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Published online by Cambridge University Press: 01 August 2014
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.
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
89 Uphaus v. Wyman, 360 U.S. 72 (1959). See Cramton, Roger C., “The Supreme Court and State Power to Deal with Subversion and Loyalty,” Minnesota Law Review, Vol. 43, pp. 1025–1082 (May, 1959).Google Scholar For the impact of federal power upon state action in this field, see: Peters, Roger Paul, “Civil Rights and State Non-Action,” Noire Dame Lawyer, Vol. 34, pp. 303–334 (May, 1959)Google Scholar; Wormuth, Francis D., “The Present Status of the Civil Rights Act of 1875,” Utah Law Review, Vol. 6, pp. 153–168 (Fall. 1958)Google Scholar
90 Pennsylvania v. Nelson, 350 U.S. 497 (1956).
91 Sweezy v. New Hampshire, 354 U.S. 234 (1957).
92 Raley v. Ohio, 360 U.S. 423 (1959).
93 Scull v. Com. of Virginia ex rel. Committee on Law Reform and Racial Activities, 359 U.S. 344 (1959).
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).
96 See Betts v. Brady, 316 U.S. 455 (1942).
97 Cash v. Culver, 358 U.S. 633 (1959). See Rackow, Felix, “The Right to Counsel—Time for Recognition under the Due Process Clause,” Western Reserve Law Review, Vol. 10, pp. 216–233 (March, 1959).Google Scholar
98 Anonymous No. 6 v. Baker, 360 U.S. 287 (1959).
99 In re Groban, 352 U.S. 330 (1957).
100 Bartkus v. Illinois, 355 U.S. 281 (1958).
101 Bartkus v. Illinois, 356 U.S. 969 (1958).
102 Bartkus v. Illinois, 359 U.S. 121 (1959). See Gershenson, Milton G., “Res Judicata in Successive Criminal Prosecutions: Hoag v. State of New Jersey and a Proposal,” Brooklyn Law Review, Vol. 25, pp. 33–38 (December, 1958).Google Scholar
103 It had been established in Palko v. Connecticut, 302 U.S. 319 (1937), that while at some point the cruelty of harassment by multiple prosecutions by a state would offend due process, the specific limitation imposed upon the federal government by the Double Jeopardy Clause of the Fifth Amendment did not bind the states.
104 358 U.S. 576 (1959).
105 The leading precedent was Williams v. New York, 337 U.S. 241 (1949).
106 Spano v. New York, 360 U.S. 315 (1959). See: Rogge, O. John, Why Men Confess (New York, 1959)Google Scholar; Reik, Theodore, The Compulsion to Confess (New York, 1959)Google Scholar; Hogan, James E. and Snee, Joseph M., “The McNabb-Mallory Rule: Its Rise, Rationale and Rescue,” Georgetown Law Review, Vol. 47, pp. 1–46 (Fall, 1958)Google Scholar; Slough, M. C., “Confessions and Admissions,” Fordham Law Review, Vol. 28, pp. 96–114 (Spring, 1959)Google Scholar; American Civil Liberties Union, Secret Detention by the Chicago Police (Glencoe, Ill., 1959).Google Scholar
107 Frank v. Maryland, 359 U.S. 360 (1959). For related problems see: Dash, Samuel, Knowlton, Robert E. and Schwartz, Richard F., The Eavesdroppers (New Brunswick, N. J., 1959)Google Scholar; Kamisar, Yale, “ Wolf and Lustig Ten Years Later: Illegal State Evidence in State and Federal Courts,” Minnesota Law Review, Vol. 43, pp. 1083–1198 (05, 1959)Google Scholar; Kohn, Alan C., “Admissibility in Federal Court of Evidence Illegally Seized by State Officers,” Washington University Law Quarterly, Vol. 1959, pp. 229–260 (06, 1959).Google Scholar
108 See: Southern Education Reporting Service, Southern Schoote: Progress and Problems (Nashville, 1959)Google Scholar; Southern Regional Council, Intimidation, Reprisal and Violence m the South's Racial Crisis (Atlanta, 1959)Google Scholar; Blossom, Virgil T., It Has Happened Here (New York, 1959)Google Scholar; Greenberg, Jack, Race Relations and American Law (New York, 1959)CrossRefGoogle Scholar; Vose, Clement E., Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley, 1959)CrossRefGoogle Scholar; Auerbach, Carl A., “How Congress Can Speed School Integration,” The New Leader, Vol. 41, pp. 8–17 (12 22, 1958)Google Scholar; Arthur Garfield Hays Memorial Fund, “Racial Integration and Academic Freedom,” New York University Law Review, Vol. 34, pp. 725–752 (April, 1959), pp. 899–938 (05, 1959)Google Scholar; Krislov, Samuel, “Constituency versus Constitutionalism: The Desegregation Issue and Tensions and Aspirations of Southern Attorneys General,” Midwest Journal of Political Science, Vol. 3, pp. 75–92 (02, 1959)CrossRefGoogle Scholar; Murphy, Walter F., “Private Education with Public Funds?” Journal of Politics, Vol. 20, pp. 635–654 (11, 1958)CrossRefGoogle Scholar; Howe, Mark De Wolfe, “Religion and Race in Public Education,” Buffalo Law Review, Vol. 8, pp. 242–250 (Winter, 1959)Google Scholar; Garfinkel, Herbert, “Social Science Evidence and the School Segregation Cases,” Journal of Politics, Vol. 21, pp. 37–59 (February, 1959 CrossRefGoogle Scholar); Symposium, “The Supreme Court Decision: Five Years Later,” Saturday Review, 05 23, 1959, pp. 12–19.Google Scholar
109 Shuttlesworth v. Birmingham Board of Education, 358 U.S. 101 (1958). See Meador, Daniel J., “The Constitution and the Assignment of Pupils to Public Schools,” Virginia Law Review, Vol. 45, pp. 517–571 (05, 1959).CrossRefGoogle Scholar
110 State Athletic Commission v. Dorsey, 359 U.S. 533 (1959).
111 New Orleans City Park Improvement Assoc. v. Detiege, 358 U.S. 54 (1958).
112 Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959). See: Price, Margaret, The Negro and the Ballot in the South (Atlanta, 1959)Google Scholar; Ogden, Frederic D., The Poll Tax in the South (University, Alabama, 1958)Google Scholar; Flexner, Eleanor, Century of Struggle: The Woman's Rights Movement in the United States (Cambridge, 1959).Google Scholar
113 Griffin v. Illinois, 351 U.S. 12 (1956).
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).
119 247 U.S. 165.
120 247 U.S. 321.
121 Railway Express Agency v. Virginia, 358 U.S. 434 (1959).
122 Railway Express Agency v. Virginia, 347 U.S. 359 (1954).
123 359 U.S. 520 (1959).
124 Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534 (1959). See Dakin, Melvin G., “The Protective Cloak of the Export-Import Clause: Immunity for the Goods or Immunity for the Process,” Louisiana Law Review, Vol. 19. Pp. 747–776 (06, 1959).Google Scholar
125 Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945).
126 12 Wheat. 419 (1827).
127 Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957); Amalgamated Meat Cutters v. Fairlawn Meats, 353 U.S. 20 (1957); San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957). See this Review, Vol. 52, pp. 188–189 (March, 1958).
128 359 U.S. 236 (1959). On various aspects of intergovernmental relations see: Leach, Richard H. and Sugg, R. S. Jr., The Administration of Interstate Compacts (Baton Rouge, 1959)Google Scholar; Symposium, “State Responsibility in a Federal System,” New York University Law Review, Vol. 34, pp. 991–1104 (06, 1959)Google Scholar; Symposium, “Tax Immunities on Federal Property,” Vol. 1959, Wisconsin Law Review, pp. 167–222 (March, 1959)Google Scholar; Comment, “The Full Faith and Credit Clause Reanalyzed,” Northwestern University Law Review, Vol. 54, pp. 211–243 (May-June, 1959); Weintraub, Russell J., “Due Process and Full Faith and Credit Limitations on a State's Choice of Law,” Iowa Law Review, Vol. 44, pp. 449–491 (Spring, 1959).Google Scholar
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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