Interstate Circuit, Inc. v. City of Dallas

PETITIONER:Interstate Circuit, Inc.
RESPONDENT:City of Dallas

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

CITATION: 390 US 676 (1968)
ARGUED: Jan 15, 1968 / Jan 16, 1968
DECIDED: Apr 22, 1968

Facts of the case


  • Oral Argument – January 16, 1968
  • Audio Transcription for Oral Argument – January 16, 1968 in Interstate Circuit, Inc. v. City of Dallas

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

    Earl Warren:

    Number 56 and 64, Interstate Circuit Incorporated, Appellant, versus City of Dallas and United States — the United Artists Corporation, Appellant, versus City of Dallas.

    Mr. Nizer.

    Louis Nizer:

    May it please the Court, Mr. Chief Justice.

    I represent United Artists Corporation, the distributor of the motion picture “Viva Maria.”

    This is an appeal from an injunction enforcing an author of the Dallas Motion Picture Classification Board which prohibits the exhibition of the motion picture “Viva Maria” to any person under the age of 16 in any theater within the City of Dallas.

    The injunction also requires that all —

    Potter Stewart:

    Is that literally true?

    I thought that a — if such a person were accompanied by a parent or a spouse or — and so on.

    Louis Nizer:

    No, Your Honor.

    The city has so contended apparently to ameliorate the situation presented.

    The ordinance does not permit that.

    The ordinance has no exemption that states at Section 46A, Subdivision 5 that it is unlawful for any exhibitor to sell a ticket or permit a young person to see a picture classified not suitable, period.

    There’s no exemption if accompanied by a parent.

    Had an exemption been intended, this Section would’ve contained the obvious phrase, “unless accompanied by parent or guardian.”

    Now this is true sir, that there’s another Section of remedy in the event of a prosecution of a child.

    If a child is prosecuted for entering, it is a defense to hear.

    An affirmative defense that he was accompanied by a guardian or a parent, that’s at page 127 of the record, sir.

    That’s Subdivision (d).

    Abe Fortas:

    What does this mean then to the extent that any prosecution or other proceeding under this ordinance involves the entering, purchasing of a ticket, etcetera for viewing by a young person in such a film, it shall be a valid offense.

    Do you construe that as meaning that this defense is available only in a prosecution of the young person, is that what I understand this is your (Voice Overlap) —

    Louis Nizer:

    Yes, Your Honor.

    And not even from an exhibitor if you were prosecuted.

    That’s unclear.

    It doesn’t say one way or the other.

    We don’t think it would even apply to an exhibitor.

    We think that there was rational and deliberate this and this.

    The Section made it a crime for an exhibitor knowingly to permit a child to see the picture, period.

    If however, that child is brought on criminal charges, it was thought advisable to give him the remedy that he could say, “Well, I’m not guilty of a crime because I had my father with me.”

    But the Section does not carryover to the exemption that is claimed otherwise.

    Could there been any judicial rulings on that, Mr. Nizer?

    Abe Fortas:

    Not at all sir.

    Not at all Mr. Justice.

    William J. Brennan, Jr.:

    Well, this —

    Abe Fortas:

    And what does the City of Dallas, how to — have they construed it?

    Louis Nizer:


    They contend vigorously that this ordinance permits even children under 16 to see the picture marked unsuitable if it is accompanied — if the child is accompanied by a guardian, parent or spouse, he maybe married.

    This is the contention of this city.

    We do not find it in the ordinance which we asked to be appraised here.

    But furthermore, I would like to point a few more infirmities with respect to that particular matter Mr. Justice Fortas.

    Aside from the exhibitor —

    William J. Brennan, Jr.:

    Mr. Nizer, I don’t follow this.

    This is to the extent if I may, to the extent that any proceeding under this ordinance involves the viewing by a person, young person of the film transpired and so forth.

    It shall be a valid defense.

    Now, wasn’t this proceeding under this ordinance, the one we had before it, is it?

    It’s a proceeding with the purposes of that Section, isn’t it (Voice Overlap) —

    Louis Nizer:

    I construe that Mr. Justice Brennan to mean if anything suspension of the exhibitor’s license which is one of the penalties.

    In other words, there’s an affirmative defense provided in the event of extreme remedies.

    But if one reads —

    William J. Brennan, Jr.:

    Well, if I may — excuse me for a moment, if I may?

    Louis Nizer:

    Yes, yes.

    William J. Brennan, Jr.:

    Oh, what — what’s the contents you give other proceeding under this ordinance?

    Louis Nizer:

    It might be a suspension of a license of the exhibitor.

    William J. Brennan, Jr.:

    Oh, it might not be any —

    Louis Nizer:

    If you’re going to —

    William J. Brennan, Jr.:

    — kind of proceeding that this ordinance authorizes?

    Louis Nizer:

    Even —

    William J. Brennan, Jr.:

    Doesn’t that really mean it, wasn’t it?

    Louis Nizer:

    Even if it meant that, Your Honor, it would not mean that a child could enter with a parent.

    It would only mean that if a criminal prosecution or other proceeding would be gone there might be an affirmative defense placing the burden on the —

    William J. Brennan, Jr.:

    Well, other proceeding being a proceeding for an injunction against the sharing of the picture?

    Louis Nizer:

    To enforce the ordinance.

    Yes, it could mean that —

    William J. Brennan, Jr.:

    But that — yes.

    Louis Nizer:

    But —

    William J. Brennan, Jr.:

    And that that would be a defense then —

    Louis Nizer:

    And affirm —

    William J. Brennan, Jr.:

    — (Voice Overlap) to proceed?

    Louis Nizer:

    Yes, and the burden would be upon the person defending himself to demonstrate weeks and months after a child that entered — that he entered with a certain mature person who was his guardian or parent.

    As against that interpretation or rather the ambiguity if we may say of that Section, will Your Honor be good enough to look at page 126.

    Under the heading it shall be unlawful for any exhibitor or his employee.

    Look at Subdivisions 4 and 5, particularly 5, “knowingly to permit any young person to view the exhibition of any film classified not suitable for young persons and no language in that saying unless accompanied by a parent or guardian.”

    I would like also to point out to Your Honor that even if the city’s interpretation were accepted on this point, not only is the burden of defense, the affirmative burden of defense and proof shifted as it never should have been but as a practical matter, it is a defense which is meaningless in practical terms.

    There is social opprobrium to taking a child into a picture marked in large letters on the box office unsuitable for young persons.

    A mother or a father would have to brazen out that entry in the light of that.

    A fathers and mothers often don’t go to the motion picture theaters on a Saturday afternoon when the teenagers go by themselves.

    The statute requires that the parents sit throughout the picture, entirely.

    The — if a father took his son and his boy and his little friend with him, if — there would be a violation because the friend hasn’t got his parent or his legal guardian.

    Or if it were an uncle who took his nephew it would be a violation.

    These may appear to be refinements in reading the ordinance but where an ordinance trespasses upon free speech we think that the expressions of this Court that there must be the least remedy applied to a — not to aggravate then necessitate for the remedy applies here.

    And it would be an affirmative burden even if these apply to an exhibitor under the most liberal interpretation to prove that the adult was a parent.

    We think all of these places and own us upon this the right of free speech which this Court would not approve.

    I may say however, that this isn’t the basis upon which or at least the sole basis at all upon which we stand here.

    Abe Fortas:

    Well, let me ask you Mr. Nizer.

    Suppose the ordinance said that children under the age of 16 shall not exercise a, what I suppose, his constitutional right feasibly to assemble (Inaudible)?

    Louis Nizer:

    I think that would be alright or even if they couldn’t attend any motion picture theater under a certain age because then it isn’t the content of the picture which is in question.

    That’s for the conduct and safety of the child.

    We have permitted many ordinances which protect the child as for example, the case of the Jehovah Witnesses where this Court held that it was the safety, the labor — child labor provisions which interested this Court.

    But if you said, this child as a Jehovah Witness cannot sell this particular pamphlet because of its content that would be illegal.

    Abe Fortas:

    So your submission is that you don’t challenge that proposition that that would be constitutional for a state or a city to say that no child, age 16 or less –under the age of 16 shall be permitted to attend any movies?

    Louis Nizer:

    Right so.

    Louis Nizer:

    As a matter of fact in New York Mr. Justice Fortas, there is such a statute and you must provide a matron before a child can go in.

    And the theaters, this is purely a safety provision to provide such maintenance or they are not admitted.

    It is as if a book, if there’s an ordinance or statute that a bookseller may not sell books on Sunday.

    If it were just all books on Sunday that would be legal, if he said it couldn’t sell a certain book on Sunday, I think it would be illegal.

    So that we must distinguish I think between all the ordinances and statutes which provide for the safety of children which is a desirable objective not infringing upon the free speech doctrine.

    Now, the ordinance provided that all advertisements and a prominent poster must be put on the box office saying, “Not suitable for young person.”

    And this Dallas board was created by an ordinance enacted by the Dallas City Council about two years ago.

    And under this ordinance, it is a crime to show any motion picture in Dallas unless it has first been classified.

    Now in the instant case Your Honors, United Artists which is the world distributor and also has financial interest in this picture, we might call it for practical purposes a producer to license the motion picture to the exhibitor, Interstate Circuit for exhibition at its esquire theater in Dallas.

    As required by the ordinance, Interstate with the — filed with the Board its proposed classification suitable for young persons as — and provided also information on the description of the picture as it was required by the ordinance.

    Earl Warren:

    We’ll recess now.

    Louis Nizer:

    Thank you sir.