The Catholic times. [volume] (Columbus, Ohio) 1951-current, 1959-07-10

Continued from Page u
Ian said, the New York court
had been wrong in banning
mis- particular film. II cannot
regard this film" he explain
ed. "ss depicting anything
that could properly be term
ed obscene or eorruptive OF
the public morals by melting
the commission OF adultery"
Justice Tom CIark's opinion
proceeded along lines similar
to that of Justice Harlan.
They parted company, how
ever. over the conStitutionali-
ty of the Interpretation Of the
law handed down by the New
York Court of Appeals. In
striking down the ban on the
film. the Supreme Court was
reversing a decision Of the
State Court OF Appeals, New
Works highest court.
Justice Clark sugg
that. while the law as writ
ten might not be u%nconstltu-
tional, the law as Interpreted
by the Court of Appeals was.
He said he had no objection
70 q law banning films which
portray acts of sexual immor-
Atty, Perversion or lewdness"
with acts" Italicized. He
added: IF New Works. statute
had been so construed by
Its highest court, ! believe It
would have met the require
FNents of due process. Instead,
II placed more emphasis on
what the film teaches than on
what it depicts. There is
where the confusion enters"
Justice Frankfurter agreed
In a separate opinion that
obscenity is IAN evil against
which 3 state may constitu-
tionally protect itself" He
held, however, that 'to as
sumo that this motion picture
would have offended Victorian
moral sensibilities is to rely
only on the stuffiest OF Victor
ian conventions"
On the general question OF
censorship, he hit out at
"dirt for dirts sake, or, TO be
more accurate, dirt for
moneys sake"
Even D. n. Lawrence, he
said, did not altogether rule
out censorship" nor was he
unmindful OF the facts OF life
regarding the sordid explori-
fation of mans nature and i'm
pulses" He quoted the Brit
ish novelist as saying: Even
would censor genuine porno-
araphy. vigorously 49,. You
can recognize il by the insult
IL offers invariably, to sex,
and TO the human spirit"
The real problem" Justice
Frankfruter commented. is TO
draft "constitutionally allow
able obscenity laws without
impinging upon the fullest
scope of free expression
Not allowable he said, is
legislation which is so vague
as to leave to those who have
to apply it too wide a discre-
ton"
However, he continued, the
New York law did not fall
within the area of such pro-
seribed legislation. Rather, he
said. Iunless | misread the
opinion of (Supremel Court,
ii strikes down the New York
legislation in order 10 es-
cape the task of deciding
whether a particular picture is
entitled to the protection of
expression under the Four
teenth Amendment"
But. he continued. "such an
exercise of the judicial func-
ton. however, onerous or
ungrateful. inheres in the very
nature of the judicial enforce
ment of the due process
clause. We cannot escape such
Observation-Disclosures. case-by-
case application Of that clause
in all the variety of situations
that come before this court
However. it was for precise
iv this point that Justice
Black took Mr.. Frankfurter TO
task. The end result of ease
by-case" study of controversial
films. Mr.. Black said. seems
to me TO be a purely personal
determination by individual
justices AS TO whether a par
ticular picture is too bad 10
allow it TO be seen by the
public"
No reasonably fixed and
uncertain standards" can be
brought 10 bear in such an
individuatized discrimination"
he said, adding: Accordingly,
neither states nor moving pic
furs makers possibly
know in advance, with any
fair degree Of certainty, what
can of cannot be done in the
field of movie making and
exhibiting"
Justice Harlan brought this
particular phase of the argu-
ment full circle by going to
the defense of Justice Frank
furter in opposition to Justice
Black.
III is sometimes said" he
commented. that this court
should shun considering the