After viewing the film involved in this litigation, I am in accord with the majority that, although it was obtained as a result of a trespass, it is, nevertheless, protected by the First Amendment and can be exhibited. (New York Times Co. v United States, 403 US 713 [Pentagon Papers].) This, however, does not dispose of the question presented concerning the rights of these children, who are wards of the State, to be protected by the State from exploitation by the respondents, or anyone else. The film in *396the main, is protected by the Constitution, as it clearly involves freedom of the press and the public’s right to know. But this constitutional protection does not extend to that portion of the film which shows the children being questioned in their rooms, by the use of pointed and leading questions, concerning rapes, assaults, pregnancies of teenagers and the use of drugs and alcohol. Respondents certainly can publish the questions and the answers obtained, but they should not be permitted to disclose the identities of the children or put them on public exhibition on television.
As I understand the position of the appellants, according to page 18 of the brief submitted, it is only exhibition of those pictures and taped dialogues which they seek to restrain. In support of this position the appellants point to the fact that these children have been placed in the home as a result of procedures found in the Social Services Law of the State of New York. They are represented as suffering from a wide range of problems from mental retardation to psychological disturbances. They are wards of the State and the State stands in the position of parens patriae, as substitute parents. Therefore the State must discharge its duty of proper supervision and protection for them. What parent would allow his child, under the circumstances disclosed in this case, to be exhibited on public television? Can a parent be so insensitive as to disregard the possible emotional and future harm that might come to these children if exhibition is allowed?
This case, in my opinion, is similar to Commonwealth v Wiseman (356 Mass 251) where the court would not permit the showing of a film depicting identifiable persons, who were inmates of a State institution, as it would have resulted in their humiliation and exploitation. That court held that it was the duty and responsibility of the State to protect such individuals, stating in part as follows (p 258):
"The film shows many inmates in situations which would be degrading to a person of normal mentality and sensitivity. * * * These inmates are sufficiently clearly exhibited * * * to enable acquaintances to identify them. * * * There is a collective, indecent intrusion into the most private aspects of the lives of these unfortunate persons in the Commonwealth’s custody. * * *
"We think, in any event, that [the] * * * massive, unrestrained invasion of the intimate lives of these State patients may be prevented by properly framed injunctive relief. The *397Commonwealth has standing and a duty to protect reasonably, and in a manner consistent with other public interests, the inmates from any invasions of their privacy substantially greater than those inevitably arising from the very fact of confinement. [Citing case.]”
The attempt of the respondents to distinguish that case from the case at bar, because it also presented a contractual issue, is unimpressive. The language of the court makes clear that it was not talking of contractual rights, but of the human rights of the inmates.
Whatever may be the rights of the respondents, as against the appellants, that relationship does not control the obligations which are owed by the State to these children, which the State should enforce.
Therefore, I dissent in part from that portion of the majority’s determination which refuses to restrain the respondents from showing the children at the time they were questioned by the representatives of the respondents in the children’s rooms and I would restrain same.
Markewich, J., concurs with Stevens, P.J.; Birns J., concurs in an opinion; Kupferman, J., concurs but dissents as to the further stay in an opinion; Capozzoli, J., dissents in part in an opinion.
Order, Supreme Court, New York County entered on March 11, 1976, affirmed, without costs and without disbursements. However, a stay of the order appealed from shall continue for five days after service upon appellants by respondents of a copy of the order entered herein, with notice of entry (CPLR 5519, subd [e]).