Zenith International Film Corp. v. City of Chicago, Ill.
| Decision Date | 20 June 1961 |
| Docket Number | No. 13008.,13008. |
| Citation | 291 F.2d 785 |
| Parties | ZENITH INTERNATIONAL FILM CORPORATION, Plaintiff-Appellant, v. CITY OF CHICAGO, ILL., Richard J. Daley and Kyran Phelan, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Hubert L. Will, Joseph Schneider, Chicago, Ill., for appellant.
Robert J. Collins, Asst. Corp. Counsel, John C. Melaniphy, Corporation Counsel, Sydney R. Drebin, Asst. Corporation Counsel, Chicago, Ill., for appellees.
Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.
The Supreme Court, in Times Film Corp. v. City of Chicago, 1961, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, held that the prior restraint imposed by a certain Chicago city ordinance which required submission before exhibition of all films to municipal authorities for their examination was not per se a violation of the constitutional guarantee of freedom of speech. The Court rejected what it characterized as a "broadside" attack, i. e., that under no circumstances can a municipality censor movies and must content itself with criminal or civil sanctions subsequent to the first exhibition. The Court expressly noted that it decided only the question of the freedom "to exhibit, at least once, any and every kind of motion picture." Id., 365 U.S. at page 46, 81 S.Ct. at page 393.
Thus has been determined the basic, broad question of prior restraint in the exhibition of motion pictures. A city may choose this form of regulation. The Court stated, "It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances." Id., 365 U.S. at page 50, 81 S.Ct. at page 395.
Although the question of the constitutionality of prior restraint has now been answered, many complex issues still remain unsettled. One is the problem of the legitimate standards or criteria upon which a municipality may reject a film for public distribution. In each case, a valid standard must be applied to the film in issue. And finally, in the municipal administration of the exercise of such prior restraint, it remains to be determined whether procedural due process has been accorded to those sought to be restrained.
It is with this latter question that we are concerned in the instant appeal.
Plaintiff-appellant Zenith International Film Corporation made application on September 6, 1959 to the Commissioner of Police of Chicago, Timothy J. O'Connor, for a permit to exhibit the film, "The Lovers." Such application was made pursuant to Chapter 155, Sections 155-1 to 155-4 of the Municipal Code of the City of Chicago, set out infra.
The film was then referred to a board of review which viewed it. To this body Commissioner O'Connor had delegated the duty of reviewing motion pictures for which permits had been requested.
On September 21, 1959, Commissioner O'Connor notified Zenith that he would not issue the requisite permit to exhibit the film in Chicago on the ground that "The Lovers" was immoral and obscene.
Pursuant to the foregoing municipal ordinance, Zenith thereupon appealed this decision to the Mayor of the City of Chicago, Richard J. Daley. On December 2, 1959, Zenith received a letter from John C. Melaniphy, Corporation Counsel for the City of Chicago, stating that the appeal had been referred to the City's law department. The letter further stated:
On December 14, 1959, the president of Zenith 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. The purpose of such meeting was to discuss the "particular scene" referred to in Melaniphy's letter of December 2, 1959. Sergeant Nolan then advised Zenith that notwithstanding the letter of December 2, 1959, his instructions from Commissioner O'Connor were to insist upon the same cuts that had been originally proposed in September, namely, substantially all of the fifth reel of the film comprising literally hundreds of scenes. Commissioner O'Connor subsequently confirmed these instructions; and on February 3, 1960 Mayor Daley formally denied the appeal of Zenith 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.
Zenith then brought this action in the federal district court against defendants City of Chicago, Richard J. Daley, Mayor of the City of Chicago, and Kyran Phelan, duly appointed and acting Commissioner of Police. The complaint prayed for an order directing defendants to issue to Zenith a permit to exhibit the film "The Lovers" and for a further order enjoining defendants from preventing Zenith's exhibition of the film in the City of Chicago. It was alleged that the action of defendants infringed upon and denied Zenith its constitutional rights of freedom of speech, freedom of the press and freedom to engage in lawful business activities. Further, the municipal ordinance in question was alleged to violate the First and Fourteenth Amendments to the Constitution inasmuch as it established no standards whereby the Commissioner of Police or the Mayor could determine whether a film is immoral or obscene, leaving such determination to be a matter of mere subjective preference.
In addition, in its complaint Zenith charged, and defendants admitted in their answer, that "from the date the film was submitted for review and up to the date plaintiff's appeal to defendant Daley was denied, neither defendant Daley, former Commissioner O'Connor, defendant Phelan, Corporation Counsel Melaniphy, Assistant Corporation Counsel Hartigan nor Sergeant Nolan had viewed the film in its entirety."
The district court viewed the film and considered briefs of the parties. Thereafter, in a written opinion it held that "The Lovers," judged by tests set out by the United States Supreme Court and the Illinois Supreme Court, "appeals to the prurient interest, is obscene, and therefore censorable under the Chicago ordinance." Further, it held, consistent with the subsequent Supreme Court decision in Times Film, supra, that prior restraint of movies was not per se unconstitutional. Finally, the district court examined the procedural protections afforded Zenith in the city's application of its power of prior restraint and found them consistent with such restraint approved in Kingsley Books, Inc. v. Brown, 1957, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed. 2d 1469. This appeal followed.
We have heard arguments, received briefs, and viewed the film in question. We make no determination as to the obscenity of such film but pass directly to the basic question of the municipal administration of the prior restraint as the record reveals it here.
"The essence of justice is largely procedural."1 In an area which involves important property rights, basic constitutional freedoms, and comprehensive municipal licensing, fair and adequate administrative procedure should be guaranteed. It is at the municipal level, in the first instance, that the permissible criteria of censorship must be applied. The alternative would compel the federal courts, in all instances where local determinations are challenged, to assume the role of censor, exercising their judgment de novo as to the obscenity of a particular film.
The record before us reveals that the municipal procedure here followed constitutes the antithesis of a fair determination of the obscenity of the film in question.
The city ordinance under which Zenith applied for, and was denied, its permit provides as follows:
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