Cusack v. Teitel Film Corp.

• Citation: 38 Ill.2d 53,230 N.E.2d 241
• Decision Date: 29 September 1967
• Docket Number: 40215,Nos. 40214,s. 40214
• Parties: John F. CUSACK et al., Appellees, v. TEITEL FILM CORPORATION et al., Appellants.
• Court: Supreme Court of Illinois

Page 241

230 N.E.2d 241

38 Ill.2d 53

John F. CUSACK et al., Appellees, v. TEITEL FILM CORPORATION et al., Appellants.

Nos. 40214, 40215.

Supreme Court of Illinois.

Sept. 29, 1967.

Miller and Miller, and Elmer Gertz, Chicago (Elmer Gertz, Leon N. Miller and Russell G. Miller, Chicago, of counsel), for appellants.

Raymond F. Simon, Corp. Counsel, City of Chicago (Sydney R. Drebin and Marvin E. Aspen, Chicago, of counsel), for appellees.

SOLFISBURG, Chief Justice.

The defendants, Teitel Film Corporation and Charles Teitel, appeal directly to this court from orders of the circuit court of Cook County permanently enjoining the defendants from showing certain motion pictures in public places in the city of Chicago. The injunction orders were issued as a result of separate proceedings brought by the members of the Motion Picture Appeal Board of Chicago to enjoin defendants from exhibiting a film entitled 'Rent-A-Girl' A-Girl' and another entitled 'Body of a Female'. Since the defendants seek review of the rulings regarding each film on identical grounds, we have consolidated the cases for review.

Defendants contend that (1) the Chicago ordinance under which these proceedings were instituted and the actions of the Motion Picture Appeal Board are unconstitutional and violate the provisions for freedom of expression, due process, and protection against unreasonable searches and seizures under the United States and Illinois constitutions; (2) the films in question are not obscene; (3) the trial court erred in ruling on certain objections of the defendants relating to the pleadings and in denying defendants' motion to strike and dismiss the amended complaints.

Case No. 40215 relates to the film entitled 'Body of a Female.' On September 2, 1965, the defendants submitted this film to the Film Review Section of the Chicago Police Department for screening in accordance with the provisions of the Chicago Motion Picture Ordinance. On that same date the film was reviewed and rejected. Five months later, on February 9, 1966, the defendants applied to the Chicago Motion Picture Appeal Board for a review of this ruling. The appeal board viewed the film on February 28, 1966, and a hearing was held on March 7, 1966, resulting in a decision to uphold the determination of the Chicago Police Department rejecting the film 'Body of a Female' for licensing. Notice of this decision was mailed to the defendants on March 7, and on March 11, 1966, the board filed a complaint in the circuit court of Cook County seeking a permanent injunction against the exhibition of this film in public.

Case No. 40214 deals with the film entitled 'Rent-A-Girl.' This film was submitted to the Chicago Police Department for review on December 3, 1965, and was subsequently screened and rejected on December 6, 1965. Defendant was notified of this rejection on December 6 and applied for review to the Motion Picture Appeal Board on January 5, 1966. The board screened the film on January 24 and a hearing was held on January 31 resulting in the decision to uphold the police department's rejection of the film. Notice of this action was mailed to the defendants on February 1, 1966, and a complaint seeking a permanent injunction against the exhibition of 'Rent-A-Girl' was filed by the board on February 9, 1966.

Defendants filed motions to strike and dismiss in both cases and in each instance the motion was granted with leave given to the plaintiffs to file amended complaints. Amended complaints seeking injunctions against the showing of both pictures were subsequently filed on May 20, 1966, and again defendants filed motions to strike and dismiss. The films were subsequently reviewed by the court and a hearing on defendants' motion to strike was held on June 22, 1966. Thereafter the trial court filed memorandum opinions in both cases No. 40215 and No. 40214 on August 3, 1966, finding the films to be obscene and denying defendants' motions. On August 8, 1966, the injunction orders appealed from were entered.

The defendants initially contend that the Chicago Motion Picture Ordinance is violative of the due-process and free-expression provisions of the United States and Illinois constitutions.

The ordinance in question, chapter 155 of the Municipal Code of the city of Chicago, sets forth licensing procedures for motion pictures for exhibition in the city of Chicago. The ordinance was originally enacted in 1939 and was amended in 1961 by the creation of the Motion Picture Appeal Board. It was again amended in 1967 after the proceedings involved in the present cases took place.

The ordinance provides, in effect, that before a motion picture may be shown in the city of Chicago, the film along with a written application for exhibition permit must be submitted to the superintendent of police. Section 155--2 of the ordinance provides that either the superintendent or the Film Review Section, acting under the superintendent, shall inspect the film and either grant or deny an exhibition permit within three days after such inspection.

Section 155--7.1 of the ordinance creates the Motion Picture Appeal Board and provides that 'within seven days after rejection by the Superintendent of Police, the applicant may file a written request with the Motion Picture Appeal Board for review of the decision of the Superintendent.' The section goes on to provide that the film in question shall be made available to the board for examination, which examination must take place within 15 days of the request for review. Within 15 days after reviewing the picture and before any determination is made by the board, the applicant for the permit shall be given a hearing at which time he may present testimony or arguments in support of the exhibition of the film. The board then has five days after the hearing in which to serve written notice of its ruling upon the applicant.

Section 155--7.2 provides that if the Motion Picture Appeal Board affirms the decision of the superintendent of police in rejecting the application, the board must, within 10 days after the hearing, file an action for an injunction against the showing of the film with the circuit court of Cook County. It should here be noted that general order No. 3--3 of the circuit court of Cook County provides that a hearing on a complaint for an injunction pursuant to chapter 155 must be held within 5 days after the filing of an answer, or if the complaint is not answered, within 5 days after the last day allowed for the filing of an answer.

The defendants initially contest the validity of the entire proceedings on the ground that the Chicago Motion Picture Ordinance under which they were instituted does not provide sufficient procedural safeguards to protect the defendants' constitutional rights of due process. Before discussing the sufficiency of these safeguards, however, we must first determine whether, as defendants contend, the ordinance is invalid on its face as being a prior restraint upon freedom of expression as guaranteed by the Illinois constitution.

Although defendants do not contest the holding of the United States Supreme Court that obscenity is not protected expression under the first and fourteenth amendments to the United States constitution (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498), they argue that all motion pictures are protected under section 4 of article II of the Illinois constitution, S.H.A., which provides that, '(e)very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty * * *.' This section of the Illinois constitution was discussed by this court in Montgomery Ward & Co. v. United Retail, Wholesale & Dept. Store Employees, 400 Ill. 38, 79 N.E.2d 46, in connection with the application for an injunction to stop malicious libel. It was there observed that the free-expression provision in the Illinois constitution was broader than that of the constitution of the United States. Relying on Montgomery Ward the defendants urge that the Illinois constitution allows a 'broader' and therefore more permissive approach to obscenity than does the United States constitution. We do not agree. The holding in Montgomery Ward dealt solely with the validity of the remedy of injunctions in libel cases and has no bearing upon the question of whether obscenity in protected expression under section 4 of article II and therefore free from prior restraints.

Lest any further confusion reign in this area, however, we herewith specifically adopt the reasoning set down by the United States Supreme Court in Roth and hold that the language of section 4 of article II of the Illinois constitution does not extend to a protection of obscenity. In Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, the United States Supreme Court held that the Chicago Motion Picture Ordinance, by requiring the submission of all motion pictures to a censor prior to exhibition did not, upon its face, necessarily violate the freedom of speech guaranteed by the first and fourteenth amendments to the Federal constitution. We hold that such a prerequisite likewise does not necessarily violate any constitutional guarantees of the Illinois constitution.

We do not mean to imply, however, that prior restraints on the exhibition of motion pictures are constitutional under all circumstances. Indeed, as was pointed out in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, page 70, 83 S.Ct. 631, page 639, 9 L.Ed. 584, at 593: 'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' When this validity is challenged, as here, 'The judicial angle of vision * * * is 'the operation and effect of the statute in substance'.' Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, 1474.

Our 'angle of vision' is not without guidelines. The United States Supreme Court was...