Times Film Corporation v. City of Chicago – Oral Argument – October 20, 1960

Media for Times Film Corporation v. City of Chicago

Audio Transcription for Oral Argument – October 19, 1960 in Times Film Corporation v. City of Chicago

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Earl Warren:

Times Film Corporation, Petitioner, versus City of Chicago et al.

Mr. Bilgrey, you may continue your argument.

Felix J. Bilgrey:

Mr. Chief Justice, may it please the Court.

I would like to take up the question that was presented — posed yesterday as to whether the presumption can be indulged in that the petitioner’s motion picture, “Don Juan,” is obscene or whether it runs afoul any or all of the other standards of this particular ordinance because we have refused to submit the motion picture to the police commissioner in Chicago for censorship.

Hugo L. Black:

Do you think we have to presume either way on the legal question you’ve presented?

I don’t know why.

Felix J. Bilgrey:

I don’t — I don’t think we have.

I think, Mr. Justice Black, that if this Court were to indulge in the presumption that this motion picture runs afoul the standards of the statute, the ordinance, that it requires the indulgence of a further presumption, namely that the motion picture as a form of speech is an evil per se.

And I believe that that is a presumption —

Hugo L. Black:

But that wouldn’t be a —

Felix J. Bilgrey:

— that has never been made.

Hugo L. Black:

— that wouldn’t be a presumption, would it?

Felix J. Bilgrey:

It will be a conclusion, Mr. Justice Black that has never been made with regard to any form of speech.

And I think that that would be twisting the First Amendment.

I think that the very least that the First Amendment stands for is that the speech is innocent and this is the Blackstonean concept that at the very least that the speech may be initially made without any presumption either way and that the State then has a burden and that is a heavy burden to come forth and to prove that the speech does not have the First and Fourteenth Amendment protection.

Charles E. Whittaker:

(Inaudible)

Felix J. Bilgrey:

That is not the — what I concede this question to be, Mr. Justice Whittaker.

I don’t think that the question before this Court is that if we were to concede that this motion picture is obscene, whether we would have the right to initially show it.

I think that that is a completely different question which — I don’t know if it has ever been decided or come up in that the precise posture.

I think the —

Charles E. Whittaker:

But are you saying that motion picture would not be obscene?

Felix J. Bilgrey:

I’m not.

I think that there maybe obscene motion pictures and obscene forms of speech.

Charles E. Whittaker:

How would you know that it’s obscene?

Felix J. Bilgrey:

I don’t think you would know it, Mr. Justice Whittaker, but it is our contention that the question is not here whether we would have the right to initially show the motion picture if we were to concede that introduction.

I think the question is as presented in our petition and that is that these respondents that the municipality does not have the right initially to require the submission of the speech and I don’t think that they can have that right with regard to any form of communication.

Charles E. Whittaker:

(Inaudible)

Felix J. Bilgrey:

I think that the very least that the First Amendment stands for is that everyone has the right to initially communicate with the public that there can be no censors wall.

And if — if I may amplify that answer, I think that the Kingsley Books case points out two important distinctions between that — the — the statute in that case and the ordinance in this case.

In Kingsley Books, this Court upheld a limited injunctive scheme, whereby the State can enjoin a — a speech or book and afterwards, determine that it does not enjoin the First Amendment protection.

Felix J. Bilgrey:

I think that the first distinction to be made is that New York did not require that every speech has to be submitted to a censor first.

Felix Frankfurter:

You keep on saying speech because you think that speech or because a movie or films are a mode of communication that is something that one sees or hears, therefore, as a general concept called speech which covers everything, political utterance, an editorial in newspaper, a book, discs, music, movies, is that right?

Felix J. Bilgrey:

Mr. Justice —

Felix Frankfurter:

That’s your notion.

Felix J. Bilgrey:

— that’s — that’s —

Felix Frankfurter:

So that you —

Felix J. Bilgrey:

That is correct, Mr. Justice Frankfurter.

Felix Frankfurter:

— you don’t make any differentiation and you just say the question before this Court is abstractly considered where the speech may ever be enjoined, is that right?

Felix J. Bilgrey:

No, I don’t conceive that to be the question, Mr. Justice Frankfurter.

I conceive the question as formulated in our petition, that the State has no right to require the prior submission to a censor for the examination of contents of this particular speech.

And I think that no court, after Burstyn, except perhaps for the Circuit Court of Appeals below, has intimated that motion pictures are not a form of speech.

Felix Frankfurter:

Well, then, I do not understand why you did not agree with the question of the Court or the inquiries made to you by Justice Whittaker, namely, you contend that no matter what this film, if seen, would show, no matter what its contents, no matter what it depicts, doesn’t matter, vicious, good, bad, neutral, it doesn’t make any difference.

The State is powerless in view of the Fourteenth Amendment to ask that it be seen before it can exhibit.

Isn’t that the correct statement of your position?

Felix J. Bilgrey:

Well, again, Your Honor, I don’t — if it — if that involves a concession that the motion — that this motion picture is obscene, I would not be willing to concede that.

Felix Frankfurter:

If it involves a concession but — but to you it’s a matter of indifference.

Felix J. Bilgrey:

No, it is not.

Felix Frankfurter:

Whether —

Felix J. Bilgrey:

I think that a —

Felix Frankfurter:

I don’t mean as a person.

I don’t mean your moral judgment.

Felix J. Bilgrey:

I — I understand.

Felix Frankfurter:

But your legal proposition, it is a wholly immaterial.

You’re not called upon to show that it isn’t good.

Felix J. Bilgrey:

I don’t think, Mr. Justice Frankfurter, that the presumption can be made or conclusion can be made either way and I think that the — the presumption that has to made before we could concede.

And that’s why I don’t think it’s — that that is the question that whether we had have the initial right to show this motion picture, if it were any — runs — to run afoul of any of the statutory standards.

I don’t believe that question is before the Court.

I think —

Felix Frankfurter:

I’m not suggesting —

Felix J. Bilgrey:

— the question —

Felix Frankfurter:

I’m not suggesting any presumption regarding this particular undisclosed film.

What I am suggesting is a legal proposition if I follow your argument at all.

That for purposes of the question before the Court, it is a matter of indifference, what the character or quality or methods or whatever you may say about a film, it’s a matter of indifference.

It maybe at once the most notable and noble depiction or it maybe the violent depiction from the point of view of the question before the Court, that is a matter of indifference.

Felix J. Bilgrey:

I think it is.

That — I think that it’s correct to state, Mr. —

Felix Frankfurter:

Alright.

Felix J. Bilgrey:

— Justice Frankfurter.

I think that the first and the very least that the First Amendment provides for is that the burden is not on the person who wants to make the speech to come forth and until and unless he proves to the satisfaction of the State that the communication is great or has some social value that he then may not make it, I think —

Felix Frankfurter:

I’m not contesting your proposition.

I’m trying to leave no doubt what it is that you’re dis — discussing and so I want you — I want it possible to have you say without any further ambiguity what the issue is.

Felix J. Bilgrey:

I think —

Felix Frankfurter:

You’ve now answered me that, whatever the words may be, you now answered me that the purpose of the proposition that you are tendering to the Court is a matter of complete indifference, what this film if seen would disclose.

That is correct, isn’t it?

Is that the question?

You can state in your words.

Felix J. Bilgrey:

I think —

Felix Frankfurter:

Is that the substance of your issue?

Felix J. Bilgrey:

I think the substance of the issue is, as you stated, Mr. Justice Frankfurter, that the speech, and I would like to word it this way, that the speech is — that there’s no presumption either way that the — the person who makes the speech has a right to initially communicate with the public without coming across a censor’s wall.

I don’t think the State has any business to know beforehand —

Felix Frankfurter:

Alright.

Felix J. Bilgrey:

— what that speech is.

I think that the State has the burden, then to come forth.

And this Court in Kingsley Books, and that is as far as this Court has ever gone in upholding a state method of control, has appeared to that view and the way I read Your Honors’ opinion in that —

Felix Frankfurter:

But that — that case wasn’t this case.

That was a totally different case.

Felix J. Bilgrey:

That is correct, Your Honor.

Felix Frankfurter:

In that case —

Felix J. Bilgrey:

That case did not require the prior submission of the speech —

Felix Frankfurter:

Alright.

Felix J. Bilgrey:

— to a censor.

New York did not and could not presume to the decisions of this Court, require that every single book has to be submitted to the police commissioner.

Felix Frankfurter:

We’ve never decided that.

Felix J. Bilgrey:

You’ve decided it, I think, with regard to every other form of speech but the motion picture.

Felix Frankfurter:

Well, but that’s why we are here about a motion picture.

Felix J. Bilgrey:

Well, we — we —

Felix Frankfurter:

And this weren’t — you just say that a motion picture is no different than if you had before us who captures the camera on a book form, that’s what you’re saying, is that right?

Felix J. Bilgrey:

That’s what I’m saying, Mr. —

Felix Frankfurter:

Alright.

Felix J. Bilgrey:

— Justice Frankfurter.

I’m saying that the First Amendment must apply equally to the motion picture which has all the —

Felix Frankfurter:

Have we ever —

Felix J. Bilgrey:

— attributes.

Felix Frankfurter:

— said that?

Have we ever said that?

Felix J. Bilgrey:

You’ve never said it in so many words, Mr. Justice Frankfurter, no.

Felix Frankfurter:

That’s why we’re here.

William O. Douglas:

Well, you’re — you’re not — you’re not denying that — that you may — that you may not be liable if the — the petitioner might be prosecuted —

Felix J. Bilgrey:

I was just coming —

William O. Douglas:

— to show —

Felix J. Bilgrey:

— to that point.

We’re not — we’re not denying that, Mr. Justice Black.

I was just coming to that point.

I think I’ve — I’ve — we’ve mentioned in our brief that 46 other States managed to get along without requiring the prior submission of all motion pictures to a censor.

Felix Frankfurter:

You don’t know what type of censorship they have that are just as effective.

I can assure you there are States which have private censorships far more effective than your police censorship.

Felix J. Bilgrey:

Well, I think that — that on the question of private censorship, Mr. Justice Frankfurter, which is not, of course, before the Court, I think that it —

Felix Frankfurter:

Are merely (Voice Overlap) —

Felix J. Bilgrey:

— would be very difficult to outdo the respondents.

Felix Frankfurter:

You merely said they got along with.

Felix Frankfurter:

I say you’re going to draw on what they get along with and you also have to take into account other methods of producing the same result.

Felix J. Bilgrey:

Well, there are alternative methods of control that this Court has upheld.

And I would like to — to mention that some of these methods of control have been upheld in cases like Chaplinsky and Alberts and Kingsley Books and that these methods accomplish everything that the State can accomplish, that they are much less invasive.

They are much less costly to the First Amendment, to our liberties, pursuant to that First Amendment than the prior restraint.

What I’m saying is that I think that the citizens of the District of Columbia and all the other States and cities that do not require that all motion pictures be submitted to a board that these citizens are just as moral as Chicagoans would be if they could just see every motion picture first without and having been submitted.

I would like to leave some time in rebuttal, Your Honors, but I would — I would like to close off in this point.

I think that the decisions in this — of this Court in the area of the First Amendment, establish crystal — in a crystal clear manner that whatever else the First Amendment may mean, it cannot mean and does not mean that there can be a censor’s wall between any form of speech in the public.

I think the motion picture has all the attributes of speech.

And I think that that same law must apply to the motion picture as a form of speech as well.

If it does not, then tomorrow, these respondents or someone else will raise the same issue with regard to some other form of speech and before you know it, there wouldn’t be anymore First Amendment.

Thank you.

Earl Warren:

Mr. Collins.

Robert J. Collins:

Mr. Chief Justice, may it please the Court.

The petitioner here and these respondents have stipulated to the facts in the court below and I assume there was no factual issue here at all.

Counsel has hesitated to say that this movie might be pornographic, although yesterday, he did say that it might be Pollyanna.

I presume from that, he means that it is innocuous, harmless.

He made a statement yesterday that I wrote down because it sounded so strange.

Counsel said yesterday to this Court that he was perfectly willing to show the picture to the respondents privately if they wish.

I — I cannot reconcile that statement with our being here today.

The ordinance requires that this picture or any picture in our municipality be shown to the respondents who is the city, its mayor and police commissioner, privately, and so Mr. Bilgrey, if that is your intention, we can dispose of this lawsuit now if you will submit it too as private.

Felix Frankfurter:

I take it you meant that to satisfy your curiosity or to be a good impulse of generosity, he will do that voluntarily but he doesn’t want to be coerced.

Robert J. Collins:

Justice Frankfurter, he did not say that to me.

He said he would exhibit it privately to the respondents.

Felix Frankfurter:

Alright.

Robert J. Collins:

They — they are curious.

Felix Frankfurter:

Well, it could make a lot of difference.

If I do something out of my own good nature or weakness or do it because I’m compelled to do it.

I can assure you it makes a lot of difference.

Robert J. Collins:

Of course, but one of the respondents is the municipality.

Felix Frankfurter:

You — you’d also — you — you can’t show it to the municipality.

Felix Frankfurter:

You’ve got to show it to some persons.

Robert J. Collins:

That’s right.

Felix Frankfurter:

You may show it to the chief of police as a private individual in a uniform order.

Robert J. Collins:

Or to the Mayor.

Felix Frankfurter:

To the Mayor with a uniform line.

Robert J. Collins:

Well, if he is still willing to do so, I invite Mr. Mikva on rebuttal to say so and we can dispose of this suit immediately.

Now, this ordinance is not confined, although the Court has mentioned pornography or obscenity to that question.

The ordinance before this Court as you well know prohibits movies that would lead to riots or breaches of the peace.

It may be difficult to determine what they are but until we see the movie, we cannot possibly answer that question.

It is one of the great problems with this case.

If we are — all of us dealing in the dark, as the Court of Appeals below said, “This could depict an assassination of the President of United States for all we know, a plan to do it.

Now, let us go back, Mr. Bilgrey has said to this Court just a moment ago that this Court has never indicated that it might sustain a form of prior restraint.

I cannot agree with his statement there.

I would like to go back to Gitlow.

William O. Douglas:

Would you think the Chicago Tribune could be required to submit its copy to Chicago censor before it went the press?

Robert J. Collins:

I certainly would not, Justice Douglas, certainly not.

There is a vast difference in my judgment and of course, in the legislative judgment between a newspaper and a — a motion picture.

Then, I would like to talk about that for just a minute, the difference.

When you read a book or a newspaper or a magazine in the privacy of your home or when you turn on the television set in your home or the radio, that is a different thing.

If we are dealing with an obscene pornographic movie, then going into a darkened theater with 500 or 1000 or 2000 people in close proximity and observing it, we feel that’s —

William O. Douglas:

Newspapers have comic strips these days, don’t they?

Robert J. Collins:

They certainly do, sir.

And the problem on — on comic strips and comic books is something that has so occupied the nation that as you know, the Congress has appointed a commission some — up to many years ago to look into it.

We recognize the — the constitutional problem but that does not take our eyes away from the problem itself.

You see the — the municipalities under several States have a social problem or an economic problem or a problem of some kind and you immediate — they enact legislation.

You are not concerned with that problem, we are.

You are concerned only with whether or not that legislation fits within the framework of the Constitution.

When you strike it down, the problem, it does not disappear, we still have it.

We tried to change the legislation.

We tried another admin of approach.

Robert J. Collins:

Yesterday, Mr. Bilgrey said to this Court, “If you strike down legislation, it has no effect.”

Now, that is a statement he made here yesterday.

Now, of course, he is concerned.

He is an interested party.

His word may be like mine, prejudice, but two members of this Court, at least, in the most recent motion picture case, the Kingsley Pictures case made a statement that — to the effect that each time a statute is struck down, the State is left in more confusion.

The Court recognizes what happens when legislation is stricken down but Mr. Bilgrey said yesterday, “They are not — have you have no problems at all.”

I — I cannot agree with that.

And to answer you, Mr. Justice Douglas, I feel that there is a vast difference between movies and the Chicago Tribune.

I wanted to say the — the Gitlow case.

The Gitlow case is a landmark decision of this Court.

The Gitlow case stands with the proposition that the Due Process Clause of the Fourteenth Amendment prohibits a State from abridging the freedom of speech of the press.

Up until that time, this Court have never so held.

But what else was said in the Gitlow case?

And incidentally in that case, as the Court knows, the legislation there with which the Court was concerned was upheld.

Its validity was sustained.

And incidentally, it concerned anarchist, people intending to overthrow the Government, which takes us back to the comment that the Court of Appeals made in this case.

But in the Gitlow case, the — this Court said, in substance that it cannot be said that the State is acting arbitrarily or unreasonable when in the exercise of its judgment as to measures necessary to the public peace and safety, it seeks to extinguish the spark, extinguish it before it has enkindled the flame or blazed into conflagration.

What do they mean?

They mean what we’re trying to do here, we have a problem.

Now, if this was a Pollyanna type movie, as Mr. Bilgrey has intimated, then first of all, he is committed to fraud upon this Court in going through this procedure.

I’m assuming this is a type of a movie that we would reject and that’s the reason he would not bring it into us.

The movie industry is not here today for the purpose of protecting the freedom of speech of the individuals of this country, that maybe the result if you agree with them.

They are here today for the right to exhibit a movie called “Don Juan”.

That’s what they want.

And more importantly, they want the right.

If you agree with them in the future to exhibit any — anyway, pornographic or other one, there is great profit in movies which are obscene or pornographic.

There’s no doubt about that.

And the movie industry, I — I don’t mean to condemn the industry.

God, the America needs that industry.

It’s a great industry but there are people in the industry as there are in every business who maybe attempting to force upon the public obscene, pornographic movies.

Robert J. Collins:

We know that — that there are pornographic pictures around that are surreptitiously handed from man then sold.

There’s a great profit in it.

And that is what we’re fearful of here.

Potter Stewart:

Do you think, as a practical matter, that there’s any likelihood that picture — moving pictures of the time that you mentioned would be submitted to a — the police chief of a — the police commissioner of Chicago or —

Robert J. Collins:

I consider it —

Potter Stewart:

— (Voice Overlap) —

Robert J. Collins:

— extremely unlikely, Justice Stewart.

However, if they did not have the responsibility of submitting a movie to the police chief, they might attempt to exhibit it.

That’s the reason that they’re here, is to avoid the exhibiting.

William O. Douglas:

You could prosecute them if they did.

Robert J. Collins:

Of course, but that, Justice —

William O. Douglas:

That’s —

Robert J. Collins:

— Douglas —

William O. Douglas:

That’s a harder role for you than — than an easy stroke of a censor.

Robert J. Collins:

Justice Douglas, we are not concerned with the harder role.

The purpose of preventing the showing of obscene pictures or pornographic pictures or pictures which lead to riots or breaches of the peace is to protect the public and if —

William O. Douglas:

Well, that argument applies to the Chicago Tribune as well as to the movie.

Robert J. Collins:

But we are — I —

William O. Douglas:

Well, you would — you’d the first to say Chicago has no power to censor the Chicago Tribune.

Robert J. Collins:

Well, the Court has said that many times —

William O. Douglas:

You —

Robert J. Collins:

— but my saying —

William O. Douglas:

— you don’t disagree with that.

Robert J. Collins:

I certainly do not, sir.

I think that the Chicago Tribune, of course, is a great paper.

It happens to be —

William O. Douglas:

Well, I’m not talking about it.

Any paper —

Robert J. Collins:

Any paper.

William O. Douglas:

— in Chicago.

Robert J. Collins:

Any paper.

William O. Douglas:

Yes.

Robert J. Collins:

Of course not, but I’ve attempted to say that the Court did, in my judgment and in the judgment of the legislator, the — the men who enacted this ordinance.

There is a vast difference between a movie and a newspaper.

Their ultimate objective first of all, one, is to disseminate news, which you read in the privacy of your home.

The other primarily is entertainment.

I know — I know that the Court has — has indicated in some of its statements that there’s probably no difference between entertainment and — and the dissemination of news by a newspaper.

And I respect your convictions there, Justice Douglas, and I’m sure you respect mine whether or not, we’re —

William O. Douglas:

Oh, we didn’t — haven’t restricted the First Amendment, the newspapers, have we?

Robert J. Collins:

I don’t think it’s restricted, I — it’s — the —

William O. Douglas:

I thought it extended to novels and poetry and —

Robert J. Collins:

I think it does.

William O. Douglas:

— (Voice Overlap) —

Robert J. Collins:

I think it does.

Certainly it does.

William O. Douglas:

We’re in the field of entertainment when — as well as news when we’re talking about First Amendment rights, have we?

Robert J. Collins:

That is true.

But we are not — many people in close proximity in a darkened theatre for several hours at a time.

And I think that the — the legislative judgment of the counsel of our city in — in anticipating that problem and in trying to do something about it, is what we’re talking about here.

We’re talking about an obscene movie.

We’re not talking about one that — that is harmless.

And that is what the — that is what —

William O. Douglas:

Why — why —

Robert J. Collins:

— they want us —

William O. Douglas:

Why do you make that presumption in the case of a movie but not in the case of a newspaper?

Robert J. Collins:

Because the —

William O. Douglas:

A newspaper editor stands up and says, “I refuse to submit my copy to your censor.”

Would you say, yes, I presume therefore, he’s a Communist, I presume therefore, that he’s — want to publish seditious libels.

I presume therefore, he’s going to publish obscene literature.

No, you wouldn’t say that.

Robert J. Collins:

I doubt it because it’s not constitutionally proper.

Of course, we have no ordinance.

William O. Douglas:

Well, that’s our issue.

That’s our issue whether it is constitutional proper here.

Robert J. Collins:

Yes, as respect to movies but not as respect to newspaper.

William O. Douglas:

Well, I do — I don’t see where this presumption arises.

Robert J. Collins:

Presumption of what, sir?

William O. Douglas:

That it is pornography.

Robert J. Collins:

Well —

William O. Douglas:

We’re talking about a constitutional right.

Robert J. Collins:

If it were not pornography, Justice Douglas, they would not have — they would —

William O. Douglas:

Why do you say that?

People sometimes are — want greater freedom than the bureaucracy of government —

Robert J. Collins:

That is true.

William O. Douglas:

(Inaudible)

Robert J. Collins:

That is true.

If that is their purpose here, it may well be.

I do not know, sir.

However, even — let me say that there are circumstances, disregarding for a moment the issue here, there are circumstances under which Justice Douglas, you believe that prior restraint would be possible or I — I think in one of the recent opinions in a — you made a comment joined in by Justice Black.

Hugo L. Black:

To what state?

Robert J. Collins:

I’m looking for it, sir.

There was an inference.

I think in the Kingsley Pictures case that under — under certain conditions, a type of prior restraint might be — might be proper.

I’m referring now, Justice Douglas, to a statement that you made.

Perhaps, I’m interpreting it wrongfully.

William O. Douglas:

I hope so.

Robert J. Collins:

Well, it — in that case — in that case, I would like to specifically —

Hugo L. Black:

I’m sure —

Robert J. Collins:

— find it.

Hugo L. Black:

I’m sure if you say I agreed to it.

Hugo L. Black:

I misjudged him perfectly.

Robert J. Collins:

Well, I’m going to find it here so that I can be sure exactly what it said.

I’m going to have the smallest amount.

Hugo L. Black:

Yes.

Robert J. Collins:

I certainly do not want to get it into the — Justice Douglas, I’m now referring to Kingsley Pictures, 360 United States at page 698.

I know, of course, Justice —

Hugo L. Black:

Will you read it if you have it there before you, the Senate.

Robert J. Collins:

I will, sir.

I will and I know that you will disagree with my interpretation of it but I’d like you to know what it says.

698.

Hugo L. Black:

Because I’d like to know what’s your opinion.

Robert J. Collins:

Justice Douglas, different questions may arise as to censorship of some news.

Felix Frankfurter:

Some what?

Robert J. Collins:

Some news.

When the nation is actually at war but any possible exceptions are extremely limited in my opinion.

Mr. Justice Douglas, you are there intimating that there maybe conditions under which a form of prior restraint would be possible.

Now, that’s my interpretation of your word, I maybe in error.

Every — every great pronouncement of this Court and let us — let us take Near versus Minnesota.

And you, Justice Douglas, have relied upon that also.

You have — you have felt as we all do that it established a great principle.

In Near versus Minnesota, which as we know struck down subsequent publication because prior publications had been found offensive and therefore, the Court would not tolerate it.

William O. Douglas:

360.

Charles E. Whittaker:

That’s all it did (Inaudible) isn’t it?

Robert J. Collins:

No.

That is what I’m coming to, Justice Whittaker.

It said, of course, by a way of dictum but we must rely upon that in dealing with the Court.

Every time you say a word here, all over this nation and perhaps all over the world, we lawyers (Inaudible).

We want to use it for some purpose.

You know that.

In the Near versus Minnesota case, after — after talking about a nation being at war and after saying that in that case, it is conceivable that there might be some form of prior restraint.

Robert J. Collins:

The Court went on to say and we’ve quoted it time and again here.

You know what it said on similar grounds.

They were talking about a nation at war.”

On similar grounds, the primary requirements of decency maybe enforced against obscene publications.”

There are two ways of looking at that.

Justice Douglas asked me, may you not prosecute them after the publication has been made of court?

But we feel that the — the damages then done.

We feel that we’re the — the punishment of the exhibitor doesn’t solve the problem at all.

We feel that we’re an obscene pornographic movie has been shown to hundreds of people in a darkened theatre that the possible damages or a movie that might lead to riots or breaches of the peace, the damage is done.

William O. Douglas:

That’s true.

Any book that’s pornographic that’s been solved.

Robert J. Collins:

Undoubtedly, Justice Douglas, but we have no such ordinance on that.

And I don’t think it would be valid.

I think that the difference between a movie and a publication of that nature must be recognized by the judiciary, I hope, because the legislature feels there is one and we’d — we do not make law deliberately to violate the Constitution, of course.

We — we make them to meet a problem.

And there are many times when in meeting that problem, we deprive people of their constitutional rights.

That’s where you come in and you tell us you have to do it differently and we do.

John M. Harlan II:

Is there an administrative review of the commissioners or the commissioners’ refusal of the (Inaudible)

Robert J. Collins:

The ordinance provides for an appeal to the Mayor.

And the —

John M. Harlan II:

To the Mayor.

Robert J. Collins:

I beg your pardon.

John M. Harlan II:

To the Mayor?

Robert J. Collins:

Yes and the stipulated facts here show that that administrative procedure was followed.

John M. Harlan II:

That’s the only review procedure?

Robert J. Collins:

And then in — of the courts.

John M. Harlan II:

And then of court.

Robert J. Collins:

And of the courts.

Felix Frankfurter:

Here says the Mayor, does it mean the Mayor?

Robert J. Collins:

As much as it means to the police commissioner, there are many — many movies exhibited in our city and in many city.

Robert J. Collins:

And I’ve — I’m sure that — that they —

Felix Frankfurter:

I mean an appeal from the police commissioner to the Mayor, what factors do you have for such an appeal taken?

I mean I would — who — I wonder who would decide what —

Robert J. Collins:

The Mayor.

The Mayor makes the decision.

The Mayor forwards his decision to the petitioner (Voice Overlap) —

Felix Frankfurter:

That’s what I ask you.

The Mayor — this is the Mayor, Mr. Daley today, is that right?

Robert J. Collins:

That is correct.

Felix Frankfurter:

And then he discharged his personal responsibility for making a decision?

Robert J. Collins:

Under the ordinance, yes.

And the police commissioner is charged with the original responsibility, and from there to the court.

And the — the — although it is not an issue here, the State of Illinois has a statute that empowers municipalities to enact ordinances of this type which will permit them the license or regulate or tax or even prohibit motion picture or theatrical.

That statute is not here involved.

It is not challenged by the petitioner but it was pursuant to that statute.

That this ordinance was passed over 50 years ago in the City of Chicago and it is — it administered without any difficulty, I should say with very little difficulty, for over 50 years.

The — the decision of this Court in the Burstyn case, I’m sure affecting many communities as it did in Chicago.

We were not certain what we knew what the Court meant there, but we were not certain whether that doctrine would be extended.

We knew in the Burstyn case and in subsequent cases that the language employed and the New York statute was found to be offensive here and called it was vague and indefinite and that they employed standards that could not properly be invoked in enforcement.

Charles E. Whittaker:

Mr. Collins, do I correctly understand that this is not a suit for a declaration that no permit is required but is a suit to require the issuance of a permit without production of the film?

Robert J. Collins:

That is correct, Justice Whittaker.

That is what they seek.

Charles E. Whittaker:

Is the suit to require the issuance of a permit?

Robert J. Collins:

That is correct.

Charles E. Whittaker:

Without production of film?

Robert J. Collins:

That is correct.

And in that regard, Justice Whittaker, we have another point.

And it would come to a little later in the argument which was the basis of the decisions in the court below.

Felix Frankfurter:

Well, if Justice Whittaker’s close confinement of the issue — issue, it can govern our consideration, it means that they want public authority to say it’s alright to talk to — to show a show no matter what its content.

Charles E. Whittaker:

Well, isn’t —

Felix Frankfurter:

In other words, the — the question — in other words, the suit is not declared this — this ordinance unconstitutional and therefore be free to do what you will but it is to get a certificate from the City of Chicago that you may show this, so that we have the City of Chicago sponsoring what might be a vicious bill.

Robert J. Collins:

That is my —

Felix Frankfurter:

Isn’t that right?

Robert J. Collins:

That is my understanding of our position, Justice Whittaker — Justice Frankfurter although, I will permit the attorney for the petitioner to answer that —

Felix Frankfurter:

Well, I mean we —

Robert J. Collins:

Well, that’s my —

Felix Frankfurter:

— you don’t get —

Robert J. Collins:

— understanding of the —

Felix Frankfurter:

— you don’t have to apply the interpretations of legal doctrines, isn’t it?

Robert J. Collins:

That’s my understanding of the issue —

Felix Frankfurter:

(Voice Overlap) it —

Charles E. Whittaker:

And would it follow if I may ask to, if they had the permit, they could not then subsequently be criminally punished for its — the showing of the picture, if they had this permit?

William O. Douglas:

It wouldn’t be (Voice Overlap) —

Robert J. Collins:

That — that I do not know, Justice Whittaker.

Charles E. Whittaker:

I beg your pardon.

Robert J. Collins:

That I do not know.

It is not been raised in this case.

However, we have criminal law, of course, as counsel has contended, prohibiting the exhibition of — of obscene material and I would see no reason why prosecution could not be made if, even though a permit had issued, although it certainly would complicate the prosecution and make it difficult.

Charles E. Whittaker:

Oh, sure the city couldn’t do it.

The city could —

Robert J. Collins:

Oh, no.

No — the — however, the — the obscene —

Charles E. Whittaker:

— (Voice Overlap) —

Robert J. Collins:

— the statute is a — is a state law which would be prosecuted by a different agency and then the city.

However, I — I would assume that the prosecution would be hampered to such a degree that it would be silly to file the — to bring the preceding because they would say, “You allowed us to exhibit this movie, here’s the permit.”

Hugo L. Black:

You mean hampered?

Is that is not — as long as you can get the word, you mean that the State can set up a system and tell people they can do something with the authority of the law and then go ahead, prosecute a criminal from doing it?

Robert J. Collins:

I accept your correction, Justice Black, of course, they could not — did not hamper.

They would not bring it all.

They could not do so.

Robert J. Collins:

But if — because there is no answer in the ordinance itself to the question, I suppose it’s conceivable that they might try it, could not succeed in law.

Hugo L. Black:

Who would try?

You mean the public officials going to try to prosecute somebody for a crime, when the State has set up machinery and said you can do this, it doesn’t violate the law?

Robert J. Collins:

I see no prohibition in the statute.

It’s unlikely that it would be done.

But there is nothing in the statute of the ordinance that would prohibit such a thing (Voice Overlap) —

Hugo L. Black:

Well, I suppose it’d be a prohibition to say that we are setting just the State to its legislature that gives you authority to do this.

We’re not going to give you authority of course to break the law but we’re giving you authority to do this or it’s not breaking the law.

Robert J. Collins:

Well —

Hugo L. Black:

It’s a license system.

As I understand it —

Robert J. Collins:

Of course, the complaint, I —

Hugo L. Black:

— it’s a license system, whether good or bad, whether constitutional or not, what you have is a system of licensing for moving pictures.

Robert J. Collins:

We have a system that requires a certain municipal official to inspect all movies.

Hugo L. Black:

For what purpose?

Robert J. Collins:

And — and I’m coming to that.

He — it is his duty under the ordinance to issue a permit for the public exhibition of that movie unless he finds that the movie is obscene, if it would lead to a riot or a breach of the peace or certain other things that are contained in the ordinance.

Hugo L. Black:

But that was written in the form — use the word “license” and was a book.

It’s not final in this case of course because of the difference between the book and the movie.

What if it was with reference to book, you had that exact law, what would be the difference between intervening this licensing law for printed — for printing books?

Robert J. Collins:

Well, of course, Justice Black, we must go back to what we consider as the basic difference between a movie and a publication.

Hugo L. Black:

Well, I understand that.

I — I understand that.

But that’s what — that’s what your issue is, isn’t it?

Robert J. Collins:

Yes.

There’s no doubt about that.

Hugo L. Black:

Well, you concede —

Robert J. Collins:

I’m not backing away from the issue here at all.

Hugo L. Black:

You concede that —

Robert J. Collins:

I certainly do.

Hugo L. Black:

— so far as the books are concerned, they couldn’t do it (Inaudible) —

Robert J. Collins:

That’s right for newspapers.

Hugo L. Black:

I knew that.

Robert J. Collins:

Well, I — I don’t know whether this Court has made such a pronouncement.

In my judgment, I’m giving you my opinion.

You could not — we could not do it.

Now —

Felix Frankfurter:

Can I ask you, this ordinance, you say it’s 50 years old.

Robert J. Collins:

Over 50 years of age, sir.

Felix Frankfurter:

Has there been prosecutions done to it?

Robert J. Collins:

We do not prosecute, sir.

There —

Felix Frankfurter:

From the —

Robert J. Collins:

We do not —

Felix Frankfurter:

— (Voice Overlap) so that it never comes up on the — for violation of the —

Robert J. Collins:

There’s a —

Felix Frankfurter:

(Voice Overlap) violations — if you have violations for not — for showing films without a permit.

Robert J. Collins:

No, Justice Frankfurter.

And I — I was about to say that the petitioner of this case, if he feels as strongly as he don’t, instead of following this procedure, leaving us in the dark, could publicly exhibit this movie without a permit.

And of course, we would have to prosecute or abandon our order.

Felix Frankfurter:

Well, I thought you couldn’t prosecute?

Robert J. Collins:

We can prosecute for exhibiting a movie without a permit.

Felix Frankfurter:

And is that a part of the ordinance or is that a separate part of your city ordinance?

Robert J. Collins:

No, the ordinance provides that you must have a permit and if you don’t, you will be fined.

Felix Frankfurter:

I see.

Robert J. Collins:

So that if you —

Felix Frankfurter:

Now —

Robert J. Collins:

— exhibit it without —

Felix Frankfurter:

— (Voice Overlap) your civil court or your criminal police court, whatever they maybe.

Robert J. Collins:

Well, the — the nature of the — I would — it’s an ordinance, so that it’s — I think the maximum —

Felix Frankfurter:

(Voice Overlap) —

Robert J. Collins:

— maximum fine was $200, I believe.

I’m not certain.

Charles E. Whittaker:

Now, may I ask you not to mention please, Mr. Collins, though probably the question isn’t squarely here.

Would it be a defense in such a prosecution to show that the picture was not obscene?

Robert J. Collins:

I — the only way that defense could properly be raised, sir, is to say that we do not have the right, the constitutional right to require, of course, the — whether or not the picture is obscene is always an issue in all of these cases.

Charles E. Whittaker:

But there’s a constitutional right to speak what is not obscene, isn’t it?

Robert J. Collins:

Certainly.

Charles E. Whittaker:

And would it therefore be a defense under the Constitution, in that prosecution to show that in truth, this publication was not obscene?

Robert J. Collins:

It would, I’m sure, be a defense in a certain way.

It would not — it would not meet the other requirements of the ordinance, that is, I think, that the $25 fee or something.

Charles E. Whittaker:

Well —

Robert J. Collins:

But they are, of course, conceding they’re willing to pay that.

That’s not the issue here.

But you were — it — it might be a defense.

Hugo L. Black:

How could it be?

You got an ordinance there that said it’s against the law to show a movie without a license, would that affirm it?

Robert J. Collins:

That is correct.

Hugo L. Black:

And you make out of crime, if you — if you call the violation an ordinance of the crime.

Robert J. Collins:

That’s right.

Hugo L. Black:

But he can’t defend by coming in and saying, “Well, I would have a right to show it if I’d take it to the licensee.”

His — his offense is showing it without a permit.

Robert J. Collins:

That is true.

And — and he would not be able to avoid the — the payment of the fee for a permit by going in —

Hugo L. Black:

(Voice Overlap) permit well, he could — could he have guard the payment of the fine, if he got it without a license?

Robert J. Collins:

No, because he — because he is required to do this under the ordinance.

The nature of the film there will not be material.

William O. Douglas:

Of course, he could — if he was denied a permit, he could — he could appeal, come up here and we could do it in determining whether it’s obscene, that’s it?

Robert J. Collins:

And of course, you have done that, Justice Douglas, as you know and it’s — it’s proper.

Charles E. Whittaker:

That’s why I asked the question.

Robert J. Collins:

I understand, Justice Whittaker.

Felix Frankfurter:

Tell me, isn’t it a form of a permit that is granted in the record or any other brief?

Perhaps you know it from memory, what does it say?

What does the permit say?

Robert J. Collins:

I do not know, sir.

I’m sorry, Justice Frankfurter, it has never been an issue in any of our proceedings.

It — I assume would say that you’re entitled to exhibit a — the issue with permit naming the movie to a certain exhibitor and he has the right to transfer that under the ordinance to other exhibitors.

That’s all I know about it.

I have never seen anything.

Hugo L. Black:

As I understand it, movie people have not been violating the ordinance.

They’ve been joined to union license or permit.

So you had no cases to prosecute him for showing without a permit.

Robert J. Collins:

Never to my knowledge, sir, has anyone attempted that.

Earl Warren:

Well, how — how then do you — how then do you happen to say in your brief at page 4, Illinois Court said consistently upheld the constitutionality of this very ordinance?

Robert J. Collins:

I say that, sir, because where we have denied a permit in Illinois, the — they have gone to the courts and the — and there attacked the validity of the ordinance and the Illinois courts have sustained it.

Earl Warren:

Well, I thought you answered Justice Frankfurter that — that the courts had not tested this — this ordinance.

Robert J. Collins:

If — if I said that, I misunderstood Justice Frankfurter.

Yes, our courts have tested this ordinance and have been hereon at once.

Earl Warren:

You cite Black versus City of Chicago, 239 Illinois, United Artist Corporation versus Thompson, 339 Illinois and American Celebrities Union versus City of Chicago and all of those they did — they did —

Robert J. Collins:

Sustain the ordinance.

Earl Warren:

Save the ordinance and —

Robert J. Collins:

That is correct.

Earl Warren:

— in the manner that supports your position here.

Robert J. Collins:

That is through a —

Felix Frankfurter:

Where those —

Robert J. Collins:

— lower court —

Felix Frankfurter:

Where those cases where they denied the permit and the — the applicant challenged the denial?

Robert J. Collins:

Precisely.

Felix Frankfurter:

Is that the way the cases (Voice Overlap) —

Robert J. Collins:

Precisely.

Robert J. Collins:

And in — in those — in those cases as here —

Felix Frankfurter:

And those other cases, they did submit films and — and the application was rejected and they claimed that it was, for one reason or another, rejected in violation of the duty to grant it, is that right?

Robert J. Collins:

They claimed two things as they do here.

First, that the movie did not offend as the city said it did.

Felix Frankfurter:

And therefore, it should have been granted.

Robert J. Collins:

Yes, yes and secondly that the ordinance was unconstitutional.

Felix Frankfurter:

Yes, I understand.

Now, in this case, this is different because on this case, he didn’t tender a movie.

Robert J. Collins:

That is true.

Felix Frankfurter:

Let me clear about that.

In those other cases, movies were tendered for the granting of a permit and the permit was refused because the authorities thought that they violated the ordinance and they then said that they didn’t violate the ordinance, they should have granted on the merits.

He had challenged the power to require submission — he had challenged the power to not to call for a permit but to submit the movie in order to justify the granting of it.

Is that right?

Robert J. Collins:

That is correct.

What they say here, of course, in the other cases, Justice Frankfurter, they also attacked the constitutionality.

Felix Frankfurter:

I understand that.

They also attacked the ordinance but they did both things.

They did —

Robert J. Collins:

That is correct.

Felix Frankfurter:

— should granted under the ordinance.

We’re entitled to have it.

Of course, we — we do not come in with the — we do not come within the prohibition of the ordinance.

Robert J. Collins:

That is correct.

Felix Frankfurter:

Here, they do not make any such claim, do they?

Robert J. Collins:

No, they do not.

Felix Frankfurter:

They say you should have granted us because you couldn’t possibly withhold no matter what the movie is and we will show it to you.

Robert J. Collins:

That is correct.

They said we could not —

Hugo L. Black:

And that was — that was also involved in the other cases after the — as I understood you.

Robert J. Collins:

In the other cases after the Court — the Court considered whether or not the movie was obscene and whether or not it was constitutional and having arrived at the conclusion in the other cases that it was obscene, therefore, it was required to determine whether or not the ordinance was constitutional and it upheld —

Felix Frankfurter:

Whether they needed any permit.

Robert J. Collins:

Whether they needed a permit.

Felix Frankfurter:

It isn’t — and that the claim was made (a) they’re entitled to the permit within the ordinance, (b) they don’t need the ordinance is invalid and therefore, they don’t need a permit.

Here, he said he should grant them of permit because he has no business to see what the film is.

Is that right?

Robert J. Collins:

He says we have no constitutional right to require the exhibition of the film.

Felix Frankfurter:

But they want the permit?

Robert J. Collins:

But they want the permit.

Hugo L. Black:

Which is one of the things the Court passed on in the state cases, as I understood you.

Robert J. Collins:

The Court —

Hugo L. Black:

What they do is — what they do is to challenge it on the ground that the statute is unconstitutional and it requires a prior censorship of the movie.That’s right, isn’t it?

Robert J. Collins:

In — in at least one of the case, they contended that it was unconstitutional because it abridged the freedom of speech and the press under the First and Fourteenth Amendment.

Hugo L. Black:

And the Court passed on them?

Robert J. Collins:

And the Illinois court passed on them.

Of course, the earlier cases, Justice Black, were before your pronouncements here, were before the — I think the first case was before the Mutual of Ohio case.

So —

Hugo L. Black:

Well, are you presenting that as the reason why the — we should send it back to the — of the State Supreme Court to pass on whether or not this constitutional objection is valid or do you say they’ve were already passed on?

Robert J. Collins:

I say that the Illinois courts have held that this ordinance is constitutionally valid.

Hugo L. Black:

Against this attack here.

Robert J. Collins:

Against the attacks made in those cases.

Now, Justice Black, I am not certain.

I —

Hugo L. Black:

Well, what I want to —

Robert J. Collins:

I thought the attack was the same as here, but I —

Hugo L. Black:

— what I want to get at is, if you’re raising the question that in some way, the State of Illinois had them sustained constitutionality of the act against this attack.

Are you raising that question or is — is that a raisable question do you think?

Is it — is it a reasonable ground to believe that they would hold that this attack is a valid one constitutionally?

Robert J. Collins:

Well, of course, this attack, this precise attack, I don’t believe was before the Illinois court because this precise attack — he wants a permit without bringing in the movie.

That was not the case before.

Hugo L. Black:

Well, he wants — he does it — but that’s on the ground that the statute is unconstitutionally because it requires a prior censorship.

Robert J. Collins:

Well, that is true.

That is what he —

Hugo L. Black:

And —

Robert J. Collins:

— alleges here.

Hugo L. Black:

— are you saying that the State hadn’t passed on that, so it’d be advisable for us to send it back, is that what you’re arguing?

Robert J. Collins:

No, I’m not arguing that, sir.

This — I’m arguing that this ordinance is valid.

That we have a right to require it to be exhibited to us privately before it can be exhibited in Chicago.

Felix Frankfurter:

One can look at the record and one will.

So far as you have knowledge, what is the point — what is the question Justice Whittaker raised a little while ago in those other cases namely that they’re entitled to a permit but with — can withhold a showing that’s a very different thing from saying the whole thing is bad and I don’t have to make any application.

I’m not now indicating, I don’t — because I don’t know.

I —

Robert J. Collins:

Well, I — I cannot —

Felix Frankfurter:

(Voice Overlap) of that — of that distinction that Justice Whittaker has pointed out that it’s one thing to say, “I do not have to apply and I can show it without your lead.

It’s another thing that you must give me lead.”

So I do not need to show it.

William O. Douglas:

Well, that was just one of the alternate prayers anyway.

Robert J. Collins:

I — I do not — I cannot conceive, Justice Frankfurter, of a permit being issued but denying the right to exhibit.

I — such a situation has never existed.

If we issue a permit, it is to exhibit.

Earl Warren:

Do I understand you raise no question about whether the Supreme Court of Illinois should have an opportunity to pass on this issue before they come into the federal courts?

Robert J. Collins:

I have not raised that point.

I would like my associate in addressing the Court very briefly on the question of a justiciable controversy here and as to whether or not this is a substantial type of question.

We are convinced that the city is very much in need of the protection of this ordinance.We respectfully asked the Court to (Inaudible) it.

Felix Frankfurter:

In fact, this application went to the Mayor, didn’t it?

Robert J. Collins:

Oh, yes.

All applications due before they can get to the courts.

They would fail to exhaust their administrative remedies.

They did not do that and the mayor acted.

Thank you very much.

Earl Warren:

Mr. Drebin.

Sydney R. Drebin:

Mr. Chief Justice and members of the Court.

I think there — there’s a serious question that must be decided by this Court before they get to the merits of this case namely, whether or not the ordinance is constitutional in regard to prior restraint.

Both the District Court and the Circuit Court of Appeals held that there was no justiciable controversy.

The District Court proceeded on the theory that the petitioner should submit the film to the commissioner of police because otherwise — or if he did and if it was found not objectionable, the license would have issued and then there would have been no litigation.

The Circuit Court of Appeals took a slightly different slant.

Circuit Court of Appeals said, “We cannot decide this case in the vacuum.

We must see the movie to determine whether or not it is obscene.”

Counsel for the petitioner attempts to answer these contentions and I say that the ordinance is unconstitutional especially that portion of the ordinance that requires him to submit the movie prior to the time of showing that.

And his basis seems to be limited to the contention that the ordinance is unconstitutional.

In my opinion, he is predetermining the very issue that is before this Court today.

Hugo L. Black:

You mean he’s predetermined it or he’s raised it?

Sydney R. Drebin:

I cannot hear you.

Hugo L. Black:

You mean he has predetermined it or he has raised it good?

Sydney R. Drebin:

He has raised the question.

In my opinion, at the present time, the municipal ordinance say censorship ordinance of the City of Chicago is constitutional.

And until this Court or some other court of competent jurisdiction determines that it is unconstitutional, then this petitioner must comply with the provisions thereof including the submission of this motion picture to the commissioner of police prior to actual showing it.

Hugo L. Black:

I don’t quite understand that argument.

You mean in order to raise the question of whether the act is unconstitutional in requiring him to present it, he must present it?

Sydney R. Drebin:

Yes sir.

Hugo L. Black:

Otherwise, he can’t raise the question, it’s unconstitutional.

Sydney R. Drebin:

That’s right.

And I think that the array — the way that he should raise the issue is to submit through the commissioner of police a pornographic picture.

Then the issue would be definitely raised.

Then, of course, the commissioner would — the police commissioner would deny the permit.

John M. Harlan II:

He might want to present a non-pornographic picture.

Sydney R. Drebin:

Then he is not harmed.

In other words, we must get over —

Hugo L. Black:

You mean if they — if they decide it’s not pornographic, he’s not harmed.

Sydney R. Drebin:

That’s right.

Sydney R. Drebin:

Well, I presume that when Mr. Justice Harlan says maybe he decides not to submit such a movie or film.

So, therefore, he either has to submit the movie or he must — (Inaudible) submit the movie.

Potter Stewart:

Well, I say it wouldn’t be a proper way to — the — the — seem cut away, they would attack the ordinance for you to publicly exhibit a movie without going at all to the commissioner of police in advance, that would — that would —

Sydney R. Drebin:

That is true.

Potter Stewart:

(Voice Overlap) issue whether or not this ordinance is —

Sydney R. Drebin:

That is true.

Potter Stewart:

— constitutionally valid, wouldn’t it?

Sydney R. Drebin:

That is true.

Especially if the —

Potter Stewart:

(Voice Overlap) —

Sydney R. Drebin:

— picture was pornographic.

Potter Stewart:

Well, whether or not, whether it was Little Lord Fauntleroy if he didn’t exhibit it or submit it to the commissioner of police in advance but simply made a public exhibition of it that would violate this ordinance, wouldn’t it?

Sydney R. Drebin:

Yes, but it may not raise the constitutional question because it is our opinion that prior restraint is limited to motion pictures number one and number two to obscene motion pictures.

John M. Harlan II:

I thought what the Court of Appeals held was that this action is premature in that what he should have to do is to exhibit his picture, let himself be prosecuted if the State wanted to and then raise as a defense in the criminal prosecution, the constitutionality of the license statute.

Sydney R. Drebin:

That is not the way I understand the opinion of the Circuit Court of Appeals.

I don’t — I understand the opinion of the Circuit Court of Appeals nearly to be that we are not going to pass upon an abstract opposition of law.

That before we are going to decide whether or not —

John M. Harlan II:

Why is it abstract if as he says that the State has no right irrespective of the character of the picture to require a license?

Sydney R. Drebin:

Well, because —

John M. Harlan II:

Why is that abstract?

I don’t see why it’s abstract.

Sydney R. Drebin:

Because if the picture is not obscene and if he submits that picture to the local police commissioner, he will get a license.

Now, I — the Circuit Court of Appeals held that they wanted to see the picture because if the picture was not obscene, they would order the permit to issue.

If they ordered the permit to issue, then the question would not be before this Court today.

So therefore, in my opinion, it is necessary for the plaintiff to hurdle this first obstacle and that is that he did not present a justiciable controversy in the trial court or in the Circuit Court of Appeals.

Earl Warren:

You say the Circuit Court of Appeals insisted on seeing the picture itself?

Sydney R. Drebin:

They said that it would not — they could not decide.

Earl Warren:

But I thought you said the Court of Appeals said they wanted to see the picture.

Sydney R. Drebin:

That is right and they would not decide a constitutional question unless they knew all of the facts and all the facts included a — a viewing of the picture to determine whether or not it was obscene.

Earl Warren:

Well, did the Court of Appeals want the picture to be viewed by themselves even though it had not been passed on by the court below?

Sydney R. Drebin:

No, sir.

No.

They — they made the statement that the picture was not submitted either to the court below or to them.

Felix Frankfurter:

Well, what — I wonder if — if what was just said — isn’t what you said in answer to the Chief Justice?

As I understood the Chief Justice did ask you if the Court of Appeals expressed the readiness in order to pass on the case and have the film shown to them although it had not been shown to the city authorities.

Sydney R. Drebin:

The opinion does not so state.

The opinion merely —

Felix Frankfurter:

Doesn’t it (Inaudible).

We are being asked — we are being asked to adjudicate an abstract question of law based upon an incomplete junction of facts without knowledge of the film’s content, the District Court and we are not in the position to determine whether — whether a plaintiff has a right to exhibit its films without city censorship.

I should think it’s ordinary interpretation to say that if it was shown to them, then it was as clean as houndstooth in the (Inaudible), then they would hold that they had no business — that — that they’re entitled to show it.

Does — does any inference allowable from language that’s what this means.

Sydney R. Drebin:

That is — that is true.

Felix Frankfurter:

And therefore your answer to the Chief Justice’s question.

Sydney R. Drebin:

Well, in other words —

Felix Frankfurter:

(Voice Overlap) call for reconsideration.

Sydney R. Drebin:

My answer to the Chief Justice’s question was in the manner of what — for this reason.

I understood the Chief Justice to say that did the Court request a showing of the picture.

And in my opinion, the Court did not request a showing of the picture.

The Court said that because the picture was not shown to us, we can’t —

Felix Frankfurter:

(Inaudible)

Sydney R. Drebin:

That’s right.

Felix Frankfurter:

But they didn’t so in any — didn’t say in any event, it is not for us to pass on this bill, you must first go to the city censorship.

Sydney R. Drebin:

That’s right.

Felix Frankfurter:

They didn’t say that, didn’t they?

Sydney R. Drebin:

No.

No, but they did not —

Felix Frankfurter:

They — they — but your point now is that they didn’t say — we — we asked you to show it to us and you deny it.

They said, “You haven’t made — attended to show it to us.”

Sydney R. Drebin:

That’s right.

Hugo L. Black:

Suppose they had made a —

Felix Frankfurter:

(Voice Overlap) District Court.

Hugo L. Black:

— suppose they hadn’t made it (Inaudible).

You mean that the Court of Appeals then the first act of the expert on determining whether this picture had in effect upon the query of mind before they let the experts in the City of Chicago passed on it?

Sydney R. Drebin:

I doubt that.

I think personally that they would suggest that there’d be a showing to the commissioner of police.

However, that is our presumptive because the facts are that the petitioner did not tender.

Felix Frankfurter:

I think they’re — I — I think if one, insofar as what the Court of Appeals did is relevant, they, as one reach it as I have said, they said, “You haven’t shown us.

You have to show neither to the District Court nor to us but still, on the showing of which we may find that it is as pure as a new born baby.

And if that was so, then we would grant your prayer and direct the censors to issue the permit.

That’s the implication of say you haven’t shown it to us because if you would show it to us, we’d find it not offensive to the permits of the ordinance, then we would grant you a prayer to compel the commissioner and the Mayor to issue that permit.

Hugo L. Black:

But that would — they — they had planned to do that.

That would amount to (Inaudible)

Sydney R. Drebin:

I had never thought of the question in exactly the same way that Mr. Justice —

Felix Frankfurter:

Well, I’m not now saying that that was some legal — I’m — I made no reference what I think about it.

I’m merely concern with interpreting what the Court of Appeals has done.

It seems to me they’ve done that.

They said, “You — you ask the District Court to compel the commissioner or the Mayor,” commissioner denies it, “the issue of permit.”

Now, then can you object that he didn’t issue a permit?

You come in to court and want us to tell the commissioner to issue a permit.

We will issue a permit if on seeing it, he see that he should issue a permit.

That’s what I get out of the opinion.

Sydney R. Drebin:

So that in our opinion, the petitioner has not presented a justiciable controversy and therefore, this Court should summarily affirm the judgment of the Circuit Court of Appeals without going into the issue of whether or not our ordinance is constitutional.

Hugo L. Black:

Now, what — what’s the reason for that summary of disposition that —

Sydney R. Drebin:

Because the —

Hugo L. Black:

— that it’s abstract that this people —

Sydney R. Drebin:

— because — that’s right.

Hugo L. Black:

— really have no controversy with you at all.

Sydney R. Drebin:

That’s right.

That they have not presented a justiciable —

Hugo L. Black:

Well, it — it wind up — it wind up if we did that, wouldn’t it, with them being denied the right to show the picture that they’re showing it to you.

Sydney R. Drebin:

I — I did not understand you.

Hugo L. Black:

It would — it would summarily dispose of what probably — usually be considered a controversy, their denial that you have a right to demand for — to see that picture.

Sydney R. Drebin:

The officials of the City of Chicago believe as my associate had said that this ordinance is necessary to protect the welfare and morals of the citizenry of the City Chicago.

Potter Stewart:

How many cities the United States have this kind of ordinance?

Sydney R. Drebin:

I did not hear you.

Potter Stewart:

How many cities in the United States have this kind of an ordinance?

Sydney R. Drebin:

I do not know.

We have not researched that problem and I do — I would not be — have to.

Potter Stewart:

Not — not very many, that’s correct, isn’t it?

Sydney R. Drebin:

I would not be able to answer that question, Your Honor.

Potter Stewart:

Only two — only two States have provisions for prior licensing of motion pictures, isn’t that true?

Illinois and New York?

Sydney R. Drebin:

I think that you’re right, yes, sir.

Earl Warren:

If the — if the petitioner wanted to get his rights through the state courts, what procedure would he adapt in the situation of this kind for the — for the Mayor and the commissioner refuse the permit?

Sydney R. Drebin:

The same as it was adapted in this case here.

The only reason that is before the federal court is that there is a diversity of citizenship.

Earl Warren:

Oh, I — I didn’t understand that it was here on diversity of citizenship —

Sydney R. Drebin:

Yes.

Earl Warren:

— but that is the reason —

Sydney R. Drebin:

That is right.

Earl Warren:

— it’s here, is it?

Sydney R. Drebin:

That’s right.

Earl Warren:

Oh, oh, yes.

Well, I didn’t understand that.

Sydney R. Drebin:

Citizen — the officials of the City of Chicago believe that the enforcement of this ordinance does act as a deterrent to crime and to juvenile delinquency.

We ask this Court to join the city officials of the City of Chicago in their continuing effort to make Chicago a better place to live by affirming the judgment of the Circuit Court of Appeals.

Thank you.

Earl Warren:

Mr. Mikva.

Abner J. Mikva:

Mr. Chief Justice, members of the Court.

Let me first address myself to this procedural question that has arisen which I think is best exemplified by Justice Stewart’s question as to what would have been the easiest way to raise this question.

Abner J. Mikva:

It would not have been possible in our opinion to go ahead and show the movie and then defend against the prosecution under this ordinance on the ground that we will deny the movie — we were denied the permit because of obscenity because that kind of a defense ignores two other sections of this ordinance which we think or at least we’re not prepared to challenge.

One is a revenue section.

The city gets quite a bit of revenue out of this ordinance, 1553 provides for permit fees and transfer permit fees.

And the second is a registration section of this ordinance which we are not challenged which requires each subsequent transferee to advise the city as to what theater the picture is playing it.

Now, as far as I can see, either of those or both of those are perfectly, constitutionally valid so that if we came in and tried to defend against a prosecution for refusing to have a permit, a court, whether it was state or federal, would be perfectly justified in saying to us, “Look here, you may be right but you have no right to ignore these other constitutional sections of the ordinance and therefore, you cannot ignore the licensing procedure.”

William J. Brennan, Jr.:

Conviction would go off on a state ground (Voice Overlap) —

Abner J. Mikva:

That’s correct, sir.

William J. Brennan, Jr.:

— in the federal constitution (Voice Overlap) —

Abner J. Mikva:

That’s correct, sir.

The second reason —

Earl Warren:

Couldn’t you offer to comply with those?

Abner J. Mikva:

Yes, we did.

We tendered the permit fee and we offered to meet every other section of the ordinance and did meet it other than this requirement of prior submission.

Earl Warren:

But wouldn’t that take — wouldn’t that take those issues out of the case?

Abner J. Mikva:

If on a criminal prosecution, I don’t see how, sir.

Then we are being prosecuted —

Earl Warren:

Oh, oh, that was —

William J. Brennan, Jr.:

(Voice Overlap) exhibit without — without a license.

Earl Warren:

— I didn’t —

Abner J. Mikva:

We are then being prosecuted for being there without a license and it has nothing to do with —

Felix Frankfurter:

I — I had supposed that’s — I had supposed that’s a real complaint that under the United States Constitution, you can exhibit without a license.

Abner J. Mikva:

You can exhibit?

Felix Frankfurter:

Yes.

Abner J. Mikva:

You can?

Felix Frankfurter:

One can exhibit without a license.

Abner J. Mikva:

We say one can exhibit without a discretionary license.

I don’t know that if these were purely non-discretionary license which is what would be left to the ordinance if our position is sustained, I don’t know that the Constitution forbids a purely administrative non-discretionary type of license (Inaudible).

William O. Douglas:

Serving what purpose?

Revenue or what?

Abner J. Mikva:

Revenue, registration —

William J. Brennan, Jr.:

I suppose police purposes.

Abner J. Mikva:

Police purposes —

William J. Brennan, Jr.:

I want to know where the pictures (Voice Overlap) —

Abner J. Mikva:

They want to know where the picture is being exhibited.

William J. Brennan, Jr.:

(Inaudible)

Abner J. Mikva:

Right.

Now, we —

Tom C. Clark:

(Inaudible) do that?

Abner J. Mikva:

Well, my second reason?

Tom C. Clark:

(Inaudible)

Abner J. Mikva:

They were —

Tom C. Clark:

(Inaudible)

Abner J. Mikva:

There were purely alternative counts.

Our first count asked this city to — that a mandatory injunction be issued directing the city to issue a permit.

Now, that was the second reason for this procedure.

This is the judicial gloss that was placed up in this ordinance by Illinois’ Highest Court, the Illinois Supreme Court in the American Civil Liberties Union where these issues were squarely raised where the constitutional question was decided adversely to our position.

We freely admit that.

And there, the Illinois Supreme Court said that were the petitioner has a complaint to make about some section of the ordinance, he can come in by way of injunction proceedings seeking to enjoin the Mayor or mandamus, they said either one, seeking to enjoin the Mayor and the police commissioner to issue them the permit that they request.

And I quote, if I may, from that part of the case whether —

Felix Frankfurter:

What’s the citation of that?

Abner J. Mikva:

It’s the American Civil Liberties Union versus City of Chicago, 3 Illinois 2nd 334 page 352, it’s quoted on page 11 of our brief.”

If the plaintiff however,” I’m quoting now, “alleges that one or more of the conditions required for a license are invalid, he may proceed either by mandamus or by injunction.

Whether a complaint alleging only that a motion picture is not obscene would state a ground for equitable relief, we need not decide.”

In the present case, the plaintiff does not (Inaudible) at their complaint for they asserted that the ordinance was invalid and claimed the right to exhibit their — their film without obtaining a permit.

Felix Frankfurter:

That’s just count two here, isn’t it?

Abner J. Mikva:

That’s correct and the state court there held that the ordinance was constitutional against the subject and therefore, that — that is, I say, the highest —

Felix Frankfurter:

But I am —

Abner J. Mikva:

— interpretation placed on.

Felix Frankfurter:

— honestly, I don’t see how if you claim the ordinance is — is unconstitutional, how that would — how you’d only be involved in the state ground.

Abner J. Mikva:

We claim that the requirement of the ordinance that says you must submit your picture in advance is unconstitutional.

Felix Frankfurter:

I — I understand.

I thought that was your claim there.

Abner J. Mikva:

That’s correct.

Felix Frankfurter:

That’s not a state ground.

Abner J. Mikva:

No, but they — they denied our federal ground and this Court denied to review that case, therefore, one of our final judgment because there were both grounds involved there.

Maybe I can explain at this way, Your Honor.

The state court acted exactly contrary to the way the federal court would act in the similar situation.

The federal court would say if there is a non-constitutional question to be reached and decided and that disposes of the case, we will not decide the constitutional question, if I understand my legal precedence correct.

And therefore, once the non-constitutional question is decided, that’s the end of the case.

The Illinois Supreme Court did not act that way, they decided both questions.

They decided the non — both the constitutional question and then send it back for a finding on the non-constitutional question.

That’s what they did in that case.

Felix Frankfurter:

Please tell me how if you were exhibiting this film tomorrow and you were directed or you were brought in to court for (Inaudible).

Abner J. Mikva:

Yes.

Felix Frankfurter:

And you claim the invalidity of the scheme as an entirety.

Abner J. Mikva:

As an entirety, then you are correct, Your Honor.

Felix Frankfurter:

How could you possibly not be raising a federal question?

Abner J. Mikva:

We might be raising a federal question but I’m afraid it would be decided adversely to us because —

Felix Frankfurter:

But why?

Abner J. Mikva:

I think —

Felix Frankfurter:

Well, it would be decided adversely but then you’d come up here.

Abner J. Mikva:

But I think that the revenue section of this ordinance is constitutional.

Felix Frankfurter:

But you — you don’t — if you’re prosecuted for that, you — you say you make no objection.

The controversy isn’t whether to pay $5 or $10 or $3, whatever it is.

The controversy is about showing it without a permit.

Not —

Abner J. Mikva:

But —

Felix Frankfurter:

— without having paid $3.

Abner J. Mikva:

But you can’t get a permit unless you pay the money.

Felix Frankfurter:

Yes, but — and you’re not in court because you don’t want to pay the money, you’re in court because you don’t want to commit the film.

Abner J. Mikva:

All I can say there again is that the city themselves conceded that if we showed this movie without a permit, we would be prosecuted on the ground that we didn’t have a permit, not that we didn’t submit the picture, but that we didn’t have a permit.

Felix Frankfurter:

And that’s right.

Abner J. Mikva:

And —

Felix Frankfurter:

And you would then answer that you haven’t got a permit because you think the Constitution of the United State stage you from having a permit.

Abner J. Mikva:

Only as to certain requirements of this ordinance, Your Honor.

Tom C. Clark:

But suppose you were to file your application along with — with $25 now, what — what —

Abner J. Mikva:

That’s correct.

Tom C. Clark:

— what is (Voice Overlap) —

Abner J. Mikva:

Well, it varies.

It’s $3 per (Inaudible) fee.

Tom C. Clark:

In cash.

Where is the application on (Inaudible).

Abner J. Mikva:

Right.

Tom C. Clark:

And then they denied (Inaudible)

Abner J. Mikva:

Right.

Tom C. Clark:

Maybe you’ll go ahead and (Inaudible) distributors and they (Inaudible) what do you think would be your defense there?

Abner J. Mikva:

I suppose at that point, you might be able to raise the same defense.

I think the question is, is there something magical over that method of procedure over the one we did which is almost like years except that at the point where they said, “You can’t have the permit because you won’t show us the picture,” instead of going ahead and showing the film, we then took the further review that the ordinance authorizes under the interpretation of the Illinois Supreme Court and they further review, there has been authorized by this Court in other cases.

We cited the Cargill case in our brief wherein a non-First Amendment kind of a case where the person was entitled to come up and appeal after it offered to comply with the constitutional portions, refused to comply with the unconstitutional portions, it was then permitted to — to prosecute its appeal to have the unconstitutional portion declared invalid.

Felix Frankfurter:

The question isn’t what the Supreme Court of Illinois would be, the question is whether this Court with the case that you came here on a prosecution in which you tendered the $3 over $30 and they said, “We want to see the film” and you said, “I have nothing to do with it.”

You then showed it in a prosecutor, the first thing that this one I’m considering, the presence is whether it would be — whether this Court was conceivably vague, that if you satisfied your portions of the ordinance that had nothing to do with the free speech trade that you couldn’t come up here to raise the free speech trade.

It’s just not conceivable.

Abner J. Mikva:

Can I answer this way, Your Honor, that I’m not sure that it would be any clearer case than this.

And again, I wanted to cite this — this Cargill case.

Well, that it exactly what the petitioners did.

And this Court said if the commission refused to grant a license because the applicant in the one case refused to comply with statutory provisions or with rules or regulations inconsistent with the Constitution of United States, the rights of the applicant or the license could be protected and enforced by appropriate judicial proceedings.

It didn’t say only in criminal proceedings for proceeding without a license, it said appropriate judicial proceeding.

William O. Douglas:

But your —

Hugo L. Black:

What case are you reading from?

Abner J. Mikva:

Cargill versus Minnesota, 180 United States 452, page 468.

Abner J. Mikva:

We cited at page 8 of our brief.

John M. Harlan II:

Well, your real point is that you shouldn’t be forced to test the constitution — constitutionality of the statute to go through a criminal proceeding.

Abner J. Mikva:

That’s correct, Your Honor.

John M. Harlan II:

But you can do it by bringing an injunction?

Abner J. Mikva:

Right and —

Felix Frankfurter:

That’s a different point.

Abner J. Mikva:

No, it’s the same.

Felix Frankfurter:

That’s a different point.

I am saying that if you did go through, you could’ve raised the point.

Abner J. Mikva:

I’m saying it’s one of the —

John M. Harlan II:

(Inaudible)

Abner J. Mikva:

May I rephrase it this way then, Your Honor.

I’d say its one of the risks we would take in going —

Felix Frankfurter:

I’m —

Abner J. Mikva:

— to the other way.

Felix Frankfurter:

— I’m saying — I’m suggesting you’re taking no risk.

Abner J. Mikva:

I’m — we’ll remember that for our future case, Your Honor.

Felix Frankfurter:

Well, that’s the only —

John M. Harlan II:

No risk of review but risk of the unpleasantness of (Voice Overlap) —

Abner J. Mikva:

Of the unpleasantness —

John M. Harlan II:

— in this case.

Abner J. Mikva:

— of — of —

Felix Frankfurter:

That’s a different story.

Hugo L. Black:

May I ask, just — perhaps, you — you don’t — you don’t have to answer probably.

Well, I’m wondering.

Why didn’t you file it in the state court?

Abner J. Mikva:

In the state court?

Hugo L. Black:

Yes.

Abner J. Mikva:

I — actually —

Hugo L. Black:

(Voice Overlap) —

Abner J. Mikva:

The main —

Hugo L. Black:

— they said you could.

Abner J. Mikva:

— the main reason is delay.

Hugo L. Black:

You mean it’s been long delayed longer there?

Abner J. Mikva:

Yes, federal —

Hugo L. Black:

You had a quicker trial in the federal court.

Abner J. Mikva:

It’s much quicker in the federal court.

The — and —

Felix Frankfurter:

Of course, you get many suits into the federal court.

We’ll get the same time (Inaudible)

Abner J. Mikva:

I am sure that’s correct, Your Honor, but it was the main reason here for avoiding the state court.

There would have been one more level of review to go through too, of course, in the state court and it wasn’t the federal system because we do have the trial courts, the appellate courts and the Illinois Supreme Court which had already ruled on this question.

Felix Frankfurter:

(Inaudible)

Abner J. Mikva:

Well, the Illinois Supreme Court had already ruled again on this very question.

Now, I’d like to address myself to what I think is the other central issue here that’s been raised.

Discontinue referring to the idea that this picture must be presumed obscene.

And there’s a syllogism there that’s very important because without the major premise that the city and the court below adapts that this picture must be presumed obscene simply because we didn’t submit it.

There is no basis for upholding the interference.

This Court has said there are some cases where interference with speech is permitted and it has detailed the kinds of speech and kinds of situation in which such interference is tolerating such as using Kingsley books as the best example.

Obscene speech is not protected by the First Amendment.

Well, therefore, for them to bring themselves within the exception of the Kingsley case, they must say that this film has been presumed to be obscene.

There’s no finding of obscenity.

Nobody ever said it was obscene except all that was before the city was the title of the movie.

So then unless they say the whole art is presumed to be obscene, unless and until it’s brought to — to review and it’s proven innocent —

Charles E. Whittaker:

May I ask this, sir?

Abner J. Mikva:

Yes, Your Honor.

Charles E. Whittaker:

Aren’t you asking for a permit to show this picture whether or not it is obscene?

Abner J. Mikva:

Your Honor, let me say something about the permit.

Justice Frankfurter asked that question.

The permit is a little blue strip of paper at Chicago.

Abner J. Mikva:

It has the name of the picture, the amount of the license fee and it’s signed by the city collector.

It is not the city sanctioning, approving or authorizing the showing of the film.

It is a permit fee.

And as the — they say it, the issuance of this little blue permit, that’s all the city does when it issues the permit.

The Court is not being asked to sanction or authorize the showing of this film.

Felix Frankfurter:

How can you say the city isn’t authorizing?The city certainly is authorizing.

Abner J. Mikva:

No more —

Felix Frankfurter:

If you say it isn’t approving of it, I can understand but when you (Voice Overlap) —

Abner J. Mikva:

I — I meant authorizing in terms of —

Felix Frankfurter:

— that’s exactly —

Abner J. Mikva:

— approving.

Felix Frankfurter:

— what it’s doing.

Abner J. Mikva:

It is not approving of the contents —

Felix Frankfurter:

Alright.

Abner J. Mikva:

— of the film.

It might be a very bad film.

The city is not saying that it’s a good film.

Hugo L. Black:

But its saying, isn’t it, that it — it can be shown as not obscene?

Abner J. Mikva:

No.

The city is saying that?

Not at the time it issue —

Hugo L. Black:

But when does it say?

Abner J. Mikva:

If it’s — if it’s submitted, yes, you —

Hugo L. Black:

You raised — you raised the question in my mind, if whether you have any case at all (Voice Overlap) —

Abner J. Mikva:

No, no.

I —

Hugo L. Black:

— you’d say that.

Abner J. Mikva:

I was addressing myself to the hypothetical that Justice Whittaker asked before.

Under the present ordinance —

Charles E. Whittaker:

Oh, I’m not (Voice Overlap) —

Abner J. Mikva:

— of course they’re saying it’s obscene.

Charles E. Whittaker:

— (Voice Overlap) cases here I’m asking you by this very suit.

You aren’t asking the Court to direct the city to issue a license to show this film whether or not it’s obscene.

Abner J. Mikva:

Whether or not it’s obscene because there’s no reason to assume that it is obscene.

Charles E. Whittaker:

Well, is there a reason to assume that it is not?

Abner J. Mikva:

No.

And therefore, it’s the same thing as — as a printing press or any other form of communication.

You make no assumption about it.

It’s up to the city and the State to come forward with pretty convincing proof that this falls within one of the exception areas.

Felix Frankfurter:

Well, suppose they — well, are you now saying that what all this (Inaudible) about is that there’s a presumption that your film satisfy — does not offend the restriction of the ordinance and that is any such assumption is to be — any such factor entered into the situation and the police commissioner should say, “We have very good grounds from believing that this is a dirty film and show it to us.”

Would you think the city was entitled to see it?

Abner J. Mikva:

It would be a different case, Your Honor.

I don’t know that’d be — say be entitled to see it but it’s not this case.

Your Honor, this is the same thing that could be said —

Felix Frankfurter:

I should think the Court (Inaudible) — I should think the Court would say but instead of indulging into presumptions one way or another, why don’t you show it?

(Voice Overlap) —

Abner J. Mikva:

Well, let me get to that.

Felix Frankfurter:

It’s not one way or the other.

Abner J. Mikva:

Your Honor, let me get to the reasons why we won’t show it.

And that really is — is the other part of this defense that the court below has put up.

Felix Frankfurter:

You’d say it would be a different case if the police commissioner said the fact of the matter is I’ve had applied a showing of it and based on that, I think I wanted to do the film.Do you think that would be a different case?

Abner J. Mikva:

It would not be this case.

I know that’d be decided the same as this case or not.

But I’d like to say the reasons, if I may, Your Honor, why we think that this refusal to submit is important.

All that the city has come up with and all that the court below has come up with is that somehow movies are different than newspaper.

No, the Chicago Tribune can’t be submitted — required to submit to this requirement but motion pictures can.

Why?

And all we get — come up with — and I kept writing down the different answers that the city gave to these questions both here and of the Court of Appeals, the only one I finally distilled out is that it’s shown in the dark.

Well, it seems to me that they’re using a pretty big shotgun because of their fear of the dark.

The fact of the matter is that a motion picture is a communication at least it has to be presumed to be one.

Felix Frankfurter:

Well, you want to raise this abstract question, is that it?

Abner J. Mikva:

No, let me say why it’s not abstract, Your Honor.

Let me —

Felix Frankfurter:

You just stated the —

Abner J. Mikva:

— say the things that —

Felix Frankfurter:

— you just stated —

Abner J. Mikva:

What?

Felix Frankfurter:

— as an abstract proposition, that you —

Abner J. Mikva:

What?

Felix Frankfurter:

— wanted to get after this — this question of the dark and you think that doesn’t appeal to your reasoning powers but if the police commissioner had good grounds for thinking it was dirty, then you think it would be a difference case.

Abner J. Mikva:

Your Honor, in Kingsley books, which is the furthest this Court has ever gone, the Court relied on a specific finding indeed I think an admission of pornography to justify the extraordinary interference with freedom of speech.

We say there must be something comparable to that.

I’d like to hope, Your Honor, that it will be at very — the very least that requirement.

But we’re saying that at least there must be something comparable to that requirement met in a case before the interference can be justified.

Just at what point the Court is going to draw that line is a hard question for me to answer, Your Honor.

As I say, I hope it would not go beyond the point it was drawn in the Kingsley Books case.

But certainly, even in that case which drew the line further than it had ever been drawn before, there was a firm and positive finding by a court that the matter was obscene.

Felix Frankfurter:

But in the Near against Minnesota, it was conceded that the stuff was — was vicious stuff and the doctrine was laid down but they can’t have prior censorship of loose cases.

Therefore, you, yourself have already indicated the difference between films and newspapers —

Abner J. Mikva:

Well, I’d like to —

Felix Frankfurter:

— because you’ve said there ought to be something.

Abner J. Mikva:

No, no, Your Honor.

If I said that, then — then I misspoke.

I said I can’t answer where this Court would draw that line.

It is a different case than this case.

And conceivably, the Court could draw the line.

Yes, some kind of finding is alright but no, this kind of shotgun approach is not.

That is the point I’m trying to make.

Felix Frankfurter:

I’m suggesting that in Near, drawing lines would reject it.

Abner J. Mikva:

Pardon?

Felix Frankfurter:

I’m suggesting that in Near, drawing line would reject it with reference to newspapers.

Abner J. Mikva:

That’s correct.

Hugo L. Black:

Well, that’s the question I thought you had up and I seem to have fully —

Abner J. Mikva:

That’s not a —

Hugo L. Black:

— (Voice Overlap) based on a misapprehension that you say.

Abner J. Mikva:

No, the question is — the question is the same, Your Honor.

Hugo L. Black:

What — are you raising the question in Near versus Minnesota?

Abner J. Mikva:

Yes, Your Honor.

Hugo L. Black:

That here, this ordinance is invalid.

You don’t have to submit it, called — it’s a form of prior censorship —

Abner J. Mikva:

That’s correct.

Hugo L. Black:

— it is prohibited by the Constitution.

Abner J. Mikva:

Right, Your Honor.

Hugo L. Black:

Then what difference does it make whether you have presume one way or the other?

Abner J. Mikva:

I agree, Your Honor.

I — I believe —

Hugo L. Black:

I don’t understand all (Voice Overlap) —

Abner J. Mikva:

I am addressing —

Hugo L. Black:

— presumption on the question you raised.

Abner J. Mikva:

— I’m addressing myself to the question that was raised by some of the other Justices.

We don’t think that the presumption should go one way or the other, that it is not relevant.

William O. Douglas:

I think that — perhaps a confusion of reason by a reason of the first prayer of your relief, they may — should get a permit because if this permit system is unconstitutional, a permit becomes irrelevant.

Abner J. Mikva:

Purely — well, supposed it’s a purely a revenue permit.

William O. Douglas:

Well, that’s a — never — never statute —

Abner J. Mikva:

Well, I know —

William O. Douglas:

— but this is —

Abner J. Mikva:

— it’s part of the same statute, Your Honor, that’s our difficulty.

Section 1553 of this very ordinance is purely and simply a revenue measure which can stand by itself as far as I can see.

And if the Court would’ve strike — grant our full petition for relief, that section could still stand and the city could continue to collect revenue from every motion picture who has exhibited.

It’s not confiscatory.

Abner J. Mikva:

We’ve never claimed it was.

Felix Frankfurter:

But the suggestion if we’ve had a different case.

If the police commissioner had good grounds for suspecting that this is a dirty picture is not a confusing suggestion but a differentiating suggestion.

You say that was different.

You’re saying Kingsley there was a firm statement that it is pornographic.

Abner J. Mikva:

That’s correct, Your Honor.

Now, I don’t —

Felix Frankfurter:

(Voice Overlap) case that that is a very different thinking to say we don’t care whether it is pornographic.

It can’t be the center to begin with.

Abner J. Mikva:

Well — well we’ve never said — the question here is that how can you say it’s pornographic when you it — when you have nothing on which to base —

Felix Frankfurter:

I’m not saying it is, but I say there’s a difference between inquiring into the question as the basis of censorship and saying it’s irrelevant.

Charles E. Whittaker:

May I ask you this.

Abner J. Mikva:

Yes, sir.

Charles E. Whittaker:

If we were to grant the relief you (Inaudible) and that became the law, then would it not follow that every motion picture exhibitor could show any picture however obscene without any ability of — upon — the parts of the municipality to stop it?

Abner J. Mikva:

No sir, Your Honor.

Charles E. Whittaker:

Why not?

Abner J. Mikva:

Because the next statement that could come out of my mouth, Your Honor, could be an obscene statement.

I hope it isn’t.

No one says that I should go to either the District of Columbia or to the City of Chicago and get a permit to — before and tell them in advance what I’m going to say to this Court.

If I do make an obscene statement, this Court and the Government of the District have ample protection to — to punish me which in turn would deter others from making that statement and to keep me from making it in the future.

Charles E. Whittaker:

Well, then are you saying that the remedy is a criminal punishment?

Abner J. Mikva:

Yes, Your Honor.

Charles E. Whittaker:

And that there is no other power on the part of the State to enjoin obscenity?

Abner J. Mikva:

The limited — there is because this Court said so in Kingsley Books.

There are certainly — I would have to — I’d have to say there’s the limited injunction power of Kingsley Books but that was predicated, as I said before, on a finding of obscenity before that remedy was — was enforced.

John M. Harlan II:

But you won’t let us look at the film.

Abner J. Mikva:

Pardon?

John M. Harlan II:

You haven’t shown anybody the film.

Abner J. Mikva:

But nobody showed the book to the New York Board before the book was distributed in — in Kingsley Books either.

They want to have them and sold the book and then the police came in and read the book and decided it was obscene and persuaded the judge that it was obscene.

Abner J. Mikva:

And then the injunction was issued.

Now, that’s altogether different from this which says, “You submit everything to us and we will let the obscene — we will let the unobscene go through and the obscene cannot go through.

Now, but — and this is the last point I’d like to make, what is the importance of this refusal to submit to — to the motion picture distributor?

First of all, there’s a nature of the function of the censors.

What way it is that the censors work?

This Court has before it in the record of — of the different case between the same parties, a description, a detailed description of how the censors work and I cite that record to you not because the Chicago censors are better than or worse than other censors but because it is the nature of the animal.

Censors job is to censor.

Potter Stewart:

Does the police commissioner delegate the (Voice Overlap) —

Abner J. Mikva:

Yes, Your Honor.

Potter Stewart:

— before it (Voice Overlap) —

Abner J. Mikva:

He (Voice Overlap) censor for, just as the Mayor delegates it to his corporation (Voice Overlap) —

William J. Brennan, Jr.:

Are they ordinarily police officers?

Abner J. Mikva:

No, Your Honor, they are civilian employees.

William J. Brennan, Jr.:

Are there police officers?

Abner J. Mikva:

No, there’s a police sergeant who is in charge of the detail and censor board itself is usually six women or — or occasionally a man, the civilian employees of the police department.

Felix Frankfurter:

A permanent body or ad hoc?

Abner J. Mikva:

Well, they’re supposedly civil service but they are given temporary appointment somewhere between permanent and ad hoc.

Earl Warren:

Do you know how many cities have more censors like this?

Abner J. Mikva:

About 15, Your Honor.

Earl Warren:

15.

Abner J. Mikva:

And four States (Inaudible).

Earl Warren:

Four.

Abner J. Mikva:

Illinois is not one of the States.

Chicago has the ordinance but Illinois itself does not have any kind of prior submission — statute.

Felix Frankfurter:

(Inaudible)

Abner J. Mikva:

Yes, it was cited in the Motion Pictures Association brief amicus in their table at the back and that this — all of the cities and also the kinds of reviewer that they have.

The second thing I’d like to make is the difference between and perhaps this answers your question, Justice Whittaker.

The difference between this kind of proceeding, which I might add has hearing procedure, has none of the due process safeguards that a criminal proceeding would have.

There’s no presumption of innocence.

As I’ve indicated the presumption rather it’s one of guilt.

Abner J. Mikva:

Prove your pictures clean or else you can’t get a permit.

So the contrary, its the criminal procedure where it’s up to the prosecutor to prove to a trial court and perhaps even a grand jury in the first place and a judge, that this is obscene literature.

It was said best I might add.

Charles E. Whittaker:

Are you done by due process now?

Abner J. Mikva:

Due process in the sense of the kinds of protections that are afforded to speech rather than due process in the kinds of protection that are afforded the individual.

I think it was best said by this very Court of Appeals, Your Honor, sitting with a different panel in a case called Capital Enterprises versus the City of Chicago, in which the Court of Appeals for the Seventh Circuit said there is a wide difference between censoring motion pictures before deciding that they can be publicly exhibited and exhibiting a picture to the public for which criminal punishment might be imposed.

In the latter situation, all the familiar procedural safeguards come in to play while in the other instance, there are no procedural safeguards and communication is choked off at the threshold.

Now, I’m quoting from page 37 of our brief.

As I say this was a case where they reversed the censor board.

Significantly, I might add, the other function, the demonstrations of the functions of the censors is indicated from our appendix where every single decision of there banning a picture since Burstyn has been reversed if the — the Senate were to be alarmed.

Now, the other point I’d like to make is the timeliness of the speech.

Would the Declaration of Independence or the Gettysburg Address have been as effective if it has been made five years later?

With the great debates that are going on right now, these are effective if they were made after November 8th, as they are right now.

This case has been going on two and a half year, Your Honor.

The subject matter of American Civil Liberties Union versus City of Chicago was the miracle, the same picture involved in the Burstyn case.

It took five years to clear that picture under this ordinance.

And significantly, it never did show in the City of Chicago.

This is the kind of concern that this priority restraint brings about.

Felix Frankfurter:

I suppose it’s relevant but I just wonder how much American civilization has suffered through this segregation.

Abner J. Mikva:

That is the decision of the First Amendment says it should be left to the people.

Felix Frankfurter:

Well —

Abner J. Mikva:

And this —

Felix Frankfurter:

(Voice Overlap) if it covers you.

Abner J. Mikva:

If it covers.

I think that the only way you could say that it does cover, Your Honor, is to say that somehow this is not a speech but motion pictures communicate.

They express ideas, yes, and they express advocacy.

And the rights we fight for the day for Times Film is also and has the counterpart of the right to hear.

And unless you can find that this is not speech, it seems to me it’s governed by (Inaudible)