Parties: Times Film Corp. v. Chicago
Date: 1961-01-23
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Paragraph: 5 - 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.'
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Paragraph: 15 - '(T)he ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.'
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Paragraph: 20 - Blackstone's assertion: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.' 4 Bl.Comm. (Cooley, 4th Ed. 1899) 151. Blackstone probably here referred to the common law's definition of freedom of the press; he probably spoke of the situation existing in England after the disappearance of the licensing systems but during the existence of the law of crown libels.
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Paragraph: 44 - The ordinance before us in Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, made unlawful the solicitation, without a permit, of members for an organization which requires the payment of membership dues. The ordinance stated that 'In passing upon such application the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens of the City of Baxley.' Id., 355 U.S. at page 315, 78 S.Ct. at page 278. Mr. Justice Whittaker, speaking for the Court, stated 'that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City and thereby constitutes a prior restraint upon, and abridges, that freedom.' Id., 355 U.S. at page 321, 78 S.Ct. at page 282. In Staub, the ordinance required a permit for solicitation; in the case decided today, the ordinance requires a permit for the exhibition of movies. If this is a valid distinction, it has not been so revealed. In Staub, the permit was to be granted on the basis of certain indefinite standards; in the case decided today, nothing different may be said.
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Paragraph: 46 - 'But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule.
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Paragraph: 47 - 'The statute involved here does not seek to punish, as a past offense, speech or writing falling within the permissible scope of subsequent punishment. On the contrary, New York requires that permission to communicate ideas be obtained in advance from state officials who judge the content of the words and picture sought to be communicated. This Court recognized many years ago that such a previous restraint is a form of infringement upon freedom of expression to be especially condemned. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
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Paragraph: 62 - Freedom of speech and freedom of the press are further endangered by this 'most effective' means for confinement of ideas. It is axiomatic that the stroke of the censor's pen or the cut of his scissors will be a less contemplated decision than will be the prosecutor's determination to prepare a criminal indictment. The standards of proof, the judicial safeguards afforded a criminal defendant and the consequences of bringing such charges will all provoke the mature deliberation of the prosecutor. None of these hinder the quick judgment of the censor, the speedy determination to suppress. Finally, the fear of the censor by the composer of ideas acts as a substantial deterrent to the creation of new thoughts. See Tolstoy's declaration, note 6, supra. This is especially true of motion pictures due to the large financial burden that must be assumed by their producers. The censor's sword pierces deeply into the heart of free expression.
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Paragraph: 63 - It seems to me that the Court's opinion comes perilously close to holding that not only may motion pictures be censored but that a licensing scheme may also be applied to newspapers, books and periodicals, radio, television, public speeches, and every other medium of expression. The Court suggests that its decision today is limited to motion pictures by asserting that they are not 'necessarily subject to the precise rules governing any other particular method of expression. Each method * * * tends to present its own peculiar problems.' 365 U.S. 49, 81 S.Ct. 395. But, this, I believe, is the invocation of a talismanic phrase. The Court, in no way, explains why moving pictures should be treated differently than any other form of expression, why moving pictures should be denied the protection against censorship 'a form of infringement upon freedom of expression to be especially condemned.'
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Paragraph: 13 - N46* 'As early as 1644, John Milton, in an 'Appeal for the Liberty of Unlicensed Printing,' assailed an act of Parliament which had just been passed providing for censorship of the press previous to publication. He vigorously defended the right of every man to make public his honest views 'without previous censure'; and declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform it duties.'
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Paragraph: 19 - 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.
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Paragraph: 41 - There, a city ordinance proscribed the right of citizens to speak on religious matters in the city streets without an annual permit. Kunz had previously had his permit revoked because N47* 'he had ridiculed and denounced other religious beliefs in his meetings.' Id., 340 U.S. at page 292, 71 S.Ct. at page 314. Kunz was arrested for subsequently speaking in the city streets without a permit. The Court reversed Kunz' conviction
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Paragraph: 42 - N48* 'We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.'
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Paragraph: 66 - N59* It is true that 'each method (of expression) tends to present its own peculiar problems.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. The Court has addressed itself on several occasions to these problems. In Schneider v. State of New Jersey, supra, 308 U.S. at pages 160 161, 60 S.Ct. at page 150, the Court stated, in reference to speaking in public, that 'a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets.' The Court recognized that sound trucks call for particularized consideration when it said in Saia v. People of State of New York, supra, 334 U.S. at page 562, 68 S.Ct. at page 1150, 'Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. * * * Any abuses which loud-speakers create can be controlled by narrowly drawn statutes.' But, the Court's decision today does not follow from this. Our prior decisions do not deal with the content of the speech; they deal only with the conditions surrounding its delivery. These conditions 'tend to present the problems peculiar to each method of expression.' Here the Court uses this magical phrase to cripple a basic principle of the Constitution.
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Paragraph: 20 - There has been general criticism of the theory that Blackstone's statement was embodied in the First Amendment, the objection being "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions'; and that 'the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.' 2 Cooley, Const. Lim., (8th Ed.,) p. 885.' Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at page 715, 51 S.Ct. at page 630; Grosjean v. American Press Co., supra, 297 U.S. at page 248, 56 S.Ct. at page 448. The objection has been that Blackstone's definition is too narrow; it had been generally conceded that the protection of the First Amendment extends at least to the interdiction of licensing and censorship and to the previous restraint of free speech.Near v. State
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Paragraph: 66 - It is true that 'each method (of expression) tends to present its own peculiar problems.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. The Court has addressed itself on several occasions to these problems. In Schneider v. State of New Jersey, supra, 308 U.S. at pages 160 161, 60 S.Ct. at page 150, the Court stated, in reference to speaking in public, that 'a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets.' The Court recognized that sound trucks call for particularized consideration when it said in Saia v. People of State of New York, supra, 334 U.S. at page 562, 68 S.Ct. at page 1150, 'Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. * * * Any abuses which loud-speakers create can be controlled by narrowly drawn statutes.' But, the Court's decision today does not follow from this. Our prior decisions do not deal with the content of the speech; they deal only with the conditions surrounding its delivery. These conditions 'tend to present the problems peculiar to each method of expression.' Here the Court uses this magical phrase to cripple a basic principle of the Constitution.
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Paragraph: 10 - N28* N29* 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.
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Paragraph: 26 - N30* By its decision, the Court gives its assent to unlimited censorship of moving pictures through a licensing system, despite the fact that Chicago has chosen this most objectionable course to attain its goals without any apparent attempt to devise other means so as not to intrude on the constitutionally protected liberties of speech and press.
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Paragraph: 28 - But, the Court there found that this system of censorship by a state court, used only after it had already been determined that the publisher had previously violated the standard, had to fall before the First and the Fourteenth Amendments. It would seem that, a fortiori, the present system must also fall.
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Paragraph: 29 - The case of Grosjean v. American Press Co., supra, provides another foreceful illustration. The Court held there that a license tax of two percent on the gross receipts from advertising of newspapers and periodicals having a circulation of over 20,000 a week was a form of prior restraint and therefore invalid. Certainly this would seem much less an infringement on the liberties of speech and press protected by the First and Fourteenth Amendments than the classic system of censorship we now have before us.
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Paragraph: 31 - ]N31* 'It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disordely assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly 'prevent' such eventualities.' Id., 307 U.S. at page 516, 59 S.Ct. at page 964. May anything less be said of Chicago's movie censorship plan?
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Paragraph: 50 - N32* But, surely this is not to suggest that the Government might require that all newspapers be submitted to a censor in order to assist it in preventing such information N33* from reaching print. Yet in this case the Court gives its blessing to the censorship of all motion pictures in order to prevent the exhibition of those it feels to be constitutionally unprotected. N34*
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Paragraph: 53 - One need not disagree with the Court that Chicago has chosen the most effective means of suppressing obscenity. Censorship has been so recognized for centuries. But, this is not to say that the Chicago plan, the old, abhorrent English system of censorship through licensing, is a permissible form of prohibiting unprotected speech.
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Paragraph: 60 - N35* This is the delay occasioned by the censor; this is the injury done to the free communication of ideas. This damage is not inflicted by the ordinary criminal penalties. The threat of these penalties, intelligently applied, will ordinarily be sufficient to deter the exhibition of obscenity. However, if the exhibitor believes that his film is constitutionally protected, he will show the film, and, if prosecuted under criminal statute, will have ready that defense. The perniciousness of a system of censorship is that the exhibitor's belief that his film is constitutionally protected is irrelevant.Once the censor has made his estimation that the film is 'bad' and has refused to issue a permit, there is ordinarily no defense to a prosecution for showing the film without a license.
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Paragraph: 63 - N36* The Court, in no way, explains why moving pictures should be treated differently than any other form of expression, why moving pictures should be denied the protection against censorship N37* 'a form of infringement upon freedom of expression to be especially condemned.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. (Emphasis added.) When pressed during oral argument, counsel for the city could make no meaningful distinction between the censorship of newspapers and motion pictures.
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Paragraph: 65 - The contention may be advanced that the impact of motion pictures is such that a licensing system of prior censorship is permissible. There are several answers to this, the first of which I think is the Constitution itself. Although it is an open question whether the impact of motion pictures is greater or less than that of other media, there is not much doubt that the exposure of television far exceeds that of the motion picture. See S.Rep. No. 1466, 84th Cong., 2d Sess. 5. But, even if the impact of the motion picture is greater than that of some other media, that fact constitutes no basis for the argument that motion pictures should be subject to greater suppression.
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Paragraph: 5 - 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. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, 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. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 715—716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, 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. State of New Hampshire, 1942, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 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, supra, 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.' At page 502 of 343 U.S., at page 781 of 72 S.Ct. Five years later, in Roth v. United States, 1957, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 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.' Id., 354 U.S. at page 514, 77 S.Ct. at page 1324. And, during the same Term, in Kingsley Books, Inc., v. Brown, 1957, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469, after characterizing Near v. State of Minnesota ex rel. Olson, 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 § 22—a (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.' Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power 'to prevent the distribution of obscene matter.' Smith v. People of State of California, 1959, 361 U.S. 147, 155, 80 S.Ct. 215, 220, 4 L.Ed.2d 205.
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Paragraph: 26 - Here, the Court ignores this considered principle and indiscriminately casts the net of control too broadly. See Niemotko v. State of Maryland, supra, 340 U.S. at page 282, 71 S.Ct. at page 333 (concurring opinion). By its decision, the Court gives its assent to unlimited censorship of moving pictures through a licensing system, despite the fact that Chicago has chosen this most objectionable course to attain its goals without any apparent attempt to devise other means so as not to intrude on the constitutionally protected liberties of speech and press.
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Paragraph: 29 - The case of Grosjean v. American Press Co., supra, provides another foreceful illustration. The Court held there that a license tax of two percent on the gross receipts from advertising of newspapers and periodicals having a circulation of over 20,000 a week was a form of prior restraint and therefore invalid. Certainly this would seem much less an infringement on the liberties of speech and press protected by the First and Fourteenth Amendments than the classic system of censorship we now have before us.
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Paragraph: 5 - 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. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, 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. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 715—716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint N25* '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 N26* '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. State of New Hampshire, 1942, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, held that there were N27* '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, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was N28* '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.' At page 502 of 343 U.S., at page 781 of 72 S.Ct. Five years later, in Roth v. United States, 1957, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, we held that N29* 'in light of * * * history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.'
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Paragraph: 6 - 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, Ill.Rev.Stat. (1959), c. 38, § 470, 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. State of Minnesota ex rel. Olson, supra, namely, N30* 'the primary requirements of decency (that) may be enforced against obscene publications.' Moreover, we later held specifically N31* 'that obscenity is not within the area of constitutionally protected speech or press.' Roth v. United States, 1957, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498. 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, supra, that N32* 'capacity for evil * * * may be relevant in determining the permissible scope of community control,' 343 U.S. at page 502, 72 S.Ct. at page 780, and that motion pictures were not N33* 'necessarily subject to the precise rules governing any other particular method of expression.
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