concurring.
It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U. S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts,1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.2 I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Mr. Justice Goldberg,concurring.
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 *198conscious 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:
“[Expression 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 “[tjhere 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.
Times Film Corp. v. City of Chicago, 355 U. S. 35, reversing 244 F. 2d 432; One, Incorporated, v. Olesen, 355 U. S. 371, reversing 241 F. 2d 772; Sunshine Book Co. v. Summerfield, 355 U. S. 372, reversing 101 U. S. App. D. C. 358, 249 F. 2d 114; Manual Enterprises v. Day, 370 U. S. 478 (opinion of Harlan, J.).
Cf. People v, Richmond County News, 9 N. Y. 2d 578, 175 N. E. 2d 681, 216 N. Y. S. 2d 369.