Appeal from the Circuit Court of Winnebago County; the Hon.
Robert J. French, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
The county of Winnebago has an ordinance making it unlawful to operate a theater in the unincorporated areas of the county without first obtaining a license. Under the ordinance licenses are valid "until succeeding April 30 from the date of issue." Section 4-14 provides that license applications are to be accompanied by, inter alia:
"(c) A written covenant by the applicant to refrain or desist from exhibiting any motion picture or film presentation viewable from any private residence or any public street or walkway which contains any scene or scenes depicting sexual intercourse, masturbation, oral copulation, erect male genitalia or male ejaculation;
(d) A written covenant by the applicant to refrain or desist from exhibiting any motion picture or film presentation viewable from any private residence which contains any scene or scenes depicting the caressing or fondling of the bare female breast or bare male or female buttocks, anus or genitals."
The ordinance established the Winnebago County Board Investigative Commission (the commission) to hear and determine alleged ordinance violations, including violations of the covenants quoted above. Violations may result in license suspension for up to 30 days or license revocation. Fines not exceeding $200 per violation may also be imposed.
Plaintiff Southland News Company, Inc. (Southland), is the licensed owner and operator of an outdoor theater called the Sunset Drive-in Theater which is subject to this ordinance. In July 1984, the State's Attorney of Winnebago County filed a petition against Southland with the commission. The petition was brought in the name of the People of the State of Illinois, and alleged that Southland had violated the covenant required by section 4-14(c) on various dates in June and July 1984. Following an evidentiary hearing, the commission determined that Southland had violated the covenant on June 14, July 7, and July 8, 1984. Southland was fined a total of $400 and its license was suspended for 30 days.
Southland filed a petition with the circuit court for a writ of certiorari to review the decision of the commission. The State, the commission, and its members were made defendants in that proceeding. The circuit court stayed the license suspension pending judicial review and subsequent appeal. The stay was entered before the license suspension interfered with Southland's operation of its theater.
After reviewing the record of the proceedings before the commission, the circuit court entered an order affirming the commission's decision. Southland appeals, contending (1) that the ordinance is unconstitutional on its face as an abridgment of the freedom of speech guaranteed by the first amendment (U.S. Const., amend I) because it requires the theater operator to covenant not to show constitutionally protected movies if they are viewable from the locations specified, (2) that, as applied, the ordinance imposed an unconstitutional prior restraint on Southland's exercise of that freedom, (3) that the proceedings before the commission were a nullity because they were brought in the name of the People of the State of Illinois rather than the People of the County of Winnebago, and (4) that the decision of the commission was against the manifest weight of the evidence.
• 1 The issue of the facial validity of the ordinance is controlled by People ex rel. Carey v. Starview Drive-In Theatre, Inc. (1981), 100 Ill. App.3d 624, 427 N.E.2d 201, appeal dismissed (1982), 457 U.S. 1113, 73 L.Ed.2d 1324, 102 S.Ct. 2918. In Starview the appellate court held that certain provisions of a Cook County outdoor-theater licensing ordinance, which are indistinguishable from the provisions of ordinance at issue here, were not unconstitutional on their face. The court recognized that motion pictures constitute a form of expression entitled to protection under the first and fourteenth amendments of the United States Constitution. (100 Ill. App.3d 624, 628, 427 N.E.2d 201.) It also recognized that, although obscenity is not constitutionally protected, the regulation of sexually explicit films by the ordinance was not limited to obscenity but was applicable to constitutionally protected material. (100 Ill. App.3d 624, 629, 427 N.E.2d 201.) The court, however, held that, insofar as the ordinance prohibited the showing of sexually explicit films viewable from private residences, the right to privacy of the residents outweighed the first amendment rights. (100 Ill. App.3d 624, 634-636, 427 N.E.2d 201.) Insofar as the ordinance prohibited the exhibition of sexually explicit films viewable from public streets or walkways in the same manner as the ordinance here, the court held that it was justified in order to protect minors from materials obscene as to them. (100 Ill. App.3d 624, 636-638, 427 N.E.2d 201.) It is well settled that the government may adopt more stringent controls on communicative materials available to youths than on those available to adults. (See Erznoznik v. City of Jacksonville (1975), 422 U.S. 205, 212-13, 45 L.Ed.2d 125, 133, 95 S.Ct. 2268, 2274.) We agree with the decision in Starview and, therefore, hold that the Winnebago County ordinance at issue here is not unconstitutional on its face.
• 2 We next consider Southland's argument that, as applied, the ordinance imposed an unconstitutional prior restraint on its freedom of speech. The State maintains that this issue, like the issue of the facial validity of the ordinance, is controlled by Starview. We disagree. The court in Starview explicitly stated that it was expressing no opinion on the constitutionality of that portion of the Cook County ordinance which set forth the procedure by which a license might be revoked or a licensee fined. (People ex rel. Carey v. Starview Drive-In Theatre, Inc. (1981), 100 Ill. App.3d 624, 626 n. 3, 427 N.E.2d 201.) While there was some discussion of the doctrine of prior restraint in the opinion, that discussion, however, was directed to the question of whether requiring the licensee to make the covenants amounted to an unconstitutional prior restraint. The court held that the requirement was in the nature of a legislative prior restraint, as opposed to an executive prior restraint. (100 Ill. App.3d 624, 633, 427 N.E.2d 201.) The court indicated that while the latter for of prior restraint is presumptively invalid (100 Ill. App.3d 624, 632, 427 N.E.2d 201), the validity of legislative prior restraints turns upon the same sort of considerations as subsequent punishment cases. (100 Ill. App.3d 624, 634, 427 N.E.2d 201.) As noted above, considered as a legislative prior restraint, the requirement that the theater operator make the covenants was determined to be constitutional. In the instant case we are concerned with an order issued by the commission which suspends Southland's license for 30 days. This is an executive prior restraint and its validity is not controlled by Starview.
The State also argues that this issue is the same as one recently decided by the United States Court of Appeals in Southland News Co. v. County of Winnebago (7th Cir. 1985), 774 F.2d 1167, cert. denied (1986), 475 U.S. ___, 89 L.Ed.2d 733, 106 S.Ct. 1478. We have obtained a copy of that decision which was issued as an unpublished order. In that case Southland challenged the power of the county to require the covenants as part of the license application. The issue of the validity of the license suspension was not before the Federal courts.
As noted in Starview, executive prior restraints on freedom of speech bear a heavy presumption against their constitutional validity. (Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 70, 9 L.Ed 2d 584, 593, 83 S.Ct. 631, 639.) The presumption against their validity is heavier than that against limits on expression imposed by subsequent punishments. The United States Supreme Court has explained this distinction as follows:
"[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable." (Emphasis in original.) ...