delivered the opinion of the court:
Chapter 155 of the Municipal Code of the city of Chicago makes it unlawful to exhibit any motion picture or to distribute any motion picture to any exhibitor in the city without having first secured a permit from the commissioner of police. The commissioner is required to issue the permit, upon application and payment of the prescribed fee, unless he determines that the picture is “immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being,” in which case he is required to refuse a permit. The American Civil Liberties Union and Charles Liebman, assignees of the right to distribute and exhibit in Chicago a motion picture called “The Miracle,” applied to the commissioner for a permit. The commissioner refused to issue it on the ground that the picture was “immoral and obscene.” As provided by the ordinance, an appeal was taken to the mayor, who affirmed the commissioner’s decision.
The distributors thereupon brought suit in the circuit court of Cook County against the city of Chicago, the mayor, and the commissioner of police. The complaint, to which a print of the film was attached as an exhibit, alleged that the ordinance deprived the plaintiffs of the right of free speech guaranteed by article II, section 4 of the Illinois constitution, and by the first and fourteenth amendments to the United States constitution. In addition to a judgment declaring the ordinance unconstitutional, the plaintiffs sought an injunction to restrain the defendants from preventing the exhibition of the film. By their answer the defendants denied that the ordinance was invalid, and asserted that the picture was immoral and obscene. They also filed a demand for jury trial, and challenged the plaintiffs’ right to a declaratory judgment on the ground that there was an adequate remedy at law by way of mandamus. No reply was filed by the plaintiffs. The film was viewed by the court over the defendants’ objection, and a decree was entered enjoining the defendants from preventing the exhibition of the film. The court has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.
The most important issue which this case presents is whether the first and fourteenth amendments to the constitution of the United States, and article II, section 4, of the constitution of Illinois permit the censorship of motion pictures. The ordinance before us has twice been upheld by this court, and the defendants consider the question settled. The plaintiffs, on the other hand, take the position that those decisions are superseded by subsequent decisions of the United States Supreme Court which the plaintiffs regard as rendering unconstitutional, as a “prior restraint” upon freedom of speech, all censorship of motion pictures. Disposition of the case thus requires a review both of our decisions and of those of the Supreme Court of the United States.
In Block v. City of Chicago,
In each case the permit was denied on the ground of immorality, a term to which the court ascribed a broad meaning. In the Block case it was impliedly held that the portrayal of crimes was immoral, since this would “necessarily” produce evil effects upon youthful spectators, and the court stressed the point that the typical audience included “those classes whose age, education and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations.” (
What is most significant about these cases in their present bearing is that neither of them considered or even referred to the constitutional issue of freedom of speech. When the Block case was decided in 1909, it had not yet been determined that the freedom of speech which is secured against Federal infringement by the first amendment to the constitution of the United States is also secured by the due process clause of the fourteenth amendment against infringement by the States. (See Joseph Burstyn, Inc. v. Wilson,
In the first of these cases, Joseph Burstyn, Inc. v. Wilson,
The court did emphasize, however, that freedom of expression is the rule, and that particularly in the case of a “prior restraint” a State has a heavy burden to justify an exception to that rule (
Shortly after the Burstyn decision the court, in Gelling v. Texas,
More recently the Supreme Court has reversed two other State court decisions which upheld censorship. In Superior Films, Inc. v. Department of Education,
Commercial Pictures Corp. v. Board of Regents,
The Supreme Court reversed both the Ohio and the New York decisions in a memorandum opinion citing the Burstyn case. Justices Douglas and Black concurred on the ground that all censorship of films was forbidden by the first amendment. Superior Films, Inc. v. Department of Education,
In view of the language of the opinion of the court in the Burstyn case,^and particularly because the views ex-Films caAg-JW£Ee=appa¥entlv not shared by a majority of the court, we do not regard those decisions as invalidating°airTilm censorship. Their precise scope, however, is not easy to determine. On the one hand, they may be interpreted as holding that the statutes immediately involved were invalid, either because the standards employed fail to reflect an interest which the State might legitimately protect, or because those statutes, although applicable to films of a sort which might constitutionally be subjected to censorship, were so broad, or so vaguely drawn, as also to sanction the suppression of films which may not constitutionally be censored. On the other hand, the Supreme Court may have considered those statutes as purporting in terms to forbid no more than that which a-State may. forbid, and yet have reversed because of its determination that the particular films involved did not possess those qualities which would justify censorship, or because the State had not at any rate made a sufficient showing that such qualities were present. In any event, we do not regard these decisions as automatically compelling us to overrule this court’s prior approval of the Chicago censorship ordinance. We do regard them, however, as requiring a re-examination of that ordinance in terms of the standards and the procedures which are available to the State in the highly sensitive area of prior restraint upon the expression of ideas.
Considering first the standards of the ordinance, censorship in this case rests upon the ground that the film is “immoral and obscene.” , . '
With respect to the term “obscene,” a large body of doctrine has been developed in the course of prosecutions for the sale of obscene literature and for depositing it in the mail, libels under the tariff act to prevent its importation, and, more recently, in Massachusetts, proceedings in the nature of a declaratory judgment to determine whether a book is obscene. (See New York Penal Law, section 1141; Mass. G. L. (Ter. Ed.) c. 272, sections 28-28G; 18 U.S.C. 1461, 1462, 1463, 1464; 19 U.S.C. 1305; 39 U.S.C. 259a.) This court, on the other hand, has seldom had occasion to construe the term. In People v. Friedrich,
The most cursory survey reveals that despite the extensive consideration which the courts have given it, the concept of obscenity remains elusive. See Bantam Books, Inc. v. Melko, 25 N. J. Sup. 292, 96 Atl. 2d 47; Commonwealth v. Gordon, 66 Pa. Dist. & Co. 101; Parmelee v. United States, 113 Fed. 2d 729;
The test as originally laid down in 1868 by Cockburn,' C.J., in Regina v. Hicklin, L. R. 3 Q. B. 360, 371, was “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall.” In applying that formula American courts have repeatedly stated that the mere use of coarse or vulgar language, or even references to sexual misbehavior, do not amount to obscenity so long as no tendency toward sexual stimulation is present. Swearingen United States,
The Hicklin formula contained two elements which imposed stringent requirements upon literature. The first of these was that a book was tested, by its supposed influence, not on the average, normal person, but upon those readers who were most susceptible to corruption by virtue of youth, ignorance, or sensual inclination. (United States v. Bennett,
This combination of tests drew judicial fire as early as 1913 in United States v. Kennerley,
The views thus expressed by Judge Hand we-r-e- ■ subsequently taken tipy~a-nd "Jhe Hicklin test was repudiated in the Federal courts, in'"proceedings under both the postal and tariff laws. The rule now followed there, and generally in the State courts is that a book is to be judged as a whole and in terms of its effect on the average, normal reader. See United States v. Dennett, 39 Fed. 2d 564; United States v. One Obscene Book Entitled “Married Love,” 48 Fed. 2d 821; United States v. One Book Untitled “Contraception,” 51 Fed. 2d 525; United States v. One Book Called “Ulysses,” 5 Fed. Supp. 182, aff’d 72 Fed. 2d 705; United States v. Levine, 83 Fed. 2d 156; Parmelee v. United States, 113 Fed. 2d 729; Walker v. Popenoe, 149 Fed. 2d 511; Cain v. Universal Pictures Co. 47 Fed. Supp. 1013, 1018; Commonmealth v. Isenstadt,
The doctrine that a book must be considered as a whole does not, of course, mean that obscene matter becomes protected simply by being bound in the same cover with innocent matter. It does contemplate, however, that instances of obscene diction or episodes may be so slight or infrequent as not to impart an obscene flavor to the entire book, (Commonwealth v. Isenstadt,
The general course of decisions indicates that the work in question is approached as an aggregate of different effects, and the determination turns on whether the salacious aspects are so objectionable as to outweigh whatever affirmative values the book may possess (see United States v. Dennett, 39 Fed. 2d 564.) In the' words of Judge Learned Hand, a book should not be proscribed unless it is likely “that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific or other merits it may have in that reader’s hands.” (United States v. Levine, 83 Fed 2d 156, 158; (cf. Walker v. Popenoe, 149 Fed. 2d 511, 512.) This view appears to be implicit in the decisions which justify obscenity on the ground of social realism and the like, as well as in the so-called “statute of limitations” enjoyed by established classics.
We hold, therefore, that a motion picture is obscene within the meaning of the ordinance if, 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. Thus defined, the term is no broader and no less definite than as used in the postal laws, under which “prior restraint” has long been exercised through the exclusion of obscene matter from the mails. (18 U.S.C. 1461, 1463; cf. 39 U.S.C. 259a.) We conclude, therefore, that the term “obscene” has achieved a sufficiently precise meaning to describe a class of films which the State may validly suppress; the subject matter hardly admits of greater definiteness. The case before us involves the complete denial of a right to exhibit a film. We need not now decide what other principles, if any, would be applicable if only a part of a film were censored, or if a permit to exhibit to adults only were granted, as the ordinance authorizes. Municipal Code of Chicago, sec. 155-5.
It has recently come to be suggested that even further limitations are required by the constitution, in that legislation directed against obscenity must be confined to preventing only those forms of overt sexual conduct which are socially undesirable, and must be limited in its application, moreover, to those cases in which it can be said that there is a clear and present danger that the publication will induce such acts. (See Roth v. Goldman, 172 Fed. 2d 788, 790 (concurring opinion); Commonwealth v. Gordon, 66 Pa. Dist. & Co. 101.) We agree that the determination that a film or book is obscene must rest on something more than speculation, and that the tendency toward sexual stimulation must be probable and substantial. But we do not agree that the State is limited to the prevention of overt sexual conduct produced by films to the exclusion of consideration of the stimulating tendency which they may have. It may be anomalous to treat obscenity differently from other limitations on free speech, but if so, the difference is one which has long been accepted.
So far as the term “immoral” is concerned, we think that when employed, as here, to describe a basis upon which to impose a prior restraint upon freedom of expression, it must be regarded as little more than a synonym for “obscene.” Such, indeed, appears to have been the sense in which the legislative bodies used the term. The power of the city to enact this ordinance derives from section 23-54 of the Revised Cities and Villáges Act, which provides simply that the city may “license, tax, regulate, or prohibit * * * theatricals and other exhibitions, shows, and amusements; * * * license, tax, and regulate all places for eating or amusement.” (Ill. Rev. Stat. 1953, chap. 24, par. 23-54.) The scope of this power, however, must be considered in connection with other statutory provisions on the subject. Section 224^ of division I of the Criminal Code makes it a misdemeanor to present any “obscene, or indecent drama, play, exhibition, show or entertainment.” (Ill. Rev. Stat. 1953, chap. 38, par. 470.) Unless the unlikely assumption is made that the city has been granted broader power than the State itself has exercised, the term “immoral” in the ordinance must be construed as referring to that which is immoral because it is obscene. Furthermore, even if we assume that the city council had the power to do otherwise, it seems apparent that it intended to subject to suppression under the ordinance only those films whose exhibition would violate the Criminal Code. Except for the term “immoral,” every proscriptive term in the ordinance is drawn from a corresponding section of the Criminal Code. Sections 224a and 224b are followed verbatim. (Ill. Rev. Stat. 1953, chap. 38, pars. 471, 472.) Section 224^, it is true, uses the terms “obscene” and “indecent,” rather than “immoral,” but the latter term, however, is treated in an analogous section of the Criminal Code as being equivalent to “obscene,” for section 223 of division I forbids the sale of “any obscene and indecent book * * * or article of indecent or immoral use” and the giving of information as to where “said indecent and obscene articles and things” may be obtained. Ill. Rev. Stat. 1953, chap. 38, par. 468.
The meaning which we assign the term^is narrower than that given it in Block v. City of Chicago,
The conclusion that a motion picture which is in fact obscene may be censored does not end our inquiry, however, for the ordinance, it is said, leaves the question of obscenity to the discretion of the censors, and makes their determination conclusive in the absence of a showing that it is wholly without reasonable basis. If, as the Burstyn case holds, freedom of expression is the rule and limitations upon it the exception, this minimal scope of judicial review, particularly in view of the difficulties inherent in applying the standard of obscenity, does not offer the protection which the constitution requires. (See Commercial Pictures Corp. v. Board of Regents,
The conclusion which we reach, however, is not that the ordinance should be invalidated because the scope of judicial review is insufficient, but rather that review in such cases should not be so restricted. The decisions so limiting it, in large part, antedate the emergence of the motion picture as a constitutionally protected medium. It is no longer possible to say that the exhibition of a film is a mere “privilege” which the State may withdraw, or permit
on such terms as it chooses. Nor again is this an area where other relevant considerations of administrative law suggest that review be narrowly confined. The proceeding by which a permit is denied is not one in which conflicting evidence is heard and resolved in the form of specific findings of fact; the issue to be determined does not involve technical questions whose decision might ’ appropriately be committed to a body of experts; nor is this an area where administrative officials have been entrusted with broad quasi-legislative powers to elaborate substantive policy within the framework of a statute. (See Davis, Administrative Law, p. 927; Note, 65 Harv. L. Rev. 1217.) We think, therefore, that upon review of the censors’ action, the plaintiff does not carry a burden of proving that that action was arbitrary and unreasonable, but rather that it must affirmatively be made to appear that the film fairly falls within the proscriptive terms of the ordinance.
We conclude, then, that the city has the power to require the submission of films for censorship and to deny a permit to those which are obscene. It follows that the pldinfiffsliaveno right to exhibiFthe film unless the permit was' wrongfully refused, in which event they may exhibit it~upon payment of the required fee. In the view which it took of the case, the trial court had no occasion to determine whether the motion picture was obscene, and the case must therefore be remanded for such a determination.
This disposition of the case makes it necessary to consider the defendants’ contention that the issue as to whether or not “The Miracle” is obscene must be submitted to a jury. The proposition is based on the premises that this issue involves only the applicability of the ordinance rather than its validity, and that it may therefore be raised only in an action of mandamus brought to compel the issuance of a license. The proposition also presupposes that a trial by jury may still be required in mandamus actions, despite the language of the present statute (Ill. Rev. Stat. 1953, chap. 87,) and that the question is an appropriate one for determination by a jury, even though the purpose of the proceeding is to review administrative action. We need not consider whether these latter assumptions are correct, since in the case before us the question of the film’s obscenity arises in the course of a suit in equity based upon a constitutional question, and therefore need not be passed upon by a jury.
It is clear that the plaintiffs here could properly proceed by injunction. It is true that mandamus is the appropriate form of action where the plaintiff raises no constitutional question and only alleges that the refusal of a license was not authorized by the statute or ordinance in question. (Illinois Board of Dental Examiners v. People ex rel. Cooper,
Whether a complaint alleging only that a motion picture is not obscene would state a ground for equitable relief we need not decide. In the present case the plaintiffs did not so limit their complaint, for they asserted that the ordinance was invalid, and claimed the right to exhibit their film without obtaining a permit. We held, in United Artists Corp. v. Thompson,
Since a suit for an injunction was proper, there can be no objection to the addition to the complaint of a request that the ordinance be expressly declared invalid. The plaintiffs might indeed have asked for a declaratory judgment alone. (Pioneer Trust & Savings Bank v. Village of Oak Park,
The decree of the circuit court is therefore reversed and the cause is remanded for further proceedings in conformity with the views expressed in this opinion.
Reversed and remanded, with directions. -