KINGSLEY PICTURES CORP. v. REGENTS

Print this transcript Transcript: 

Argument of Ephraim London

Chief Justice Earl Warren: Number 394, Kingsley International Pictures Corporation, Appellant, versus the Regents of the University of the State of New York.

Mr. London, you may proceed.

Mr. Ephraim London: May it please the Court.

We are here on appeal from an order of the New York State Court of Appeals.

The order sustained a ban of a moving picture.

The name of the picture is Lady Chatterley's Lover based on a novel by D.H.Lawrence.

Under the laws of the State of New York, a film may not be shown in a public theater until it has first been shown to a Board of Censors known as the Motion Picture Division, and it is approved and licensed by that division.

The Motion Picture Division is an agency of the Department of Education which is governed by the Board of Regents and, hence, the appellees in this case are the Regents of the State of New York.

Originally, when the film was submitted to the Motion Picture Division, the division indicated that it would not license the film unless three short sequences, taking about two minutes in all, were deleted.

The appellant, the distributor of the film who owns the exhibition rights, refused to make any deletion and appealed, as he was required to do, to the Regents.

The Regents decided that not only were the three short sequences immoral, but that the whole picture was immoral.

An appeal was taken from a -- from the determination of the Regents to the Appellate Division of the Supreme Court of the State of New York, and the Appellate Division held the statute, under which, the film was banned to be unconstitutional.

The regents then appealed to the New York State Court of Appeals, and that court reversed the decision of the Appellate Division.

Now, there is no majority opinion in the Court of Appeals of the State of New York.

Three of the judges ruled that the statutes in question were constitutional.

Three voted for -- to affirm the lower court which held the statute unconstitutional and one judge who cast the deciding vote stated that he wasn't sure whether the statute was constitutional or not and that this Court ought to decide the question, and it is now here before you.

Now, we are seeking various kinds of relief.

We first seek a declaration from this Court, as we did below, by the way, that the entire film licensing system be declared unconstitutional as a prohibited form of prior restraint of communication.

If that relief is not granted --

Justice John M. Harlan: You mean across the Board, not --

Mr. Ephraim London: Yes, Your Honor.

Justice John M. Harlan: -- not as applied in this case but across the Board?

Mr. Ephraim London: Across the Board, without any question relating to the application in this particular case.

Justice Potter Stewart: Without any question relating to the verbal formulation in the New York statute?

Mr. Ephraim London: Without any question relating to the particular formulation of this statute, Your Honor.

Justice Potter Stewart: Even, in other words, your first contention, and I understand it's your first broad contention, even if the New York statute hadn't provided that obscene films could be restrained --

Mr. Ephraim London: It is our position, Your Honor, that if the statute said, merely, that films shall be denied a license if they are obscene --

Justice Potter Stewart: Yes.

Mr. Ephraim London: -- and all other films shall be granted license --

Justice Potter Stewart: Yes.

Mr. Ephraim London: -- that would still be unconstitutional.

Justice Potter Stewart: That's your first --

Mr. Ephraim London: That is our main contention.

Justice Felix Frankfurter: It's not without a theory that this Court ought to decide the broadest possible ground, but the case -- all you meant is that this permits them, is that right?

Mr. Ephraim London: I do, Your Honor, but I do in the light of the fact that their -- the Court has decided the case since before this one arose on the narrowest possible grounds.

Justice Felix Frankfurter: But that wouldn't satisfy you.

Mr. Ephraim London: It would not, Your Honor, if we can possibly get a determination, because there's been nothing but confusion in the lower courts.

I have pointed out that the -- that the case of Burstyn against Wilson, which was the first case in which the Court held that movies were a form of communication within the protection of the First Amendment, has been interpreted in as many possible ways as there are courts, almost, at least four or five different interpretations have been --

Justice Felix Frankfurter: The difficulty is the same.

It's confusion.

Mr. Ephraim London: Pardon me, Your Honor?

I didn't --

Justice Felix Frankfurter: Its difficulty for the lower courts to decide a particular case, the same thing as such chaotic confusion, that we ought to make it easier for them.

Is that it?

Mr. Ephraim London: I think that if the Court were to make clear its position on the question of whether or not the licensing laws are constitutional, the lower courts would -- would certainly be guided by it.

As a matter of fact, some of the courts have interpreted the decisions of this Court as meaning that all such licensing laws are unconstitutional.

And, as a matter of fact, as I read Your Honor's opinion in the Kingsley Book case, that might almost seem to lead to the same conclusion.

Justice Felix Frankfurter: The conclusion is the whole scheme must be unconstitutional?

Mr. Ephraim London: Yes, Your Honor.

Shall I read the particular phrase?

Justice Felix Frankfurter: I don't want my errors so glaringly exposed.

Mr. Ephraim London: I hope that Your Honor isn't confirmed in the opinion that that was an error.

The -- if the relief sought, namely, that the entire system is unconstitutional, is not granted, we seek a determination that the statute is void and that it authorizes the suppression of a film on the ground that it is immoral.

Now, there are two prongs to that argument.

The first, that the term “immoral” as defined by the legislature is so vague as to permit the suppression of speech which is protected by the constitution and, for that reason, it offends against the Due Process Clause.

And, the second prong for that point or argument is that the statute, as interpreted, permits the suppression of ideas, the suppression of advocacy and it is, for that reason, a violation of the constitutional guarantee of freedom of speech.

Now, if that relief is also denied, we seek an order reversing the ban of this particular film on the ground that it is not of a type of film that may be suppressed, that it has social values and social importance that the constitution protects, and that far-outweighs any possible legal objection to the film.

Now, with respect to the first point, that the entire licensing law is invalid.

Chief Justice Earl Warren: Don't you think we better start with the last point first?

Mr. Ephraim London: Well, Your Honors haven't seen the film itself.

Chief Justice Earl Warren: Well, aren't you going to argue that last point?

Mr. Ephraim London: Yes, Your Honor.

I was going to -- I was going to refer to it but it's -- the last point is a point relating to the -- to the meaning of the film, the values of the film, and I think that the argument, Your Honor, should -- must necessarily be the preface because I don't think that the Court will be able to follow the argument -- a prolonged argument without having seeing the picture.

Chief Justice Earl Warren: Well, I -- I -- my only thought was that you might -- you might argue your broad constitutional question last.

Mr. Ephraim London: In view of the limitation of time, I will, if Your Honor put -- if Your Honor wishes, proceed to the --

Chief Justice Earl Warren: Well, it's a -- it's just a normal procedure is all, but you -- you go ahead any way you want to.

Mr. Ephraim London: Thank you, Your Honor.

I would like then to proceed on in arguing the broadest possible question.

Now, the brief submitted by the Regents says, in effect, in -- in discussing this question that -- well, there they go again raising that same old First Amendment issue, which has been presented before and I don't think we need to apologize for resorting to our fundamental rights and the sources of those rights, when the fundamental right of free speech has been denied.

The question was deliberately left open in the case of Burstyn against Wilson.

In that case, the Court characterized the very law that's under consideration here as unbridled censorship, as a form of prior restraint to be especially condemned, and stated that the State of New York is under a heavy burden to demonstrate the necessity for allowing any such censorship.

The Regents have interpreted that decision to mean that this Court has countenanced and sustained the validity of prior censorship laws.

The opinion of Judge Conway in the court below seems to have read that the -- I mean, in the opinion, Judge Conway seems to have read the Court's opinion in the Burstyn case in precisely the same way.

I submit, Your Honor, that there is no language in the opinion that would justify that conclusion.

And, in fact, every case involving moving -- moving picture licensing laws that has come before the Court since that time, and there have been five, in every case, the Court has reversed the determination suppressing the particular film.

The reason that we find the law -- the licensing law particularly offensive is it one must, in order to exercise his right of communication, and this Court has recognized the right to show a film or has recognized films as a mean of communication, is that one must come hand in hand in order to secure permission to exercise his right of expression and the public may not be allowed to see a picture or to receive a communication until it has been -- it has been certified as fit for approval by this censorship body.

Under the law of New York, as it is -- now exists, there is very little right of review of a decision of the Administrative Board in the respect that its determination of the facts cannot be reversed unless its determination is clearly unreasonable.

The burden is placed on whoever owns the rights to the picture to show that this determination of the -- of the Regents or the Administrative Board was unreasonable, and it's an impossible burden to sustain.

And, I believe, in the history of the State of New York, it has been sustained only once and the question of fact.

This law has been, in effect, I believe, since about 1911 in various forms.

I may not be sure that -- I may not be correct about the date, but it has been in effect for a very long time and only once was there a reversal on the facts.

There had been several reversals based on the finding that the law was, in part, unconstitutional.

But, now, with respect to this burden that is placed on the one who would show his picture, I think it's best illustrated by this particular case.

We have here a finding that the film is immoral and, according to the Court, the determination of whether or not it's immoral must be made in accordance with the mores and standards of the community.

The distributor of the picture must, to convince the Court that the determination of the Regents of the Censorship Board was improper and unreasonable, show that the community standings are different that the -- that the picture is not really immoral in accordance with the community standards.

In short, he must prove the community standards or reaction to a picture which he cannot show to the public or to the community.

Even if he were permitted to show the picture to the community, how is one to prove what the community standards are with respect to a particular problem?

How can that burden of proof be sustained by the owner of a film?

Justice Potter Stewart: Well, Mr. London, the question isn't quite so broad, as you indicated, is it?

It has -- didn't the legislature of New York, in Section 122-a, try -- at least try, perhaps tried its best, to limit and further define the adjective “immoral”?

Mr. Ephraim London: They did and, as matter of fact, they redefined it in the terms that this Court found unconstitutionally vague.

May I address myself to that question, Your Honor?

Justice Potter Stewart: Certainly.

My only suggestion here, at least my suggestion, is this, that the word “immoral” doesn't mean something contrary to the mores of society with respect, say, to honesty or such things as that.

It's -- it's at least confined to one area of immoral -- immorality, is it not?

Mr. Ephraim London: It's confined --

Justice Potter Stewart: Sexually immoral?

Mr. Ephraim London: -- to the area of sexual --

Justice Potter Stewart: Yes.

Mr. Ephraim London: -- immorality.

Justice Potter Stewart: And, it's made more specific than that, isn't it -- isn't it, in Section 122-a?

Mr. Ephraim London: May I read that Section, Your Honor?

Justice Potter Stewart: I appreciate there are still --

Mr. Ephraim London: But before -- before reading it --

Justice Potter Stewart: -- serious questions, but the question is a little more narrow than you indicated by this question.

Mr. Ephraim London: I don't think so, Your Honor.

I would like to -- I would like to discuss, just for a moment, the background of Section 122-a.

In 1954, this Court had before it the picture -- the -- the case of Commercial Pictures Cooperation against the Regents in which the New York statute was involved.

The statute, as it then read in 1954 and as it's germane to this case, provided that a license would be -- would be issued if -- unless a picture was found immoral, and just the word “immoral” was used.

The New York Court of Appeals, in passing on the statute and on the -- in that particular case, ruled that the term “immoral,” as used in the statute, was limited to sexual immorality.

This Court, of course, was bound by the interpretation or construction of the law that was placed on it by the highest Court of New York.

As a matter of fact, counsel for the Regents, who also appear in this case, argued to this Court that it was bound by the determination of the Court of Appeals and that the word “immoral,” as used in Section 122 of the law, meant sexually immoral.

Within four months after the decision or the opinion of this Court was handed down, the New York State legislature enacted Section 122-a, purportedly, to cure that vagueness, to make the statute definite.

And, now, may I read it?

It defines the term “immoral,” as used in Section 122, to mean “of such a character.”

I'm sorry.

It says that the term “immoral” shall denote a motion picture, film, or a 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 of desirable, acceptable, or proper patterns of behavior.

Now, counsel for the Regents in the Court below conceded that the words “erotic” or “pornographic” didn't really lend much to the meaning or to the precision of the word that it didn't give it much clarity.

But, counsel argued that we need not concern ourselves with these words which are just as vague as the word “immoral,” but we are to limit ourselves to the consideration of the following language “or which portrays acts of sexual immorality,” etcetera, “as desirable, acceptable, or proper.”

It is using the term “sexual immorality.”

It says all we have to do now is find -- is to -- is to show that a particular picture portrays an act of sexual immorality as a proper pattern of behavior, and that is very, very precise and clear and definite.

In fact, counsel says that the statute couldn't possibly be made more definite.

Now, how are you going to put -- how are you going to determine whether or not a picture portrays an act of sexual immorality in a favorable light if you don't know what sexual immorality means?

And, this Court had, in effect, held that the term “sexual immorality” was unconstitutionally vague.

It is employing exactly the same term that this Court disapproved.

I might call attention, too, in this particular --

Justice Felix Frankfurter: Do you think that phrase is more vague or less guiding than obscene in the state -- in your general obscenity statute in New York?

Mr. Ephraim London: Your Honor, the term “obscene” has been given some definiteness by the Court's determinations.

That is not --

Justice Felix Frankfurter: How --

Mr. Ephraim London: -- true of the --

Justice Felix Frankfurter: How --

Mr. Ephraim London: -- of the word “immorality”.

Justice Felix Frankfurter: How has it been given except as whether to sell certain books or pamphlets or pictures takes the risk of having a jury or judge decide that it is obscene?

Has it been given any greater definiteness than that?

Mr. Ephraim London: Your Honor, if I may address myself to that question which I think is -- is unrelated to the question of the vagueness of the particular term “immorality”.

Justice Felix Frankfurter: Why is it under the --

Mr. Ephraim London: Because the -- the determination in the case that you are speaking of is made by a jury, usually, or by a judge in proper judicial proceedings.

This relates to the question of whether or not the licensing statute or a licensing law is improper because of the fact that an administrative determination is made.

Justice Felix Frankfurter: I understand the difference you make, but that relates not to the criterion for determination but to procedure by which it is to be determined.

Mr. Ephraim London: Well, I -- I think --

Justice Felix Frankfurter: That's a very different question for me.

Mr. Ephraim London: I think --

Justice Felix Frankfurter: In other words, if that's the only distinction, then New York could -- could reenact.

Supposed this statute is thrown out and found invalid, to meet your point, the New York legislature when -- may be called in a special session and amend this by saying such a determination must be made at special term in New York, and that would take care of your objection.

Mr. Ephraim London: Well, as a -- if --

Justice Felix Frankfurter: There are two questions there.

Mr. Ephraim London: Yes, Your --

Justice Felix Frankfurter: The substantive content there and mode for determining the content.

Mr. Ephraim London: Your Honor, I -- I do not, for a moment, question the right of the State of New York to -- to make provision for the punishment of an obscene film after it is shown.

What we are questioning here is the right to prevent the showing altogether.

Justice Felix Frankfurter: I understand that, too, but --

Mr. Ephraim London: And -- and I make --

Justice Felix Frankfurter: But, on bearing of -- of vagueness, the statute doesn't become more or less vague regardless of one tribunal rather than another.

It has to determine the content of the “vague” term.

So, that doesn't preclude the fact that the tribunals -- the nature of the tribunal and the mode by which it reaches conclusion may, in itself, carry vices of safeguard that may make the difference.

Mr. Ephraim London: I -- yes, Your Honor, but I -- I think that -- that there are other differences.

I -- I would like, if I --

Justice Felix Frankfurter: I'm just asking, on the question of vagueness --

Mr. Ephraim London: Yes, Your Honor.

Justice Felix Frankfurter: -- whether sexual immorality is less vague than lewd, obscene, or lascivious in the federal statute or a comparable New York term and comparable terms in 48 states.

Mr. Ephraim London: This Court has held that the term “obscene” has a sufficiently precise meaning so that the term, when used in the statute, is enforceable in a penal statute.

I think it's --

Justice Felix Frankfurter: If this Court should sustain the phrase “sexual immorality” as being sufficiently concrete, the same thing would be able to be said of that phrase.

Mr. Ephraim London: I -- I think a difference must be drawn, again, between the penal statute which punishes after publication --

Justice Felix Frankfurter: That goes to the question of prior restraint.

Mr. Ephraim London: Yes, Your Honor.

Justice Felix Frankfurter: That would go to the question of the relative vagueness of content of terms like “obscenity” --

Mr. Ephraim London: No, but I -- I --

Justice Felix Frankfurter: -- and against sexual immorality.

Mr. Ephraim London: I think -- I think, though, that that question must be -- must be bore in mind in considering the tribunal before which or the tribunal that must pass on the question for the simple reason, as pointed before, that the tribunal is supposed to pass -- is supposed to -- to enforce the community mores, not the personal mores of the -- of the person enforcing the law or administering the law.

Justice Felix Frankfurter: I'm not suggesting that, because we have sustained criminal statutes outlawing obscenity therefore, tomorrow, this Court would be bound by those decisions, that it follows precedence, to sustain prior restraint of books, allegedly.

I -- I'm not suggesting the things of the case in a different case that you well know.

Mr. Ephraim London: Precisely.

Now, in connection with the meaning of the term “immoral”, there's been some attempt in the -- in the brief of the Regents to equate “immorality” with “obscenity” and to indicate that this particular picture is an obscene picture.

The court below did not find the picture obscene.

As a matter of fact, the -- the majority of the judges in the court below held that it was not an obscene picture with it --

Justice Felix Frankfurter: But if it's more concededly obscene, you would still be here making the argument that it cannot be restrained by our prior determination.

Mr. Ephraim London: Precisely, Your Honor.

I would still --

Justice Felix Frankfurter: They are different questions.

Prior restraint is one thing and whether there can be prior restraint or either consequences for obscenity is another thing.

Mr. Ephraim London: Precisely, Your Honor.

I -- I had tried to -- to say that and I hadn't made myself clear, but I certainly believe that the two questions are -- are that there are two separate questions despite the relationship that exists between them.

May I --may I, in the brief time that's left, speak of the meaning of the -- of the objection to the use of the word “immorality,” as applied in this particular case, on the ground that it is suppressing an idea.

What the Regents, in effect, say is that this picture must be banned because it, by example, approves adultery.

Now, we don't concede for a moment that the picture does in fact approve adultery or condone it.

We believe that the entire meaning of the picture has been missed or deliberately ignored by the Regents.

Justice Felix Frankfurter: Would you mind stating --

Mr. Ephraim London: But --

Justice Felix Frankfurter: What you conceive to be the meaning of the picture?

Mr. Ephraim London: I think that the picture relates, Your Honor, to the -- to the dehumanizing effects of industrialization and mechanization in modern life.

I think this is the real meaning of the picture, the real meaning of the book.

I think, its made quite clear, almost everybody in the picture is a symbol, a symbol of mechanization on the one side, or a symbol of the human man who is unaffected by the industrial life on the other.

I have tried to -- to make that clear in my brief.

But, to get back for just a moment to the question of the suppression of an idea, it is our position that even if the picture did say “we approve adultery.

We believe in it,” it may not be suppressed for that reason.One has a perfect right to state, through any medium, that he disapproves of marriage, that he disapproves of marital fidelity, that he -- that he disapproves of our entire social mores.

And, the constitution protects that right.

The constitution protects the most offensive idea.

The constitution protects the statement, for example, that the form of government is improper or that the constitution is not -- is a document that should be ignored.

I think the Yates and Spiezio cases had made it quite clear that no matter how abhorrent the doctrine, so long as the expression is confined, as it is in this case, to the expression of an idea that it is perfectly legitimate and proper to make the statement of the idea.

And, may I, in conclusion, again, ask the Court to consider the broadest question even though, in ordinary circumstances, it tends and prefers to limit itself to the narrowest question that is presented.

I think that, in an issue relating to the First Amendment, the Court may, of course, consider the question on the broadest grounds.

It has stated before this-- the -- the question has come before the Court a number of times.

There has been a multiplicity of suits and there will, no doubt, be as great a number before a sentence if the Court does not make its position clear on that issue.

Thank you.

Chief Justice Earl Warren: Mr. Brind.

Argument of Charles A. Brind Jr.

Mr. Charles A. Brind Jr.: Chief Justice Warren and Gentlemen of the Court, I recognize the hour is late and all I think I should do at this time is to present to you what I think the merits or the issues that are present here, leaving through the brief, and particularly, from Judge Conway's very carefully thought out opinion in this case, the arguments on the law.

I think I could take care of the case in handling it that way and I think it may be helpful to the Court for me to do just that.

Now, in the first place, I think its desirable for me, once again, to tell the Court a little bit about the Board of Regents of the State of New York.

The Board of Regents are a unique body.

I do not know that, in any other state, we have a Board of Regents which has entire jurisdiction over all educational matters in the entire state.

The Board of Regents has jurisdiction over all schools, all colleges, all museums, all libraries, adult education, kindergarten education.

And, the -- and the Court -- and, the legislature, just last year, has told us that we also have jurisdiction over children with I.Q.starting at zero all the way up to 21.

Justice John M. Harlan: Experts on life?

Mr. Charles A. Brind Jr.: Experts on life.

Justice Potter Stewart: Mr. --

Mr. Charles A. Brind Jr.: Yes, Your Honor.

Justice Potter Stewart: -- Brind, how -- how large a body is the Board of Regents?

Mr. Charles A. Brind Jr.: The Board of Regents consists of 13 members.

They are elected by the Board of -- by the legislature once each year and, consequently, they each have a term of 13 years.

Justice Potter Stewart: Do they come from all over the State?

Mr. Charles A. Brind Jr.: They come from all over the State.

They come from every walk of life.

There -- there are lawyers, there are doctors, there are farmers, there are bankers, there is no -- no restrictions, just happens to be the fellow that happens to be appointed.

Justice William J. Brennan: They just leave you on it?

Mr. Charles A. Brind Jr.: What happens is this, in connection with the procedure.

We have a licensing bureau which examines this picture.

If the bureau finds no problem, the picture is then licensed.

If there is a problem, then the matter goes to the Regents.

The Regents have a subcommittee to view it.

If the subcommittee thinks it's desirable for the whole Board to view it, the whole Board will view it.

I think most of the members of the Board of Regents viewed this particular picture where the --

Justice William J. Brennan: Does the subcommittee determine if a license is to be denied or lets all the Board view it before that's determined?

Mr. Charles A. Brind Jr.: The Board has the power, I think, to act on the recommendation of the Committee for which it is so --

Justice William J. Brennan: Without --

Mr. Charles A. Brind Jr.: -- to do.

Justice William J. Brennan: Without, themselves, viewing it?

Mr. Charles A. Brind Jr.: That is so, if they wish so to do, but they, themselves, have the right to look at it if they want to.

Justice William J. Brennan: What is their practice, do you know?

Mr. Charles A. Brind Jr.: It depends a little bit upon the -- what they regard as the seriousness of the picture, Your Honor.

If the picture is one that seems to be of a picture like this that needs consideration, they all look at it.

Now, what I'm building up to this to say to Your Honors about the Board of Regents, in dealing with this matter, is this.

That, in 1927, there were a great many commissions and bureaus all over the State of New York and the people thought that that was not the way to operate in that State.

So, they passed a constitutional amendment which said that there could be only 18 state departments and that every bureau, commission's bureau, and everything else had to be assigned to one of those departments.

The Motion Picture Commission, as originally had been set up, was a separate organization and, after this constitutional amendment, it became essential to determine where that Commission should be assigned and there was a great deal of discussion in its assignment.

The legislature finally assigned to the Education Department, and I think one of the difficulties, perhaps in my earlier arguments here and in the discussion of this case as we've had it heretofore, has been that I don't think any of us are recognizing the fact that when they put this thing in the Education Department of the State of New York, they were treating this matter as an educational matter.

That when they said, “you license motion pictures,” they were the -- saying the same thing to the Board of Regents as when they said to the Board of Regents “you license a trade school or you license a doctor or you license a -- some procedure in the field of education irrespective of the area, whether it's a nursery school or whether it's hotel education.”

Justice William J. Brennan: This picture is not permitted to be shown to anybody, is it?

It isn't merely people who are going to the public schools or to educational institutions in New York.

It can't be shown to anybody.

Mr. Charles A. Brind Jr.: Yes, and what I'm following through on that --

Justice Hugo L. Black: That's your argument, exactly.

Mr. Charles A. Brind Jr.: -- on that is this.

When we license a trade school, only those people who want to run the trade school can operate it without the license.

Now, anybody in the State of New York would be dealing with that thing.

When we license a motion picture, we have a licensing procedure and, in all of these things, the legislature has set up standards for licensure.

And, what I'm saying here now is, is I think we're failing to appreciate the fact that the legislature in New York has tried to set standards for trade schools, standards for colleges because no college can function in the State of New York without a license from the Board of Regents, standard for an educational thing which the legislature has now decreed, motion pictures is an education thing.

And, the legislature has set up standards for the licensure of motion pictures.

Justice Felix Frankfurter: Mr. Brind, may I ask whether differentiations are made or licenses may fall into licenses for mature people, whatever the line is, from pictures may be licensed to be seen only by adult, pictures could be seen only by children or also by children, anything like that?

Mr. Charles A. Brind Jr.: Mr. Justice Frankfurter, that has been under discussion but the legislature has not seen fit to draw any distinctions.

Justice Felix Frankfurter: So that, when you -- when a picture is licensed, it may be exhibited in any picture house in the State, is that it?

Mr. Charles A. Brind Jr.: That's right.

We have now jurisdiction to control it, and that is correct and that's the way the thing works.

Justice Potter Stewart: If it is licensed, it doesn't -- your law provides that nobody can be prosecuted for exhibiting it.

Mr. Charles A. Brind Jr.: That's right.

It's -- the --

Justice Potter Stewart: And, if it's not by licensed --

Mr. Charles A. Brind Jr.: -- the penal law --

Justice Potter Stewart: -- your provision is --

Mr. Charles A. Brind Jr.: -- provides --

Justice Potter Stewart: -- is a criminal offense, isn't that right?

Mr. Charles A. Brind Jr.: The penal law provides that Your Honor is correct.

The penal law of the State of New York provides that once the Commission -- the Board of Regents license a motion picture, the motion picture can be shown anywhere and is not subject to prosecution under the penal law.

And, the same thing would be true with the trade school, and the same thing would be true with anything else that we license.

So --

Justice William J. Brennan: I don't quite see how far that your argument cuts.

What if the New York legislature decided that -- to put the censorship of newspapers under their Department of Education?

Would -- would that, in your view --

Mr. Charles A. Brind Jr.: Well, it might if they -- if --

Justice William J. Brennan: -- authorize prior censorship of newspapers?

Mr. Charles A. Brind Jr.: -- if -- if they -- if they set up standards -- if they set up standards.

I can't conceive what that they would do that.

I think it's a question that I would, from my viewpoint, regard as academic, but there was a feeling on the part of the people in the legislature that there ought to be standards that somebody should pass upon in dealing with motion pictures.

Justice William J. Brennan: What about comic books?

Mr. Charles A. Brind Jr.: There's been discussion of comic books in the legislature.

Justice William J. Brennan: Giving that over to the Board?

Mr. Charles A. Brind Jr.: That's right, and the Board of Regents has no enthusiasm for that and legislature has not passed that kind of a procedure yet.

So that --

Justice William J. Brennan: I'm just having a little difficulty following the significance of the fact that this is -- this has educational objectives.

I don't quite see the relevance here.

Mr. Charles A. Brind Jr.: My only argument that, I think, I'm presenting is that, by putting it in the Education Department and assigning it to the Board of Regents, the legislature must have regarded it as an educational matter and that the Regents, in passing upon it, were passing upon it within the area of the constitutional authority to deal with motion pictures or to deal with educational matters only because they have adult education, they have kindergartens, they have everything else under their jurisdiction.

Justice William O. Douglas: Did they let the book be published in New York?

Mr. Charles A. Brind Jr.: The Regents have no jurisdiction in connection with the matter of books, Your Honor.

Justice William O. Douglas: Would New York, through other agencies, allow the book to be distributed or sold or published?

Mr. Charles A. Brind Jr.: I do not think that there is any -- any body that is given any authority to deal with books, nor is there anybody that's given authority to deal with what actually transpires in the theater, nor is there anybody given any jurisdiction over what happens on television.

Those things have not been dealt with one way or the other, but I do not think that those problems are before this Court.

Now, what I -- I want to try to do here, if I can, is to be sure that I get what I regard as a very narrow issue that's involved.

What I'm saying is that, like all of these other things, the legislature has set up standards.

If those standards are any good, why, then, the Regents ought to be able to apply them.If the standards are no good, why, then, we ought to go back to the legislature and get proper standards.

And, I think -- and, I think the legislature felt that that's what this Court was saying in all of these prior cases that when, in certain areas such as obscenity, and I do not think that rules out sexual immorality because I'm taking position here and Regents feel that there is no difference between obscenity and sexual immorality --

Justice Potter Stewart: Now, isn't there a very great difference in the -- for example, this -- this film is banned primarily, as I read Chief Judge Conway's opinion, because it glorified adultery.

It made adultery attractive.

The hero and heroine, at least the protagonists in this picture, are guilty of adultery.

Mr. Charles A. Brind Jr.: For both reasons, Your Honor, sexual immorality and, also, that one.

Justice Potter Stewart: And it's for that reason, rather than -- than that a movie was basically obscene, that this -- this picture was banned.

Mr. Charles A. Brind Jr.: I was --

Justice Potter Stewart: I contrast -- it's certainly doesn't tax the imagination to think of a possibility of a movie in which the protagonists were pictured as a man and wife, maybe even the actors playing the parts are man and wife and, yet, it's quite easy to imagine movies that would be obscene showing very moral conduct on that -- on their part, but of a -- but of an intimate nature.

Isn't that true?

Mr. Charles A. Brind Jr.: I think that's true but I think that, irrespective of whether they happen, I -- I think that the both are in this picture.

You got adultery and anybody that sees this picture has got to confess, notwithstanding my worthy opponent, that this glorifies adultery.

There isn't any question about that fact in this picture.

I think you've got that in the picture.

I also think, at the same time, that you have scenes, and I don't think it would made any difference whether they happened to be husband and wife or what they happened to be, they have scenes that lead up to sexual intercourse.

I don't think there's any question about that.

Justice Potter Stewart: It does make a difference from the point of morality if they are married or if this is extramarital conduct, doesn't it?

Mr. Charles A. Brind Jr.: I -- I think it adds one additional step if they're not married, but I think that you could have obscenity between people of opposite sex even though they're not married.

That's what I'm trying to say.

Justice William J. Brennan: Even though they are married.

Mr. Charles A. Brind Jr.: Even though they are married or even though they're not married.

I think it can be both ways, as far as exhibition to the public is concerned, yes.

So that, our -- our position, I think, is very clarifying is as I can answer that the legislature recognizing everything that this Court has said in the past that the need of a clear standard to guide the Board of Regents, and -- and I -- I think I should say, parenthetically, that this act of the Regent -- of the legislature was not the recommendation primarily of the Board of Regents.

This statute was drawn by the counsel for the Governor.

It was backed by the parties -- both parties in the legislature and passed unanimously.

And, while of course the regents endorsed it, as did every other educational group of the State, the school boards, the parent-teachers, and that's one reason why I think we're dealing with an educational problem because the people that are concerned with education came in and said, “we want this statute,” and the legislature passed it unanimously, trying to rectify and to set up a standard which they hope this Court would think met the minimum requirements for standards.

So, when they said sexual immorality and the discussion was this, that unless you try by outlining in specific detail the acts of fornications, that you can -- you've gone as far as you need to go when you use the term “sexual immorality.”

That that is a clear expression of language which everybody understands and which everybody knows.

Now, you cannot look at this picture without recognizing the fact that the scenes that have been pointed out in the record are scenes which are sexually immoral.

I don't think there's any question about it.

I don't think any normal person looking at that picture would feel it.

Justice Charles E. Whittaker: Now, we haven't seen this -- would it be a fair question in asking for you to determine, at least to understand more clearly, would you characterize this as a pornographic film?

Mr. Charles A. Brind Jr.: I would -- I would go that far, as far as these --

Justice Charles E. Whittaker: You would?

Mr. Charles A. Brind Jr.: -- things are concerned.

Now, there are -- there are worse films.

There are worse degrees of pornographic type of a film, but I have never seen a film that has been -- that it has been desired to show to the general public that goes as far pornographically, indecently, sexually, immoral -- immorally, obscenitively, if I can get my right adjectives in here, than this particular picture.

And then, in addiction to that, it does exactly, as Justice Stewart said a moment ago, it depicts adultery which everybody all through the years has recognized as improper.

It depicts that as a proper standard of behavior.

Now, when you get through that picture, you cannot fail to recognize that that's exactly what it does.

Now, the legislature has set that up of a -- as a standard.

And, this picture, on whether the term meets the standard or whatever I could say about it, but it certainly comes within the provisions of the language in dealing with that standard.

Now, if that standard is no good, why, then, the legislature has failed to do what it tried to do.

But if that standard is a reasonable one, and I think that the Regents were convinced that it was and I'm sure that the people that endorsed the decision of Justice -- of Judge Conway felt that it was, if that's a reasonable standard, then, I think, that it ought to permissible for the State of New York to decide that this is the type of procedure that we want followed in the licensure because, now, once again, I want to go back to that we're licensing motion pictures and we're licensing under a degree of a standard.

And, if they meet these standards, we have no choice.

What I said in my brief, and let me reiterate it here, is that the legislature and not the Regents have said that this picture should not be shown.

Justice Felix Frankfurter: Mr. Brind, as the licensing feature as such, unrelated to grandeur, obscenity, or immorality, as a licensing statute as such would attack on the ground that if it's beyond the State's power to inquire those pictures to be licensed just as it would be under state's powers to inquire the publication of a book to be licensed.

Mr. Charles A. Brind Jr.: Well, I assume --

Justice Felix Frankfurter: Does that --

Mr. Charles A. Brind Jr.: I --

Justice Felix Frankfurter: Does that come up to the Court of Appeals in New York?

Mr. Charles A. Brind Jr.: Well, I -- the same argument that's being presented to this Court, that there should be no --

Justice Felix Frankfurter: But I --

Mr. Charles A. Brind Jr.: -- prior restraint, if that's what you mean.

Justice Felix Frankfurter: Has the -- has the Court passed on the question that Mr. London that your Act should have decided that, as a general proposition, good pictures, bad pictures, filthy pictures, benign pictures, educational pictures, edifying pictures, whatever they may be, neutral pictures, the State cannot ask or cannot exert the power of licensure, has the Court of Appeals decided that question?

Mr. Charles A. Brind Jr.: I think they decided that case -- question --

Justice Felix Frankfurter: No, they didn't.

Mr. Charles A. Brind Jr.: -- in this case.

Justice Felix Frankfurter: Well, they -- they didn't say “we can license and we're not going to look at the nature of the picture.”

I thought Judge Conway's opinion looked a lot into the nature of the picture from his point of view, didn't he?

Mr. Charles A. Brind Jr.: Well, I'm afraid I don't follow your question then.

Justice Felix Frankfurter: Suppose this picture were as pure as a new born baby.

There are those who think the State has no business to require licensing.

Then, you say that no picture can be shown if it's the most exhilarating, the most edifying, and the most morality-supporting, no picture can be -- can be shown without being licensed thereto, is that right?

Is that law of New York?

Mr. Charles A. Brind Jr.: That's the law of New York.

Justice Felix Frankfurter: Now, what I want to know is, has anybody challenged the power of New York to require such licensing for an innocuous or a morally improving picture?

Mr. Charles A. Brind Jr.: Before the decision of this Court in the Burstyn case, there were a number of decisions by the Court of Appeals holding that there was nothing wrong with the licensing procedure in the State of New York.

Justice Felix Frankfurter: But -- but did those cases involve the abstract question or did they involve -- related to the particular picture, before the Court, licensing it?

Mr. Charles A. Brind Jr.: Well, I'd say both.

I mean, when each -- when each picture comes up for discussion, the argument was presented.

Justice Felix Frankfurter: I understand the argument was made but was it necessary for the Court to restrict its decision to the proposition --

Mr. Charles A. Brind Jr.: To the particular picture --

Justice Felix Frankfurter: -- good, bad, in different picture, you have no right to license?

Mr. Charles A. Brind Jr.: I think the Court held, Your Honor, that the licensing statute, generally, in the State of New York was constitutional.

Justice Potter Stewart: These cases arose, did they, in cases where a license was denied?

Mr. Charles A. Brind Jr.: That's correct.

Justice Potter Stewart: Well, then, in that case, they would necessarily involve the specific picture.

Was there any case, and this might -- I'm trying to get to Justice Frankfurter's question, was there any case in which a person just said, “I'm not going to bother submitting my movie to you, censors.

I'm just going to exhibit it,” and it -- and it was, in fact, a -- “because I don't believe in licensing”?

Mr. Charles A. Brind Jr.: I do not know of any case, Mr. Justice Frankfurter, where anybody tried to run the picture and forced us to arrest them and claim that we had no right to do that.

I -- I think that that is true, but I'm sure that, in all of the cases --

Justice Felix Frankfurter: You probably tried to enjoin them if they -- wouldn't you try if a -- if a movie house showed a picture without a license, you'd have power to go and get an injunction against the showing?

Mr. Charles A. Brind Jr.: That's correct, on the ground that they had no license --

Justice Felix Frankfurter: Yes.

Mr. Charles A. Brind Jr.: -- not --

Justice Felix Frankfurter: That will test it.

Mr. Charles A. Brind Jr.: -- not on the ground as to the type of picture, that would be true.

Justice Potter Stewart: And you could institute criminal proceeding, couldn't you?

Mr. Charles A. Brind Jr.: That's right.

Justice Potter Stewart: Regardless of the merits of that particular film.

Mr. Charles A. Brind Jr.: That's right --

Justice Felix Frankfurter: Is that question --

Mr. Charles A. Brind Jr.: -- under the present statute.

Justice Felix Frankfurter: -- has not been -- that -- that question, in its naked aspect, has not come up before your courts.

That's right, isn't it?

Mr. Charles A. Brind Jr.: Well, I think it's right if I know exactly what you mean.

I'm not too clear in my own mind as I --

Justice Felix Frankfurter: All right.

Mr. Charles A. Brind Jr.: -- understand it clearly myself, but as I -- as I understand the situation, the courts of New York State have passed again and again upon the right upon the constitutionality of any motion picture or the necessity of any motion picture being submitted for a license.

We have not had a case where there's any rejection ever been raised where our power to licensure has been challenged.

I think that's true in that type of a case.

Now, what I'm saying here is that we've got a procedure that we're dealing with, and the procedure has been turned over to the Regents, a general overall job of looking at pictures.

It could have been -- the legislature could have done it in any other way.

The legislature could have turned it over to the Supreme Court.

The legislature could have turned it -- left it to the ordinary procedures under the penal law, of course, they could.

But, I regard this as a method and an educational method because I do think that that has something to do with this problem, an educational method of entrusting to people who are dealing statewide with this whole problem of education to determine whether motion pictures should or not be licensed.

And, I say that the only problem that I see and the only problem in this case that I see, and I hope that it's a narrow one, as to whether this particular picture comes within the present statutory standards which have been laid down by the legislature.

Justice Felix Frankfurter: I noticed in Judge Voorhis' concurring dissent, he not only agrees with Judge Fuld who wrote the dissent, but he suggest it to be a remission for the Board to -- whether it would be a decision of certain so-called offensive features of this movie.

What I want to know is, is that done to them in the practical administration of the censorship law in New York?

Mr. Charles A. Brind Jr.: As I understood Judge Voorhis' decision, and maybe I don't quite understand it, but I thought that he -- that he agreed with the majority here but he felt that we should have used the word “obscene” rather than utilizing the term “sexual immorality” and --

Justice Felix Frankfurter: But he also said --

Mr. Charles A. Brind Jr.: -- that he thought it's better to go back to the Regents so that they could correct the record.

Justice Felix Frankfurter: And not merely the -- not only to put a different label on the ground on which he objected, but he said, “I would remit the matter to the Board of Regents to consider the aspect which I had mentioned, namely, the endeavor to file to exclude obscenity” and he would exclude those -- he would cut out -- cut out those portions of the movie, as I understood him.

Is that right?

Mr. Charles A. Brind Jr.: I think he was -- he agreed with the Regents that the -- that the things that we thought were objectionable should be eliminated.

That's the way I understood his decision.

Justice Felix Frankfurter: Leaving enough stands so that people would get whatever lesson they could get from it.

Mr. Charles A. Brind Jr.: I appreciate Your Honor for giving me this extra time, and thank you very much.

Chief Justice Earl Warren: All right.

I guess that's it.

We'll adjourn.