Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Plaintiff, a New York corporation, filed its complaint in the district court, on the ground of diversity of citizenship between it and the defendants, city of Chicago, its mayor, and its commissioner of police.
In count I, it alleges that it had the exclusive right to exhibit in said city a motion picture film entitled "The Game of Love", and that, pursuant to sections 155-1 to 155-7 of the municipal code of the city, it applied to defendant O'Connor for a permit to exhibit the film, but that he declined to do so because "it is not acceptable to standards of decency, with immorality featured and dialogue unfit". It further alleges that its appeal from said decision to defendant Daley was denied and a permit was refused.It is charged that O'Connor and Daley had a duty to grant the permit since the film does not come within the description of films for which said defendants have the duty to refuse permits and that their actions in denying the permit are unlawful and void in that they far exceed the discretion vested in them by said ordinance.
Count II charges that the denial of the permit was an infringement of plaintiff's constitutional rights to freedom of speech and the press and to engage in lawful business activities in said city.
In count III plaintiff charges that said municipal ordinance violates on its face the first and fourteenth amendments to the Constitution of the United States and unlawfully abridges the right protected therein.
Attached to the complaint is a film of said motion picture, as well as a copy of the ordinance.
The ordinance, in its relevant parts, makes it unlawful for a person to put into circulation any motion picture film for exhibition within the city, without first securing a permit therefor from the commissioner of police. It provides a penalty for a violation of the ordinance. It also provides that before any such permit is granted, an application therefor shall be made and a film of the picture shall be shown to the commissioner, who shall inspect it, or cause it to be inspected, whereupon he shall grant or deny a permit. In addition, section 155-4 provides, inter alia, "if a picture * * * is immoral or obscene, * * * it shall be the duty of the commissioner of police to refuse 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, * * * [whose action] shall be final."*fn1
The answer of defendant, seeking to justify the refusal of a permit to plaintiff, averred that the film was violative of section 155-4 "in that it is immoral and obscene * * *."
A master in chancery, to whom the district court referred this case, received and reported to the court the testimony of various witnesses and his conclusions and recommendations.
The district court considered that report,*fn2 viewed the film, and found that it is obscene and immoral, that the ordinance is not violative of the first and fourteenth amendments to the Constitution of the United States, and that the denial of a permit did not violate any right of plaintiff under said amendments. It dismissed the complaint. From that decree plaintiff appealed.
1. Expression by means of motion pictures is included within the free speech and free press guaranty of the first and fourteenth amendments. See Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, at page 502, 72 S. Ct. 777, at page 781, 96 L. Ed. 1098, where the court said:
"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. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. * * *"
In that case, 343 U.S. at 506, 72 S. Ct. at page 782, the court disclaimed any intention to decide "whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films." It held only that, under said amendments, a state may not ...