for violation of the statute, holding that the term "harmful to
minors", as defined, was not unconstitutionally vague or
overbroad; and that certain magazines sold by defendants were
"harmful to minors," although not obscene for adult readers. Thus
the Supreme Court held that the States may regulate the
dissemination to juveniles of, and their access to, materials
objectionable as to them, but nonregulable where the audience is
The ordinance before the Court, unlike the New York ordinance,
does not define the entire phrase "obscene when viewed by
children" in such a manner that it is clear that near-obscene
films, as well as "obscene" films, are proscribed. Consequently,
serious constitutional questions might be presented if the city
were to attempt to censor films under the ordinance which are not
"obscene" for all audiences.
This Court today holds only that if the Chicago ordinance is
construed as applicable solely to "obscene" films, as that term
has been defined in a series of Supreme Court decisions, it is
not void for vagueness. "Obscene" has become a word of art, the
definition of which has been tortuously but definitively evolved
through a long series of Supreme Court decisions.*fn5 It has been
held that a statute prohibiting "obscene" materials provides a
reasonably ascertainable standard of guilt, justifying a criminal
conviction. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304,
1 L.Ed.2d 1498 (1957). It has never been held that the standards
of definiteness must be even more stringent for prior censorship
than for criminal convictions. Accordingly, it is the opinion of
this Court that if the Chicago censorship ordinance is applied
only to "obscene" materials, the absence of further definition of
the word "obscene" in the ordinance does not render it
The federal courts will sometimes decline the exercise of
jurisdiction when asked for a declaratory judgment that a state
statute is unconstitutional, especially where the state statute
is susceptible to a construction by the state courts that would
avoid or modify the constitutional question. Railroad Commission
v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971
(1941); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d
1152 (1959). Premature adjudication by a single federal judge*fn6 on
the constitutionality of a state statute, which is fairly
susceptible to a constitutional construction by the state courts,
may create needless friction with state policies.
Since the so-called doctrine of abstention is to be sparingly
used, especially in the First Amendment area, cf. Zwickler
v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), this
Court has not totally rejected the exercise of jurisdiction here,
but has ruled on the merits of almost every challenge made by
plaintiffs to the censorship ordinance. However, the Court deems
it both unnecessary and inappropriate to speculate whether the
State courts would give the more expansive interpretation to the
ordinance, and if so, whether the ordinance would be
First of all, defendants themselves do not read the ordinance
as applicable to films which are not obscene for all audiences.
Defendants have stated their position that "the same test which
was applicable for adults will be used in determining whether a
movie is obscene for persons under 18." Consequently, this issue
lacks "that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions." Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
In short, there is no justiciable controversy between the parties
as to whether or not the ordinance should be applied to
Secondly, even if this issue were justiciable, all of the
prerequisites for abstention on this issue are present here, cf.
Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444
(1967). The ordinance is definitely susceptible to a
constitutional narrowing construction. Furthermore, plaintiffs
are not relegated to a declaratory judgment action in the state
courts in order to obtain a state court construction; the Motion
Picture Appeal Board could not possibly obtain an injunction
against exhibition of a non-obscene film distributed by
plaintiffs, unless the state court were to rule on the question
of whether or not the ordinance is applicable to such a film.
Such a ruling, as indicated above, must come no more than 20 days
after plaintiffs actually apply for a permit on such a film.
Finally, even if I were to speculate on how the state courts
would interpret this language, it would not be unreasonable to
assume that the state courts would give the narrower reading,
since the ordinance was enacted before the Supreme Court
indicated, in Ginsberg v. State of New York, supra, that the
States could regulate, as to minors, expression which would not
be obscene for adult audiences.
For the foregoing reasons, this Court concludes that the
plaintiffs are not entitled to the declaratory or injunctive
relief sought. As to the two issues which were, for the reasons
given, not ruled upon today, the Court specifically finds that
the plaintiffs have plain, efficient, and speedy remedies in the
state courts, if and when the issues become justiciable.
Accordingly, further retention of jurisdiction in this Court is
Motion to dismiss allowed.