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Constitutional Law in 1958–1959: II
Published online by Cambridge University Press: 01 August 2014
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Censorship of Motion Pictures. A recent amendment to the New York statute dealing with the licensing of motion pictures defines as “immoral” a picture “the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversity, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.” The Education Department denied a license to the distributor of “Lady Chatterley's Lover” on the finding that three scenes were “immoral.” On appeal, the Regents of the University of New York upheld the denial of the license on the broader ground that “the whole theme of this motion picture is immoral under said law, for that theme is the presentation of adultery as a desirable, acceptable and proper pattern of behavior.” In affirming the denial, the Court of Appeals unanimously and explicitly rejected any notion that the film was obscene, but found rather that the picture as a whole “alluringly portrays adultery as proper behavior,” and that the only part of the statute applicable here was that which bars films which portray “acts of sexual immorality … as desirable.” Though there was no agreement on a single opinion, the Justices were unanimous in reversing the Court of Appeals. In behalf of a bare majority, Justice Stewart argued that since the state construction took the case outside the scope of such concepts as “obscenity” or “pornography,” and did not even suggest that the film would incite to illegal action, the state has in effect prohibited the exhibition of a motion picture because it advocates an idea, that under certain circumstances adultery may be proper behavior. This runs contrary to the basic guarantee of the First Amendment, which is the “freedom to advocate ideas,” and thus the state has quite simply “struck at the very heart of constitutionally protected liberty.” For the state misconceives what the Constitution protects. “Its guarantee,” wrote Justice Stewart, “is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Free speech, he went on to argue, cannot be denied where advocacy falls short of incitement, and where there is nothing to indicate that the advocacy will be acted on immediately.
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References
88 Kingsley Corp. v. Regents of the University of New York, 360 U.S. 684 (1959). See Note, “The Law of Obscenity: New Significance of the Receiving Group,” Indiana Law Journal, Vol. 35, pp. 426–441 (Spring, 1959); Smead, Elmer E., Freedom of Speech by Radio and Television (Washington, 1959)Google Scholar; Fiske, Marjorie, Book Selection and Censorship (Berkeley, 1959)Google Scholar; Eberhard, and Kronhausen, Phyllis, Pornography and the Law (New York, 1959).Google Scholar
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94 359 U.S. 1 (1959).
95 Napue v. Illinois, 360 U.S. 264 (1959). For other aspects of the problem of fair trial in criminal cases see: Special Committee of the Association of the Bar of the City of New York and the National Legal Aid and Defender Association, Equal Justice for the Accused (Garden City, N. Y., 1959)Google Scholar; Zeisel, Hans et al., Delay in Court (Boston, 1959)Google Scholar; Everett, Robinson O., “New Procedures of Scientific Investigation and the Protection of the Accused's Rights,” Duke Law Journal, Vol. 1959, pp. 32–77 (Winter, 1959)CrossRefGoogle Scholar; Comment, “Fair Trial vs. Free Press in Criminal Trials,” California Law Review, Vol. 47, pp. 366–373 (May, 1959).
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114 Burns v. Ohio, 360 U.S. 252 (1959). Two Justices dissented in part on the ground that the Court did not have before it for review the final judgment of the state's highest court. The majority treated the letter which the Clerk of the Ohio Supreme Court wrote to the prisoner as in effect a judgment of that court, within the meaning of 28 U.S.C. §1257.
115 Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959).
116 The taxpayer relied heavily upon Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949). The Court pointed out that in Glander the Ohio statute exempted from taxation certain accounts receivable owned by residents of the state, but taxed those owned by nonresidents. This was clearly a discrimination against nonresidents. But here the discrimination does not rest merely on the difference in the residence of the owners, but upon a state of facts which can reasonably be conceived to constitute a distinction or difference in state policy. In a separate concurring opinion, Justice Brennan pointed out that in Glander the distinction burdened the property of nonresidents in favor of Ohio residents, whereas in the instant case the classification based on residence operated against Ohio residente, thus presenting no action, as in the earlier case, which is disruptive of the federal pattern.
117 Safeway Stores v. Oklahoma Retail Grocers Assoc, 360 U.S. 334 (1959).
118 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959).
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121 Railway Express Agency v. Virginia, 358 U.S. 434 (1959).
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129 Edgar B. Sims v. United States, 359 U.S. 108 (1959).
130 Rogers v. Calumet National Bank of Hammond, 358 U.S. 331 (1959).
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