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:
"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
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
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
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,
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
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
"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
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 ...