Zenith International Film Corp. v. CITY OF CHICAGO, ILL.
| Decision Date | 11 April 1960 |
| Docket Number | No. 60 C 291.,60 C 291. |
| Citation | 183 F. Supp. 623 |
| Parties | ZENITH INTERNATIONAL FILM CORPORATION, a New York corporation, Plaintiff, v. CITY OF CHICAGO, ILLINOIS, a Municipal corporation, Richard J. Daley and Kyran Phelan, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Nelson, Boodell & Will, Chicago, Ill., for plaintiff.
John C. Melaniphy, Corporation Counsel of City of Chicago, Chicago, Ill., for defendant.
Plaintiff, Zenith International Film Corporation, a New York corporation, brings this action against defendants, City of Chicago, a municipal corporation organized and existing under the laws of the State of Illinois, Richard J. Daley, Mayor of the City of Chicago and an Illinois citizen, and Kyran Phelan, the duly appointed and acting Commissioner of Police of the City of Chicago, and a citizen of the State of Illinois (since the filing of this complaint, the City of Chicago has appointed Orlando Wilson as "Superintendent of Police," replacing Kyran Phelan), for an order directing defendants to issue plaintiff a motion picture permit to exhibit the film "The Lovers" in Chicago and for an order enjoining defendants from preventing plaintiff's exhibition of the film in Chicago upon the grounds that actions of defendants are an infringement and denial to plaintiff of its constitutional rights to freedom of speech, freedom of press, and freedom to engage in lawful business activities in the City of Chicago as set forth in the First Amendment and the Fourteenth Amendment to the Constitution of the United States. Jurisdiction is founded upon Title 28 U.S.C. §§ 1331 and 1332.
On September 6, 1959, plaintiff, as the exclusive distributor for the film, "The Lovers," in Chicago, applied to the then Commissioner of Police, Timothy J. O'Connor, for a permit to exhibit the film in Chicago pursuant to Sections 155-1 to 155-4 of the Municipal Code of the City of Chicago.
On September 21, 1959, after the Board of Review, to whom Commissioner O'Connor had delegated the duty of reviewing motion pictures for which permits had been requested, had viewed the film, Commissioner O'Connor notified plaintiff that he would not issue a permit to exhibit the film in Chicago on the ground that it is immoral and obscene.
Plaintiff then appealed Commissioner O'Connor's decision to Mayor Daley and on December 2, 1959, plaintiff's counsel received a letter from John C. Melaniphy, Corporation Counsel for the City of Chicago, stating that the appeal had been referred to the law department of the City of Chicago. The letter further stated:
On December 14, 1959, the president of plaintiff came to Chicago from New York and with counsel, met with Sergeant Nolan, Director of the Police Censor Unit, and Officer Considine of the Police Censor Unit, to discuss the scene referred to in the letter of December 2, 1959, received from Corporation Counsel Melaniphy. Sergeant Nolan advised plaintiff that notwithstanding the letter of December 2, 1959, his instructions from Commissioner O'Connor were to insist upon the deletion of a number of scenes. Commissioner O'Connor subsequently confirmed these instructions and on February 3, 1960, Mayor Daley formally denied the appeal of plaintiff from the order of Commissioner O'Connor and refused to issue plaintiff a permit to exhibit the film "The Lovers" in the City of Chicago. As a result, plaintiff is forbidden and prohibited from exhibiting the said film in the City of Chicago under penalty of a fine.
On February 25, 1960, plaintiff filed the instant cause and on March 17, 1960, in accordance with established procedure, I viewed the film and now proceed to disposition after full consideration of the briefs of the parties:
Section 155-4 of the Municipal Code provides as follows:
"The Lovers" is a film by so-called "new wave" French director Louis Malle based upon an updated version of the novel, "Point de Lendemain," written by Dominique Vivant in the Eighteenth Century.
Briefly stated, the story line is a simple one. A Dijon wife, apparently suffering from neglect because her husband as editor of the local newspaper is overly occupied with his work, spends much of her time in Paris with a girl friend and a lover. Hurrying back to Dijon one day and hoping to return before the arrival of the girl friend and the lover, who have been invited at the insistence of her jealous husband as weekend guests, she is picked up and given a ride home by a young archeologist when her car breaks down.
After everyone has retired for the evening, the sleepless wife strolls upon the grounds where she encounters the young archeologist who is spending the night as a guest at the request of her husband. They fall in love almost immediately and go to her room for the night. The next morning, to the astonishment of everyone, they leave together.
In Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, the Supreme Court in 1915 recognized official censorship as a valid exercise of state police power. Since it was not until 1925, in Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, that the Supreme Court held that the guarantees of the First Amendment were applicable to the states as a part of the Due Process Clause limitations of the Fourteenth Amendment, the Supreme Court in the Mutual Film case did not consider the freedom of speech issue except as it related to the Ohio Constitution. In this regard the Court stated at page 244 of 236 U.S., at page 391 of 35 S.Ct.:
"It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion."
Subsequent to this decision and the Gitlow case, talking pictures were introduced in 1926. The next important decision of the Supreme Court bearing upon the problem of movie censorship occurred in 1931 where the Court in Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, laid down the distinction between prior restraints and subsequent punishments, holding that the First Amendment prohibits prior restraints even in those cases in which it would permit subsequent punishment. Then in 1948, the Court recognized that motion pictures are a form of speech contemplated by the First Amendment. United States v. Paramount Pictures, 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260. Finally, the Court in 1952 held that "Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098.
Parenthetically, it might be here observed that censorship statutes may also be attacked as unconstitutional because of vagueness that offends due process, Burstyn, Inc. v. Wilson, supra, 343 U.S. at pages 507-533, 72 S.Ct. at pages 783-796, or as an unconstitutional delegation of authority. Nimmer, Official Censorship of Movies, 25 U. of Chicago L.Rev. 625, 628.
Since the Burstyn case, the Supreme Court has decided a number of cases which bear upon the problem of movie censorship: Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films v. Dept. of Education (Commercial Pictures Corp. v. Regents of University of State of New York), 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. 770; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Times Film Corp. v. City of Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Kingsley Intern. Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed. 2d 1512; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.
Though the Court in the above cases expressly avoids deciding the constitutional issue of movie censorship by the use of the per curiam decision or the projection of self-imposed rules, it is nevertheless clear from the divergent concurring opinions that the Court is presently divided into three groups: those Justices who regard all movie censorship as...
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