The Interpretations by the Courts of the First and Fourteenth Amendments to the Constitution as they relate to
obscene motion pictures and publications*

By JOHN C. MELANIPHY, Corporation Counsel of the City of Chicago

J. Edgar Hoover, Director of the Federal Bureau of Investigation, in an article appearing in the Chicago Daily News on August 24, 1957, entitled "Let's Wipe Out the Schoolyard Sex Racket," had this to say about pornography:

"I believe pornography is a major cause of sex violence. I believe that if we can eliminate the distribution of such items among impressionable school-age children, we shall greatly reduce our frightening sex crime rate.

"As a law officer, I have no doubt in my mind that the most sensible and most effective place to attack is through those who produce and distribute pornography. Yet it is not easy to stop the peddler. It is appalling that an entire community can work itself into an hysteria of outrage against the sex criminal himself, yet tend to regard the man who helped trigger the criminal as only a contemptible human being, better ignored than punished. * * *

"It seems to me that the peddler who assaults our children's minds is as clearly a sexual offender as the man who molests a child's body."

Mr. Hoover made similar comments in his speech before the recent convention of the American Legion at Atlantic City.

At a convention of the Mid-American Periodical Distributors Association held in Chicago in September, 1957, the matter of peddling "smut" was brought before the convention by one of the largest distributors of magazines and periodicals in Chicago. This distributor stated:

"Thus, it is up to the individual wholesaler to notify the national magazine distributor if a publication fails to meet the standards of his community."

He further stated that the wholesaler may lose money by throwing out the "smut," but that the control over obscenity, or just plain trash in periodicals must lie primarily with the wholesalers.

In February, 1956, the Mayor of Chicago organized a committee for the Elimination of Objectionable Literature for Youth. This committee called in the distributors and advised them of the fact that the Chicago market was flooded with obscene magazines and periodicals and requested their cooperation. We have had some success in this regard. In view of the decisions of the Supreme Court of the United States which I will discuss, we determined that we would adopt a special ordinance making it unlawful for any person to sell, offer for sale, attempt to sell, exhibit, give away, or in any way furnish or attempt to furnish to any person under the age of seventeen years any illustrated comic book, magazine, or other publication, which read as a whole, is of an obscene nature. We felt that the accessibility of this type of publication had a substantial bearing upon juvenile delinquency and that it we could get a proper case before the Supreme Court of the United States where such a youth was involved, that court might hold that such publication is not entitled to the protection of the First and Fourteenth Amendments of the Constitution of the United States. We have had prosecutions under this ordinance with some convictions from which appeals were not taken.

That the problems are nation-wide, rather than local, is further evidenced by the fact that the Committee on Judiciary of the United States Senate of the 83rd and 84th Congresses, held public hearings on the relation of obscene and pornographic materials, moving picture films and television programs as related to the problem of juvenile delinquency, and the House of Representatives of the 82nd Congress also had a select committee on current pornographic materials.

In point of time the Supreme Court of the United States first passed upon the validity of statutes or ordinances relating to censorship of motion pictures, and later, in June 1957 it rendered decisions relating to obscene publications. I will discuss these decisions in that order.

For years the right to censor motion pictures by local authorities was filmly established. The leading case in Illinois was Block v. City of Chicago, 239 111. 251, decided in 1909, in which the ordinance of the City of Chicago prohibited the exhibition of motion pictures unless a permit was issued therefor, commonly called the "Moving Picture Censor Ordinance," was held to be constitutional. The court there said:

"The purpose of the ordinance is to secure decency and morality in the moving picture business, and that purpose falls within the police power. It is designed as a precautionary measure to prevent exhibitions criminal in their nature and forbidden by the laws. * * *. The audiences include those classes whose age, education and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations."

The decision in that case was followed by our courts for almost forty years. Under it and others, upon a suit to test the judgment of the Commissioner of Police in refusing a permit to exhibit a film deemed obscene or immoral, the burden rested upon the exhibitor to show that the film was not obscene or immoral and that the municipal authority acted "unreasonably and arbitrarily." This rule of law has recently been changed in Illinois so that today the burden is upon the municipal authority to prove, in court, that the film is not of such character as those protected by the "Freedom of the Press" provision of the Constitution.

In 1941, the Supreme Court of the United States in Mutual Film Corporation v. Ohio Industrial Commission, 236 U.S. 230, held that:

"The exhibition of moving pictures is a business, pure and sim-iple, originated and conducted for profit like other spectacles, not to be regarded, nor intended to be regarded, as part of the press of the country or organs of public opinion."

The court held that censorship did not violate the First or Fourteenth Amendments but was a proper exercise of state police powers. And so was the law of the land from 1909 to 1951, when the Supreme Court of the United States changed its thinking, and in Burstyn v. Wilson, 343 U.S. 495, held that "motion pictures are a significant medium for the communications of ideas."

The court concluded that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." It thereby refused to adhere to its prior ruling in the Mutual Film case referred to above. The court, however, did say:

"It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places."

The court further said it was not necessary for it to decide whether a State in a properly drawn statute may censor motion pictures to prevent the showing of obscene films.

The same Supreme Court in 1954 reversed the Supreme Court of Ohio in Superior Films, Inc. v. Department of Education, 346 U. S. 587, which had held it was proper to ban a motion picture entitled "M" under the police censor powers because it would lead to a serious increase in immorality and crime. The decision of the Court

* A paper presented to the Municipal Attorneys Section, Illinois Municipal League Conference, November 11, 1957.

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of Appeals in New York in Commercial Pictures Corporation v. Board of Regents, 346 U. S. 588, which had banned a motion picture entitled "La-Ronda" on the ground that it was immoral was likewise set aside by the Supreme Court of the United States. In so reversing, that court cited the Burstyn case as controlling and Justices Douglas and Black specially concurred on the ground that censorship of motion picture films, radio, television, and publications is forbidden by the First Amendment of the Constitution.

In the Ohio case, the film presented a story of criminal perversion. In the New York case, the film presented adultery and fornication in such a seductive manner as to invite imitation by the audience.

In spite of the decision in the Burstyn case, the City of Chicago took an appeal to the Supreme Court of Illinois from a ruling of the Circuit Court of Cook County that our censorship ordinance was unconstitutional. This case is entitled American Civil Liberties Union v. City of Chicago, 3 111, 2d, 334. While the case was pending in the Supreme Court of Illinois, the decisions were rendered by the Supreme Court of the United States in the Superior Films and the Commercial Pictures Corp. without opinion. It later reversed the Supreme Court of Kansas in Holmby v. United Artists Corp., 350 U.S. 870 without opinion.

In a scholarly opinion written by Mr. Chief Justice Schaefer of the Illinois Supreme Court, in which the court reviewed all of the leading cases on the subject including the decisions of the Supreme Court of the United States in the Burstyn, the Superior Films and the Commercial Pictures Corp. cases and held that it did not regard those decisions as invalidating all film censorship. The Court held our ordinance to be constitutional and set the standard for determining whether a film is obscene in the following language:

"We hold, therefore, that a motion picture is obscene within the meaning of the ordinance it, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. In making this determination the film must be tested with reference to its effect upon the normal, average person."

In a very recent case tried in the U. S. District Court in Chicago entitled Times Film Corporation v. City of Chicago, et al., the constitutionality of our ordinance was again attacked because the City of Chicago had refused to issue a permit for the exhibition of a motion picture made in France, entitled, "The Game of Love" on the ground that the picture was obscene. The matter was referred to a Master in Chancery who, over the objections of the City, permitted considerable testimony to be taken on the artistic qualities of the film. It is the city's position, as held by our Supreme Court, that expert testimony is not admissible to determine whether a film is or is not obscene—that the court must determine that fact from viewing the picture. The Master ruled that (1) our ordinance was unconstitutional; (2) the film was not obscene within the formula enunciated by the Illinois Supreme Court and (3) the film should not be exhibited to children under eighteen years as it certainly would excite sexual desires and lead to rape, seduction and other crimes. Upon oral argument on the objections filed by the City of Chicago to the Master's report, the judge of the District Court was invited to view the motion picture. The judge viewed the film with an advisory jury of six men and six women, eleven of whom found the film to be obscene. Judge Perry of that court, in a learned opinion, reversed the Master and ruled (1) that the ordinance is constitutional and (2) that the picture is obscene.

Upon appeal to the United States Court of Appeals, 7th Circuit (244 F. 2d. 432), that court after viewing the film affirmed the judgment entered in the District Court. The Court, in its opinion, said:

"Despite these time and place variations in the consensus of people, there is at any given time and place substantial agreement as to what conduct or things are proscribed by the test as obscene and immoral. A violation of the proscription is generally and promptly detected and protested by ordinary persons, whether, for instance, it be an indecent display upon a public street, an improper remark in the living room of a home, or a vile and filthy exhibition of a person or persons at a public picnic or baseball game. The ordinary person knows what is obscene and immoral. That knowledge is a workable basis for regulation of such matters and it may be utilized by the chosen representatives of the people, in a state or political subdivision thereof, as a basis for legislative action aimed at the suppression of public obscenity and immorality. The public exhibition of moving pictures falls within the ambit of such regulation. The ordinance in question is the result of such action by the City Council of Chicago.

"The First and Fourteenth Amendments of the Federal Constitution do not, and were never intended to, shield public peddlers of obscenity and immorality. The ordinance now under attack is not unconstitutional on the grounds asserted. * * *.

"We do not hesitate to say that the calculated purpose of the producer of this film, and its dominant effect, are substantially to arouse sexual desires. We are of the opinion that the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. We think these determinations are supported by the effect which this film would have upon the normal, average person. There is nothing in the record before us to indicate that the Commissioner of Police or the persons to whom he referred the film for inspection are not normal, average persons. The record indicates the contrary. We agree with the opinions of the judge of the District Court, the Police Commissioner and the persons whom he caused to inspect the film. All of them viewed the picture. They found it obscene and immoral."

It is to be noted that the decisions of the Supreme Court of Illinois and of the Federal Court of Appeals were rendered after the decisions of the United States Supreme Court in the Burstyn, the Superior Films and the Commercial Pictures Corp. cases. A petition for writ of certiorari is pending in the United States Supreme Court in the Times Film case, (No. 372).

Since the decisions mentioned above have been rendered, the Supreme Court of the United States has taken a different view as to obscene material in rendering decisions in Roth v. U. S., IL ed 2d, 1498, decided June 24, 1957, Kingsley Books, Inc. v. Brown, IL ed 2d, 1469. The Roth case involved a conviction in the United States District Court for the Southern District of New York for violating a federal statute which provides that obscene, lewd, lascivious, filthy or indecent material is non-mailable and that whoever knowingly deposits such material for mailing or delivery is criminally punishable.

The Roth case was consolidated with Alberts v. State of California, wherein the defendant was convicted in the Municipal Court of Beverly Hills of violating a California statute which makes criminally punishable every person who wilfully or lewdly writes or otherwise produces obscene or indecent material or who writes or otherwise produces any notices or advertisement of any such material. The convictions had in the lower courts were affirmed by the United States Supreme Court. In an opinion by Justice Brennan, speaking for five members of the court, obscenity was held not to be within the area of constitutionally protected speech or press and, hence, the statutes respectively were held not to violate the free speech

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guaranty of the First and Fourteenth Amendments. The statutes also were upheld as against the claims of unconstitutional vagueness.

In his opinion, Justice Brennan said:

"All ideas having even the slightest redeeming social importance— unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important Interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 US 568, 571, 572, 86 L ed 1031, 1035, 62 S Ct 766:

" * * * There are 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 * * * It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * * We hold that obscenity is not within the area of constitutionally protected speech or press."

The Justice adds: "Obscene material is material which deals with sex in a manner appealing to prurient interest."

The standard of obscenity to be applied is defined by the court in the following language:

"Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." This test is substantially the same as that laid down by the Supreme Court of Illinois in the American Civil Liberties case, supra, which the court cites with approval.

Chief Justice Warren concurred in the result but would limit the decisions to the facts in the cases before the court. He did state, however, "I believe that the State and Federal Governments can constitutionally punish such conduct."

Mr. Justice Harlan concurred in the conviction in the Alberts (California) case, but dissented as to the conviction in the Roth (Federal) case. As to the former, the Justice stated, in part:

"It seems to me clear that it is not irrational, in our present state of knowledge, to consider that pornography can induce to a type of sexual conduct which a State may deem obnoxious to the moral fabric of society."

As to the Roth (Federal) case. Justice Harlan's position was that:

"The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. * * *."

"Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be classed as obscene in another. * * *.

"The prerogative of the States to differ on their ideas of morality will be destroyed, (if the Federal Government* imposes a blanket ban on a book), the ability of States to experiment will be stunted. * * *

"I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as 'hardcore' pornography."

Justice Douglas, with whom Justice Black concurs, dissented principally on the ground that there is no standard for determining obscenity. He said: "I would give the broad sweep of the First Amendment full support."

On the same date, the Supreme Court of the United States rendered a decision in Kingsley Books, Inc. v. Peter Campbell Brown, Corporation Counsel of the City of New York, IL ed 2d, 1469. In that case a New York statute dealing with obscene literature authorizes the chief executive, or legal officer, of a municipality to bring an action for an injunction to prevent the sale or distribution of obscene written and printed matter.

In a proceeding under this statute by the Corporation Counsel of New York City to enjoin the distribution of booklets entitled "Nights of Horror," the trial court found the booklets clearly obscene—were "dirt for dirt's sake," and enjoined their further distribution and ordered their destruction. The decree was affirmed in the New York Court of Appeals (1 NY 2d 177, 134 NE 2d 461).

Justice Frankfurter, speaking for five members of the court, affirmed the judgment. Chief Justice Warren, Justices Douglas, Black and Brennan dissented.

The Roth and Alberts cases involved convictions for keeping or distributing obscene materials. In the Kingsley Books case, the right to prior restraint of obscene matter was involved.

Justice Frankfurter, commenting on the statutory authorization of an injunction pendente lite, said:

"It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene."

At this point, it is interesting to note that when the same court struck down a New York ordinance on possessing obscene literature in People v. Winters, 333 U.S. 507, 92 L ed 840, Justice Frankfurter dissented, calling attention to the fact that the decisions of the majority of the court:

"Strike down an enactment that has been part of the laws of New York for more than sixty years, and New York is but one of twenty states having such legislation. * * * This body of laws represents but one of the many attempts by legislatures to solve what is perhaps the most persistent, intractable, elusive, and demanding of all problems of society—the problems of crime, and, more particularly of its prevention. * * * The action of this court today in invalidating legislation having the support of almost half of the states of the union rests essentially on abstract notions about 'in-definiteness.' * * * Only such abstract notions would reject the judgment of the states that they have outlawed what they had a right to outlaw, in an effort to curb crimes of lust and violence, and that they have not done it so recklessly as to occasion real hazard that other publications will thereby be inhibited, or also be subjected to prosecution."

The Justice then criticized the statement of the majority of the court as follows:

"But to say that these magazines have nothing of any possible value to society is only half the truth. This merely denies them goodness. It disregards their mischief. * * * The essence of the court's decision is that it gives publications which have nothing of any possible value, to society, constitutional protection but denies to the States the power to prevent the grave evils to which, in their rational judgment, such publications give rise."

The observations in Justice Frankfurter's dissenting opinion in the Winters case finds support in these later decisions of the court.

Returning to the case of Kingsley Books, Chief Justice Warren, in his dissent, stated:

"It is the conduct of the individual that should be judged, not the quality of art or literature. To do otherwise is to impose a prior restraint and hence to violate the Constitution."

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Justices Douglas and Black dissented, on the grounds: (1) the provision of the state "for an injunction penente lite gives the State the paralyzing power of a censor"; (2) "the procedure for restraining by equity decree the distribution of all condemned literature does violence to the First Amendment."

Mr. Justice Brennan dissented because he believed that the absence of a right to a jury trial is a fatal detect:

"A Statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedom of speech and press for material which is not obscene."

It should be noted that in the Kingsley Books case, the sole question before the court was the constitutionality of the statute providing for prior restraint, the appellants having taken a direct appeal on that ground. The finding of the trial court that the booklets were obscene was not challenged on the appeal. Therefore, the Supreme Court of the United States could not apply the test and standard of obscenity set forth in the Alberts and Roth cases. This is unfortunate because the "Night of Horrors" booklets prescribed sadism, sodomy, rape, lesbianism and seduction at its worst.

(See 142 NYS 2d, 735.)

Censorship is not popular. That there is a social problem presented is attested by the Federal, State and Municipal laws enacted on the subject and the controversial decisions of the courts. The line dividing the obscene or pornographic from literature, science or art is not straight and unwavering. The thinking of a community is not static. At least we now have a norm or standard to guide the community in its determinations. From my own experience, the matters may well be left to a jury's verdict, a jury made up of the men and women of the community or the court where a jury trial is not requested. Experience shows that distributors of such literature are not anxious to have juries pass upon its quality.

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