Interstate Circuit, Inc. v. City of Dallas – Oral Argument – January 16, 1968

Media for Interstate Circuit, Inc. v. City of Dallas

Audio Transcription for Oral Argument – January 15, 1968 in Interstate Circuit, Inc. v. City of Dallas

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Grover Hartt, Jr.:

— to wind up and go into Court all the time.

These litigants do not have big pockets to pay expenses and so you have the proposition which would affect Mr. Nizer’s case more than mine but if the local exhibitor owed in contest within the pictures classified and would there have to bear the —

Byron R. White:

Do you think —

Grover Hartt, Jr.:

— marketing.

Byron R. White:

Do you think the non-contesting part of it should come after when a complaint is filed in the Court?

Grover Hartt, Jr.:

Well, I think as soon as —

Byron R. White:

Like every — every picture classified is none suitable — it’s not suitable for young children should have a complaint filed on it in a court?

Grover Hartt, Jr.:

If the — yes sir.

Byron R. White:

And a — and a default judgment entered?

Grover Hartt, Jr.:

No sir.

The default judgment certainly should be taken but that leaves again free speech unprotected because a man takes one of these pictures and has a limited license a small fee —

Byron R. White:

— then would you prefer some mechanism by — Court and have a judgment entered that you could keep it out of Court?

Wouldn’t you like some proceeding like that?

Grover Hartt, Jr.:

That is one that Mr. Nizer —

Byron R. White:

What seems to be what you’re complaining about is some —

Grover Hartt, Jr.:

No sir, what I’m complaining about if I may say is this that they talked about Freedman and they changed their position on Freedman.

Freedman’s overall burden mentioned that prior Maryland case, that’s the real thrust of this argument.

There, it mentioned Maryland versus United Artist and Board of Censors in 1956 and it admit — it pointed out that the risk of delay was built into the only reported case in Maryland because it took six months from trial to final decision.

Now, six months was what mistaken there, the record of Viva Maria is eight-and-a-half months.

Byron R. White:

You mean from the time of the adminis — at the beginning of the administrative proceeding?

Grover Hartt, Jr.:

Suit was filed in a Maryland Censor case on February 28th and July 13th.

Byron R. White:

Well, now I’m talking about Texas —

Grover Hartt, Jr.:

My case was eight-and-a-half months.

Byron R. White:

Well, that appears through the — that appears through the Supreme Court of Texas.

Grover Hartt, Jr.:

That is correct, Justice.

The final judicial determination, if the Court please, in Texas.

Byron R. White:

Well, and what’s your Freedman means then?

William J. Brennan, Jr.:

What was it — the interval from the time this picture was filed with this Board until the February 18th date when the trial court entered its judgment was how many days.

Grover Hartt, Jr.:

February 18th, the picture was filed with the Board on the 9th of February, I believe.

William J. Brennan, Jr.:

So that’s nine days then from the time of filing with the Board until the trial court determination?

Grover Hartt, Jr.:

Yes sir.

William J. Brennan, Jr.:

Now, forgetting the other aspects on which you challenged —

Grover Hartt, Jr.:

Alright.

William J. Brennan, Jr.:

— the Court, as a time interval, do you think that would come within Freedman in nine days?

Grover Hartt, Jr.:

If the Court please, I would say, it would be close enough, I wouldn’t argue.

William J. Brennan, Jr.:

Yes.

So, on the time then your real complain I gather is that it then took upwards to better than eight months —

Grover Hartt, Jr.:

Yes sir.

William J. Brennan, Jr.:

— before the appellate process was completed.

Grover Hartt, Jr.:

That is true.

William J. Brennan, Jr.:

Now, do you find anything in Freedman that purports to say the states that they must so order their appellate processes as to give appellate review in these cases on a priority basis?

Grover Hartt, Jr.:

I would think so, if the Court please.

William J. Brennan, Jr.:

Was there any thing in Freedman that says that?

Grover Hartt, Jr.:

I would think so.

Toward the end of the opinion, this Court did not only used words idly —

William J. Brennan, Jr.:

Well, I used it

Grover Hartt, Jr.:

— and I understand that.

But from final, the word “final” that came in here was expelled out.

Also, the opinion states to avoid the danger of an interim and possibly erroneous denial of a license.

Now, an interim is possibly erroneous denial of a license is exactly what may have happened to us here in Judge Taft’s decision at the trial level.

But this term final judicial determination was understood by Maryland to advance and require an amendment of its statute which is done, that’s reported in Trans-Lux that is cited in my brief.

Now, —

Byron R. White:

Well, what if —

Grover Hartt, Jr.:

If I may —

Byron R. White:

— would you say that — could the Texas just say there will be no appeals at all under these cases from the trial court decision?

Grover Hartt, Jr.:

Well, they could but we have the unique situation, Your Honor.

The legislature was in session in 1967, when Freedman came out, they did nothing.

But in 1967, they were in session again and on page 17 of my brief we have been managing general insurance agent site.

And that thing gives the priority to an insurance salesman’s license.

The likes of which the First Amendment should get, it goes to the first docket at the trial court, the Court of Civil Appeals and the Supreme Court of Texas —

William J. Brennan, Jr.:

Well, I’m just wondering —

Grover Hartt, Jr.:

— I mean, no worries (Voice Overlap) —

William J. Brennan, Jr.:

If there is another — if there isn’t another problem involved here, on what can depend any order of this Court to the states that they must so order their appellate procedures in their highest courts as to determine appellate review in these cases before they determine anything else, capital cases or other cases that —

Grover Hartt, Jr.:

Well —

William J. Brennan, Jr.:

— how do we do that?

Grover Hartt, Jr.:

— I think it can leave Freedman as it was.

The Court there said it was not spending out the exact time but the spirit of Freedman was a prompt final judicial determination.

Potter Stewart:

And why does the City Council of Dallas doesn’t have any power whatsoever to tell the Supreme Court of Texas —

Grover Hartt, Jr.:

Well —

Potter Stewart:

— as that you lack in any case, does it?

Grover Hartt, Jr.:

The exactly true if the Court please.

But if the State of Texas is what said about in Freedman and then Maryland how or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is of course for the State of Maryland to decide.

That’s exactly true for Texas if they won’t to avail themselves this.

The legislature could give these cases the priority equivalent to what it gave to the insurance agent.

That’s all we’re asking for from this — when state policy gives the priority an insurance agent’s license and it literally gives to the head of everything throughout the state.

Potter Stewart:

Of course the Freedman case involved, did it not, the denial of a license to exhibit the movie?

Grover Hartt, Jr.:

Yes sir.

Potter Stewart:

This case is not at all, is it?

(Voice Overlap) exhibit this movie and play it everyday for six months in Dallas ground out your projectors 24 hours a day as far as I know if you just put on it not suitable for children.

Grover Hartt, Jr.:

Well, if you put on it not suitable for children and we define a young person and define what they are in the broad principle as I mentioned earlier if the Court please.

In the broad principle, what is the difference between not suitable for 18 and not suitable for 16?

If I were to judge by standard or ask anyone else to how would I sensibly measure a difference and consider this book would pass for 18 but this book would not pass for 16.

Potter Stewart:

Well, there’s some arbitrary about every age limit, how much differences there in voting between somebody who’s 20 years and 11 months and 29 days and somebody who has a day older and yet that makes a four-year difference and when he can vote in a presidential election.

Grover Hartt, Jr.:

That is true if the Court please.

I certainly agree with that but we’re not called upon as we understand this is so restricted because —

Potter Stewart:

And this Court has never held that there was anything wrong about that 18-year-old evidence as ordinance, has it?

Grover Hartt, Jr.:

No.

They may —

Potter Stewart:

I don’t quite see the relevance of your question, your hypothetical question.

Grover Hartt, Jr.:

Well, the relevance —

Potter Stewart:

In between in 18 and a 16-year-old cut off date.

This Court has never held that there’s anything wrong with the 18.

Grover Hartt, Jr.:

We say that relevance is this, if the Court please, we come to a relevant item because the City of Dallas set out to come under your clear-and-present-danger doctrine for 18 year olds, and obviously people who would be in a juvenile crime group would be at the senior part of this, they fell away from the 18 standard and went to 16.

16 is a little more appealing, but if we sustain this preset which they’re holding for here, then we can immediately find 18, 19, or whatever age on up unto 21.

In the broad principle until there is some showing, we submit that it is time for — enough to prove this before and to prove for example if there is such proof that this causes this crime way where there are some reason for restraint, but until that is done a presumption in favor of free speech.

That’s what we’re asking.

Potter Stewart:

Well, of course the First Amendment, I suppose, philosophically you would agree depends and grows from the concept of free choice.

Anybody is free to say or print what he wants and anybody is free to listen or to read what he wants.

Grover Hartt, Jr.:

Yes sir.

Potter Stewart:

And free choice, I suppose, is that philosophy is on the premise of the capacity to make free choice to make choices.

And I suppose you and I would both agree that a child of 18 months doesn’t have that capacity, wouldn’t he?

Grover Hartt, Jr.:

Certainly sir.

Potter Stewart:

So there must be some period at which the First Amendment is no longer —

Grover Hartt, Jr.:

Well —

Potter Stewart:

— so long this (Voice Overlap) of you argument?

Grover Hartt, Jr.:

— we, I did not come here arguing an 18-year-old child that has the right to go to the picture show by himself very obviously but I wouldn’t say —

Thurgood Marshall:

Mr. Hartt, wouldn’t you think that an 18-year-old GI from Saigon that not be corrupted by a movie.

Grover Hartt, Jr.:

I would certainly concur in that opinion, Your Honor.

Thurgood Marshall:

It could not be the reason it got —

Couldn’t that be the reason they got from —

Grover Hartt, Jr.:

Yes.

Thurgood Marshall:

18 to 16?

Grover Hartt, Jr.:

That is certainly one of the big reasons obviously.

Thurgood Marshall:

Well, —

Grover Hartt, Jr.:

I mean —

Thurgood Marshall:

— in this question of time, do you take the position that the State of Texas in order to uphold this ordinance must get precedent to your case over a speedy trial in Murdock?

Grover Hartt, Jr.:

Yes sir.

In the sense, I would say —

Thurgood Marshall:

Why?

Grover Hartt, Jr.:

Well, for this simple reason.

Thurgood Marshall:

I think I read somebody’s speedy trial in a certain constitution?

Grover Hartt, Jr.:

Yes sir and I read that —

Thurgood Marshall:

This is not in the Constitution

Grover Hartt, Jr.:

I read — I have read that that is if I understand it correctly that concept is written into a prompt final judicial determination here.

Now, I must say Mr.–

Thurgood Marshall:

What is the final judicial determination?

Didn’t you get a final judgment in the trial court?

Grover Hartt, Jr.:

We’ll, we’ve got a judgment —

Thurgood Marshall:

(Voice Overlap) the final judgment?

Grover Hartt, Jr.:

But that is not the final judgment as we understand —

Thurgood Marshall:

What’s your final judgment?

Grover Hartt, Jr.:

It was an appealable judgment, in that sense, the final, yes.

Thurgood Marshall:

And it had to be final.

Grover Hartt, Jr.:

It was final in that sense.

But at the same time, when they spoke of the appellate judgment in the Maryland case of 1956, if the Court please, we understood that to mean both trial and appellate when they have said six months for trial in appellate —

Thurgood Marshall:

But in today, isn’t it an eight-month determination by the highest court of the states speedy?

Grover Hartt, Jr.:

I would think it is tremendous if the Court please.

Byron R. White:

This is final then either then in your term, is it?

Grover Hartt, Jr.:

Well, I think that Freedman given a reason and interpretation means that —

Byron R. White:

Well, how can you cut it off the State Supreme Court if you’re going to cut the appellate process?

Grover Hartt, Jr.:

You don’t cut it off there, but you have to review there.

Byron R. White:

Well, I know but you aren’t through yet.

Potter Stewart:

You’re up here now.

Grover Hartt, Jr.:

That is true.

But the determination —

William J. Brennan, Jr.:

Well, may I ask this Mr. Hartt?

Grover Hartt, Jr.:

Yes sir.

William J. Brennan, Jr.:

Let’s see how this — what your approach concretely is.

Obviously, the City of Dallas could not include in any ordinance, I gather, these municipal ordinances.

Grover Hartt, Jr.:

Yes sir, it does not have —

William J. Brennan, Jr.:

And it could not have a provision that any appellate review must be within X number of months.

Grover Hartt, Jr.:

That’s true.

William J. Brennan, Jr.:

It couldn’t be done that.

So what you’re saying, I gather, is that this ordinance we should say must be inoperative, however otherwise, it maybe constitutional.

It must be declared completely inoperative unless and until the legislature of the State of Texas —

Grover Hartt, Jr.:

Yes sir.

William J. Brennan, Jr.:

— says that any judgment under this ordinance must be reviewed and finally determined by the Supreme Court of Texas within some specified period.

Grover Hartt, Jr.:

Reasonable time.

Abe Fortas:

Well, anyway isn’t that a difference in good sense between the way one would look at Freedman in terms of a total suppression or something, in a way one would look at Freedman in terms of an ordinance.

It says that children can’t be allowed to view this.

Isn’t there qualitative difference there?

Even if you assume, isn’t it conceivable that you could have an arrangement that might offend Freedman if it were total suppression do you see?

In one hand, but would not offend Freedman if it were suppression that was confined to excluding children?

William J. Brennan, Jr.:

Your Honor, I frankly don’t think that you can consistently do it.

I personally don’t know.

Well let’s —

Hugo L. Black:

Suppose this ordinance —

Grover Hartt, Jr.:

I beg your pardon, Your Honor.

Hugo L. Black:

Suppose this ordinance that you provided instead of the effect that it does, it’s something that deals, no parent in Texas should carry his son who is 20-and-a-half years old to see a picture that a Board in Dallas thinks is bad, what would you say about that law as to the rights of the father?

Could he be convicted criminally by taking his boy to that theatre?

Grover Hartt, Jr.:

Oh, I think he could be under that kind of an ordinance or statute, yes sir.

Hugo L. Black:

Now, do you say again it’s a valid ordinance?

Grover Hartt, Jr.:

Yes sir.

Hugo L. Black:

You would think that’s a valid ordinance?

Grover Hartt, Jr.:

No.

I say — excuse me, I understood — can he be convicted, I thought you asked me, yes he could be convicted unless you’re going to follow and say that free speech is going to prevail.

The ordinance I think has got to fall on the first —

Hugo L. Black:

But another thing comes in mind, it’s the right of the parent for the children and the right to the government for the children.

Grover Hartt, Jr.:

And also the rights of the children as the Gault case —

William J. Brennan, Jr.:

Yes, but this ordinance allows even as to this part — this motion picture, as I understand it there’s any provision in this ordinance that one under 16 may see the picture if taken to the picture by parent, guardian, wife, or spouse or something?

Grover Hartt, Jr.:

If the Court please —

Byron R. White:

16 year olds who are married can go?

Grover Hartt, Jr.:

Yes sir.

That’s the normal exception but your —

William J. Brennan, Jr.:

Well, I know.

But addressed to Mr. Justice Black’s question —

Grover Hartt, Jr.:

Well —

William J. Brennan, Jr.:

— this ordinance or am I wrong about that?

Grover Hartt, Jr.:

The technical reading of this ordinance as pointed out by Mr. Nizer yesterday makes that an affirmative defense only.

We have never —

William J. Brennan, Jr.:

In a prosecution?

Grover Hartt, Jr.:

Yes.

William J. Brennan, Jr.:

I see.

Grover Hartt, Jr.:

We have never gotten around to that part —

William J. Brennan, Jr.:

Or any other proceeding whatever that means?

Grover Hartt, Jr.:

Yes.

Yes, that’s where we were, yesterday.

William J. Brennan, Jr.:

Yes.

Hugo L. Black:

Suppose this 20-and-a-half year old man happen to be married?

Grover Hartt, Jr.:

Well, if he had his wife with him —

Hugo L. Black:

Do you think his wife would be considerate?

And she said all the words through the picture, Your Honor, I think that would be a defense.

Earl Warren:

Mr. Bickley.

N. Alex Bickley:

Mr. Chief Justice Warren and Associate Justices, may I address myself to the latest question that was just raised.

This is about the right of the parent and the right of children.

This ordinance does provide, as we read it and as we interpret it and as the city council passed, that a parent, a guardian, a husband, or wife may take a child or a young person below the age of 16 years to a movie that is designated as not acceptable for young persons.

Hugo L. Black:

It provides that now?

N. Alex Bickley:

It provides that —

Hugo L. Black:

It has the right to provide that they may take their children, why does a man have a right to provide that they shall not take their children?

N. Alex Bickley:

Mr. Justice Black, I believe Mr. Nizer stated yesterday that in his opinion they did have that right maybe to prohibit any of them from going any used as an example of pool halls which he likened to the right of assembly and he said you could prevent young persons from assembling in a pool hall.

Thurgood Marshall:

You said, you could prevent them from attending any movie.

N. Alex Bickley:

Yes, he said that.

Thurgood Marshall:

Because you couldn’t pick and choose the movie —

N. Alex Bickley:

But you could not —

Thurgood Marshall:

— that he can see?

N. Alex Bickley:

— pick and choose, this is correct.

Thurgood Marshall:

That’s what I understood you say.

N. Alex Bickley:

Alright, yes, and I — this is what I’d like to address myself to.He said but he likened it to the pool halls but he said that he would not accept the pool hall analogy because of the fact that this was based upon safety of the young person.

Now, it is with this argument that I would take disagreement because of the fact that preventing young persons from going in a pool hall is not a safety provision.

There is no danger of falling off a pool table or being injured in the pool hall.

It’s the immorality that this is actually directed to because the YMCA’s have pools in many cities and allow individuals to play young persons, to participate but under certain conditions.

Now, insofar as that applies here as to whether or not you can pick and choose, we think that actually it would be more unconstitutional not to pick and choose and it would to pick and choose for this simple reason, to prevent young persons under the age of 16 years from attending any movie would be the most blatant sort of the restriction on the freedom of speech.

Thurgood Marshall:

Mr. Bickley, what’s wrong with this picture?

N. Alex Bickley:

Mr. Justice —

William J. Brennan, Jr.:

Have you seen it by the way?

N. Alex Bickley:

Sir?

William J. Brennan, Jr.:

Have you seen it?

N. Alex Bickley:

I have seen the picture, yes sir on two or three different occasions.

Thurgood Marshall:

What’s wrong with it?

N. Alex Bickley:

Mr. Justice Marshall, let me say this about this picture, it is a marginal picture.

I must admit this to this Court and I’ll be very frank in this respect.

Thurgood Marshall:

Well, what is on the other side of the margin?

N. Alex Bickley:

As was pointed out by Reverend Masio (ph) and I agree with him in this respect, it depicts sexual promiscuity in this manner.

It shows a woman who goes and under the influence of alcohol meets three men for the first time in an evening and goes and has an evening with them on all evening escapade which is not shown, comes back in the morning with their closed pool half way off and they shout.

And she comes back and she says, “This is the life or this is the fun I have been missing”.

Thurgood Marshall:

What’s wrong with that?

N. Alex Bickley:

Well, maybe — for some maybe it’s not wrong, Mr. Chief Justice — Mr. Justice Marshall but —

Thurgood Marshall:

But for example —

N. Alex Bickley:

I apologize.

Thurgood Marshall:

— is it obscene?

N. Alex Bickley:

I apologize.

Thurgood Marshall:

Is it obscene?

N. Alex Bickley:

No sir.

It is not obscene.

Thurgood Marshall:

Well, what is it?

N. Alex Bickley:

It is implanting in the minds of the young people the thought to see the play that immorality of this sort — of this kind —

William J. Brennan, Jr.:

Is fun?

N. Alex Bickley:

— is fun and the highest form of life.

Abe Fortas:

I thought you said it was marginal —

N. Alex Bickley:

— and desirable, and useful.

Abe Fortas:

I thought you said it was marginal.

N. Alex Bickley:

I say it is marginal, yes sir.

Abe Fortas:

And is it your — is it the position of the City of Dallas that you can apply this statute in what you style marginal situations of this ordinance — on what you style marginal situations?

N. Alex Bickley:

Mr. Justice Fortas, we would prefer not to apply them the marginal situation.

Abe Fortas:

I know, I’m not asking —

N. Alex Bickley:

And —

Abe Fortas:

— what you prefer doing.

I’m asking you whether it’s your position that under this ordinance the prohibitions of this ordinance maybe applied in marginal situations.

Remember, they were talking about the First Amendment of the Constitution —

N. Alex Bickley:

I understand that and —

Abe Fortas:

— of the United States.

N. Alex Bickley:

— and this is the reason I hope to answer very carefully —

Abe Fortas:

Yes.

N. Alex Bickley:

— on this.

It is hard to determine sometimes and I think in cases of doubt —

William O. Douglas:

Well, it’s fairly easy to supply before decision that sounds marginal.

I suppose you to say that as far as the (Voice Overlap) —

N. Alex Bickley:

It was an eight to one decision.

William O. Douglas:

Eight to one?

Federal Constitution is concerned, marginal situation is exactly the kind of thing that both parties supposed to deal with.

N. Alex Bickley:

Well, Your Honor, marginal situations are the ones that make lawsuits and that’s the reason we’re before this Court.

(Voice Overlap) Federal Constitution of the United States is not before this Court or the Board of Censorship and how we felt, but we’re talking about the Constitution of the United States —

N. Alex Bickley:

That’s exactly right sir.

That’s exactly right.

William O. Douglas:

But there are nine — there are nine censors down there, there in Dallas?

N. Alex Bickley:

That is correct.

William O. Douglas:

Only nine?

N. Alex Bickley:

They are not censors —

William O. Douglas:

No?

N. Alex Bickley:

— as we refer to them Your Honor but members of the Classification Board.

William O. Douglas:

But five — five to four decision would ban one of these movies?

N. Alex Bickley:

It would actually do so.

William O. Douglas:

Yes.

N. Alex Bickley:

It would not ban it sir.

It would not prohibit it.

It merely requires a label in the advertising.

William O. Douglas:

I understand.

N. Alex Bickley:

Yes sir.

Abe Fortas:

That’s your answer to my question?

I say that’s your answer to my question?

N. Alex Bickley:

Mu anwer to your question, Your Honor, is we do not prohibit anything.

We merely say, let’s have it’s somewhat near the truth in advertising sort of situation, it’s somewhat near the situation of pick and choose if you will but give them something from which to pick and choose.

Abe Fortas:

I’m asking you the following —

N. Alex Bickley:

Yes sir.

Abe Fortas:

So, let us assume that this Board said to the city attorney or whoever its counsel is, we believe that this motion picture is marginal for purposes of application of this ordinance, for purposes of application of this ordinance.

In view of our conclusion that this is marginal, is it alright for us to go again and apply the ordinance to this picture?

I’m asking that —

N. Alex Bickley:

In —

Abe Fortas:

— our view —

N. Alex Bickley:

Yes.

Abe Fortas:

— as a matter of law.

N. Alex Bickley:

May a city attorney and may I answer you sir in an example which is a true example on the occasions in which I have before this Board actually fought with them and told them what this Court has held and what we think because of marginal situations they could not do and should not do and they have agreed to that and they have many instances, done things they did not want to do.

Personally, they disagreed with for this reason and we take this thing very seriously and for that reason we have attempted, it is true, we’ve got a situation here that may make some bad law because it is the marginal case.

But we have attempted to counsel with the Board and to work with them as officers of the Court and attempt to protect these First Amendment freedoms as best as we can but at the same time giving to the state the right to protect its young persons, if we can do that.

And we think that maybe this —

Byron R. White:

But particularly, in terms of the provisions of this ordinance, in terms of what it’s aimed that preventing young people from seeing the way you describe the scene doesn’t sound marginal in terms of the ordinance.

The ordinance supposedly attempts to keep young people from seeing precisely the kinds of things that you have said has earned this picture.

Now, what’s marginal?

What so marginal about — about these pictures because there’s only one scene in the whole picture?

N. Alex Bickley:

Yes.

Byron R. White:

Is that it?

N. Alex Bickley:

No.

No, because there are only a very few scenes in the whole picture.

Another one of the scenes that I did not described, Your Honor, was one that occurred inside the — inside the jail —

Byron R. White:

With the prisoners?

N. Alex Bickley:

One or two more.

Byron R. White:

Is this ordinance — this ordinance, the way it’s been applied or does it say on its face that a picture may be classified this way if it’s in whole or in part.

N. Alex Bickley:

It says in whole taken as a whole, using the test that has been set out by this Court, that it must be considered as a whole.

Byron R. White:

If the picture — if this picture were had a — just a repetitious, just a whole of a lot of these sort of thing that you’ve been telling us about, you wouldn’t think it would be marginal now?

N. Alex Bickley:

No, I would not think it was marginal if it — if this was the whole theme of the movie as such.

William J. Brennan, Jr.:

But here you mean it’s marginal only in the sense that applying the standard that’s taken as a whole, these few incidents may not completely colored as — as would perhaps whole series of it.

N. Alex Bickley:

This is right Your Honor.

William J. Brennan, Jr.:

Is that it?

N. Alex Bickley:

And it — it may — the standards are hard to apply as the obscenity standard is hard to apply, none of these are easy as counsel admit — and if they’re hard to draw, they’re hard to define, and for this reason it does make for a hard —

Byron R. White:

But in terms of the quality of this scene, you think it’s the kind of thing the ordinance does? But thoroughly is the kind of a thing the ordinance was attempting to reach?

N. Alex Bickley:

Mr. Justice, if you say thoroughly, the kind of thing it was entitled to —

Byron R. White:

Well I mean — let’s say it’s — it’s not a marginal?

N. Alex Bickley:

If it were not marginal I think this is one of the things that —

Byron R. White:

What happens if the scene itself in terms of quality or its content is not marginal?

N. Alex Bickley:

No, the scene by itself is not.

N. Alex Bickley:

The movie as a whole is.

Thurgood Marshall:

Is the reason that the Board did not make any findings, the reason that the Board relied on as a whole phase?

N. Alex Bickley:

Yes, the Board —

Thurgood Marshall:

That’s correct, am I not?

The Board did not give any reasons.

N. Alex Bickley:

That’s correct, they did not.

They did not.

Thurgood Marshall:

But do they ever?

N. Alex Bickley:

No, they do not write down the reasons for which they do it, Mr. Justice Marshall.

Thurgood Marshall:

Well, —

N. Alex Bickley:

They —

Thurgood Marshall:

–how can the distributor or United Artist or this Court know the reason?

N. Alex Bickley:

For which they actually did it?

Thurgood Marshall:

Yes.

N. Alex Bickley:

Well, Your Honor before this Court will be confronted with that situation it must be proven before a judicial body.

Thurgood Marshall:

Well —

N. Alex Bickley:

And the decision will have to be made there.

Thurgood Marshall:

Well, I understand only two members of the Board testified.

N. Alex Bickley:

That is correct.

Thurgood Marshall:

Or do we know now the reason that the other six voted?

N. Alex Bickley:

It is not in the record, Your Honor.

Thurgood Marshall:

Well, is there any way for us to know?

N. Alex Bickley:

Yes sir.

Thurgood Marshall:

How?

N. Alex Bickley:

I can advise you, but this is the only way.

Thurgood Marshall:

But that would be hearsay rule, isn’t it?

N. Alex Bickley:

Sir.

Thurgood Marshall:

That would be hearsay rule.

N. Alex Bickley:

Yes, it would be hearsay.

It would be hearsay.

N. Alex Bickley:

And I say for that reason it’s not in the record and it does not show.

But this is the immaterial to a situation like this because of the fact that judge has to make a decision on a trial de novo.

William J. Brennan, Jr.:

But he gave no reasons either, did he?

N. Alex Bickley:

He gave no reasons at that particular time.

No he did not accept (Voice Overlap) —

William J. Brennan, Jr.:

Isn’t this the case where the judge brought in from some outlying county?

N. Alex Bickley:

The judge came in from an outlying county.

William J. Brennan, Jr.:

And then —

N. Alex Bickley:

Yes sir.

William J. Brennan, Jr.:

And he’s the one who said, “I’ve got too much work back at my — back at home to be fussing around with this, it’s enough and let it go”, wasn’t that it?

N. Alex Bickley:

No, that’s not quite it, Your Honor.

William J. Brennan, Jr.:

The record certainly reads like that, they tried very hard to get them the status — to make some findings of fact then he refused to make any.

N. Alex Bickley:

That’s correct, (Voice Overlap) he refused to make findings of fact as such and he did not make them.

He did view the movie.

He did listen to the testimony.

He did listen to argument of counsel and he did then make a decision that —

Byron R. White:

When he had the standards of the statute before him?

N. Alex Bickley:

He had the standards of a statute, he had briefs of counsel, he had all of the consideration that counsel could give him and all of the advice and the argument that either of us could give to him at that time.

William J. Brennan, Jr.:

Well, here’s what he said, “I decline when I asked.

I have so many irons for little fellow.

I have taken on more than I can do trying to decide a big case here and I’ve got others at home and here and then Hill County where I have been helping out.

I don’t have the time to do it, I decline.”

That’s what he said.

N. Alex Bickley:

That’s exactly what he said Your Honor.

But we had been arguing with him for quite some time before he said this, and had been presenting ideas back and forth very freely.

William J. Brennan, Jr.:

Well, is this — is this the one then?

“I realize you gentlemen might be right”, I guess he was talking to interstate counsel.

N. Alex Bickley:

Yes, he was.

William J. Brennan, Jr.:

“There are two or three features in this picture that look to me would be unsuitable to young people, actually they have tried to track that Freedman case looks like in this ordinance and if any ordinance can be passed where it looks like they have taken every ground to pass whether one can be valid, this is valid”.

That’s what it was.

N. Alex Bickley:

Well, I think he tried to follow the law as best he could understand it.

Byron R. White:

There is something to what you say.

Hugo L. Black:

Do you think anybody can understand it?

N. Alex Bickley:

Yes.

Sir, I’m — I’m not really sure of what the understanding is when we get in these nebulous fields, they’re hard, and they are difficult.

And so we are all trying to approach that thing which gives the rights of both parties proper precedent.

Can you tell me (Voice Overlap) how many movies have come to this Board a year (Inaudible)?

N. Alex Bickley:

Yes sir.

Between January 14th of 1966 and January 10th of 1968, there were 1925 movies submitted to the Board.

Of that number, 565 of them were classified as not suitable by the exhibitor himself.

He asked for that classification to be put on.

39 were classified as not suitable after screening by the Board itself and of the movies classified suitable, 1226 of them were classified suitable as submitted by the exhibitor and 59 of them were classified suitable after screening by the Committee and by the Classification Board.

Are those figures in your brief?

N. Alex Bickley:

Those figures are not in the brief sir.

Those figures are just of recent vantage.

They — actually we got those on January 10th, 1968.

We would like to submit them to the Court for their consideration in the record.

Thank you.

Hugo L. Black:

Do you have any idea in your experience and observation with the Board, how many would’ve been held bad?

And hadn’t been for lawyers like you to tell them this Court, there, in the First Amendment protected a lot of large motion pictures, do you think it would have been anything like a smaller number?

N. Alex Bickley:

Mr.–

Hugo L. Black:

If you just left them (Voice Overlap) —

N. Alex Bickley:

Mr. Justice Black, I’d hate to speculate with you on that particular statement, I do not know.

The Board was never on a position to tell this Court in passing the statute.

This is the first time spent — this is the first time that we ever had it.

N. Alex Bickley:

This is the first time we’ve ever had an ordinance similar to this.

(Voice Overlap) as to what the attitude of this Court would be, wouldn’t it?

N. Alex Bickley:

Not as to this.

We —

Hugo L. Black:

Now, let me —

N. Alex Bickley:

— discussed very frankly —

Hugo L. Black:

Let me correct you (Voice Overlap) —

N. Alex Bickley:

Sure.

Hugo L. Black:

I didn’t place that question, as to what you had told them about —

N. Alex Bickley:

I understand sir.

I understand.

Hugo L. Black:

Thank you.

N. Alex Bickley:

I understand.

Hugo L. Black:

What I see, have you not been warned that as a First Amendment which does protect certain kinds of pictures, can you prophesize how many more they would have barred than those they have already barred?

N. Alex Bickley:

May I answer it this way, Mr. Justice Black.

I could no more predict than I could predict without benefit of counsel how much smut and other type of things would be introduced into our system because it’s a two-way proposition.

Hugo L. Black:

I accept your answer but I am sure that you can hold and it would have been a lot more, I heard your statement about what you had told them from time to time in your argument but — how about the Constitution?

N. Alex Bickley:

It’s possible there would’ve been more sir, it’s possible.

Insofar as the speedy remedy is concerned and the final judicial determination is concerned which was being discussed just a minute ago, I’d like to discuss it in a minute.

In these words, a careful reading of the ordinance of the City of Dallas will I think convince this Court of the very onerous burden that the city accepted upon itself in order that it might provide every remedy known and every opportunity for a speedy trial and speedy judicial determination.

Now, if final judicial determination as used in the Freedman case means by the highest court of the land and without appeal, then this body itself is the one the must give precedents to all these cases because this is the final bargain.

And so I think the case certainly did not mean that.

We get a final judgment before that trial court.

We get a judgment that is final and can be appealed from.

And that is a judicial determination.

Now, as to whether or not it’s unconstitutional to require the movie industry, the exhibitors, as such to file a notice of nonacceptance before we go before that judicial tribunal.

I think this Court would not put upon us the burden of doing a vain fame because the movie industry itself does not walk the default judgment before the Court which —

William J. Brennan, Jr.:

Well —

N. Alex Bickley:

— says they tried —

William J. Brennan, Jr.:

— I think Mr. Bickley, don’t you, that that requirement of filing of notice of nonacceptance is surely inconsistent with some of the things said in the Freedman case.

N. Alex Bickley:

Said in what?

In the Freedman?

William J. Brennan, Jr.:

In Freedman.

N. Alex Bickley:

In the Freedman case?

William J. Brennan, Jr.:

Yes, isn’t it?

William J. Brennan, Jr.:

Or is it inconsistent with the emphasis that Freedman gave to the burden being upon the government to proceed to the initial determination by a judge?

Because as I understand it, the way this works if whoever suppose to file the — and it’s definitely — who may file a notice of nonacceptance besides the exhibitor?

Is it only the chap who submits the picture for classification?

N. Alex Bickley:

No, it maybe filed any exhibitor by any city.

William J. Brennan, Jr.:

Any exhibitor?

N. Alex Bickley:

In the city.

William J. Brennan, Jr.:

In a city?

N. Alex Bickley:

That’s right.

William J. Brennan, Jr.:

But would this then —

N. Alex Bickley:

And —

William J. Brennan, Jr.:

— United Artist could not file?

N. Alex Bickley:

Or United Artist — the ordinance does not say that United Artist might do so.

We would assume that since they have a financial —

William J. Brennan, Jr.:

I know but —

N. Alex Bickley:

— interest in the picture that they could do so, yes.

William J. Brennan, Jr.:

No.

Oh!

You assume it?

N. Alex Bickley:

Oh, yes.

We would accept that as a nonacceptance.

But the ordinance doesn’t say this, does it?

The ordinance does not actually say that —

Byron R. White:

Or it doesn’t say it can’t either, does it?

N. Alex Bickley:

It does not say it cannot because the only mode of speech from — with United Artist in the City of Dallas is through its exhibitor relationship.

William J. Brennan, Jr.:

But the ordinance makes the failure to file the notice of nonacceptance that makes them, what do you call this Board, Classification Board?

N. Alex Bickley:

Classification Board.

William J. Brennan, Jr.:

Determination, final doesn’t it?

Never again subject to judicial review anywhere?

N. Alex Bickley:

Yes it is.

William J. Brennan, Jr.:

How?

N. Alex Bickley:

It is again subject to judicial review if a subsequent exhibitor wants to show the same film and without the classification, he may again submit it to the Board for review and then file his notice of nonacceptance and have it tried by the Court.

William J. Brennan, Jr.:

That’s if there is another exhibitor, but suppose there isn’t any.

N. Alex Bickley:

The same exhibitor may do it.

William J. Brennan, Jr.:

You mean —

N. Alex Bickley:

If he fails to file his notice of nonacceptance —

William J. Brennan, Jr.:

He may then resubmit —

N. Alex Bickley:

— he can come in for a review.

William J. Brennan, Jr.:

You mean he can resubmit the picture?

N. Alex Bickley:

He can resubmit.

(Voice Overlap) He has given that right under the ordinance, if he so desires.

We have tried countless things with every precaution possible in a field like this.

Now —

Hugo L. Black:

Suppose he just go to him and shows the picture and doesn’t submit to the Board?

N. Alex Bickley:

If he goes ahead and shows the picture without submitting it to the Board, then under our view of the case —

Hugo L. Black:

Under the law?

N. Alex Bickley:

Under the law, under the ordinance, he has committed a misdemeanor.

Hugo L. Black:

Committed a crime if he doesn’t submit the picture for this Board to look at?

N. Alex Bickley:

If he shows it without submitting it, that’s correct sir.

That’s correct.

Hugo L. Black:

Do you say that’s not censorship?

N. Alex Bickley:

No sir, we do not think that’s censorship.

Hugo L. Black:

Well, I understood the charge to be made if he did.

I — I couldn’t quite understand it.

N. Alex Bickley:

Well, no we don’t think that’s censorship, Your Honor (Voice Overlap), we actually — actually, this was the same question that was in the Times Film case (Voice Overlap) —

William J. Brennan, Jr.:

Well, whether you call it censorship or not, certainly in Freedman, we have sustained the constitutionality of procedures like is not violating the First Amendment, as long as the procedures we specified in Freedman are followed, haven’t we?

N. Alex Bickley:

And as long —

William J. Brennan, Jr.:

It doesn’t matter whether you call it — so I think myself for this censorship where it’s a kind that —

N. Alex Bickley:

Allowable censorship maybe sir.

William J. Brennan, Jr.:

Alright, that’s what Freedman held, wasn’t it?

N. Alex Bickley:

Yes.

N. Alex Bickley:

So maybe I’m wrong in saying (Voice Overlap) —

Hugo L. Black:

Let’s get to the word —

N. Alex Bickley:

— saying it’s not censorship it —

Hugo L. Black:

Let’s get to the word in the Constitution.

It is an abridgement of the right of free speech, isn’t it?

N. Alex Bickley:

But illegal abridgement, yes sir.

Hugo L. Black:

But it is an abridgement, isn’t it?

N. Alex Bickley:

It is a possible abridgement, yes if —

Hugo L. Black:

Possible, is it a possible or is it an abridgement?

N. Alex Bickley:

Sir, it depends if the words of the Consti —

Hugo L. Black:

Did I understand it, do you say it’s — it’s not certain as an abridgement if the government, state or municipal demands that somebody before they say something or show a picture, turn it over to the law to be looked at by Board?

Do you say that leaves the question of whether it’s an abridgement of free speech?

N. Alex Bickley:

I’ll say, Your Honor, let’s assume that that is an abridgement.

I’ll say that is an abridgement of this sort.

But it depends upon whether or not the Constitution is actually —

Hugo L. Black:

Believes what it said?

N. Alex Bickley:

Well, no.

Not in that sense, sir.

Whether or not it means unfettered, unlicensed right to speak at any times under any circumstances under any condition and say what one thinks.

But I do not think that this is the interpretation that has been put upon that provision of the Constitution down through the years that there have been some abridgements that have been recognized as legal ones, as such.

Obscenity itself if the Constitution says —

Hugo L. Black:

I thought that the argument there was that that really was a speech, as just kind of exploiting words.

N. Alex Bickley:

I understand that but here again sir, is an interpretation and the clear and present danger doctrine is another interpretation that is what we’re talking about.

So we say that there are some circumstances under which free speech in some condition under which it may not be unfettered as such.

Hugo L. Black:

How does the Board or Council — how many are they?

N. Alex Bickley:

There are nine members sir and I believe at the present time, there are there alternate members.

Do they elect them?

N. Alex Bickley:

They are appointed by the city council and they are required to have certain backgrounds in art and in literature and in philosophy and this sort of thing and some wide range of backgrounds.

Are they removable?

N. Alex Bickley:

They are removable, yes sir.

By what?

N. Alex Bickley:

By the city council as such and this is the way it has actually worked.

Hugo L. Black:

What are their occupations?

N. Alex Bickley:

I beg your pardon?

Hugo L. Black:

What are their occupations?

N. Alex Bickley:

The occupations of those that are presently serving on it are a housewife, a preacher, a public relations man, a builder in construction, a real estate individual — one that is versed in real estate matters and real estate business, a writer, a writer and interpreter, and the generally this is the background of these individuals.

Hugo L. Black:

I assume then none of them have any political affiliation?

N. Alex Bickley:

No sir, they do not for this purpose.

Hugo L. Black:

What about the housewife?

N. Alex Bickley:

For this purpose.

Hugo L. Black:

What about the housewife?

N. Alex Bickley:

I do not know what are political affiliations are, I’ve never heard their expressions, because actually the Dallas system is a little different maybe and that we do not have political parties insofar as city council is concerned, it’s nonpolitical in that particular respect.

Hugo L. Black:

You just have the ins and the outs.

N. Alex Bickley:

The ins and outs, that’s right sir.

Maybe that’s political in the sense, but that’s what we actually have sir.

Abe Fortas:

All these people serve without pay, don’t they?

The members serve without pay?

N. Alex Bickley:

Without pay, sir.

Without pay and there’s quite a burden on them because when the movie submitted, it must be done within the time limit and if —

William J. Brennan, Jr.:

They see a lot of movies for nothing, don’t they?

N. Alex Bickley:

Well, they get rather tired of them Your Honor, but they do, and they take their own time and they actually see these at a time in which they are actually available to them and made so by the industry.

William J. Brennan, Jr.:

Just —

N. Alex Bickley:

Now —

William J. Brennan, Jr.:

— a matter of interest, do they have their own projection room or something?

N. Alex Bickley:

No sir, they do not have.

The industry has — has made the projection room available to them and told them at what times it will be available and they make themselves available at that time.

William J. Brennan, Jr.:

Yes, with the local theaters or something?

N. Alex Bickley:

The local theater people, yes sir.

And in their viewing rooms, they have viewing rooms in Dallas in which they view movies that come in from all parts of United States for the exhibitors themselves to view to see whether or not they want to make the contracts in these sorts of things.

So this, we realize is not in every city.

N. Alex Bickley:

Every city doesn’t have these exhibitors —

William O. Douglas:

Is this movie here for us to see?

N. Alex Bickley:

Yes sir.

The movie is available as I understand it that the industry has made it available for this Court.

Earl Warren:

How many did you say — how many movies did you say they had reviewed in a year?

N. Alex Bickley:

Your Honor, they have had submitted to them 1900.

Earl Warren:

Beg your pardon.

N. Alex Bickley:

1925 in a two-year-period.

Earl Warren:

In a two-year-period?

N. Alex Bickley:

Yes.

Earl Warren:

So they have — they have actually sat through 1900 of those of pictures, is that correct?

N. Alex Bickley:

Not actually, no sir.

They have not.

Earl Warren:

Well, how they — how do they pass on them if they haven’t seen them?

N. Alex Bickley:

Many times a movie is submitted as classified suitable for young persons.

These people all do research and background.

They get all of the information they can from the writers and from the reviewers throughout the country and submit these things, and then they consider this.

And if there’s no doubt about it and they can see no doubt about it or no indication of it, they do not actually view the movie as such.

Byron R. White:

But they don’t classify it as unsuitable without seeing it?

N. Alex Bickley:

No sir.

If they’re going to classify it as unsuitable, it must either be because the industry has said we submitted as unsuitable.

Byron R. White:

Does that happen?

N. Alex Bickley:

Your Honor, it happened in 565 out of 604 cases.

Potter Stewart:

565 out of 1925 over two-year-period I have?

N. Alex Bickley:

Yes (Voice Overlap) well, yes that is correct but of the 604 that were designated not suitable —

Potter Stewart:

Yes.

N. Alex Bickley:

— 604.

Potter Stewart:

39 by the Board and 564 by the exhibitors?

N. Alex Bickley:

That’s correct.

Supposing a movie sets by on the scene and were upon to the members of the Board viewing on Saturday night as free, to see the movie (Inaudible).

N. Alex Bickley:

Mr. Justice Harlan, you understand human nature very well, I see that because this has happened.

And when it has happened they have then gone back and asked the Board to view the movie and have told that movie industry, they’re doing it, and asked them to come in and actually present any evidence they desire to do so.

May I point out that this is an open hearing at all times.

The press is always present when they’re discussing these movies, that the exhibitor and the producer or anyone else is requested and asked to come in, submit any evidence they want to, and present any ideas they might have about these movies.

And we think that this is the way it should be.

William J. Brennan, Jr.:

Are they sometimes some of these cases are settled by the distributor or exhibitor agreeing to delete certain scenes and that sort?

N. Alex Bickley:

We have not attempted to ask the exhibitor to delete any scene.

William J. Brennan, Jr.:

Had they ever offered to do that?

N. Alex Bickley:

If so, I’m not aware of it sir.

Byron R. White:

Well, when the distributor submits a picture or an exhibitor does as the unsuitable for young persons as you say it that happened in 565 times, do they submit it as unsuitable in terms of the classification it has had in the distributor’s private organization or do they submitted as unsuitable in terms of the Dallas ordinance?

N. Alex Bickley:

Unsuitable in the terms of the Dallas ordinance.

Byron R. White:

And they want to classify that way.

I mean they don’t object to it as (Voice Overlap) —

N. Alex Bickley:

They do not object to it, as being classified that way.

Now, I realize and let me be the first to say that counsel may say, well, this is under threat and I realize when the ordinance said there is some possibility of that and there would not.

I don’t think these many would’ve been submitted by the industry itself if there been no ordinance search.

Byron R. White:

No, of course not.

N. Alex Bickley:

Or if that —

Byron R. White:

There wouldn’t have been any permission at all —

N. Alex Bickley:

But —

Byron R. White:

— unless there’s an ordinance.

N. Alex Bickley:

That’s right.

And so — but at the same time I think it shows —

Byron R. White:

At least in 565 times the industry said that we just don’t want to litigate it.

N. Alex Bickley:

Well, I think it’s more than this.

Byron R. White:

May I ask — what?

N. Alex Bickley:

I think it’s more than this, more than just saying we don’t want to litigate.

I think that actually it’s also saying that we recognize that these under this ordinance are not suitable.

Byron R. White:

In terms of the —

Hugo L. Black:

Now, what do they offer to —

N. Alex Bickley:

I beg your —

Hugo L. Black:

If they think it’s not suitable, why wouldn’t they just not use them if that’s here?

N. Alex Bickley:

Well, Your Honor, there’s still profit in one whether it’s not suitable or whether it is suitable.

Hugo L. Black:

But, once they offer it to the Board and say it, “We want to show it but we recognize and come to you and tell you it’s not suitable for the young persons.”

I don’t understand that procedure, why they wouldn’t do it?

N. Alex Bickley:

I’m sorry.

I don’t understand Mr. Justice Black —

Hugo L. Black:

What I understand is when the exhibitors want to exhibit a picture, comes up and says, “Now, here I’m submitting to this Board, for examination, look at this picture, I myself do not think I want to offer it.

It should not be shown.”

N. Alex Bickley:

No, no.

Hugo L. Black:

It’s a bad picture to show.

N. Alex Bickley:

No, no.

No —

Hugo L. Black:

But we’re going to offer it to you.

Why don’t they do that?

N. Alex Bickley:

No.

Your Honor, this is not the way it works.

They submit it as not suitable and say we request permission —

William J. Brennan, Jr.:

Not suitable for children?

N. Alex Bickley:

Not suitable for young persons.

William J. Brennan, Jr.:

And we are willing to exhibit it in Dallas with the label on it in our advertising not suitable for children under the ordinance.

N. Alex Bickley:

That’s correct.

And in the case —

Byron R. White:

And not to sell tickets to children?

N. Alex Bickley:

That’s correct.

We have complied with the ordinance so far as this movie is concerned, and in that case, the Board itself does not actually see the movie.

The Board itself does not actually do other than to accept the classification that’s put on it by the movie industry itself.

Hugo L. Black:

What you’re saying is, isn’t in that idea meeting their consideration, they would be satisfied to have this picture exhibited by — with the statement that we don’t think it’s suitable for children, but that wouldn’t be good to be saying — it is going to enter into a legal agreement, somebody could be tried if a child went, is it?

N. Alex Bickley:

Your Honor, I think this — I think if a —

Byron R. White:

Well, the Board entered (Voice Overlap) —

N. Alex Bickley:

— the Board had acted on it which they do in those cases and had acted on it.

And then they submitted this classification and then they did allow children to come and view it without their parent or guardian or husband or wife, yes, I think under the ordinance they could be prosecuted in the corporation courts, with the fine up to $200, this is the limits of the penalty involved in the case.

Earl Warren:

Do they’ve got larger ordinances where they say not suitable for children?

N. Alex Bickley:

You say, are there larger ordinances?

Earl Warren:

Well, do they get — do the motion picture operators get bigger crowds when they say this is not suitable for children.

N. Alex Bickley:

Mr. Chief Justice Warren, just last Saturday — last Friday, I received the phone call that told me that this was a fact.

I do not know it to be so, that sometimes this brings in more crowds and more profit than without.

I can’t — I can’t actually substantiate it one way or the other.

I would say this so, I’d say that the social opprobrium referred to by counsel does not attach to a label such as this.

It is not indirect censorship as he refers to in that particular manner and I would cite for an example, if I might, something that’s well known to all of us and that is the bars where liquor is served and the fact that young people are not admitted to those, certainly does not prevent many people patronizing those bars.

We do not think that there is a social opprobrium attached to this thing.

Hugo L. Black:

Am I wrong in thinking that there’s nothing in the Constitution that protects the sale of liquor such as there is to protect freedom of speech.

N. Alex Bickley:

I think you’re right Mr. Justice Black.

I think you’re right.

William J. Brennan, Jr.:

Mr. Bickley, I gather this under 18 ordinance, municipal ordinance, that’s been repealed, has it?

N. Alex Bickley:

That has been repealed, yes sir.

William J. Brennan, Jr.:

And replaced by this under 16?

N. Alex Bickley:

That is correct.

Now, I know there’s been a lot to do and made about that fact.

We hope that in the passage of the ordinance and in the actual application of it that we’re doing everything we can to make it a sensible one and actually to balance if you will in whatever sense we have to and whatever sense we need to the right to protect the young person.

Hugo L. Black:

Do you think —

N. Alex Bickley:

But at the same time give —

Hugo L. Black:

Do you think that the way a parent can and if he wants his child to see a picture, he’s 16, he can let him see it if you go with him.

But if he doesn’t go with him, it’s a criminal offense?

N. Alex Bickley:

This is correct, Your Honor.

This is correct.

Now, —

William J. Brennan, Jr.:

That’s a criminal offense only for the exhibitor?

N. Alex Bickley:

Only —

William J. Brennan, Jr.:

Not for the parent?

N. Alex Bickley:

No, only for the exhibitor.

William J. Brennan, Jr.:

Neither the parent nor the child is —

Hugo L. Black:

What about the boy that goes?

N. Alex Bickley:

There is an offense to the individual who falsifies his age or who fraudulently — fraudulently attempts to get in and does get in.

William J. Brennan, Jr.:

But of course he’s 15 and he’s asked to the cashier, I’m 15, the cashier says, go in and he goes in —

N. Alex Bickley:

Then —

William J. Brennan, Jr.:

— the boy subject to any offense?

N. Alex Bickley:

The boy is not subject to any (Voice Overlap) —

William J. Brennan, Jr.:

But the exhibitor is?

N. Alex Bickley:

The exhibitor subject to the —

Byron R. White:

Well, if the boy just walks up and buys a ticket and just sold to him no questions asked, no offense either?

N. Alex Bickley:

No, no offense in that way.

We in fact actually —

Hugo L. Black:

No offense if he goes to see it?

Without his father?

N. Alex Bickley:

No.

There’s no offense in that particular case unless he falsifies in order to see it.

Hugo L. Black:

Well, suppose he got in — suppose he doesn’t just tell it direct falsification, but that he goes up and buys ticket, he’s represented and he’s old enough to go in there.

N. Alex Bickley:

Well, this is a representation of a sort, yes sir, I admit that but —

Hugo L. Black:

And he could be charged?

N. Alex Bickley:

Not such that — it could — if he could be proven yes, it be possible but actually you cannot find a juvenile of this kind any how (Voice Overlap) —

William J. Brennan, Jr.:

Have you had any prosecutions under this one?

N. Alex Bickley:

No prosecutions.

William J. Brennan, Jr.:

Of anybody?

N. Alex Bickley:

Not of anybody.

The — I would like to state to this Court that attempting to comply with what the law is whether we like it or not that all parties have done their utmost in trying to get the thing in such a way that actually we could present it as a law question and that we could finally come out with some rules and guidelines on this new type of concept and it is a little bit new.

Under which we can operate, protect our young people if you will, but at the same time grant to all individuals all of the First Amendment freedoms that we can and that should be granted to them.

Now, this is not an easy concept.

Hugo L. Black:

You haven’t yet tried to censor any books that may have story like this what you say is bad in this particular picture.

N. Alex Bickley:

No sir, we have not —

Hugo L. Black:

(Voice Overlap) who read this?

N. Alex Bickley:

We have not concerned ourselves with books, we think here again — here again and we have a state statute on it so therefore we could not even if we so desired.

The city could not, but the state could.

But we have not concerned ourselves with it because we think this goes in to the home and here again the parent has the right to take care of his own child, the same as the TV movies that were referred a minute ago.

Hugo L. Black:

Well, why doesn’t he have the same right to take care of his child by letting him go to a movie if he wants to without going with him?

N. Alex Bickley:

For this reason we think, Your Honor, and right or wrong, we think it is a valid concept that he cannot explain to his child the difference between right and wrong or the difference between morality and immorality or sexual promiscuity and smut unless he’s there with him.

Hugo L. Black:

Oh, you expect to be that way and explain it to him as they go along?

N. Alex Bickley:

Not as they go along, Your Honor.

Not as they go along, but in order to — to actually fulfill his duty as a parent, we think that this is one of the things that should be required and we do not want to impinge on that right of the parent if we can keep from doing so and we hope that it’s not necessary —

How long is this ordinance when its 18-year-old one to 16-year-old one, I mean the total span, how long has it been enforced?

N. Alex Bickley:

Approximately it was passed first in April of 1965, there’s a first passage.

Did it get to referendum?

N. Alex Bickley:

No, it did not go to referendum and it was not necessary.

Abe Fortas:

How much does it cost you, how much does it cost a child to be admitted to this intellectual and emotional feast in the theatre there?

What’s the admission charge?

N. Alex Bickley:

Sir up until 12 years of age, I believe, it’s 60 cents or some such thing and a dollar-and-a-half afterwards, it varies.

Earl Warren:

We’ll recess now.

N. Alex Bickley:

Mr. Chief Justice Warren and Associate Justices of this Court, I would like to clear up a misstatement that I made to this Court in my argument this morning.

On page 126 of the record in the ordinance, makes it unlawful for any young person to enter or remain in the viewing room of any theater where a film classified not suitable for young person is being exhibited.

I misinformed the Court, I apologize.

William J. Brennan, Jr.:

So this means that a young person of 16 who happen to get in will be prosecuted?

N. Alex Bickley:

That is correct, Your Honor.

William J. Brennan, Jr.:

For what?

N. Alex Bickley:

He would be — he would be prosecuted for actually violating the ordinance and that’s all.

William J. Brennan, Jr.:

(Voice Overlap) but what — what’s the punishment?

N. Alex Bickley:

Well, the only punishment that can be given to a person of that age is to turn them over to move to juvenile authorities actually.

You cannot fine him.

You cannot put him in jail.

Really there’s — it’s like many of our other juvenile halls, it’s rather hard to enforce actually.

It would only be one of a number of things that would have to be proven maybe in a District Court later on to show that it was a delinquent or that maybe he was not properly taken care of by his parents and this sort of thing.

N. Alex Bickley:

But this is about all you could do in a case like that.

Earl Warren:

Suppose it’d be in a nature of truancy, wouldn’t it?

N. Alex Bickley:

Same and similar type of thing and that’s about all —

Earl Warren:

Yes.

N. Alex Bickley:

— we can do, Your Honor.

Hugo L. Black:

That also provides the punishment for anyone who knowingly permits him to view it?

N. Alex Bickley:

Knowingly permits him, that is correct and knowingly is a hard proposition but it must be proven.

It would have to be —

Hugo L. Black:

(Voice Overlap) so suppose his father permitted him knowingly.

N. Alex Bickley:

Without his presence, then his father would be actually the one that would be prosecuted in a situation like that.

William J. Brennan, Jr.:

Well, if he will be prosecuted, what’s the fine?

Potter Stewart:

Does it —

N. Alex Bickley:

Up to $200-fine.

William J. Brennan, Jr.:

No — no imprisonment?

N. Alex Bickley:

No imprisonment.

William J. Brennan, Jr.:

Then knowingly permit comes under Section 46 (a) (4) (a) which as I read it applies only to an exhibitor or his employee.

It should be unlawful for any exhibitor or his employee knowingly–

N. Alex Bickley:

That —

William J. Brennan, Jr.:

— to permit any young person to view that.

N. Alex Bickley:

That does apply to the exhibitor or his employee.

The part which applies to the father would apply to the father is over in Section (c) on page 127.

It would be a case in which he gives to a young person a ticket to go to the movie or purchase it for him and take it or some such thing as this.

Earl Warren:

I think you had there have been no prosecution of any kind under this ordinance.

N. Alex Bickley:

No, there have not, Your Honor.

The one thing I think we need to keep in mind and I reiterate to the Court is the fact that we view this as a classification ordinance and not as a censorship ordinance because there is no restraint on the content of speech as such.

The only restraint is on the audience that may actually view this content.

Hugo L. Black:

So, why wouldn’t that be censorship if I — if playing with words the Court took that, why wouldn’t that be censorship?

N. Alex Bickley:

Well —

Hugo L. Black:

First Amendment gives the right to speak and the right to hear.

N. Alex Bickley:

Yes, I understand Mr. Justice Black it does.

N. Alex Bickley:

It also gives a right of choice and in this case, no individual is prohibited from seeing it.

The conditions are the only thing — their conditions are the only thing.

Hugo L. Black:

And this condition is the right to see it.

N. Alex Bickley:

Their condition is right to see it under certain circumstances.

The same thing as we do when we talk about free speech in a parade.

A parade cannot be held at all times under all conditions when any individual, any 10,000 individuals desire to hold them because there are other freedoms and there are other rights that must be given some —

Hugo L. Black:

That– it’s quite a different thing, that’s doing something plus free speech.

N. Alex Bickley:

Well, —

Hugo L. Black:

Just marching up and down.

N. Alex Bickley:

That’s correct, Your Honor.

Hugo L. Black:

What’s the difference?

N. Alex Bickley:

Alright, may I refer to the movie theater if I might as this Court has referred to it and that’s hollering fire in the movie theater in which situation, Your Honor, I think it’s not unlimited free speech.

Hugo L. Black:

Well, he wouldn’t have a right to go in there and disturb the people.

Nobody would.

N. Alex Bickley:

Well, Your Honor —

Hugo L. Black:

Under the speech —

N. Alex Bickley:

That’s speaking when he wants to and as he wants to and under the conditions (Voice Overlap) as I see it Your Honor and it’s this — it’s this reason, I say it, this what makes hard law makes it tough and these cases are not easy, if they were.

This Court would not be having to seat on, as many as it has to, at this particular time.

But this is a time in history when I think we need to look at this type of law to see whether or not the Constitution as we know it is a document alive, if it can support a nation that not only has a past but must have a future.

Hugo L. Black:

What do you mean by that?

N. Alex Bickley:

I mean by that simply this, Your Honor, that to strictly construe and without any fetters whatsoever, this can be the sort upon which we impale ourselves rather than the sort upon which we fight for our country.

Hugo L. Black:

You mean the judges should adopt it to meet circumstances?

N. Alex Bickley:

I think it must under certain circumstances and in light of present day circumstances, just exactly what this Court did in the Robel case.

Hugo L. Black:

What’s the purpose of the written Constitution if the Court can change it?

N. Alex Bickley:

Well, Your Honor if we had any instrument that was not subject to interpretation —

Hugo L. Black:

I’m not talking about interpretation, interpretation in explaining what you think it means and it means when it came out?

N. Alex Bickley:

Yes sir, I understand.

Hugo L. Black:

It’s quite a different thing —

N. Alex Bickley:

I understand.

Hugo L. Black:

— (Voice Overlap) to take the position, that the Court should adopt it to meet circumstances of the time even though it didn’t do that as it was written.

N. Alex Bickley:

Well, Your Honor, I think this — I think that if and this is a personal opinion on my part, I think that if this is an instrument that has no latitude —

Hugo L. Black:

No what?

N. Alex Bickley:

— no latitude.

Hugo L. Black:

You mean —

N. Alex Bickley:

And —

Hugo L. Black:

— if the Court must obey as written?

N. Alex Bickley:

No Your Honor, I say if it’s an instrument that has no latitude.

Hugo L. Black:

Well, that’s what —

N. Alex Bickley:

By that I mean, it has —

Hugo L. Black:

— if it has no latitude if it’s to be construed according to its meaning —

N. Alex Bickley:

You’re right.

Hugo L. Black:

— but if it has no latitude, it’s just there and —

N. Alex Bickley:

And the —

Hugo L. Black:

— it applies, that’s the way it should be amended.

N. Alex Bickley:

And Your Honor if it’s there and if it’s there in unfettered terms like that then I have a right to disturb any meeting I want to at any time and under any circumstances.

Hugo L. Black:

Do you?

Why would you have a right to go into a church and disturb that meeting but the church own the church?

N. Alex Bickley:

Well, Your Honor under the freedom of speech, if it were an untrammeled right.

Hugo L. Black:

That’s the freedom of speech where you have a right to speak.

N. Alex Bickley:

Your Honor —

Hugo L. Black:

That’s not — that doesn’t allow you to come in here for instance and make a speech or go into a church, you can’t do that, that’s not freedom of speech.

That’s freedom to go where you please even though somebody else owns a property in our system.

N. Alex Bickley:

Well, Your Honor, then under freedom of speech I’d have a right maybe to get me a megaphone and stand outside and speak into that church —

Hugo L. Black:

Well, would you?

Why wouldn’t you?

N. Alex Bickley:

— outside, (Voice Overlap) I say you do not have that right.

Hugo L. Black:

Well, why wouldn’t you have that right?

N. Alex Bickley:

I don’t think I do.

Hugo L. Black:

Well —

N. Alex Bickley:

And I don’t think this —

Hugo L. Black:

I mean, if I —

N. Alex Bickley:

–this Court thinks I do.

Hugo L. Black:

— if I have to agree with you, then why wouldn’t you have that right?

N. Alex Bickley:

But I’m saying this is because of the enlightened interpretation that’s been put on the words in the Constitution.

Hugo L. Black:

Well, I think it’s because you follow the Constitution as it’s written.

N. Alex Bickley:

Well, I think maybe I’m not communicating properly with the Justice, but I think this is so, yes.

You’re following it as written and as written it must have the mind of men applied to it.

And I think that’s what we know.

Hugo L. Black:

The mind of men applied to it, to interpret it and enforce it as written but not to change it?

N. Alex Bickley:

No, I don’t think —

Hugo L. Black:

Why don’t judges have anymore right to change it than anybody else.

N. Alex Bickley:

Your Honor, I don’t think this Court has changed it and I don’t think this is —

Hugo L. Black:

Well, I agree with you —

N. Alex Bickley:

— a change of it.

Hugo L. Black:

— not much.

N. Alex Bickley:

And —

Thurgood Marshall:

Mr. Bickley —

N. Alex Bickley:

Yes sir.

Thurgood Marshall:

— I have great trouble with your crying fire in the crowd at theater, I think they all agree that you can’t do it.

N. Alex Bickley:

Yes sir.

Thurgood Marshall:

But if somebody does cry fire, I have a right to listen to it, don’t I?

N. Alex Bickley:

Generally, (Voice Overlap), it’s advisable to listen Mr. Chief — Justice in these circumstances.

Thurgood Marshall:

Well, this —

N. Alex Bickley:

You do have a right (Voice Overlap) —

Thurgood Marshall:

— (Voice Overlap) somebody to look at something.

N. Alex Bickley:

You do have a right to listen to it, that’s correct because —

Thurgood Marshall:

In this case we have the right to look at the movie.

N. Alex Bickley:

Everybody has a right to look at it.

Thurgood Marshall:

Not an unescorted child under 16.

N. Alex Bickley:

Not an unescorted child under 16, that’s correct.

Thurgood Marshall:

So —

N. Alex Bickley:

— neither does an unescorted child under 16 have a right to make many other choices.

Your Honor, may I cite one for example.

Thurgood Marshall:

I’m listening.

N. Alex Bickley:

As this Court has held in the case of the inoculations given to the children at school even though it’s against his religion.

The child has no right to make the choice.

Thurgood Marshall:

Well, at this — I don’t know whether the parent could make this choice.

N. Alex Bickley:

The parent can’t even make that choice, Your Honor.

So, I’m saying that that are —

Thurgood Marshall:

Well, let me see how you get that over into this case.

This case is a picture that you aren’t banning, you’re just restricting —

N. Alex Bickley:

That’s correct.

Thurgood Marshall:

— the right of people to see it.

N. Alex Bickley:

That’s correct.

Thurgood Marshall:

And it’s done without any given reason at all.

N. Alex Bickley:

Your Honor, it’s correct.

They — the Board has not given a written reason as to why.

They have done it under the confines of the ordinance.

Thurgood Marshall:

How do I know that?

I take their word for it.

N. Alex Bickley:

Well, yes in that particular situation, the same as — as when a court quite often makes a decision without giving all of the reasons for it and none of our District Courts —

Thurgood Marshall:

Now, let’s get our answers correct.

You said without giving all of the reasons?

N. Alex Bickley:

That’s right.

Thurgood Marshall:

But in this case they didn’t give any reason.

N. Alex Bickley:

That’s correct, Your Honor, except they said that we — the Court actually said that he thinks we were entitled to an injunction on the law.

Thurgood Marshall:

No, I’m talking about the Board itself.

N. Alex Bickley:

The Board itself gave no written reason.

And the only reasons given were those that were given in the Court by two members of the Board, you’re correct Your Honor.

Thurgood Marshall:

I have a great trouble —

N. Alex Bickley:

And this is maybe — this is maybe something that should be more closely drawn as you actually said in the Robel case when you’re trying to decide between the validities of the two things, the legislative power on one hand and the individual rights on the other.

Maybe you draw a narrow line and maybe this is one of the lines we missed, we tried not to but it’s possible.

And certainly we understand the intent of it.

Earl Warren:

Mr. Bickley, I’m just wondering if it isn’t — but then the situation where neither the Board nor the Court makes any findings.

Now, I suppose you have four of your board members think that one scene in the picture takes it and the other five of it, don’t think that one does but they do think another scene affects it, but they just put them together and say, “Well, it’s bad”.

And then they go to the Court and the Court thinks well maybe the first one is alright, but the second one is wrong.

Now, has the Court passed on anything that we should reach?

N. Alex Bickley:

I don’t understand the —

Earl Warren:

Well, I mean —

N. Alex Bickley:

— Mr. Chief Justice question at length —

Earl Warren:

I mean that, is there any — is there any basis for us determining whether they acted rationally or lawfully in what they did —

N. Alex Bickley:

Oh!

Yes sir.

Earl Warren:

— when it comes to us?

What — what is it we act upon?

N. Alex Bickley:

Yes sir, I think there is.

Earl Warren:

You mean because the Supreme Court of the state guessed from — from what the trial court decided and the Board decided made it bad?

N. Alex Bickley:

No, I don’t think that —

Earl Warren:

What does?

N. Alex Bickley:

— Mr. Chief Justice.

But I think the thing that this Court has to act though is the evidence that was presented, the ordinance itself in the face of the Constitution and the writings of this Court that they have every opportunity on earth to determine whether or not that the ordinance itself is valid and whether it’s properly drawn.

Now, as to its application to this particular movie, I would assume that this Court as it has in some other situations I understand, may would want to see the movie itself to see whether or not it was properly applied because as I understand it, you must make that final decision.

Earl Warren:

But without any findings in the courts below to support us?

N. Alex Bickley:

I think there are findings Your Honor.

In the Court of Civil Appeals opinion, the Court was very explicit in saying what they based their decision on.

And this was a matter that went up to the Supreme Court of the State of Texas.

Supreme Court of the State of Texas in (Inaudible) would simply meant that they didn’t agree with everything but they thought they reached a right conclusion and it was a upon — it’s on this record that it comes to this Court then and the final arbiter as to whether or not this movie meets the standards.

William J. Brennan, Jr.:

Well, Mr. Bickley against what standard are we to test our view of this motion picture?

N. Alex Bickley:

I think from a standard in the ordinance if the Court finds it as a constitutional standard which we think it is.

William J. Brennan, Jr.:

In other words, we’re not going to test it against any standard of obscenity?

N. Alex Bickley:

I don’t think it is a complete obscenity question Your Honor.

William J. Brennan, Jr.:

Well, –whenever.

N. Alex Bickley:

I think —

William J. Brennan, Jr.:

— we have viewed motion pictures before, it has been in the context of an argument that motion picture is not obscene within the definition of obscenity that the Court has fashioned.

N. Alex Bickley:

That is correct, Your Honor.

William J. Brennan, Jr.:

That is not the way we’d —

N. Alex Bickley:

No.

William J. Brennan, Jr.:

— look at this.

Well, now how can we know, what are we to take, out 47 different standards or something in this ordinance, some about Mr. Nizer said there were great number?

Are we to test to see whether it complies with anyone as we view what the standard means without your courts telling us what it means or without the Board telling us which of the several standards would apply when it —

N. Alex Bickley:

It’s possible —

William J. Brennan, Jr.:

— passed by this?

N. Alex Bickley:

It’s possible Mr. Justice Brennan that the Courts were remised in this respect —

William J. Brennan, Jr.:

Oh, remised but —

N. Alex Bickley:

And it — and I think — what I think this Court —

William J. Brennan, Jr.:

But have a little sympathy for our shore —

N. Alex Bickley:

I do have.

William J. Brennan, Jr.:

— well, what are we — well, what are we going to do?

We don’t know what under which this was classified, do we, because we haven’t been told —

Byron R. White:

Well, the way you put it though, there’s not even a federal — we wouldn’t even be dealing with the federal question, you said once you decide the statute’s constitutional, you just apply the ordinance, that is just a state law question and why we would even be concerned with it at all.

Should we really be concerned of whether the ordinance is valid on its face and if so —

N. Alex Bickley:

Yes.

Byron R. White:

— has it been constitutionally —

N. Alex Bickley:

— derived —

Byron R. White:

— applied in this case.

Now it doesn’t make —

N. Alex Bickley:

Yes.

Byron R. White:

— any difference to you, I take it, whether the Court approaches this case is saying that you may — that perhaps the First Amendment allows the state to restrict the access of children to non-obscene matter or whether obscenity is applied to children simply has a different meaning.

Do you care — would you care if the Court whether you call this obscenity or not you, you don’t see how you would care if the Court says — if the Court says, “Well this is an obscenity case, It’s a question of —

N. Alex Bickley:

I would get —

Byron R. White:

— of the question of obscenity for children.

N. Alex Bickley:

Mr. Justice White, I would hope the Court would do what it has indicated and maybe on one occasion and that is that that material that is harmful to children or that can create problems with children maybe ought to be included in the definition of obscenity.

If this is what you’re talking about then I’m — I certainly can agree with the Court if we’re talking about a definition similar to obscenity for adults and with all of the requirements that it has there, I think it will not —

Byron R. White:

But this —

N. Alex Bickley:

— meet the end that it must meet.

Byron R. White:

In this particular case as you view, you’ve seen this picture, it’s — it’s the invitation to sexual promiscuity that makes — that raises the question about —

N. Alex Bickley:

Yes.

Byron R. White:

— this picture?

N. Alex Bickley:

That’s correct.

Byron R. White:

And that is in the obscenity feel, I take it?

N. Alex Bickley:

That is correct, sir.

That is correct.

Potter Stewart:

Well, I suppose you would say — I suppose at least partly respectable argument could be made that under the United States Constitution, a state or a municipality would be constitutionally free to say that no children under 16 could go to any movies at all say after 8 P.M. unless accompanied by their parents or could say that no children under 16 could go to movies unless accompanied by their parents that the Board had expressed an opinion about were unsuitable for children based on — maybe the Board might say that all we want to children to see in our community are Snow White and the Seven Dwarfs.

Quite without reference to obscenity is what I’m trying to say.

N. Alex Bickley:

Yes, I understand.

Potter Stewart:

Isn’t that your real (Voice Overlap) —

N. Alex Bickley:

What we’re referring to —

Potter Stewart:

— that our obscenity cases are not truly relevant to this case, isn’t that what you’re trying —

N. Alex Bickley:

That is correct, Your Honor.

That is correct, that they are not truly relevant to this problem and —

Potter Stewart:

Yes.

N. Alex Bickley:

— to the thing that must be taken into consideration in this case.

Potter Stewart:

Yes.

Earl Warren:

Well, what are the limitations on the Board then in determining what is good for children and what isn’t?

If obscenity isn’t the test, obscenity as it applies to children is not the test, what test is there for the Board?

N. Alex Bickley:

Your Honor, we have attempted to establish a test in the ordinance whether or not it’s constitutional is of course a question that is —

Earl Warren:

Yes.

N. Alex Bickley:

— now being presented.

Byron R. White:

Or you heard —

Earl Warren:

Could he answer that please?

Byron R. White:

Oh!

Excuse me.

N. Alex Bickley:

And to determine what the test should be, we’re trying to apply of the law we can muster to try to arrive at this and —

Earl Warren:

And what you have mustered, that’s what I —

N. Alex Bickley:

Well, the only thing we been able to muster at this point are the indications by this Court that this is a special problem and a legitimate interest of the state and that is the protection of its young people.

Earl Warren:

Confined within the Senate.

N. Alex Bickley:

And then in the context — yes, in the context of the obscenity cases for adults, then we’ve tried to adapt it over as best as we can and without going too far we hope in this respect.

Now, to do that is just as hard as it is to define obscenity as such and to determine what is obscenity?

We know this and for that reason maybe inaptly sometimes we have expressed it.

I cannot answer with certain definiteness the Mr. Chief Justice’s question because I’m not sure that it can be answered as a definite factor.

I hope that we can get guidelines in which we can reach more definiteness.

William J. Brennan, Jr.:

Well, Mr. Bickley, I — it’s like asking you so many questions — but when you say you drew on something this Court said, are you — do you have reference to what — in opinion in Jacobellis said on this subject?

Is that what you think (Voice Overlap) —

N. Alex Bickley:

We are — we’re hoping that we had properly interpreted.

William J. Brennan, Jr.:

No, but when you said that there was something that this Court said —

N. Alex Bickley:

Yes, what this Court —

William J. Brennan, Jr.:

— you’re speaking of what was said in Jacobellis?

N. Alex Bickley:

In Jacobellis, yes.

William J. Brennan, Jr.:

Well now, that of course was in the context of obscenity.

N. Alex Bickley:

That is correct.

That is correct, Your Honor.

William J. Brennan, Jr.:

But I thought you just said and answered —

N. Alex Bickley:

And —

William J. Brennan, Jr.:

— Mr. Justice Stewart that you’re trying to reach for something beyond —

N. Alex Bickley:

Yes.

William J. Brennan, Jr.:

— the context of obscenity.

N. Alex Bickley:

And we’re trying to move it from the obscenity for adults over to the protection of children without doing violence to the First Amendment as best we can.

William J. Brennan, Jr.:

But getting beyond the obscenity area?

N. Alex Bickley:

Your Honor, we’ve talked about obscenity here and if we’re talking about obscenity as it can be defined so far as it concerns children and we think that this is generally what we’ve done in this ordinance then we have no quarrel with that.

No quarrel with that.

William J. Brennan, Jr.:

Do you think what you’ve generally done really is focus on obscenity in the context of exhibition to children —

N. Alex Bickley:

Of exhibition —

William J. Brennan, Jr.:

— is that it?

N. Alex Bickley:

— to those below the age of 16 years.

This was the same thing that Mr. Justice Hughes in the Federal District Court and the Circuit Court in New Orleans said the due obscenity rules if applied to this statute would be proper.

Earl Warren:

Mr. Nizer?

Louis Nizer:

Thank you, sir.

The standards which this ordinance sets forth have in many areas already been rejected by this Court.

It might be worth the moment to look at the standards themselves.

In determining that a picture is not suitable for children, the Board must first determine whether the picture describes or portrays brutality, criminal violence or depravity or nudity or sexual promiscuity or extramarital or abnormal sex relations.

Second, if the picture describes any of these phenomena, the Board must determine whether the portrayal is such that it is likely “to insight or encourage” crime or delinquency or actual promiscuity in the part of the young persons.

Third, in determining whether it is likely to insight or encourage crime, delinquency and so on, the Board must determine whether there is in its judgment “a substantial probability that it will create an impression on young persons that such conduct is profitable, desirable, acceptable, respectable, trustworthy and commonly accepted.”

Now, identical of similar standards have been condemned by this Court and other courts as too vague to satisfy constitutional guarantees.

For example, “sexual immorality” People against Bookcase; “prejudicial to the best interest of the people”, the Gelling case; “Creating a harmful impression on the minds of children”, Paramount against Chicago stricken out; “Sexual immorality is desirable, acceptable, or improper patterns of behavior”, Kingsley stricken out, and some of these cases of course have dealt with the protection of children.

That doctrine that there may be variable obscenity has never been extended to mean that there can be variable vagueness and this statute is void and defective completely because of vagueness.

Just two or three other brief points, it has been suggested here for the first time that my client United Artist may protest and has standing before this Court.

That is not so at page 128 of the record without reading it subdivision 7, only in exhibitor may file a notice of nonacceptance, not a distributor and indeed the exhibitors as this Court has observed takes little to deter the exhibitor from going to this kind of a contest and that one occasion we’ve even had to threaten to sue the exhibitors so we’ve filed as nonacceptance so we could get an intervening application.

Second, with respect to the —

Byron R. White:

Mr. Nizer, to what extent had distributors participated and submit in these voluntary submissions?

Louis Nizer:

None at all.

And we have protested against them in many instances and we have no standing before the Board.

Byron R. White:

Do you know how often the — how often the — let’s say in the 565 submissions that unsuitable, how often those 565 correspondent with the distributor’s classification of their own (Voice Overlap) —

Louis Nizer:

In very few, if any though I have not the statistics before me but I will go further Mr. Justice White.

The exhibitor has yielded against his will in these matters.

There is this matter of fighting the authorities of a community in which you live and depend upon the good will of it and this very existence of this ordinance is itself a suppression.

There would not have been 39 overrulings in the exhibitors who’s finally saying this is alright with me when he submits a specific request for a suitable classification and it’s overruled, and he says let’s go along because he doesn’t want to spend the money for counsel to come up here.

One other observation about the Freedman case which I think we owe to Your Honor, a candid statement about it.

We don’t think that the Freedman case has been complied within consequently, this statute is void in any event in this application to the reasons I have given that you can have a complete final determination without any judicial participation here.

But I would — I think we owe to this Court to be candid to say that the motion picture industry has never been able to adjust itself to the proposition that while other medias such as magazines, newspapers, television even comic books may not be restrained by prior consideration, prior submission that we cannot share that sunshine and that we stand in the shadow of a five to four decision which says that we alone, the motion picture industry comes into a special category.

We would therefore respectfully suggest now that this has demonstrated the ineffectualness of the Freedman case in attempting to modify the effects of the Times case that if we went on the cause —

William J. Brennan, Jr.:

Excuse me, the Freedman was not five to four.

Maybe it was seven —

Louis Nizer:

No, the Times case was five to four.

That’s the one that —

William J. Brennan, Jr.:

The Freedman is the one that’s settled, isn’t it?

The proposition that there are distinctions which justify the measure of prior restraints with Freedman sanction —

Louis Nizer:

I think it was —

William J. Brennan, Jr.:

That — that was not a five to four decision.

Louis Nizer:

No, not that.

The Times case which puts the motion picture industry in the special category was and I merely observed that I think while the Freedman case was an admirable effort to avoid the abuse by these judicial requirements that nevertheless it hasn’t worked.

Well, here we are on Viva Maria, if Your Honor if you see that picture you’ll be shock that this picture could be caught in that kind of a net when it was intended for something else and next day it will be something else and then it will be as I’ve indicated a proliferation of these ordinances.

I wish to observe that while it is true that in this case there’s no salary to these people, that in most of these proposals, they not only receives salaries but there is a fee for submitting the picture for their examination and you get the entire bureaucracy imposed upon this.

And I think that this will cause a great flood of this kind of case whereas if we — if in dealing with this difficult question, if we subjected the restraint to at least to penal provisions or at most injunction and declaratory judgment with all the safeguards for a defendant with the presumption of innocence and beyond the reasonable doubt, then I think this perhaps might be held in control.

And the penal statute would get after the man that should get after some case where somebody is really trying to overstep the bounds of sensibilities of the American people.

This is not this case at all.

It doesn’t even come up on obscenity.