380 U.S. 51 (1965), 69, Freedman v. Maryland

Docket Nº:No. 69
Citation:380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649
Party Name:Freedman v. Maryland
Case Date:March 01, 1965
Court:United States Supreme Court

Page 51

380 U.S. 51 (1965)

85 S.Ct. 734, 13 L.Ed.2d 649




No. 69

United States Supreme Court

March 1, 1965

Argued November 19, 1964



Appellant was convicted of exhibiting a motion picture without submitting it to the Maryland State Board of Censors for prior approval, despite his contention that the motion picture censorship statute unconstitutionally impaired freedom of expression. The Maryland Court of Appeals affirmed.


1. Where motion pictures are concerned, a requirement of prior submission to a censorship board is not necessarily unconstitutional. Times Film Corp. v. City of Chicago, 365 U.S. 43. Pp. 53-54.

2. One can challenge a licensing statute which endangers freedom of expression whether or not his conduct could be prohibited by a properly drawn statute and whether or not he applied for a license. P. 56.

3. There is a heavy presumption against the constitutional validity of prior restraints of expression. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70. P. 57.

4. A noncriminal process requiring prior submission of a film to a censor avoids constitutional invalidity only with procedural safeguards designed to eliminate the dangers of censorship. Pp. 58-60.

(a) The censor must have the burden of proving that the film is expression unprotected by the Constitution. P. 58.

(b) Any restraint prior to judicial review must be limited to preservation of the status quo and for the shortest period compatible with sound judicial procedure. Pp. 58-59.

(c) A prompt final judicial determination of obscenity must be assured. P. 59.

5. The absence in the Maryland procedure of adequate safeguards against undue inhibition of protected expression renders the statutory requirement of prior submission to censorship an invalid previous restraint. Pp. 59-60.

233 Md. 498,197 A.2d 232, reversed.

Page 52

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant sought to challenge the constitutionality of the Maryland motion picture censorship statute, Md.Ann.Code, 1957, Art. 66A, and exhibited the film "Revenge at Daybreak" at his Baltimore theatre without first submitting the picture to the State Board of Censors as required by § 2 thereof.1 The State concedes that the picture does not violate [85 S.Ct. 736] the statutory standards2 and

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would have received a license if properly submitted, but the appellant was convicted of a § 2 violation despite his contention that the statute in its entirety unconstitutionally impaired freedom of expression. The Court of Appeals of Maryland affirmed, 233 Md. 498, 197 A.2d 232, and we noted probable jurisdiction, 377 U.S. 987. We reverse.


In Times Film Corp. v. City of Chicago, 365 U.S. 43, we considered and upheld a requirement of submission of motion pictures in advance of exhibition. The Court of Appeals held, on the authority of that decision, that

the Maryland censorship law must be held to be not void on its face as violative of the freedoms protected against State action by the First and Fourteenth Amendments.

233 Md. at 505, 197 A.2d at 235. This reliance on Times Film was misplaced. The only question tendered for decision in that case was "whether a prior restraint was necessarily unconstitutional under all circumstances." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, n. 10

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(emphasis in original). The exhibitor's argument that the requirement of submission without more amounted to a constitutionally prohibited prior restraint was interpreted by the Court in Times Film as a contention that the

constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture . . . even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government. . . ."

365 U.S. at 46, 47. The Court held that, on this "narrow" question, id. at 46, the argument stated the principle against prior restraints too broadly; citing a number of our decisions, the Court quoted the statement from Near v. State of Minnesota, 283 U.S. 697, that "[t]he protection even as to previous restraint is not absolutely unlimited." In rejecting the proffered proposition in Times Film, the Court emphasized, however, that "[i]t is that question alone which we decide," 365 U.S. at 46, and it would therefore be inaccurate to say that Times Film upheld the specific features of the Chicago censorship ordinance.

Unlike the petitioner in Times Film, appellant does not argue that § 2 is unconstitutional simply because it may prevent even the first showing of a film whose exhibiting may legitimately be the subject of an obscenity prosecution. He presents a question quite distinct from that passed on in Times Film; accepting the rule in Times Film, he argues that § 2 constitutes an invalid prior restraint because, in the context of the remainder of the statute, it presents a danger of unduly suppressing protected expression. He focuses particularly on the procedure for an initial decision by the censorship board, which, without any judicial participation, effectively bars exhibition of any disapproved film unless and until the exhibitor undertakes a time-consuming appeal to the Maryland courts and succeeds in having the Board's decision

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reversed. Under the statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for completion of Board action, § 17. If the film is disapproved, or any elimination ordered, § 19 provides that

The person submitting such film or view for examination will receive immediate notice of such elimination or disapproval, and if appealed from, such film or view will be promptly reexamined, in the presence of such person, by two or more members of the Board, and the same finally approved or disapproved promptly after such reexamination, with the right of appeal from the decision of the Board to the Baltimore City Court of Baltimore City. There shall be a further right of appeal from the decision of the Baltimore City Court to the Court of Appeals of Maryland, subject generally to the time and manner provided for taking appeal to the Court of Appeals.

Thus, there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length of time required to complete an appeal, the initial judicial determination has taken four months, and final vindication of the film on appellate review six months. United Artists Corp. v. Maryland State Board of Censors, 210 Md. 586, 124 A.2d 292.

In the light of the difference between the issues presented here and in Times Film, the Court of Appeals erred in saying that, since appellant's refusal to submit the film to the Board was a violation only of § 2,

he has restricted himself to an attack on that section

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alone, and lacks standing to challenge any of the other provisions (or alleged shortcomings) of the statute.

233 Md. at 505, 197 A.2d at 236. Appellant has not challenged the submission requirement in a vacuum, but in a concrete statutory context. His contention is that § 2 effects an invalid prior restraint because the structure of the other provisions of the statute contributes to the infirmity of § 2; he does not assert that the other provisions are independently invalid.

In the area of freedom of expression, it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.

One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it.

Thornhill v. State of Alabama, 310 U.S. 88, 97; see [85 S.Ct. 738] Staub v. City of Baxley, 355 U.S. 313, 319; Saia v. New York, 334 U.S. 558; Thomas v. Collins, 323 U.S. 516; Hague v. CIO, 307 U.S. 496; Lovell v. City of Griffin, 303 U.S. 444, 452-453. Standing is recognized in such cases because of the

. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.

NAACP v. Button, 371 U.S. 145, 433; see also Amsterdam, Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75- 76, 80-81, 96-104 (1960). Although we have no occasion to decide whether the vice of overbroadness infects the Maryland statute,3 we think that appellant's assertion of a similar

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danger in the Maryland apparatus of censorship -- one always fraught with danger and viewed with suspicion -- gives him standing to make that challenge. In substance, his argument is that, because the apparatus operates in a statutory context in which judicial review may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor's action to judicially determined constitutional limits, and therefore contains the same vice as a statute delegating excessive administrative...

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