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EXCELSIOR PICTURES v. CITY OF CHICAGO

March 31, 1960

EXCELSIOR PICTURES CORP., A NEW YORK CORPORATION, PLAINTIFF,
v.
CITY OF CHICAGO, ILLINOIS, A MUNICIPAL CORPORATION, RICHARD J. DALEY AND TIMOTHY J. O'CONNOR, DEFENDANTS.



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 Obscenity Issue

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
  permit."

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, ...


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