Trans-Lux Distributing Corp. v. Board of Regents of University of New York

• Decision Date: 26 March 1964
• Docket Number: TRANS-LUX
• Citation: 248 N.Y.S.2d 857,198 N.E.2d 242,14 N.Y.2d 88
• Parties: , 198 N.E.2d 242 In the Matter ofDISTRIBUTING CORP., Respondent, v. BOARD OF REGENTS OF the UNIVERSITY OF the State of NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 857

248 N.Y.S.2d 857

14 N.Y.2d 88, 198 N.E.2d 242

In the Matter of TRANS-LUX DISTRIBUTING CORP., Respondent, v. BOARD OF REGENTS OF the UNIVERSITY OF the State of NEW YORK,

Appellant.

Court of Appeals of New York.

March 26, 1964.

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

Harry I. Rand, Warren F. Schwartz and Leonard H. Dickstein, New York City, for respondent.

BURKE, Judge.

This appeal puts in issue once again the constitutionality of an application of this State's motion picture licensing statute (Education Law, Consol.Laws, c. 16, § 122). The Appellate Division has annulled a determination of the Board of Regents which directed the elimination of two scenes from the film 'A Stranger Knocks' as a condition for granting a license for the exhibition of the film. The grounds for the board's action rested on the alleged obscenity of two sequences in the picture. The first scene presents a man and a woman on a beach embracing and caressing one another, and ends in a view of the head and shoulders of the woman with facial expressions indicative of orgasmic reaction. The second scene presents the woman astride the man on a bed. Their bodily movements are unmistakably those of the sexual act and the woman's face again registers emotions concededly indicative of orgasm. This scene is the dramatic climax of the picture because of the coincidence of the woman's passion with her sudden realization, through the exposure of a tell-tale scar, that the man is her deceased husband's murderer. As respondent's affidavit puts it: 'The climax is a groan of pleasure and pain, a dramatic and eloquent expression of the persistent ambivalence in the relationship'.

This case presents the question of film obscenity in a form quite different from the two decisions of this court that were reversed by the Supreme Court. In both Commercial Pictures Corp. v. Regents, etc., 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, advocacy of adultery, and Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, sacrilege, the issue was so- called thematic obscenity, that is, advocacy of a theme that was forbidden. Here, however, the ground taken by the State is obscenity in filmed behavior, not in anything advocated as an idea or program. We are, therefore, required to examine the applicability of the First Amendment to this film in light of the classic distinction between advocating something presently against the law and actually doing it.

The first thing that ought to be restated is the rather obvious fact that the law does not cope with obscenity in the abstract. It is met only as an alleged characteristic of something else, something concrete, some speech, action or thing. Accordingly, it must not be forgotten that offensiveness and obscenity enjoy no preferred position in the law merely because of their being offensive. That would be nonsense. It is the thing alleged to be obscene that the Constitution is concerned with and that only when the thing is speech, broadly conceived as communication. For example, the sale or display of some object condemned as obscene might present a question of statutory construction, rarely a First Amendment problem. Similarly, an offensive sight is on its face no more legally immune under the First Amendment than, for example, an offensive odor. This need not even approach the obscene. Zoning regulations controlling the appearance of buildings and the like are routinely enforced (e. g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272).

While typically applicable to 'speech' and 'press' in the forms known to the framers, the guarantee of the First Amendment has been read to include anything that is asserted to be someone's way of saying something. The most familiar instances of this application are physical conduct and motion pictures (Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, supra). Cases involving conduct as a form of expression have been frequent in labor law and provide a useful illustration of the transition from a somewhat doctrinaire application of the First Amendment (see e. g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, supra) to to a realization that, while conduct may be speech, it still remains conduct and does not cease to present its unique problems of social control. It is now the law that even peaceful picketing may be forbidden where it violates State labor laws that are not themselves designed as restrictions on freedom of speech (Local Union No. 10, etc., Plumbers Union v. Graham, 345 U.S. 192, 73 S.Ct. 585, 97 L.Ed. 946). Conduct that is proscribed for valid public purposes is not immune merely because engaged in with a view to expression (Giboney v. Empire Ice & Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834). For example, in People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, supra, app. dsmd. for want of a substantial Federal question 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107, this court upheld an 'Aesthetic' ordinance prohibiting the display of soiled laundry on a clothesline in the defendants' front yard, despite the fact that the display was an expression of social protest.

Films, by their nature, may lie on either side of the division between speech and conduct. The opinions of the Supreme Court reversing this court in the cases of advocacy of adultery and thematic sacrilege make that plain. But it also follows that if 'picketing may include conduct other than speech, conduct which can be made the subject of restrictive legislation' (Giboney v. Empire Inc & Storage Co. supra, 336 U.S. p. 501, 69 S.Ct. p. 690, 93 L.Ed. 834) then so may films. In this regard, it will be noted that the Supreme Court has not yet expressed its opinion in a case involving allegedly obscene behavior on the screen. In such a case, the First Amendment must be applied to films according to their special nature, just as it has been applied to conduct. This much has, of course, been explicity recognized in the leading case on films and the First Amendment: 'Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems.' (Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 77, 781, 96 L.Ed. 1098, supra.)

In Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 2 L.Ed.2d 1512 the opinion of the court repeatedly distinguishes between the right to communicate any idea, however deviant from orthodoxy, and 'the manner of its portrayal' (360 U.S. p. 688, 79 S.Ct. p. 1365, 3 L.Ed.2d 1512). The 'freedom to advocate ideas' was protected, not any supposed right to behave lewdly in a public place. Even more to the point is the concurring opinion of Mr. Justice CLARK who wrote: 'I see no grounds for confusion, however, were a statute to ban 'pornographic' films, or those that 'portray acts of sexual immorality, perversion or lewdness.' If New York's statute had been so construed by its highest court court I believe it would have met the requirements of due process. Instead, it placed more emphasis on what the film teaches than on what it depicts. There is where the confusion enters' (360 U.S. p. 702, 79 S.Ct. p. 1372, 3 L.Ed.2d 1512; emphasis in original).

It is my view that a filmed presentation of sexual intercourse, whether real or simulated, is just as subject to State prohibition as similar conduct if engaged in on the street. I believe the nature of films is sufficiently different from books to justify the conclusion that the critical difference between advocacy and actual performance of the forbidden act is reached when simulated sexual intercourse is portrayed on the screen. I take it to be conceded that New York may constitutionally prohibit sexual intercourse in public. As Mr. Justice DOUGLAS acknowledged, dissenting in Roth v. United States, 354 U.S. 476, 512, 77 S.Ct. 1304, 1323, 1 L.Ed.2d 1498, in contrasting books with conduct: 'I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct' (emphasis in text).

This observation is equally pertinent, of course, whether the sexual exhibitionism is done spontaneously in the street or in theatres for money (e. g., Penal Law, Consol.Laws, c. 40, §§ 43, 1140, 1140-a, 1140-b.) There have been many cases dealing with what sort of behavior was covered by statutes against sexual exhibitionism and the like, but they were solely concerned with statutory interpretation, never, obviously, the First Amendment. (Miller v. People, 5 Barb. 203; People v. Burke, 243 App.Div. 83, 276 N.Y.S. 402, affd. 267 N.Y. 571, 196 N.E. 585; People v. Mitchell, 296 N.Y. 672, 70 N.E.2d 168; People v. Dash, 282 N.Y. 632, 25 N.E.2d 979.)

This comparison between the acknowledged competence of the State to forbid public or semipublic sex displays and its power to exert similar control over similar conduct depicted on the screen is not intended to imply any broad theory of legal equivalence between real conduct and a filmed imitation. Indeed, the meaningful comparison exists only in a narrow range of cases. In most instances, the real conduct is illegal because of what is accomplished by the person, as in murder, forgery, or adultery. In such cases, the filmed dramatization obviously does not share the evil aimed at in the law applicable to the real thing. Where, however, the real conduct is illegal, not because of what is accomplished by those involved, but simply because what is done is shocking, offensive...