United States District Court, Northern District of Illinois, E.D
March 21, 1956
TIMES FILM CORPORATION, A NEW YORK CORPORATION, PLAINTIFF,
CITY OF CHICAGO, A MUNICIPAL CORPORATION, RICHARD J. DALEY AND TIMOTHY J. O'CONNOR, DEFENDANTS.
The opinion of the court was delivered by: Perry, District Judge.
This action is before the Court upon the objection of the
defendants to the Master's Report.
Section 155-4 of the Municipal Code of the City of Chicago
provides as follows:
"Such permit shall be granted only after the motion
picture film for which said permit is requested has
been produced at the office of the commissioner of
police for examination or censorship.
"If a picture or series of pictures, for the
showing or exhibition of which an application for a
permit is made, 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, it shall be the duty of the
commissioner of police to refuse such permit;
otherwise it shall be his duty to grant such permit.
"In case the commissioner of police shall refuse to
grant a permit as hereinbefore provided, the
applicant for the same may appeal to the mayor. Such
appeal shall be presented in the same manner as the
original application to the commissioner of police.
The action of the mayor on any application for a
permit shall be final."
The same ordinance was before the Supreme Court of Illinois in
the case of American Civil Liberties Union v. Chicago, 3 Ill.2d 334
121 N.E.2d 585
, 592. In that case, the court, speaking
through Justice Schaefer, defined the term "obscene" as follows:
"That a motion picture is obscene within the
meaning of the ordinance 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 artistic or other merits the film may
possess. In making this determination the film must
be tested with reference to its effect upon the
normal, average person."
The movie in question is entitled, "The Game of Love", which is
an adaptation of a novel entitled, "Le Ble en Herbe" written by
the French authoress Gabrielle Claudine Jouvenal under the pen
name of Collette.
The film features the experiences of two adolescents of
approximately sixteen years of age, a boy, Philip, and a girl,
Vinca. They are vacationing on the coast of France with their
respective families who live in the same boarding house.
At the very outset, Vinca displays a romantic attachment for
Philip who remains indifferent.
During the opening stages of this movie, Philip is shown
canoeing off the coastal shore, when the boat overturns and he
loses all of his clothes. Swimming back, he comes upon the shore
in the midst of a group of convent school girls who are having a
beach outing under the supervision of two nuns. Philip finds the
small beret of one of the girls, covers himself in a suggestive
manner, and begins to run along the beach. The girls he meets
along the way home, however, tell him there is no longer any need
for him to cover himself. Later, he is taken into custody by the
local police for indecent exposure but released when his parents
and Vinca explain the circumstances.
As the story develops, an adult woman of approximately 30 years
of age, comes to the coast. Philip delivers bread to her home and
she is attracted by him. It is clear from the film and its
dialogue that she seduces him and that they consort with each
other. The woman is shown locking herself and the boy in her
sleeping quarters for the night. For several days and nights
thereafter, Philip is constantly in her company at her house. The
woman suddenly terminates the relationship and refers to Philip
as a passing vacation "whim".
The film closes with a church scene from which it could
possibly be implied that Philip and Vinca will marry.
On May 6, 1955, the plaintiff applied to the defendant Police
Commissioner for a permit to exhibit the film in question. On
June 2, 1955, the Commissioner notified the plaintiff that the
application for permit was denied on the ground that the
Censorship Board had rejected the film because it was not
acceptable to standards of decency, with immorality featured and
On June 6, 1955, the plaintiff appealed the decision of the
Commissioner to the Mayor.
On June 20, 1955, this appeal was denied on the ground that the
film was immoral and obscene. The action in the District Court of
the United States followed, jurisdiction of which was based on
diversity of citizenship and upon the alleged infringement by the
local authorities of the plaintiff's rights under the 1st and
14th Amendments of the United States Constitution.
Pursuant to the urgent request of the plaintiffs, the Master
took full and complete evidence and rendered three basic rulings:
(1) The calculated purpose of the film in litigation is not
substantially to arouse the sexual desires within the definition
of the Supreme Court of Illinois as announced in the case of
American Civil Liberties Union v. Chicago, supra; (2) The
interest of the State in preventing the probability of the
arousal of sexual desires in normal persons is not a sufficiently
overriding consideration to justify an ordinance authorizing
prior restraint on freedom of expression; (3) The ordinance in
question is unconstitutional because of vagueness and lack of
The Master was right when he ruled against the exhibition of
the film to persons under the age of eighteen. That, for the
purpose of enforcement of the restriction, is of little value. It
is this Court's view that he did not go far enough. The Court had
the opportunity to and did view the film and it finds that
the local censorship authorities were warranted in finding it
obscene within the recent definition of the Supreme Court of
Illinois. The dominant tone of the film is sexuality. The young
hero's accidental loss of wearing apparel during the course of
the canoeing accident in and of itself is not startling. The
fact, however, that he is depicted in the nude as he comes from
the water before the French convent girls who have historically
been associated with rigidity and seclusion, serves only to
emphasize the hero's natural state and to focus the attention of
the audience on it. The major part of the movie then dwells on
his illicit relationship with an adventurous adult woman, and
later with Vinca. The film appears to casually write off this
unconventional behavior as a mere interlude in the maturing
process of the young hero. The Court is unable to detect any
purpose other than an emphasis upon its sexuality.
The serious problem which confronts the Court in this action is
the question whether the interest of the State in this particular
area is a sufficiently overriding consideration as to justify an
ordinance authorizing a prior restraint upon the freedom of
expression. Specifically, does the First Amendment to the Federal
Constitution allow a local authority to censor films under the
statute designed to prevent the exhibition of obscene movies? The
Master has answered in the negative. This Court is of the view
that the First Amendment allows such limitation. The right of
free speech is a political right guaranteed by the First
Amendment. It is not absolute and unlimited. In the case of Near
v. Minnesota, 283 U.S. 697, at page 716, 51 S.Ct. 625, 631, 75
L.Ed. 1357, the Supreme Court of the United States said:
"No one would question but that a government might
prevent actual obstruction to its recruiting service
or the publication of the sailing dates of transports
or the number and location of troops. On similar
grounds, the primary requirements of decency may be
enforced against obscene publications. The security
of the community life may be protected against
incitements to acts of violence and the overthrow by
force of orderly government."
It should be noted that the court placed "the primary
requirements of decency" on a parallel level with matters
relating to national security.
In Chaplinsky v. New Hampshire, 315 U.S. 568, at pages 571-572,
62 S.Ct. 766, at page 769, 86 L.Ed. 1031, the court stated:
"Allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not
absolute at all times and under all circumstances.
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which has never been thought to raise any
Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting
or `fighting' words — those which by their very
utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well
observed that such utterances are no essential part
of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the
social interest in order and morality."
This principle of law was reaffirmed in the recent case of
Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495
, at pages 502-503,
72 S.Ct. 777, 781, 96 L.Ed. 1098:
"To hold that liberty of expression by means of
motion pictures is guaranteed by the First and
Fourteenth Amendments, however, is not the end of our
problem. It does not follow that the Constitution
requires absolute freedom to exhibit every motion
picture of every kind at all times and all places.
That much is evident from the series of decisions
of this Court with respect to other media of
communication of ideas."
The prevention of the exhibition of obscene films in the light
of the foregoing judicial announcements is consistent with the
constitutional guaranty of the First Amendment. It is a proper
exercise of the police power reserved to the individual States.
In the light of the language of the Supreme Court in the cited
cases, this Court cannot agree with the suggestion of the
plaintiff that the individual States and their municipalities
must wait until a questionable film is shown and then resort to
its remedy by way of protracted criminal proceedings.
This Court is aware of the recent decision in Holmby
Productions, Inc., v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, which
is vigorously advanced by the plaintiff in support of its
position. In the absence of a complete record, the specific
ground for the per curiam order of reversal is not ascertainable.
In the light of the foregoing cases, which have never been
overruled, and in view of the fact that the Supreme Court in the
Burstyn case expressly reserved decision on the question as to
whether the local authorities can censor and prevent the showing
of obscene films, this Court refuses to assume that the Supreme
Court decided so vital a question by way of a per curiam order.
Finally, the terms "immoral" or "obscene" are not so vague and
uncertain as to render the ordinance in question unconstitutional.
First, this Court agrees with the analysis and ruling of the
Supreme Court of Illinois that the term "immoral" is little more
than a synonym for "obscene". American Civil Liberties Union v.
Chicago, 3 Ill.2d 334, 348, 121 N.E.2d 585.
The term "obscene" has been the target of constitutional
attacks in criminal prosecutions under 18 U.S.C.A. 1461, which
proscribes, among other things, the mailing of obscene articles
through the mails. These attacks have been grounded on the
contention that the term in question does not lay down a definite
standard of criminal liability, thereby rendering the statute
unconstitutional. This contention has been overruled. Rosen v.
U.S., 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Tyomies Publishing
Co. v. U.S., 6 Cir., 211 F. 385; U.S. v. Rebhuhn, 2 Cir.,
109 F.2d 512.
If the term "obscene" so sufficiently provides a definite
standard of criminal liability in the cited statute within
constitutional requirements that it can support a judgment of
conviction and possible commitment of the offender to a penal
institution, a fortiori it must be equally definite and certain
for purposes of licensing.
If this ordinance is to be voided for the reason that the terms
"obscene" and "immoral" are too vague and indefinite, the State's
police power in the area of health and morals, which has always
enjoyed constitutional sanction, will be seriously invaded and
reduced by the film industry, which currently presents one of the
most popular and effective media of communication.
The Burstyn case is distinguishable from the case at bar. In
that case, the Supreme Court dealt with the term "sacrilegious".
It is a highly technical term in the field of theology and is
open to a variety of meanings and interpretations depending upon
which religious sect is consulted for a definition. The term
"obscene", however, rests upon principles of basic morality. As
Justice Harlan said in the Rosen case [161 U.S. 29, 16 S.Ct.
438], everyone "must take notice of what, in this enlightened
age, is meant by decency, purity, and chastity in social life,
and what must be deemed obscene, lewd, and lascivious."
This Court holds that the film in question is obscene within
the aforesaid definition of the Supreme Court of Illinois; that
the local municipal authorities properly exercised a police power
and that the ordinance is not unconstitutional.
Objections of the defendants to the Master's Report will be
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