*1 DALLAS. CIRCUIT, INC. v. CITY OF INTERSTATE April Argued January 22, 1968.* 15-16, 1968. Decided No. 56. *Together Corp. United Artists Dallas, No. with appeal from the same court. *2 Hartt, Jr., argued Orover appellant the cause for Tobolowsky. him the Edwin No. 56. With briefs was argued Louis Nizer for 64. appellant cause No. Carrington With him on the briefs were Paul and Dan McElroy. Bickley argued appellee
N. Alex the cause for both cases. With him on the Ted briefs was P. MacMaster. curiae, urging
Briefs of amici reversal in 64, No. were by Irwin Karp League filed of America, Authors Fraenkel, Ennis, Osmond K. Inc., and Edward J. Melvin L. and Alan H. Levine for the American Wulf Civil et Union al. Liberties opinion delivered the
Mr. Justice Marshall Court. an exhibitor and the
Appellants are distributor picture Maria,” which, pursuant motion named “Viva Board city Motion Picture Classification ordinance, the appellee City of Dallas “not suit- classified as county upheld A court young persons.” able for exhibition of the enjoined Board’s determination and acceptance by appellants require- film without imposed by ments the restricted classification. Texas of Civil we noted Appeals affirmed,1 Court probable the First jurisdiction, TJ. S. consider by appellants Fourteenth Amendment issues raised *3 respect appellee’s with classification ordinance. adopted may That be ordinance, summarized as It a Motion follows.2 establishes Picture Classifica- composed appointed tion of nine all of Board, members, whom pay. without The Board classifies films serve as young persons” “suitable for for young as “not suitable persons,” young persons being defined as children who birthday. have not reached their 16th An exhibitor must specially licensed to show “not suitable” films. The requires any ordinance initial exhibitor, before showing of a to file with film, proposed the Board together classification of the film with a summary of its (1966). 1 402 Supreme S. W. 2d 770 Tbe Texas Court denied discretionary appeal review and therefore tbe is from tbe Appeals. of tbe Court of (2). Civil 28 U. S. C. 1257 § Appendix The opinion. ordinance is set forth in an to this Tbe parties disagree meaning provisions as to the of certain of its authoritatively interpreted by have not been courts of State. the. The decision, differences are not to our however, material and summary of the ordinance in the text above should not be taken acceptance by parties’ as us conflicting .of the interpretations, expressing any validity nor provisions view on the of the ordi challenged nance not here.
plot and similar information. proposed classifica- approved affirmatively tion is if agrees the Board with it, upon days fifing. takes no action it within five of its
If a majority of the Board dissatisfied with proposed classification, required pro- the exhibitor is ject the film before at least five members of the Board at practicable the earliest showing, time. At the the exhib- itor also present testimony support or other for his proposed days classification. Within two the Board must issue its classification order. Should exhibitor dis- days3 he must file within agree, two a notice of non- acceptance. The go Board is then required court days within temporary three to seek a injunction, and a hearing is required to be set on that application within days five if thereafter; agrees exhibitor to waive notice requests hearing perma- on the merits of a nent injunction, required appli- the Board to waive its cation for a temporary injunction the ex- join hibitor’s If request. an injunction does issue within not days of the exhibitor’s notice of nonacceptance, Board’s classification order is suspended.4 The ordinance does not define scope judicial review of the Board’s determination, but the Appeals Court Civil held that de novo review the trial court required.5 was If an injunction issues appellate exhibitor seeks review, *4 if an injunction or is refused and the Board appeals, the two-day period apparently part attempt is of an to assure prompt provides final determination. “any The ordinance also subsequent may initial or exhibitor” film seek reclassification of a previously classified. 4 Appellants despite that, seemingly assert clear words of the suspension provision, practice exhibitors in have not been free to show films without a not suitable challenge notification while a court pending, though injunction is even within has not issued 10-day period. supra. 2, See n. 770, 402 S. 2dW. 774-775. times, and statutory notices all must waive
Board case on exhibitor, to advance a of the join request e., can to everything it docket, i. do court’s appellate speedy a determination. assure by misdemeanor a primarily enforced is The ordinance up $200 a fine of to subject to an exhibitor penalty: “not suitable film that is classified a if he exhibits clearly stating without advertisements young persons” clearly being without the classification its classification or a a program suitable on the same exhibits posted, age youth a under knowingly admits film, suitable not ac- spouse or guardian film without his 16 to view the willfully misleading any or makes false companying him,6 ex- classification, film for or submitting a statement license having film a valid a not suitable without hibits therefor. youth a who obtains applicable penalty
The same by falsely giving age film his a not suitable admission to gives who sells or years over, any person as 16 or and to a youth film, a 16 a not suitable under ticket youth makes false statements to enable such gain admission.7 against exhibitor, enforcement, means of
Other ordinance, violations of the provided. Repeated are diligence “to use reasonable to deter- persistent failure seeking mine whether admittance to the exhibition those young are persons’ of a classified 'not suitable for age be the for revoca- sixteen,” below basis 6Appellee says youths years age accompanied under (parent) throughout showing picture guardian spouse, may Appellants not suitable films. read the ordi attend solely making accompaniment nance as the existence of such prosecution 2, matter of defense should a criminal ensue. See n. supra. supra. appears parent purchases who a ticket See n. It that a gives subject to a not suitable film and it to his child is to the *5 per- tion of a license to show not suitable films.8 Such by film an failure, sistent or exhibition of not suitable ordinance, with three under exhibitor convictions alia, “public nuisances,” inter are which defined relief. injunctive Board seek to restrain a suit for are governing The substantive standards classification as follows:
“ 'Not for young persons’ suitable means: “(1) Describing portraying brutality, or criminal depravity in violence or such manner as to be, judgment likely to incite or en- Board, courage crime or delinquency part young on the persons; or
“(2) Describing or portraying nudity beyond the customary limits of candor in community, promiscuity sexual or extra-marital or abnormal sexual relations in such a manner as to in the be, judgment likely incite or Board, encourage delinquency or promiscuity sexual on the part of young persons or appeal prurient to their interest.
“A film shall be 'likely considered to incite or encourage’ crime delinquency promiscuity sexual on the part young persons, in the if, of the Board, there is a probability substantial it will create the impression young persons on such conduct is profitable, desirable, acceptable, respectable, praiseworthy commonly accepted. penalty misdemeanor sure, appellee the ordinance. To be argument indicated at oral that criminal sanctions have not been sought against anyone under the ordinance. 8 In litigation, provision related special for revocation of the license was held unconstitutional Michigan, as violative of Butler v. (1957), Judge U. S. 380 Supp. District Hughes, 19, 249 F. (D. Tex., 1965), C. N. ruling D. challenged and that was not appeal. Circuit, See Interstate Dallas, Inc. 366 F. 2d 593, (C. 1966). A. n. 5th Cir. *6 ‘prurient appealing
A film shall be considered as of the young if persons, interest’ of young its calculated or dominant effect Board, In substantially to arouse sexual desire. persons is young film determining whether a is ‘not suitable for whole, consider the film as a persons,’ the Board shall shall determine portions, rather than isolated and artistic or outweigh whether its harmful effects young values such film have for educational persons.”
Appellants attack those standards as unconstitution ally-vague. agree. pictures are, We Motion of course, protected Amendment, Joseph Burstyn, the First Inc. Wilson, (1952), 343 S. 496 and we v. U. thus start with premise “[precision regulation must be the Button, touchstone,” NAACP 371 438 v. U. S. (1963). it And while is true that this Court refused against generalized strike down, broad and attack, prior restraint requirement pictures that motion be sub mitted to censors advance of Film exhibition, Times Corp. Chicago, v. 43 365 (1961), U. S. there has retreat in rigorous been no this area from upon insistence procedural safeguards judicial superintendence and of the censor’s action. See Freedman Maryland, v. S.U. 51 (1965).9 York,
In Winters
New
v.
The vice of particularly is pronounced where expression sought is to be subjected licensing. may to It unlikely be Dallas respect that what does in to the licens- ing of pictures motion significant would have a effect
10There are numerous state
See,
g.
cases to the same effect.
e.
Police
Siegel
Commissioner
Enterprises,
Inc.,
v.
110,
223 Md.
162 A.
727,
denied,
2d
(1960) (“violent
cert.
Of as the in Joseph Burstyn, Court said Inc. v. Wilson, 343 S.,U. at 502, does not follow that the “[i]t Constitution requires absolute freedom to every exhibit picture every motion kind all places.” at times and all What does follow the at the least, as cases above illus trate, is the restrictions imposed so vague cannot be as to “the set censor . . . upon adrift sea ...,” boundless id., at 504. In short, Justice said, “legisla Frankfurter tion must not be so vague, language the loose, so ás to leave to those who have apply it too wide discre tion ,” Kingsley . . Int'l Regents, . Corp. Pictures v. 360 at 694 S., (concurring U. in result), one reason being
685 instance, licensing in the first rested, that “where judicial review the available in an administrative agency, Joseph [by vagueness],” inoperative in effect rendered Wilson, Burstyn, (concurring opin- at 532 supra, v. Inc. vague not the extent standards do ion). Thus, to sufficiently problem is cured guide censor, not by Vague novo review. merely affording judicial de encourage standards, interpretation, unless narrowed be administra- administration whether censor erratic yard- judicial; impressions “individual become the tive regulation in in accordance with and result action, stick regula- censor rather than beliefs of individual Kingsley Regents, Corp. Int’l Pictures v. law,” tion result).11 concurring supra, (Clark, J., 701 in illus- vagueness strikingly The inherent in are dangers members of the Board viewed trated these cases. Five Eight classify it as “Viva Maria.” members voted young not persons,” “not suitable for the ninth member gave Board for its voting. The no reasons determina- alleged in petition injunc- its for Appellee tion.12 11 Amsterdam, Void-for-Vagueness Note, also The Doctrine See (1960); Supreme 67, Klein, Film Court, 109 U. L. Rev. 90 Pa. Censorship: Experience, American British Vill. L. Rev. (1967). 419, 428 require give not for its The ordinance does the Board to reasons App. 278, Compare Chicago, Ill. 2d ACLU action. (1957): 56, N. E. 2d refusing permit censoring authority, to issue “[T]he showing obliged specify film, for so should reasons reviewing doing court, court, would .... The trial as well as the itself, record, have a in addition to the on which to decide then approved. procedure, should be . . . whether ban Without only pass films, become, upon the courts not the final tribunal only responsibilities censoring but the tribunal to assume the *9 authority.” Corp. Chicago,
Accord, Zenith Film 291 Int’l v. 2d 785 F. (C. 1961). Note, 326, 7th 71 A. Cir. See also Harv. L. Rev. (1957).
tion that was warranted because the classification film in a manner as portrayed promiscuity “sexual in likely to be of the Board to incite or encourage delinquency promiscuity part sexual young persons appeal prurient or to to their interests.” clergyman Two Board testified members, lawyer, and at the in hearing. Each adverted to several scenes film which, portrayed their rela- opinion, male-female tionships way contrary “acceptable approved and behavior.” Each acknowledged, reference to scenes in which clergymen were involved in most violence, which “sacrilege” was that farcical, might have entered into the Board’s determination. And both conceded that portrayal the asserted promiscuity” of “sexual was im- plicit e., rather than explicit, product i. it was a imagination and by, inference of, viewer.
So far “judicial superintendence”13 de novo concerned, review are the trial judge, viewing after hearing argument, merely: stated I realize “Oh, you gentlemen might right. There are two or three features in picture this that look to me would be unsuit able to young people. I enjoin So ... the exhibitor . . . from exhibiting it.”14 Nor did the Court of Civil Ap peals provide enlightenment much narrowing or a defini tion of the ordinance. argued United Artists obscenity standards similar to those set forth in Roth v. United States, 354 S.U. 476 (1957), and other decisions ought this Court to be controlling.15 majority Books, Sullivan, Inc. Bantam (1963). v. 372 U. S. See Maryland, supra. Freedman response In request to a findings, judge that he make the trial stated: “I many decline. I have so irons for a fellow. I have little do, taken on trying more than I can big here, decide a case got I have others at home County and here and in Hill I where helping out, have been and I do not have time to I do it. decline.” 15Appellants that, also contend vagueness, here in addition to its the ordinance is invalid films because it authorizes the restraint of *10 that (1) alternatively, Appeals held, the Court of Civil legislation because the applicable were not such cases offending of the suppression in in them resulted involved if that ob classification; (2) than its rather expression Maria” then “Viva applicable were scenity standards (a patently untenable conclu as to was obscene adults protec to no constitutional therefore entitled sion) and were modified as obscenity if standards (3) that tion; and a conclusion them, as was obscene children, narrowing interpreta given not in terms which was as 402 S. of the ordinance. W. any specific provision tion last alternative hold regard In to the 775-776. 770, 2d court effect ruled that must conclude that the we ing, acceptable,” as promiscuity of sexual “portrayal ... The court id., obscene as to children.16 at itself 775, “suffi ordinance were that the standards also held Ibid. ciently definite.” film and directed merely with the are left
Thus, we prom- “sexual ordinance. The term words interpreted and was not not there defined17 iscuity” is depending upon extend, could in the state courts. It sexual from the obvious to judgment, moral one’s relationship. The determina- a marital contacts outside arguing limits constitutionally impermissible grounds, that on obscenity, ob- expression or at least regulation of are those disposition on light In of our scenity judged for children. as grounds, we not reach that issue. vagueness do of the concurring justice court, with whom the author of that A obscenity rejected specifically opinion agreed, the view majority determining the limits of the ordi relevant at all standards were adopted. opinion standards nothing clarifies the But in that nance. 2d, at 777-779. 402 S. W. in March adopted the ordinance Appellee amendment promiscuity” here. It defines “sexual is not involved which beyond customary limits intimacies sexual as “indiscriminate herein shall community, said term as defined in the candor intercourse term is limited to sexual include, but not be defined.” “describing portraying”
tive manner of the- of the (see subjects supra, 681), covered the ordinance including promiscuity,” “sexual defined as “such likely be, Board, manner as to in the *11 encourage to or delinquency promiscuity incite or sexual “ young ‘likely on A film is part persons.” of so to incite or encourage’ delinquency prom crime or sexual iscuity part young on the of in persons, if, Board, there a substantial probability is it will impression young persons create the that such desirable, conduct is profitable, acceptable, respectable, praiseworthy commonly accepted.” might or It be ex insist, appellants, cessive literalism to as do that because those last six adjectives are in the disjunctive, stated they represent separate and alternative subtle determi make, any nations the Board is to of which results a not Nonetheless, may suitable classification. “[w]hat glorification being be to one viewer the an of idea as of ‘desirable, acceptable proper’ to the notions entirely only another be of such a teaching. devoid The understanding limits on is his the censor’s discretion what ‘desirable, acceptable is included within the term proper.’ nothing roving This less than a com is Kingsley Corp. Regents, mission . . . .” Int’l Pictures v. result).18 at 701 S., (Clark, J., concurring U. Vagueness and the evils we have earlier de- attendant scribed, supra, 683-685, see at are not rendered less ob- jectionable regulation expression because the is one suppression. classification rather than direct Bantam Cf. “likely portrayal might An to to alternative incite” because the impression profitable, desirable,” “create the .. . conduct is [the] etc., presen is set forth the ordinance. That is if the manner of “likely appeal [young persons’] prurient tation is to their ... alternative, however, upon by interest.” That was not relied testified, appellate nor Board members who court. is Books, Sullivan, Nor (1963).19 Inc. S. 58 U. argument particular regulation it an answer that a adopted expression say it vague that was is salutary purpose protecting permissible children. aor vagueness directly proportional not extent to, regulate control extent of the of, power function Judge Chief Fuld respect with As expression to children. has said: legislation
“It
.
aimed
.
. essential
allegedly
expres-
children from
protecting
harmful
legislation
respect
enacted with
sion—no less than
and that
standards
clearly
to adults —be
drawn
reasonably
who
adopted
precise
so that
those
governed
law
that administer
are
and those
meaning
application.”
it will understand its
Kahan,
E.
311, 313,
15 N. Y.
206 N.
People v.
2d
*12
(1965) (concurring opinion).20
2d 333, 335
to
guidance
The
lack of
to those who seek
vices—the
to
who seek to administer
their conduct and
those
adjust
19
reviewing
Books,
charged
In
with
Bantam
the Commission there
youth” (372
“manifestly tending
corruption
the
to
of
material
the
functions,
59)
regulatory
suppressing
S.,
at
had no direct
U.
although
the same
its informal sanctions were found to achieve
“system
censorship” {id,.,
held that
of informal
result.
Court
71)
important
factor
violate
Fourteenth
One
at
to
Amendment.
“vague and uninformative”
in that decision
the Commission’s
was
nothing
practice
to
mandate,
had “done
which the Commission
Movies,
Carmen,
precise.”
more
Ibid.
I.
make . . .
See also
passim
Klein,
Censorship:
Censorship,
Law,
(1966);
Film
and the
419, 455
Experience, 12
L.
The American and British
Vill.
Rev.
Note,
(1957).
(1967);
326,
71
L. Rev.
342
Harv.
20
Angeles,
360,
also,
g.,
County
Los
52
See
e. Katzev v.
Cal. 2d
age 18);
(1959)
(magazine
minors under
690 law, curtailing possible practical as well as the of judicial effectiveness review—are the same. it province legislation.
It not our to draft Suffice is recognized “mo- say that we have believe some possess greater evil, tion a pictures capacity par- ticularly among youth other than community, Wilson, v. Joseph Burstyn, Inc. expression,” modes generally at and supra, 502, we have indicated more strong abiding youth, its because of interest regulate of, State to juveniles dissemination them, material to, objectionable their access as clearly but which a not regulate State could adults. 629,21 Ginsberg York, ante, p. v. New Here we conclude only narrowly drawn, that “the absence of reasonable definite standards for the officials to follow,” Niemotko Maryland, S. fatal.22 (1951), U. age regard viewing pictures, On classification with motion generally Carmen, Movies, see Censorship, I. and the Law 247- (1966); Note, (1959). L. Yale J. 141 22Appellants city also assert that the ordinance violates teach ings Maryland, supra, of Freedman v. it not because does secure prompt appellate “prompt state review. The assurance of a final judicial (380 S., 59) here, think, decision” U. made we guaranty speedy (in of a determination the trial court case this days classification). Corp. nine after the Film Board's See Teitel Cusack, ante, v p. require 139. Nor is Freedman violated nonacceptance ment that the exhibitor file notice of the Board’s sure, emphasized “only classification. To be it is in Freedman that *13 procedure a requiring judicial impose a determination to suffices (380 a S., 58), valid final restraint” U. at the and if exhib here itor chooses nonacceptance, not file the of notice the Board’s judicial approval. determination is final without we not But are procedure constrained to view as in invalid the absence of a showing any significantly greater it has effect than would the exhibitor’s decision not to contest in court a the Board’s suit for temporary injunction. provides The ordinance that the has Board going temporary injunction, the burden to court to seek once Appeals of Civil Court the Texas pro- for further are remanded cases reversed opinion. with ceedings not inconsistent this ordered. is so
It OF THE COURT. TO APPENDIX OPINION of Civil 1960 Revised Code Chapter 46A of the amended, Dallas, Ordinances of the Criminal provides: Terms: 46A-1.
Section Definition film or series any picture motion “Film” means (a) does not subject, or short but length full whether films, pic- events or actual current portraying include newsreels day. torial news any a film motion project “Exhibit” means
(b) City of public place within picture theatre or other for which tickets are sold admission. Dallas to corporation firm or person, means (c) “Exhibitor” which exhibits film. not any person means who has “Young person”
(d) birthday. his attained sixteenth Dallas Picture Clas- “Board” means the Motion
(e) this by Section 46A-2 of sification Board established ordinance. means:
(f) young persons” for “Not suitable Describing or criminal vio- (1) portraying brutality, a manner as depravity be, judg- lence or nonacceptance, exhibitor his there it has has indicated sustaining its burden of classification.
Finally, appellant Artists contends uncon United the ordinance stitutionally infringes upon rights by providing participa its not distributor, might tion wish to an exhibitor who contest where permitted challenge would not. Of course the distributor must be Books, Sullivan, 58, 64, Inc. classification, cf. Bantam 372 U. S. supra), (1963), appellee may (see n. n. but the us he assures permitted to and United was intervene court. trial Artists *14 likely or Board, encourage ment of the to incite crime or part young on of or persons; delinquency Describing nudity beyond or (2) portraying customary of limits candor in the or sexual community, or promiscuity extra-marital or sexual abnormal relations be, judgment such manner to in the of the Board, likely or encourage to incite or sexual delinquency prom- iscuity part young on the persons appeal to to their prurient interest.
A film shall be “likely encourage” considered to incite or crime delinquency promiscuity part sexual young persons, if, Board, there is a probability substantial it will im- create the pression persons on young that such profitable, conduct is desirable, acceptable, respectable, praiseworthy or com- monly accepted. A film appealing shall considered as “prurient young interest” of if in persons, the judg- ment Board, its calculated or dominant effect on young persons substantially arouse sexual desire. In determining whether film is “not suitable for young persons,” the Board shall consider the films as a whole, rather than isolated portions, and shall determine whether its harmful outweigh effects artistic or educational values have young persons.
(g) “Classify” means determine whether a film is:
(1) young Suitable for persons, or; (2) young Not suitable for persons.
(h) “Advertisement” means any promo- commercial tional material initiated designed exhibitor to bring public a film to attention or to increase the sale tickets exhibitions same, whether newspaper, billboard, motion picture, television, radio, or other media within originating within the City of Dallas.
(i) “Initial exhibition” means the first exhibition of any film within the City Dallas. *15 exhibition any means “Subsequent exhibition”
(j) by same whether the exhibition, the initial subsequent to or a different exhibitor.. for Secretary City deliver to the means to
(k) “File” City of Dallas. public a record of the safekeeping as any written deter- order” means “Classification (l) classifying film, a of the Board by majority a mination of change for refusing application granting classification. in sub- applied and “Board” as
(m) The term used of City the (a) 46A-7 shall include section of Section enforce this ordinance and attempting Dallas when Attorney City represent- of Dallas City the of when the ing City of the Board the Dallas. Establishment Board:
Section 46A-2. of known hereby a to be as the There created Board which shall Dallas Motion Picture Classification Board Eight a composed be of Chairman and Members be City City of by Mayor and Council of the appointed the as of whose terms be the same members the Dallas, shall pay shall serve City Council. Such members without they as deem adopt regulations shall rules and and such governing proceeding deliberations action, best their and meeting. regula- time of These rules and place and and City of approval tions shall be Council. subject vacancy upon resigna- If a the Board occurs death, body governing tion or otherwise, a appoint vacancy Dallas shall member fill unexpired term. The Chairman all Board and Members shall be law-abiding City of good, citizens of the moral, Dallas, reasonably practicable shall chosen so far as be they represent such a manner that will cross section community. practicable, ap- Insofar the members pointed persons to the Board shall educated ex-
perienced following one or more art, fields: drama, literature, philosophy, sociology, psychology, his- tory, education, music, science or other related fields. City Secretary shall as Secretary act of the Board. Section 46A-3. Procedure: Classification
(a) Before initial exhibition, the exhibitor shall file proposed exhibited, classification to be stating the title of the film and the the producer, name of giving summary plot and such other infor- mation as the together Board require, rule with *16 proposed the classification by the exhibitor. The Board shall examine proposed such classification, ap- and if it proves same, “approved” shall mark it and it its file own classification order. If the act, fails to that Board is, either file a hearing classification order or hold a within (5) days five after proposed such classification is filed, proposed the classification shall be considered approved.
(b) upon If examination of .the proposed classification a majority the Board is not satisfied it proper, the Chairman shall direct the to project exhibitor the film any (5) before five more Board, members the suitably place at a equipped specified and at a time, which shall be the earliest practicable time with due regard availability to the of the film. exhibitor, designated or his may representative, at such time make such statement to the Board in support proposed of his present testimony may classification and such as he desire. (2) days, Within two the Board make shall and file its classification of film in question. the
(c) Any initial or subsequent may exhibitor file an application for a change in the any classification of film previously No classified. shall be exhibitor allowed to (1) application file more than one for change of classi- fication of the same film. application Such shall contain grounds sworn upon appli- statement the which the Upon filing application, cation such the is based. City it the Secretary bring immediately shall attention Board, upon application the Chairman who for hearing shall set a and place exhibitor time and all notify applicants parties, shall and interested pre- all including may exhibiting who be exhibitors film. paring to exhibit The Board shall view of all film and at hearing, hear the statements testimony parties, any proper and interested make offered, (2) days be and two thereafter shall within changing and its such classifi- approving file order film as a changed If cation. the classification of the classification “not suitable hearing result of such showing persons,” the exhibitors young their days in to alter (7) shall which have seven advertising policy comply with such audience classification. filing any Board of classification
(d) Upon by the immediately issue Secretary shall order, involved mail a of classification to exhibitor notice such notice. request exhibitor who shall other binding any subsequent A (e) classification shall *17 change he of classi- and until obtains a unless exhibitor in above provided. manner fication 46A-4. Section Offenses: or his any for be unlawful exhibitor
(a) It shall employee: not been classi- film has
(1) any To which exhibit in ordinance. provided fied as this for film “not suitable any classified To exhibit (2) film advertisement such any if current young persons” the classification clearly fails to state exhibitor such film. such for film “not suitable any classified (3) To exhibit posted keeping classification without such young persons” prominently front the theatre in which film such being exhibited.
(4) Knowingly or give any young to sell person any ticket film classified young “not suitable for persons.”
(5) Knowingly permit any young person to view the exhibition of film any classified “not suitable for young persons.”
(6) any To exhibit film classified “not for suitable persons” young any or scene or scenes from film, or from an film, unclassified moving whether or still, the same and on theatre program same with a film classified young “suitable for persons”; provided that any advertising preview containing or trailer or scene scenes from an unclassified or a film “not classified young suitable for persons” may be any shown at time if same separately has been classified as for “suitable persons” young provisions under the of Section 46A-3 of this ordinance.
(7) make any To willfully misleading false state- in any ment proposed classification, application for change of classification, any other proceeding before the Board.'
(8) To any exhibit film classified “not suitable for young persons” having without in force the license here- provided. inafter
(b) It any shall be unlawful for young person:
(1) give age falsely To his (16) as sixteen years age or over, purpose of gaining admittance a film exhibition of classified “not young suitable for persons.”
(2) To enter remain room of viewing *18 film theatre where a young classified “not suitable for persons” being exhibited. for married
(3) falsely To state or she is that he a to an of purpose gaining of exhibition admittance young persons.” film as “not for classified suitable (c) person: for any It shall be unlawful to
(1) give young person a ticket any To sell or young of film “not suitable for an exhibition a classified persons.” misleading
(2) any willfully To or state- false make or change for of classification application ment any proceeding before the Board.
(3) any purpose for the To make false statements gain to enabling any young admittance person for as “not suitable the exhibition of a classified young persons.” any prosecution pro- or other
(d) To the extent entering, pur- ceeding ordinance, involves the under this of a viewing young person a chasing by of a or ticket, young persons,” for it shall film classified suitable “not ac- young person was a defense that be valid guardian, legally appointed parent his or companied throughout viewing such film. wife, husband or 46A-5. License: Section or picture theatre
Every holding motion exhibitor Chap- pursuant picture motion show license issued of Civil Criminal the 1960 Revised Code ter shall entitled City of Dallas Ordinances of the Secretary exhibit City license issuance films young persons.” suitable “not classified license: suspension 46A-6. Revocation Section acting any Attorney person City Whenever City (10) ten citizens direction, any under his complaint with file sworn Dallas, shall vio- stating repeatedly has Secretary any exhibitor or that ordinance, of this provisions lated *19 persistently exhibitor has failed to dili- use reasonable gence seeking to determine whether those admittance to the film exhibition a classified for “not suitable young persons” age are below the the (16), of sixteen City Secretary immediately bring complaint shall such to City the attention the Council who shall set time place and for hearing complaint and cause such notice to hearing given such be and complainants to the to the City exhibitor involved. shall The Council have authority to requiring ap- issue to subpoenas witnesses pear testify and hearing, any party such to such hearing to process. If, be entitled such after hear- shall ing City the evidence, charges the Council shall find the complaint such it true, shall issue file an order revoking suspending or provided, the license above grants privilege insofar as it showing such classi- pictures, fied for a specific period not to exceed (1) one may year, reprimand issue a if it is satisfied that such violation will not continue. Council likewise, after notice and hearing, or suspend revoke any license of exhibitor who
has unreasonably produce refused failed delayed of a film the submission for when review, requested by the Board.
Section 46A-7. Judicial Review:
(a) (2) days two after filing Within classi- fication other than an Board, approving order the classification proposed by an exhibitor,' any exhibitor may file a of non-acceptance notice of the Board’s classi- stating his fication, intention film ques- to exhibit the tion under a Thereupon different classification. it shall duty be the following: Board to do the (I) (3) days Within three appli- thereafter to make cation to a District Court of County, Texas, Dallas for temporary permanent injunction enjoin contests who defendant-exhibitor, being the exhibitor question exhibiting from classification, contrary provisions this ordinance. injunc- temporary
(2) To application have said filing hearing days after (5) tion set for within five *20 appears In thereof. the the defendant-exhibitor event temporary hearing of such at or before the time of the by the provided the notice otherwise waives injunction, requests that Procedure, of and Texas Rules Civil hearing proceed to hear for the Court the time set such for case Texas Rules of Procedure the under the Civil Board shall be permanent merits, on its the injunction injunc- for temporary its required application to waive In the the event request. tion and such join shall not notice does defendant-exhibitor does waive and/or early hearing application an the Board’s request not it be the permanent injunction, shall for nevertheless setting possible to duty of the board obtain the earliest of law and provisions under State hearing for such the of Civil Procedure. the Texas Rules court (3) granted by If the the trial injunction the Court of appeals the to and defendant-exhibitor any all statu- Board waive and Appeals, the shall Civil the Texas State tory provided notices and times as Procedure,, and Civil and Rules of Statutes Texas of receiving copy ap- (5) days shall after within five brief, required, if pealing reply file its brief, exhibitor’s oral submis- upon to submit the case prepared and be by requested other reasonable action any sion or take expedite the exhibitor to the submission appealing the upon re- and shall Appeals, the Court Civil. case to with such appealing exhibitor, jointly quest advance Appeals the of Civil request Court exhibitor, give preferential it upon the and the cause docket tempo- appeal an setting same as afforded from preferential rary injunction other matters.
(4) If the Court of Appeals Civil its should judgment affirm granting trial court the injunction appealing and the exhibitor file should an application for writ of error to Supreme the Texas Court, the Board required any shall be waive all notices and times provided for in the Texas State Statutes and the Texas Rules Civil Procedure, shall within five (5) days receiving after a copy of the application for writ error, reply brief, file its if re- quired, and prepared upon to submit oral case submission take other action requested reasonable appealing to expedite exhibitor the submission of the case to Supreme Court shall upon request appealing jointly exhibitor, with exhibitor, request Supreme Court upon advance the cause the docket give preferential and to it a setting the same as is afforded from appeal a temporary injunction *21 preferential or other matters. If
(5) District the Court denies the Board’s appli- cation for injunction, and the Board to appeal, elects required the Board shall periods to waive all of time allowed it by the Texas Rules of Civil and if Procedure a motion for a new trial is required, shall file motion said (2) days within two signing after the of judgment, the (or on following Monday the period if said ends on a Saturday Sunday, or day following on the if the period ends on a Legal Holiday), not amend said shall motion and hearing shall obtain a on such within motion (5) days If five time. no motion for trial re- new is quired as a an prerequisite to appeal under the Texas Rules of Procedure, Civil Board the shall not file such a motion. (10) days Within ten after the signed the District denying Court such injunction (10) or within ten days after the overruling order the Board’s motion for new trial if signed, such motion is required, complete the Board shall all steps neces- sary for perfection appeal the of to the of its Court Civil Appeals, including filing Transcript, the of the Statement Appellant’s of Facts and Failure to brief. do so appeal. shall constitute an abandonment of the filing On Appeals, record with the of the Court Civil the Board shall file a motion the requesting to advance give preferential setting Court to afforded the same as is an appeal a temporary injunction prefer- from or other ential matters. If
(6) of trial Appeals Court Civil reverses the court granted after the trial has court injunction, if the of Appeals Court Civil trial refuses to reverse court grant after that court has failed to an injunction, then if Board appeal desires to from the decision of Appeals by the Court Civil writ of error to the Supreme of the its Texas, Court State it must file rehearing motion (2) days for within two of rendition Appeals (or decision the Court Civil on the following period Saturday if on a Monday, said ends day following period or on the if Sunday, ends a Legal application and shall file its for writ Holiday), days of error within after the Court Civil (10) ten Appeals’ overruling rehearing, order motion for rights appeal to do all from failure so shall waive Appeals. the decision of the Court of Civil At the time filing Board application error, writ of shall request Supreme pref- also the case a give Court setting erential on the docket. advance same *22 filing of shall (b) non-acceptance The such notice of suspend not or set aside the Board’s such order, but days at of ten suspended (10) order shall be the end filing after the of such notice unless an injunction period. within issued such any
(c) Failure of exhibitor to file the notice of non- days acceptance (2) required within two as Subdivi- (1) 46A-7, acceptance sion of this Section shall constitute shall be exhibitor order and such of such classification except proceedings subsequent in all bound such order any in connection with be had as proceedings such Subsec- change of classification under application for 46A-3 above. (c) tion Section Public Nuisances: 46A-8. Section public nuisances: are declared to be following acts (1), (3), (a) Any (2), violation Subdivisions (a) 46A-4 of this ordinance. of Section (6), Subdivision as “not suit- of a film classified (b) Any exhibition (3) than three more young persons” able for which young persons are admitted. film classified as “not suit-
(c) Any exhibition who fails use young for an exhibitor persons” able ad- persons whether diligence reasonable to determine exhibitions, age under persons mitted to are years. (16) sixteen suit-
(d) Any exhibition a film classified as “not by an young persons” able for exhibitor who has been many (3) convicted as violations of of as three Subdivi- (a) of 46A-4 of (4) (5) sions of Subdivision Section of the this ordinance connection with exhibition film. same Injunctions:
Section 46A-9. has probable the Board cause to Whenever believe any acts exhibitor has committed declared public Section 46A-8 above be a the Board nuisance, duty shall have application make to a court of competent jurisdiction injunction restraining commission of such acts. Exemption
Section 46A-10. State Law: Nothing regu- in this ordinance shall be construed to by Article public pre-empted late exhibitions 527 of the Penal Code of the State of Texas, amended. *23 Severability Clause: Section 46A-11. provision, sentence, any section, subsection,
Should any reason, for held to be invalid phrase clause be sub- any section, invalid other holding shall not render ordi- phrase clause or this section, sentence, provision, this the same are deemed severable nance, and purpose. shall violate any person 2. That who
SECTION a misde- guilty shall be provisions of this ordinance subject to upon meanor conviction thereof and shall ($200.00) Hundred Dollars and fine not to exceed Two violation separate deemed to be a each offense shall be day each that a separate offense, as a and punishable and according has not been classified film is exhibited which separate offense. to this ordinance shall be 10963 heretofore 3. Ordinance No. SECTION That by City City Council Dallas enacted hereby things in all April 5, be and the same this ordinance is repealed naught, held for in lieu enacted thereof. pre-
SECTION 4. The fact that Ordinance No. viously City Council of of Dallas passed has been declared to be unenforceable the Courts urgency District and an Court, the Federal creates emergency preservation public in the com- peace, general ordinance requires fort and welfare and this immediately effect from its passage, shall take and after accordingly it is so ordained. Mr. whom Mr. Black Douglas, Justice with Justice concurring. joins, my dissenting opinion Ginsberg
As I indicated in York, arguendo New if we assume ante, p. 650, for chil- censorship publications, of obscene whether proc- or for the area of substantive due dren adults, *24 a ess, very range the States have wide indeed for deter- mining what kind of movie, novel, poem, article is agree my harmful. If that I would test, were the with promis- Brother Harlan of “sexual the standard in cuity” sufficiently precise and this Dallas ordinance discriminating apply intelligently. for modern man to
My approach problems course, quite to these of is, I different. reach the result the Court reaches for the in my dissenting opinions Ginsberg reasons stated in reversing and other concur in the cases and therefore present judgment. ante, in concurring 47, p. 629, Harlan, No.
Mr. Justice dissenting in Nos. 56 and 64. These cases phase usher Court into a new obscenity intractable problem: prevent State dissemination of obscene or other obnoxious material juveniles upon stringent standards less than those which govern would its distribution to adults?
In
Ginsberg
47,
No.
upholds
Court
New
case,
York
applicable only
statute
juveniles
con-
which,
strued
the state
courts,
effect embodies in diluted
form the
obscenity
“adult”
standards established
States,
Roth v. United
476,
prevailing
U. S.
and the
opinion
Massachusetts,
in Memoirs v.
As the Court enters this
obscenity
new area of
law
it is well to take stock of where we are at
present
this constitutional
field.
subject
of obscenity has
produced
variety
among
views
the members of the
Court unmatched in
other course of constitutional
steadfastly
Two members of the
adjudication.1
Court
maintain that
First
Fourteenth Amendments
powerless
protect
against
society
render
itelf
the dis
semination
even
the filthiest materials.2 No other
member of
past
present,
has ever stated his
Court,
acceptance
point
of that
is among
view. But there
present
divergence
sharp
members
the Court a
as to
Roth,
proper
supra,3
application
standards
Memoirs,
States,
supra,4
Ginzburg
v. United
S.
463,5
judging
U.
whether given material
con-
following
obscenity
cases from the date Roth was
In the
*25
signed
decided,
opinions
judg
which
were written for a decision or
Court,
opinions
ment
the
been
55 separate
there has
a total of
Kingsley Books,
among
Brown,
Inc. v.
the
Justices.
2 See Roth supra, United (dissenting opinion); v. at 508 Ohio, supra, Jacobellis v. opinion); Ginzburg (separate at 196 States, supra, United (dissenting opinions). at 3 Roth average person, stated test to be to “whether applying contemporary community standards, the dominant theme appeals prurient of the material taken as a whole interest.”. 354 S., (note omitted). at U. 4 Memoirs Roth elaborated the test as follows: “it must be estab (a) that lished dominant theme of the material taken aas appeals prurient sex; (b) whole interest the material is patently it contemporary community offensive because affronts relating description representation standards to the of sexual matters; (c) utterly redeeming material without social S., value.” 383 U. 418. Ginzburg “test” precision. is difficult to state with The Court “in pandering may held that close cases evidence of be Most of the
stitutionally unprotected. protected “obscenity” not that present Justices who believe seemingly control con- beyond pale governmental Roth-Memoirs-Ginzburg permit tests sider falls short “hard suppression of material that of so-called equal core terms as between federal pornography,” only authority.6 state Another view is that “hard whether fed- pornography” suppressed, core be authority.7 still another that of view, eral state And only may be writer, pornography” this is that “hard core Federal whereas suppressed Government, under permitted are wider the Fourteenth Amendment States authority might matter to deal with obnoxious than Roth- justifiable application under a strict Memoirs-Ginzburg rules.8 among
There are also differences how our us appellate process reviewing obscenity should work in simply determinations. One view is we should the proceedings examine below to ascertain whether the lower or state genuine federal courts have made a effort Roth-Memoirs-Ginzburg apply if tests, and that such is the their case, questioned determinations that the probative respect question to the with nature of the material *26 satisfy S., and thus the Roth test.” 383 U. at 474. But this “simply obscenity elaborates the test which the vel non of the judged.” Id., pander- material must be at 475. Yet evidence of ing may “support the determination that the material is obscene though escape even in other contexts material would Id., Pandering evidently condemnation.” at 476. itself encom- “ passes every purveying form graphic of the ‘business of textual or openly appeal matter advertised to the erotic of interest their ” Id., (note omitted). customers.’ at 467 6 g., See, Ohio, supra, e. Jacobellis (opinion v. at 193-195 of J.). Brennan, 7 id., (concurring opinion Stewart, J.). 197 See at 8 States, supra, (concurring See Roth v. United at 496 and dissenting opinion); Memoirs Massachusetts, supra, (dis v. at 455 senting opinion).
707 material is obscene as would accepted, should much any findings question of fact.9 Another view that the particular inherently of whether material en- is obscene tails a constitutional for which the Court has ultimate and responsibility, hence it is incumbent upon judge us to novo ourselves, were, de as it obscenity vel non challenged matter.10 upshot of all in divergence this is that viewpoint anyone who undertakes examine Court’s decisions Both since which particular have held material obscene or not obscene find would himself in utter bewilderment.11 standpoint From the of the Court itself the current approach required has to spend us an inordinate amount of time the absurd perusing viewing business of pours the miserable stuff that mostly into the Court, all cases, state to no better end than second-guessing In judges. except state all I instances, rare venture no substantial say, free-speech stake, interest is at given right of the States to control obscenity. improvement
I believe that no in this state chaotic is likely affairs to come until recognized it is that this problem primarily whole concern, one of state supra, (dissenting opinion). 9 See Jacobellis v. at 202 Ohio, 10 (opinion Brennan, See at Jacobellis, J.); 190 Roth v. United States, supra, ; at (concurring dissenting 497-498 opinion) Kingsley Corp. Int’l supra, (concurring v. 708 Regents, Pictures result). 11 See, g., Keney e. 440; v. York, New 388 U. S. Friedman v. 441; York, 388 U. New 442; S. California, Ratner v. 388 U. S. 443; Sheperd Cobert v. York, New 388 U. S. New v. U. S. York, 444; 446; Aday York, v. Avansino New 388 U. S. States, v. United 447; U. S. Inc. v. Publications, Corinth S.U. Wesberry, 448; Books, 449; v. United States, Inc. S. U. v. Rosenbloom 450; Virginia, Quantity Copies U. S. A Kansas, Books v. 452; 453; 388 U. S. Ohio, Mazes v. 388 U. S. Schackman v. Cali 454; 388 U. S. fornia, 456; Landau v. 388 U. S. Fording, Potomac News Co. v. United States, 47; 389 U. S. Conner Ham *27 48; mond, 389 U. S. Magazine States, Sales, Central Ltd. v. United 50; 389 U. S. California, Chance v. S. 89. U. authority much wider Constitution tolerates the control the dissemination in the States to
and discretion does in Federal Gov- materials than it of obscene I have ex- Reiterating viewpoint ernment. I limit control opinions, in earlier would federal pressed recognize all would of obscene materials to those which pornography,” “hard core what has been called withhold the federal hand from judicial and would in interfering except with determinations instances state clearly appears where the state action to be but Roth product prudish overzealousness. See v. United States, supra, 496; Enterprises at Manual Day, v. 478; 184, 203; U. S. Jacobellis v. Memoirs Ohio, U. S. Massachusetts, supra, in juvenile at 455. And field I think that is still the Constitution more tolerant state policy and If applications. its current doctrinaire views as to the reach of the First Amendment into state affairs thought are in way stand of such a functional I approach, would revert to basic constitutional con- cepts recognized that until times have recent been respected genius as the fundamental of our federal system, namely acceptance of wide autonomy state local affairs.
I come now to the cases hand. In 47, Ginsberg, at No. I concur join opinion fully Court, preserving, however, the views repeatedly expressed in my earlier opinions this field.
In Nos. 56 and the Interstate Circuit and United cases, Artists I respectfully dissent. I do not agree that the Dallas ordinance can be struck down, as the Court now holds, the score of vagueness. The ambiguities about expresses which the Court concern essentially are First, two.12 the ordinance does not include a definition emphasizes greater length Court the failure of the Board proffer any and the Texas courts clarification of the ordinance. compels This examination of terms, the ordinance’s but it does *28 promiscuity.” pro “sexual the ordinance Second, vides that a film or ‘likely “shall be considered to incite crime encourage’ delinquency promiscuity or sexual . . . in the if, there Board, is a substantial probability that impression young it will create the on persons accept that such conduct is profitable, desirable, able, respectable, praiseworthy commonly accepted.” or The Court is concerned that many may disagree as whether specific impressions materials create such persons. young
These seem entirely to me inadequate grounds on which to strike down the granted, It must be ordinance. course, people may application that differ as to the of these standards; but the central lesson of Court’s this efforts this area is that under all formulae, verbal including even this Court’s own definition of obscenity, reasonable men can, ordinarily do, differ as to the proper assessment of challenged materials. The truth is that the Court has greater precision demanded of lan- guage from the of Dallas than the can Court itself or sensibly even than can give, expected in this area of the law. always has Roth, Court not asked much.14 In so
the federal statute under which petitioner had been not, course, any independent offer basis for a conclusion that ambiguous. the ordinance is acknowledges city The Court adopted that has since promiscuity, definition of sexual expresses but it no views as to adequacy. the definition’s pertinent It majority note that a of the Court did not hold that the New Kingsley York statute at issue in Int’l Pictures Corp. Regents, supra, impermissibly vague. v. was The statute for portrays bade the exhibition a film “which acts of sexual immoral ity presents ... or .. . desirable, acceptable proper acts as patterns Id., appears behavior.” only opinion at 685. It that Clark, concurring of Mr. upon Justice result, which the Court now heavily, relies so vague. described this Indeed, standard as Mr. separate Justice opinion Frankfurter said in his that the “Court does not strike vagueness Id., the law down because of ....’’ at mailing forbade the years’ imprisonment to five
sentenced lewd, lascivious, “obscene, was of material character.”15 publication indecent filthy ... or other California, compan- In Alberts 491. S., 354 U. Roth, provided statute case to the California ion “tendency corrupt deprave have a materials must Id., included at 498. definitions were readers.” No its *29 yet explicitly rejected in there statute, either the Court reasonably they “provide did not argument that Id., The guilt. . .” at 491. ascertainable . standards obscenity are recognized that the terms of statutes Court necessarily quoting but United emphasized, imprecise, “ Petrillo, States that the 'Constitution 1, 7-8, U. S. require impossible standards’; does not all is required that sufficiently language 'conveys warning that the definite proscribed as to the when measured common conduct id., say 695. See also at 704. Mr. Justice went on to Frankfurter “ ‘[sjexual immorality’ phrase that not a new this branch implications hardly of law and its dominate the context. I con- possible ceive it that would strike Court down as unconstitu- against mailing lewd, tional the federal statute obscene and lascivious matter, nearly which has been the law of the land for a hundred years, 3, 1865, 507, 3, see the Act of March 13 Stat. March and 599, specific may 17 Stat. whatever instances found not prohibition. within sustaining legislation its allowable In this this gave 'lewd, Court the words obscene and lascivious’ concreteness ” Id., saying they immorality.’ that concern 'sexual at 695-696. statute involved in Both now provides part that it is import transport a criminal offense to in interstate commerce any “obscene, lewd, filthy lascivious, book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent ....’’ Similarly, character 18 U. S. C. 1462. § § provides any that it is a criminal “obscene, lewd, offense to mail lascivious, indecent, filthy 1463, 1464, or vile” article. See also §§ Although 1465. profuse each of these sections makes use of the disjunctive, no descriptive definitions of of these terms are provided. ”16 Ibid. Yet it . practices. .
understanding and Circuit cases, Interstate repeated should be that Alberts, involve merely the classifica- Roth and unlike prosecution, by criminal proscription not tion, the ordinance my opinion, In materials. objectionable films notice of the give adequate fail either does not sufficiently definite provide restricted, or that are to be for its administration.17 standards unnecessary pass judg- finds it Although the Court I con- cases, in these materials involved upon the ment Upon question. to face preferable it sider Memoirs my Roth opinions, forth in premises set condemning hold that I would here, reiterated of Dallas have York materials New these constitutional limits. within acted cases. in all three judgments I affirm the would argued juries say that because it “is on to The Court went material, the statutes as to the same conclusions reach different process satisfy insufficiently precise due must be held to be *30 juries experience that different But, common requirements. it is That is statute. criminal results under reach different system.” 354 accept jury under our consequences we one of the appli reasoning Precisely should similar S., n. 30. U. although ordinance, by the Dallas like that created to boards cable initially) (at least here measured in result is the cost of differences imprisonment. by lengthy classifications, terms and not suppose its the Court could difficult to see how It is than precise warnings film makers formula offers more Memoirs Surely now believe the Court cannot ordinance. does the Dallas “prurient offensiveness,” “patent “redeeming value,” social children, apply to particularly so as to are, as modified interest” clarity. Moreover, one won understanding and common terms of United, Ginzburg adopted in pandering rationale ders whether “guidance thought give to those who seek States, supra, more It Dallas ordinance. adjust than does the their conduct” overbroad, imagine any vague, more or more standard difficult subjectivity” the Court’s search “new created than the Grapes Obscenity Magrath, Cases: See of the sensualist.” “leer Sup. 7, 61. Roth, 1966 Ct. Rev.