The opinion of the court was delivered by: Miner, District Judge.
"1. Plaintiff has the exclusive right to
distribute, to license for exhibition and to
exhibit in the City of Chicago a certain
photoplay or motion picture entitled `Garden of
Eden,' a print of which motion picture is
attached to the Complaint filed herein, marked
Exhibit A and made a part of said Complaint.
"2. That pursuant to the provisions of a
certain municipal ordinance enacted by the City
of Chicago, being Sections 155-1 to 155-7 of the
Municipal Code of Chicago, a copy of which
ordinance is attached to the Complaint filed
herein, marked Exhibit B and made a part of said
Complaint, plaintiff, on May 15, 1959, applied to
defendant O'Connor for a permit to exhibit the
motion picture `Garden of Eden.' Defendant
O'Connor on May 28, 1959, through his duly
authorized agent, notified plaintiff that he
would not issue such a permit for the showing of
said motion picture in the City of Chicago, on
the ground that said motion picture was obscene.
Pursuant to the municipal ordinance above
referred to, plaintiff thereupon, on June 10,
1959, appealed the decision of defendant O'Connor
to defendant Daley. On July 31, 1959, defendant
Daley, through his duly authorized agent, denied
the appeal of plaintiff from the order of
defendant O'Connor and refused to issue to
plaintiff a permit to exhibit the film `Garden of
Eden' in the City of Chicago upon the ground that
said motion picture was obscene.
"3. As a result of the foregoing actions of the
defendants in denying plaintiff a permit to
exhibit said film and as a result of the
requirements of the municipal ordinance above
referred to that a permit must be obtained prior
to the exhibition of any motion picture film in
the City of Chicago, plaintiff is forbidden and
prohibited from exhibiting said motion picture."
It is not disputed that the motion picture in issue has been
viewed by audiences in numerous public theatres throughout the
United States and in foreign lands. Up to the end of 1955, it
had been viewed by approximately 1,600,000 persons in the
United States, Alaska and Hawaiian Islands. Among the cities
in the United States in which it has been so exhibited are San
Francisco and Los Angeles, California; Washington, D.C.; and,
by uncontroverted representation of counsel in open court, New
York City, New York.
The Court has been first presented with the question of
whether the film is immoral or obscene within the meaning of
the provisions of Sections 155-1 through 155-7 of the
Municipal Code of the City of Chicago. Section 155-4 sets
forth the following criteria concerning the grounds for denial
of a permit to exhibit a motion picture film:
"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
This provision of the Municipal Code of Chicago has been
construed by the Supreme Court of Illinois in the case of
American Civil Liberties Union v. City of Chicago, 1955,
3 Ill.2d 334, 121 N.E.2d 585. It is, of course, elementary
that the construction placed upon a state statute or municipal
ordinance by the highest Appellate Court of that state is
binding upon the courts of the United States.
In the American Civil Liberties Union case, Mr. Justice
Walter Schaefer, then Chief Justice, defined the word
"obscene", as it is used in the ordinance, as follows (3
Ill.2d at page 347, 121 N.E.2d at page 592):
"[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."
That opinion expressly characterized that term as being "no
broader and no less definite than as used in the postal laws,
under which `prior restraint' has long been exercised through
the exclusion of obscene matter from the mails" (Ibid.).
Further, that decision characterizes the term "immoral" found
in the ordinance as "little more than a synonym for `obscene'"
(Ibid., 3 Ill.2d at page 348, 121 N.E.2d at page 592).
This definition of the terms "obscene" and "immoral" is
substantially identical with the definition by the United
States Supreme Court in Roth v. United States, 1957,
354 U.S. 476, at page 487, 77 S.Ct. 1304, at page 1310, 1 L.Ed.2d 1498,
rehearing denied Alberts v. State of Cal., 355 U.S. 852, ...