
    In the Matter of Excelsior Pictures Corp., Respondent, against Regents of the University of the State of New York, Appellants.
    Argued March 5, 1957;
    decided July 3, 1957.
    
      
      Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington for appellants.
    
      Charles J. Tobin, Jr., Porter R. Chandler and John B. Coleman, Jr., for New York State Catholic Welfare Committee, amicus curice, in support of appellants’ position.
    
      
      Sol A. Rosenblatt, Julian B. Rosenthal and Charles Roden for respondent.
   Desmond, J.

Under review in this case is the denial to petitioners, by the Regents, of a license to exhibit in New York State a motion picture called “ Garden of Eden”. The film, which this court has viewed, is a fictionalized depiction of the activities of the members of a nudist group in a secluded private camp in Florida. There is nothing sexy or suggestive about it. It has been shown in 36 States and in many foreign countries. In it the nudists are shown as wholesome, happy people in family groups practising their “ sincere if misguided theory that clothing, when climate does not require it, is deleterious to mental health by promoting an attitude of shame with regard to natural attributes and functions of the body” (American Law Institute, Model Penal Code, Tentative Draft No. 6, p. 35).

The pictured episodes are ‘1 honestly relevant to the adequate expression of innocent ideas ” (United States v. Kennerley, 209 F. 119,120-121) just as are figures of nude men and women in the decor of public buildings including New York court houses, and in the pages of National Geographic Magazine and in ultra-respectable travel pictures. Nevertheless, the Motion Picture Division of the New York State Education Department rejected the film (and respondents Board of Regents confirmed the rejection) on the ground that it is “indecent”. These censors, however, did not declare it to be obscene as, indeed, they could not. We will not in this opinion quibble or quarrel as to concepts of decorum or delicacy or manners, since ‘1 the court is not a censor of plays and does not regulate manners ” (People v. Wendling, 258 N. Y. 451, 453). We need not reassert our deeply felt conviction that censorship for real, true obscenity is valid and essential in our society (Legal Problems on Censoring, 40 Marq. L. Rev. 38). But we do say and we will show in this opinion that this picture cannot lawfully be banned since it is not obscene in the sense in which the law has used that term for centuries. Nothing sexually impure or filthy is shown or suggested in ‘ Garden of Eden ’ ’ and so there is no legal basis for censorship (see People v. Muller, 96 N. Y. 408, 411; United States v. One Book Called “ Ulysses ”, 5 F. Supp. 182, 184; United States v. Limehouse, 285 U. S. 424; American Civil Liberties Union v. Chicago, 3 Ill. 2d 334, appeal dismissed 348 U. S. 979; Roth v. United States and Alberts v. California, 354 U. S. 476, June 24, 1957; and, generally, Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295). Since the film is certaintly not “ obscene ” in the eyes of the law, it cannot, under United States Supreme Court decisions hereinafter listed and binding on us, constitutionally be subjected to prior restraint. To repeat, we are not called upon to pass judgment on nudism or nudists. We are simply obeying the supreme law which binds us as well as everyone else. So confining ourselves and leaving our individual predilections for debate at some more appropriate time, we analyze the applicable law.

Appellants, the Board of Regents of the University of the State of New York, are the policy-making officers of the State Education Department (Education Law, §§ 206, 207). Under sections 122 and 124 of the Education Law the Regents control the licensing and exhibitions of motion pictures in this State and are required to issue such a license unless the 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 ” (Education Law, § 122; and see § 122-a thereof for further or sub-definitions of “ immoral ” and “ tend to corrupt morals ”). By a series of decisions handed down during the last five years (Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Gelling v. Texas, 343 U. S. 960; Superior Films v. Department of Educ. and Commercial Pictures Corp. v. Regents, 346 U. S. 587; Holmby Prods, v. Vaughn, 350 U. S. 870), the United States Supreme Court has stricken down as unconstitutional nearly all the grounds for license refusal listed in sections 122 and 122-a of the New York Education Law (supra). Those cited decisions of the United States Supreme Court need not be separately analyzed here. Their cumulative result is that a motion picture may not be denied license by State censors because it is “ immoral ” or because it is “ sacrilegious ” or “ because its exhibition would tend to corrupt morals or incite to crime ”. As to denial because of obscenity, the Burstyn majority opinion (343 U. S. 495, 505, supra) said that the court found it unnecessary “ to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films.” Becognizing in that language the customary conservatism of high court opinions, we treat it as a holding that obscenity is under the First and Fourteenth Amendments the only (other possible exceptions are not pertinent here) lawful ground for denying a license. That such is the meaning of the Burstyn excerpt (supra) is more than a guess. It is solidly based on the history of censorship, recent and remote (Brown v. Kingsley Books, 1 N Y 2d 177, 189, 190; St. John-Stevas, Obscenity and the Law, Legal Problems Involved in Censoring, 40 Marq. L. Rev. 38; Censoring the Movies, 29 Notre Dame Law. 27).

Another Supreme Court expression as to obscenity, Butler v. Michigan (352 U. S. 380 [Feb., 1957]), narrowed even more the permissible range of governmental action. Held invalid in that ease was a Michigan statute (and, presumably, similar statutes in 11 other States not including New York) which made it criminal to distribute to the general public a book containing obscene language “ tending to the corruption of the morals of youth”. The Butler decision (and the series of decisions re obscenity handed down by the court on June 24, 1957) means that in the United States as in England (Regina v. Martin Seeker S Warburg, Ld., [1954] 1 Weekly L. R. 1138) the question of obscenity may no longer be decided by the old Hicklin test (Regina v. Hicklin, L. R. 3 Q. B. 360, 371) of ‘1 whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” The law now, since Butler v. Michigan (supra), is that the young may be kept away from certain movies by appropriate State action (cf. New York Penal Law, § 484) but, unless the picture be really obscene in the traditional, historic sense of that term, license to exhibit it to adults may not be withheld.

That obscenity is an exception (and for our purposes the only exception) to the First Amendment’s free speech guarantee was flatly and finally announced by the Supreme Court on June 24, 1957 in Roth v. United States and Alberts v. California (354 U. S. 476, supra). In the Roth-Alberts opinion Justice Brennan wrote that obscenity is not within the area of constitutionally protected speech or press.”

Since the Constitution forbids any prior restraint of a motion picture which is not obscene and since this film has not been found to be obscene or rejected because of obscenity and since it is not obscene by any standard we ever heard of, we could end this opinion right here. Nudity in itself and without lewdness or dirtiness is not obscenity in law or in common sense. “ It is a false delicacy and mere prudery which would condemn and banish from sight all such objects as obscene, simply on account of their nudity. If the test of obscenity or indecency in a picture or statue is its capability of suggesting impure thoughts, then indeed all such representations might be considered as indecent or obscene. The presence of a woman of the purest character and of the most modest behavior and bearing may suggest to a prurient imagination images of lust, and excite impure desires, and so may a picture or statue not in fact indecent or obscene ” (Judge Andrews writing in 1884 for a unanimous Court of Appeals in People v. Muller, 96 N. Y. 408, 411, supra). For more than a century the New York courts have held that exposure of the body .to the view of others is not criminal if there be no lewd intent (Miller v. People, 5 Barb. 203 [1849]; cf. People ex rel. Lee v. Bixby, 4 Hun 636, opinion in 67 Barb. 221). Even the strictest moralists tell us that an obscene nude is a nude that allures ” (Vermeesch, Theologiae Moralis, 1936, p. 94).

The State, nevertheless, says that the picture “Garden of Eden ” is “indecent ”, that indecent films are censorable under the statute (Education Law, § 122, supra) and that the courts as well as the Regents must obey that law. We will now analyze those positions.

It is settled that “ indecent ”, standing alone and read literally, is much too broad and vague a term to make a valid censorship standard. ‘ Indecent ’ ’ may include anything from vulgarity or impropriety to real obscenity (State v. Pape, 90 Conn. 98, 101). Since the law does not penalize or proscribe mere breaches of decorum, the word “ indecent ”, to accomplish anything at all, must be read to mean ‘ obscene ’ ’, and so the New York courts have always defined it. Our court has twice flatly held that the word “ indecent ” as to pictures or books describes “ various phases of the crime of obscenity” and ‘1 that form of immorality which has reference to sexual impurity ” (People v. Eastman, 188 N. Y. 478, 480; People v. Winters, 294 N. Y. 545, 550, revd. on other grounds 333 U. S. 507). The court in the Eastman case was construing the then section 317 of the Penal Code which, somewhat expanded, is now section 1141 of the Penal Law. The statute analyzed in Eastman penalized the distribution of “ any obscene, lewd, lascivious, filthy, indecent or disgusting book * * * picture ”. Our present motion picture censorship statute (Education Law, § 122, supra) forbids the licensing of a motion picture which is “ obscene, indecent, immoral ”. The similarity of wording is patent. Here is what our court said in Eastman as to the meaning of 1 indecent ”: “ It is clear from the manner in which the legislature has used the word ‘ indecent ’ that it relates to obscene prints or publications; it is not an attempt to regulate manners, but it is a declaration of the penalties to be imposed upon the various phases of the crime of obscenity. The word ‘ indecent ’ is used in a limited sense in this connection and falls within the maxim of noscitur a sociis (People v. Eastman, 188 N. Y. 478, 479-480, supra). Thus, “ indecent ” in section 122 means “ obscene ”, this picture is not obscene and so the license denial was unconstitutional.

The whole reason for the board’s proscription of this film seems to be section 1140-b of the Penal Law, passed in 1935: “ A person who in any place wilfully exposes his private parts in the presence of two or more persons of the opposite sex whose private parts are similarly exposed, or who aids or abets any such act, or who procures another so to expose his private parts or who as owner, manager, lessee, director, promoter or agent, or in any other capacity, hires, leases or permits the land, building or premises of which he is the owner, lessee or tenant, or over which he has control, to be used for any such purposes, is guilty of a misdemeanor.” The statute mentions neither movies nor nudism but the State says it is to be read with the censorship law (Education Law, § 122, supra) so as to create in New York a statutory prohibition against the licensing of any motion picture showing a group of nude people of both sexes. That position of the State rests entirely on two assumptions, each of which is demonstrably false. The first assumption (one of historical fact) is that the Legislature, without saying so, intended by section 1140-b to make criminal in New York State any practice of nudism, even in secluded private grounds and by family groups. The second assumption (one of law and based on the false assumption of fact) is that since nudism is criminally “ indecent ” in this State, a pictorial representation of that crime is in itself “ indecent ” and not licensable under section 122 of the Education Law (supra).

First, as to the falsity of the assumption that section 1140-b makes nudism under whatever circumstances criminal in New York. It is true that in the contemporary press and elsewhere the legislation was called “the anti-nudism bill”. But the careful and well-informed Governor who signed it wrote in liis memorandum of approval that it was directed against “ the professional exploitation of nudism for profit ”. The new law was needed, he wrote, to prevent “ exhibitionism for financial gain ” which the existing statutes did not touch (Public Papers of Governor Herbert H. Lehman, 1935, p. 352). In the same message Governor Lehman cryptically referred to the real background and purpose of the new statute when he said: “ There can be no justification for some of the so-called nudist gymnasiums or colonies where the general public is admitted on the payment of an admission fee.” The reference, of course, was to People v. Burke (243 App. Div. 83, affd. 267 N. Y. 571). The Burke case was handed down by our court on April 30, 1935, a few days after the Legislature voted the bill which became section 1140-b (supra). Beyond any doubt, section 1140-b was passed because of that Burke decision (for a contemporary discussion of the case and the statute see 69 U. S. L. R. 346 et seq.) Defendant Burke, in the name of the “ Olympian League ”, had rented a gymnasium in New York City and there ran a “meeting” where “ Any one was welcome * * * who would pay the required entrance fee ” (see 243 App. Div. 83, 86) and where the male and female ticket purchasers exercised and swam “ naked in a gymnasium to which admittance [was] gained by the payment of a fee ” (see 267 N. Y. 571, 572). That was the “ professional exploitation ” and “ exhibitionism for financial gain ’ ’ against which the Legislature and the Governor were legislating. Of course, the law is very broadly drawn but our duty is to give it a reasonable and sensible meaning in the light of the evil at which it was directed. Because it is a restraint of liberty and because it creates a crime unknown to the common law (as to the common law of nudity in nonpublic places see 67 C. J. S., Obscenity, §§ 5, 6) it should be narrowly and strictly construed. Literal meaning would penalize not only innocent and orderly nudism but would make it a misdemeanor for a parent and members of a family to be unclad in their family home. No rational Legislature ever intended to create such a crime. The law should be interpreted sanely as penalizing nudity in public or quasi-public places only.

As a last reason why section 1140-b has no bearing at all here, we point out that, whatever that strange enactment may mean, it certainly does not deal with the exhibition of any motion picture. The showing of an “ obscene, lewd, lascivious, filthy, indecent” film is dealt with in a different section —1141 — of the Penal Law. And the test under section 1141 is, as we have seen, “ obscenity ” alone.

But let use suppose that section 1140-b makes criminal any and every practice of nudism in New York State. It is still a non sequitur that picturing such activity becomes criminal or “indecent” or that it justifies censorship. To say that representation of criminal activity is criminal is to abolish the drama and the novel in one stroke. Illustrations are unnecessary. Everyone will think of his own. The showing of crimes in book, play or cinema is evil only when it is done in a dirty way or when it glorifies the criminal act. So to characterize “ The Garden of Eden ” is impossible.

In only four States of the Union (New York, Kansas, Maryland, Virginia) is censorship of motion pictures still carried on by State agencies. The number has been declining and will decline further unless reason and moderation be employed (see Pound, J., in People v. Wendling, 258 N. Y. 451, 454, supra). Some of us, while proclaiming the necessity for “ a viable solution of the problem of censorship by law in a democratic society ” have realized that we must “ eschew the extremes and shun the extremists ” (Legal Problems in Censoring, 40 Marq. L. Rev. 54, supra). We have publicly recognized that “obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil, a public nuisance, a public pollution ”. We “ see no reason why democratic government should not use democratic processes on a high administrative level, under the control of the courts, to suppress such obscenity ” (same citation). But censorship is a necessary evil, a last resort, to be used only when necessary and limited to the necessity (see Joseph Burstyn, Inc., v. Wilson opinion, 343 U. S. 495, 504, supra). “ Censorship ”, once wrote the great American political thinker Alfred E. Smith, “ is not in keeping with our ideas of liberty and of freedom * # * of speech” (Public Papers of Alfred E. Smith, 1923, pp. 60, 61). “ The point here, as in most problems, is that a minimum of censorship is far more likely to prove beneficial, rather than an attempted maximum ” (Bourke, Moral Problems in Censoring, 40 Marq. L. Rev. 56, 69, 71, 72, 73; see Gardiner, Moral Definitions of the Obscene, 20 Law & Contemp. Prob. 560, 561). In the present case the Board of Regents, doubtless because of a mistaken belief that section 1140-b mandated such action, went far beyond even the permissible maximum of censorship. In the interest of reasonable censorship itself, this unlawful exercise of the censorship power must be overruled by the courts.

The order should be affirmed, with costs.

Dye, J. (concurring).

I agree with all that has been said by Judge Desmond to the effect that the showing of the motion picture entitled “ Garden of Eden ” may not be barred on the ground that it is obscene and indecent, and I too vote for affirmance.

This is not to say however that the New York censorship statute (Education Law, § 122), providing as it does for the examination of every motion picture film submitted to the director of the Motion Picture Division of the Education Department and that ‘1 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 or incite to crime [the director] shall issue a license therefor ”, constitutes a constitutionally valid authorization for administrative censorship in advance. Whenever that section has been attacked on constitutional grounds it has been made to yield its essential particulars with the result that by now it has ceased to serve any practical or useful purpose (Joseph Burstyn, Inc., v. Wilson, 343 U S. 495; Commercial Pictures Corp. v. Regents, 346 U S. 587; Gelling v. Texas, 343 U. S. 960). No good reason exists for continuing a token observance.

Motion pictures, as we know, are within the free speech and free press guarantees of the First and Fourteenth Amendments (Joseph Burstyn, Inc., v. Wilson, supra). These amendments provide without exception that the Congress shall make “ no law * * * abridging the freedom of speech, or of the press ” (cf. Superior Films v. Department of Educ., 346 U. S. 587). If the objectionable matter offends onr penal laws, adequate means are at hand to deal with its suppression and punishment of the perpetrators (Penal Law, § 1141; Code Crim. Pro., § 22-a; Brown v. Kingsley Books, 1 N Y 2d 177, affd. 354 U. S. 436, decided June 24, 1957).

If it were necessary to reach the constitutional question, I am of the view that it would furnish a sufficiently additional reason to justify an affirmance.

Fuld, J. (concurring).

Judge Desmond has so well stated the case for affirmance that it is with great reluctance that I add even these few words.

While I am in wholehearted agreement with Ms thought that “ obscenity, real, serious, not imagined or puritanically exaggerated, is today as in all the past centuries, a public evil ” (Desmond, Legal Problems in Censoring, 40 Marq. L. Rev. 38, 54; opinion, p. 246), it does not follow that the proper remedy is suppression at the “administrative level.” The evil, it seems to me, may be adequately dealt with by resort to the courts in the first instance, either by criminal prosecution (Penal Law, § 1141) or by injunctive process. (Cf. Code Crim. Pro., § 22-a; Brown v. Kingsley Books, 1 N Y 2d 177, affd. 354 U. S. 436, decided June 24, 1957.) Be that as it may, though, since tho court is holding that The Garden of Eden ” is not “ indecent ” or obscene ” and that, therefore, there is no legal basis for censorship ” (opinion, p. 240), we are not called upon to decide the constitutionality or unconstitutionality of those sections of the Education Law which provide for the licensing of motion pictures by an administrative body. The disposition of that question must be left for decision in a case where the problem is presented.

Burke, J. (dissenting).

Inasmuch as the majority have completely brushed aside a clearly defined, reasonable legislative standard of decency with respect to nudity, for reasons of their own, and inasmuch as some have declared that this State’s licensing system for motion pictures is unconstitutional if applied to deny a license to a motion picture on any ground other than obscenity, without the slightest shred of specific authority, but merely on the basis of conjecture, we are compelled to dissent. We believe that their decision virtually strips the Legislature of power entrusted to it by the People of the State of New York.

The picture was filmed at a lake front nudist park in another State. The motion picture depicts in color the life in a nudist camp with views of nude men, women and children singly, in pairs and in groups, walking, talking, swimming and playing together. The numerous male and female adults and children in the picture are totally exposed to one another so that they are concededly exposing their private parts in each other’s presence. Views of the adults ’ private parts are not shown to the audience, but the genitalia of children and girls and the buttocks and breasts of men and women are revealed to the audience. In addition the picture contains specific protracted scenes of women in unwholesome, sexually alluring postures which are completely unnecessary to — and in fact a radical departure from — the activities of the nudist camp depicted. For example, there is a dream sequence in which the principal actress, a comely young lady, completely disrobes in full view of the audience in a manner not unlike that generally utilized by professional ecdysiasts.

Other scenes of like tenor, not honestly relevant to the innocent propagandizing of nudism as a way to mental and physical well-being, are present. By no stretch of the imagination can it be equated to the educational studies of aboriginal tribes found in museums, and respectable travel films or magazines.

The film was examined by a reviewer and the acting director of the Motion Picture Division of the State Education Department. After the denial of the license, the petitioner requested the Board of Regents to review the decision of the Motion Picture Division. The film was re-examined by a committee of the members of the Regents. Thereafter the Committee report, signed by two prominent members of the Bar of this State, affirmed the denial of the license on the ground that a pubilc display of the picture in the amusement theatres of the State before mixed audiences of all ages would be “ indecent ”. The determinations of the Motion Picture Division and the committee were thereafter unanimously approved by the 13 Regents.

The petitioner instituted this article 78 proceeding to annul the determination. It contends that the picture is not ‘ indecent ’ ’ within the meaning of section 122 of the Education Law, and, further, that the word ‘ ‘ indecent ’ ’ in section 122 of the Education Law is vague, indefinite and that, therefore, the section is void to that extent for failing to conform to the requirement of due process of law prescribed by the Fourteenth Amendment of the Constitution of the United States. Finally, Excelsior claims that the statute imposes an unconstitutional restraint upon freedom of speech because no system of censorship which requires prior approval of motion pictures would be reconcilable with the language and purpose of the First Amendment of the Constitution of the United States.

The contention that the film is not “indecent” within the intendment of section 122 of the Education Law is without merit. Section 1140-b of the Penal Law provides: “A person who in any place wilfully exposes his private parts in the presence of two or more persons of the opposite sex whose private parts are similarly exposed, or who aids or abets any such act, or who procures another so to expose his private parts or who as owner, manager, lessee, director, promoter or agent, or in any other capacity, hires, leases or permits the land, building or premises of which he is the owner, lessee or tenant, or over which he has control, to be used for any such purposes, is guilty of a misdemeanor. ’ ’

The history of this legislation makes it crystal clear that the exhibition of male and female nudes totally exposed to each other offends the community sense of decency. Shortly prior to the enactment of section 1140-b of the Penal Law, there were various sections extant which labelled certain acts as “indecent ” such as exposure of person, outraging decency, etc. (see Penal Law, §§ 1140, 43, 1530, 1533). In the spring of 1934, one Burke, who was a director of the Olympian League, an organization devoted to the principles of nudism, arranged a gymnasium meeting of the league members by letter in furtherance of ‘ ‘ Nudism Forward ’ ’ month. Admission was permitted upon presentation of the same letter signed by Burke and a fee of $1. Some 10 men and 4 women took part in swimming and exercises in the nude. Burke was subsequently convicted in the Court of Special Sessions of violating sections 43, 1140 and 1530 of the Penal Law. In December, the Appellate Division, with one Justice dissenting, reversed the conviction for the stated reason that the law ‘1 at present ’ ’ was not 11 sufficiently broad enough to render a conviction ” (People v. Burke, 243 App. Div. 83, 84). On January 7,1935, legislation was introduced to add section 1140-b to the Penal Law. While this legislation was pending, this court, in April, 1935, with two Judges dissenting, affirmed the Appellate Division (267 N. Y. 571). The legislation was passed by the Legislature and became the law on May 11, 1935 (L. 1935, ch. 868). There can be no doubt that the legislation was designed to deal with this type of nudist cult practices (see People v. Burke, 243 App. Div. 83, State Reporter’s footnote; Albany Times Union, April 1, 1935, p. 13, col. 4 ;New York Times, April 2,1935, p. 4, col. 4, April 9, 1935, p. 12, col. 7; Governor’s Bill Jacket on L. 1935, ch. 868).

It is likewise apparent that the legislation was specifically enacted to overcome the decision of this court and the Appellate Division in the Burhe case [supra) and to declare the opinion of the dissenters to be the public policy of this State. Resort to precedents not even remotely relevant will not suffice. People v. Eastman (188 N. Y. 478) falls in that category. They are factually and legally inapposite. People v. Eastman (supra) was merely a forerunner of People v. Burke (supra) now no longer an authority in respect to the illegal conduct described in section 1140-b of the Penal Law and indulged in by the nudists in this picture. The words of this statute should not be twisted out of their meaning. The court must regard the plain meaning of the statute with respect. Public policy may not be shaped out of a play on words or governed by personal impressions or attitudes. To substitute the bare conclusions of a few Judges in place of the determination of the Legislature and to challenge the wisdom of the Legislature constitutes a usurpation of the powers of the Legislature and a veto of the declaration of public opinion arrived at after debate.

We recently said in Matter of New York, Post Corp. v. Leibowitz (2 N Y 2d 677, 685-686) “ In construing statutory provisions, the spirit and purpose of the statute and the objectives sought to be accomplished by the legislature must be borne in mind. ‘ The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to “ defeat the general purpose and manifest policy intended to be promoted (People v. Ryan, 274 N. Y. 149, 152; see, also, Matter of United Press Assns. v. Valente, supra, 308 N. Y. 71, 83-84 * * * ) ”. Here we need not have recourse to general definition to establish that the conduct engaged in by the nudists in “ Garden of Eden ” is indecent within the meaning of section 122 of the Education Law. Section 1140-b of the Penal Law clearly evidences the legislative intent.

In light of the history of the legislation it was quite proper for the Regents to apply the standards set by this section of the Penal Law for the purpose of determining the character of nudity which is indecent under section 122 of the Education Law. It would be unreasonable to assume that the Legislature intended to authorize the viewing of such acts on motion picture screens, while it condemned the conduct in camps or gymnasiums. The exhibition of “Garden of Eden ” would be a “ professional exploitation of nudism for profit ” and a “ widespread use of exhibitionism for financial gain ” in violation of the purposes of the statute (Public Papers of Governor Herbert H. Lehman, 1935, p. 352). Therefore, a license for general exhibition of the picture would violate a standard of decency specifically defined by the Legislature in respect to nudity, and flaunt the public policy established by the Legislature.

That the conduct of the people depicted by the scenes of this film falls within that defined by section 1140-b of the Penal Law in that the minimum required number of male and female nudes are totally exposed to one another cannot be denied. It is conceded. However, respondent relies on the absence of any scene showing the genitalia of the adults to the audience. This contention is without merit. The test set by the provisions of section 1140-b has no such requirement. It simply requires that the nudists be engaged in the activity of exposing their private parts to those of the opposite sex whose private parts are similarly exposed. With this in mind there can be no doubt that this picture is indecent within the meaning of section 122.

While some individuals may disagree with the wisdom of such a standard, we must uphold it. Irrespective of personal views, we, in construing these statutes, may not substitute our judgment—or the judgment of others, however much revered or respected-—for the judgment of the Legislature which is the representative of the People of the State of New York and reflects their opinions. The forum for debate as to the desirability of such legislation has been provided for under our form of government and our laws. It is the Legislature, not the courts. Appellate judges should not constitute themselves a ‘ ‘ tiny autonomous Legislature ’ ’ in order to thwart and frustrate the public opinion of the People of the State. An oligarchy cannot be substituted in place of our democracy by judicial fiat. There is nothing in our system of laws which prevents the amendment or change of the law if the People of the State of New York so desire (see Daniel v. Family Ins. Co., 336 U. S. 220, 224). The Legislature has described the type of conduct of nudists which is prohibited by a specific statute so that there can be no question in the mind of a judge, a citizen, or the Board of Regents as to the meaning of the statute. As the court stated in United States v. Harmon (45 F. 414, 417, 422): “Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men and women of peculiar notions or idiosyncrasies, whole moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? * * * In short, the proposition is that a man can do no public wrong who believes that what he does is for the ultimate public good. The underlying vice of all this character of argument is that it leaves out of view the existence of the social compact, and the idea of government by law.”

It is obvious that insofar as nudity is concerned, the term “indecent” of section 122 of the Education Law, as confined and limited by the standards set forth in section 1140-b of the Penal Law, is so clear and certain that it does not offend due process. When so defined, indecency is not a chameleon term, lacking in calculable content. It speaks not of abstractions, but of objective standards, and its scope is of mathematical precision. Under this construction there is no fear that a decision by an administrative agency is left to arbitrary judgment (cf. Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495). Nor is there any doubt that this construction sufficiently apprises one bent on obedience of law of what is to be regulated (Beauharnais v. Illinois, 343 U. S. 250; Connally v. General Constr. Co., 269 U. S. 385). As thus construed and applied in this situation, there can be no valid objection on the ground that the term “ indecency ” is so vague that it is violative of due process.

It well may be that for the purpose of applying this statute to other circumstances the Legislature should amend it to include a broad comprehensive definition, as it amended the statute to further define and limit the term ‘ ‘ immoral ’ ’ after the Supreme Court of the United States reversed this court’s holding in Matter of Commercial Pictures Corp. v. Board of Regents (305 N. Y. 336). (See Commercial Pictures Corp. v. Regents, 346 U. S. 587; L. 1954, ch. 620.) However, that is no concern of ours at the present time, and we need not deal with questions so abstract to determine this controversy (Ashwander v. Tennessee Val. Auth., 297 U. S. 288, 341, 346-348). State action cannot be found hypothetically unconstitutional (Hatch v. Reardon, 204 U. S. 152). As here construed, the statute only applies to public or quasi-public places. Irrelevant references to family members unclothed within the family home miss the mark. Under very familiar law, the construction placed upon the statute by this court fixes its meaning for this case (Winters v. New York, 333 U. S. 507, 514; Beauharnais v. Illinois, supra, p. 253; Hebert v. Louisiana, 272 U. S. 312, 317).

Equally without substance is the claim that the requirement of prior approval of motion pictures in and of itself offends the letter and spirit of the First Amendment to the Constitution. 1 ‘ The phrase 1 prior restraint ’ is not a self-wielding sword. Nor can it serve as "a talismanic test.” (Kingsley Books v. Brown, 354 U. S. 436, 441.)

The decisions of the Supreme Court of the United States have not condemned licensing of films in advance of exhibition as a contravention of the First Amendment. In each case that court has merely held that the standard used was not sufficiently definite and certain to satisfy the minimum requirements of due process (see, e.g., Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, supra [“ sacrilegious ” vague]; Superior Films v. Department of Educ., 346 U. S. 587 [“ harmful ” too indefinite]; Matter of Commercial Pictures Corp. v. Board of Regents, 305 N. Y. 336, revd. sub nom. Superior Films v. Department of Educ., 346 U. S. 587 [“immoral” indefinite]). In the Burstyn case (supra) the Supreme Court reiterated the caveat set forth in Near v. Minnesota (283 U. S. 697): “To hold that liberty of 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. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas ” (pp. 502-503). That much this court recently declared (see Brown v. Kingsley Books, 1 N Y 2d 177, 184). Furthermore, as the Legislature is not constitutionally limited in its choice of remedial processes in dealing with proscribed conduct, we fail to see why the statutory procedure followed here should be declared unconstitutional simply because we are dealing with a motion picture (see Kingsley Books v. Brown, 354 U. S. 436, supra). In the absence of any definitive authority, we should not indulge in the assumption that this State’s motion picture licensing system is unconstitutional when applied to deny a license to a motion picture on any ground other than obscenity. Particularly is this true where to do so would be to deprive the State of a valuable weapon for combating conduct detrimental to its well-being. Nor do we find persuasive the reasoning that we may longer preserve this licensing system by judicially nullifying its operation and effects. To preserve its form while denying its substance would be to gain nothing.

Insofar as any question of prior restraint is concerned, it is interesting to observe that the objectives, procedures and standards established by section 22-a of the Code of Criminal Procedure, which was recently upheld as constitutional in the Kingsley case (supra) are similar to and parallel sections 120-132 of the Education Law when we consider them against the facts and procedure involved in this case.

The license was not denied without thorough consideration. The picture was reviewed by a reviewer, by the acting director of the Motion Picture Division, and by a committee of three members of the Board of Regents consisting of two prominent members of the New York Bar, and the present chairman of the board. Thereafter the determination of all the reviewers was approved by a unanimous vote of the Board of Regents. The finding was the same as it would be if the defendant had been arraigned under the provisions of section 1140-b of the Penal Law. Since the petitioner admitted the acts in the picture Avere the acts of totally nude persons in a nudist camp, there was no need of proving the fact beyond a reasonable doubt. The usual procedural safeguards of judicial proceedings were complied with. The petitioner has had two appellate reAdews. Surely no one can challenge the competency of the prominent and experienced citizens comprising the Board of Regents or, for that matter, the trained reviewer and acting director of the Motion Picture Division. This is not a case involving the sole judgment of a police commissioner or a local official subject to local prejudice. The motion picture is the eAddence. It speaks for itself. It cannot be cross-examined. It was reviewed carefully and thoroughly.

Under such circumstances, the statute in question, as construed, is operative in this case. The motion picture Garden of Eden ” is a class of speech, the prevention of which does not raise any constitutional problem. Petitioner would convert an issue of law enforcement policy into a spurious contest over constitutional rights, but it ignores the fundamental doctrine that the State has inherent police power to prevent a shoAving of a film Avhich it classifies as indecent by a specific statute, because it displays persons admittedly and pridefully exposing their private parts to those of the opposite sex whose private parts are similarly exposed. The police power extends to and includes “ everything essential to the public safety, health and morals ” (Lawton v. Steele, 152 U. S. 133, 136; see Berman v. Parker, 348 U. S. 26, 32, 33). “ The police power does not have its genesis in a.written constitution. It is an indispensable attribute of our society, possessed by the state sovereignties before the adoption of the Federal Constitution, Mayor, &c., of the City of New York v. Miln, 11 Pet. 102, 9 L. Ed. 648 (1837) ”. (Schmidt v. Board of Adjustment of City of Newark, 9 N. J. 405, 414.) A commentator on personal freedom, John Stuart Mill, in his essay “On Liberty ”, says: “Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming thus within the category of offences against others, may rightfully be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so.”

Moreover, variant mediums of expression are not subject to universal rules. Taking into consideration the time, place and mode of expression, limitations upon the individual’s right of free speech •—• including prior restraint — when imposed by a State is not necessarily unconstitutional (cf. Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572). Where particular means of expression are involved, there are areas where the State may previously restrain the exercise of free speech and it will merely be considered as a reasonable accommodation between the individual’s right and a conflicting interest which a State is entitled to,make under the circumstances (see Cox v. New Hampshire, 312 U. S. 569). The unrestricted invalidation of statutes or ordinances upon constitutional grounds, and without any examination of their reasonableness, could eventually endanger the right of free speech itself by making it ridiculous and obnoxious. For example, the Supreme Court has recognized that the use of audio amplification devices, even when used for the purpose of making utterances on religious subjects, may be previously restrained by a police commissioner under a licensing statute where the statute is so narrowly drawn as to regulate the hours or places of use, or the decibel volume to which they may be adjusted, so that the grant of the license would not rest upon any arbitrary decision of the police commissioner (see Saia v. New York, 334 U. S, 558, 560, 562). Similarly it has recognized that motion pictures are not necessarily subject to the precise rules which govern other methods of expression (see Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 503, supra).

In view of this we think that as construed the statute in question is a reasonable regulation upon motion pictures as medium of expression. It does not previously restrain speech with respect to nudism — in fact, there is no objection to any of the dialogue. It does not even make illicit or restrict the portrayal of nude people or nudist camps per se. It merely prevents the showing of nudists of opposite sexes exhibiting their privates to each other. It is the viewing of this specific form of nude exhibitionism which the Legislature found harmful and necessary to regulate. “ To say that representation of criminal activity is criminal is to abolish the drama and the novel in one stroke ” is to sound a false alarm and to incite unrealistic fears. When the final curtain is rung down the murdered Caesars and Desdemonas step before it, take their bows and receive their plaudits. No penal statute pertaining to crimes against person, property or habitation have been contravened. But when we turn to specific forms of nude conduct, the situation is otherwise. Aside from the question of degree, the resulting harm is the same whether the exhibition is in person or portrayed. In fact, by portrayal it may even be heightened. • With the present advances of the art of motion picture photography, this is true with that medium. The exhibition of the actions of the nudists in the ‘ ‘ Garden of Eden ’ ’ is actually more life-like than their presence upon the stage. As it is constitutionally within the police power to regulate the actual presence of a nudist camp upon a public stage within this State, we fail to see how it would not be constitutionally within the police power to regulate a more alluring portrayal of those actions upon the screen particularly under such a narrowly construed statute. Civil liberties are not unrestricted rights which may at all times and under all circumstances be exercised in spite of the reasonable restrictions of the society upon which they depend for the protection of their free existence. As Chief Justice Hughes, writing for a unanimous Supreme Court, declared: ‘ Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” (Cox v. New Hampshire, 312 U. S. 569, 574, supra.)

The order of the Appellate Division annulling the determination of respondents-appellants and directing the licensing of the film should be reversed and the petition dismissed.

Conway, Ch. J. (dissenting).

Powers of government are divided among the Executive, the Legislative and the Judicial branches of our government. Those powers come by grant of the people as evidenced by the preambles to our National and State Constitutions. It would be unfortunate were one of the branches of government to disregard either of the other branches and fail to exercise self-discipliné and to recognize proper limitations upon its own power. It would be even more unfortunate were members of the Judiciary to disregard the will of the people — the author of their being — and to determine that the standards set up by the duly constituted representatives of the people, to protect the people, were not proper standards in their view and to use their power to declare statutes unconstitutional which have been passed by the Legislature and approved by the Executive because those members of the Judiciary would not pass or approve such statutes so desired by the people. The result could be a government by one of the branches of government in defiance of the peoples’ will and by means of semantics. It is thoughts such as these which, in the setting of the facts herein, have compelled me to concur in the opinion of Judge Burke.

Opinion by Desmond, J.; Dye and Fuld, J J., concur except as to the discussion of the constitutionality of the statute, each in a separate opinion; Van Voorhis, J., concurs with Desmond and Fuld, JJ.; Burke, J., dissents in an opinion in which Froessel, J., concurs and in which Conway, Ch. J., concurs in a separate opinion in which Froessel and Burke, JJ., concur.

Order affirmed.  