The opinion
Van Voorhis, J.
(dissenting). I agree with the Appellate Division and with my dissenting brethren that section 122-a of the Education Law is unconstitutional, in which event this problem play cannot be suppressed as “immoral”. On the other hand, it would have been within the jurisdiction of the Regents (it seems to me) to have eliminated several passages in this picture as “ obscene ” under section 122. The Motion Picture Division of the Education Department attempted some *375 thing of that sort in recommending that certain scenes he expurgated, but on the ground that they are “immoral”. Although that ground is not available, and it is impossible to write off this entire drama as “mere pornography” (Roth v. United States, 354 U. S. 476 ), certain passages might have been eliminated as “obscene” without doing violence to constitutional liberties. In their endeavor to censor morality, both the Motion Picture Division and the Regents seem to have overlooked their power to exclude “ obscenity ”, which includes the portrayal on the public screen of sexual intimacies whether they be marital or extramarital. Thus, while concurring with the dissenting Judges to affirm the unconstitutionality of section 122-a, I would remit the matter to the Board of Regents to consider the aspect which I have mentioned before ordering them to issue a license for the exhibition of this picture without any expurgations.
Judges Froessel and Burke concur with Chief Judge Conway ; Judge Desmond concurs in result in a separate opinion; Judges Dye and Fuld dissent and vote to affirm, each in a separate opinion in which the other concurs and in both of which dissenting opinions Judge Van Voorhis concurs in part in a separate dissenting opinion for remission of the matter to the Board of Regents.
Order reversed, etc.