Interstate Circuit, Inc. v. City of Dallas

• Decision Date: 18 October 1966
• Docket Number: No. 23306.,23306.
• Citation: 366 F.2d 590
• Parties: INTERSTATE CIRCUIT, INC., et al., Appellants, v. CITY OF DALLAS, Appellee, CITY OF DALLAS, Appellant, v. INTERSTATE CIRCUIT, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

366 F.2d 590 (1966)

INTERSTATE CIRCUIT, INC., et al., Appellants, v. CITY OF DALLAS, Appellee, CITY OF DALLAS, Appellant, v. INTERSTATE CIRCUIT, INC., et al., Appellees.

No. 23306.

United States Court of Appeals Fifth Circuit.

August 30, 1966.

Rehearing Denied October 18, 1966.

Grover Hartt, Jr., Tobolowsky, Hartt, Schlinger & Blalock, Dallas, Tex., for appellants.

N. Alex Bickley, City Atty., Ted P. MacMaster, Asst. City Atty., Dallas, Tex., for City of Dallas.

Paul Carrington, Dan McElroy, Dallas, Tex., Carrington, Johnson & Stephens, Dallas, Tex., of counsel, for Columbia Pictures Corporation, Metro-Goldwyn-Mayer, Inc., Paramount Film Distributing Corporation, Twentieth Century-Fox Film Corporation, United Artists Corporation, Universal Film Exchanges, Inc., Warner Bros. Pictures, Distributing Corporation, Distributors.

Before WISDOM and THORNBERRY, Circuit Judges, and COX, District Judge.^*

THORNBERRY, Circuit Judge.

The City of Dallas, Texas, passed Ordinance No. 11284¹ requiring the classification of motion pictures as "suitable" or "not suitable" for young persons. "Young person" is defined as one under under the age of sixteen. In the preamble the ordinance recites the conclusion of the City Council that motion pictures "are one of the contributing causes to juvenile delinquency, sexually promiscuous behavior, and along with other factors, tend to incite criminal behavior on the part of young persons. * * *" It is also noted that a great portion of the movies shown are available for screening more than thirty days prior to their initial exhibition and that the benefits of classification to the public will far exceed the burden placed on the motion picture industry. "Not suitable for young persons" is defined as

"(1) Describing or portraying brutality, criminal violence or depravity in such manner as to be, in the judgment of the Board, likely to incite or encourage crime or delinquency on the part of young persons; or

"(2) Describing or portraying nudity beyond the customary limits of candor in the community, or sexual promiscuity or extramarital or abnormal sexual relations in such a manner as to be, in the judgment of the Board, likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest.

"A film shall be considered `likely to incite or encourage\' crime delinquency or sexual promiscuity on the part of young persons, if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted. A film shall be considered as appealing to `prurient interest\' of young persons, if in the judgment of the Board, its calculated or dominant effect on young persons is substantially to arouse sexual desire. In determining whether a film is `not suitable for young persons,\' the Board shall consider the film as a whole, rather than isolated portions, and shall determine whether its harmful effects outweigh artistic or educational values such film may have for young persons."

Exhibitors are required to submit a proposed classification and a summary of the film's plot to the nine-member Board. If the Board is not satisfied with the proposed classification, a showing of the film is arranged. The details of the classification procedure, time limits and provisions for appeal will be discussed later.²

It is a violation of the ordinance to exhibit any film which has not been classified. If a film has been found not suitable for young persons, it is unlawful to fail to state the classification in any advertisement; to fail to post the classification prominently in front of the theatre; knowingly to sell or give a ticket to any young person or to permit one to view the film and to exhibit such a film with one classified as suitable for young persons.³ A young person accompanied by his parent, guardian or spouse may view any film, whatever its classification.

The ordinance provides for the issuance of a license to entitle the holder to exhibit films classified as not suitable for young persons and revocation of that license for up to one year for repeated violations of the ordinance or for failure to exercise ordinary diligence to determine those below the age of sixteen. Violation of any provision of the ordinance is a misdemeanor punishable by fine up to $200.00 for each offense.

A group of Dallas exhibitors filed a complaint in federal District Court seeking a declaratory judgment that the ordinance in whole or part was unconstitutional and an injunction to prevent the City from enforcing the ordinance.⁴

Judge Hughes concluded that the City had the power to pass such an ordinance, that Article 527 of Vernon's Ann. Texas Penal Code prohibiting obscene pictures does not prevent this type of regulation by the City, that the classification was reasonable in order to prevent the incitement of juvenile crime and delinquency, and that a film may be obscene when viewed by young people although not obscene as to adults. She found the phrase "Not suitable for young persons" to be valid only to the extent

"that such films are obscene when viewed by an audience of young persons. * * * A film that is obscene when viewed by an audience of young persons is one which, to the average young person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest, substantially goes beyond the customary limits of candor in description or representation of such matters to the average young person, and is utterly without redeeming social importance."

Interstate Circuit, Inc. v. City of Dallas, N.D. Texas 1965, 249 F.Supp. 19, 24. The procedure for review of the Board's classifications was found to be sufficient to insure the exhibitors' right to a speedy determination of the issues and to guarantee due process of law. The District Court, however, held the clause providing for revocation of the exhibitor's license to show films classified as not suitable for young persons invalid since it would deny exhibitors the right to show films not obscene as to adults.⁵

Both the exhibitors and the City have appealed. A number of national distributors of films have been allowed to join the exhibitors on appeal as amici curiae.

I.

Before examining the details of the Dallas ordinance, we must first decide the basic question of whether any movie classification ordinance may be found valid. Our study of the Supreme Court opinions indicates an affirmative answer.

When the Court first held that motion pictures were protected by the First Amendment in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098, 1106, it considered the argument that "motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression." Its conclusion was that "if there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship * * *." The Court also noted that:

"To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems."

In Butler v. State of Michigan, 1957, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, the Court found unconstitutional a Michigan statute which made the distribution to the general public of publications "tending to the corruption of the morals of youth" a misdemeanor. The Court concluded that "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence * * * surely * * * is to burn the house to roast the pig." It is significant that the statute was invalidated solely because it reduced adults to reading material fit for juveniles. The recognition by the Court that the state had failed to reasonably restrict its legislation "to the evil with which it is said to deal" suggests the probable validity of a statute which is properly drawn to protect children without restricting First Amendment rights of adults.

A few months after the decision in Butler, the Court handed down the landmark case of Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, holding obscenity outside the protection of the First Amendment and establishing the standard for judging obscenity — "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." In adopting this test, the Court specifically rejected the Hicklin test⁶ which judged obscenity by the effect of an isolated passage upon particularly susceptible persons. Id. at 489, 77 S.Ct. at 1311, 1 L.Ed.2d at 1509.

The Roth doctrine was reaffirmed and clarified in Jacobellis v. State of Ohio, 1964, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 793. The Court noted that "a work cannot be proscribed unless it is `utterly' without social importance * * *" and "`goes substantially beyond customary limits of candor in description or representation of such matters.'" Id. at 191, 84 S.Ct. at 1680, 12 L.Ed.2d at 800. The "community" in the Roth test was described as the "society at large" rather than the inhabitants of a particular state or locale. The important portion of the opinion⁷ for our present consideration, however, is a...