(dissenting). By the decision about to be made, a majority of this court approves as a valid enactment, the New York motion picture licensing statute, notwithstanding that it provides for censorship in advance, which as we read it, constitutes an infringement of the basic civil right of freedom of speech and publication contrary to due process (U. S. Const., 1st, 5th, 14th Amendts.; N. Y. Const., art. I, §§ 6, 8; Education Law, § 122). I must therefore record my dissent.
The question arises out of the refusal of the State Board of Regents to approve the issuance of a license to permit the showing of the motion picture film “ La Ronde ” for the reason, couched in the language of the statute, “ that the said film is 6 immoral ’ and that its exhibition 6 would tend to corrupt morals ’ within the meaning of Section 122 of the Education Law.”
The case is before us in an appeal as of right from an order of the Appellate Division, Third Judicial Department, entered in a proceeding under article 78 of the Civil Practice Act, at the instance of this appellant (Education Law, § 124), and heard by the Appellate Division in the first instance (Civ. Prac. Act, § 1296). "When the petitioner, a California corporation and sole owner of the distribution rights of the said picture in the United States, first applied for an exhibitor’s license (Education Law, §§ 120-122) the director of the motion picture division refused it on the ground that the picture was “ immoral ” and “ would tend to corrupt morals ”. Following established practice in such circumstances, the petitioner re-edited the film and re-submitted its application, but even so the director again refused to issue a license. A review of his determination was then had before a three-man committee of the State Board of Regents (Education Law, § 124), which, after viewing the picture, as we have said, confirmed the director’s determination. In the court below the confirmation of the determination and the dismissal of the proceedings was on the ground that the applicable statute was a valid enactment and that confirmation was *356required under familiar doctrine limiting the function of a reviewing court whenever there is 1 ‘ warrant in the record and a reasonable basis in law ” for the board’s determination. In other words, if the issue is debatable, the action of the administrative body is to be upheld (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104). However correct that may be as a rule of thumb in the review of administrative cases turning on a controverted issue of fact, it is inapplicable in a case involving fundamental civil rights secured by the State and Federal Constitutions for then a determination must be so clear, as the dissenting Judges in the court below observed, “ that any conclusion to the contrary would not be entertained by any reasonable mind. It is wholly inconsistent with a constitutional guarantee to leave any debatable issue of morals, involved in any form of protected expression, to the final decision of an administrative agency.” (Matter of Commercial Pictures Corp. v. Board of Regents, 280 App. Div. 260, 265.) In such a situation ‘ ‘ the reviewing court is bound to re-examine the whole record ” in the light of the challenge made (Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495; Universal Camera Corp. v. Labor Bd., 340 U. S. 474; Niemotko v. Maryland, 340 U. S. 268; Norris v. Alabama, 294 U. S. 587).
Since the decision in Joseph Burstyn, Inc. v. Wilson (343 U. S. 495, supra, revg. 303 N. Y. 242) there is no longer any doubt but that motion picture films enjoy the same constitutional freedom and protection accorded other media of human expression (cf. United States v. Paramount Pictures, 334 U. S. 131; Stromberg v. California, 283 U. S. 359) and this is so even though motion pictures as such are primarily designed to entertain at exhibitions conducted for private profit and even though motion picture films as such possess “ a greater capacity for evil, particularly among the youth of a community, than other modes of expression ” (Burstyn, supra, p. 502).
In the Burstyn case {supra) the Board of Regents had refused a license to show the motion picture entitled “ The Miracle ” on the ground that it was “ sacrilegious ” within the meaning of section 122 of the Education Law. When the case was in this court we approved such determination in reliance on the validity of regulation by prior censorship in accordance with our decision *357in Pathe Exch. v. Cobb (236 N. Y. 539, affg. 202 App. Div. 450). That decision, in turn, had followed Mutual Film Corp. v. Ohio Ind. Comm. (236 U. S. 230), Mutual Film Co. v. Ohio Ind. Comm. (236 U. S. 247), and Mutual Film Corp. v. Kansas (236 U. S. 248), in which the United States Supreme Court had approved as a valid enactment in Ohio, a pre-censorship statute.
We note that in deciding the Burstyn case {supra, pp. 505-506) the United States Supreme Court found it unnecessary to pass on the issue of prior censorship preferring to leave such question until presented “ under a clearly drawn statute designed and applied to prevent the showing of obscene films ” since the term “ sacrilegious ”, the sole standard under attack, afforded an adequate basis for reversal. Nonetheless, that is not to say the learned court was unmindful of the iniquity of prior restraint which (in the field of publication) they long before had ruled (p. 503) was an “ infringement upon freedom of expression to be especially condemned” (Thomas v. Collins, 323 U. S. 516; Lovell v. Griffin, 303 U. S. 444; Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota, 283 U. S. 697; Patterson v. Colorado, 205 U. S. 454).
Since the courts no longer see any distinction separating motion picture film from the protection accorded other media of communication, it follows as a matter of reason and logic that prior censorship of motion pictures is as to them as it is in other fields of expression, a denial of due process. In saying this we are, of course, mindful of the correlative obligation that in its exercise and enjoyment such right is not unlimited and absolute at all times and under all circumstances (Chaplinsky v. New Hampshire, 315 U. S. 568; Coxr. New Hampshire, 312 U. S. 569) but that such freedom may properly be restrained when inimical to the public welfare (Gitlow v. New York, 268 U. S. 652) and the State may punish its abuse (Near v. Minnesota, supra). It is equally well established that before such limitation may be imposed the abuse complained of is to be examined in all cases to determine whether it is of such a nature “ as to create a clear and present danger [and] will bring about the substantive evils that Congress has a right to prevent ” (Schenck v. United States, 249 U. S. 47, 52), which danger should be “ apparent and imminent ” (Thornhill v. Alabama, 310 U. S. 88) such, *358for example, as a threat to overthrow the government by unconstitutional means (Dennis v. United States, 341 U. S. 494). By the same token, when public safety is involved, its restraint will be approved as a proper exercise of the police power (Feiner v. New York, 340 U. S. 315, affg. 300 N. Y. 391; Kovacs v. Cooper, 336 U. S. 77) or, to state it differently, there must be present some “ overriding public interest ” (see dissenting opinion per Fuld, J., in Matter of Joseph Burstyn, Inc., v. Wilson, supra, p. 269; Thornhill v. Alabama, supra), mere fear of possible injury is not enough (Terminiello v. Chicago, 337 U. S. 1).
Having in mind these well-recognized principles, it is pertinent to inquire what if anything there is about “ La Ronde ” that requires denial of constitutional safeguards and the imposition of the sanction of prior restraint. Is it because a showing would offend against some overriding need — would constitute a danger clear and present? We think not.
According to the record, the picture “ La Ronde ” since its admission through Customs without objection (U. S. Code, tit. 18, § 1462; U. S. Code, tit. 19, § 1305) has been exhibited throughout the United States in cities and towns in the States of Arizona, California, Colorado, Connecticut, Delaware, Florida, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Missouri, New Jersey, Oklahoma, Oregon, Texas and Washington, D. C. Nowhere has the showing of “La Ronde ” been banned except in New York. While experience elsewhere is not binding on the courts in New York, the opinions of qualified critics may be considered (United States v. One Book Entitled Ulysses, 72 F. 2d 705). We deem it significant that in the States of Louisiana (La. Rev. Stat., tit. 4, §§ 301-307) and Massachusetts (Mass. Ann. Laws, ch. 136, §§ 2-4) having censorship laws, though to be sure, not as comprehensive as that in New York, the picture has had an unhampered showing as well as in places where municipal codes are in effect such as Detroit, Michigan; Salem, Oregon and Houston, Texas, to mention a few, a circumstance indicating that in a large segment of society the picture is not offensive per se. Such a showing in other States and cities of this country, where prior restraint was available and not invoked, and elsewhere having no such statutes, all without untoward incident or complaint, is a convincing testi*359monial that it is not inimical to the public peace, welfare and safety. On the contrary, we are told that the showing elsewhere has been well received and has elicited-favorable acclaim by the premier dramatic critics of eminent publications in which we may read:
“ La Ronde is all of a piece, as any round should be, setting up a mocking harmony of desire and disillusion, vanity, pleasure and deceit. It is never prurient, smirking or pornographic. For all the intimacy of its nuances, the film’s approach is dryly detached and completely charming; it spoofs sex rather than exploits it, much as Britain’s satiric Kind Hearts and Coronets makes sport of murder.” (Time Magazine, Oct. 22, 1951.) “ Here is a lovely motion picture, a gay, a glad, a sad, a sentimental movie * * * about Vienna at the turn of the century, the Vienna of candlelight and carriages, of wine, women and waltzes. * * * All this is told with a combination of irony, candor and gentleness that makes of the whole a total gem of a motion picture. * * a picture about illicit love, but it is told without prudishness and with a deftness, discretion and understanding that make it more moral than most censor-shackled pictures on the subject.” (Daily News, Los Angeles, Sept. 21, 1951.)
“ The * * * players * * * represent the cream of France’s romantic actors.” (The Evening Star, Washington, D. C., July 28,1951.)
“ The players * * * are among the cream of French talent and virtually flawless here.” (The Los Angeles Times, Sept. 21, 1951.)
“ * * * a splendid and glittering cast that includes Anton Walbrook, Gerard Philipe, Isa Miranda, Dannielle Darrieux, Daniel Gelin, Simone Simon, Jean-Louis Barrault, Fernand Gravet, and Odette Joyeux. * * * their portrayals have that quality of nuance that makes a second viewing almost obligatory. * * * Through the strata of a world-weary Viennese society the story spirals, until we find we have arrived at much the same point from which we have begun. It’s more sad than bitter, more ironic than funny, and there’s some haunting little message underneath it all, though, to be sure, you are never quite told what it is. * * * delicately done and in excellent taste. ’ ’ (Saturday Review of Literature, Nov. 10, 1951.)
*360In addition, it has been shown in the principal cities of most foreign countries and has received special recognition for merit from several motion picture academies as, for instance, in Cuba as the best film of 1951, by the British Film Academy in London as the best film from any source, British or foreign, and in 1952, a nomination for an award at the Hollywood Academy.
nonetheless if it may be said that prior censorship serves a necessary and needful public purpose warranting the abridgement of the right of free speech and press, it remains for the statute under review to meet the test of definiteness required to constitute a valid delegation of legislative power to an administrative agency. Unless it does so, it cannot be regarded as the “ clearly drawn statute ” envisioned by the Supreme Court (Burstyn, supra, p. 506; Kunz v. New York, 340 U. S. 290; Winters v. New York, 333 U. S. 507; Connally v. General Constr. Co., 269 U. S. 385; Small Co. v. American Sugar Ref. Co., 267 U. S. 233; United States v. Cohen Grocery Co., 255 U. S. 81) and we too apply such principle whenever needed (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Fink v. Cole, 302 N. Y. 216; Matter of Small v. Moss, 279 N. Y. 288).
It is indeed significant that when the Legislature enacted the censorship statute under review it omitted to provide any criteria or standards to guide the Board of Regents in performing the administrative functions required of it, but was content to use language of broad and general import leaving its meaning and application to the individual judgment of its director of the motion picture division in the first instance (§ 122) or if denied, to a committee of three members of the board (§ 124).
Indefiniteness affords opportunity for arbitrariness, the tendency to which is nowhere better illustrated than in the field of administrative law. It is for this reason that delegation of legislative power is carefully scrutinized, whether to a private agency (Matter of Fink v. Cole, supra) or to a governmental agency (Packer Collegiate Inst. v. University of State of N. Y., supra; Matter of Small v. Moss, supra). If this is not enough, then the board itself has been equally delinquent in failing to adopt rules and regulations for the guidance of its motion picture division in the exercise of censorship powers, but has left the generality of the statutory language to gain preci*361sion “ from sense and experience ” (Mutual Film cases, supra), a method no longer approved (Burstyn), and is particularly objectionable here as it vests unlimited restraining control over motion pictures in a censor limited only by what an individual director of the motion picture division or, upon review, by what three members of the board itself happen to think about a particular picture at a given time (cf. Winters v. New York, supra; Gelling v. Texas, 343 U. S. 960). Such lack, it goes without saying, leaves an appellate court at a very great disadvantage. We do not know what standards guided the agency in making its determination. To supply such legislative omission by judicial fiat is not permissible under the division of governmental powers as fixed by the Constitution. It has long been recognized that courts may not usurp the legislative function under the guise of adjudication. The evils of allowing an administrative agency, however worthy its purpose, to function without proper legislative guidance is well illustrated by this very case. The lack of proper standards and guidance has led the State Board of Regents into a most surprising record of inconsistency and illustrates at first hand the evils of slap-dash censorship. For instance, we do not know whether they apply the terms “ immoral ” and “ tend to corrupt morals ” to pictures dealing with sex impurity or to pictures dealing with any matter which could be deemed contra bonos mores. Here we have a picture which, concededly, is not obscene or indecent but which nonetheless is banned from a New York showing because deemed “ immoral ” and its exhibition “ Avould tend to corrupt morals ” which is difficult to reconcile Avith the issuance of permits to show other pictures dealing not only -with illicit love but also crime such as Dreiser’s “ American Tragedy ” (based on People v. Gillett, 191 N. Y. 107). “ A Street Car Named Desire ” and “ The Outlaw ”, and those of a lurid type whose blow-up posters call attention to “ Outcast Girls ”, “ Female Sex ”, “ Naked Realism ’ ’. The case at hand is the only instance brought to our attention where denial has been based solely on the term “ immoral ” which the Regents applied because “ promiscuity ” is the central theme. True, flle term “ immoral ” lias been used in numerous other instances but always, we note, in juxtaposition with the word “ obscene ”or“ indecent The *362term ‘6 obscene ” as used in the criminal statutes, has been interpreted in the United States Supreme Court as meaning the subject matter must be of a “ lewd, lascivious and obscene tendency, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall ” (Swearingen v. United States, 161 U. S. 446, 451), and in our own court we have said that the test of an obscene book is whether ‘6 the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come into contact with it ” (People v. Muller, 96 N. Y. 408, 411, following Regina v. Hicklin, L. R. 3 Q. B. 360, 369-370; People v. Doubleday & Co., 297 N. Y. 687, affd. 335 U. S. 848).
The term “ immoral ” when'not connected with “ obscene ” — and here it is not — for indeed the motion picture “La Ronde ” was not banned upon the ground of obscenity — has a variety of meanings varying according to time, geography and to some extent, subjective judgment (Cardozo, Paradoxes of Legal Science; Matter of Foy Productions v. Graves, 253 App. Div. 475; Parmelee v. United States, 113 F. 2d 729; United States v. Kennerley, 209 F. 119). The lexicographers have defined “immoral ” as the opposite of moral (Oxford Dictionary) which term may and does include illicit sexual behavior (Funk & Wagnalls) but the meaning is not limited to sex impurity but includes in addition offenses hostile “ to public welfare ” (Black’s Law Dictionary), “ inimical to rights or * * * interests of others ”, “ corrupt ”, “ depraved ” and sometimes “ unprofessional ” conduct or (42 C. J. S., pp. 395-396), to state it broadly, anything contra bonos mores.
Resort to the criminal statutes dealing with obscenity and the cases construing such statutes are of little help in solving our present problem for here we deal with a licensing statute authorizing restraint in advance. In the one we deal with evidentiary requirements sufficient to support the conviction beyond “ reasonable doubt ” while in the other when the issue is debatable “ some ” evidence is sufficient. In the one the proof must meet the standards of the hearsay rule to assure competency, relevance and materiality while in the other formal rules of evidence may be dispensed with entirely. Criminal statutes are designed to apprise the citizen of what constitutes *363an offense against society in advance of the fact. The term “ immoral ” as used in this pre-censorship statute, without more, affords little help in advising the citizen of what constitutes a violating offense. All that the petitioner has to guide him here is the circumstance that wherever shown in the United States, except New York, the picture “ La Ronde ” does not offend.
To strike the term “ immoral ” and the words “ tend to corrupt morals ” from the statute as indefinite and undefinable will work no serious result. For years New York State has had statutes dealing with obscenity and indecency broad enough to sanction “ after the fact” criminal prosecution and punishment, application of which has successfully regulated the publication and sale of books and periodicals without prior censorship (Penal Law, § 1141; cf. Winters v. New York, supra), as well as statutes sanctioning the punishment of persons presenting obscene, indecent, immoral or impure drama, plays or exhibition shows or entertainment (Penal Law, § 1140-a).
In addition, the word “ obscene ”, when compared with the word “ immoral ” has a clear and authoritative judicial definition. The Federal standard is whether the book taken as a whole has a “ libidinous effect ” (Hannegan v. Esquire, Inc., 327 U. S. 146; United States v. One Book Entitled Ulysses, 72 F. 2d 705, supra). In New York the test is “ whether the tendency of the [work] is to excite lustful and lecherous desire ” (People v. Wendling, 258 N. Y. 451, 453; People v. Eastman, 188 N. Y. 478, 480; People v. Muller, supra). Under this definition “ La Ronde ” is certainly not “ obscene ”. It has been condemned only on the ground that it is “ immoral ” and that its presentation “ would tend to corrupt morals ”. The statute sets up no standard defining the term “ immoral ” and, unlike the word “ obscenity ” in the criminal statutes, there are no judicial opinions which set forth a workable guide for the censor. As the dissenting opinion in the Appellate Division noted (p. 266) “ La Ronde ”, according to the Regents, “ deals with illicit love, usually regarded as immoral. But so is murder. The theme alone does not furnish a valid ground for previous restraint. As to its presentation corrupting the morals of the public, this issue is highly debatable. The record indicates a vast body of *364informed opinion to the contrary. Under such circumstances the action of the Regents impinges on petitioner’s constitutional right of free expression.” Since reasonable men may differ on the import and effect of “ La Ronde ”, it follows that there is not a “ clear and present danger ” sufficiently imminent to override the protection of the United States Constitution (Thornhill v. Alabama, supra, p. 105).
Under all the circumstances, and this includes the inconsistency between the varying views expressed in the opinions for affirmance herein, we deem the terms “ immoral ” and “ tend to corrupt morals ’ ’ as used in the statute to be so indefinite as to require reversal here. Indefiniteness in motion picture censorship statutes was condemned in Burstyn (supra) and later in Gelling v. Texas (343 U. S. 960, supra). There the United States Supreme Court dealt with an ordinance of the city of Marshall, Texas, which authorized a local board of censors to deny permission to the showing of a motion picture when, in the opinion of the board, it was “ of such character as to be prejudicial to the best interests of the people of said City ” — inartistic language to be sure, but nonetheless having an intent to restrain the showing of motion pictures inimical to the public interest. Two Justices wrote concurring opinions that elucidate the bare Per Curiam, for reversal, Mr. Justice Frankfurter seeing offense to the Fourteenth Amendment on the score of indefiniteness (citing Burstyn and Winters) while Mr. Justice Douglas said (p. 961): “The evil of prior restraint, condemned by Near v. Minnesota, 283 U. S. 697, in the case of newspapers and By Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, in the case of motion pictures, is present here in flagrant form. If a board of censors can tell the American people what it is in their best interests to see or to read or to hear (cf. Public Utilities Comm’n v. Pollak, 343 U. S. 451), then thought is regimented, authority substituted for liberty, and the great purpose of the First Amendment to keep uncontrolled the freedom of expression defeated.”
This thought is not new for indeed thirty years ago a distinguished Governor of this State in his message to the Legislature recommending repeal of an almost identical censorship statute (L. 1921, ch. 715, § 5) had this to say; “ Censorship is *365not in keeping with our ideas of liberty and of freedom of worship or freedom of speech. The people of the State themselves have declared that every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge liberty of speech or of the press. This fundamental principle has equal application to all methods of expression.” (Public Papers of Alfred E. Smith [1923], pp. 60, 61.)
As has been said in a great variety of ways, we deem the evil complained of here is far less dangerous to the community than the danger flowing from the suppression of clear constitutional protection. In our zeal to regulate by requiring licenses in advance we are prone to forget the struggle behind our free institutions. We must keep in mind on all occasions that beneficent aims however laudable and well directed can never serve in lieu of constitutional powers (Carter v. Carter Coal Co., 298 U. S. 238) for as was said in Lovell v. Griffin (303 U. S. 444,451, supra), ££ The struggle for the freedom of the press was primarily directed against the power of the licensor.”
It is no answer to say that the exhibition of motion pictures has a potential for evil which can not be successfully dealt with except by censorship in advance. Such a conclusion overlooks the very significant circumstance that other media of expression are not so censored, for they may not be, but are nonetheless successfully controlled by our penal laws (Penal Law, § 1140-a) which have been resorted to whenever necessary. One of the most recent occasions Avas the banning of ££ The Outlaw ”, a motion picture, by the commissioners of license and the police in Nbav York City, because deemed obscene, indecent and immoral, notwithstanding that the Board of Regents had theretofore issued it a license (Hughes Tool Co. v. Fielding, 297 N. Y. 1024, affg. 272 App. Div. 1048). Reported instances of resort to criminal sanctions as a method of control are relatively infrequent but this is not at all surprising as the industry itself has its own Production Code in which it recognizes its responsibility to the public to provide approved entertainment in connection with which the potential power of the public boycott is not overlooked, exerting as it does, a direct influence in the box office, on the profitable operation of which *366the producers must depend (cf. Motion Pictures and the First Amendment, 60 Yale L. J. 696).
In conclusion then, it must be said that the New York censorship statute as applied in advance to the exhibition of motion pictures infringes constitutional freedom of speech and press, that the within case is not so exceptional as to require banning under a valid exercise of the police power and that the statute is invalid in any event for lack of definitive administrative criteria.
The order appealed from should be reversed and the matter remitted to the Board of Regents with direction to issue a license.