APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. CHIEF JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1954.
Chapter 155 of the Municipal Code of the city of Chicago makes it unlawful to exhibit any motion picture or to distribute any motion picture to any exhibitor in the city without having first secured a permit from the commissioner of police. The commissioner is required to issue the permit, upon application and payment of the prescribed fee, unless he determines that the picture is "immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being," in which case he is required to refuse a permit. The American Civil Liberties Union and Charles Liebman, assignees of the right to distribute and exhibit in Chicago a motion picture called "The Miracle," applied to the commissioner for a permit. The commissioner refused to issue it on the ground that the picture was "immoral and obscene." As provided by the ordinance, an appeal was taken to the mayor, who affirmed the commissioner's decision.
The distributors thereupon brought suit in the circuit court of Cook County against the city of Chicago, the mayor, and the commissioner of police. The complaint, to which a print of the film was attached as an exhibit, alleged that the ordinance deprived the plaintiffs of the right of free speech guaranteed by article II, section 4 of the Illinois constitution, and by the first and fourteenth amendments to the United States constitution. In addition to a judgment declaring the ordinance unconstitutional, the plaintiffs sought an injunction to restrain the defendants from preventing the exhibition of the film. By their answer the defendants denied that the ordinance was invalid, and asserted that the picture was immoral and obscene. They also filed a demand for jury trial, and challenged the plaintiffs' right to a declaratory judgment on the ground that there was an adequate remedy at law by way of mandamus. No reply was filed by the plaintiffs. The film was viewed by the court over the defendants' objection, and a decree was entered enjoining the defendants from preventing the exhibition of the film. The court has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.
The most important issue which this case presents is whether the first and fourteenth amendments to the constitution of the United States, and article II, section 4, of the constitution of Illinois permit the censorship of motion pictures. The ordinance before us has twice been upheld by this court, and the defendants consider the question settled. The plaintiffs, on the other hand, take the position that those decisions are superseded by subsequent decisions of the United States Supreme Court which the plaintiffs regard as rendering unconstitutional, as a "prior restraint" upon freedom of speech, all censorship of motion pictures. Disposition of the case thus requires a review both of our decisions and of those of the Supreme Court of the United States.
In Block v. City of Chicago, 239 Ill. 251, decided in 1909, suit was brought to enjoin the city from interfering with the exhibition of two films entitled "The James Boys" and "Night Riders," for which a permit had been denied. The ordinance was sustained against the objection that the terms "obscene" and "immoral" were so broad as to make the delegation of censorship power to the chief of police unconstitutional, and it was also held that no hearing need be allowed before refusing a permit. In 1930 the ordinance again came before the court in United Artists Corp. v. Thompson, 339 Ill. 595, a case arising out of the denial of a permit to exhibit a film called "Alibi." The court held invalid that part of the ordinance which provided for confiscation, without notice, of films put into distribution after the refusal of a permit, but summarily upheld the licensing provision, stating, "The power of a city to provide for a board of censors and to require a permit before any moving picture can be exhibited in a municipality cannot be doubted." 339 Ill. 595, 602.
In each case the permit was denied on the ground of immorality, a term to which the court ascribed a broad meaning. In the Block case it was impliedly held that the portrayal of crimes was immoral, since this would "necessarily" produce evil effects upon youthful spectators, and the court stressed the point that the typical audience included "those classes whose age, education and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations." 239 Ill. 251, 258, 265.) In the United Artists case the police censor board described the picture as portraying numerous crimes of violence and in particular as showing third degree and other brutal practices by the police, which would tend "to create contempt and hatred for the entire police force." 339 Ill. 595, 598.) The court, repeating the remarks made in the Block case concerning the necessity of protecting the more susceptible members of the audience, agreed that the film, which it did not view, "could not fail to have a tendency to cheapen the value of human life in the minds of youthful spectators," and that "its exhibition would have a tendency toward immorality and to cause an increasing disrespect for the law and its officers." 339 Ill. 595, 602, 605.
What is most significant about these cases in their present bearing is that neither of them considered or even referred to the constitutional issue of freedom of speech. When the Block case was decided in 1909, it had not yet been determined that the freedom of speech which is secured against Federal infringement by the first amendment to the constitution of the United States is also secured by the due process clause of the fourteenth amendment against infringement by the States. (See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 499, 500.) And when the United Artists case was decided, motion pictures were not regarded as a form of communication within the protection of the first and fourteenth amendments. (See Mutual Film Corp. v. Industrial Com. 236 U.S. 230.) Subsequent decisions of the United States Supreme Court, however, have extended that protection to motion pictures, and we therefore must re-examine the validity of the ordinance in their light.
In the first of these cases, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, the Supreme Court reversed a decision of the Court of Appeals of New York which had sustained censorship of the same film which is before us now. We may say at once that we do not regard that decision as having completely immunized "The Miracle" against censorship. The sole basis of censorship in that case was that the film was sacrilegious; power to censor upon any other basis was not considered by the Supreme Court. That court, while holding that expression of ideas through motion pictures was protected under the first and fourteenth amendments, observed that this protection did not imply "absolute freedom to exhibit every motion picture of every kind at all times and all places," or that the rules governing motion pictures were necessarily the same as those applicable to other media of expression. (343 U.S. 495, 502, 503.) And the court expressly reserved decision on the question "whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films." 343 U.S. 495, 506-507. Cf. Near v. Minnesota, 283 U.S. 697, 716; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572; Winters v. New York, 333 U.S. 507, 518.
The court did emphasize, however, that freedom of expression is the rule, and that particularly in the case of a "prior restraint" a State has a heavy burden to justify an exception to that rule (343 U.S. 495, 503, 504,) a burden which the court held had not been sustained in the case before it. The term "sacrilegious" had been construed by the New York Court of Appeals to include the act of treating any religion "with contempt, mockery, scorn and ridicule," or any "visual caricature of religious beliefs held sacred by one sect or another." (303 N.Y. 242, 258, 101 N.E.2d 665, 672.) The Supreme Court observed that this statutory standard was so broad as to vest unlimited discretion in the censors, and that "the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views." 343 U.S. 495, 504, 505.
Shortly after the Burstyn decision the court, in Gelling v. Texas, 343 U.S. 960, reversed without opinion a conviction for exhibiting a picture which had been denied a license under the terms of an ordinance permitting a license to be withheld if the censors should be of the opinion that the film was "prejudicial to the best interests" of the local residents.
More recently the Supreme Court has reversed two other State court decisions which upheld censorship. In Superior Films, Inc. v. Department of Education, 159 Ohio St. 315, 112 N.E.2d 311, a permit was refused the motion picture "M" under an Ohio statute providing that "Only such pictures as are in the judgment and discretion of the department of education of a moral, educational or amusing and harmless character shall be passed and approved." (Ohio Rev. Code 1953, sec. 3305.04.) The basis for the censors' refusal was that "the effect of this picture on unstable persons of any age level could lead to a serious increase in immorality and crime" and that the film presented a story of criminal perversion in such a way as to result in sympathy for it rather than a constructive plan for dealing with it. The Ohio court upheld the power of the State to censor films for the sake of protecting decency and morals, and met the charge that the statute was vague by relying upon the Mutual Film case, 236 U.S. 230, which involved the same Ohio statute, and which, the court stated, had not been overruled on this point by the Burstyn case. Two dissenting judges regarded the latter decision as invalidating the Ohio censorship statute.
Commercial Pictures Corp. v. Board of Regents, 305 N.Y. 336, 113 N.E.2d 502, involved the movie "La Ronde," which had been suppressed on the grounds that it was "immoral" and "would tend to corrupt morals." (See N.Y. Educ. Laws, sec. 122.) The New York Court of Appeals held that the State was entitled to take measures to preserve marriage, the home, and the moral welfare of its citizens against a picture like this, which in the court's view presented adultery and fornication in such a seductive manner as to invite imitation by the audience. Construing the term "immoral" to refer solely to sexual immorality, the majority of the court considered that there was no unconstitutional vagueness present. Two members of the court dissented.
The Supreme Court reversed both the Ohio and the New York decisions in a memorandum opinion citing the Burstyn case. Justices Douglas and Black concurred on the ground that all censorship of films was forbidden by the first amendment. ...