*1 CIRCUIT, INC., al., et INTERSTATE Appellants, DALLAS, Appellee.
CITY OF
No. 16773. Appeals
Court of Civil of Texas.
Dallas.
April 5, 1966.
Rehearing April 25, Denied
DIXON, Chief Justice. Dallas, City of 1966the February
On Cir- against suit filed appellee, com- Inc., cuit, appellant, an exhibitor seeking pictures, mercial motion said restraining permanent injunctions film exhibiting the from appellant (1) advertising without Maria” “Viva young persons” as “not suitable for film No. violating Ordinance film amended, exhibiting provisions of Ordinance. contrary to the February On Artists 1966 United Corporation, asserting is a distribu- pictures tor motion and is the exclusive owner of rights distribution film of the Maria”, “Viva opposition intervened to City. February On following a hear- ing begun day before, granted the court City’s prayer temporary injunc- for a tion. City try had case offered time, is, on its try merits same February 18, 1966, the whole on in- cluding permanent for junction. by ap- This offer was declined pellants. Carrington, Stephens, & Paul Johnson Carrington, Mow, Dan McElroy, Robert H. Ordinance No. known as “Mo Jr., Tobolowsky, Hartt, Schlinger Bla-& tion Picture Classification Ordinance” lock, Hartt, Jr., Grover and Edwin Tobo- passed by Council of lowsky, Dallas, appellants. for Dallas on November is too Bickley, N. Alex City Atty., Ted Mac- P. long copied to be A entirety. here in Master, Stacy Pat Williamson, and Jerry summary provisions of its material will be City Attys., Asst. Dallas, appellee. in a footnote found hereto.* * provisions “(2) Describing nudity of the portraying ordinance which are or controversy beyond material customary he sum- limits of candor community, marized as follows: promiscuity or or sexual Sec. Terms: extramarital or abnormal sexual relations IfiA-l. Definition of (d) young person be, judg- A is defined as in such a manner as to in the Board, likely who has not attained his six- ment of the en- incite or birthday. courage promiscuity delinquency teenth or sexual (f) applied young persons part appeal The standards or on determining prurient whether films shall be classi- their interest. persons young ‘likely fied as “not suitable for “A film shall considered encourage’ delinquency are: or incite or crime “(1) Describing brutality, portraying promiscuity part young or on sexual persons, Board, depravity if, judgment criminal or violence such in the of the judgment probability be, manner a Board, likely as to there is substantial encourage impression young per- crime to incite or will create delinquency part young per- profitable, sons conduct ; praise- acceptable, respectable, desirable, sons
The Ordinance itself already has been motion exhibitors filed suit in the subject of court action. A number of United States District Court worthy commonly accepted. knowingly persons”, A film suitable appealing ‘pruri- permit young person shall be considered as to view young persons, ent interest’ of if in the film. Board, (d) its calculated or *3 shall It be a valid defense young persons prosecution proceeding dominant effect is sub- or other stantially young person to arouse sexual desire. Ordinance accompanied by determining legal parent, guaidian, whether a film is ‘not suit- his young persons’, able for the Board shall husband or wife. whole, consider the film as a rather than Bee. Ldcense: 46A-5. portions, holding general Every isolated and shall determine mo- exhibitor a outweigh picture whether its harmful effects tion shall be entitled to license artistic or educational film values such a to exhibit films clas- of license issuance may young persons.” for young persons.” have “not for sified suitable See. Establishment Board: 4.6A-S. Suspension of Bee. Revocation or 46A-S. provides This section for creation License: of of the Dallas Motion Picture Classifica- Upon complaint being any filed that ex- tion Board. repeatedly hibitor has violated the Bee. Procedure: Glassification 46A-8. per- visions of the Ordinance or has (a) exhibiting sistently Before a film the ex- failed to use reasonable dili- proposed hibitor gence shall file a seeking classification to determine whether those together of the film with a resume of the admittance to the exhibition of clas- a plot and film, other City information. If may sified Board Council after approves proposed hearing suspend exhibitor’s year classifi- notice and for one approval. cation it shall file its If showing the exhibitor’s for license of approved Board fails either to pictures. file an clas- classified hearing sification or to hold a within Bee. Judicial Review: 46A-1. days, proposed five the exhibitor’s classi- (a) days filing Within two after approved. fication shall be considered Board, classification exhibitor (b) If the Board is not satisfied with may nonacceptance. file a notice of If the proposed classification, the exhibitor’s Board desires to contest the exhibitor’s may request an exhibition of the film be- nonacceptance, it shall: prac- fore the Board at the earliest time (1) application Make in court within regard availability ticable with due of the film. At the to the days perma- three for a and screening before the nent may appear, Board the exhibitor make (2) application Have for present such statements and such evi- junction hearing days. set for within five dence as he desire. The Board shall pursuant If the exhibitor waives notice days file its classification within two after procedure requests to rules of hearing and a screening. day on the merits on the (c) Any subsequent initial or exhibitor hearing temporary injunction, on the application change file an for a required the Board shall be to waive its prior classification. If the classification application temporary injunction changed should be to “not suitable for join request. shall in such young persons” the exhibitor shall have days (3) appeals seven In the event the exhibitor which to alter his adver- tising reply appellant’s policy. shall brief and audience days. (d) notify within five Board shall all exhibi- tors of its classification order. (4) Paragraph Same substance as (e) (3) binding if for writ is made to The classification shall be any subsequent Court of Texas exhibitor. exhibitor unless a change in classification is made. (5) ap- If trial denies the Board’s Bee. appeals, plication Offenses: 4.6A-4. and Board required peri- (a) Board shall be to waive all It shall unlawful for an he exhibitor (1)to of time allowed it Texas Rules of ods Civil exhibit a film which has not been Procedure, classified; file motion for new trial to exhibit days; young if two and then within film “not suitable for classified persons” years ob- shall not amend its motion shall of un- sixteen days. advertising display Board tain within five less media state perfect appeal picture classified; (4) to Court of Civil shall so filing Transcript, Appeals including (5) knowingly give of to a sell ten “un- and brief within film Statement Pacts a ticket classified thereof, espe- interpretations seeking Northern District of Texas an in- tution and since this civil suits junction ground cially on the with reference that the Ordinance action, as criminal involve a itself is First and Four- violative suit Texas, v. State teenth Malone Amendments did the case of Constitution United States. Tex.Cr.R. On December Hughes, judge Honorable Sarah T. of that or- suppressive totally is not This court, that, though held in effect Section deny the totally dinance, one that would unconstitutional, 46A-6 of the Ordinance is picture “Viva anyone of exhibition rest of the Ordinance is not violative film. any other classified Maria” Constitution. the exhibition way prohibit does not in Dallas, F.Supp. D.C., 249 to adults. any classified Appended A—a opinion Appendix the exhibition prohibit not even reproduction full the Ordinance. *4 of six- any child appeal pending above is now guar- parent, accompanied by years if teen Appeals. before the of United States Court prohibit dian, It does wife. husband or classi- exhibiting pictures from exhibitors In appeal now before us Section 46A- persons”. fied “not suitable 6 is not involved. No violation of that sec- dis- distributors prohibit tion alleged. The has not under- is in classified. tributing picture so taken suspend appellants* license and ordinance, the classification nature of a doe not seek Therefore, to do so. we shall exhibi- regulate is to purpose of which pass on the constitutionality of Sec- to children. pictures classified tion 46A-6, which under the terms of Sec- tion 46A-11 may be treated as severable By providing regulation the for such
from the rest of the Ordinance. Ordinance does not contravene the freedom appellants The two separate have filed speech provisions of our Constitutions. briefs. first its Supreme Court of the United States points six appeal, and United Artists suggested regulation has itself that such Corporation in all of points, its ten assert proper. quote opinion in from the We that the Ordinance 184, Ohio, v. State of Jacobellis this case are violative of the First 1676, and Four- 12 L.Ed.2d 793: teenth Amendments to the Constitution of recognize legitimate and “We United States and of Article Sections exigent deed interest of and locali- States 8 and 19 of the Constitution of the State of throughout preventing ties the Nation Texas, Vernon’s agree Ann.St. do not the dissemination of material deemed appellants. with that interest But to children. harmful suppression Of justify course a total Article Sections 8 and 19 of material, the Constitution would the effect of which State of Texas does * * * population override the be to ‘reduce the adult Constitution of the United Therefore, States. we shall in main reading only what is children.’ fit for 380, 383, Michigan, confine our 352 discussion Butler v. U.S. to the latter Consti- Exception days Law: to State Sec. shall then file re- a motion lfiA-10. questing Nothing Appeals construed shall be Court of Ordinance Civil to ad- pre-empt- appeal. regulate public vance the exhibitions submission by (6) Appeals Penal Code. If the Article 527 of Texas Court Civil re- ed Severability order, Clause: Sec. JfGA-11. verses the trial court’s Ordinance if the court to reverse the Should section refuses order, provisions holding render shall not are made similar Paragraph held invalid section, various other those outlined above invalid by sections, of and etc. deemed severable decision Supreme purpose. Court of Texas. 774
77
S.Ct.
adjudication
final
must be for
advance of
State and local
might
compatible
authorities
period
time
well
shortest
consider
resolution;
whether
objectives
their
judicial
in this
sound
area would
be better
judicial
prompt
served
laws aimed
final
cedure must assure
specifically
at preventing distribution of
are
tests laid down
decision. These
objectionable
children,
material to
United States
rather
than at totally prohibiting
Maryland, 380 U.S.
its dissemina-
in Freedman v.
State
tion.” (Emphasis
in a total
supplied.)
S.Ct.
censorship case.
See also Prince v. Commonwealthof Massa
chusetts, 321
U.S.
Procedure
Rules of Civil
88 L.
Texas
Ed. 645, and People Walton,
prompt
v.
to make
Cal.App. grant powers
to courts
2d Supp. 862, 161 P.2d
courts
judicial
district
decisions.
may be
245(c) provides that actions
Rule
speech,
mighty bul
Freedom
other
placed
“in such
on the trial calendar
wark that it is in
preservation
of our
expedient” and
manner as the courts deem
liberties, is not an
right—a
absolute
truth
courts,
330(b), applicable to Dallas
Rule
recognized
Chap
court decisions.
provides
that “the court
linsky v. State of
Hampshire,
New
allow
any time
for trial at
so as
1031;
86 L.Ed.
preparation.”
time for
reasonable
Times
Corp.
Film
Chicago,
410, after
appellate
In the
courts Rule
*5
U.S.
This Ordinance avoids table plain judicial procedural constitutional that time firmity though provides prior require for a inadequate sub- has to been meet mission of a film under some circumstances. Freedman case. ments Film Corp. City Times of Chicago, 365 Appellants complain
U.S. the Ordi that 5 L.Ed.2d process judgment under nance leaves too much to the terms of the Ordinance place appar procedural Appellants takes discretion of the Board. safeguards require ently which fact prov- overlook the that this burden of ing tried in district court under protected the film is not rests on requires rule”, City; which (2) the “substantial evidence exhibitor is assured agen approve an administrative judicial Ordinance and a court to authoritative cy’s evi specified construction that decision if there is substantial within a brief period novo” support This was a “de time the will either issue a dence to it. permit make go regulated to trial in which court was free to court to obtain showing film; independent obviously did own restraint in make its findings community City Dallas, findings regardless judg- and not only, the State of Texas or ment of Board. the United States.
Again agree appellants. To we cannot regulate portrayal to a limited extent the Appellants say that the Ordinance children under the years sixteen provides is invalid because it standards promiscuity acceptable sexual is not broad, vague, which are too apply merely community a local standard. permit uncertain and en indefinite apply contemporary national give type forcement fair notice of the standard. subject of films which be to classifica infirmity tion. We see in the Ordi support contend (f) nance. Subsection 46A-1 of Section validity of the Ordinance or action the Ordinance sets definite standards taken prove under its terms must precision classification. Absolute re that a film classified “not suitable for quired. What and what we young persons” pass must three tests. We think the Ordinance affords is a sufficient quote distributor, ap- brief ly definite warning of the standards which pellant Corporation: United Artists guide are to the Board and the courts classifying films. As was said in Roth v. a manner deal with sex in It must “1. States, United interest, judged prurient appealing page 1312, at page contem- person, applying average
these terms of precise. sistently held *6 all that to the ing by common understanding itself offensive due * * ‘convey sufficiently “Many process. 1, 7, 8, proscribed This decisions have require United States v. proper These that lack ‘ * * * Court, however, obscenity conduct when measured impossible words, standard for definite 1538, 1542, The Constitution requirements statutes are not recognized precision applied the Petrillo, warning standards’; language practices has con- judging accord- is not L.Ed. 332 Roth v. United may porary Jacobellis fensive—so affront ering its Manual out (1964).” (1957); (1962); redeeming [77 [84 not be [82 community community standards of Enterprises, and, and, S.Ct. 1304] dominant theme v. [State of] S.Ct. offensive on weighed against value; hence, 1676], It must be States, It must 1432] standards, Inc. v. Ohio, Day, L.Ed.2d 793 utterly with- as a whole. patently [354] face as the 378 decency. consid- good U.S. U.S. bad. 639 of- obscenity, already discussed, give ade- pronouncements of bow quate warning of the proscribed conduct But Supreme Court of the United States. ‘* * * and mark boundaries suffi- holdings above we do believe ciently distinct for judges juries In all of applicable are here. out ** fairly to administer the law *. court enact- considering cited cases the That there marginal be cases in impose censor- sought ments total which which it is difficult to determine the ban ship. been Their effect would have side of the line on particular which a fact sale, exhibit- completely the distribution or situation falls is no sufficient reason adults ing of the matter involved either ** hold the language ambiguous too be- we have children. The Ordinance (Emphasis ours.) fore case does us consideration this already pointed thing. As
no we have say censorship further Ordi not call for total nance reg- is invalid because it involves a con simply applies limited instance. temporary community standard of a local cer- ulations of the conditions which pictures tain classified be exhibited We hold that “Viva Maria” has children age years. under the value, of sixteen all, minimum of social if as to age years. children under the of sixteen If we be in error in the above holding we permitted And since it is to be exhibited nevertheless hold that the Ordinance and subject only regulations, to limited it is not in this case do violate the constitutionally protected from the terms provisions. constitutional We have read ap- Ordinance which the seeks to reproduced evidence in the statement ply or from the terms facts and viewed the film “Viva Maria”. junction granted by the trial court. The latter was exhibited for our benefit the court amply sup- room. evidence Appellant Corpora United Artists ports implied findings of the Board and tion, distributor, asserts it has same the district court that the film offends exhibitor, rights yet constitutional as the particulars all of the named under the three is not mentioned in the Ordinance and was headings quoted foregoing excerpt in the hearings. notified of the There is appellant’s brief. merit to this United Artists contention. If the applied three tests are to this Corporation does not claim that it is an ex case we think No. 1 should test be modified picture. hibitor of other place so that in “judged by the words nothing distributor and there is Ordi average person” there should be substituted prevent nance to distribution of film. “judged by words average young The Ordinance has to do with exhibi person” meaning — children, the film to not its dis years. However, sixteen make we would Besides, Corpo tribution. United Artists holding same if test No. were not so ration intervened in the and was lawsuit modified. given opportunity full to be It has heard. not been harmed. In the case of “Memoirs Cleland’s John of a Attorney Woman of Pleasure” v. Gen- points ap- We overrule the first six eral of the Commonwealth of Massachu- peal appellant setts, points appellant and all ten United Ar- decided March Corporation. tists judg- Court of the United States reversed a ment of a Massachusetts court banning
above named “A book. The said, point appellant In its seventh Inter book proscribed can not be unless it is says state Circuit that under Article 527 of found utterly redeeming without so- the Vernon’s Ann. Texas Penal Code the *7 cial value.” the court then on to But pre-empted regulation went to of motion State say: pictures, municipality may so that a not en eighth ter field. its to the sixteenth necessarily “It does from follow inclusive, points, appellant complains of the this reversal that a determination that exceptions overruling of court in action the * * * ‘Memoirs’is obscene would be appellee’s pleadings. to In its seventeenth improper under all circumstances. On point appellant objects the court’s failure to premise, which we have occasion granting to set reasons justify forth to assess, requisite to ‘Memoirs’has the eight In its prurient appeal offensive, patently and is points eenth and appellant nineteenth al value, but only has a minimum social leges that the was not sale, production, circumstances of supported by pleadings mis and the court publicity determining are relevant in applied have considered all law. publication
whether or not the and dis- points these additional and find no merit constitutionally tribution of book is They protected.” in are overruled. supplied.) them. (Emphasis concurring cally excepted of Article Bateman has written a from the effect Justice 527, opinion subject City. presents regulation by in he his views which in read his con- somewhat detail. I have Dallas, Moreover, City being opinion agree with his views curring city powers from home rule its deriving by as stated him. Constitu Article Section 5 of the Texas tion, in plenary powers charter which has court is of the trial here power ordinance clude the to enact the Affirmed. only question, powers subject being its the limitation that its charter and ordi nothing nances shall contain inconsistent WILLIAMS, J., sitting. with the Texas Federal Constitutions by general laws State enacted (concurring). BATEMAN, Justice Mc Legislature. City of Fort Worth v. by everything written fully I Tex.Civ.App., concur wr. Donald, S.W.2d opinion and my e.; Films, Brother Dixon his ref. n. r. Inc. v. Janus several enlarge Worth, Tex.Civ.App., would like to somewhat Fort 354 S.W.2d of the decisions contained therein. per curiam, wr. ref. n. r. e. Tex. S.W.2d 589. Home rule cities have full au appeal By point seventh of error thority Legislature could anything to do says appellant prior adop have authorized them to do Ar- refusing the court hold that erred Amendment, the Home-Rule pre- Code ticle 527 of the Texas Penal necessary result that it is to look pic- empted motion regulating the field of Legislature grants acts of the attempted tures, making thus invalid power cities, limita but City. action two sections first powers. tions on their Forwood v. Texas, as Article Penal Code 286; Taylor, 147 Tex. 1961,prohibit doing amended in of cer- Tuck, Yellow Cab Co. v. Tex.Civ. Transit things, including tain exhibition of ob- App., wr. S.W.2d ref. pictures, scene motion Section but vides, part, as follows: position take the that in the light pronouncements by of certain the Su- provisions Act shall “The of this preme Court the Maria” is “Viva
apply
pictures produced
motion
protection
entitled to
First
pic-
motion
manufactured
commercial
Fourteenth Amendments
United
tures which
the seal under
(1) have
States Constitution and Article
Section
Picture
Production Code of the Motion
8 of the Texas Constitution unless it can be
America, Inc.;
Association of
properly
obscene;
said that it is
and that
legally
commerce un-
move
interstate
in determining whether it is obscene three
Law;
legally
der Federal
im-
are
applied,
tests must be
to wit:
ported
foreign
countries into the
passed
United States and have been
“1. It must deal with
sex
a manner
a Customs Office of the United States
appealing
prurient interest,
judged
entry.”
port
Government
average person,
applying contem-
in
cial motion
and
terstate commerce.
The evidence
question
will
probably
is what is
picture”
clearly
continue to
and that it has
known as
shows that
think we can safe-
move,
a “commer-
the film
moved,
in in-
Roth v. United
476
*8
porary community standards, and consid-
ering its dominant theme as a whole.
(1957); and,
[77
S.Ct.
1304],
States,
1
344
L.Ed.2d 1498
[354]
ly assume
in
that such movements
interstate
“2.
patently
be
It must
offensive—so
“legal.” Therefore,
commerce
be
this
will
offensive on its face as to
com-
affront
picture, being
specifi-
motion
of a class
munity
one
standards
decency.
Manual
Enterprises,
Day,
judge’s reasons
Inc. v.
U.S. 478
contain a recitation of the
[82
and,
same,
1432],
(1962);
issuing
as
Rule
true
order
T.R.C.P.
is
that this
utterly
“3.
It must
without redeem-
be
repre
merely
recites
all
were
value;
that
ing
hence,
good
be
they
by attorneys
person,
and in
that
sented
weighed against
v.
the bad. Jacobellis
ready
for trial and that
announced
Ohio,
We are also asked to the record “affirma- dissolve the reversal when rary injunction tively order does harm resulted.” because the shows that no *9 assert- each appellee are and 274; Appellants 157, p. Tex.Jur.2d, Injunctions, § law. under Federal rights ing substantive Libal, Tex.Civ.App., 196 S.W. v. O’Daniel pro- question is say the film hist.; Rodriguez, 211, 2d no wr. Gonzalez v. Constitution, hist.; United States 253, tected wr. Tex.Civ.App., 250 S.W.2d the exercise that appellee asserts while Goodrich, Tex.Civ.App., 292 Rothermel v. exhibi- regulate the right to Hurst, its substantive 884; etc. 882, Payton v. S.W.2d bounds of that the film is within Clinic, 726, Tex.Civ.App., wr. Yet, are asked we Constitution. same Transport Tex ref. r. Co. of n. e. See also technical, pro- purely on a this case reverse Inc., Tex. Transports, v. Robertson are in effect This we cedural rule. Sun Oil and Garcia v. S.W.2d Supreme Court hibited from doing Co., Tex.Civ.App., 300 wr. S.W.2d 724, Panhandle Arnold v. of the United States ref. r.n. e. Co., Ry. Santa Fe & Libal, pointed As O’Daniel v. su- said out wherein the “ ** * pra, purpose “The of the rule above referred Federal assertion that party just to is inform he is en- reasonably what plainly rights, made, when joined why he doing reasons name of local to be defeated under the enjoined.” pointed is so was also practice.” opinion tempo- that that the T.R.C.P., discussion Rule rary injunction was set down here, purely procedural does not in- appellant answer, and that the filed his that parties. rights volve substantive witnesses, both introduced several parties, ap- deny be invoked cannot twenty some testifying witnesses at pellants appellee, rights under of their hearing, inqui- and that “the main and sole For United Constitution States. ry” sought was whether or not the act point this additional reason is overruled. enj nuisance; oined had or would result appellant persuaded was familiar with the fully I am prayer appellee’s petition, properly granted had heard the injunction was statement of the pronounced court when he duty affirm. our the judgment and that be “no there could
doubt appellant but what knew he what enjoined from doing and the reasons
why.” may be exception, the same slight
With further bar. Without said of the al., Appellants, et FARLEY Wilma Cook reciting opinion lengthening this trial evidence and the statements of deci- his time he announced judge at the Temporary COOK, Successor Willie B. Graves par- all of counsel for presence sion in the T. Estate of W. Administrator record ties, simply state that this Deceased, Cook, Appellee. I would harm re- affirmatively that no show No. 7724. re- judge the failure of sulted from Appeals of Texas. of Civil reasons specifically his order the cite granted why he Texarkana. argued Certainly, will not April rendition of probably caused the omission prevent- improper judgment probably an presen- making proper appellants from
ed to this court. Rule
tation of the case