Under provisions of the New York Education Law which were
construed by the Court of Appeals of New York as requiring the
denial of a license to show a motion picture when "its subject
matter is adultery presented as being right and desirable for
certain people under certain circumstances," that Court sustained
denial of a license to show a motion picture which it found
"alluringly portrays adultery as proper behavior."
as thus construed and applied, the New York
statute violates the freedom to advocate ideas which is guaranteed
by the First Amendment and protected by the Fourteenth Amendment
from infringement by the States. Pp. 360 U. S.
, 115 N.E.2d 197, 175 N.Y.S.2d 39, reversed.
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.
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
Page 360 U. S. 685
[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 . . . . [Footnote 1
The law provides that a license shall issue
"unless such film or a part thereof is obscene, indecent,
immoral, inhuman, sacrilegious, or is of such a character that its
exhibition would tend to corrupt morals or incite to crime. . . .
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. [Footnote
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," the 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. [Footnote 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. "
Page 360 U. S. 686
Kingsley sought judicial review of the Regents' determination.
] 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
, 175 N.Y.S.2d 39, 151 N.E.2d 197. [Footnote 6
The Court of Appeals unanimously and explicitly rejected any
notion that the film is obscene. [Footnote 7
] See Roth
Page 360 U. S. 687
v. United States, 354 U. S. 476
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, acceptable or proper patterns of
behavior.'" [Footnote 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 presented as being
right and desirable for certain people under
Page 360 U. S.
certain circumstances." [Footnote 9] 4 N.Y.2d 369, 178 N.Y.S.2d 55, 151 N.E.2d 208
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
United States v. Burnison, 339 U. S.
; Aero Mayflower Transit Co. v. Board of R.R.
Comm'rs, 332 U. S. 495
That construction, we emphasize, gives to the term "sexual
immorality" a concept entirely different from the concept embraced
in words like "obscenity" or "pornography." [Footnote 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
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 religious precepts, and the
legal code of its citizenry. This
Page 360 U. S. 689
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. California, 274 U.
, at 274 U. S. 376
"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. . . ."
at 274 U. S. 378
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
Page 360 U. S. 690
are precisely coextensive with those allowable for newspapers,
] or individual
speech. [Footnote 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.
McKinney's N.Y.Laws, c. 16, 1953, Education Law, § 129.
McKinney's N.Y.Laws, 1953, Education Law, § 122.
McKinney's N.Y.Laws, 1953 (Cum.Supp. 1958), Education Law, §
"An applicant for a license or permit, in case his application
be denied by the director of the division or by the officer
authorized to issue the same, shall have the right of review by the
McKinney's N.Y.Laws, 1953, Education Law, § 124.
The proceeding was brought under art. 78 of the New York Civil
Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, 1944, 1949
Supp., § 1283 et seq. See also
McKinney's N.Y.Laws, 1953,
Education Law, § 124.
Although four of the seven judges of the Court of Appeals voted
to reverse the order of the Appellate Division, only three of them
were of the clear opinion that denial of a license was permissible
under the Constitution. Chief Judge Conway wrote an opinion in
which Judges Froessel and Burke concurred, concluding that denial
of the license was constitutionally permissible. Judge Desmond
wrote a separate concurring opinion in which he stated:
"I confess doubt as to the validity of such a statute, but I do
not know how that doubt can be resolved unless we reverse here and
let the Supreme Court have the final say."
4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d 208. Judge Dye, Judge
Fuld, and Judge Van Voorhis wrote separate dissenting opinions.
The opinion written by Chief Judge Conway stated:
"[I]t is curious indeed to say in one breath, as some do, that
obscene motion pictures may be censored, and then in another breath
that motion pictures which alluringly portray adultery as proper
and desirable may not be censored. As stated above, 'The law is
concerned with effect, not merely with but one means of producing
it.' It must be firmly borne in mind that to give obscenity, as
defined, the stature of the only constitutional limitation is to
extend an invitation to corrupt the public morals by methods of
presentation which craft will insure do not fall squarely within
the definition of that term. Precedent, just as sound principle,
will not support a statement that motion pictures must be 'out and
out' obscene before they may be censored."
4 N.Y.2d 364, 175 N.Y.S.2d 51, 151 N.E.2d 205.
Judge Desmond's concurring opinion stated: "[It is not]
necessarily determinative that this film is not obscene in the
dictionary sense. . . ." 4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d
208. Judge Dye's dissenting opinion stated: "No one contends that
the film in question . . . is obscene within the narrow legal
limits of obscenity as recently defined by the Supreme Court. . .
." 4 N.Y.2d 371, 175 N.Y.S.2d 57, 151 N.E.2d 210. Judge Van
Voorhis' dissenting opinion stated: "[I]t is impossible to write
off this entire drama as mere pornography.' . . ." Judge Van
Voorhis, however, would have remitted the case to the Board of
Regents to consider whether certain "passages" in the film "might
have been eliminated as `obscene' without doing violence to
constitutional liberties." 4 N.Y.2d 375, 175 N.Y.S.2d 60, 151
This is also emphasized in the brief of counsel for the Regents,
"The full definition is not before this Court -- only these
parts of the definition as cited -- and any debate as to whether
other parts of the definition are a proper standard has no bearing
in this case."
In concurring, Judge Desmond agreed that this was the meaning of
the statutory language in question, and that "the theme and content
of this film fairly deserve that characterization. . . ." 4 N.Y.2d
366, 175 N.Y.S.2d 52, 151 N.E.2d 206.
See, by way of contrast, Swearingen v. United States,
161 U. S. 446
United States v. Limehouse, 285 U.
Thomas Jefferson wrote more than a hundred and fifty years
"But we have nothing to fear from the demoralizing reasonings of
some, if others are left free to demonstrate their errors. And
especially when the law stands ready to punish the first criminal
act produced by the false reasoning. These are safer correctives
than the conscience of a judge."
Letter of Thomas Jefferson to Elijah Boardman, July 3, 1801,
Jefferson Papers, Library of Congress, Vol. 115, folio 19761.
Cf. Near v. Minnesota, 283 U.
Cf. Kingsley Books, Inc., v. Brown, 354 U.
; Alberts v. California, 354 U.
Cf. Thomas v. Collins, 323 U.
; Thornhill v. Alabama, 310 U. S.
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 movies is for this Court to
view and appraise each movie on a case-by-case basis. Under these
circumstances, every member of the
Page 360 U. S. 691
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 made, as believing censorship should be
applied only to publications that make sex look ugly, that is, as I
understand it, less alluring.
In my judgment, this Court should not permit itself to get into
the very center of such policy controversies, which have so little
in common with lawsuits.
MR. JUSTICE FRANKFURTER, concurring in the result.
As one whose taste in art and literature hardly qualifies him
for the avant-garde,
I am more than surprised, after
viewing the picture, that the New York authorities should have
banned "Lady Chatterley's Lover." To assume that this motion
picture would have offended Victorian
Page 360 U. S. 692
moral sensibilities is to rely only on the stuffiest of
Victorian conventions. Whatever one's personal preferences may be
about such matters, the refusal to license the exhibition of this
picture, on the basis of the 1954 amendment to the New York State
Education Law, can only mean that that enactment forbids the public
showing of any film that deals with adultery except by way of
sermonizing condemnation or depicts any physical manifestation of
an illicit amorous relation. Since the denial of a license by the
Board of Regents was confirmed by the highest court of the State, I
have no choice but to agree with this Court's judgment in holding
that the State exceeded the bounds of free expression protected by
the "liberty" of the Fourteenth Amendment. But I also believe that
the Court's opinion takes ground that exceeds the appropriate
limits for decision. By way of reinforcing my brother HARLAN's
objections to the scope of the Court's opinion, I add the
Even the author of "Lady Chatterley's Lover" did not altogether
rule out censorship, nor was his passionate zeal on behalf of
society's profound interest in the endeavors of true artists so
doctrinaire as to be unmindful of the facts of life regarding the
sordid exploitation of man's nature and impulses. He knew there was
such a thing as pornography, dirt for dirt's sake, or, to be more
accurate, dirt for money's sake. This is what D. H. Lawrence
"But even I would censor genuine pornography, rigorously. It
would not be very difficult. In the first place, genuine
pornography is almost always underworld, it doesn't come into the
open. In the second, you can recognize it by the insult it offers
invariably, to sex, and to the human spirit."
"Pornography is the attempt to insult sex, to do dirt on it.
This is unpardonable. Take the very lowest instance, the picture
post-card sold underhand,
Page 360 U. S. 693
by the underworld, in most cities. What I have seen of them have
been of an ugliness to make you cry. The insult to the human body,
the insult to a vital human relationship! Ugly and cheap they make
the human nudity, ugly and degraded they make the sexual act,
trivial and cheap and nasty."
(D. H. Lawrence, Pornography and Obscenity, pp. 12-13.)
This traffic has not lessened since Lawrence wrote. Apparently
it is on the increase. In the course of the recent debate in both
Houses of Parliament on the Obscene Publications Bill, now on its
way to passage, designed to free British authors from the hazards
of too rigorous application in our day of Lord Cockburn's ruling,
in 1868, in Regina v. Hicklin,
L.R. 3 Q.B. 360, weighty
experience was adduced regarding the extensive dissemination of
pornographic materials. [Footnote
597 Parliamentary Debates, H.C., No. 36
(Tuesday, December 16, 1958), cols. 992 et seq.,
Parliamentary Debates H.L., No. 77 (Tuesday, June 2, 1959), cols.
489 et seq.
Nor is there any reason to believe that, on
this side of the ocean, there has been a diminution in the
pornographic business which years ago sought a flourishing market
in some of the leading secondary schools for boys, who presumably
had more means than boys in the public high schools.
It is not surprising, therefore, that the pertinacious, eloquent
and free-spirited promoters of the liberalizing legislation in
Great Britain did not conceive the needs of a civilized society, in
assuring the utmost freedom to those who make literature and art
possible -- authors, artists, publishers, producers, book sellers
-- easily attainable by sounding abstract and unqualified dogmas
Page 360 U. S. 694
They had a keen awareness that freedom of expression is no more
an absolute than any other freedom, an awareness that is reflected
in the opinions of Mr. Justice Holmes and Mr. Justice Brandeis, to
whom we predominantly owe the present constitutional safeguards on
behalf of freedom of expression. And see Near v.
Minnesota, 283 U. S. 697
283 U. S.
-716, for limitations on constitutionally protected
freedom of speech. [Footnote
In short, there is an evil against which a State may
constitutionally protect itself, whatever we may think about the
questions of policy involved. The real problem is the formulation
of constitutionally allowable safeguards which society may take
against evil without impinging upon the necessary dependence of a
free society upon the fullest scope of free expression. One cannot
read the debates in the House of Commons and the House of Lords and
not realize the difficulty of reconciling these conflicting
interests, in the framing of legislation on the ends of which there
was agreement, even for those who most generously espouse that
freedom of expression without which all freedom gradually
It is not our province to meet these recalcitrant problems of
legislative drafting. Ours is the vital but very limited task of
scrutinizing the work of the draftsmen in order to determine
whether they have kept within the narrow limits of the kind of
censorship which even D. H. Lawrence deemed necessary. The
legislation must not be so vague, the language so loose, as to
leave to those who have to apply it too wide a discretion for
sweeping within its condemnation what is permissible expression
Page 360 U. S. 695
well as what society may permissibly prohibit. Always
remembering that the widest scope of freedom is to be given to the
adventurous and imaginative exercise of the human spirit, we have
struck down legislation phrased in language intrinsically vague,
unless it be responsive to the common understanding of men, even
though not susceptible of explicit definition. The ultimate reason
for invalidating such laws is that they lead to timidity and
inertia, and thereby discourage the boldness of expression
indispensable for a progressive society.
The New York legislation of 1954 was the product of careful
lawyers who sought to meet decisions of this Court which had left
no doubt that a motion picture licensing law is not inherently
outside the scope of the regulatory powers of a State under the
Fourteenth Amendment. The Court does not strike the law down
because of vagueness, as we struck down prior New York legislation.
Nor does it reverse the judgment of the New York Court of Appeals,
as I would, because, in applying the New York law to "Lady
Chatterley's Lover," it applied it to a picture to which it cannot
be applied without invading the area of constitutionally free
expression. The difficulty which the Court finds seems to derive
from some expressions culled here and there from the opinion of the
Chief Judge of the New York Court of Appeals. This leads the Court
to give the phrase "acts of sexual immorality . . . as desirable,
acceptable or proper patterns of behavior" an innocent content,
meaning, in effect, an allowable subject matter for discussion.
But, surely, to attribute that result to the decision of the Court
of Appeals, on the basis of a few detached phrases of Chief Judge
Conway, is to break a faggot into pieces, is to forget that the
meaning of language is to be felt and its phrases not to be treated
disjointedly. "Sexual immorality" is not a new phrase in this
branch of law, and its implications dominate the
Page 360 U. S. 696
context. I hardly conceive it possible that the Court would
strike down as unconstitutional the federal statute against mailing
lewd, obscene and lascivious matter, which has been the law of the
land for nearly a hundred years, see
the Act of March 3,
1865, 13 Stat. 507, and March 3, 1873, 17 Stat. 599, whatever
specific instances may be found not within its allowable
prohibition. In sustaining this legislation, this Court gave the
words "lewd, obscene and lascivious" concreteness by saying that
they concern "sexual immorality." And only very recently, the Court
sustained the constitutionality of the statute. Roth v. United
States, 354 U. S. 476
Unless I misread the opinion of the Court, it strikes down the
New York legislation in order to escape the task of deciding
whether a particular picture is entitled to the protection of
expression under the Fourteenth Amendment. Such an exercise of the
judicial function, however onerous or ungrateful, inheres in the
very nature of the judicial enforcement of the Due Process Clause.
We cannot escape such "instance by instance, case by case"
application of that clause in all the varieties of situations that
come before this Court. It would be comfortable if, by a
comprehensive formula, we could decide when a confession is coerced
so as to vitiate a state conviction. There is no such talismanic
formula. Every Term we have to examine the particular circumstances
of a particular case in order to apply generalities which no one
disputes. It would be equally comfortable if a general formula
could determine the unfairness of a state trial for want of
counsel. But, except in capital cases, we have to thread our way,
Term after Term, through the particular circumstances of a
particular case in relation to a particular defendant in order to
ascertain whether due process was denied in the unique situation
before us. We are constantly called upon to consider the alleged
misconduct of a prosecutor as vitiating the fairness of a
Page 360 U. S. 697
trial or the inflamed state of public opinion in a particular
case as undermining the constitutional right to due process. Again,
in the series of cases coming here from the state courts, in which
due process was invoked to enforce separation of church and state,
decision certainly turned on the particularities of the specific
situations before the Court. It is needless to multiply instances.
It is the nature of the concept of due process, and, I venture to
believe, its high serviceability in our constitutional system, that
the judicial enforcement of the Due Process Clause is the very
antithesis of a Procrustean rule. This was recognized in the first
full-dress discussion of the Due Process Clause of the Fourteenth
Amendment, when the Court defined the nature of the problem as
"gradual process of judicial inclusion and exclusion, as the
cases presented for decision shall require, with the reasons on
which such decision may be founded."
Davidson v. New Orleans, 96 U. S.
, 96 U. S. 104
The task is onerous and exacting, demanding as it does the utmost
discipline in objectivity, the severest control of personal
predilections. But it cannot be escaped, not even by disavowing
that such is the nature of our task.
"In the course of our enquiries, we have been impressed with the
existence of a considerable and lucrative trade in pornography. . .
." Report of the Select Committee on Obscene Publications to the
House of Commons, March 20, 1958, p. IV.
"The objection has also been made that the principle as to
immunity from previous restraint is stated too broadly, if every
such restraint is deemed to be prohibited. That is undoubtedly
true; the protection even as to previous restraint is not
absolutely unlimited. But the limitation has been recognized only
in exceptional cases. . . ."
283 U.S. at 283 U. S.
MR. JUSTICE DOUGLAS with whom MR. JUSTICE BLACK joins,
While I join in the opinion of the Court, I adhere to the views
I expressed in Superior Films Inc. v. Department of
Education, 346 U. S. 587
346 U. S.
-589, that censorship of movies is unconstitutional,
since it is a form of "previous restraint" that is as much at war
with the First Amendment, made applicable to the States through the
Fourteenth, as the censorship struck down in Near v.
Minnesota, 283 U. S. 697
a particular movie violates a valid law, the exhibitor can be
prosecuted in the usual way. I can find in the First Amendment no
room for any censor,
Page 360 U. S. 698
whether he is scanning an editorial, reading a news broadcast,
editing a novel or a play, or previewing a movie.
Reference is made to British law and British practice. But they
have little relevance to our problem, since we live under a written
Constitution. What is entrusted to the keeping of the legislature
in England is protected from legislative interference or regulation
here. As we stated in Bridges v. California, 314 U.
, 314 U. S.
"No purpose in ratifying the Bill of Rights was clearer than
that of securing for the people of the United States much greater
freedom of religion, expression, assembly, and petition than the
people of Great Britain had ever enjoyed."
If we had a provision in our Constitution for "reasonable"
regulation of the press, such as India has included in hers,
] there would be room
for argument that censorship in the interests of morality would be
permissible. Judges sometimes try to read the word "reasonable"
into the First Amendment or make the rights it grants subject to
reasonable regulation (see Beauharnais v. Illinois,
343 U. S. 250
343 U. S. 262
Dennis v. United States, 341 U. S. 494
341 U. S.
-525), or apply to the States a watered-down version
of the First Amendment. See Roth v. United States,
354 U. S. 476
354 U. S.
-506. But its language, in terms that are absolute,
is utterly at war with censorship. Different questions may arise as
to censorship of some news when the Nation is actually at war. But
any possible exceptions are extremely limited. That is why the
tradition represented by Near v. Minnesota, supra,
represents our constitutional ideal.
Page 360 U. S. 699
Happily, government censorship has put down few roots in this
country. The American tradition is represented by Near v.
Minnesota, supra. See
Lockhart and McClure,
Literature, The Law of Obscenity, and the Constitution, 38
Minn.L.Rev. 295, 324-325; Alpert, Judicial Censorship of Obscene
Literature, 52 Harv.L.Rev. 40, 53 et seq.
We have in the
United States no counterpart of the Lord Chamberlain who is censor
over England's stage. As late as 1941, only six States had systems
of censorship for movies. Chafee, Free Speech in the United States
(1941), p. 540. That number has now been reduced to four [Footnote 3/2
] -- Kansas, Maryland, New
York, and Virginia -- plus a few cities. Even in these areas,
censorship of movies shown on television gives way by reason of the
Federal Communications Act. See Allen B. Dumont Laboratories v.
184 F.2d 153. And, from what information is
available, movie censors do not seem to be very active. [Footnote 3/3
] Deletion of the residual part
of censorship that remains would constitute the elimination of an
institution that intrudes on First Amendment rights.
Section 19(2) of the Indian Constitution permits "reasonable
restrictions" on the exercise of the right of freedom of speech and
expression in the interests, inter alia,
of "decency or
morality . . . defamation or incitement to an offence." This
limitation is strictly construed; any restriction amounting to an
"imposition" which will "operate harshly" on speech or the press
will be held invalid. See Seshadri v. District Magistrate,
41 A.I.R. (Sup.Ct.) 747, 749.
Note, 71 Harv.L.Rev. 326, 328, n. 14.
MR. JUSTICE CLARK, concurring in the result.
I can take the words of the majority of the New York Court of
Appeals only in their clear, unsophisticated and common meaning.
They say that §§ 122 and 122-a of New York's Education Law
"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.'"
That court states the issue in the case in this language:
"Moving pictures are our only concern and, what is more to the
point, only those motion pictures which
Page 360 U. S. 700
alluringly present acts of sexual immorality as proper
, 175 N.Y.S.2d 39, 48, 151 N.E.2d 197, 203. Moreover,
it is significant to note that, in its 14-page opinion, that court
says again and again, in fact 15 times, that the picture "Lady
Chatterley's Lover" is proscribed because of its "espousal" of
sexual immorality as "desirable" or as "proper conduct for the
people of our State." *
The minority of my brothers here, however, twist this holding
into one that New York's Act requires "obscenity or incitement, not
just mere abstract expressions of opinion." But I cannot so
obliterate the repeated declarations above-mentioned that were made
not only 15 times by the Court of Appeals, but which were the basis
of the Board of Regents' decision as well. Such a construction
would raise many problems, not the least of which would be our
failure to accept New York's interpretation of the scope of its own
Act. I feel, as does the majority here, bound by their holding.
In this context, the Act comes within the ban of Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495
(1952). We held there that
"expression by means of motion pictures
Page 360 U. S. 701
is included within the free speech and free press guaranty of
the First and Fourteenth Amendments."
at 343 U. S. 502
Referring to Near v. Minnesota, 283 U.
(1931), we said that, while "a major purpose of
the First Amendment guaranty of a free press was to prevent prior
restraints upon publication," such protection was not unlimited,
but did place on the State "a heavy burden to demonstrate that the
limitation challenged" was exceptional. Id.
343 U. S.
-504. The standard applied there was the word
"sacrilegious," and we found it set the censor "adrift upon a
boundless sea amid a myriad of conflicting currents of religious
views. . . ." Id.
at 343 U. S. 504
We struck it down.
Here, the standard is the portrayal of "acts of sexual
immorality . . . as desirable, acceptable or proper patterns of
behavior." Motion picture plays invariably have a hero, a villain,
supporting characters, a location, a plot, a diversion from the
main theme, and usually a moral. As we said in
"They may affect public attitudes and behavior in a variety of
ways, ranging from direct espousal of a political or social
doctrine to the subtle shaping of thought which characterizes all
343 U.S. at 343 U. S. 501
What may be to one viewer the glorification of an idea as being
"desirable, acceptable or proper" may, to the notions of another,
be entirely devoid of such a teaching. The only limits on the
censor's discretion is his understanding of what is included within
the term "desirable, acceptable or proper." This is nothing less
than a roving commission in which individual impressions become the
yardstick of action, and result in regulation in accordance with
the beliefs of the individual censor, rather than regulation by
law. Even here, three of my brothers "cannot regard this film as
depicting anything more than a somewhat unusual, and rather
pathetic, love triangle.'" At least three -- perhaps four -- of
the members of New York's highest court thought otherwise.
Page 360 U. S.
need only say that the obscurity of standard presents such a
choice of difficulties that even the most experienced find
themselves at dagger's point.
It may be, as Chief Judge Conway said, "that our public
morality, possibly more than ever before, needs every protection
government can give." 4 N.Y.2d 363, 175 N.Y.S.2d 50, 151 N.E.2d
204-205. And, as my Brother HARLAN points out, "each time such a
statute is struck down, the State is left in more confusion." This
is true where broad grounds are employed leaving no indication as
to what may be necessary to meet the requirements of due process. 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, 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. For this reason, I would reverse on the authority
* The phrase is not always identical, but varies from the words
of the statute, "acts of sexual immorality . . . as desirable,
acceptable or proper patterns of behavior," to such terms "as
proper conduct for the people of our State"; "exaltation of illicit
sexual love in derogation of the restraints of marriage"; as a
"proper pattern of behavior"; "the espousal of sexually immoral
acts"; "which debase fundamental sexual morality by portraying its
converse to the people as alluring and desirable"; "which
alluringly portrays sexually immoral acts as proper behavior"; "by
presenting . . . [adultery] in a clearly approbatory manner";
"which alluringly portrays adultery as proper behavior"; "which
alluringly portray acts of sexual immorality (here adultery) and
recommended them as a proper way of life"; "which alluringly
portray adultery as proper and desirable"; and "which alluringly
portray acts of sexual immorality by adultery as proper
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, concurring in the result.
I think the Court has moved too swiftly in striking down a
statute which is the product of a deliberate and conscientious
effort on the part of New York to meet constitutional objections
raised by this Court's decisions respecting predecessor statutes in
this field. But although I disagree with the Court that the parts
of §§ 122 and 122-a of the New York Education Law, 16 N.Y.Laws Ann.
§ 122 (McKinney 1953), 16 N.Y. Laws Ann. § 122-a (McKinney Supp.
1958), here particularly involved are unconstitutional on their
face, I believe that, in their application to this film,
constitutional bounds were exceeded.
Page 360 U. S. 703
Section 122-a of the State Education Law was passed in 1954 to
meet this Court's decision in Commercial Pictures Corp. v.
Regents, 346 U. S. 587
which overturned the New York Court of Appeals' holding in
Commercial Pictures Corp. v. Board of Regents,
336, 113 N.E.2d 502, 505, that the film La Ronde could be banned as
"immoral" and as "tend[ing] to corrupt morals" under § 122.
] The Court's decision
in Commercial Pictures
was but a one-line per curiam with
a citation to Joseph Burstyn, Inc. v. Wilson, 343 U.
, which, in turn, had held for naught not the word
"immoral," but the term "sacrilegious" in the statute.
New York nevertheless set about repairing its statute. This it
did by enacting § 122-a, which, in the respects emphasized in the
present opinion of Chief Judge Conway as pertinent here, defines an
"immoral" motion picture film as one which portrays "acts of sexual
immorality . . . as desirable, acceptable or proper pattern of
, 351, 175 N.Y.S.2d 39, 151 N.E.2d 197. [Footnote 4/2
] The Court now holds this part
of New York's effort
Page 360 U. S. 704
unconstitutional on its face under the Fourteenth Amendment. I
The Court does not suggest that these provisions are bad for
vagueness. [Footnote 4/3
] Any such
Page 360 U. S. 705
to me untenable in view of the longstanding usage in this Court
of the concept "sexual immorality" to explain in part the meaning
of "obscenity." See, e.g., Swearingen v. United States,
161 U. S. 446
161 U. S. 451
] Instead, the Court
finds a constitutional vice in these provisions in that they
require, so it is said, neither "obscenity" nor incitement to
"sexual immorality," but strike of their own force at the mere
advocacy of "an idea -- that adultery under certain circumstances
may be proper behavior"; expressions of "opinion that adultery may
sometimes be proper. . . ." I think this characterization of these
provisions misconceives the construction put upon them by the
prevailing opinions in the Court of Appeals. Granting that the
abstract public discussion or advocacy of adultery, unaccompanied
by obscene portrayal or actual incitement to such behavior, may not
constitutionally be proscribed by the State, I do not read those
opinions to hold that the statute, on its face, undertakes
Page 360 U. S. 706
any such proscription. Chief Judge Conway's opinion, which was
joined by two others of the seven judges of the Court of Appeals,
and in the trust of which one more concurred, to be sure with some
doubt, states (4 N.Y.2d at 356, 151 N.E.2d at 200, 175 N.Y.S.2d at
"It should first be emphasized that the scope of section 122-a
is not mere expression of opinion in the form, for example, of a
filmed lecture whose subject matter is the espousal of adultery. We
reiterate that this case involves the espousal of sexually immoral
acts (here adultery) plus
actual scenes of a suggestive
and obscene nature."
(Emphasis in original.)
The opinion elsewhere, as indeed is also the case with §§ 122
and 122-a themselves when independently read in their entirety, is
instinct with the notion that mere abstract expressions of opinion
regarding the desirability of sexual immorality, unaccompanied by
obscenity [Footnote 4/5
incitement, are not proscribed. See 4
, especially at 351-352, 354, 356-358, 361, 363-364,
175 N.Y.S.2d 39 at 40-41, 42-43 44-49, 50-51, 151 N.E.2d 197 at
197, 199, 200-201, 203, 204-205; and Notes 360
fn4/1|>1 and 360
It is the corruption of
public morals, occasioned by the inciting effect of a particular
portrayal or by what New York has deemed the necessary effect of
obscenity. at which the statute is aimed. In the words of Chief
"There is no difference
Page 360 U. S. 707
in substance between motion pictures which are corruptive of the
public morals, and sexually suggestive, because of a predominance
of suggestive scenes, and those which achieve precisely the same
effect by presenting only several such scenes in a clearly
approbatory manner throughout the course of the film. The law
is concerned with effect, not merely with but one means of
producing it . . . ; the objection lies in the corrosive effect
upon the public sense of sexual morality.
4 N.Y.2d at 358, 175 N.Y.S.2d at 46, 151 N.E.2d at 201.
(Emphasis in original.)
I do not understand that the Court would question the
constitutionality of the particular portions of the statute with
which we are here concerned if the Court read, as I do, the
majority opinions in the Court of Appeals as construing these
provisions to require obscenity or incitement, not just mere
abstract expressions of opinion. It is difficult to understand why
the Court should strain to read those opinions as it has. Our usual
course in constitutional adjudication is precisely the
The application of the statute to this film is quite a different
matter. I have heretofore ventured the view that, in this field,
the States have wider constitutional latitude than the Federal
the writer's separate opinion in Roth
v. United States
and Alberts v. California,
354 U. S. 476
354 U. S. 496
With that approach, I have viewed this film.
Giving descriptive expression to what in matters of this kind
are in the last analysis bound to be but individual subjective
impressions, objectively as one may try to discharge his duty as a
judge, is not apt to be repaying. I shall therefore content myself
with saying that, according full respect to, and with, I hope,
sympathetic consideration for, the views and characterizations
Page 360 U. S. 708
others, I cannot regard this film as depicting anything more
than a somewhat unusual, and rather pathetic, "love triangle,"
lacking in anything that could properly be termed obscene or
corruptive of the public morals by inciting the commission of
adultery. I therefore think that, in banning this film, New York
has exceeded constitutional limits.
I conclude with one further observation. It is sometimes said
that this Court should shun considering the particularities of
individual cases in this difficult field lest the Court become a
final "board of censorship." But I cannot understand why it should
be thought that the process of constitutional judgment in this
realm somehow stands apart from that involved in other fields,
particularly those presenting questions of due process. Nor can I
see, short of holding that all state "censorship" laws are
constitutionally impermissible, a course from which the Court is
carefully abstaining, how the Court can hope ultimately to spare
itself the necessity for individualized adjudication. In the very
nature of things, the problems in this area are ones of individual
cases, see Roth v. United States
and Alberts v.
354 U. S. 496
-498, for a "censorship" statute can hardly
be contrived that would, in effect, be self-executing. And lastly,
each time such a statute is struck down, the State is left in more
confusion, as witness New York's experience with its statute.
Because I believe the New York statute was unconstitutionally
applied in this instance, I concur in the judgment of the
Section 122 provides:
"The director of the [motion picture] division or, when
authorized by the regents, the officers of a local office or bureau
shall cause to be promptly examined every motion picture film
submitted to them as herein required, and unless such film or a
part thereof is obscene, indecent, immoral, inhuman, sacrilegious,
or is of such a character that it exhibition would tend to corrupt
morals or incite to crime, shall issue a license therefor. If such
director or, when so authorized, such officer shall not license any
film submitted, he shall furnish to the applicant therefor a
written report of the reasons for his refusal and a description of
each rejected part of a film not rejected in toto."
Section 122-a provides:
"1. 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 of 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."
"2. For the purpose of section one hundred twenty-two of this
chapter, the term 'incite to crime' shall denote a motion picture
the dominant purpose or effect of which is to suggest that the
commission of criminal acts or contempt for law is profitable,
desirable, acceptable, or respectable behavior; or which advocates
or teaches the use of, or the methods of use of, narcotics or
The bill that became § 122-a was introduced at the request of
the State Education Department, which noted in a memorandum
"the issue of censorship, as such, is not involved in this bill.
This bill merely attempts to follow out the criticism of the United
States Supreme Court by defining the words 'immoral' and 'incite to
crime.' N.Y.S.Legis.Ann., 1954, 36. In a memorandum accompanying
his approval of the measure, the then Governor of New York, himself
a lawyer, wrote:"
"Since 1921, the Education Law of this State has required the
licensing of motion pictures and authorized refusal of a license
for a motion picture which is 'obscene, indecent, immoral' or which
would 'tend to corrupt morals or incite to crime.'"
"Recent Supreme Court decisions have indicated that the term
'immoral' may not be sufficiently definite for constitutional
purposes. The primary purpose of this bill is to define 'immoral'
and 'tend to corrupt morals' in conformance with the apparent
requirements of these cases. It does so by defining them in terms
of 'sexual immorality.' The words selected for this definition are
based on judicial opinions which have given exhaustive and reasoned
treatment to the subject."
"The bill does not create any new licensing system, expand the
scope of motion picture censorship, or enlarge the area of
permissible prior restraint. Its sole purpose is to give to the
section more precision to make it conform to the tenor of recent
court decisions and proscribe the exploitation of 'filth for the
sake of filth.' It does so as accurately as language permits in
'words well understood through long use.' [People v.
Winters, 333 U. S. 507
, 333 U. S.
"* * * *"
"The language of the Supreme Court of the United States, in a
recent opinion of this precise problem, should be noted:"
" To hold that liberty and expression by means of motion
pictures is guaranteed by the First and Fourteenth Amendments,
however, is not the end of our problem. It does not follow that the
Constitution requires absolute freedom to exhibit every motion
picture of every kind at all times and all places. [Burstyn v.
Wilson, 343 U. S. 495
at 343 U. S.
"So long as the State has the responsibility for interdicting
motion pictures which transgress the bounds of decency, we have the
responsibility for furnishing guide lines to the agency charged
with enforcing the law."
Certainly it cannot be claimed that adultery is not a form of
"sexual immorality"; indeed, adultery is made a crime in New York.
N.Y.Penal Law §§ 100-103, 39 N.Y.Laws Ann. §§ 100-103 (McKinney's
Nothing in Judge Dye's dissenting opinion, to which the Court
refers in Note 7 of its opinion
can be taken as militating against this view of the prevailing
opinions in the Court of Appeals. Judge Dye simply disagreed with
the majority of the Court of Appeals as to the adequacy of the §
122-a definition of "immoral" to overcome prior constitutional
objections to that term. See
4 N.Y.2d at 371, 175 N.Y.S.2d
at 57, 151 N.E.2d at 209-210; see also
opinion of Judge Van Voorhis, 4 N.Y.2d at 374, 175 N.Y.S.2d at 60,
151 N.E.2d at 212.