Freedman v. State of Maryland

Decision Date01 March 1965
Docket NumberNo. 69,69
PartiesRonald L. FREEDMAN, Appellant, v. STATE OF MARYLAND
CourtU.S. Supreme Court

Felix J. Bilgrey, New York City, for appellant.

Thomas B. Finan, Baltimore, Md., for appellee.

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 the statutory standards2 and 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, 84 S.Ct. 1919, 12 L.Ed.2d 1042. We reverse.


In Times Film Copr. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, 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, 83 S.Ct. 631, 639, 6 L.Ed.2d 584 (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, 81 S.Ct., at 393. The Court held that on this 'narrow' question, id., at 46, 81 S.Ct., at 393, 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, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, 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, 81 S.Ct., at 393, 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 deci- sion 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 re-examination, 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 n 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 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, 60 S.Ct. 736, 742, 84 L.Ed. 1093; see Staub v. City of Baxley, 355 U.S. 313, 319, 78 S.Ct. 277, 280—281, 2 L.Ed.2d 302; Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. City of Griffin, 303 U.S. 444, 452—453, 58 S.Ct. 666, 669, 82 L.Ed. 949. 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, 83 S.Ct. 328, 338, 9 L.Ed.2d 405; 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 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 discretion.


Although the Court has said that motion pictures are not 'necessarily subject to the precise rules governing any other particular method of expression,' Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098, it is as true here as of other forms of expression that '(a)ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 70, 83 S.Ct. at 639. '* * * (U)nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127. The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.4 And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final.

Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 'Where the transcendent value of speech is involved, due process certainly...

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