Fine Arts Guild, Inc. v. City of Seattle, 38815

• Citation: 74 Wn.2d 503,445 P.2d 602
• Decision Date: 26 September 1968
• Docket Number: No. 38815,38815
• Parties: FINE ARTS GUILD, INC., a corporation, Respondent, v. The CITY OF SEATTLE, a municipal corporation et al., Appellants. PARAMOUNT FILM DISTRIBUTING CORPORATION, a Delaware Corporation; Columbia Pictures Corporation, a New York Corporation; Metro-Goldwyn Mayer, Inc., a Delaware Corporation; Twentieth Century-Fox Film Corporation, a Delaware Corporation; United Artists Corporation, a Delaware Corporation; Universal Film Exchanges, Inc., a Delaware Corporation; Warner Bros. Pictures Distributing Corporation, a New York Corporation, Respondents, v. The CITY OF SEATTLE, a municipal corporation et al., Appellants, Sterling Theatres Co., a Washington Corporation, Intervenor-Respondent.
• Court: United States State Supreme Court of Washington

Page 503

74 Wn.2d 503

445 P.2d 602

FINE ARTS GUILD, INC., a corporation, Respondent, v. The CITY OF SEATTLE, a municipal corporation et al., Appellants.

PARAMOUNT FILM DISTRIBUTING CORPORATION, a Delaware

Corporation; Columbia Pictures Corporation, a New York

Corporation; Metro-Goldwyn Mayer, Inc., a Delaware

Corporation; Twentieth Century-Fox Film Corporation, a

Delaware Corporation; United Artists Corporation, a Delaware

Corporation; Universal Film Exchanges, Inc., a Delaware

Corporation; Warner Bros. Pictures Distributing Corporation, a New York Corporation, Respondents, v. The CITY OF SEATTLE, a municipal corporation et al., Appellants, Sterling Theatres Co., a Washington Corporation,

Intervenor-Respondent.

No. 38815.

Supreme Court of Washington, En Banc.

Sept. 26, 1968.

A. L. Newbould, Corporation Counsel, Arthur T. Lane, Woodford B. Baldwin, Seattle, for appellants.

Bogle, Gates, Dobrin, Wakefield & Long, Thomas L. Morrow, Bertram L. Metzger, Jr., Culp, Dwyer, Guterson & Grader, William L. Dwyer, Louis F. Nawrot, Jr., Ferguson & Burdell, H. W. Dean, Jr., Seattle, for respondent.

HAMILTON, Judge.

Ordinances Nos. 83099 and 93227 ¹ of the city of Seattle undertake, through a board of theatre supervisors, to regulate and classify motion pictures and allied forms of entertainment as to their moral content. Respondents in the present actions, consolidated for purposes of trial and appeal, challenge the constitutionality of the respective ordinances upon the grounds that they violated the first ² and fourteenth ³ amendments to the U.S. Constitution and Const. art. 1, §§ 3 ⁴, 5 ⁵, and 12. ⁶ The trial court sustained the challenges. The city of Seattle and its coparties appeal. We affirm the judgment of the trial court for the reasons hereinafter stated.

Ordinance No. 83099, as amended, in substance (a) makes it unlawful to knowingly and publicly exhibit an obscene show; (b) establishes a board of theatre supervisors empowered to preview proposed showings; (c) authorizes such board to make recommendations to the prospective exhibitor that (1) the material not be publicly shown, (2) portions of the material be eliminated, or (3) the showing be limited to adults; and (d) directs the board to make written reports to the mayor, the licensing committee of the city council, and to the city council relative to its work and the effectiveness of its recommendations. Exhibitors failing to comply with the ordinance are made subject to fine and imprisonment.

Ordinance No. 93227, in substance, authorizes the board of theatre supervisors to preview and classify motion pictures relative to permissible public viewings as between adults and those in various age brackets under 21 years of age. It then subjects any exhibitor who shows a board classified film to any one within a proscribed age group, or who shows a classifiable film to minors without first affording the board an opportunity to review it, to criminal penalties and/or to suspension or loss of the exhibitor's theatre license.

The trial court struck down both ordinances as denying procedural safeguards guaranteed by the due process clauses of the federal and state constitutions and as establishing an administrative system of impermissible prior restraint upon free speech as guaranteed by the first amendment to the U.S. Constitution and Const. art. 1, § 5. Furthermore, the trial court held Ordinance No. 93227 to be unconstitutionally vague and overbroad, as well as discriminatory under the equal protection and privileges and immunities clauses of the respective federal and state constitutions.

Appellants assign error to the trial court's basic findings, conclusions, and judgment. In reviewing and affirming the trial court's determination with respect to the constitutional status of the ordinances in question, we limit ourselves to the prior restraint and procedural aspects of the ordinances in question. In so doing, we do not reach the questions of vagueness, overbroadness, or the various claims of discrimination. In this latter vein, we are satisfied that there are presently sufficient guidelines in the extant decisions of the United States Supreme Court to permit the drafting of appropriate future legislation within the confines of the pertinent boundaries imposed by that court. See, for example, Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, April 22, 1968; Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225, April 22, 1968; R. Kuh, Foolish Figleaves (1967).

We approach our immediate problem with the initial observation that it is now well settled that motion pictures and plays are a form of expression entitled to the constitutional guarantees of free speech and press under both the federal and state constitutions. Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Joseph Burstyn, Inc. v. Wilson,343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). And, it is equally well established that any restraint imposed upon a constitutionally protected medium of expression comes into court bearing a heavy presumption Against its constitutionality. Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Adams v. Hinkle, 51 Wash.2d 763, 322 P.2d 844 (1958).

Likewise basic, is the exclusion of the utterance of obscenity from the federal constitutional guarantees of free expression. In depriving obscenity of the first amendment, supra, protection, the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), quoted with approval from Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942):

'* * *. It has been well observed that such (lewd and obscene) Utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.'

The wisdom of this judgment that obscenity should and can be properly restrained is reflected in the international accord of over 50 nations, in the obscenity laws of all of the 50 states (see, e.g., RCW 9.68), and in the 20 obscenity laws enacted by the United States Congress from 1842 to 1956. Roth v. United States, supra, at 485, footnote 17, 77 S.Ct. 1304.

The issue which arises in the instant case is, however, the regulation, classification, and restraint sought to be imposed upon the media of expression involved prior to the initial public exhibition of that media. In this vein, prior or previous restraint, in a limited sense, has been found to be consistent with the federal constitutional guarantees of freedom of expression. In Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), it was stated at 47, 81 S.Ct. at 393:

It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 715--716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint 'is stated too broadly, if every such restraint is deemed to be prohibited * * *.

(T)he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.'

* * * (T)he Chief Justice found * * * that 'the primary requirements of decency may be enforced against obscene publications' * * *.

This (Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) principle of constitutional interpretation and application of the pertinent first amendment, supra, freedom was adhered to in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); applied in the context of motion picture exhibitions in Joseph Burstyn, Inc. v. Wilson, supra; and reaffirmed in Times Film Corp. v. City of Chicago, supra; Freedman v. State of Maryland, supra; and Interstate Circuit, Inc. v. City of Dallas, supra.

Against this background, then, the question posed is not whether a prior restraint may be imposed upon the utterance of obscenity, but rather whether such restraint may be imposed in a particular manner, such as establishing a board to preview, classify and regulate material proposed for exhibition. See T. Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648 (1955), as quoted in Adams v. Hinkle, supra, 51 Wash.2d at 772, 322 P.2d 844.

In Times Film Corp. v. City of Chicago, supra, the United States Supreme Court had before it for consideration a municipal ordinance which required, as a prerequisite of public exhibition, the delivery of motion picture films to the office of a censor for examination. The Court held that the ordinance did not, upon its face, violate the federal constitutional guarantees of freedom of expression. In Bantam Books, Inc. v. Sullivan, supra, and Freedman v. State of Maryland, supra, however, it was pointed out that the only question tendered for decision in the Times Film Corp. case was whether a prior restraint was necessarily unconstitutional under all circumstances. The specific procedural aspects of the Chicago ordinance were not then in issue.

In the Bantam Books, Inc., and the Freedman cases, supra, attention was focused upon the procedural aspects of the censorship systems there involved. The Times Film Corp. case was explained and restricted to the issue decided. In the Bantam Books, Inc., case the Court commented, 372 U.S. at page 70, 83 S.Ct. at p. 639:

We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate...