Excelsior Pictures Corp. v. Regents of the University of New York , 2 A.D.2d 941 ( 1956 )

Memorandum by The Court. We have reviewed the motion picture film Garden of Eden, license for which has been denied by the Motion Picture Division of the State Department of Education on the ground that it is indecent within the scope of the New York licensing statute (Education Law, § 122). This determination was affirmed by the Regents and the proceeding under article 78 of the Civil Practice Act, now before us, is to review that determination.

The specific and limited portions of the film to which the licensing authorities object are exposed portions of human bodies in scenes depicting a nudist colony. There is, however, no full exposure of any adult nude body. The objectionable aspect of the film does not reach a magnitude which, under the limitations with which the Supreme Court has covered over the power of a State to censor films, would warrant prior restraint. The case is governed by our decision in Matter of Capitol Enterprises v. Board of Regents (1 A D 2d 990). In view of the decisions of the Court of Appeals in this area, a majority of the court are of opinion that a decision striking down the entire statute as unconstitutional ought not be entered by an intermediate appellate court.