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:
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:
"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.
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,
, 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,
, 166, 68 S.Ct. 915, 92 L.Ed.
1260. Finally, the Court in 1952 held that "Expression by means
, 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
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
, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137. These statements are
further clarified in Yates v. United States,
pages 324, 325, 77 S.Ct. 1064, at page 1080, wherein the Court
See also United States v. Harriss,
, 74 S.Ct. 808,
98 L.Ed. 989; Beauharnais v. People of State of Illinois,
, 72 S.Ct. 725, 96 L.Ed. 919; Breard v. City of
, 642, 71 S.Ct. 920, 95 L.Ed. 1233;
Feiner v. People of State of New York,
, 71 S.Ct.
303, 95 L. Ed. 267; Niemotko v. State of Maryland,
273-283, 71 S.Ct. 325, 95 L.Ed. 267; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 309 v.
, 70 S.Ct. 773, 94 L.Ed. 995; Giboney v.
Empire Storage & Ice Co.,
, 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,
, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v.
State of New Hampshire,
, 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,
, 308, 60 S.Ct.
900, 84 L.Ed. 1213; Stromberg v. People of State of California,
, 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.,
, 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:
In Patterson v. Colorado,
, 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 page 1310, 1 L.Ed.2d 1498. Also see
Justice Frankfurter, concurring, in Kingsley Intern. Pictures
Corp. v. Regents, supra, 360 U.S. at page 695, 79 S.Ct. at page
1368, 3 L.Ed.2d 1512.
On the other hand, Justice Douglas in his concurring opinions
has had occasion to point out why, in his opinion, censorship of
motion pictures is, per se, unconstitutional. In Gelling v. State
of Texas, supra, 343 U.S. at page 961, 72 S.Ct. at page 1002, 96
L.Ed. 1359, he states:
"The evil of prior restraint, condemned by Near v.
Minnesota, 283 U.S. 697 [51 S.Ct. 625, 75 L.Ed.
1357], in the case of newspapers and by Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495 [72 S.Ct. 777,
96 L.Ed. 1098], in the case of motion pictures, is
present here in flagrant forms. If a board of censors
can tell the American people what it is in their best
interests to see or to read or to hear * * * then
thought is regimented, authority substituted for
liberty, and the great purpose of the First Amendment
to keep uncontrolled the freedom of expression
In Superior Films v. Dept. of Education, supra, 346 U.S. at
pages 588, 589, 74 S.Ct. at page 286, 98 L.Ed. 329, Justice
Douglas, joined by Justice Black, states:
"The history of censorship is so well known it need
not be summarized here. Certainly a system still in
force in some nations, which required a newspaper to
submit to a board its news items, editorials, and
cartoons before it published them could not be
sustained. Nor could book publishers be required to
submit their novels, poems, and tracts to censors for
clearance before publication. Any such scheme of
censorship would be in irreconcilable conflict with
the language and purpose of the First Amendment.
"Nor is it conceivable to me that producers of
plays for the legitimate theater or for television
could be required to submit their manuscripts to
censors on pain of penalty for producing them without
approval. Certainly the spoken word is as freely
protected against prior restraints as that which is
written. Such indeed is the force of our decision in
Thomas v. Collins, 323 U.S. 516, 540 [65 S.Ct. 315,
327, 89 L.Ed. 430]. The freedom of the platform which
it espouses carries with it freedom of the stage.
"The same result in the case of motion pictures
necessarily follows as a consequence of our holding
in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502
[72 S.Ct. 777, 780, 781, 96 L.Ed. 1098], that motion
pictures are `within the free speech and free press
guaranty of the First and Fourteenth Amendments.'
"Motion pictures are of course a different medium
of expression than the public speech, the radio, the
stage, the novel, or the magazine. But the First
Amendment draws no distinction between the various
methods of communicating ideas. On occasion one may
be more powerful or effective than another. The
movie, like the public speech, radio, or television
is transitory — here now and gone in an instant. The
novel, the short story, the poem in printed form are
permanently at hand to reenact the drama or to retell
the story over and again. Which medium will give the
most excitement and have the most enduring effect
will vary with the theme and the actors. It is not
for the censor to determine in any case. The First
and the Fourteenth Amendments say that Congress and
the States shall make `no law' which abridges freedom
of speech or of the press. In order to sanction a
system of censorship I would have to say that `no
law' does not mean what it says, that `no law' is
qualified to mean `some' laws. I cannot take that
"In this Nation every writer, actor, or producer,
no matter what medium of expression he may use,
should be freed from the censor."
Justice Douglas in "The Right of the People" distinguishes
censorship from subsequent punishment as follows, at page 72:
"Censorship is hostile to the First Amendment. That
does not mean that the citizen can with impunity say
what he likes, print what he likes, produce on the
stage what he likes, draw or photograph what he likes
for public showing. He is under restraint. * * * But
those restraints are carefully restricted and
narrowly drawn to fit precise evils. They, too,
operate as restraints in the manner in which all law
tends to become a deterrent. But being narrowly drawn
and being enforced by separate unrelated trials, they
do not become a system whereby an individual, a
board, or a committee subtly enforces its own moral,
political, or literary code on the community."
In The Doctrine of Prior Restraint, 20 Law and Contemp.Prob.
648, at pages 656-659, Professor Emerson argues that a system of
prior restraint subjects all expressions to control; that it
suppresses ideas before they are expressed (See Kingsley Intern.
Pictures Corp. v. Regents, supra, 360 U.S. at page 688, 79 S.Ct.
at page 1365, 3 L.Ed.2d 1512); that when a ban is imposed on
motion pictures, delay before the release is settled may cause
serious financial loss; that it is more likely for a censor to
rule adversely than for a government official to undertake the
serious task of subsequent punishment; that at the time of the
initial decision by the censor there are none of the procedural
safeguards of after the fact prosecutions; that censorship
usually "operates behind a screen of informality and partial
concealment" thereby not being displayed in the critical light of
public opinion; and that the questionable, subjective evaluation
of the censor often leads to undesirable extremes.
The Court of Appeals for the Seventh Circuit recently advanced
this distinction between censorship and subsequent punishment in
Capitol Enterprises, Inc. v. City of Chicago, 260 F.2d 670, at
pages 672, 673:
"Little has been authoritatively written explaining
`prior' or `previous' restraint, instead those words
are frequently found as part of an incantation used
when some censorship determination is judicially
annulled. Whether those words work the annulment or
if annulment requires such words is difficult of
discovery. But, there is a wide chasm between
censoring motion pictures before deciding if they can
be publically exhibited and exhibiting a picture to
the public for which criminal punishment might be
imposed. In the latter situation all the familiar
procedural safeguards come into play while in the
other instance there are no procedural safeguards and
communication is choked off at the threshold.
Submission to compulsory censorship as a condition
precedent to public exhibition is undoubtedly more
facile unencumbered, as it is, by any procedural
Complete censorship, as we now have before us, is
much like the case of obtaining indictments before a
grand jury — no defense counsel is present. There,
however, the analogy ends for persons accused of
crime are eventually accorded some rights, but in
censorship social context may be measured by six or
several persons against, as here, a society of more
than approximately 3,620,962 persons and the
applicant for a permit apparently need never be
heard, nor is the right to trial by petit jury
Censorship has also been analyzed as presupposing immaturity on
the part of the community since, in theory, it is invoked to
prevent immature reaction to the censored matter.
Subsequent punishment of speech, as might be gathered, is far
wider in scope than previous restraint. For example, in Gitlow v.
People of State of New York, supra, 268 U.S. at pages 667, 668,
45 S.Ct. at page 630, 69 L.Ed. 1138, the Supreme Court stated:
"(A) State in the exercise of its police power may
punish those who abuse (freedom of speech) by
utterances inimical to the public welfare, tending to
corrupt public morals, incite to crime, or disturb
the public peace. * * * (A) State may punish
publications advocating and encouraging a breach of
its criminal laws * * * a State may punish utterances
teaching or advocating that its citizens should not
assist the United States in prosecuting or carrying
on war with its public enemies * * * a State may
punish utterances endangering the foundations of
organized government and threatening its overthrow by
unlawful means * * *. Freedom of speech and press * *
* does not protect disturbances to the public peace
or the attempt to subvert the government. It does not
protect publications or teachings which tend to
subvert or imperil the government or to impede or
hinder it in the performance of its governmental
In Beauharnais v. People of State of Illinois, supra, 343 U.S.
at pages 256, 257, 72 S.Ct. at pages 730, 731, 96 L.Ed. 919, the
"There are certain well-defined and narrowly
limited classes of speech, the prevention and
punishment of which have never been thought to raise
any Constitutional problem. These include the lewd
and obscene * * * profane * * * libelous, and * * *
insulting or `fighting' words — those which by their
very utterance inflict injury or tend to incite an
immediate breach of the peace * * *. `Resort to
epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded
by the Constitution, and its punishment as a criminal
act would raise no question under that instrument.'"
In Kovacs v. Cooper, supra, 336 U.S. at page 83, 69 S.Ct. at
page 451, 93 L. Ed. 513, the Court states that "a state or city
may prohibit acts or things reasonably thought to bring evil or
harm to its people." Also see Chaplinsky v. State of New
Hampshire, supra, 315 U.S. at pages 571, 572, 62 S.Ct. at pages
768, 769, 86 L.Ed. 1031; Cantwell v. State of Connecticut, supra,
310 U.S. at page 308, 60 S.Ct. at page 905, 84 L.Ed. 1213;
Stromberg v. People of State of California, supra, 283 U.S. at
pages 368, 369, 51 S.Ct. at page 535, 75 L.Ed. 1117; Whitney v.
People of State of California, supra, 274 U.S. at page 371, 47
S.Ct. at page 646, 71 L.Ed. 1095.
It follows from an analysis of the above cases that motion
pictures may be constitutionally restricted by statutes or
ordinances adopting a form of subsequent punishment within the
accepted scope as generally outlined in Gitlow and Beauharnais.
As I have indicated, the Supreme Court has recognized the
general condemnation of previous restraint of speech
while acknowledging a wider latitude when it comes to the
question of subsequent punishment. That is not to say, however,
that previous restraint of speech is per se unconstitutional. In
Near v. State of Minnesota, supra, 283 U.S. at page 716, 51 S.Ct.
at page 631, 75 L.Ed. 1357, the Court states:
"(T)he protection even as to previous restraint is
not absolutely unlimited. But the limitation has been
recognized only in exceptional cases. `When a nation
is at war many things that might be said in time of
peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight
and that no Court could regard them as protected by
any constitutional right.' * * * No one would
question but that a government might prevent actual
obstruction to its recruiting service or the
publication of the sailing dates of transports or the
number and location of troops. On similar grounds,
the primary requirements of decency may be enforced
against obscene publications. The security of the
community life may be protected against incitements
to acts of violence and the overthrow by force of
orderly government. The constitutional guaranty of
free speech does not protect a man from an injunction
against uttering words that may have all the effect
Granted then that it is the position of the Supreme Court that
"protection * * * as to previous restraint is not absolutely
unlimited," but that any limitation is recognized in only
exceptional cases, it must next be determined whether or not
censorship of a motion picture under any circumstances presents
such an exceptional case.
Though the Supreme Court has not expressly so stated, I think
it is implicit in the above decisions that motion picture
censorship is possible. Even Justices Black and Douglas, despite
their absolutist statements, concede that "different questions
may arise as to censorship of some news when the Nation is
actually at war. But any possible exceptions are extremely
limited." Kingsley Intern. Pictures Corp. v. Regents, supra, 360
U.S. at page 698, 79 S.Ct. at page 1370, 3 L.Ed.2d 1512. The
problem, then, as I see it, reduces itself to the scope of
motion picture censorship which in turn is related to the
theoretical purpose of censorship. If, for example, there is a
need for censorship during time of war which transcends the
sanction of subsequent punishment, then, even Justices Black and
Douglas are prepared to recognize that censorship is justified.
Extending this theory to motion pictures, it is my opinion that
there is a need for censorship which extends beyond the
sanction of subsequent punishment. In other words, censorship of
motion pictures is necessary to protect the "health," "morals,"
"safety," and "well-being and tranquility of a community."
It is generally accepted that a motion picture is highly
capable of inciting audience reaction to its particular theme
because of obvious audience difficulty under the circumstances,
to maintain "psychic distance."
The immediate danger is, of course, that a motion picture can
incite unlawful action. Logic dictates that it is better to
censor a motion picture capable of inciting a viewer to crime
rather than punishing an exhibitor after a possible crime has
Though I do not suggest that censorship should "burn the house
to roast the pig," Butler v. State of Michigan, 352 U.S. 380,
383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412, it nevertheless should be
remembered, as an additional factor, that the "adults only"
provision of the Chicago censorship ordinance has recently been
declared unconstitutional. Paramount Film Distributing Corp. v.
City of Chicago, D.C., 172 F. Supp. 69.
Furthermore, motion pictures have a short life span, especially
when, as in Chicago, several theaters exhibit the same film
concurrently. Assuming a
violation of a subsequent punishment statute, the life span of
the average motion picture will have ended long before a trial
and conviction for violation of that statute would be possible.
For these reasons and others which I subsequently discuss, it
is my opinion that intelligent censorship of motion pictures is
not only necessary, but it is also the only feasible method of
restriction upon unlawful motion pictures.
The actual constitutional scope of motion picture censorship,
however, must be considered in its two phases: the procedural, or
operational scope; and the material scope which defines the
actual material censored.
The Supreme Court has not expressly discussed the scope of
previous restraint in either its procedural scope or its material
However, in Kingsley Books, Inc. v. Brown, supra, the Court has
held a form of previous restraint on freedom of speech
constitutional, while in Near v. State of Minnesota, supra, the
Court has held another form of previous restraint on freedom of
The distinction between these two decisions is directly
correlated to the procedural and material scope of previous
restraint on freedom of speech and by analogy, to the scope of
motion picture censorship.
By virtue of the statute in Near, "public authorities may bring
the owner or publisher of a newspaper or periodical before a
judge upon a charge of conducting a business of publishing
scandalous and defamatory matter — in particular that the matter
consists of charges against public officers of official
dereliction — and, unless the owner or publisher is able and
disposed to bring competent evidence to satisfy the judge that
the charges are true and are published with good motives and for
justifiable ends, his newspaper or periodical is suppressed and
further publication is made punishable as a contempt." Near v.
State of Minnesota, supra, 283 U.S. at page 713, 51 S.Ct. at page
630, 75 L.Ed. 1357. This statute, of course, was held
unconstitutional as a previous restraint on freedom of speech. In
Kingsley Books, a statute (Code Cr.Proc.N.Y. § 22-a) authorized
the "chief executive, or legal officer, of a municipality to
invoke a `limited injunctive remedy,' under closely defined
procedural safeguards, against the sale and distribution of
written and printed matter found after due trial to be obscene,
and to obtain an order for the seizure, in default of surrender,
of the condemned publications." Kingsley Books, Inc., v. Brown,
supra, 354 U.S. at page 437, 77 S.Ct. at page 1326, 1 L. Ed.2d
This statute, together with the "authorization of an injunction
pendente lite," which remedy, incidently, is not expressly
provided for in the actual provision as quoted by the Court, was
found to be a constitutional exercise of police power.
The following comparisons may be made of the two cases:
1 — Both cases represent previous restraint upon freedom of
speech by judicial injunction;
2 — In Near the injunction was directed against future
publications while in Kingsley Books, the injunction pendente
lite and the final injunction were directed against
distribution of issues already published;
3 — In Near, the injunction pendente lite, was not
specifically discussed by the Court while in Kingsley Books, the
Court expressly recognizes the constitutionality of the
injunction pendente lite under the circumstances of that case
as follows, 354 U.S. at page 440, 77 S.Ct. at page 1327, 1
"Authorization of an injunction pendente lite, as
part of this scheme, during the period within which
the issue of obscenity must be promptly tried and
adjudicated in an adversary proceeding for which
`(a)dequate notice, judicial hearing, (and) fair
determination' are assured * * * is a safeguard
against frustration of the public interest in
effectuating judicial condemnation of obscene
4 — In Near, the injunction was based upon a nonlogical
inference in that it extended the injunctive power to "the
dissemination of future issues of a publication because its
past issues had been found offensive." Kingsley Books, Inc. v.
Brown, supra, 354 U.S. at page 445, 77 S.Ct. at page 1330, 1
L.Ed.2d 1469. In Kingsley Books, the injunction pendente lite
was a temporary measure directed against distribution, and was
based upon the findings of a "chief executive officer," of a
city, etc., or its "chief legal officer," as well as the court,
while the final injunction, after court trial with "essential
procedural safeguards," was directed only at the distribution
of issues in evidence and not "later issues." As the Court states
at page 445 of 354 U.S., at page 1330 of 77 S.Ct., the statute
"studiously withholds restraint upon matters not already
published and not yet found to be offensive";
5 — Near concerns previous restraint of matters deemed to be
derogatory to a public officer. Kingsley Books concerns previous
restraint of obscenity.
Insofar as the procedural or operational scope of previous
restraint is concerned, I think a fair evaluation of the two
That the Supreme Court does recognize an injunction pendente
lite and a final injunction against distribution of matters
already published; that a previous restraint should not affect
future publications; that there must be a logical basis for a
previous restraint; that in the case of an injunction pendente
lite, the issue must be promptly tried and adjudicated; and that
"essential procedural safeguards" must be accorded the parties.
Insofar as the material scope of previous restraint upon
freedom of speech is concerned, it is clear from the two cases
that matters deemed to be derogatory to a public officer are
without the material scope of previous restraint while obscenity
is within the material scope of previous restraint.
The following comparative analysis may be made of these two
cases with motion picture censorship:
First, motion picture censorship, as represented in the instant
cause, does not approach the plenary action of the judicial
injunction represented in Near and Kingsley Books. On the
contrary, the theoretical purpose of the Chicago ordinance cannot
be regarded as injunctive, but rather, it represents an
administrative interference, a temporary delay imposed upon an
exhibitor in order that the particular film might be examined for
Second, this administrative interference does not act against
the production of movies in the analogous sense that Near was
directed against publication, nor does it even act against
distribution as the valid previous restraint in Kingsley Books.
The Chicago ordinance represents less restriction upon freedom
of speech than Kingsley Books, since its interference is limited
to exhibitors or retailers in the local area.
Third, motion picture censorship, as it is represented by the
Chicago ordinance, is not so severe as the injunction pendente
lite in Kingsley Books and yet, there is immediate recourse to
Fourth, neither the injunction pendente lite in Kingsley
Books nor Chicago motion picture censorship provides all
"essential procedural safeguards."
However, as Justice Brennan points out in his dissent, trial by
jury was not possible in Kingsley Books when that case came on
for trial, while in Chicago, every exhibitor has the right to
trial by jury upon recourse to the courts.
Fifth, obscenity, which is the stated grounds for the
censorship of the motion picture before me, "The Lovers," was
specifically held to be within the material scope of previous
restraint of freedom of speech in Kingsley Books.
However, in Kingsley Books, the injunction pendente lite was
presumptively based upon a finding of obscenity by first, a local
executive or judicial officer who initiated the action, and
second, the court, while the Chicago censorship ordinance
provides for an administrative interference without any prior
finding of illegality.
This distinction must be qualified by the fact that the Chicago
ordinance represents only an administrative interference and also
by the fact that motion picture censorship is necessary for the
welfare of the community since it is the only feasible method of
restriction upon unlawful motion pictures.
It is, therefore, my opinion, based upon an evaluation of the
cases cited, that the Chicago ordinance is constitutional in its
procedural scope, since it is within the constitutional
procedural scope of previous restraint as defined in Kingsley
Books, and in its material scope, since the limited objection to
the motion picture, "The Lovers," is obscenity, which is held
within the constitutional material scope of previous restraint in
Furthermore, it is my opinion that the Chicago ordinance should
not be declared unconstitutional merely because there has been a
general condemnation of previous restraint upon freedom of speech
in contrast to the accepted, broad scope of subsequent punishment
as a restriction on freedom of speech. The distinctions advanced
do not merit such drastic judicial action.
The historical distinction between previous restraint and
subsequent punishment is grounded in political freedom and is
directed against previous restraint upon publication. The
Chicago ordinance cannot be construed in any way to infringe upon
political freedom and does not concern a previous restraint on
publication, but rather only an administrative interference
If the quarrel with the Chicago ordinance is lack of
"procedural safeguards," then it seems to me that it would be far
more logical to correct censorship procedure rather than to
abolish censorship absolutely.
As for the argument that motion picture censorship can cause
serious financial loss, I might here point out that it can also
lead directly to free publicity and indirectly to financial gain
whenever a finding of illegality on the part of the censorship
board is overturned by judicial action. The extreme example is
represented by Columbia Pictures Corp. of America (U.E.) Local
437 v. City of Chicago, D.C.N.D.Ill.Ed., 184 F. Supp. 817, where
the District Court overturned the finding of the censorship board
that the motion picture, "Anatomy of a Murder" was obscene. The
publicity following this decision was, in my opinion,
disrespectful to the dignity of the United States Courts to the
great financial gain of the exhibitors.
If, as the Supreme Court [361 U.S. 147, 80 S.Ct. 219]
indicates, freedom of speech and press are to be evaluated in
terms of the "development and well-being of our free society," as
well as its "continued growth," then I suggest that the quarrel
with intelligent censorship of movies cannot exceed the quarrel
with subsequent punishment for the exhibition of the same films
since the restrictive effects upon our society must necessarily
be the same. It is purely an academic supposition to suggest that
the sanctions of subsequent punishment do not affect freedom of
expression to the same degree as intelligent censorship when
comparatively analyzed and applied to motion pictures.
On the contrary, if states and cities were to regulate motion
pictures by means of incisive subsequent punishment legislation
within the permissive scope as defined by the Court in Gitlow and
Beauharnias, and exhibitors were forced to steer "nervously among
the treacherous shoals," Kingsley Books, Inc., v. Brown, supra,
354 U.S. at page 442, 77 S. Ct. at page 1328, 1 L.Ed.2d 1469, the
result would be analogous to the self-imposed censorship
especially feared in
Smith v. People of State of California, supra.
In other words, as Justice Frankfurter has indicated, speaking
for the Court in Kingsley Books, Inc. v. Brown, supra, 354 U.S.
at page 442, 77 S.Ct. at page 1328, 1 L.Ed.2d 1469, motion
picture censorship is a less stringent form of restriction on
freedom of speech than subsequent punishment.
For these reasons, I cannot declare the Chicago ordinance
unconstitutional merely because it represents a form of previous
restraint on freedom of speech.
Finally, it is my opinion that the Supreme Court has already
recognized the constitutionality of the Chicago ordinance in
Times Film Corporation v. City of Chicago, 355 U.S. 35, 78 S.Ct.
115, 2 L.Ed.2d 72, where the Court, by citing Alberts v. State of
California, supra, in a per curiam decision, indicates that the
ordinance is constitutional in light of American Civil Liberties
Union v. City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585, though
reversing on the "facts."
I now consider the issue of obscenity.
In Roth v. United States, supra, 354 U.S. at page 485, 7 S.Ct.
at page 1309, 1 L.Ed.2d 1498, the Supreme Court declared that
"obscenity is not within the area of constitutionally protected
speech or press," while in Kingsley Books, Inc. v. Brown, supra,
the Court upheld a form of previous restraint on freedom of
speech upon grounds of obscenity. There remains only the
determination as to whether or not, the motion picture, "The
Lovers," is obscene and therefore properly censorable by
The Supreme Court has laid down the following standard for
judging obscenity: "whether to the average person, applying
contemporary community standards, the dominant theme of the
material taken as a whole appeals to the prurient interest." Roth
v. United States, supra, 354 U.S. at page 489, 77 S.Ct. at page
1311, 1 L.Ed.2d 1498.
In American Civil Liberties Union v. City of Chicago, supra, 3
Ill.2d at page 347, 121 N.E.2d at page 592, the Supreme Court of
Illinois defined obscenity as follows:
"* * * 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."
Applying these tests, I find that the motion picture, "The
Lovers," is obscene. The dominant theme of the motion picture
taken as a whole appeals to the prurient interest.
From the opening scene in this motion picture, the appeal to
the prurient interest is presented in a tantalizing increasing
tempo which intensifies the sexual desire to its apex when the
wife and archeologist engage in the anticipated act of sexual
intercourse in her bedroom.
The actual bedroom scenes begin, after a series of moonlight
scenes which serve to whet the sexual appetite, with the
impassioned lovers frenziedly undressing one another in such a
manner as to suggest complete nakedness.
Upon entering the bed and as the acts begin, the film registers
every possible emotion of sexual feeling and pleasure on the
wife's face and then shifts to her writhing, contorted arm, hand
and body as sexual climax approaches and occurs.
Those scenes immediately following suggest sexual gratification
as the lovers lie in bed in apparent naked contentment and then,
later, as they playfully disport in the same tub.
I find that the motion picture, viewed as a whole, is
completely centered around and dominated by sexual play and
For these reasons, I find that the motion picture, "The
Lovers," appeals to
the prurient interest, is obscene, and therefore censorable under
the Chicago ordinance.
Judgment for defendants. Complaint dismissed at plaintiff's
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