In Kingsley International Pictures v. Board of Regents, 360 U.S. 684 (1959), the Supreme Court continued to review constitutional issues of prior restraint raised by the practice begun in 1911 of states licensing films. The Court held that New York’s statute controlling the licensing of films regulated ideas no matter how they were expressed or their consequent effects, thereby contravening the guarantees of the First Amendment. The decision expanded on the Court’s decision in Burstyn v. Wilson (1952) extending First Amendment protection to films.

New York required all films to be licensed

As amended in 1954, New York’s Education Law required that all films be licensed for exhibition by the Motion Picture Division of the New York Education Department, and it called for denial of license to any film that “expressly or impliedly portrays acts of sexual immorality . . . as desirable, acceptable or proper patterns of behavior.” The denial of license for the film Lady Chatterley’s Lover, based on the novel by D. H. Lawrence, was appealed to the Regents of the State of New York, who upheld the denial, finding that the film clearly portrayed adultery in a positive light.

Denial of film license was appealed

The Appellate Division of the New York Supreme Court reversed (5-0) the Regents’ decision, holding that the statutory standard applied in the denial of license was beyond constitutionally acceptable bounds for prior restraint, particlarly because the film itself did not fall within the common judicial definitions of obscenity.

In a split decision, the New York Court of Appeals reversed the appellate decision and upheld the denial of license, finding that societies have always moved legislatively to protect public morals from corruption, that common law precedents have upheld such legislation, and that the New York legislature had clearly expressed its conviction that such immoral expression, especially in the more persuasive medium of film, would have a corrosive effect on public morals. Because the New York standard addressed the same substantive evil that placed obscene expression beyond First Amendment protection, its application by the Regents was constitutionally permissible.

Supreme Court found the New York statute was invalid under the First Amendment

In a 9-0 decision, the U.S. Supreme Court reversed the New York Court of Appeals, finding the New York statute was invalid under the First Amendment. The majority opinion, written by Justice Potter Stewart and joined by four other justices, held that the New York statute in effect regulated ideas irrespective of their mode of expression or consequent effect, contrary to the guarantees of the First Amendment. Specifically, the Court held that the denial of license based on a film’s portrayal of immorality was arbitrary and acted to suppress expression of ideas beyond the conventional and shared by the majority.

In a concurring opinion joined by two other justices, Justice John Marshall Harlan II agreed with the result, but cautioned that film licensing was not precluded by the First Amendment and that the New York statutory standard might be constitutionally permissible, albeit in this case the standard had been inappropriately applied.

By denying the implicit inclusion of sexual themes within the obscenity exception to First Amendment protections, the Kingsley decision fundamentally narrowed future obscenity prosecutions to the scrutiny of graphic depictions of sexuality that appeal to prurient interest, and it presaged the practical demise of film licensing — after Freedman v. Maryland (1965) — as prior restraint under constitutional due process guarantees.

This article was originally published in 2009. James R. Alexander is professor of political science at the University of Pittsburgh (Johnstown PA). His research focused initially on English common law and early American antecedents to First Amendment obscenity law, particularly to film. More recently he has focused on the evolution of legal doctrines in both libel and copyright law during the Long Eighteenth Century in England.

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