Paramount Pictures Corp. v. Busbee

• Decision Date: 22 November 1982
• Docket Number: No. 38771,38771
• Citation: Paramount Pictures Corp. v. Busbee, 297 S.E.2d 250, 250 Ga. 252 (Ga. 1982)
• Parties: PARAMOUNT PICTURES CORP. v. BUSBEE, Governor, et al.
• Court: Georgia Supreme Court

Page 250

297 S.E.2d 250

250 Ga. 252

PARAMOUNT PICTURES CORP. v. BUSBEE, Governor, et al.

No. 38771.

Supreme Court of Georgia.

Nov. 22, 1982.

Ellis Arnall, Allen I. Hirsch, William H. Kitchens, Arnall, Golden & Gregory, Atlanta, Paul D. Springer, Barbara Scott, William Nix, New York City, for Paramount Pictures Corp.

Michael J. Bowers, Atty. Gen., James C. Pratt, Asst. Atty. Gen., for George Busbee, Governor, et al.

Griffin B. Bell, S. Renee Huskey, amicus curiae.

SMITH, Justice.

Appellant Paramount Pictures Corp. challenges the Georgia Motion Picture Fair Competition Act, Code Ann. Ch. 106-13, under the free speech and due process provisions of the Georgia Constitution.

Paramount is a Delaware corporation engaged in the production and distribution of motion pictures. In July 1981, appellant filed suit in Fulton Superior Court seeking a judgment declaring Code Ann. Ch. 106-13 unconstitutional and enjoining its enforcement by appellees, who are state officials charged with enforcing the law. The trial court denied Paramount's motion for summary judgment and granted summary judgment for appellees. Paramount brings this direct appeal. We affirm.

The Georgia Motion Picture Fair Competition Act (the Act) was passed by the General Assembly in 1979. The Act, which is similar to statutes currently in force in eighteen other states, ¹ is designed to regulate the manner in which motion pictures are distributed for exhibition to the public in Georgia. The heart of the Act is Code Ann. § 106-1304, which prohibits a practice known in the motion picture industry as "blind bidding." ² Blind bidding occurs when movie distributors such as Paramount solicit bids and enter into licensing agreements with local exhibitors prior to trade screening a film. ³ In order to understand the issues presented by this appeal, a brief review of the role of blind bidding in the motion picture industry is necessary.

Blind Bidding and the Motion Picture Industry

The practice of blind bidding motion pictures is not new. In Allied Artists Pictures Corp. v. Rhodes, 496 F.Supp. 408 (S.D.Ohio 1980), affirmed, 679 F.2d 656 (6th Cir.1982), the court reviewed thoroughly the history of blind bidding. Some of its observations bear repeating here: " 'Blind bidding' is a term used in the motion picture industry to describe the licensing of a motion picture to a theater owner without the owner's first viewing the picture. Blind bidding and other practices by which motion picture producers and distributors license their product to exhibitors have been controversial and subject to varying degrees of governmental scrutiny at least since the 1940's, when the Supreme Court was asked to review a far-reaching judicial decree regulating them. United States v. Paramount, 334 U.S. 131, 157, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948). That decree permitted a theater owner to reject 20% of the films licensed by blind bidding. Although at that time relatively few new films were blind bid, the practice increased steadily during the ensuing decades.

"In 1968 a new consent decree imposed a more stringent restriction, limiting to three the number of films which could be blind bid per year. When that consent decree expired in 1975, the number of films blind bid each year increased rapidly.

"These events paralleled an increasing concentration of production and distribution in a few major companies while theater ownership remained relatively less concentrated. Exhibitors, finding themselves with diminishing clout in bargaining for licenses, complained that the producers and distributors of motion pictures were unfairly using their increasing market power to exact onerous bargaining terms." 496 F.Supp. at 412, 413.

The mechanics of blind bidding are quite simple. Six months to a year prior to release of a movie which is in production, a distributor sends requests for bids to exhibitors. Based on a limited amount of information about the upcoming film's plot, cast, and credits contained in the bid request, an exhibitor decides whether and how much to bid for rights to show the movie. The distributor then evaluates the bids and enters into licensing agreements with the preferred exhibitors. See Note, Blind Bidding and the Motion Picture Industry, 92 Harv.L.Rev. 1128, 1132 (1979).

The major motion picture distributors such as Paramount prefer to blind bid their films and are generally opposed to state regulation of blind bidding. Blind bidding is advantageous to distributors in several respects. Advance booking of motion pictures assures the distributors exhibition time which coincides with expensive promotional efforts. This is especially important during holidays and summer vacation, when movie attendance is at its peak. The blind bidding system guarantees the distributors receipt of exhibition revenues shortly after completion of a film and avoids additional financing costs which accompany delayed release of a film.

Motion picture exhibitors, on the other hand, are opposed to blind bidding. They do not like having to bid for rights to show movies that they have not yet seen. Exhibitors also claim that the information supplied them about the films by distributors is often incomplete and misleading. In addition, small independent movie distributors complain that they lack the financial resources and reputation to blind bid their films. As a result, they are unable to compete with the major distributors for first-run exhibition times. ⁴ Id. at 1132-34.

This Appeal

It was against this general background that the Georgia General Assembly enacted our anti-blind bidding law. The Act's stated intent is to remedy the ills caused by blind bidding by "establish[ing] fair and open procedures for the bidding and negotiation for the right to exhibit motion pictures within the State ..., promot[ing] fair and effective competition ..., and insur[ing] that exhibitors have the opportunity to view a motion picture and know its contents before committing themselves to exhibiting it in their municipalities and towns." Code Ann. § 106-1301. The Act seeks to achieve these objectives by requiring that a motion picture be trade screened prior to negotiation of exhibition rights. The law also invalidates any attempted waiver of its provisions and imposes civil penalties for violations of its terms.

1. Paramount contends that the Georgia antiblind bidding law, on its face, violates the free speech and due process clauses of the 1976 Georgia Constitution. We will address the free speech claim first.

The free speech clause of the Georgia Constitution provides: "No law shall ever be passed to curtail, or restrain the liberty of speech, or of the press; any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty." Art. I, Sec. I, Para. IV (Code Ann. § 2-104). Paramount argues that the Act's requirement that distributors conduct trade screenings of their films prior to the negotiation of exhibition rights violates this provision because it creates an impermissible risk of delay in the dissemination of protected speech. We disagree.

While motion pictures are unquestionably a constitutionally-protected medium of expression, see K. Gordon Murray Productions v. Floyd, 217 Ga. 784, 788, 125 S.E.2d 207 (1962), Paramount has in this lawsuit failed to show how the Act in fact encroaches upon its freedom of expression. There is no evidence in the record that application of the statute has delayed the opening of a single motion picture in Georgia. Cf. Associated Film Distribution Corp. v. Thornburgh, 683 F.2d 808 (3d Cir.1982). Even assuming, as did the court below, that the Act creates some risk of delay in the distribution and exhibition of motion pictures, we hold that the anti-blind bidding law is a valid exercise of the State's regulatory power.

The Act is clearly content-neutral. Its requirement that distributors trade screen their movies applies to all motion pictures distributed commercially in Georgia, regardless of their content or subject matter. To the extent that the Act affects protected expression, it does so only incidentally. "General regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved." Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1006-07, 6 L.Ed.2d 105 (1961). ⁵

As content-neutral legislation regulating trade, a determination of the Act's constitutionality necessarily entails a balancing of the governmental interests it serves against its impact, if any, on protected expression. The Act should be upheld if it furthers an important government interest; if the government interest is unrelated to the suppression of speech; and if the incidental restriction of speech is no greater than is essential to the furtherance of that interest. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); Allied Artists Pictures Corp. v. Rhodes, supra.

First, we note that no adverse impact on expression whatsoever appears from the language of the statute, and that appellant has not proven any adverse impact on its rights. Paramount's only claim is that the Act causes a hypothetical "risk of delay" in distribution and exhibition of its motion pictures. Balanced against this minimal impact on expression are the State's legitimate interests in establishing fair and open bidding practices in the motion picture industry; promoting competition between independent and major film distributors; and allowing exhibitors to view movies prior to bidding on them. Code Ann. § 106-1301. We find these...