Times Film Corporation v. Chicago

365 U.S. 43

Case Year: 1961

Case Ruling: 5-4

Opinion Justice: Clark

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Dissenting Opinions

Court Opinion Joiner(s):

Frankfurter, Harlan, Stewart, Whittaker


1st Concurring Opinion



1st Dissenting Opinion

Author: Warren

Joiner(s): Black, Douglas, Brennan

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



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(Justice Clark's decision contains a statement of the facts)



Petitioner challenges on constitutional grounds the validity on its face of that portion of 155-4 1 of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as "Don Juan." It applied for a permit, as Chicago's ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner's refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments.... The precise question at issue here never having been specifically decided by this Court, we granted certiorari....

... The challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.

In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. New York, (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota (1931), Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint "is stated too broadly, if every such restraint is deemed to be prohibited.... [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases." These included, the Chief Justice found, utterances creating "a hindrance" to the Government's war effort, and "actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." In addition, the Court said that "the primary requirements of decency may be enforced against obscene publications" and the "security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government." Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire (1942), held that there were "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was "not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places."... Five years later, in Roth v. United States (1957), we held that "in light of ... history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance." Even those in dissent there found that "Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it."... And, during the same Term, in Kingsley Books, Inc., v. Brown (1957), after characterizing Near v. Minnesota, supra, as "one of the landmark opinions" in its area, we took notice that Near "left no doubts that `Liberty of speech, and of the press, is also not an absolute right ... the protection even as to previous restraint is not absolutely unlimited.'... The judicial angle of vision," we said there, "in testing the validity of a statute like [New York's injunctive remedy against certain forms of obscenity] is `the operation and effect of the statute in substance.'" And as if to emphasize the point involved here, we added that "The phrase `prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test."...

Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute ... and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment--a claim without sanction in our cases. To illustrate its fallacy, we need only point to one of the "exceptional cases" which Chief Justice Hughes enumerated in Near v. Minnesota, namely, "the primary requirements of decency [that] may be enforced against obscene publications." Moreover, we later held specifically "that obscenity is not within the area of constitutionally protected speech or press." Roth v. United States (1957). Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner's only answer is that regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, that "capacity for evil ... may be relevant in determining the permissible scope of community control," ... and that motion pictures were not "necessarily subject to the precise rules governing any other particular method of expression. Each method," we said, "tends to present its own peculiar problems."... Certainly petitioner's broadside attack does not warrant, nor could it justify on the record here, our saying that--aside from any consideration of the other "exceptional cases" mentioned in our decisions--the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. 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.... We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license....

As to what may be decided when a concrete case involving a specific standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all--or for that matter any--of the ordinance's standards. Naturally we could not say that every one of the standards, including those which Illinois' highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time we say no more than this--that we are dealing only with motion pictures and, even as to them, only in the context of the broadside attack presented on this record.



I cannot agree either with the conclusion reached by the Court or with the reasons advanced for its support. To me, this case clearly presents the question of our approval of unlimited censorship of motion pictures before exhibition through a system of administrative licensing. Moreover, the decision presents a real danger of eventual censorship for every form of communication, be it newspapers, journals, books, magazines, television, radio or public speeches. The Court purports to leave these questions for another day, but I am aware of no constitutional principle which permits us to hold that the communication of ideas through one medium may be censored while other media are immune. Of course each medium presents its own peculiar problems, but they are not of the kind which would authorize the censorship of one form of communication and not others. I submit that in arriving at its decision the Court has interpreted our cases contrary to the intention at the time of their rendition and, in exalting the censor of motion pictures, has endangered the First and Fourteenth Amendment rights of all others engaged in the dissemination of ideas....

The vice of censorship through licensing and, more generally, the particular evil of previous restraint on the right of free speech have many times been recognized when this Court has carefully distinguished between laws establishing sundry systems of previous restraint on the right of free speech and penal laws imposing subsequent punishment on utterances and activities not within the ambit of the First Amendment's protection. See Near v. Minnesota; Cantwell v. Connecticut....

Let it be completely clear what the Court's decision does. It gives official license to the censor, approving a grant of power to city officials to prevent the showing of any moving picture these officials deem unworthy of a license. It thus gives formal sanction to censorship in its purest and most far-reaching form, to a classical plan of licensing that, in our country, most closely approaches the English licensing laws of the seventeenth century which were commonly used to suppress dissent in the mother country and in the colonies.... The Court treats motion pictures, food for the mind, held to be within the shield of the First Amendment, ... little differently than it would treat edibles....