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� Books, Inc. v. Sullivan,@
372 U. S.
58 (1963). [
Footnote
19] Nor is it an answer to an argument that a particular
regulation of expression is vague to say that it was adopted for
the salutary purpose of protecting children. The permissible extent
of vagueness is not directly proportional to, or a function of, the
extent of the power to regulate or control expression with respect
to children. As Chief Judge Fuld has said:
"It is . . . essential that legislation aimed at protecting
children from allegedly harmful expression -- no less than
legislation enacted with respect to adults -- be clearly drawn and
that the standards adopted be reasonably precise so that those who
are governed by the law and those that administer it will
understand its meaning and application."
People v. Kahn, 15 N.Y.2d 311, 313, 206 N.E.2d 333, 335
(1965) (concurring opinion). [
Footnote 20]
The vices -- the lack of guidance to those who seek to adjust
their conduct and to those who seek to administer
Page 390 U. S. 690
the law, as well as the possible practical curtailing of the
effectiveness of judicial review -- are the same.
It is not our province to draft legislation. Suffice it to say
that we have recognized that some believe "motion pictures possess
a greater capacity for evil, particularly among the youth of a
community, than other modes of expression,"
Joseph Burstyn,
Inc. v. Wilson, supra, at
343 U. S. 502,
and we have indicated more generally that, because of its strong
and abiding interest in youth, a State may regulate the
dissemination to juveniles of, and their access to, material
objectionable as to them, but which a State clearly could not
regulate as to adults.
Ginsberg v. New York, ante, p.
390 U. S. 629.
[
Footnote 21] Here, we
conclude only that "the absence of narrowly drawn, reasonable and
definite standards for the officials to follow,"
Niemotko v.
Maryland, 340 U. S. 268,
340 U. S. 271
(1951), is fatal. [
Footnote
22]
Page 390 U. S. 691
The judgment of the Texas Court of Civil Appeals is reversed,
and the cases are remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
|
390
U.S. 676app|
APPENDIX TO OPINION OF THE COURT.
Chapter 46A of the 1960 Revised Code of Civil and Criminal
Ordinances of the City of Dallas, as amended, provides:
"Section 46A-1.
Definition of Terms: "
"(a) 'Film' means any motion picture film or series of films,
whether full length or short subject, but does not include
newsreels portraying actual current events or pictorial news of the
day."
"(b) 'Exhibit' means to project a film at any motion picture
theatre or other public place within the City of Dallas to which
tickets are sold for admission."
"(c) 'Exhibitor' means any person, firm or corporation which
exhibits a film."
"(d) 'Young person' means any person who has not attained his
sixteenth birthday."
"(e) 'Board' means the Dallas Motion Picture Classification
Board established by Section 46A-2 of this ordinance."
"(f) '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
Page 390 U. S. 692
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. 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 films 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."
"(g) 'Classify' means to determine whether a film is: "
"(1) Suitable for young persons, or;"
"(2) Not suitable for young persons."
"(h) 'Advertisement' means any commercial promotional material
initiated by an exhibitor designed to bring a film to public
attention or to increase the sale of tickets to exhibitions of
same, whether by newspaper, billboard, motion picture, television,
radio, or other media within or originating within the City of
Dallas."
"(i) 'Initial exhibition' means the first exhibition of any film
within the City of Dallas. "
Page 390 U. S. 693
"(j) 'Subsequent exhibition' means any exhibition subsequent to
the initial exhibition, whether by the same or a different
exhibitor."
"(k) 'File' means to deliver to the City Secretary for
safekeeping as a public record of the City of Dallas."
"(l) 'Classification order' means any written determination by a
majority of the Board classifying a film, or granting or refusing
an application for change of classification."
"(m) The term 'Board' as used and applied in subsection (a) of
Section 46A-7 shall include the City of Dallas when attempting to
enforce this ordinance and the City Attorney of the City of Dallas
when representing the Board or the City of Dallas."
"Section 46A-2.
Establishment of Board: "
"There is hereby created a Board to be known as the Dallas
Motion Picture Classification Board which shall be composed of a
Chairman and Eight Members to be appointed by the Mayor and City
Council of the City of Dallas, whose terms shall be the same as
members of the City Council. Such members shall serve without pay
and shall adopt such rules and regulations as they deem best
governing their action, proceeding and deliberations and time and
place of meeting. These rules and regulations shall be subject to
approval of the City Council. If a vacancy occurs upon the Board by
death, resignation or otherwise, the governing body of the City of
Dallas shall appoint a member to fill such vacancy for the
unexpired term."
"The Chairman and all Members of the Board shall be good, moral,
law-abiding citizens of the City of Dallas, and shall be chosen so
far as reasonably practicable in such a manner that they will
represent a cross-section of the community. Insofar as practicable,
the members appointed to the Board shall be persons educated and
experienced
Page 390 U. S. 694
in one or more of the following fields: art, drama, literature,
philosophy, sociology, psychology, history, education, music,
science or other related fields. The City Secretary shall act as
Secretary of the Board."
"Section 46A-3.
Classification Procedure: "
"(a) Before any initial exhibition, the exhibitor shall file a
proposed classification of the film to be exhibited, stating the
title of the film and the name of the producer, and giving a
summary of the plot and such other information as the Board may by
rule require, together with the classification proposed by the
exhibitor. The Board shall examine such proposed classification,
and if it approves same, shall mark it 'approved' and file it as
its own classification order. If the Board fails to act, that is,
either file a classification order or hold a hearing within five
(5) days after such proposed classification is filed, the proposed
classification shall be considered approved."
"(b) If upon examination of the proposed classification a
majority of the Board is not satisfied that it is proper, the
Chairman shall direct the exhibitor to project the film before any
five (5) or more members of the Board, at a suitably equipped place
and at a specified time, which shall be the earliest time
practicable with due regard to the availability of the film. The
exhibitor, or his designated representative, may at such time make
such statement to the Board in support of his proposed
classification and present such testimony as he may desire. Within
two (2) days, the Board shall make and file its classification of
the film in question."
"(c) Any initial or subsequent exhibitor may file an application
for a change in the classification of any film previously
classified. No exhibitor shall be allowed to file more than one (1)
application for change of classification of the same film. Such
application shall contain a sworn statement of the grounds upon
which the application
Page 390 U. S. 695
is based. Upon filing of such application, the City Secretary
shall bring it immediately to the attention of the Chairman of the
Board, who upon application by the exhibitor shall set a time and
place for a hearing and shall notify the applicants and all
interested parties, including all exhibitors who may be exhibiting
or preparing to exhibit the film. The Board shall view the film and
at such hearing, hear the statements of all interested parties, and
any proper testimony that may be offered, and shall within two (2)
days thereafter make and file its order approving or changing such
classification. If the classification of a film is changed as a
result of such hearing to the classification 'not suitable for
young persons,' the exhibitors showing the film shall have seven
(7) days in which to alter their advertising and audience policy to
comply with such classification."
"(d) Upon filing by the Board of any classification order, the
City Secretary shall immediately issue and mail a notice of
classification to the exhibitor involved and to any other exhibitor
who shall request such notice."
"(e) A classification shall be binding on any subsequent
exhibitor unless and until he obtains a change of classification in
the manner above provided."
"Section 4A-4.
Offenses: "
"(a) It shall be unlawful for any exhibitor or his employee:
"
"(1) To exhibit any film which has not been classified as
provided in this ordinance."
"(2) To exhibit any film classified 'not suitable for young
persons' if any current advertisement of such film by such
exhibitor fails to state clearly the classification of such
film."
"(3) To exhibit any film classified 'not suitable for young
persons' without keeping such classification posted
Page 390 U. S. 696
prominently in front of the theatre in which such film is being
exhibited."
"(4) Knowingly to sell or give to any young person a ticket to
any film classified 'not suitable for young persons.'"
"(5) Knowingly to permit any young person to view the exhibition
of any film classified 'not suitable for young persons.'"
"(6) To exhibit any film classified 'not suitable for young
persons' or any scene or scenes from such a film, or from an
unclassified film, whether moving or still, in the same theatre and
on the same program with a film classified 'suitable for young
persons'; provided that any advertising preview or trailer
containing a scene or scenes from an unclassified film or a film
classified 'not suitable for young persons' may be shown at any
time if same has been separately classified as 'suitable for young
persons' under the provisions of Section 46A-3 of this
ordinance."
"(7) To make any false or willfully misleading statement in any
proposed classification, application for change of classification,
or any other proceeding before the Board."
"(8) To exhibit any film classified 'not suitable for young
persons' without having in force the license hereinafter
provided."
"(b) It shall be unlawful for any young person: "
"(1) To give his age falsely as sixteen (16) years of age or
over, for the purpose of gaining admittance to an exhibition of a
film classified 'not suitable for young persons.'"
"(2) To enter or remain in the viewing room of any theatre where
a film classified 'not suitable for young persons' is being
exhibited. "
Page 390 U. S. 697
"(3) To state falsely that he or she is married for the purpose
of gaining admittance to an exhibition of a film classified as 'not
suitable for young persons.'"
"(c) It shall be unlawful for any person: "
"(1) To sell or give any young person a ticket to an exhibition
of a film classified 'not suitable for young persons.'"
"(2) To make any false or willfully misleading statement in an
application for change of classification or in any proceeding
before the Board."
"(3) To make any false statements for the purpose of enabling
any young person to gain admittance to the exhibition of a film
classified as 'not suitable for young persons.'"
"(d) To the extent that any prosecution or other proceeding
under this ordinance, involves the entering, purchasing of a
ticket, or viewing by a young person of a film classified 'not
suitable for young persons,' it shall be a valid defense that such
young person was accompanied by his parent or legally appointed
guardian, husband or wife, throughout the viewing of such
film."
"Section 46A-5.
License: "
"Every exhibitor holding a motion picture theatre or motion
picture show license issued pursuant to Chapter 46 of the 1960
Revised Code of Civil and Criminal Ordinances of the City of Dallas
shall be entitled to issuance of a license by the City Secretary to
exhibit films classified 'not suitable for young persons.'"
"Section 46A-6.
Revocation or suspension of license:
"
"Whenever the City Attorney or any person acting under his
direction, or any ten (10) citizens of the City of Dallas, shall
file a sworn complaint with the City Secretary stating that any
exhibitor has repeatedly violated the provisions of this ordinance,
or that any
Page 390 U. S. 698
exhibitor has persistently failed 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 (16), the City Secretary shall immediately bring such
complaint to the attention of the City Council who shall set a time
and place for hearing such complaint and cause notice of such
hearing to be given to the complainants and to the exhibitor
involved. The City Council shall have authority to issue subpoenas
requiring witnesses to appear and testify at such hearing, and any
party to such hearing shall be entitled to such process. If, after
hearing the evidence, the City Council shall find the charges in
such complaint to be true, it shall issue and file an order
revoking or suspending the license above provided, insofar as it
grants the privilege of showing such classified pictures, for a
specific period not to exceed one (1) year, or may issue a
reprimand if it is satisfied that such violation will not
continue."
"The City Council likewise, after notice and hearing, may revoke
or suspend the license of any exhibitor who has refused or
unreasonably failed to produce or delayed the submission of a film
for review, when requested by the Board."
"Section 46A-7.
Judicial Review: "
"(a) Within two (2) days after the filing of any classification
by the Board, other than an order approving the classification
proposed by an exhibitor, any exhibitor may file a notice of
nonacceptance of the Board's classification, stating his intention
to exhibit the film in question under a different classification.
Thereupon it shall be the duty of the Board to do the following:
"
"(1) Within three (3) days thereafter to make application to a
District Court of Dallas County, Texas, for a temporary and a
permanent injunction to enjoin such
Page 390 U. S. 699
defendant-exhibitor, being the exhibitor who contests the
classification, from exhibiting the film in question contrary to
the provisions of this ordinance."
"(2) To have said application for temporary injunction set for
hearing within five (5) days after the filing thereof. In the event
the defendant-exhibitor appears at or before the time of the
hearing of such temporary injunction, waives the notice otherwise
provided by the Texas Rules of Civil Procedure, and requests that,
at the time set for such hearing the Court proceed to hear the case
under the Texas Rules of Civil Procedure for permanent injunction
on its merits, the Board shall be required to waive its application
for temporary injunction and shall join in such request. In the
event the defendant-exhibitor does not waive notice and/or does not
request an early hearing on the Board's application for permanent
injunction, it shall nevertheless be the duty of the board to
obtain the earliest possible setting for such hearing under the
provisions of State law and the Texas Rules of Civil
Procedure."
"(3) If the injunction is granted by the trial court and the
defendant-exhibitor appeals to the Court of Civil Appeals, the
Board shall waive any and all statutory notices and times as
provided for in the Texas State Statutes and Texas Rules of Civil
Procedure, and shall within five (5) days after receiving a copy of
appealing exhibitor's brief, file its reply brief, if required, and
be prepared to submit the case upon oral submission or take any
other reasonable action requested by the appealing exhibitor to
expedite the submission of the case to the Court of Civil Appeals,
and shall upon request of the appealing exhibitor, jointly with
such exhibitor, request the Court of Civil Appeals to advance the
cause upon the docket and to give it a preferential setting the
same as is afforded an appeal from a temporary injunction or other
preferential matters. "
Page 390 U. S. 700
"(4) If the Court of Civil Appeals should by its judgment affirm
the judgment of the trial court granting the injunction and the
appealing exhibitor should file an application for writ of error to
the Texas Supreme Court, the Board shall be required to waive any
and all notices and times as provided for in the Texas State
Statutes and the Texas Rules of Civil Procedure, and shall within
five (5) days after receiving a copy of the application for writ of
error, file its reply brief, if required, and be prepared to submit
the case upon oral submission or take any other reasonable action
requested by the appealing exhibitor to expedite the submission of
the case to the Supreme Court and shall upon request of the
appealing exhibitor, jointly with such exhibitor, request the
Supreme Court to advance the cause upon the docket and to give it a
preferential setting the same as is afforded an appeal from a
temporary injunction or other preferential matters."
"(5) If the District Court denies the Board's application for
injunction, and the Board elects to appeal, the Board shall be
required to waive all periods of time allowed it by the Texas Rules
of Civil Procedure and if a motion for a new trial is required,
shall file said motion within two (2) days after the signing of the
judgment, (or on the following Monday if said period ends on a
Saturday or Sunday, or on the day following if the period ends on a
Legal Holiday), shall not amend said motion and shall obtain a
hearing on such motion within five (5) days time. If no motion for
new trial is required as a prerequisite to an appeal under the
Texas Rules of Civil Procedure, the Board shall not file such a
motion. Within ten (10) days after the judgment is signed by the
District Court denying such injunction or within ten (10) days
after the order overruling the Board's motion for new trial is
signed, if such motion is required, the Board shall complete all
steps necessary
Page 390 U. S. 701
for the perfection of its appeal to the Court of Civil Appeals,
including the filing of the Transcript, Statement of Facts and
Appellant's brief. Failure to do so shall constitute an abandonment
of the appeal. On filing the record with the Court of Civil
Appeals, the Board shall file a motion to advance requesting the
Court to give a preferential setting the same as is afforded an
appeal from a temporary injunction or other preferential
matters."
"(6) If the Court of Civil Appeals reverses the trial court
after the trial court has granted an injunction, or if the Court of
Civil Appeals refuses to reverse the trial court after that court
has failed to grant an injunction, then if the Board desires to
appeal from the decision of the Court of Civil Appeals by writ of
error to the Supreme Court of the State of Texas, it must file its
motion for rehearing within two (2) days of rendition of the
decision of the Court of Civil Appeals (or on the following Monday,
if said period ends on a Saturday or Sunday, or on the day
following if the period ends on a Legal Holiday), and shall file
its application for writ of error within ten (10) days after the
Court of Civil Appeals' order overruling such motion for rehearing,
and failure to do so shall waive all rights to appeal from the
decision of the Court of Civil Appeals. At the time of filing the
application for writ of error, the Board shall also request the
Supreme Court to give the case a preferential setting and advance
the same on the docket."
"(b) The filing of such notice of non-acceptance shall not
suspend or set aside the Board's order, but such order shall be
suspended at the end of ten (10) days after the filing of such
notice unless an injunction is issued within such period."
"(c) Failure of any exhibitor to file the notice of
nonacceptance within two (2) days as required in Subdivision (1) of
this Section 46A-7, shall constitute acceptance
Page 390 U. S. 702
of such classification order and such exhibitor shall be bound
by such order in all subsequent proceedings except such proceedings
as may be had in connection with any application for change of
classification under Subsection (c) of Section 46A-3 above."
"Section 46A-8.
Public Nuisances: "
"The following acts are declared to be public nuisances: "
"(a) Any violation of Subdivisions (1), (2), (3), or (6), of
Subdivision (a) of Section 46A-4 of this ordinance."
"(b) Any exhibition of a film classified as 'not suitable for
young persons' at which more than three (3) young persons are
admitted."
"(c) Any exhibition of a film classified as 'not suitable for
young persons' by an exhibitor who fails to use reasonable
diligence to determine whether persons admitted to such exhibitions
are persons under the age of sixteen (16) years."
"(d) Any exhibition of a film classified as 'not suitable for
young persons' by an exhibitor who has been convicted of as many as
three (3) violations of Subdivisions (4) or (5) of Subdivision (a)
of Section 46A-4 of this ordinance in connection with the
exhibition of the same film."
"Section 46A-9.
Injunctions: "
"Whenever the Board has probable cause to believe that any
exhibitor has committed any of the acts declared in Section 46A-8
above to be a public nuisance, the Board shall have the duty to
make application to a court of competent jurisdiction for an
injunction restraining the commission of such acts."
"Section 46A-10.
Exemption to State Law: "
"Nothing in this ordinance shall be construed to regulate public
exhibitions preempted by Article 527 of the Penal Code of the State
of Texas, as amended. "
Page 390 U. S. 703
"Section 46A-11.
Severability Clause: "
Should any section, subsection, sentence, provision, clause or
phrase be held to be invalid for any reason, such holding shall not
render invalid any other section, subsection, sentence, provision,
clause or phrase of this ordinance, and the same are deemed
severable for this purpose.
"SECTION 2. That any person who shall violate any provisions of
this ordinance shall be guilty of a misdemeanor and upon conviction
thereof shall be subject to a fine not to exceed Two Hundred
Dollars ($200.00) and each offense shall be deemed to be a separate
violation and punishable as a separate offense, and each day that a
film is exhibited which has not been classified according to this
ordinance shall be a separate offense."
"SECTION 3. That Ordinance No. 10963 heretofore enacted by the
City Council of the City of Dallas on April 5, 1965, be and the
same is hereby in all things repealed and held for naught, and this
ordinance is enacted in lieu thereof."
"SECTION 4. The fact that Ordinance No. 10963 previously passed
by the City Council of the City of Dallas has been declared to be
unenforceable in the Courts by the Federal District Court, creates
an urgency and an emergency in the preservation of the public
peace, comfort and general welfare and requires that this ordinance
shall take effect immediately from and after its passage, and it is
accordingly so ordained."
* Together with No. 64,
United Artist Corp. v. City of
Dallas, on appeal from the same court.
[
Footnote 1]
402 S.W.2d 770 (1966). The Texas Supreme Court denied
discretionary review, and therefore the appeal is from the judgment
of the Court of Civil Appeals. 28 U.S.C. § 1257(2).
[
Footnote 2]
The ordinance is set forth in an
390
U.S. 676app|>Appendix to this opinion. The parties disagree
as to the meaning of certain of its provisions that have not been
authoritatively interpreted by courts of the State. The differences
are not material to our decision, however, and the summary of the
ordinance in the text above should not be taken as acceptance by us
of any of the parties' conflicting interpretations, nor as
expressing any view on the validity of provisions of the ordinance
not challenged here.
[
Footnote 3]
The two-day period is apparently part of an attempt to assure
prompt final determination. The ordinance also provides that "any
initial or subsequent exhibitor" may seek reclassification of a
film previously classified.
[
Footnote 4]
Appellants assert that, despite the seemingly clear words of the
suspension provision, exhibitors in practice have not been free to
show films without a not suitable notification while a court
challenge is pending, even though an injunction has not issued
within the 10-day period.
See n 2,
supra.
[
Footnote 5]
402 S.W.2d 770, 774-775.
[
Footnote 6]
Appellee says that youths under 16 years of age accompanied
throughout the showing of the picture by a guardian (parent) or
spouse, may attend not suitable films. Appellants read the
ordinance as making the existence of such accompaniment solely a
matter of defense should a criminal prosecution ensue.
See
n 2,
supra.
[
Footnote 7]
See n 6,
supra. It appears that a parent who purchases a ticket to
a not suitable film and gives it to his child is subject to the
misdemeanor penalty of the ordinance. To be sure, appellee
indicated at oral argument that criminal sanctions have not been
sought against anyone under the ordinance.
[
Footnote 8]
In related litigation, the provision for revocation of the
special license was held unconstitutional as violative of
Butler v. Michigan, 352 U. S. 30
(1957), by District Judge Hughes,
249 F. Supp.
19, 25 (D.C.N.D.Tex. 1965), and that ruling was not challenged
on appeal.
See Interstate Circuit, Inc. v. City of Dallas,
366 F.2d 590, 593, n. 5 (C.A. 5th Cir.1966).
[
Footnote 9]
See also Teitel Film Corp. v. Cusack, ante, p.
390 U. S. 139.
[
Footnote 10]
There are numerous state cases to the same effect.
See,
e.g., Police Commissioner v. Siegel Enterprises, Inc., 223 Md.
110, 162 A.2d 727,
cert. denied, 364 U.S. 909 (1960)
("violent bloodshed, lust or immorality or which, for a child below
the age of eighteen, are obscene, lewd, lascivious, filthy,
indecent or disgusting and so presented as reasonably to tend to
incite such a child to violence or depraved or immoral acts");
People v. Kahan, 15 N.Y.2d 311, 206 N.E.2d 333 (1965);
People v. Bookcase, Inc., 14 N.Y.2d 409, 201 N.E.2d 14
(1964) ("descriptions of illicit sex or sexual immorality");
Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121
A.2d 584 (1956) ("sacrilegious, obscene, indecent, or immoral, or
such as tend . . . to debase or corrupt morals"). In
Paramount
Film Distributing Corp. v. City of Chicago, 172 F. Supp.
69 (D.C.N.D.Ill.1959), it was alternatively held that the
standard "tends toward creating a harmful impression on the minds
of children" was indefinite; that provision had no further
legislative or judicial definition, and is therefore unlike the
statute in
Ginsberg v. New York, ante at
390 U. S. 643,
where the phrase "harmful to minors" is specifically and narrowly
defined in accordance with tests this Court has set forth for
judging obscenity.
[
Footnote 11]
See also Amsterdam, Note, The Void-for-Vagueness
Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 90 (1960);
Klein, Film Censorship: The American and British Experience, 12
Vill.L.Rev. 419, 428 (1967).
[
Footnote 12]
The ordinance does not require the Board to give reasons for its
action.
Compare ACLU v. City of Chicago, 13 Ill.App.2d
278, 286, 141 N.E.2d 56, 60 (1957):
"[T]he censoring authority, in refusing to issue a permit for
showing the film, should be obliged to specify reasons for so
doing. . . . The trial court, as well as the reviewing court, would
then have a record, in addition to the film itself, on which to
decide whether the ban should be approved. . . . Without such
procedure, the courts become not only the final tribunal to pass
upon films, but the only tribunal to assume the responsibilities of
the censoring authority."
Accord, Zenith Int'l Film Corp. v. City of Chicago, 291
F.2d 785 (C.A. 7th Cir.1961).
See also Note, 71
Harv.L.Rev. 326, 338 (1957).
[
Footnote 13]
Bantam Books, Inc. v. Sullivan, 372 U. S.
58,
372 U. S. 70
(1963).
See Freedman v. Maryland, supra.
[
Footnote 14]
In response to a request that he make findings, the trial judge
stated:
"I decline. I have so many irons for a little fellow. I have
taken on more than I can do, trying to decide a big case here, and
I have got others at home and here and in Hill County where I have
been helping out, and I do not have time to do it. I decline."
[
Footnote 15]
Appellants also contend here that, in addition to its vagueness,
the ordinance is invalid because it authorizes the restraint of
films on constitutionally impermissible grounds, arguing that the
limits on regulation of expression are those of obscenity, or at
least obscenity as judged for children. In light of our disposition
on vagueness grounds, we do not reach that issue.
[
Footnote 16]
A concurring justice of that court, with whom the author of the
majority opinion agreed, specifically rejected the view that
obscenity standards were relevant at all in determining the limits
of the ordinance. But nothing in that opinion clarifies the
standards adopted. 402 S.W.2d at 777-779.
[
Footnote 17]
Appellee adopted an amendment to the ordinance in March, 1966,
which is not involved here. It defines "sexual promiscuity" as
"indiscriminate sexual intimacies beyond the customary limits of
candor in the community, and said term as defined herein shall
include, but not be limited to sexual intercourse as that term is
defined."
[
Footnote 18]
An alternative to "likely to incite" because the portrayal might
"create the impression . . . [the] conduct is profitable,
desirable," etc., is set forth in the ordinance. That is if the
manner of presentation is "likely . . . to appeal to their [young
persons'] prurient interest." That alternative, however, was not
relied upon by the Board members who testified, nor by the
appellate court.
[
Footnote 19]
In
Bantam Books, the Commission there charged with
reviewing material "manifestly tending to the corruption of the
youth" (372 U.S. at
372 U. S. 59)
had no direct regulatory or suppressing functions, although its
informal sanctions were found to achieve the same result. The Court
held that "system of informal censorship" (
id. at
372 U. S. 71) to
violate the Fourteenth Amendment. One important factor in that
decision was the Commission's "vague and uninformative" mandate,
which the Commission, in practice, had "done nothing to make . . .
more precise."
Ibid. See also I. Carmen, Movies,
Censorship, and the Law,
passim (1966); Klein, Film
Censorship: The American and British Experience, 12 Vill.L.Rev.
419, 455 (1967); Note, 71 Harv.L.Rev. 326, 342 (1957).
[
Footnote 20]
See also, e.g., Katzev v. County of Los
Angeles, 52 Cal. 2d
360, 341 P.2d 310 (1959) (magazine sales to minors under age
18);
People v. Bookcase, Inc., supra, n 10 (book sales to minors under age 18);
Police Commissioner v. Siegel Enterprises, Inc., supra,
n 10 (sale of certain
publications to those under 18);
Paramount Film Distributing
Corp. v. City of Chicago, supra, n 10 (special license for films deemed objectionable for
those under age 21).
[
Footnote 21]
On age classification with regard to viewing motion pictures,
see generally I. Carmen, Movies, Censorship, and the Law
247-260 (1966); Note, 69 Yale L.J. 141 (1959).
[
Footnote 22]
Appellants also assert that the city ordinance violates the
teachings of
Freedman v. Maryland, supra, because it does
not secure prompt state appellate review. The assurance of a
"prompt final judicial decision" (380 U.S. at
380 U. S. 59) is
made here, we think, by the guaranty of a speedy determination in
the trial court (in this case, nine days after the Board's
classification).
See Teitel Film Corp. v Cusack, ante, p.
390 U. S. 139. Nor
is
Freedman violated by the requirement that the exhibitor
file a notice of nonacceptance of the Board's classification. To be
sure, it is emphasized in
Freedman that "only a procedure
requiring a judicial determination suffices to impose a valid final
restraint" (380 U.S. at
380 U. S. 58),
and here, if the exhibitor chooses not to file the notice of
nonacceptance, the Board's determination is final without judicial
approval. But we are not constrained to view that procedure as
invalid in the absence of a showing that it has any significantly
greater effect than would the exhibitor's decision not to contest
in court the Board's suit for a temporary injunction. The ordinance
provides that the Board has the burden of going to court to seek a
temporary injunction, once the exhibitor has indicated his
nonacceptance, and there it has the burden of sustaining its
classification.
Finally, appellant United Artists contends the ordinance
unconstitutionally infringes upon its rights by not providing for
participation by a distributor, who might wish to contest where an
exhibitor would not. Of course, the distributor must be permitted
to challenge the classification,
cf. Bantam Books, Inc. v.
Sullivan, 372 U. S. 58,
372 U. S. 64, n.
6 (1963), but the appellee assures us he may (
see n 2,
supra), and United
Artists was permitted to intervene in the trial court.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK Joins,
concurring.
As I indicated in my dissenting opinion in
Ginsberg v. New
York, ante, p.
390 U. S. 650,
if we assume
arguendo, that the censorship of obscene
publications, whether for children or for adults, is in the area of
substantive due process,
Page 390 U. S. 704
the States have a very wide range indeed for determining what
kind of movie, novel, poem, or article is harmful. If that were the
test. I would agree with my Brother HARLAN that the standard of
"sexual promiscuity" in this Dallas ordinance is sufficiently
precise and discriminating for modern man to apply
intelligently.
My approach to these problems is, of course, quite different. I
reach the result the Court reaches for the reasons stated in my
dissenting opinions in
Ginsberg and other cases, and
therefore concur in reversing the present judgment.
MR. JUSTICE HARLAN, concurring in No. 47,
ante, p.
390 U. S. 629, and
dissenting in Nos. 56 and 64.
These cases usher the Court into a new phase of the intractable
obscenity problem: may a State prevent the dissemination of obscene
or other obnoxious material to juveniles upon standards less
stringent than those which would govern its distribution to
adults?
In No. 47, the
Ginsberg case, the Court upholds a New
York statute applicable only to juveniles which, as construed by
the state courts, in effect embodies in diluted form the "adult"
obscenity standards established by
Roth v. United States,
354 U. S. 476, and
the prevailing opinion in
Memoirs v. Massachusetts,
383 U. S. 413. In
Nos. 56 and 64, the
Interstate Circuit and
United
Artists cases, the Court strikes down on the ground of
vagueness a similar Dallas ordinance, not couched, however,
entirely in obscenity terms. In none of these cases does the Court
pass judgment on the particular material condemned by the state
courts.
As the Court enters this new area of obscenity law, it is well
to take stock of where we are at present in this constitutional
field. The subject of obscenity has produced a variety of views
among the members of the Court unmatched in any other course of
constitutional
Page 390 U. S. 705
adjudication. [
Footnote 2/1] Two
members of the Court steadfastly maintain that the First and
Fourteenth Amendments render society powerless to protect itself
against the dissemination of even the filthiest materials.
[
Footnote 2/2] No other member of
the Court, past or present, has ever stated his acceptance of that
point of view. But there is among present members of the Court a
sharp divergence as to the proper application of the standards in
Roth, supra, [
Footnote
2/3]
Memoirs, supra, [
Footnote 2/4] and
Ginzburg v. United States,
383 U. S. 463,
[
Footnote 2/5] for judging whether
given material is constitutionally
Page 390 U. S. 706
protected or unprotected. Most of the present Justices who
believe that "obscenity" is not beyond the pale of governmental
control seemingly consider that the
Roth-Memoirs-Ginzburg
tests permit suppression of material that falls short of so-called
"hard core pornography," on equal terms as between federal and
state authority. [
Footnote 2/6]
Another view is that only "hard core pornography" may be
suppressed, whether by federal or state authority. [
Footnote 2/7] And still another view, that of this
writer, is that only "hard core pornography" may be suppressed by
the Federal Government, whereas, under the Fourteenth Amendment,
States are permitted wider authority to deal with obnoxious matter
than might be justifiable under a strict application of the
Roth-Memoirs-Ginzburg rules. [
Footnote 2/8]
There are also differences among us as to how our appellate
process should work in reviewing obscenity determinations. One view
is that we should simply examine the proceedings below to ascertain
whether the lower federal or state courts have made a genuine
effort to apply the
Roth-Memoirs-Ginzburg tests, and that,
if such is the case, their determinations that the questioned
Page 390 U. S. 707
material is obscene should be accepted, much as would any
findings of fact. [
Footnote 2/9]
Another view is that the question of whether particular material is
obscene inherently entails a constitutional judgment for which the
Court has ultimate responsibility, and hence that it is incumbent
upon us to judge for ourselves,
de novo, as it were, the
obscenity
vel non of the challenged matter. [
Footnote 2/10]
The upshot of all this divergence in viewpoint is that anyone
who undertakes to examine the Court's decisions since
Roth
which have held particular material obscene or not obscene would
find himself in utter bewilderment. [
Footnote 2/11] From the standpoint of the Court itself,
the current approach has required us to spend an inordinate amount
of time in the absurd business of perusing and viewing the
miserable stuff that pours into the Court, mostly in state cases,
all to no better end than second-guessing state judges. In all
except rare instances, I venture to say, no substantial free speech
interest is at stake, given the right of the States to control
obscenity.
I believe that no improvement in this chaotic state of affairs
is likely to come until it is recognized that this whole problem is
primarily one of state concern, and
Page 390 U. S. 708
that the Constitution tolerates much wider authority and
discretion in the States to control the dissemination of obscene
materials than it does in the Federal Government. Reiterating the
viewpoint that I have expressed in earlier opinions, I would limit
federal control of obscene materials to those which all would
recognize as what has been called "hard core pornography," and
would withhold the federal judicial hand from interfering with
state determinations except in instances where the state action
clearly appears to be but the product of prudish overzealousness.
See Roth v. United States, supra, at
354 U. S. 496;
Manual Enterprises v. Day, 370 U.
S. 478;
Jacobellis v. Ohio, 378 U.
S. 184,
378 U. S. 203;
Memoirs v. Massachusetts, supra, at
383 U. S. 455.
And in the juvenile field, I think that the Constitution is still
more tolerant of state policy and its applications. If current
doctrinaire views as to the reach of the First Amendment into state
affairs are thought to stand in the way of such a functional
approach, I would revert to basic constitutional concepts that
until recent times have been recognized and respected as the
fundamental genius of our federal system, namely the acceptance of
wide state autonomy in local affairs.
I come now to the cases at hand. In No. 47,
Ginsberg, I
concur in the judgment and join the opinion of the Court, fully
preserving, however, the views repeatedly expressed in my earlier
opinions in this field.
In Nos. 56 and 64, the
Interstate Circuit and
United Artists cases, I respectfully dissent. I do not
agree that the Dallas ordinance can be struck down, as the Court
now holds, on the score of vagueness. The ambiguities about which
the Court expresses concern are essentially two. [
Footnote 2/12] First, the ordinance does not
include a definition
Page 390 U. S. 709
of "sexual promiscuity." [
Footnote
2/13] Second, the ordinance provides that a film
"shall be considered 'likely to incite or encourage' crime
delinquency or sexual promiscuity . . . 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."
The Court is concerned that many may disagree as to whether any
specific materials create such impressions on young persons.
These seem to me entirely inadequate grounds on which to strike
down the ordinance. It must be granted, of course, that people may
differ as to the application of these standards; but the central
lesson of this Court's efforts in this area is that, under all
verbal formulae, including even this Court's own definition of
obscenity, reasonable men can, and ordinarily do, differ as to the
proper assessment of challenged materials. The truth is that the
Court has demanded greater precision of language from the City of
Dallas than the Court can itself give, or even than can sensibly be
expected in this area of the law.
The Court has not always asked so much. [
Footnote 2/14] In
Roth, the federal statute
under which the petitioner had been
Page 390 U. S. 710
sentenced to five years' imprisonment forbade the mailing of
material that was "obscene, lewd, lascivious, or filthy . . . or
other publication of an indecent character." [
Footnote 2/15] 354 U.S. at
354 U. S. 491.
In
Alberts v. California, the companion case to
Roth, the California statute provided that the materials
must have a "tendency to deprave or corrupt its readers."
Id. at
354 U. S. 498.
No definitions were included in either statute, yet the Court there
explicitly rejected the argument that they did not "provide
reasonably ascertainable standards of guilt. . . ."
Id. at
354 U. S. 491.
The Court recognized that the terms of obscenity statutes are
necessarily imprecise, but emphasized, quoting
United States v.
Petrillo, 332 U. S. 1,
332 U. S. 7-8,
that the
"'Constitution does not require impossible standards;' all that
is required is that the language 'conveys sufficiently definite
warning as to the proscribed conduct when measured by common
Page 390 U. S. 711
understanding and practices. . . .' [
Footnote 2/16]"
Ibid. Yet it should be repeated that the
Interstate
Circuit cases, unlike
Roth and
Alberts,
involve merely the classification, not the proscription by criminal
prosecution, of objectionable materials. In my opinion, the
ordinance does not fail either to give adequate notice of the films
that are to be restricted, or to provide sufficiently definite
standards for its administration. [
Footnote 2/17]
Although the Court finds it unnecessary to pass judgment upon
the materials involved in these cases, I consider it preferable to
face that question. Upon the premises set forth in my
Roth
and
Memoirs opinions, and reiterated here, I would hold
that, in condemning these materials, New York and the City of
Dallas have acted within constitutional limits.
I would affirm the judgments in all three cases.
[
Footnote 2/1]
In the following 13 obscenity cases from the date
Roth
was decided, in which signed opinions were written for a decision
or judgment of the Court, there has been a total of 55 separate
opinions among the Justices.
Kingsley Books, Inc. v.
Brown, 354 U. S. 436
(four opinions);
Roth v. United States, supra, (four
opinions);
Kingsley Int'l Pictures Corp. v. Regents,
360 U. S. 684 (six
opinions);
Smith v. California, 361 U.
S. 147 (five opinions);
Times Film Corp. v.
Chicago, 365 U. S. 43 (three
opinions);
Marcus v. Search Warrant, 367 U.
S. 717 (two opinions);
Manual Enterprises v.
Day, 370 U. S. 478
(three opinions);
Bantam Books, Inc. v. Sullivan,
372 U. S. 58 (four
opinions);
Jacobellis v. Ohio, 378 U.
S. 184 (six opinions);
A Quantity of Books v.
Kansas, 378 U. S. 205
(four opinions);
Memoirs v. Massachusetts, supra, (five
opinions);
Ginzburg v. United States, 383 U.
S. 463 (five opinions);
Mishkin v. New York,
383 U. S. 502
(four opinions).
[
Footnote 2/2]
See Roth v. United States, supra, at
354 U. S. 508
(dissenting opinion);
Jacobellis v. Ohio, supra, at
378 U. S. 196
(separate opinion);
Ginzburg v. United States, supra, at
383 U. S. 476,
383 U. S. 482
(dissenting opinions).
[
Footnote 2/3]
Roth stated the test to be
"whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest."
354 U.S. at
354 U. S. 489
(note omitted).
[
Footnote 2/4]
Memoirs elaborated the
Roth test as
follows:
"it must be established that (a) the dominant theme of the
material taken as a whole appeals to a prurient interest in sex;
(b) the material is patently offensive because it affronts
contemporary community standards relating to the description or
representation of sexual matters, and (c) the material is utterly
without redeeming social value."
383 U.S. at
383 U. S.
418.
[
Footnote 2/5]
The
Ginzburg "test" is difficult to state with any
precision. The Court held that,
"in close cases, evidence of pandering may be probative with
respect to the nature of the material in question and thus satisfy
the
Roth test."
383 U.S. at
383 U. S. 474.
But this "simply elaborates the test by which the obscenity
vel
non of the material must be judged."
Id. at
383 U. S. 475.
Yet evidence of pandering may "support the determination that the
material is obscene even though, in other contexts, the material
would escape such condemnation."
Id. at
383 U. S. 476.
Pandering itself evidently encompasses every form of the
"
business of purveying textual or graphic matter openly
advertised to appeal to the erotic interest of their customers.'"
Id. at 383 U. S. 467
(note omitted).
[
Footnote 2/6]
See, e.g., Jacobellis v. Ohio, supra, at
378 U. S.
193-195 (opinion of BRENNAN, J.).
[
Footnote 2/7]
See id. at
378 U. S. 197
(concurring opinion of STEWART, J.).
[
Footnote 2/8]
See Roth v. United States, supra, at
354 U. S. 496
(concurring and dissenting opinion);
Memoirs v. Massachusetts,
supra, at
383 U. S. 455
(dissenting opinion).
[
Footnote 2/9]
See Jacobellis v. Ohio, supra, at
378 U. S. 202
(dissenting opinion).
[
Footnote 2/10]
See Jacobellis, at
378 U. S. 190
(opinion of BRENNAN, J.);
Roth v. United States, supra, at
354 U. S.
497-498 (concurring and dissenting opinion);
Kingsley Int'l Pictures Corp. v. Regents, supra, at
360 U. S. 708
(concurring in result).
[
Footnote 2/11]
See, e.g., Keney v. New York, 388 U.
S. 440;
Friedman v. New York, 388 U.
S. 441;
Ratner v. California, 388 U.
S. 442;
Cobert v. New York, 388 U.
S. 443;
Sheperd v. New York, 388 U.
S. 444;
Avansino v. New York, 388 U.
S. 446;
Aday v. United States, 388 U.
S. 447;
Corinth Publications, Inc. v. Wesberry,
388 U. S. 448;
Books, Inc. v. United States, 388 U.
S. 449;
Rosenbloom v. Virginia, 388 U.
S. 450;
A Quantity of Copies of Books v.
Kansas, 388 U. S. 452;
Mazes v. Ohio, 388 U. S. 453;
Schackman v. California, 388 U. S. 454;
Landau v. Fording, 388 U. S. 456;
Potomac News Co. v. United States, 389 U. S.
47;
Conner v. City of Hammond, 389 U. S.
48;
Central Magazine Sales, Ltd. v. United
States, 389 U. S. 50;
Chance v. California, 389 U. S. 89.
[
Footnote 2/12]
The Court emphasize at greater length the failure of the Board
and the Texas courts to proffer any clarification of the ordinance.
This compels examination of the ordinance's terms, but it does not,
of course, offer any independent basis for a conclusion that the
ordinance is ambiguous.
[
Footnote 2/13]
The Court acknowledges that the city has since adopted a
definition of sexual promiscuity, but it expresses no views as to
the definition's adequacy.
[
Footnote 2/14]
It is pertinent to note that a majority of the Court did not
hold that the New York statute at issue in
Kingsley Int'l
Pictures Corp. v. Regents, supra, was impermissibly vague. The
statute forbade the exhibition of a film "which portrays acts of
sexual immorality . . . or . . . presents such acts as desirable,
acceptable or proper patterns of behavior."
Id. at
360 U. S. 685.
It appears that only the opinion of Mr. Justice Clark, concurring
in the result, upon which the Court now relies so heavily,
described this standard as vague. Indeed, Mr. Justice Frankfurter
said in his separate opinion that the "Court does not strike the
law down because of vagueness. . . ."
Id. at
360 U. S. 695.
See also id. at
360 U. S. 704.
Mr. Justice Frankfurter went on to say that
"'[s]exual immorality' is not a new phrase in this branch of
law, and its implications dominate the context. I hardly conceive
it possible that the Court would strike down as unconstitutional
the federal statute against mailing lewd, obscene and lascivious
matter, which has been the law of the land for nearly a hundred
years,
see the Act of March 3, 1865, 13 Stat. 507, and
March 3, 1873, 17 Stat. 599, whatever specific instances may be
found not within its allowable prohibition. In sustaining this
legislation, this Court gave the words 'lewd, obscene and
lascivious' concreteness by saying that they concern 'sexual
immorality.'"
Id. at
360 U. S.
695-696.
[
Footnote 2/15]
The statute involved in
Roth now provides in part that
it is a criminal offense to import or transport in interstate
commerce any
"obscene, lewd, lascivious, or filthy book, pamphlet, picture,
motion-picture film, paper, letter, writing, print, or other matter
of indecent character. . . ."
18 U.S.C. § 1462. Similarly, § 1461 provides that it is a
criminal offense to mail any "obscene, lewd, lascivious, indecent,
filthy or vile" article.
See also §§ 1463, 1464, 1465.
Although each of these sections makes profuse use of the
disjunctive, no definitions of any of these descriptive terms are
provided.
[
Footnote 2/16]
The Court went on to say that it
"is argued that, because juries may reach different conclusions
as to the same material, the statutes must be held to be
insufficiently precise to satisfy due process requirements. But it
is common experience that different juries may reach different
results under any criminal statute. That is one of the consequences
we accept under our jury system."
354 U.S. at
354 U. S. 492,
n. 30. Precisely similar reasoning should be applicable to boards
like that created by the Dallas ordinance, although the cost of
differences in result is here measured (at least initially) by film
classifications, and not by lengthy terms of imprisonment.
[
Footnote 2/17]
It is difficult to see how the Court could suppose that its
Memoirs formula offers more precise warnings to film
makers than does the Dallas ordinance. Surely the Court cannot now
believe that "redeeming social value," "patent offensiveness," and
"prurient interest" are, particularly as modified so as to apply to
children, terms of common understanding and clarity. Moreover, one
wonders whether the pandering rationale adopted in
Ginzburg v.
United States, supra, is thought to give more "guidance to
those who seek to adjust their conduct" than does the Dallas
ordinance. It is difficult to imagine any standard more vague, or
more overbroad, than the "new subjectivity" created by the Court's
search for the "leer of the sensualist."
See Magrath, The
Obscenity Cases: Grapes of
Roth, 1966 Sup.Ct.Rev. 7,
61.