Interstate Circuit, Inc v. City of Dallas United Artists Corporation v. City of Dallas, s. 56

Decision Date22 April 1968
Docket NumberNos. 56,64,s. 56
CourtU.S. Supreme Court

[Syllabus from pages 676-677 intentionally omitted] Louis Nizer, New York City, and Grover Hartt, Jr., Dallas, Tex., for appellants.

N. Alex Bickley, Dallas, Tex., for appellee.

Mr. Justice MARSHALL delivered the opinion of the Court.

Appellants are an exhibitor and the distributor of a motion picture named 'Viva Maria,' which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dalas classified as 'not suitable for young persons.' A county court upheld the Board's determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed,1 and we noted probable jurisdiction, 387 U.S. 903, 87 S.Ct. 1685, 18 L.Ed.2d 620, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee's classification ordinance.

That ordinance, adopted in 1965, may be summarized as follows.2 It establishes a Motion Picture Classification Board, composed of nine appointed members, all of whom serve without pay. The Board classifies films as 'suitable for young persons' or as 'not suitable for young persons,' young persons being defined as children who have not reached their 16th birthday. An exhibitor must be specially licensed to show 'not suitable' films.

The ordinance requires the exhibitor, before any initial showing of a film, to file with the Board a proposed classification of the film together with a summary of its plot and similar information. The proposed classification is approved if the Board affirmatively agrees with it, or takes no action upon it within five days of its filing.

If a majority of the Board is dissatisfied with the proposed classification, the exhibitor is required to project the film before at least five members of the Board at the earliest practicable time. At the showing, the exhibitor may also present testimony or other support for his proposed classification. Within two days the Board must issue its classification order. Should the exhibitor disagree, he must file within two days3 a notice of nonacceptance. The Board is then required to go to court within three days to seek a temporary injunction, and a hearing is required to be set on that application within five days thereafter; if the exhibitor agrees to waive notice and requests a hearing on the merits of a permanent injunction, the Board is required to waive its application for a temporary injunction and join in the exhibitor's request. If an injunction does not issue within 10 days of the exhibitor's notice of nonacceptance, the Board's classification order is suspended.4 The ordinance does not define the scope of judicial review of the Board's determination, but the Court of Civil Appeals held that de novo review in the trial court was required.5 If an injunction issues and the exhibitor seeks appellate review, or if an injunction is refused and the Board appeals, the Board must waive all statutory notices and times, and join a request of the exhibitor, to advance the case on the appellate court's docket, i.e., do everything it can to assure a speedy determination.

The ordinance is enforced primarily by a misdemeanor penalty: an exhibitor is subject to a fine of up to $200 if he exhibits a film that is classified 'not suitable for young persons' without advertisements clearly stating its classification or without the classification being clearly posted, exhibits on the same program a suitable and a not suitable film, knowingly admits a youth under age 16 to view the film without his guardian or spouse accompanying him, 6 makes any false or willfully misleading statement in submitting a film for classification, or exhibits a not suitable film without having a valid license therefor.

The same penalty is applicable to a youth who obtains admission to a not suitable film by falsely giving his age as 16 years or over, and to any person who sells or gives to a youth under 16 a ticket to a not suitable film, or makes any false statements to enable such a youth to gain admission.7

Other means of enforcement, as against the exhibitor, are provided. Repeated violations of the ordinance, or persistent failure 'to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons' are below the age of sixteen,' may be the basis for revoca- tion of a license to show not suitable films.8 Such a persistent failure, or exhibition of a not suitable film by an exhibitor with three convictions under the ordinance, inter alia, are defined as 'public nuisances,' which the Board may seek to restrain by a suit for injunctive relief.

The substantive standards governing classification are as follows:

"Not suitable for young persons' means:

'(1) Describing or portraying brutality, criminal violence or depravity in such a 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 extra-marital 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 dominent 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.'

Appellants attack those standards as unconstitutionally vague. We agree. Motion pictures are, of course, protected by the First Amendment, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), and thus we start with the premise that '(p)recision of regulation must be the touchstone,' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). And while it is true that this Court refused to strike down, against a broad and generalized attack, a prior restraint requirement that motion pictures be submitted to censors in advance of exhibition, Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961), there has been no retreat in this area from rigorous insistence upon procedural safeguards and judicial superintendence of the censor's action. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).9

In Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), this Court struck down as vague and indefinite a statutory standard interpreted by the state court to be 'criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes * * *.' Id., at 518, 68 S.Ct. at 676. In Joseph Burstyn, Inc. v. Wilson, supra, the Court dealt with a film licensing standard of 'sacrilegious,' which was found to have such an all-inclusive definition as to result in 'substantially unbridled censorship.' 343 U.S., at 502, 72 S.Ct. 777. Following Burstyn, the Court held the following film licensing standards to be unconstitutionally vague: 'of such character as to be prejudicial to the best interests of the people of said City,' Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 (1952); 'moral, educational or amusing and harmless,' Superior Films, Inc. v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 (1954); 'immoral,' and 'tend to corrupt morals,' Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 (1954); 'approve such films * * * (as) are moral and proper; * * * disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals.' Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770 (1955).10 See also Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 699—702, 79 S.Ct. 1362, 1370—1372, 3 L.Ed.2d 1512 (Clark, J., concurring in result).

The vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing. It may be unlikely that what Dallas does in respect to the licensing of motion pictures would have a significant effect upon film makers in Hollywood or Europe. But what Dallas may constitutionally do, so may other cities and States. Indeed, we are told that this ordinance is being used as a model for legislation in other localities. Thus, one who wishes to convey his ideas through that medium, which of course includes one who is interested not so much in expression as in making money, must consider whether what he proposes to film, and how he proposes to film it, is within the terms of classification schemes such as this. If he is unable to determine what the ordinance means, he runs the risk of being foreclosed, in practical effect, from a significant portion of the movie-going public. Rather than run that risk, he might choose nothing but the innocuous, perhaps save for the so-called 'adult' picture. Moreover, a local...

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