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April 11, 1960


The opinion of the court was delivered by: Campbell, Chief Judge.

Plaintiff, Zenith International Film Corporation, a New York corporation, brings this action against defendants, City of Chicago, a municipal corporation organized and existing under the laws of the State of Illinois, Richard J. Daley, Mayor of the City of Chicago and an Illinois citizen, and Kyran Phelan, the duly appointed and acting Commissioner of Police of the City of Chicago, and a citizen of the State of Illinois (since the filing of this complaint, the City of Chicago has appointed Orlando Wilson as "Superintendent of Police," replacing Kyran Phelan), for an order directing defendants to issue plaintiff a motion picture permit to exhibit the film "The Lovers" in Chicago and for an order enjoining defendants from preventing plaintiff's exhibition of the film in Chicago upon the grounds that actions of defendants are an infringement and denial to plaintiff of its constitutional rights to freedom of speech, freedom of press, and freedom to engage in lawful business activities in the City of Chicago as set forth in the First Amendment and the Fourteenth Amendment to the Constitution of the United States. Jurisdiction is founded upon Title 28 U.S.C. § 1331 and 1332.

On September 6, 1959, plaintiff, as the exclusive distributor for the film, "The Lovers," in Chicago, applied to the then Commissioner of Police, Timothy J. O'Connor, for a permit to exhibit the film in Chicago pursuant to Sections 155-1 to 155-4 of the Municipal Code of the City of Chicago.

On September 21, 1959, after the Board of Review, to whom Commissioner O'Connor had delegated the duty of reviewing motion pictures for which permits had been requested, had viewed the film, Commissioner O'Connor notified plaintiff that he would not issue a permit to exhibit the film in Chicago on the ground that it is immoral and obscene.

Plaintiff then appealed Commissioner O'Connor's decision to Mayor Daley and on December 2, 1959, plaintiff's counsel received a letter from John C. Melaniphy, Corporation Counsel for the City of Chicago, stating that the appeal had been referred to the law department of the City of Chicago. The letter further stated:

    "The motion picture has been reviewed and it is
  recommended that a permit be issued with the
  understanding that one of the obscene scenes in the
  picture be deleted. If you will contact Sergeant
  Vincent Nolan of the Police Censor Board, he will
  advise you as to the particular scene. If it is
  desired that the distributor will not delete this
  scene, then the permit shall not issue."

On December 14, 1959, the president of plaintiff came to Chicago from New York and with counsel, met with Sergeant Nolan, Director of the Police Censor Unit, and Officer Considine of the Police Censor Unit, to discuss the scene referred to in the letter of December 2, 1959, received from Corporation Counsel Melaniphy. Sergeant Nolan advised plaintiff that notwithstanding the letter of December 2, 1959, his instructions from Commissioner O'Connor were to insist upon the deletion of a number of scenes. Commissioner O'Connor subsequently confirmed these instructions and on February 3, 1960, Mayor Daley formally denied the appeal of plaintiff from the order of Commissioner O'Connor and refused to issue plaintiff a permit to exhibit the film "The Lovers" in the City of Chicago. As a result, plaintiff is forbidden and prohibited from exhibiting the said film in the City of Chicago under penalty of a fine.

On February 25, 1960, plaintiff filed the instant cause and on March 17, 1960, in accordance with established procedure, I viewed the film and now proceed to disposition after full consideration of the briefs of the parties:

Section 155-4 of the Municipal Code 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
    "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 herein before 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 Lovers" is a film by so-called "new wave" French director Louis Malle based upon an updated version of the novel, "Point de Lendemain," written by Dominique Vivant in the Eighteenth Century.

Briefly stated, the story line is a simple one. A Dijon wife, apparently suffering from neglect because her husband as editor of the local newspaper is overly occupied with his work, spends much of her time in Paris with a girl friend and a lover. Hurrying back to Dijon one day and hoping to return before the arrival of the girl friend and the lover, who have been invited at the insistence of her jealous husband as weekend guests, she is picked up and given a ride home by a young archeologist when her car breaks down.

After everyone has retired for the evening, the sleepless wife strolls upon the grounds where she encounters the young archeologist who is spending the night as a guest at the request of her husband. They fall in love almost immediately and go to her room for the night. The next morning, to the astonishment of everyone, they leave together.

In Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, the Supreme Court in 1915 recognized official censorship as a valid exercise of state police power. Since it was not until 1925, in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, that the Supreme Court held that the guarantees of the First Amendment were applicable to the states as a part of the Due Process Clause limitations of the Fourteenth Amendment, the Supreme Court in the Mutual Film case did not consider the freedom of speech issue except as it related to the Ohio Constitution. In this regard the Court stated at page 244 of 236 U.S., at page 391 of 35 S.Ct.:

    "It cannot be put out of view that the exhibition
  of moving pictures is a business, pure and simple,
  originated and conducted for profit, like other
  spectacles, not to be regarded, nor intended to be
  regarded by the Ohio Constitution, we think, as part
  of the press of the country, or as organs of public

Subsequent to this decision and the Gitlow case, talking pictures were introduced in 1926. The next important decision of the Supreme Court bearing upon the problem of movie censorship occurred in 1931 where the Court in Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, laid down the distinction between prior restraints and subsequent punishments, holding that the First Amendment prohibits prior restraints even in those cases in which it would permit subsequent punishment. Then in 1948, the Court recognized that motion pictures are a form of speech contemplated by the First Amendment. United States v. Paramount Pictures, 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260. Finally, the Court in 1952 held that "Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098.

Parenthetically, it might be here observed that censorship statutes may also be attacked as unconstitutional because of vagueness that offends due process, Burstyn, Inc. v. Wilson, supra, 343 U.S. at pages 507-533, 72 S.Ct. at pages 783-796, or as an unconstitutional delegation of authority. Nimmer, Official Censorship of Movies, 25 U. of Chicago L.Rev. 625, 628.

Since the Burstyn case, the Supreme Court has decided a number of cases which bear upon the problem of movie censorship: Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films v. Dept. of Education (Commercial Pictures Corp. v. Regents of University of State of New York), 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Times Film Corp. v. City of Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Kingsley Intern. Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed. 2d 1512; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.

Though the Court in the above cases expressly avoids deciding the constitutional issue of movie censorship by the use of the per curiam decision or the projection of self-imposed rules, it is nevertheless clear from the divergent concurring opinions that the Court is presently divided into three groups: those Justices who regard all movie censorship as unconstitutional, per se; those Justices who regard censorship of movies constitutional under certain circumstances; and those Justices who are, as yet, uncommitted.

Since "the police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community," Kovacs v. Cooper, 336 U.S. 77, 83, 69 S.Ct. 448, 451, 93 L.Ed. 513 it follows that the present unsettled state of the law with regard to motion picture censorship has had a frustrating effect on states and cities attempting to fulfill their obligations to the community by insuring valid motion picture standards. Justices Harlan and Clark have pointed out "each time such a statute is struck down, the State is left in more confusion * * *." Kingsley Intern. Pictures Corp. v. Regents, supra, 360 U.S. at pages 702, 708, 79 S.Ct. at pages 1372, 1375.

Perhaps this explains why the Supreme Court has granted certiorari in Times Film Corp. v. City of Chicago, D.C., 180 F. Supp. 843, affirmed 7 Cir., 272 F.2d 90; 80 S.Ct. 672.

It is generally accepted that freedom of speech is not absolute.

As Justice Brandeis pointed out in Whitney v. People of State of California, 274 U.S. 357, at page 373, 47 S.Ct. 641, at page 647, 71 L.Ed. 1095:

    "Although the rights of free speech and assembly
  are fundamental, they are not in their nature
  absolute. Their exercise is subject to restriction,
  if the particular restriction proposed is required in
  order to protect the state from destruction or from
  serious injury, political, economic or moral."

The so-called "clear and present danger" rule lays down the requirement that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances (or have been) of such nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. And "in each case (courts) must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137. These statements are further clarified in Yates v. United States, 354 U.S. 298, at pages 324, 325, 77 S.Ct. 1064, at page 1080, wherein the Court states:

    "The essential distinction is that (for advocacy to
  be punishable) those to whom the advocacy is
  addressed must be urged to do something, now or in
  the future, rather than merely to believe in
  something. * * * (A)dvocacy must be of action and not
  merely abstract doctrine."

See also United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 95 L.Ed. 1233; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L. Ed. 267; Niemotko v. State of Maryland, 340 U.S. 268, 273-283, 71 S.Ct. 325, 95 L.Ed. 267; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 309 v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834; Kovacs v. Cooper, supra, 336 U.S. at pages 89-97, 69 S.Ct. at pages 454-458; Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 477, 62 S.Ct. 344, 86 L.Ed. 348; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213; Stromberg v. People of State of California, 283 U.S. 359, 368, 369, 51 S.Ct. 532, 75 L.Ed. 1117; Gitlow v. People of State of New York, supra, 268 U.S. at pages 666, 669, 45 S.Ct. at pages 629, 631; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797.

Granted then that motion pictures are a form of speech contemplated by the First and Fourteenth Amendments to the Constitution, and that freedom of speech is not absolute, it remains only to determine what restrictions may be placed upon motion pictures in keeping with the general statements of the Supreme Court as set out above.

Invariably, restrictions upon freedom of speech will take either the form of subsequent punishment for a past offense or a form of previous restraint, the most common of which is censorship. From an historical point of view it is generally conceded that the constitutional guaranty of freedom of press (as it is analogous to freedom of speech) is directed primarily at prior restraints upon publication as evidenced by the struggle in England against the legislative power of the licenser. As Blackstone stated in 4 Bl.Com. at pages 151, 152:

    "The liberty of the press is indeed essential to
  the nature of a free state; but this consists in
  laying no previous restraints upon publications,
  and not in freedom from censure for criminal matter
  when published. Every freeman has an undoubted right
  to lay what sentiments he pleases before the public;
  to forbid this, is to destroy the freedom of the
  press; but if he publishes what is improper,
  mischievous or illegal, he must take the consequence
  of his own temerity."

In Patterson v. Colorado, 205 U.S. 454, at page 462, 27 S.Ct. 556, at page 558, 51 L.Ed. 879, the Court stated: "In the first place, the main purpose of such constitutional provisions is `to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to public welfare."

See Near v. State of Minnesota, supra, 283 U.S. at pages 713, 714, 51 S.Ct. at page 630, 75 L.Ed. 1357.

The Supreme Court, in its recent decisions, while adopting in summary fashion the historical condemnation of previous restraint, has not expressly attempted any explanation for the distinction between previous restraint and subsequent punishment insofar as it pertains to movie censorship. The Court has however evaluated freedom of press and speech in a very general fashion as, for example: "(T)he fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth." Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 219, 4 L.Ed. 2d 205; Roth v. United States, supra, 354 U.S. at page 488, 77 S.Ct. at ...

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