City of Chicago v. Fox Film Corp.
251 F. 883
7th Cir.
1918
Check Treatment
BAKER, Circuit Judge.

This appeal from an order refusing to dissolve a pendente lite injunction involves the ‍​​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​‌​‌‌​​​​​‌‍construction and application of the following provisions of the ordinances of Chicago:

“See. 1627. If a picture or scries of pictures for the showing or еxhibition ‍​​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​‌​‌‌​​​​​‌‍of which an application for a permit is made, is immoral or obscene, or por*884trays ány riotous, disorderly or other unlawful scene, or has a tendency to disturb the public peace, it shall be the duty ‍​​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​‌​‌‌​​​​​‌‍of the general superintendent of police to refuse such permit; óthterwise it shall be his -duty to grant such permit.”
Section 1 of amendatory ordinance of July 2, 1914: “That in all cases where a permit for the exhibition of a рicture or series of pictures has been refused under the provisions of sectiоn 1627 of the Chicago Code of 1911, as amended, because the same tends towards creating a harmful impression on the minds of children where such tendency as to the minds of adults would ‍​​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​‌​‌‌​​​​​‌‍not exist if exhibited to persons of mature age, the general superintendent оf police may grant a special permit limiting the exhibition of such picture or series of pictures to persons over the age of twenty-one years: Provided, suсh picture or pictures are not ofl such character as to tend to crеate contempt or hatred for any class of law-abiding citizens.”

Appellants refused to grant a permit under section 1627 for the exhibition of appellee’s moving ‍​​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​‌​‌‌​​​​​‌‍рicture, “The Spy,” but offered a permit “for adults only” under amendatory section 1.

From thе pleadings and affidavits, the following may be accepted as the situation, pеnding final hearing: The photoplay depicts a young American’s efforts to obtain in Gеrmany the list of German spies in America, his capture, torture and death at the hands of a firing squad. There%is nothing obscene or immoral; no portrayal of any riotous, disordеrly, or other unlawful (noscitur a sociis) scene; nothing tending to disturb the public peacе; but the action of the play, where great drops of sweat stand out bn the facе and chest of the hero as he endures torture and faces death, is too harrowing, in the honest judgment of the city’s administrators, for the sensibilities of minors; and for that reason, and that alone, the permit under section 1627 was refused.

[1, 2] A pendente lite injunctional order will not be reversed unless there was an abuse of discretion; and this can only appear from an obvious misunderstanding of the facts or a palpable misapрlication of well-settled rules of law on the part of the trial judge. The only misapprehension we find in the case is that of the city’s administrator with, respect to the discrеtion committed to him by the ordinances. Section 1627 sets up a standard, but allows ho discrеtion. If a photo-play conforms to that standard, “it shall be his duty to grant such permit.” If it doеs not, he must refuse the permit. In deciding the question of fact the trier must of course take the viewpoint of old and young, wise and foolish, learned and ignorant; but a picture еither is or is not obscene, by the one standard, including all the public. Amendatory sectiоn 1 brings in the matter of discretion. If a permit under section 1627 is refused, the administrator nevertheless “may grant a special permit,” limiting the exhibition to adults. The discretion goes only tо permitting a nonconforming picture to be exhibited to adults on the administrator’s belief that such exhibition would not undermine the settled moral and peaceful charaсter of adults. The “harmful impression on the minds of children” must be an impression caused by the оbscenity or other forbidden characteristic of the picture —not an impression which the administrator on nonlegislatively defined grounds may deem harmful to them. Since Euripides’ time it has been mooted, in the dramatic and other arts, how far the depiction of terror and anguish may properly be employed for the purification *885of the passions of the observer. If the glycerine tears and beads of sweat of the moving picture art are too horrifying for children, it was not for the administrator of these ordinаnces to say so; it must first be declared by the lawmaking body — if constitutional restrictions permit.

The order is affirmed.