David Fellman

CONSTITUTIONAL LAW IN 1958-1959: I

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 Chatterleys 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.

JOHNSON, ALVIN W. The Unicameral Legislature. Pp. ix, 198. Minneapolis: Univ. of Minnesota Press, 1938.

masses against the disorder and ineffectiveness of the previous period. He quotes as &dquo;the authentic voice of the new generation&dquo; Mussolini’s famous statement about intrepid Fascism passing without the slightest hesitation &dquo; ’over the more or less decomposed body of the goddess of liberty’ &dquo; (p. 445) . And there is little that the rest of us can do about it, for &dquo;any thoughtful reading of history reveals mankind in the toils of a destiny from which no exercise of will and no submission to propaganda can release it&dquo; (p. 514) . Much of the book has pedagogical value -especially Part II on &dquo;The State: Origin and Law-Making Function.&dquo; Part III, which covers the constitution, national

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In this little post-mortem analysis, David Lawrence seeks to explain the nature of President Roosevelt’s popular majority of 11,000,000 in the 1936 election, and to suggest what can be done about it. Since the jacket blurb promises &dquo;an amazing revelation of hitherto unpublished facts and figures,&dquo; one opens the book with high hopes and a pounding heart. One discovers that :Mr. Lawrence’s amazing revelation is that Roosevelt carried the cities of 25,000 or