Mutual Film Co. v. Industrial Commission of Ohio

Citation215 F. 138
Decision Date02 April 1914
Docket Number205,206.
CourtU.S. District Court — Northern District of Ohio

Squire Sanders & Dempsey, of Cleveland, Ohio, Wm. B. Sanders and Harold T. Clark, both of Cleveland, Ohio, and Walter N Seligsberg, of New York City, for complainants.

Timothy S. Hogan, Atty. Gen., and James S. Bolger, Asst. Atty. Gen both of Columbus, Ohio, and Robert M. Morgan, of Cleveland Ohio, for defendants.

Before WARRINGTON, Circuit Judge, and KILLITS and DAY, District judges.


The ultimate question in these cases is whether a state has power to regulate the public exhibition of motion pictures. The statement of the question would seem to present a simple problem, and yet it is earnestly contended that the General Assembly of Ohio has through its enactment violated grave constitutional guaranties. The contention is not that persons displaying improper pictures may not be punished after the fact; but it is that the display itself cannot be prevented. This is not a denial of the existence of evil practices growing out of this class of public exhibitions; it is a challenge of the power of the state to avoid such practices through the exercise of any measures of prevention. The issue then is one of remedy, and its nature is seen in the difference between the avoidance and the practical endurance of such evils as may exist.

The complainant in each case is a corporation, one having been organized under the laws of Ohio and the other under the laws of Virginia, and each is engaged in business as a distributor of moving picture films. The defendants in each case are the same; the Industrial Commission of Ohio, and the board of censors of motion picture films, with their respective members. The former board was created under an act approved March 18, 1913 (103 Ohio Laws, 95-110), and the latter under an act entitled 'An act providing a board to censor motion picture films and prescribing the duties and powers of the same,' approved May 3, 1913 (103 Ohio Laws, 399-401). The first act is not directly involved, except a single section to which we shall later have occasion to allude; and the body of the second act is hereinafter set out. The complainants seek to enjoin the enforcement of the second act, and this accounts for the presence of three judges (Judicial Code, Sec. 266; Act March 3, 1911, c. 231, 36 Stat 1162 (U.S. Comp. St. Supp. 1911, p. 236)). The bills are in the usual form and substantially alike. They will be sufficiently understood by setting out the substance of their pertinent averments, in connection with our consideration of the objections urged against the validity of the second act.

No question of jurisdiction is presented. Diversity of citizenship in the first case, and the presence of federal questions in both cases, are admitted; and the latter are sufficient to vest the court with jurisdiction, even though it should decide the federal questions adversely to the complainants, or, finding it unnecessary to pass upon such questions, should decide the cases on state questions alone. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191, 29 Sup.Ct. 451, 53 L.Ed. 753; Mich. Cent. R.R. v. Vreeland, 227 U.S. 59, 63, 64, 33 Sup.Ct. 192, 57 L.Ed. 417; Louisville & Nashville R.R. v. Siler (C.C.) 186 F. 176, 179; Ohio River & W. Ry. Co. v. Dittey (D.C.) 203 F. 537, 589.

The second act, called by counsel the censorship law, has not been passed upon by the Supreme Court of Ohio, nor, so far as we know, by any court of the state. The main strength of the argument in support of the suits is aimed against the constitutional validity of the act; it appears in the margin. [1] Examination of the act plainly discloses an exercise of the state's police power; and no one doubts that this power extends to the making of regulations 'promotive of domestic order, morals, health, and safety. ' Railroad Co. v. Husen, 95 U.S. 465, 471, 24 L.Ed. 527. Presumably the General Assembly was convinced that the business of exhibiting motion picture films was attended with such public evils as both to warrant and demand regulation; and, if the measures adopted have reasonable relation to that end, it is not open to the judiciary to interfere. It does not matter that the subject in the main is harmless; it does matter, however, if something is associated with it that is harmful; and it is only when it clearly appears that the enactment has no real or substantial relation to a proper subject, or is unquestionably an invasion of rights secured by the fundamental law, that the courts either of the United States or of the state of Ohio will interfere. Purity Extract Co. v. Lynch, 226 U.S. 192, 201, 202, 33 Sup.Ct. 44, 57 L.Ed. 184; Schmidinger v. City of Chicago, 226 U.S. 578, 587, 588, 33 Sup.Ct. 182, 57 L.Ed. 364; Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765; Otis v. Parker, 187 U.S. 606, 609, 23 Sup.Ct. 168, 47 L.Ed. 323; Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 Sup.Ct. 186, 55 L.Ed. 112, 32 L.R.A. (N.S.) 1062; Booth v. Illinois, 184 U.S. 425, 429, 22 Sup.Ct. 425, 46 L.Ed. 623; Board of Health v. Greenville, 86 Ohio St. 1, 20, 23, 98 N.E. 1019, Ann. Cas. 1913D, 52.

This is but recognizing the 'principle, long established and vital in our constitutional system, that the courts may not strike down an act of legislation as unconstitutional, unless it be plainly and palpably so. ' Booth v. Illinois, supra, 184 page 431, 22 page 428 (46 L.Ed. 623). And, as Judge Donahue expressed the rule prevailing in Ohio:

'A court is not authorized to adjudge a statute unconstitutional where the question of its constitutionality is at all doubtful. ' Board of Health v. Greenville, supra, 86 Ohio page 20, 98 page 1021 (Ann. Cas. 1913D, 52).

Having these principles in mind, we shall consider as briefly as we may the objections urged against the constitutional validity of the statute.

1. In the argument at the bar it was insisted for complainants, and in the briefs it still is, that the statute violates the freedom of the press under the guaranty of the first amendment to the Constitution of the United States. Ordinarily it would be enough to say of this, as Mr. Justice Miller said in Eilenbecker v. Plymouth County, 134 U.S. 31, 34, 10 Sup.Ct. 424, 425 (33 L.Ed. 801):

'That the first eight articles of the amendments to the Constitution have reference to powers exercised by the government of the United States and not to those of the states.'

And see Lloyd v. Dollison, 194 U.S. 445, 447, 24 Sup.Ct. 703, 48 L.Ed. 1062. Recognizing the controlling force of this rule, complainants associate the first amendment with the clause of the fourteenth amendment, providing:

'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' Then they seem to regard this as unimportant, and at last rely on section 11 of article 1 of the state Constitution, which provides:
'Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * * '

It is claimed, as before pointed out, that this provision contemplates legislation providing for punishment after an act forbidden is committed, but that such an act cannot be prevented. Thus decisions which establish the right simply to punish-- such, for instance, as People v. Most, 171 N.Y. 423, 64 N.E. 175, 58 L.R.A. 509, or Tyomies Pub. Co. v. U.S. of America, 211 F. 385, decided March 3, 1914 (C.C.A. 6th Cir.)-- are not questioned. It is urged on behalf of the state that the question so presented is met by the rule that the corporate complainants are not citizens within the true meaning of the guaranties contained either in the clause of the fourteenth amendment or of the Ohio Constitution, before quoted. Blake v. McClung, 172 U.S. 239, 259, 19 Sup.Ct. 165, 43 L.Ed. 432; Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363, 27 Sup.Ct. 384, 51 L.Ed. 520; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126, 33 Sup.Ct. 69, 57 L.Ed. 146; Orient Insurance Co. v. Daggs, 172 U.S. 557, 566, 19 Sup.Ct. 281, 43 L.Ed. 552. But since these decisions did not involve the Ohio guaranty, we prefer to consider the statute upon its merits.

It is averred in the bills:

'That the motion pictures, the films for which are purchased, sold and released by complainant, depict dramatizations of standard novels and short stories and the performance of standard dramas. * * * That they also exhibit many subjects of scientific interest, such as showing the various uses that may be made of electricity, showing the manner of development and growth of various forms of animal and plant life, giving pictures of trips of exploration * * * and pictures of other subjects covering a range as wide as life itself, which are educational, instructive, and amusing. That one of the most important classes of subjects exhibited in complainant's motion picture films is the depicting of events * * * described in words and by photographs in newspapers, weekly periodicals, magazines, and other publications; * * * this regular furnishing and publishing of news through the medium of motion pictures being done under the name of the 'Mutual Weekly."

It is contended that the Mutual Weekly, so described, is as much a press enterprise as are any of the standard magazines periodicals, and newspapers; and that, unless it can be safely affirmed that the state may provide for the censoring of newspapers and magazines, the present statute cannot be sustained. We cannot...

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