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UNIVERSAL FILM EXCHANGES, INC. v. CITY OF CHICAGO

August 20, 1968

UNIVERSAL FILM EXCHANGES, INC., A DELAWARE CORPORATION, COLUMBIA PICTURES CORPORATION, A NEW YORK CORPORATION, METRO-GOLDWYN-MAYER, INC., A DELAWARE CORPORATION, PARAMOUNT FILM DISTRIBUTING CORPORATION, A DELAWARE CORPORATION, 20TH CENTURY-FOX FILM CORPORATION, A DELAWARE CORPORATION, AND UNITED ARTISTS CORPORATION, A DELAWARE CORPORATION, PLAINTIFFS,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, JAMES B. CONLISK, SUPERINTENDENT OF POLICE OF THE CITY OF CHICAGO, JOHN F. CUSACK, NER LITTNER, HENRY RAGO, MATTHEW SCHOENBAUM AND MRS. NORMAN GERLACH, MEMBERS OF THE MOTION PICTURE APPEAL BOARD OF THE CITY OF CHICAGO, AND JENNIE DRAKOS, ILENE FRYMIRE, BEATRICE MCGILL, ELEANOR GROSS AND EDITH JOYCE, MEMBERS OF THE FILM REVIEW SECTION, OFFICE OF POLICE OF THE CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Napoli, District Judge.

  MEMORANDUM OPINION

The City of Chicago has recently enacted a motion picture censorship ordinance, Chapter 155 of the Municipal Code of Chicago. The ordinance requires a permit for the exhibition of any motion picture in a public place in the city, to an audience which includes any person under 18 years of age. A permit is obtained by applying to the Superintendent of Police, tendering with the application the film to be shown, along with a permit fee amounting to three dollars for each thousand lineal feet of film or fraction thereof, and an additional fee of one dollar per thousand lineal feet or fraction thereof for duplicates of the original permit. The Superintendent of Police is directed to examine the film or to cause it to be inspected by the Film Review Section (a six member board created by the ordinance) within two days of receipt of the permit application. The Superintendent of Police is directed to refuse to issue a permit "if the picture, considered as a whole, is obscene when viewed by children." The term "children" is defined to include any person less than eighteen years of age. It is the duty of the Superintendent of Police to "forthwith" either grant or deny a permit after inspection of the film.

In the event of rejection by the Film Review Section or by the Superintendent of Police, the Motion Picture Appeal Board (a separate body created by the ordinance, which is to consist of at least five persons "experienced or educated in one or more of the following fields: art, drama, literature, philosophy, sociology, psychology, history, music, science, or other related fields") must, within seven days of the rejection, meet to review the decision of the Superintendent of Police. The Board is directed to review the film in its entirety, and to consider whatever evidence the exhibitor or distributor may wish to present in support of the exhibition of the film. Within 3 days after the meeting, the Board must announce its ruling. In the event the Motion Picture Appeal Board affirms the Superintendent of Police in rejecting the film, the Board within three days from the hearing must file an action in the Circuit Court of Cook County, for an injunction against the showing of the film. The ordinance further provides that whenever the City of Chicago fails, within the time limits provided, to issue a permit, and the Motion Picture Appeal Board has not filed an action for an injunction, the motion picture may be exhibited without permit or fees, without violating Chapter 155.

On the day before the censorship ordinance became effective, the Chief Judge of the Circuit Court of Cook County issued General Order No. 3-3, which reads as follows:

IT IS HEREBY ORDERED that:

  (a) any complaint for an injunction filed pursuant to
  Section 155-7.2 of the Municipal Code of Chicago, or
  similar provision of an Ordinance of any other
  municipality, shall be placed at the head of the call
  of the Chancery Division and shall be given priority
  over all other cases.
  (b) The Court shall set the cause for hearing within
  five (5) days after the Complaint has been filed. The
  hearing shall not be recessed or continued, other
  than from the close of one court day to the opening
  of the next court day, unless upon request of the
  defendant.
  (c) The Court shall render its judgment within three
  (3) days after the conclusion of the hearing.

Plaintiffs are seven motion picture distributors who seek a declaratory judgment that the Motion Picture Ordinance is unconstitutional. Plaintiffs also seek a permanent injunction against defendants City of Chicago; James B. Conlisk, Superintendent of Police, the chief executive charged with enforcement of the ordinance; and the members of the Film Review Board and the Motion Picture Appeal Board of the City of Chicago.

Defendants have "stipulated" to the jurisdiction of this Court to hear this matter, and have not discussed, in their briefs on the pending motion to dismiss, the question of whether or not this Court should invoke the doctrine of abstention, in order to allow the state court a chance to interpret certain provisions in the ordinance; or the question of whether or not this Court might properly and reasonably exercise the discretion always present in declaratory judgment actions, to decline the exercise of jurisdiction over any or all of the issues raised. An earlier complaint by these same plaintiffs, Columbia Pictures Corp. v. City of Chicago, D.C., 288 F. Supp. 284, was dismissed by this Court sua sponte for lack of jurisdiction over the subject matter, on April 12, 1968, despite defendants' apparent acquiescence to the Court's jurisdiction over the subject matter. For the reasons which follow, the Court holds that it has jurisdiction over the subject matter, but that jurisdiction should be exercised only to determine some of the issues raised by the complaint; and that as to the issues decided today, plaintiffs are entitled to no relief.

Although the federal courts do not sit to render advisory opinions to legislative bodies, state or federal, notwithstanding the stipulations of counsel, where a party can show an actual injury to his own interests caused by the existence and threatened enforcement of an allegedly unconstitutional statute, he should be entitled to a determination from an Article III Court*fn1 as to whether or not the statute is constitutional. In the case at bar, plaintiffs have pleaded their inability to contract with various exhibitors in the city as to specific named films unless and until they comply with the very ordinance which they are now attacking as unconstitutional. The economic injury thus pleaded, when coupled with the claim that the ordinance is an impediment to plaintiffs' rights to disseminate their films freely through exhibitors, is barely sufficient to make the present controversy justiciable.

Plaintiffs at the outset challenge the entire concept of motion picture censorship. However, the Supreme Court has recently found that the evils inherent in public exhibition of obscene films are sufficiently great to justify prior administrative censorship of motion pictures. Times Film Corporation v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961). This Court feels bound by the Times Film case to rule that a requirement of prior submission of motion picture films to a censor in advance of exhibition is not per se unconstitutional.

The Supreme Court has insisted, however, that strict procedural safeguards, including judicial superintendence of the censor's action, be included in any censorship scheme. Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Thus, any censor must have the burden of proving that the film is expression unprotected by the First Amendment to the United States Constitution. Any restraint prior to judicial review must be limited to preservation of the status quo and for the shortest period compatible with judicial procedure. Finally, a prompt final judicial determination must be assured. Any delay which lends the effect of finality to the administrative refusal to issue a license renders the restraint invalid.

In their broadside attack on the new Chicago Motion Picture Ordinance, plaintiffs alternatively contend that the ordinance is impermissibly vague, and that it is replete with various procedural flaws. Since there is a heavy presumption against the validity of prior restraints of expression, cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, ...


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