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Motion Picture Appeal Bd. v. S.k. Films





APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.


Plaintiffs, the Motion Picture Appeal Board of the City of Chicago and its members (hereinafter "the Board"), brought this action pursuant to section 155-7.2 of the Municipal Code of Chicago, to enjoin defendant, S.K. Films, from showing a film entitled "The First Nudie Musical" in Chicago theaters to persons under the age of 18 years. Following a trial in the circuit court of Cook County, the injunction was issued and defendant appealed.

On appeal, defendant contends that: (1) the Chicago motion picture exhibition ordinance does not meet due process requirements in that the Board is not required to state its reasons for refusal of a permit; (2) the trial court committed reversible error by excluding defendant's evidence of community standards, especially by refusing to allow evidence of other films that the city had allowed to be shown to general audiences; (3) the Chicago motion picture exhibition ordinance is unconstitutional as applied; (4) the ordinance sets a standard not allowed by the Illinois supreme court; (5) it was error not to take judicial notice of the quality and reputation of the actors and actresses in the film; and (6) the decision of the trial court was against the manifest weight of the evidence. We affirm. The pertinent facts follow.

The Chicago motion picture exhibition ordinance (Municipal Code of Chicago, ch. 155, pars. 1 through 7.4) sets out standards and procedures for the public showing of movie films. Section 155-1 of the ordinance provides that all films to be shown to audiences composed solely of persons 18 years of age or older may be exhibited without inspection or permit. It further provides that if a film is intended to be shown to the general public, it may be shown only following the issuance of a permit by the superintendent of police. Permits are granted after a written application is submitted to the superintendent of police and the film has been viewed by the superintendent or the film review section created by the ordinance. Section 155-2.

Section 155-5 states in pertinent part:

"155-5. It shall be the duty of the superintendent of police to refuse to issue such permit if the motion picture, considered as a whole, is harmful when viewed by children as defined herein.

The term `children' means any person less than eighteen years of age.

`Harmful when viewed by children' means `obscene when viewed by children' or `violent when viewed by children,' as those terms are defined below."

"Obscene when viewed by children" and "violent when viewed by children" are then defined in the ordinance.

The ordinance also provides for a motion picture appeal board to review films upon the refusal of a permit and to consider the arguments of the owner, agent or exhibitor in support of the exhibition of the film. (Section 155-7.1.) If the Board affirms the refusal of the permit, it must file an action to enjoin the showing of the film to general audiences. Section 155-7.2.

Defendant applied for a permit to exhibit a motion picture entitled "The First Nudie Musical" (hereinafter "the film") to general audiences. The film was viewed on November 22, 1977, by the film review section of the Chicago Police Department, which refused to issue the permit. Defendants appealed to the Motion Picture Appeal Board. On November 25, 1977, the Board screened the film and conducted a hearing at which defendant was represented by Sidney Kaplan as its agent. The Board voted to affirm the decision denying the permit to show the film to anyone under the age of 18 years and filed its action for injunction on November 30, 1977. On December 6, 1977, the trial court held a hearing and viewed the film, which was entered into evidence.

Matthew Schoenbaum, a member of the Board, testified for plaintiffs. He is a licensed attorney who also has a master of science degree from the Catholic University in Washington, D.C. Schoenbaum's professional experience included extensive work with children. He dealt with emotionally disturbed and delinquent children for the Children's Bureau and the Board of Education in Washington, D.C. In Chicago, he was director of court services for the Archdiocesan Holy Name Society and covered children's courts> in that capacity. He was dean of the school of social work at Loyola University for 25 years, continuing his interest in children and being involved in programs concerning them. Schoenbaum's law practice also continues to keep him in contact with children's agencies.

Schoenbaum had been associated with the Board for about seven years. Prior to the amendment of the ordinance, he saw every film denied a license by the film review section, whether the movie was intended for adults or children. Since the amendment of the ordinance to concern itself with children, approximately two years prior to the hearing, he had seen 20 to 25 films per year on review to the Board.

Schoenbaum stated that the film is obscene with respect to children. He believed that the film could have a harmful impact on children because they are a vulnerable group, are not sexually adjusted and have a tendency to mimic what they see on the screen. He did not believe the movie would be obscene to adults.

On cross-examination Schoenbaum testified that the Board sees movies only upon appeal from the film review section's denial of a general audience permit. He also stated that the City of Chicago has no classifications for films other than the unrestricted general audience and adults only categories. Questions regarding whether or not Schoenbaum had seen certain other films were objected to by the Board's counsel, and the court sustained objections to a question about whether a permit had ever been denied to a major motion picture producer. Schoenbaum also testified that the Board had overruled the film review section on several occasions although he could not specifically recall the films involved.

Schoenbaum agreed with defense counsel that one of the factors considered by the Board in its review of the instant case was that the subject matter of the film was the making of a pornographic movie. Other factors, Schoenbaum stated, were that the language was arduous and that the film contained simulated sexual intercourse, so ...

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