Interstate Circuit, Inc. v. City of Dallas
390 U.S. 676 (1968)

Annotate this Case

U.S. Supreme Court

Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968)

Interstate Circuit, Inc. v. City of Dallas

No. 56

Argued January 15-16, 1968

Decided April 22, 1968*

390 U.S. 676

APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS,

FIFTH SUPREME JUDICIAL DISTRICT

Syllabus

Appellee, the City of Dallas, enacted an ordinance establishing a Motion Picture Classification Board to classify films as suitable or not suitable for young persons, who are defined as those under 16 years old. In classifying a picture as "not suitable for young persons," the Board must follow standards set forth in the ordinance and find that, in its judgment, the film describes or portrays (1) brutality, criminal violence, or depravity in such a manner as likely to incite young persons to crime or delinquency or (2) "sexual promiscuity or extra-marital or abnormal sexual relations in such a manner as . . . likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest." A film shall be considered likely to produce such results if, in the Board's judgment,

"there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted."

If the exhibitor does not accept the Board's "not suitable" classification, the Board must file suit to enjoin the showing of the picture, and the Board's determination is subject to de novo review. The ordinance is enforceable by a misdemeanor penalty, injunction, and license revocation. Acting pursuant to the ordinance the Board, without giving reasons for its determination, classified as "not suitable for young persons" the film "Viva Maria," for which appellants are respectively the exhibitor and distributor. Following the exhibitor's notice of nonacceptance of the Board's classification, appellee petitioned for an injunction alleging in terms of the ordinance that the classification was warranted because of the film's portrayal of sexual promiscuity. Two Board members testified at the hearing that several scenes portraying male-female relationships contravened "acceptable and approved behavior." The trial judge, concluding that there were "two or three features in the picture that look

Page 390 U. S. 677

to me would be unsuitable to young people," issued an injunction. The appellate court, without limiting the standards of the ordinance, affirmed.

Held: The ordinance is violative of the First and Fourteenth Amendments as being unconstitutionally vague, since it lacks "narrowly drawn, reasonable and definite standards for the officials to follow," Niemotko v. Maryland,340 U. S. 268, 340 U. S. 271 (1951). Pp. 390 U. S. 682-691.

(a) Motion pictures are protected by the First Amendment, and cannot be regulated except by precise and definite standards. Pp. 390 U. S. 682-683.

(b) The vice of vagueness is particularly pronounced where expression is subjected to licensing. P. 390 U. S. 683.

(c) Vague censorship standards are not cured merely by de novo judicial review, and, unless narrowed by interpretation, only encourage erratic administration. P. 390 U. S. 685.

(d) The term "sexual promiscuity" is not defined in the ordinance, and was not interpreted in the state courts. The failure to limit that term or related terms used in the ordinance and the breadth of the standard "profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted" give the censor a roving commission. Pp. 390 U. S. 687-688.

(e) The evil of vagueness is not cured because the regulation of expression is one of classification, rather than direct suppression or was adopted for the salutary purpose of protecting children. Pp. 390 U. S. 688-689.

402 S.W.2d 770, reversed and remanded.

Page 390 U. S. 678

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Appellants are an exhibitor and the distributor of a motion picture named "Viva Maria," which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dallas classified as "not suitable for young persons." A county court upheld the Board's determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed, [Footnote 1] and we noted probable jurisdiction, 387 U.S. 903, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee's classification ordinance.

That ordinance, adopted in 1965, may be summarized as follows. [Footnote 2] It establishes a Motion Picture Classification Board, composed of nine appointed members, all of whom serve without pay. The Board classifies films as "suitable for young persons" or as "not suitable for young persons," young persons being defined as children who have not reached their 16th birthday. An exhibitor must be specially licensed to show "not suitable" films.

The ordinance requires the exhibitor, before any initial showing of a film, to file with the Board a proposed classification of the film together with a summary of its

Page 390 U. S. 679

plot and similar information. The proposed classification is approved if the Board affirmatively agrees with it, or takes no action upon it within five days of its filing.

If a majority of the Board is dissatisfied with the proposed classification, the exhibitor is required to project the film before at least five members of the Board at the earliest practicable time. At the showing, the exhibitor may also present testimony or other support for his proposed classification. Within two days, the Board must issue its classification order. Should the exhibitor disagree, he must file within two days [Footnote 3] a notice of nonacceptance. The Board is then required to go to court within three days to seek a temporary injunction, and a hearing is required to be set on that application within five days thereafter; if the exhibitor agrees to waive notice and requests a hearing on the merits of a permanent injunction, the Board is required to waive its application for a temporary injunction and join in the exhibitor's request. If an injunction does not issue within 10 days of the exhibitor's notice of nonacceptance, the Board's classification order is suspended. [Footnote 4] The ordinance does not define the scope of judicial review of the Board's determination, but the Court of Civil Appeals held that de novo review in the trial court was required. [Footnote 5] If an injunction issues and the exhibitor seeks appellate review, or if an injunction is refused and the Board appeals, the

Page 390 U. S. 680

Board must waive all statutory notices and times, and join a request of the exhibitor to advance the case on the appellate court's docket, i.e., do everything it can to assure a speedy determination.

The ordinance is enforced primarily by a misdemeanor penalty: an exhibitor is subject to a fine of up to $200 if he exhibits a film that is classified "not suitable for young persons" without advertisements clearly stating its classification or without the classification being clearly posted, exhibits on the same program a suitable and a not suitable film, knowingly admits a youth under age 16 to view the film without his guardian or spouse accompanying him, [Footnote 6] makes any false or willfully misleading statement in submitting a film for classification, or exhibits a not suitable film without having a valid license therefor.

The same penalty is applicable to a youth who obtains admission to a not suitable film by falsely giving his age as 16 years or over, and to any person who sells or gives to a youth under 16 a ticket to a not suitable film, or makes any false statements to enable such a youth to gain admission. [Footnote 7]

Other means of enforcement, as against the exhibitor, are provided. Repeated violations of the ordinance, or persistent failure

"to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons' are below the age of sixteen,"

may be the basis for revocation

Page 390 U. S. 681

of a license to show not suitable films. [Footnote 8] Such a persistent failure, or exhibition of a not suitable film by an exhibitor with three convictions under the ordinance, inter alia, are defined as "public nuisances," which the Board may seek to restrain by a suit for injunctive relief.

The substantive standards governing classification are as follows:

"'Not suitable for young persons' means: "

"(1) Describing or portraying brutality, criminal violence or depravity in such a manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons; or"

"(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extramarital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest."

"A film shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.

Page 390 U. S. 682

A film shall be considered as appealing to 'prurient interest' of young persons if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is 'not suitable for young persons,' the Board shall consider the film as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons."

Appellants attack those standards as unconstitutionally vague. We agree. Motion pictures are, of course, protected by the First Amendment, Joseph Burstyn, Inc. v. Wilson,343 U. S. 495 (1952), and thus we start with the premise that "[p]recision of regulation must be the touchstone," NAACP v. Button,371 U. S. 415, 371 U. S. 438 (1963). And while it is true that this Court refused to strike down, against a broad and generalized attack, a prior restraint requirement that motion pictures be submitted to censors in advance of exhibition, Times Film Corp. v. City of Chicago,365 U. S. 43 (1961), there has been no retreat in this area from rigorous insistence upon procedural safeguards and judicial superintendence of the censor's action. See Freedman v. Maryland,380 U. S. 51 (1965). [Footnote 9]

In Winters v. New York,333 U. S. 507 (1948), this Court struck down as vague and indefinite a statutory standard interpreted by the state court to be "criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes. . . ." Id. at 333 U. S. 518. In Joseph Burstyn, Inc. v. Wilson, supra, the Court dealt with a film licensing standard of "sacrilegious," which was found to have such an all-inclusive definition as to result in "substantially unbridled censorship." 343 U.S. at 343 U. S. 502. Following

Page 390 U. S. 683

Burstyn, the Court held the following film licensing standards to be unconstitutionally vague: "of such character as to be prejudicial to the best interests of the people of said City," Gelling v. Texas,343 U. S. 960 (1952); "moral, educational or amusing and harmless," Superior Films, Inc. v. Department of Education,346 U. S. 587 (1954); "immoral," and "tend to corrupt morals," Commercial Pictures Corp. v. Regents,346 U. S. 57 (1954); "approve such films . . . [as] are moral and proper; . . . disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals," Holmby Productions, Inc. v. Vaughn, 350 U.S. 870 (1955). [Footnote 10] See also Kingsley Int'l Pictures Corp. v. Regents,360 U. S. 684, 360 U. S. 699-702 (Clark, J., concurring in result).

The vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing. It may be unlikely that what Dallas does in respect to the licensing of motion pictures would have a significant effect

Page 390 U. S. 684

upon film makers in Hollywood or Europe. But what Dallas may constitutionally do, so may other cities and States. Indeed, we are told that this ordinance is being used as a model for legislation in other localities. Thus, one who wishes to convey his ideas through that medium, which, of course, includes one who is interested not so much in expression as in making money, must consider whether what he proposes to film, and how he proposes to film it, is within the terms of classification schemes such as this. If he is unable to determine what the ordinance means, he runs the risk of being foreclosed, in practical effect, from a significant portion of the movie-going public. Rather than run that risk, he might choose nothing but the innocuous, perhaps save for the so-called "adult" picture. Moreover, a local exhibitor who cannot afford to risk losing the youthful audience when a film may be of marginal interest to adults -- perhaps a "Viva Maria" -- may contract to show only the totally inane. The vast wasteland that some have described in reference to another medium might be a verdant paradise in comparison. The First Amendment interests here are, therefore, broader than merely those of the film maker, distributor, and exhibitor, and certainly broader than those of youths under 16.

Of course, as the Court said in Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502,

"[i]t does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places."

What does follow, at the least, as the cases above illustrate, is that the restrictions imposed cannot be so vague as to set "the censor . . . adrift upon a boundless sea . . . ," id. at 343 U. S. 504. In short, as Justice Frankfurter said, "legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion . . . ," Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. at 360 U. S. 694 (concurring in result), one reason being

Page 390 U. S. 685

that

"where licensing is rested, in the first instance, in an administrative agency, the available judicial review is, in effect, rendered inoperative [by vagueness],"

Joseph Burstyn, Inc. v. Wilson, supra, at 343 U. S. 532 (concurring opinion). Thus, to the extent that vague standards do not sufficiently guide the censor, the problem is not cured merely by affording de novo judicial review. Vague standards, unless narrowed by interpretation, encourage erratic administration whether the censor be administrative or judicial;

"individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor, rather than regulation by law,"

Kingsley Int'l Pictures Corp. v. Regents, supra, at 360 U. S. 701 (Clark, J., concurring in result). [Footnote 11]

The dangers inherent in vagueness are strikingly illustrated in these cases. Five members of the Board viewed "Viva Maria." Eight members voted to classify it as "not suitable for young persons," the ninth member not voting. The Board gave no reasons for its determination. [Footnote 12] Appellee alleged in its petition for an injunction

Page 390 U. S. 686

that the classification was warranted because the film portrayed

"sexual promiscuity in such a manner as to be in the judgment of the Board likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interests."

Two Board members, a clergyman and a lawyer, testified at the hearing. Each adverted to several scenes in the film which, in their opinion, portrayed male-female relationships in a way contrary to "acceptable and approved behavior." Each acknowledged, in reference to scenes in which clergymen were involved in violence, most of which was farcical, that "sacrilege" might have entered into the Board's determination. And both conceded that the asserted portrayal of "sexual promiscuity" was implicit, rather than explicit, i.e., that it was a product of inference by, and imagination of, the viewer.

So far as "judicial superintendence" [Footnote 13] and de novo review are concerned, the trial judge, after viewing the film and hearing argument, stated merely:

"Oh, I realize you gentlemen might be right. There are two or three features in this picture that look to me would be unsuitable to young people. . . . So I enjoin the exhibitor . . . from exhibiting it. [Footnote 14]"

Nor did the Court of Civil Appeals provide much enlightenment or a narrowing definition of the ordinance. United Artists argued that the obscenity standards similar to those set forth in Roth v. United States,354 U. S. 476 (1957), and other decisions of this Court ought to be controlling. [Footnote 15] The majority of

Page 390 U. S. 687

the Court of Civil Appeals held, alternatively, (1) that such cases were not applicable because the legislation involved in them resulted in suppression of the offending expression, rather than its classification; (2) that, if obscenity standards were applicable, then "Viva Maria" was obscene as to adults (a patently untenable conclusion), and therefore entitled to no constitutional protection, and (3) that, if obscenity standards were modified as to children, the film was obscene as to them, a conclusion which was not in terms given as a narrowing interpretation of any specific provision of the ordinance. 402 S.W.2d 770, 775-776. In regard to the last alternative holding, we must conclude that the court in effect ruled that the "portrayal . . . of sexual promiscuity as acceptable," id. at 775, is, in itself, obscene as to children. [Footnote 16] The court also held that the standards of the ordinance were "sufficiently definite." Ibid.

Thus, we are left merely with the film and directed to the words of the ordinance. The term "sexual promiscuity" is not there defined, [Footnote 17] and was not interpreted in the state courts. It could extend, depending upon one's moral judgment, from the obvious to any sexual contacts outside a marital relationship. The determinative

Page 390 U. S. 688

manner of the "describing or portraying" of the subjects covered by the ordinance (see supra at 390 U. S. 681), including "sexual promiscuity," is defined as

"such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons."

A film is so

"'likely to incite or encourage' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted."

It might be excessive literalism to insist, as do appellants, that, because those last six adjectives are stated in the disjunctive, they represent separate and alternative subtle determinations the Board is to make, any of which results in a not suitable classification. Nonetheless,

"[w]hat may be to one viewer the glorification of an idea as being 'desirable, acceptable or proper' may to the notions of another be entirely devoid of such a teaching. The only limits on the censor's discretion is his understanding of what is included within the term 'desirable, acceptable or proper.' This is nothing less than a roving commission. . . ."

Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. at 360 U. S. 701 (Clark, J., concurring in result). [Footnote 18]

Vagueness and the attendant evils we have earlier described, see supra at 390 U. S. 683-685, are not rendered less objectionable because the regulation of expression is one of classification, rather than direct suppression. Cf. 372 U. S. S. 689

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