Jacobellis v. Ohio/Concurrence Goldberg

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The question presented is whether the First and Fourteenth Amendments permit the imposition of criminal punishment for exhibiting the motion picture entitled "The Lovers." I have viewed the film, and I wish merely to add to my Brother BRENNAN's description that the love scene deemed objectionable is so fragmentary and fleeting that only a censor's alert would make an audience [p198] conscious that something "questionable" is being portrayed. Except for this rapid sequence, the film concerns itself with the history of an ill-matched and unhappy marriage -- a familiar subject in old and new novels and in current television soap operas.

Although I fully agree with what my Brother BRENNAN has written, I am also of the view that adherence to the principles stated in Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, requires reversal. In Burstyn, MR. JUSTICE CLARK, delivering the unanimous judgment of the Court, said:

[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. . . .
To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. . . . Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule.

Id. at 502-503. As in Burstyn, "[t]here is no justification in this case for making an exception to that rule," id. at 503, for, by any arguable standard, the exhibitors of this motion picture may not be criminally prosecuted unless the exaggerated character of the advertising, rather than the obscenity of the film, is to be the constitutional criterion. [p199]