Kingsley International Pictures Corporation v. Regents of the University of the State of New York/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring in the result.

As one whose taste in art and literature hardly qualifies him for the avantgarde, I am more than surprised, after viewing the picture, that the New York authorities should have banned 'Lady Chatterley's Lover.' To assume that this motion picture would have offended Victorian moral sensibilities is to rely only on the stuffiest of Victorian conventions. Whatever one's personal preferences may be about such matters, the refusal to license the exhibition of this picture, on the basis of the 1954 amendment to the New York State Education Law, can only mean that that enactment forbids the public showing of any film that deals with adultery except by way of sermonizing condemnation or depicts any physical manifestation of an illicit amorous relation. Since the denial of a license by the Board of Regents was confirmed by the highest court of the State, I have no choice but to agree with this Court's judgment in holding that the State exceeded the bounds of free expression protected by the 'liberty' of the Fourteenth Amendment. But I also believe that the Court's opinion takes ground that exceeds the appropriate limits for decision. By way of reinforcing my brother HARLAN'S objections to the scope of the Court's opinion, I add the following.

Even the author of 'Lady Chatterley's Lover' did not altogether rule out censorship, nor was his passionate zeal on behalf of society's profound interest in the endeavors of true artists so doctrinaire as to be unmindful of the facts of life regarding the sordid exploitation of man's nature and impulses. He knew there was such a thing as pornography, dirt for dirt's sake, or, to be more accurate, dirt for money's sake. This is what D. H. Lawrence wrote:

'But even I would censor genuine pornography, rigorously. It     would not be very difficult. In the first place, genuine     pornography is almost always underworld, it doesn't come into      the open. In the second, you can recognize it by the insult     it offers invariably, to sex, and to the human spirit.

'Pornography is the attempt to insult sex, to do dirt on it. This is unpardonable. Take the very lowest instance, the     picture post-card sold underhand, by the underworld, in most cities. What I have seen of them     have been of an ugliness to make you cry. The insult to the     human body, the insult to a vital human relationship! Uly     and cheap they make the human nudity, ugly and degraded they      make the sexual act, trivial and cheap and nasty.' (D. H.      Lawrence, Pornography and Obscenity, pp. 12-13.)

This traffic has not lessened since Lawrence wrote. Apparently it is on the increase. In the course of the recent debate in both Houses of Parliament on the Obscene Publications Bill, now on its way to passage, designed to free British authors from the hazards of too rigorous application in our day of Lord Cockburn's ruling, in 1868, in Regina v. Hicklin, L.R. 3 Q.B. 360, weighty experience was adduced regarding the extensive dissemination of pornographic materials. See 597 Parliamentary Debates, H.C., No. 36 (Tuesday, December 16, 1958), cols. 992 et seq., and 216 Parliamentary Debates H.L., No. 77 (Tuesday, June 2, 1959), cols. 489 et seq. Nor is there any reason to believe that on this side of the ocean there has been a diminution in the pornographic business which years ago sought a flourishing market in some of the leading secondary schools for boys, who presumably had more means than boys in the public high schools.

It is not surprising, therefore, that the pertinacious, eloquent and free-spirited promoters of the liberalizing legislation in Great Britain did not conceive the needs of a civilized society, in assuring the utmost freedom to those who make literature and art possible-authors, artists, publishers, producers, book sellers-easily attainable by sounding abstract and unqualified dogmas about freedom. They had a keen awareness that freedom, of expression is no more an absolute than any other freedom, an awareness that is reflected in the opinions of Mr. Justice Holmes and Mr. Justice Brandeis, to whom we predominantly owe the present constitutional safeguards on behalf of freedom of expression. And see Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 715-716, 51 S.Ct. 625, 630 631, 75 L.Ed. 1357, for limitations on constitutionally protected freedom of speech.

In short, there is an evil against which a State may constitutionally protect itself, whatever we may think about the questions of policy involved. The real problem is the formulation of constitutionally allowable safeguards which society may take against evil without impinging upon the necessary dependence of a free society upon the fullest scope of free expression. One cannot read the debates in the House of Commons and the House of Lords and not realize the difficulty of reconciling these conflicting interests, in the framing of legislation on the ends of which there was agreement, even for those who most generously espouse that freedom of expression without which all freedom gradually withers.

It is not our province to meet these recalcitrant problems of legislative drafting. Ours is the vital but very limited task of scrutinizing the work of the draftsmen in order to determine whether they have kept within the narrow limits of the kind of censorship which even D. H. Lawrence deemed necessary. The legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what is permissible expression as well as what society may permissibly prohibit. Always remembering that the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit, we have struck down lgis lation phrased in language intrinsically vague, unless it be responsive to the common understanding of men even though not susceptible of explicit definition. The ultimate reason for invalidating such las is that they lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society.

The New York legislation of 1954 was the product of careful lawyers who sought to meet decisions of this Court which had left no doubt that a motion-picture licensing law is not inherently outside the scope of the regulatory powers of a State under the Fourteenth Amendment. The Court does not strike the law down because of vagueness, as we struck down prior New York legislation. Nor does it reverse the judgment of the New York Court of Appeals, as I would, because in applying the New York law to 'Lady Chatterley's Lover' it applied it to a picture to which it cannot be applied without invading the area of constitutionally free expression. The difficulty which the Court finds seems to derive from some expressions culled here and there from the opinion of the Chief Judge of the New York Court of Appeals. This leads the Court to give the phrase 'acts of sexual immorality * *  * as desirable, acceptable or proper patterns of behavior' an innocent content, meaning, in effect, an allowable subject matter for discussion. (4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197.) But, surely, to attribute that result to the decision of the Court of Appeals, on the basis of a few detached phrases of Chief Judge Conway, is to break a faggot into pieces, is to forget that the meaning of language is to be felt and its phrases not to be treated disjointedly. 'Sexual immorality' is not a new phrase in this branch of law and its implications dominate the context. I hardly conceive it possible that the Court would strike down as unconstitutional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly a hundred years, see the Act of March 3, 1865, 13 Stat. 507, and March 3, 1873, 17 Stat. 599, whatever specific instances may be found not within its allowable prohibition. In sustaining this legislation this Court gave the words 'lewd, obscene and lascivious' concreteness by saying that they concern 'sexual immorality.' And only very recently the court sustained the constitutionality of the statute. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

Unless I misread the opinion of the Court, it strikes down the New York legislation in order to escape the task of deciding whether a particular picture is entitled to the protection of expression under the Fourteenth Amendment. Such an exercise of the judicial function, however onerous or ungrateful, inheres in the very nature of the judicial enforcement of the Due Process Clause. We cannot escape such instance-by-instance, case-by-case application of that clause in all the varieties of situations that come before this Court. It would be comfortable if, by a comprehensive formula, we could decide when a confession is coerced so as to vitiate a state conviction. There is no such talismanic formula. Every Term we have to examine the particular circumstances of a particular case in order to apply generalities which no one disputes. It would be equally comfortable if a general formula could determine the unfairness of a state trial for want of counsel. But, except in capital cases, we have to thread our way, Term after Term, through the particular circumstances of a particular case in relation to a particular defendant in order to ascertain whether due process was denied in the unique situation before us. We are constantly called upon to consider the alleged misconduct of a prosecutor as vitiating the fairness of a particular trial or the inflamed state of public opinion in a particular case as undermining the constitutional right to due process. Again, in the series of cases coming here from the state courts, in which due process was invoked to enfoce separation of church and state, decision certainly turned on the particularities of the specific situations before the Court. It is needless to multiply instances. It is the nature of the concept of due process, and, I venture to believe, its high service-ability in our constitutional system, that the judicial enforcement of the Due Process Clause is the very antithesis of a Procrustean rule. This was recognized in the first full-dress discussion of the Due Process Clause of the Fourteenth Amendment, when the Court defined the nature of the problem as a 'gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasons on which such decision may be founded.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. The task is onerous and exacting, demanding as it does the utmost discipline in objectivity, the severest control of personal predilections. But it cannot be escaped, not even by disavowing that such is the nature of our task.

Mr. Justice DOUGLAS with whom Mr. Justice BLACK joins, concurring.

While I join in the opinion of the Court, I adhere to the views I expressed in Superior Films Inc. v. Department of Education, 346 U.S. 587, 588-589, 74 S.Ct. 286, 98 L.Ed. 329, that censorship of movies is unconstitutional, since it is a form of 'previous restraint' that is as much at war with the First Amendment, made applicable to the States through the Fourteenth, as the censorship struck down in Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. If a particular movie violates a valid law, the exhibitor can be prosecuted in the usual way. I can find in the First Amendment no room for any censor whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.

Reference is made to British law and British practice. But they have little relevance to our problem, since we live under a written Constitution. What is entrusted to the keeping of the legislature in England is protected from legislative interference or regulation here. As we stated in Bridges v. State of California, 314 U.S. 252, 265, 62 S.Ct. 190, 194, 86 L.Ed. 192, 'No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.' If we had a provision in our Constitution for 'reasonable' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible. Judges sometimes try to read the word 'reasonable' into the First Amendment or make the rights it grants subject to reasonable regulation (see Beauharnais v. People of State of Illinois, 343 U.S. 250, 262, 72 S.Ct. 725, 733, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 523-525, 71 S.Ct. 857, 873-875, 95 L.Ed. 1137), or apply to the States a watered-down version of the First Amendment. See Roth v. United States, 354 U.S. 476, 505-506, 77 S.Ct. 1304, 1319-1320, 1 L.Ed.2d 1498. But its language, in terms that are absolute, is utterly at war with censorship. Different questions may arise as to censorship of some news when the Nation is actually at war. But any possible exceptions are extremely limited. That is why the tradition represented by Near v. State of Minnesota ex rel. Olson, supra, represents our constitutional ideal.

Happily government censorship has put down few roots in this country. The American tradition is represented by Near v. State of Minnesota ex rel. Olson, supra. See Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 324-325; Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 53 et seq. We have in the United States no counterpart of the Lord Chamberlain who is censor over England's stage. As late as 1941 only six States had systems of censorship for movies. Chafee, Free Speech in the United States (1941), p. 540. That number has now been reduced to four -Kansas, Maryland, New York, and Virginia-plus a few cities. Even in these areas, censorship of movies shown on television gives way by reason of the Federal Communications Act, 47 U.S.C.A. § 151 et seq. See Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153. And from what information is available, movie censors do not seem to be very active. Deletion of the residual part of censorship that remains would constitute the elimination of an institution that intrudes on First Amendment rights.