Appellant was convicted of exhibiting a motion picture without
submitting it to the Maryland State Board of Censors for prior
approval, despite his contention that the motion picture censorship
statute unconstitutionally impaired freedom of expression. The
Maryland Court of Appeals affirmed.
1. Where motion pictures are concerned, a requirement of prior
submission to a censorship board is not necessarily
unconstitutional. Times Film Corp. v. City of Chicago,
365 U. S. 43
380 U. S.
2. One can challenge a licensing statute which endangers freedom
of expression whether or not his conduct could be prohibited by a
properly drawn statute and whether or not he applied for a license.
P. 380 U. S.
3. There is a heavy presumption against the constitutional
validity of prior restraints of expression. Bantam Books, Inc.
v. Sullivan, 372 U. S. 58
370 U. S. 70
380 U. S.
4. A noncriminal process requiring prior submission of a film to
a censor avoids constitutional invalidity only with procedural
safeguards designed to eliminate the dangers of censorship. Pp.
380 U. S.
(a) The censor must have the burden of proving that the film is
expression unprotected by the Constitution. P. 380 U. S.
(b) Any restraint prior to judicial review must be limited to
preservation of the status quo
and for the shortest period
compatible with sound judicial procedure. Pp. 380 U. S.
(c) A prompt final judicial determination of obscenity must be
assured. P. 380 U. S.
5. The absence in the Maryland procedure of adequate safeguards
against undue inhibition of protected expression renders the
statutory requirement of prior submission to censorship an invalid
previous restraint. Pp. 380 U. S.
233 Md. 498,197 A.2d 232, reversed.
Page 380 U. S. 52
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellant sought to challenge the constitutionality of the
Maryland motion picture censorship statute, Md.Ann.Code, 1957, Art.
66A, and exhibited the film "Revenge at Daybreak" at his Baltimore
theatre without first submitting the picture to the State Board of
Censors as required by § 2 thereof. [Footnote 1
] The State concedes that the picture does not
violate the statutory standards [Footnote 2
Page 380 U. S. 53
would have received a license if properly submitted, but the
appellant was convicted of a § 2 violation despite his contention
that the statute in its entirety unconstitutionally impaired
freedom of expression. The Court of Appeals of Maryland affirmed,
233 Md. 498, 197 A.2d 232, and we noted probable jurisdiction, 377
U.S. 987. We reverse.
In Times Film Corp. v. City of Chicago, 365 U. S.
, we considered and upheld a requirement of submission
of motion pictures in advance of exhibition. The Court of Appeals
held, on the authority of that decision, that
"the Maryland censorship law must be held to be not void on its
face as violative of the freedoms protected against State action by
the First and Fourteenth Amendments."
233 Md. at 505, 197 A.2d at 235. This reliance on Times
was misplaced. The only question tendered for decision in
that case was "whether a prior restraint was necessarily
unconstitutional under all circumstances." Bantam Books, Inc.
v. Sullivan, 372 U. S. 58
372 U. S. 70
Page 380 U. S. 54
(emphasis in original). The exhibitor's argument that the
requirement of submission without more amounted to a
constitutionally prohibited prior restraint was interpreted by the
Court in Times Film
as a contention that the
"constitutional protection includes complete and absolute
freedom to exhibit, at least once, any and every kind of motion
picture . . . even if this film contains the basest type of
pornography, or incitement to riot, or forceful overthrow of
orderly government. . . .'"
365 U.S. at 365 U. S. 46
47. The Court held that, on this "narrow" question, id.
365 U. S. 46
the argument stated the principle against prior restraints too
broadly; citing a number of our decisions, the Court quoted the
statement from Near v. State of Minnesota, 283 U.
, that "[t]he protection even as to previous
restraint is not absolutely unlimited." In rejecting the proffered
proposition in Times Film,
the Court emphasized, however,
that "[i]t is that question alone which we decide," 365 U.S. at
365 U. S. 46
and it would therefore be inaccurate to say that Times
upheld the specific features of the Chicago censorship
Unlike the petitioner in Times Film,
appellant does not
argue that § 2 is unconstitutional simply because it may prevent
even the first showing of a film whose exhibiting may legitimately
be the subject of an obscenity prosecution. He presents a question
quite distinct from that passed on in Times Film;
accepting the rule in Times Film,
he argues that § 2
constitutes an invalid prior restraint because, in the context of
the remainder of the statute, it presents a danger of unduly
suppressing protected expression. He focuses particularly on the
procedure for an initial decision by the censorship board, which,
without any judicial participation, effectively bars exhibition of
any disapproved film unless and until the exhibitor undertakes a
time-consuming appeal to the Maryland courts and succeeds in having
the Board's decision
Page 380 U. S. 55
reversed. Under the statute, the exhibitor is required to submit
the film to the Board for examination, but no time limit is imposed
for completion of Board action, § 17. If the film is disapproved,
or any elimination ordered, § 19 provides that
"The person submitting such film or view for examination will
receive immediate notice of such elimination or disapproval, and if
appealed from, such film or view will be promptly reexamined, in
the presence of such person, by two or more members of the Board,
and the same finally approved or disapproved promptly after such
reexamination, with the right of appeal from the decision of the
Board to the Baltimore City Court of Baltimore City. There shall be
a further right of appeal from the decision of the Baltimore City
Court to the Court of Appeals of Maryland, subject generally to the
time and manner provided for taking appeal to the Court of
Thus, there is no statutory provision for judicial participation
in the procedure which bars a film, nor even assurance of prompt
judicial review. Risk of delay is built into the Maryland
procedure, as is borne out by experience; in the only reported case
indicating the length of time required to complete an appeal, the
initial judicial determination has taken four months, and final
vindication of the film on appellate review six months. United
Artists Corp. v. Maryland State Board of Censors,
210 Md. 586,
124 A.2d 292.
In the light of the difference between the issues presented here
and in Times Film,
the Court of Appeals erred in saying
that, since appellant's refusal to submit the film to the Board was
a violation only of § 2,
"he has restricted himself to an attack on that section
Page 380 U. S. 56
alone, and lacks standing to challenge any of the other
provisions (or alleged shortcomings) of the statute."
233 Md. at 505, 197 A.2d at 236. Appellant has not challenged
the submission requirement in a vacuum, but in a concrete statutory
context. His contention is that § 2 effects an invalid prior
restraint because the structure of the other provisions of the
statute contributes to the infirmity of § 2; he does not assert
that the other provisions are independently invalid.
In the area of freedom of expression, it is well established
that one has standing to challenge a statute on the ground that it
delegates overly broad licensing discretion to an administrative
office, whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied for a
"One who might have had a license for the asking may . . . call
into question the whole scheme of licensing when he is prosecuted
for failure to procure it."
Thornhill v. State of Alabama, 310 U. S.
, 310 U. S. 97
see Staub v. City of Baxley, 355 U.
, 355 U. S. 319
Saia v. New York, 334 U. S. 558
Thomas v. Collins, 323 U. S. 516
Hague v. CIO, 307 U. S. 496
Lovell v. City of Griffin, 303 U.
, 303 U. S.
-453. Standing is recognized in such cases because of
". . . danger of tolerating, in the area of First Amendment
freedoms, the existence of a penal statute susceptible of sweeping
and improper application."
NAACP v. Button, 371 U. S. 145
371 U. S. 433
Amsterdam, Note, The Void for Vagueness Doctrine
in the Supreme Court, 109 U.Pa.L.Rev. 67, 75- 76, 80-81, 96-104
(1960). Although we have no occasion to decide whether the vice of
overbroadness infects the Maryland statute, [Footnote 3
] we think that appellant's assertion of
Page 380 U. S. 57
danger in the Maryland apparatus of censorship -- one always
fraught with danger and viewed with suspicion -- gives him standing
to make that challenge. In substance, his argument is that, because
the apparatus operates in a statutory context in which judicial
review may be too little and too late, the Maryland statute lacks
sufficient safeguards for confining the censor's action to
judicially determined constitutional limits, and therefore contains
the same vice as a statute delegating excessive administrative
Although the Court has said that motion pictures are not
"necessarily subject to the precise rules governing any other
particular method of expression," Joseph Burstyn, Inc. v.
Wilson, 343 U. S. 495
343 U. S. 503
it is as true here as of other forms of expression that "[a]ny
system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity."
Bantam Books, Inc. v. Sullivan, supra,
at 372 U. S.
". . . [U]nder the Fourteenth Amendment, a State is not free to
adopt whatever procedures it pleases for dealing with obscenity . .
. without regard to the possible consequences for constitutionally
Marcus v. Search Warrant, 367 U.
, 367 U. S. 731
The administration of a censorship system for motion pictures
presents peculiar dangers to constitutionally protected speech.
Unlike a prosecution for obscenity, a censorship proceeding puts
the initial burden on the exhibitor or distributor. Because the
censor's business is to censor, there inheres the danger that he
may well be less responsive than a court-part of an independent
branch of government -- to the
Page 380 U. S. 58
constitutionally protected interests in free expression.
] And if it is made
unduly onerous, by reason of delay or otherwise, to seek judicial
review, the censor's determination may, in practice, be final.
Applying the settled rule of our cases, we hold that a
noncriminal process which requires the prior submission of a film
to a censor avoids constitutional infirmity only if it takes place
under procedural safeguards designed to obviate the dangers of a
censorship system. First, the burden of proving that the film is
unprotected expression must rest on the censor. As we said in
Speiser v. Randall, 357 U. S. 513
357 U. S.
"Where the transcendent value of speech is involved, due process
certainly requires . . . that the State bear the burden of
persuasion to show that the appellants engaged in criminal
Second, while the State may require advance submission of all
films, in order to proceed effectively to bar all showings of
unprotected films, the requirement cannot be administered in a
manner which would lend an effect of finality to the censor's
determination whether a film constitutes protected expression. The
teaching of our cases is that, because only a judicial
determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a
judicial determination suffices to impose a valid final restraint.
See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books
v. State of Kansas, 378 U. S. 205
Marcus v. Search Warrant, supra; Manual Enterprises, Inc. v.
Day, 370 U. S. 478
370 U. S.
-519. To this end, the exhibitor must be assured,
Page 380 U. S. 59
statute or authoritative judicial construction that the censor
will, within a specified brief period, either issue a license or go
to court to restrain showing the film. Any restraint imposed in
advance of a final judicial determination on the merits must
similarly be limited to preservation of the status quo
the shortest fixed period compatible with sound judicial
resolution. Moreover, we are well aware that, even after expiration
of a temporary restraint, an administrative refusal to license,
signifying the censor's view that the film is unprotected, may have
a discouraging effect on the exhibitor. See Bantam Books, Inc.
v. Sullivan, supra.
Therefore, the procedure must also assure
a prompt final judicial decision, to minimize the deterrent effect
of an interim and possibly erroneous denial of a license.
Without these safeguards, it may prove too burdensome to seek
review of the censor's determination. Particularly in the case of
motion pictures, it may take very little to deter exhibition in a
given locality. The exhibitor's stake in any one picture may be
insufficient to warrant a protracted and onerous course of
litigation. The distributor, on the other hand, may be equally
unwilling to accept the burdens and delays of litigation in a
particular area when, without such difficulties, he can freely
exhibit his film in most of the rest of the country; for we are
told that only four States and a handful of municipalities have
active censorship laws. [Footnote
It is readily apparent that the Maryland procedural scheme does
not satisfy these criteria. First, once the censor disapproves the
film, the exhibitor must assume
Page 380 U. S. 60
the burden of instituting judicial proceedings and of persuading
the courts that the film is protected expression. Second, once the
Board has acted against a film, exhibition is prohibited pending
judicial review, however protracted. Under the statute, appellant
could have been convicted if he had shown the film after
unsuccessfully seeking a license, even though no court had ever
ruled on the obscenity of the film. Third, it is abundantly clear
that the Maryland statute provides no assurance of prompt judicial
determination. We hold, therefore, that appellant's conviction must
be reversed. The Maryland scheme fails to provide adequate
safeguards against undue inhibition of protected expression, and
this renders the § 2 requirement of prior submission of films to
the Board an invalid previous restraint.
How or whether Maryland is to incorporate the required
procedural safeguards in the statutory scheme is, of course, for
the State to decide. But a model is not lacking: In Kingsley
Books, Inc. v. Brown, 354 U. S. 436
upheld a New York injunctive procedure designed to prevent the sale
of obscene books. That procedure postpones any restraint against
sale until a judicial determination of obscenity following notice
and an adversary hearing. The statute provides for a hearing one
day after joinder of issue; the judge must hand down his decision
within two days after termination of the hearing. The New York
procedure operates without prior submission to a censor, but the
chilling effect of a censorship order, even one which requires
judicial action for its enforcement, suggests all the more reason
for expeditious determination of the question whether a particular
film is constitutionally protected.
The requirement of prior submission to a censor sustained in
is consistent with our recognition
Page 380 U. S. 61
that films differ from other forms of expression. Similarly, we
think that the nature of the motion picture industry may suggest
different time limits for a judicial determination. It is common
knowledge that films are scheduled well before actual exhibition,
and the requirement of advance submission in § 2 recognizes this.
One possible scheme would be to allow the exhibitor or distributor
to submit his film early enough to ensure an orderly final
disposition of the case before the scheduled exhibition date -- far
enough in advance so that the exhibitor could safely advertise the
opening on a normal basis. Failing such a scheme or sufficiently
early submission under such a scheme, the statute would have to
require adjudication considerably more prompt than has been the
case under the Maryland statute. Otherwise, litigation might be
unduly expensive and protracted, or the victorious exhibitor might
find the most propitious opportunity for exhibition past. We do not
mean to lay down rigid time limits or procedures, but to suggest
considerations in drafting legislation to accord with local
exhibition practices, and in doing so to avoid the potentially
chilling effect of the Maryland statute on protected
Md.Ann.Code, 1957, Art. 66A, § 2:
"It shall be unlawful to sell, lease, lend, exhibit or use any
motion picture film or view in the State of Maryland unless the
said film or view has been submitted by the exchange, owner or
lessee of the film or view and duly approved and licensed by the
Maryland State Board of Censors, hereinafter in this article called
Md.Ann.Code, 1957, Art. 66A, § 6:
"(a) Board to examine, approve or disapprove films. -- The Board
shall examine or supervise the examination of all films or views to
be exhibited or used in the State of Maryland and shall approve and
license such films or views which are moral and proper, and shall
disapprove such as are obscene, or such as tend, in the judgment of
the Board, to debase or corrupt morals or incite to crimes. All
films exclusively portraying current events or pictorial news of
the day, commonly called news reels, may be exhibited without
examination and no license or fees shall be required therefor."
"(b) What films considered obscene. -- For the purposes of this
article, a motion picture film or view shall be considered to be
obscene if, when considered as a whole, its calculated purpose or
dominant effect is substantially to arouse sexual desires, and if
the probability of this effect is so great as to outweigh whatever
other merits the film may possess."
"(c) What films tend to debase or corrupt morals. -- For the
purposes of this article, a motion picture film or view shall be
considered to be of such a character that its exhibition would tend
to debase or corrupt morals if its dominant purpose or effect is
erotic or pornographic; or if it portrays acts of sexual
immorality, lust or lewdness; or if it expressly or impliedly
presents such acts as desirable, acceptable or proper patterns of
"(d) What films tend to incite to crime. -- For the purposes of
this article, a motion picture film or view shall be considered of
such a character that its exhibition would tend to incite to crime
if the theme or the manner of its presentation presents the
commission of criminal acts or contempt for law as constituting
profitable, desirable, acceptable, respectable or commonly accepted
behavior, or if it advocates or teaches the use of, or the methods
of use of, narcotics or habit-forming drugs."
Appellant also challenges the constitutionality of § 6,
establishing standards, as invalid for vagueness under the Due
Process Clause; § 11, imposing fees for the inspection and
licensing of a film, as constituting an invalid tax upon the
exercise of freedom of speech; and § 23, allowing exemptions to
various classes of exhibitors, as denying him the equal protection
of the laws. In view of our result, we express no views upon these
Emerson, The Doctrine of Prior Restraint, 20 Law
& Contemp.Prob. 648, 656-659 (1955). This is well illustrated
by the fact that the Maryland Court of Appeals has reversed the
Board's disapproval in every reported case. United Artists
Corp. v. Maryland State Board of Censors, supra; Maryland State
Board of Censors v. Times Film Corp.,
212 Md. 454, 129 A.2d
833; Fanfare Films, Inc. v. Motion Picture Censor Board,
234 Md. 10, 197 A.2d 839.
An appendix to the brief amici curiae
of the American
Civil Liberties Union and its Maryland Branch lists New York,
Virginia and Kansas as the three States having statutes similar to
the Maryland statute, and the cities of Chicago, Detroit, Fort
Worth and Providence as having similar ordinances. Twenty-eight of
the remaining 39 municipal ordinances and codes are listed as
MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins,
On several occasions, I have indicated my view that movies are
entitled to the same degree and kind of protection under the First
Amendment as other forms of expression. Superior Films v.
Department of Education, 346 U. S. 587
346 U. S. 588
Kingsley International Pictures Corp. v. Regents,
360 U. S. 684
360 U. S. 697
Times Film Corp. v. City of Chicago, 365 U. S.
, 365 U. S. 78
For the reasons
there stated, I do not
Page 380 U. S. 62
believe any form of censorship -- no matter how speedy or
prolonged it may be -- is permissible. As I see it, a pictorial
presentation occupies as preferred a position as any other form of
expression. If censors are banned from the publishing business,
from the pulpit, from the public platform -- as they are -- they
should be banned from the theatre. I would not admit the censor
even for the limited role accorded him in Kingsley Books, Inc.
v. Brown, 354 U. S. 436
adhere to my dissent in that case. Id.
at 354 U. S.
-447. Any authority to obtain a temporary injunction
gives the State "the paralyzing power of a censor." Id.
354 U. S. 446
The regime of Kingsley Books
"substitutes punishment by
contempt for punishment by jury trial." Id.
354 U. S. 477
I would put an end to all forms and types of censorship and give
full literal meaning to the command of the First Amendment.
* The Court today holds that a system of movie censorship must
contain at least three procedural safeguards if it is not to run
afoul of the First Amendment: (1) the censor must have the burden
of instituting judicial proceedings; (2) any restraint prior to
judicial review can be imposed only briefly in order to preserve
the status quo; and (3) a prompt judicial determination of
obscenity must be assured. Thus, the Chicago censorship system,
upheld by the narrowest of margins in Times Film Corp. v. City
of Chicago, 365 U. S. 43
not survive under today's standards, for it provided not one of
these safeguards, as the dissenters there expressly pointed out.
at 365 U. S.