed obscene and denied constitutional protection. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

While the State has an interest in and may prevent the dissemination of material deemed harmful to children, that interest does not justify a total suppression of such material, for to do so would reduce the adult population to seeing and reading only what is fit for children. Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957); Jacobellis v. Ohio, Supra.

Judge Hays stated in 'I Am Curious--Yellow,' supra, that the nudity and sexual activity depicted is part of an artistic whole and is united with and related to the story and the characters which are presented. He held that although sexual conduct may be one of its principal themes:

'* * * it cannot be said that 'the dominant theme of the material taken as a whole appeals to a prurient interest in sex.' Whatever the dominant theme may be said to be * * * it is certainly not sex. Moreover, not only is the sexual theme subordinate, but it is handled in such a way as to make it at least extremely doubtful that interest in it should be characterized as 'prurient.'

It is even more clear that 'I Am Curious' is not utterly without redeeming social value. * * * (I)t is quite certain that 'I Am Curious' does present ideas and does strive to present these ideas artistically. It falls within the ambit of intellectual effort that the first amendment was designed to protect. (404 F.2d at 199--200)

Judge Friendly, in a separate concurring opinion, stated that Judge Hays' opinion demonstrates the required...