Commercial Pictures Corp. v. Board of Regents

113 N.E.2d 502, 305 N.Y. 336, 1953 N.Y. LEXIS 813

Opinions

Froessel, J.

The Motion Picture Division of the State Education Department and the Regents of the University of the State of New York have determined that the motion picture ‘6 La Ronde ” (revised), produced in France, is not entitled to be licensed for public exhibition, upon the ground that it is “ immoral ” and “ would tend to corrupt morals” within the meaning of section 122 of the Education Law of this State. The Appellate Division has confirmed the determination.

The film from beginning to end deals with promiscuity, adultery, fornication and seduction. It portrays ten episodes, with a narrator. Except for the husband and wife episode, each deals with an illicit amorous adventure between two persons, one of the two partners becoming the principal in the next. The first episode begins with a prostitute and a soldier. Since the former’s room is ten minutes walk from their meeting place on the street, and the soldier must hurry back to his barracks, they take advantage of the local environment. She informs him that “ civilians ” pay, but for “ boys like you it’s nothing ”. The cycle continues with the soldier and a parlormaid; the parlormaid and her employer’s son; the latter and a young married woman; the married woman and her husband; the husband and a young girl; the girl and a poet; the poet and an actress; the actress and a count, and finally the count and the prostitute. At the very end, the narrator reminds the audience of the author’s thesis: “It is the story of everyone ”,

Petitioner contends that the statute is invalid, in that it imposes a prior restraint upon the exercise of freedom of speech and press, relying principally upon Joseph Burstyn, Inc. v. Wilson (343 U. S, 495 [1952]), which overruled Mutual Film Corp. v. Ohio Ind. Comm. (236 U. S. 230 [1915]). In addition, it is contended that the standard here applied is too vague and indefinite to satisfy the requirements of due process. Respondent maintains that the Burstyn case (supra) is not controlling here, and that the standard in question is sufficiently clear and definite. The issues so presented may be posed thus:

(1) Are motion pictures, as part of the press, altogether exempt from prior restraint or censorship?

(2) Do the words “ immoral ” and “ tend to corrupt morals ”, in section 122 of the Education Law, viewed in the perspective of their legislative setting, fail to provide a standard adequate to satisfy the requirements of due process?

(3) Has the statute been properly applied herein?

1. Our answer to the first question must be in the negative, as it was in the Burstyn case in this court (Matter of Joseph Burstyn, Inc., v. Wilson, 303 N. Y. 242, 262; see, also, concurring opinion of Desmond, J., at pp. 263-264). That question was not reached by the Supreme Court of the United States in Joseph Burstyn, Inc. v. Wilson (343 U. S. 495, supra, pp. 502-503, 505-506), and the language employed therein aptly refutes the notion that all media of communication may be grouped under a precise and absolute rule: ‘‘‘ 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. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems.” Nor did Gelling v. Texas (343 U. S. 960), decided the week following on the authority of the Burstyn case (343 U. S. 495, supra), resolve the issue left open therein.

Insofar, then, as motion pictures tend to present their “ own peculiar problems ”, we think they may properly become the subject of special measures of control. If, as we believe, motion pictures may present a “ clear and present danger ” of substantive evil to the community (Schenck v. United States, 249 U. S. 47, 52), then the Legislature may act to guard against such evil, though in so doing it overrides to a degree the right to free expression (Poulos v. New Hampshire, 345 U. S. 395; Beauharnais v. Illinois, 343 U. S. 250; Dennis v. United States, 341 U. S. 494; Communications Assn. v. Douds, 339 U. S. 382; Kovacs v. Cooper, 336 U. S. 77; Chaplinsky v. New Hampshire, 315 U. S. 568; Schenck v. United States, supra; Fox v. Washington, 236 U. S. 273). As was said in Crowley v. Christensen (137 U. S. 86, 89): “ the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.”

The highest court in the land has recognized the right of the State to act to protect its citizens, even to the extreme of interfering with personal liberty, against the threat of disease (Jacobson v. Massachusetts, 197 U. S. 11). In that case, the court declared (p. 27): “ Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The same court later held that principle broad enough to permit the State to protect itself against the perpetuation of heredity strains of imbecility through sterilization {Buck v. Bell, 274 U. S. 200, 207). If it may so act to prevent physical disease or the birth of the ‘ ‘ manifestly unfit ’ ’, may it not likewise act to prevent moral corruption, when the consequences thereof affect not only family life, as we know it in this State and country, but the health and welfare of our people as well?

The problem of preserving individual rights under the Constitution and still securing to the State the right to protect itself is not always an easy one, and it is sometimes difficult to find the proper balance between them. There is no mathematical formula for accommodating the rights of the individual to the good of the community, and we fully recognize that care must be exercised when preserving one not to suppress the other. But there “is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, either in purpose or result, and the courts of justice can tell the difference ” (Poulos v. New Hampshire, supra, p. 408)..

Of course it is true that the State may not impose upon its inhabitants the moral code of saints, but, if it is to survive, it must be free to take such reasonable and appropriate measures as may be deemed necessary to preserve the institution of marriage and the home, and the health and welfare of its inhabitants. History bears witness to the fate of peoples who have become indifferent to the vice of indiscriminate sexual immorality — a most serious threat to the family, the home and the State. An attempt to combat such threat is embodied in the sections of the Education Law here challenged. It should not be thwarted by any doctrinaire approach to the problems of free speech raised thereby.

That a motion picture which panders to base human emotions is a breeding ground for sensuality, depravity, licentiousness and sexual immorality can hardly be doubted. That these vices represent a “ clear and present danger ” to the body social seems manifestly clear. The danger to youth is self-evident. And so adults, who may react with limited concern to a portrayal of larceny, will tend to react quite differently to a presentation wholly devoted to promiscuity, seductively portrayed in such manner as to invite concupiscence and condone its promiscuous satisfaction, with its evil social consequences. A single motion picture may be seen simultaneously in theatres throughout the State. May nothing be done to prevent countless individuals from being exposed to its vicious effects? To us the answer seems obvious, especially in the light of recent technical developments which render the problem more acute than ever. Now we have commercially feasible three dimensional projection, some forms of which are said to bring the audience “ right into the picture ”. There can be no doubt that attempts will be made to bring the audience right into the bedchamber if it be held that the State is impotent to apply preventive measures.

Such preventive measures necessarily embrace some form of censorship. It is significant that the American motion picture industry has adopted that very method of self-discipline as the effective remedy for immoral motion pictures through its well-known Code of Production Standards. The people of this State should not be compelled to rely upon the motion picture indus try’s own standards of review; nor, in the case of a foreign film, solely upon the customs officials (U. S. Code, tit. 19, § 1305), for their judgment “ in admitting the film did not prevent the state officers from arriving at a different judgment when it came to the exhibition of the film and the granting of a license therefor ” (Eureka Productions v. Lehman, 17 F. Supp. 259, 261, affd. 302 IT. S. 634, 304 U. S. 541). They have the right to exercise their own sovereign powers to determine for themselves what motion pictures transgress the bounds of decency and sexual morality laid down by common consent.

As we see it, a statute which operates within limits suited to the attainment of such objectives, as does the enactment here challenged, is a reasonable and valid exercise of the police power. No other method will afford reasonably adequate protection to the public. Moreover, our statute places its administration in the hands of a responsible State agency, rather than with local officers who may at times be subject to petty prejudices or varying provincial views. Neither is it entirely out of place to point out that experience has demonstrated over the years that such censorship has been and can be carried out without undue hardship or even inconvenience as to motion pictures which meet the standards for public exhibition. We conclude, therefore, that censorship, as such, is not in every case inimical to the rights of free speech and press guaranteed by the Constitution, so far as motion pictures are concerned.

2. We now turn to a consideration of the standard applied herein. Section 122 of the Education Law provides that a motion picture shall not be licensed if it is “ obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime ”. We are concerned here only with the words we have italicized. Appellant would have us read them as though they stood alone, without other guide than their dictionary meanings, and thereby find them too broad and vague to serve as a valid standard for the limitation of constitutional rights. The Legislature has not used them in a vacuum, however, but in context with other words and in a setting with other statutes in pari materia, as, e.g., sections 1140-a and 1141 of the Penal Law. Moreover, the “ use of common experience as a glossary is necessary to meet the practical demands of legislation”, and the 6‘ requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding ” (Sproles v. Binford, 286 U. S. 374, 393). Even in criminal law, “ The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices ” (Jordan v. De George, 341 U. S. 223, 231-232).

Our Legislature has used the word “ immoral ”, or its variants, in numerous other statutes (see Penal Law, §§ 483, 483-a, 483-b, 485, subd. 5; § 485-a, subd. 5; §§ 486, 494, 1140-a, 1141, 1141-a, 1147, 1290, subd. 4; §§ 1944-a, 2460; Education Law, §§ 2212, 3012, subd. 2; § 3013, subd. 2; §§ 3020, 6804; General Business Law, §§ 190, 191, subd. 3). Upon the basis of that standard, liberty, civil service tenure, and business licenses have been lost. To adopt the approach urged by petitioner would certainly throw doubt upon many of these enactments.

According to common understanding, the terms “ immoral ” and “ morals ” must be taken to refer to the moral standards of the community, the “ norm or standard of behavior which struggles to make itself articulate in law ” (Cardozo, Paradoxes of Legal Science, pp. 17, 41-42). Thus the standards of any special and particular segment of the whole population are not to control, but those held by the community at large. As was said in Block v. City of Chicago (239 Ill. 251, 263-264): “ There are the shameless and unclean, to whom nothing is defilement and from whose point of view no picture would be considered immoral or obscene. Perhaps others could be found, with no laxity of morals, who pay homage to art and would not regard anything as indelicate or indecent which had artistic merit, and would look upon any person entertaining different sentiments as of inferior intelligence, without proper training on the subject and blinded with bigotry. Both classes are exceptional, and the average person of healthy and wholesome mind knows well enough what the words 6 immoral ’ and ‘ obscene ’ mean and can intelligently apply the test to any picture presented to him. ’ ’

As applied to the general moral standards of the community, it is urged that such a standard may be too broad, although ' standards equally broad have been successfully applied. The term£ 1 moral turpitude ’ ’ has been held adequate to satisfy even the strict rule applicable to criminal statutes, with the comment that ££ doubt as to the adequacy of a standard in less obvious cases does-not render that standard unconstitutional ” (Jordan v. De George, 341 U. S. 223, 232, supra). So, too, the term ££ good moral character ”, as used in the immigration and nationality laws, must frequently be applied by the courts. In so doing, their measure is the £ £ common standards of morality ’ ’ prevalent in the community (Estrin v. United States, 80 F. 2d 105) or the ££ common conscience ” of the community (Johnson v. United States, 186 F. 2d 588, 590).

It is not a valid criticism that such general moral standards may vary slightly from generation to generation. Such variations are inevitable and do not affect the application of the principle at a particular period in time (see Parmelee v. United States, 113 F. 2d 729). Neither may a standard be criticized on the ground that individual opinions may differ as to a particular application thereof. There is no principle or standard not subject to that infirmity, including the most specific provisions of the First Amendment (Rochin v. California, 342 U. S. 165, 170).

We are not unmindful of the fact that the provisions here in question, considered in the abstract, may be deemed broad, even as limited by commpn usage. Even in such case, however, it has been said that language ££ does not stand by itself * * * but is part of the whole body of common and statute law * * * and is to be judged in that context ” (Musser v. Utah, 333 U. S. 95, 97). In the case now before us, we should not ££ parse the statute as grammarians or treat it as an abstract exercise in lexicography ” (Beauharnais v. Illinois, 343 U. S. 250, 253, supra), but should read it as it was meant to be read by the Legislature that enacted it. In many of the statutes in which our Legislature has used the word ££ immoral ” it obviously refers to sexual immorality. It is our view that it is used similarly in section 122 of the Education Law, as can be perceived in the statute itself, and in the construction put upon it, not only by the Regents herein, but by this court as well.

Turning to the statute, it will be noted that there is a related usage — a gradation of language, proceeding from ££ obscene ” to “ indecent ” to “ immoral ”, words frequently used together in statutory enactments, and thence to generically different categories: 11 inhuman ’ ’ and ‘ ‘ sacrilegious ’ ’. That juxtaposition colors the word ‘

Footnotes

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* immoral ” and justifies the application of the rule ejusdem generis, particularly when coupled with the subsequent expression “ tend to corrupt morals ”, as was done here. (See McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 239; Penal Law, §§ 1140-a, 1141, where ‘ ‘ obscene, indecent, immoral ’ ’ are likewise grouped together; People v. Wendling, 258 N. Y. 451; People v. Muller, 96 N. Y. 408; Regina v. Hicklin, L. R. 3 Q. B. 360, 369-370; see, also, Eureka Productions v. Lehman, 17 P. Supp. 259, affd. 302 U. S. 634, 304 U. S. 541, supra, Swearingen v. United States, 161 U. S. 446, 451.)

Apart from these considerations, it would appear that we have already construed the statute in precisely this manner. Section 1140-a of the Penal Law, and related sections, have been held to apply to motion pictures even prior to their express inclusion therein (Hughes Tool Co. v. Fielding, 297 N. Y. 1024). The theory of that decision was that the Education Law and the Penal Law constitute complementary parts of a related whole. As used in the said Penal Law sections, the word ‘ ‘ immoral ’ ’ clearly relates to sexual immorality. Accordingly, its meaning in the Education Law should be the same, and the unpublished minutes of the proceedings of this court indicate that it was so treated in that case.*

Viewing the statute under consideration in its proper setting, then, the words ‘ ‘ immoral ’ ’ and ‘ ‘ tend to corrupt morals ’ ’ as used therein relate to standards of sexual morality. As such they are not vague or indefinite. In this sense they are kindred to ‘ ‘ obscene ’ ’ and ‘ ‘ indecent ’ ’, of which we have said: ‘ ‘ They are words in common use, and every person of ordinary intelligence understands their meaning, and readily and in most cases accurately applies them to any object or thing brought to his attention which involves a judgment as to the quality indicated. It does not require an expert in art or literature to determine whether a picture is obscene or whether printed words are offensive to decency and good morals.” (People v. Muller, supra, pp. 410-411.) (See, also, Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572, supra.) It should be remembered that we are not here dealing with a moral concept about which our people widely differ; sexual immorality is condemned throughout our land.

3. The remaining question is whether the statute has been properly invoked against the motion picture ‘1 La Ronde ’ ’. We have already noted that it is concerned solely with promiscuous sex relations and are told: “ It is the story of everyone ”. Although vulgar pornography is avoided, suggestive dialogue and action are present throughout and not merely incidentally, depicting promiscuity as the natural and normal relation between the sexes, whether married or unmarried. Can we disagree with the judgment that such a picture will tend to corrupt morals? To do so would close our eyes to the obvious facts of life. The story is patterned after the book, which was condemned for obscenity in People v. Pesky (230 App. Div. 200, 202, affd. 254 N. Y. 373). There the Appellate Division stated “ there was nothing to it except a description of the licentious * * * without a single redeeming feature.” The author of the original work himself felt that it “ might very well be misunderstood and misinterpreted ”, and so it was privately published. Even among the favorable reviews submitted by petitioner were such comments as:

“ The details are concrete enough to make one blush unseen * * *

“ With something less than tremulous delicacy, he [the director] and his associate artists, speak quite freely upon the joys and woes of amorous adventure.”

It may also be noted that among the industry’s self-imposed limitations pertaining to sex are the following: ‘' The sanctity of the institution of marriage and the home shall be upheld. Pictures shall not infer that low forms of sex relationship are the accepted or common thing.” (Code of Production Standards, “ Particular Applications ” II, 1950 Year Book of Motion Pictures, pp. 920-922.) “ La Ronde ” infers just that. In the minds of American motion picture producers, then, such a picture as is now before us would tend to “ lower the moral standards of those who see it ” (Code of Production Standards, “ General Principles ”1).

We think it plain that we cannot say that the Regents were wrong in refusing the license herein. It has been suggested that we should form an independent judgment as to each picture which might become the subject of controversy between the distributor and the Regents, but that would simply mean that the powers granted to the Regents by statute could be arrogated to this court by judicial action. In the scheme of things, there must be some agency to which is entrusted the fact-finding power. In criminal cases it is the jury; in matters of administration generally, it is the administrative agency; in motion picture review, it is the Regents. No constitutional argument can be presented for having it otherwise. If the Regents err in law, we sit to correct them. If they must exercise their fact-finding powers in a close case and do so honestly and fairly, then due process has been observed (see Nash v. United States, 229 U. S. 373, 377).

It is not for us to question the wisdom of placing that fact-finding power in the hands of the Regents rather than the courts. Neither do we think any such debate could be very productive, for strong and persuasive arguments can be made to the effect that an experienced administrative body is better qualified than a court to judge the effect of a particular motion picture, and that we of the judicial branch should not be left “ at liberty to substitute our judgment for theirs, or to supersede their function as the spokesmen of the thought and sentiment of the community in applying to the [motion picture] * * * the standard of propriety established by the statute ” (People v. Pesky, supra, pp. 373-374).

In summary, we conclude that motion pictures may be censored, upon proper grounds, and that sexual immorality is one such ground. The standard ‘ ‘ immoral ’ ’ and ‘ ‘ tend to corrupt morals ” embodied in the statute and here applied relates to sexual immorality, and the Regents had the right to find that the motion picture in question falls within the prohibited category.

The order appealed from should be affirmed, with costs.

After our decision therein, section 1141 of the Penal Law was amended to exempt from its provisions moving picture films licensed by the State Department of Education (L. 1950, ch. 624). If, therefore, the State be required to grant a license here, petitioner will be immune from criminal prosecution.