
    In the Matter of Trans-Lux Distributing Corp., Respondent, v. Board of Regents of the University of the State of New York, Appellant.
    Argued January 22, 1964; reargued March 23, 1964;
    decided March 26, 1964.
    
      Charles A. Brind, John P. Jehu, Elisabeth M. Eastman and George B. Farrington for appellant.
    I. The State statute preventing public exhibition of obscene films is constitutional. 
      (Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Times Film Corp. v. Chicago, 365 U. S. 43; People v. Fritch, 13 N Y 2d 119; Roth v. United States, 354 U. S. 476.) II. The film in question is obscene within the meaning of the statute and not entitled to licensure. III. There is no conflict between the New York State statute and the Federal Tariff Act. (Allen B. Dumont Labs. v. Carroll, 184 F. 2d 153; Head v. New Mexico Bd., 374 U. S. 424; Maurer v. Hamilton, 309 U. S. 598; Weigle v. Curtice Bros. Co., 248 U. S. 285; Carey v. South Dakota, 250 U. S. 118.)
    
      Harry I. Rand, Warren F. Schwartz and Leonard H. Dickstein for respondent.
    I. The board’s determination refusing to issue a license for exhibition of the film -is invalid because it did not consider the film as a whole but rather was based solely on the finding that two parts of the film are obscene. (Roth v. United States, 354 U. ,S. 476; Manual Enterprises v. Day, 370 U. S. 478; People v. Richmond County News, 9 N Y 2d 578; People v. Fritch, 13 N Y 2d 119; Times Film Corp. v. City of Chicago, 355 U. S. 35; Commonwealth v. Moniz, 338 Mass. 435; American Civil Liberties Union v. Chicago, 3 Ill. 2d 334; Excelsior Pictures Corp. v. City of Chicago, 182 F. Supp. 400; Goldman Theatres v. Dana, 405 Pa. 83.) II. In any event, the judgment of the Appellate Division annulling the determination of the board and directing the issuance of a license for the film must be affirmed because neither the film nor any portion thereof is obscene. (Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of N. Y., 3 NY 2d 237.) III. Section 122 of the Education Law and related provisions requiring -the issuance of a license -for exhibition of a film and imposing criminal sanctions for exhibition without a license constitute an impermissible prior restraint in violation of sections 6 and 8 of article I of the .State Constitution and the Fourteenth Amendment to the Federal Constitution. (Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Kingsley Pictures Corp. v. Regents, 360 U. S. 684; Sunshine Book Co. v. McCaffrey, 4 A D 2d 643; Zenith Int. Film Corp. v. City of Chicago, 291 F. 2d 785; Kingsley Books, Inc., v. Brown, 354 U. S. 436; City of Portland v. Welsh, 229 Ore. 308; Gordon Murray Prods, v. Floyd, 217 Ga. 784; Goldman Theatres v. Dana, 405 Pa. 83.) IV. The board’s determination is invalid because the application of the Education Law to the film is barred by section 305 of the Tariff Act of 1930, which pre-empts the field with respect to films imported into the United States. (Allen B. Dumont Labs. v. Carroll, 184 F. 2d 153; Pennsylvania v. Nelson, 350 U. S. 497: Hines v. Davidowitz, 312 U. S. 52.)
   Burke, J.

This appeal puts in issue once again the constitutionality of an application of this State’s motion picture licensing statute (Education Law, § 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 (346 U. S. 587, advocacy of adultery) and Joseph Burstyn, Inc., v. Wilson (343 U. S. 495, 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; People v. Stover, 12 N Y 2d 462).

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; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 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, supra) 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 (Plumbers Union v. Graham, 345 U. S. 192). Conduct that is proscribed for valid public purposes is not immune merely because engaged in with a view to expression (Giboney v. Empire Stor. Co., 336 U. S. 490). For example, in People v. Stover (12 N Y 2d 462, supra, opp. dsmd. for want of a substantial Federal question 375 U. S. 42) 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 Stor. Co. supra, p. 501) 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 explicitly 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, supra.)

In Kingsley Pictures Corp. v. Regents (360 U. S. 684) the opinion of the court repeatedly distinguishes between the right to communicate any idea, however deviant from orthodoxy, and “ the manner of its portrayal” (p. 688). 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 I believe it would have met the requirements of due process. Instead, it placed more emphasis on what the film teaches than what it depicts. There is where the confusion enters” (p. 702; 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), 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, §§ 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, affd. 267 N. Y. 571; People v. Mitchell, 296 N. Y. 672; People v. Dash, 282 N. Y. 632.)

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 to see, and generally believed destructive of the general level of morality, then a filmed simulation fully shares, it seems to me, the evil of the original. In such cases the free expression protection of the First Amendment must apply to both or neither. It makes no sense at all to say that the conduct can be forbidden but not the play or film.

The pattern of statutory regulation in New York aims at offensive—more properly, obscene — displays of conduct whether in the street (Penal Law, §§ 43, 1140, 1140-b), on the stage (Penal Law, § 1140-a; People v. Vickers, 259 App. Div. 841 — lewd dance) or on the screen (Penal Law, §§ 1140-a, 1141; Education Law, § 122). These laws care not about the communication of ideas (see Stromberg v. California, 283 U. S. 359); they are aimed at certain narrow sorts of conduct. It seems to me, therefore, that if the defendants in People v. Stover (supra) could constitutionally be prohibited from selecting the forbidden form of conduct as the vehicle for the communication of their protest, then this petitioner cannot choose acted-out sexual intercourse as the vehicle for its art (see, also, People v. Vickers, supra, where a performer was prohibited from choosing a certain sort of dance as her vehicle, and the “ nude gymnasium prohibited by Penal Law, § 1140-b). Numerous other instances also suggest themselves.

If we can accept the obvious — that sexual intercourse whether performed in the park or simulated on the stage or screen is in itself a form of conduct (in which the public have an interest), it is apparent that when this defendant chooses to use it as a vehicle for the expression of art it has “brigaded ” the communication (to the extent that it is “ communication ”) with conduct completely. In so doing the petitioner has subjected itself to such regulations as are appropriate to the conduct when engaged in for reasons having nothing to do with expression. There is otherwise no difference between advocacy and action. (Compare Thornhill v. Alabama, 310 U. S. 88, with Plumbers Union v. Graham, 345 U. S. 192.) “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it ” (Douglas, J., dissenting in Roth v. United States, 354 U. S. 476, 514).

Just what regulations are appropriate regarding displays of sexual intimacy in public or semipublic places may be a matter for debate. The debate is most profitably conducted, however, in the malleable forum of public policy rather than within the rigidities of constitutional law. In regard to conduct which has been legislatively declared to be against public policy, we are reminded by Mr. Justice Holmes that “ There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect ” (dissenting opinion in Truax v. Corrigan, 257 U. S. 312, 344). The sole exception to this tolerance of experimentation is legislation hostile to that freedom of expression necessary to the healthy functioning of an open democratic society. It is after careful consideration that I conclude that, far from hostility to any idea, even hateful ideas that undermine social morality, section 122 of the Education Law merely proscribes certain behavior, which, when viewed by the public, is deemed offensive and destructive of moral standards historically protected by the State and which “ bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion ” (Schneider v. State, 308 U. S. 147,161).

The scenes referred to by the State are obscene within the meaning of section 122 of the Education Law as I understand it in light of the Fourteenth Amendment. The issue of obscenity as a constitutional standard applicable to speech proper, or whether the conduct here depicted can even be meaningfully thought of as speech in this context, need not be decided.

Lastly, because the material assigned as obscene in this case is not, in my view, speech, as opposed to conduct, it need not come within the test laid down in Roth v. United States (354 U. S. 476, supra) that, in speech cases, obscenity must be the dominant theme of the work as a whole. If that requirement were applicable to cases of this nature, the law would be helpless to cope with the grossest imaginable pornography if it were included in a film as an incidental feature, collateral to the main plot, just as a profitable bit of sensationalism. If we admit of the concept of obscenity as a public evil at all, it must be recognized that the full force of such an evil could flourish in nonthematic interludes of motion pictures. If simulated sexual intercourse outrages public decency, it does so as such and not only when the sole or dominant subject of any given exhibition. The licensing statute contemplates the deletion of such material. It may either be omitted entirely or the producer may redo the scene another way. If it is objected that the enterprise is artistically not worth doing without the scene as it stands, that is the problem, not of the law, but of the producer who has made a pornographic scene so central to his work.

To all argument predicated on artistic merit as decisive of the constitutional question, it is sufficient answer to say that artists are not such favorites of the law that they may ply their craft in the teeth of a declared overriding public policy against pornographic displays. Since no either profession is privileged to bend public morals, policy and law to its internal craft standards, then neither should producers of films.

The order appealed from should be reversed and the determination of the Board of Regents reinstated, with costs in this court and in the Appellate Division.

Chief Judge Desmond

(concurring). As the Appellate Division dissenting opinion emphasizes, two scenes in this movie ‘ ‘ forthrightly depict the fulfillment of acts of sexual intercourse between the principal characters.” This order if affirmed would be (as I am persuaded after some research) the first court determination in recorded history holding to be nonobscene and constitutionally protected the portrayal on stage or a screen of the very sexual act itself. An affirmance would license the inclusion, in a stage play or a movie (or on television?), of actual scenes of intercourse and of other kinds of behavior always and everywhere considered to constitute indecency when carried on in public. The question presented on this appeal is, therefore, a new one not controlled by any earlier censorship decisions.

Lest we get too far away from the actual question, let us remind ourselves that the Regents did not refuse to license this picture but went no further than to direct the elimination therefrom of the two scenes of sexual congress. If we were to hold that this Regents’ determination was illegal we would be saying that there is a constitutional right to include in a motion picture a direct acting out of coitus. Therefore, what is involved here is not the description in a book of sexual acts but the actual performance of those acts in public. To fornicate in public or to exhibit the sexual organs in public has been considered obscene conduct at least since 1663 in the case of King v. Sedley (1 Keble 620) wherein Sir Charles Sedley was convicted of obscenity because, standing on a London balcony, he exhibited himself in the nude to the populace. The ban on such exhibitions is probably as old as human society and it has never disappeared from our law.

When the Supreme Court held in Times Film Corp. v. Chicago (365 U. S. 43) that pre-exhibition administrative censorship of motion pictures was not necessarily unconstitutional, it was saying that there are still some kinds of movie portrayals that the State’s police power may forbid. Inapplicable to an act of public indecency are the tests used for determining obscenity of a book, that is, predominant ¿ppeal to prurient interest, going substantially beyond customary limits of candor and contemporary community standards, patent offensiveness and the necessity of taking the material as a whole and not condemning it by reason of isolated passages. It is unthinkable that a civilized community would permit actors to simulate sexual acts in a play or movie just because the play or movie is said by some critic or other to be an artistic work. Lewd conduct in public whether on the sidewalk, the stage, or the screen has always been forbidden and controllable by police power statutes (see Commonwealth v. Lambert, 94 Mass. 177, and Penal Law, art. 106). If that is not so there can be presented on Broadway under protection of the law a well-written, well-acted play about a prostitute including' incidents where she is actually working at her trade and the defensive argument would be that these incidents were relevant and indeed essential to the development of a dramatic theme.

Respondent leans on an old and well-worn crutch when it argues that the film must be licensed since it is a “ serious dramatic work ’ ’ and an ‘‘ artistic ’ ’ piece of work, etc., etc. Such is a matter of critical choice, even though to some of us ‘ ‘ A Stranger Knocks ’ ’ looked like a mediocre movie, in no way notable except for the uniqueness of its departures from common decency. But, artistic or not, it contains in the two interdicted sequences, a cold, brazen affront to the accepted public moral code at its lowest possible level. All societal organizations, even civilization itself, depend for permanence on the fixing of a minimal standard of conduct permissible in public. Judges do not have to qualify as dramatic critics before concluding that the loss to society from the cutting of these scenes of fornication is of very little consequence as weighed against the loss to public decency from their exhibition.

Summing it up, we have here the bald question of whether the State of New York has power to require that this movie be not shown unless there are deleted therefrom the two scenes which “ forthrightly depict ” sexual intercourse.

I vote to reverse.

Scileppi, J.

(concurring). I concur for reversal. The facts are not in dispute. The film is in evidence as an exhibit and was viewed by the court. There are two scenes in this motion picture which admittedly were intended to depict sexual intercourse. The claim, however, is that said acts were implied rather than demonstrated, and, further, that the picture has constitutional protection, not only because of its redeeming artistic value but also because the dominant theme of the film taken as a whole is not obscene.

As I viewed the film, there is nothing implied — rather, the two principal characters unmistakably and realistically portray two persons having sexual intercourse, including the final stage — a climactic orgasm. Moreover, the dominant theme test is, I believe, inapplicable to motion pictures. The two offending scenes must be judged separately as would still photographs.

I would conclude that the graphic portrayal in a motion picture of sexual intercourse, illicit or otherwise, simulated or real, is obscene under any of the established legal standards (see, e.g., Manual Enterprises v. Day, 370 U. S. 478; Roth v. United States, 354 U. S. 476; People v. Richmond County News, 9 N Y 2d 578). That these scenes may have been artistically inspired is without significance. Whether matter is to be judged obscene requires the application of objective standards by the courts and not an expedition into subjective motivations (see People v. Fritch, 13 N Y 2d 119). I am unwilling to contribute to the writing of “ Finis ” to the moral code of the vast majority of the people in our country by "placing a stamp of approval on exhibitions of this nature.

Williams, J.

(concurring). The fundamental question is whether the State Board of Regents had the power to direct the deletion of the portrayal of íavo acts of sexual intercourse as obscene ”. One argument that has been advanced by those who would display such scenes to the general public is that the censorial elimination would destroy a cultural and important social theme. If, in fact, the theme presents serious questions of social and moral problems, on a high cultural level (which I do not admit), that theme and those questions can as well be preserved by the substitution of other and less offensive types of portrayal. The acts need not actually be visibly depicted to impart to the public that the acts of intercourse had indeed taken place.

It is contended that the production must be considered as a whole, but to my mind its over-all merit is not such as to support scenes of obscenity. And the contention that the two scenes of visible sexual intercourse are necessary to maintain the high cultural level of the picture speaks little for the social value of the production “as a whole ”.

However, to revert to the original basic problem, I do not favor the actual physical portrayal of acts of sexual intercourse in public whether it be through the media of motion pictures, the theatre or otherwise. In my opinion the Board of Regents was

amply justified in finding the eliminated scenes to he obscene and had complete authority to direct their deletion.

Opinion by Judge Burke in which Chief Judge Desmond and Judges Scileppi and Williams concur, each in a separate opinion in each of which the others concur; Judges Dye, Fuld and Van Voorhis dissent and vote to affirm upon the majority memorandum opinion in the Appellate Division.

Order reversed, etc. 
      
      The police or general powers of government extend to “the preservation of good order and the public morals.” (Beer Co. v. Massachusetts, 97 U. S. 25, 33.) As Hr. Justice Hablau recently stated the .State’s authority to legislate in support of moral standards: “Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from such community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U. S. 420.” (Harlan, J., dissenting in Poe v. Ullman, 367 U. S. 497, 545-546.)
     
      
      Designated pursuant to article VI (§2, subd. a) of the State Constitution in place of Judge Bergan, disqualified.
     