Times Film Corporation v. City of Chicago

PETITIONER:Times Film Corporation
RESPONDENT:City of Chicago
LOCATION:Alabama General Assembly

DOCKET NO.: 34
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 365 US 43 (1961)
ARGUED: Oct 19, 1960 / Oct 20, 1960
DECIDED: Jan 23, 1961

Facts of the case

Question

  • Oral Argument – October 20, 1960
  • Audio Transcription for Oral Argument – October 20, 1960 in Times Film Corporation v. City of Chicago

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

    Earl Warren:

    Number 34, Times Film Corporation, Petitioner, versus City of Chicago, et al.

    Mr. Bilgrey.

    Felix J. Bilgrey:

    Mr. Chief Justice, may it please the Court.

    This case which is here on certiorari presents a state court an important question, whether or not a municipality may exclude all motion pictures for public view, unless and until they have been first submitted to a censor for the examination and censorship of their contents.

    The facts are as follows, the petitioner is engaged in the business of releasing motion pictures nationally.

    It has the exclusive right to license in the City of Chicago a motion picture entitled “Don Juan.”

    We applied to the commissioner of police who pursuant to the ordinance is to censor for a permit pursuant to the ordinance.

    We completed the application and the application was then tendered to the police commissioner with the licensing fee and the police commissioner refused the application on the sole ground that the motion picture itself had not been submitted for censorship.

    We then repeated the application to the mayor because the ordinance provides that in case of a denial of a permit, the application may again be made to the mayor and we again make — made the application for this motion picture.

    We’ve tendered the licensing fee and we again refused to submit the motion picture, and the license was denied exclusively on that particular ground.

    We then filed a complaint in the Federal District Court and we alleged diversity of citizenship because the petitioners in New York concerned and we also alleged that the action arises pursuant to the First and Fourteenth Amendments and we also allege that the damages exceed the amount of $10,000.

    Now all these facts are admitted by the respondents.

    There’s no question about facts, and the respondents have further admitted and stipulated that we are prohibited from showing this motion picture in the City of Chicago publicly under the penalties and prosecution pursuant to the provisions of the ordinance.

    Earl Warren:

    Wasn’t that (Inaudible) the petitioners have refused to submit the film before the censor?

    Felix J. Bilgrey:

    Yes, it was Your Honor.

    That’s part of the complaint.

    Earl Warren:

    The character of the picture is not involved.

    Felix J. Bilgrey:

    The character of the motion picture is not involved in this case Your Honor, Mr. Chief Justice.

    Potter Stewart:

    Not known, is it?

    Charles E. Whittaker:

    (Inaudible)

    Felix J. Bilgrey:

    It’s not — it’s not known.

    Charles E. Whittaker:

    It — it isn’t, it’s just not known, (Voice Overlap).

    Felix J. Bilgrey:

    It’s just not known.

    The only thing which is involved is the title which is a part of the application.

    Charles E. Whittaker:

    Are you entitled then to sue (Inaudible) that this is hardcore pornography?

    Felix J. Bilgrey:

    Well that is an assumption, which the respondents have now indulged in their brief Your Honor but I don’t think that we can assume in the — in that.

    Charles E. Whittaker:

    Why not?

    Felix J. Bilgrey:

    Because the sole reason that the permit was denied was by virtue of the fact that the motion picture had not been presented.

    Charles E. Whittaker:

    But you refused to.

    Felix J. Bilgrey:

    Yes, we did, Your Honor.

    Felix J. Bilgrey:

    We maintain that the — if I maybe permitted to further answer that question, we maintain that the respondents have no initial right to know the contents of our particular communication.

    Charles E. Whittaker:

    Then we have — have you any right to assume you have basis for (Inaudible)

    Felix J. Bilgrey:

    Well, I suppose that the — you do Your Honors but it is our position that even if all these assumptions are correct, that we still are entitled to initially present the communication.

    And as a matter of fact if I may further answer that — the question Mr. Justice, there was — there have been a case — cases recently in New York where the counsel for both parties agreed and stipulated to that the motion picture is obscene and the appellant, the division did not agree and what — did not have to abide by that stipulation.

    Charles E. Whittaker:

    And (Inaudible) still was no right to the City of Chicago to require a license.

    Felix J. Bilgrey:

    That is our position.

    William O. Douglas:

    That isn’t the — go to issue on that in a criminal prosecution.

    Felix J. Bilgrey:

    Well, of our position and I would — if I may Mr. Justice come to that and — when we reach the issue is that — that one of the considerations that this Court I guess has always made and always will make is how — will the state be left in utter confusion here if — if a statute is struck down and set aside and it is our position that there are sufficient other remedies.

    Felix Frankfurter:

    In effect, are you saying that — that’s a pretty good question.

    Continue then.

    I in effect say that although in a complaint, although your complaint might have made — stated, alleged that in fact we want to show a pornographic picture.

    But in as much as municipal — the relevant municipal provisions of the Municipal Court of Chicago are unconstitutional there is no law, therefore there’s no regulatory provision and therefore we’re free to show it.

    Is that right?

    Felix J. Bilgrey:

    Well, that — that is right Mr. Justice Frankfurter but if I maybe permitted to amplify and add to — to that question.

    We have a lot of the previous litigation as our — at the appendix in our petition for a cert — for certiorari shows with — with these same respondents and I think that if that previous litigation shows anything at all is that no pictures that we have ever submitted and nor anyone else that we ever know of to this particular board has in fact been pornographic.

    And I would venture a speculation that no one would ever submit such a picture to a board to begin with.

    Felix Frankfurter:

    You mean that we must take judicial notice that no pornographic films would — could possibly be produced or desired to be shown to —

    Felix J. Bilgrey:

    Well —

    Felix Frankfurter:

    — anybody in the United States.

    I should think I should take judicial notice into Contrary.

    Felix J. Bilgrey:

    Well, they didn’t —

    Potter Stewart:

    Why wasn’t such a film would not be submitted to a municipal licensing authority, is that —

    Felix J. Bilgrey:

    That — that seems to be the general experience Mr. (Voice Overlap) —

    Felix Frankfurter:

    Yes, but — but you just trying to raise — a legal question, of an abstract legal question, aren’t you?

    Felix J. Bilgrey:

    Well, no.

    We are not raising an abstract legal question —

    Felix Frankfurter:

    But isn’t that the fact —

    Felix J. Bilgrey:

    — Mr. Justice —

    Felix Frankfurter:

    — merely on the assumption that you wouldn’t be pro — you wouldn’t be submitting anything for the pure or quasi pure a film.

    Felix J. Bilgrey:

    Well, I think the — the — if I maybe permitted to answer that Mr. Justice Frankfurter, I think the question here is whether we’ve set forth the cause of action.

    Felix J. Bilgrey:

    We are — we are in business for profit and of course that —

    Felix Frankfurter:

    Well, pornography sometime is profitable, unfortunately.

    Felix J. Bilgrey:

    Well, but the — I — we — the — the question you were raising I believe is whether we’ve set forth a — an adequate cause of action.

    But I think we have.

    We have applied for a permit pursuant to the ordinance.

    We didn’t hide anything.

    We tendered the licensing fee and we’re willing not to dispute that.

    Felix Frankfurter:

    But I thought you — you were charmingly tendered when you said that your legal proposition in effect is that though you would say you’re ready to — that your — you filed a complaint to say you want to show a pornographic picture but since there is no prohibition to any municipal regulation, you’re entitled to show it.

    Felix J. Bilgrey:

    Well, I — I think that — that is correct Mr. Justice Frankfurter.

    I think that’s our legal position.

    Felix Frankfurter:

    Alright.

    Hugo L. Black:

    Is your question the one you’ve presented in your petition especially granted?

    Felix J. Bilgrey:

    The — the question — the one that’s presented —

    Hugo L. Black:

    You’re claiming I suppose whether right or you’re wrong.

    There is no complication to arise, that exercise of power of censorship on motion pictures for than in a permit.

    It’s been held it could not be done on publication for amusement.

    Felix J. Bilgrey:

    That — that is our main contention Mr. Justice Black and —

    Hugo L. Black:

    That seems to be the question you’ve presented.

    Felix J. Bilgrey:

    And it — it seems to me that — and the — the — that the — that question has been before this Court on previous occasions and I don’t think that there’s any doubt in the minds of anyone even in the minds of the respondents that — that is the position which the First Amendment in which this Court has taken with regard to every other single form of expression in the past.

    And I think that the way I read the — this Court’s decision in the Burstyn case that — that the motion pictures have clearly been held to be a form of speech that fall within the prospect — protective scope of the First Amend — in the Fourteenth Amendments.

    Felix Frankfurter:

    And they’re not effective, should no regulatory schemes, is that what the first case hold?

    Felix J. Bilgrey:

    Well, Mr. Justice Frankfurter, I believe that this Court in — in Burstyn has held that there can be a regulatory scheme so long as the regulatory scheme does not take the form of the previous licensing and —

    Felix Frankfurter:

    Is that — is that what Burstyn had hold to mean?

    Felix J. Bilgrey:

    Well, Burstyn was confined to the particular standard, Mr. Justice Frankfurter.

    But I believe that the fact that this Court has consistently struck down every single standard and has reversed every single ban since Burstyn —

    Felix Frankfurter:

    And consistently never — never pronounced your proposition?

    Felix J. Bilgrey:

    Well, the proposition was never before the Court in this particular fashion —

    Felix Frankfurter:

    I’m not saying —

    Felix J. Bilgrey:

    — Mr. Justice Frankfurter.

    Felix Frankfurter:

    I’m not saying it may not eventually so pronounced (Inaudible) —

    Felix J. Bilgrey:

    Well —

    Felix Frankfurter:

    Are you suggesting that it has not?

    Felix J. Bilgrey:

    I understand that, Mr. Justice Frankfurter.

    But the way I read your opinion in the Co — in the Kingsley Books case, it — it seems to me that those are your views as well that the — that the state has plenty of regulatory schemes at its command.

    And in fact, this Court has held in the Kingsley Books case that they limited injunctive remedy.

    It must be upheld where the State of New York enacted it in order to prevent the obscenity and other undesirable conduct.

    But I think that the view was stressed in Kingsley Books again that the remedy must be closely confined and so as to preclude what is commonly known as licensing or censorship.

    And I think that the Court referred to the word licensing there as a discretionary license because we’re willing to waive the licensing fee.

    We don’t particularly care about that.

    Potter Stewart:

    Mr. Bilgrey at the earlier part of the argument, you said that what this ordinance does is to prohibit the public exhibition of a film which has not been submitted for licensing.

    Now, is there — is there a definition of public exhibition?

    I assume that why — what you say by implication that there’s nothing in the ordinance to prevent a private exhibition of this.

    Felix J. Bilgrey:

    I don’t — I don’t believe there is Mr. Justice Stewart, you have — I have ordinance in front of me here and —

    Potter Stewart:

    I wonder if public exhibition were defined in any form.

    Felix J. Bilgrey:

    And the — and the — well, it’s defined as a — as a — if any arcades — well, this is a very old ordinance, I think its 50 years old.

    And in all of the automatic or motion picture devices and I imagined that applies to theatres.

    But I would like to point — I would like to point out —

    Potter Stewart:

    Does the statute in — in your — your appendix to your brief?

    Felix J. Bilgrey:

    The statute is in the — in the —

    Potter Stewart:

    I see, at page 39.

    Felix J. Bilgrey:

    — record at page 9.

    Potter Stewart:

    In the record, page 9.

    Alright, thank you.

    Felix J. Bilgrey:

    May it please the Court, I believe that this ordinance is indeed censorship in its purest state and form.

    And I don’t think that it’s necessary to repeat here the arguments which I believe every justice of this Court has made.

    And I think that the sole distinction that some of the justices of the Court had made with regard to a particular form of restraint, is that they did not consider that form of restraint prior censorship.

    But here, the ordinance spells it out.

    The ordinance, if I may refer to it states — specifically states, and that is Section 155-4 that every motion picture shall be submitted for censorship of its contents.

    I don’t think that there can be any question here that this is indeed the type of censorship that the First Amendment was enacted against.

    John M. Harlan II:

    So you’re saying I gather is that on the assumption, this film, we haven’t got it, the hardest, sort of hardcore pornography.

    John M. Harlan II:

    So if the State of Illinois cannot deal with you through a licensing program but it’s — had to let you exhibit then prosecute you if you violate the criminal law, is that it?

    Felix J. Bilgrey:

    Well, in — Mr. Justice Harlan, if I may be permitted to expand on that, that we — we are saying that to a certain degree, that we are not suggesting what remedies the state can have.

    The state in effect —

    John M. Harlan II:

    Oh, isn’t that your — isn’t that your whole case?

    Isn’t that what you’re here about?

    Felix J. Bilgrey:

    Well, I believe that that is a correct statement Mr. Justice Harlan.

    We — we are here to allege that the very least that the First Amendment stands for and as — is made applicable to the states through the Fourteenth is to provide for freedom from previous restraints and we don’t — we don’t think that the respondents here have been in business to know what this particular motion picture may contain.

    It may be pornographic, it may be Pollyanna, it may be Mozart.

    The fact is that we would be prosecuted and the respondents have so admitted, if we were to show this movie in violation of the ordinance, merely for failure to have a permit.

    John M. Harlan II:

    Well, that’s what the Court of Appeals held and the fact that you have to do.

    They said you were — they’re prematurely your suit.

    Its premature because the way you raised your point was to get yourselves prosecuted and then plead the invalidity of the licenses that require —

    Felix J. Bilgrey:

    That — that is the contention of the Court of Appeals Mr. Justice Harlan, but we don’t agree with that and in fact we don’t understand it because —

    John M. Harlan II:

    Do you think I understand it correctly?

    I — I have —

    Felix J. Bilgrey:

    Well, you — you understand the — certainly understand the contention of the Court of Appeals correctly —

    John M. Harlan II:

    Oh, I had much trouble —

    Felix J. Bilgrey:

    — Mr. Justice Harlan.

    John M. Harlan II:

    — with that and I was wondering whether you understood it the way I did.

    Felix J. Bilgrey:

    Well, we understand that that is their contention but we certainly don’t agree with it.

    In fact, every single motion picture case, which has been before this Court, has been in exactly the same posture as this case.

    John M. Harlan II:

    I’m not saying that I agree with it either.

    I’m just asking you whether I’ve read the (Voice Overlap)

    Felix J. Bilgrey:

    That — that is their contention.

    But — but we — we are — our position is that we — we have applied for a license.

    And in fact, if we had shown the motion picture without a license, the — the respondents would then have contended that we would have had to challenge the entire ordinance which we were not willing to do.

    Felix Frankfurter:

    The cases that had been before us to which either opinions were written of per curiam decisions.

    Aren’t they all — aren’t the ordinances or if there were state statutes, aren’t they all found then you got it because of the vagueness or the nature of the — of the regulatory statutes rather than the statute as — rather because there were regulations?

    Felix J. Bilgrey:

    The — that — that is right there, Mr. Justice Frankfurter but this Court has been very careful not to prejudice this particular question as to whether the prior restraint itself —

    Felix Frankfurter:

    No, no.

    Felix J. Bilgrey:

    — will be tolerated.

    Yes — yes, you’re — that is a correct statement of course.

    Felix Frankfurter:

    I don’t suppose this had any criterion that lawyers can’t frame a convention they can get here.

    I’m just wanting to know where we are as of this moment.

    Felix J. Bilgrey:

    Well, I think that —

    Felix Frankfurter:

    It is true, isn’t it?

    That all the adjudications thus far have been very careful not to pass on this.

    Felix J. Bilgrey:

    That is right there Mr. Justice Frankfurter.

    That is the correct appraisal of the issue as of now.

    But we would like to add if we may, if we maybe permitted to do so that the — the Illinois State Supreme Court has not taken that view and that it has interpreted this Court’s holding in Burstyn to countenance censorship because it has — and it has construed this ordinance to — to permit censorship of motion pictures.

    And in fact that the — what the only word that we think as I propose to use is that it has distorted Near against Minnesota to such an extent that if this Court were to accept that position, the First Amendment would no longer be the First Amendment.

    Felix Frankfurter:

    Near wasn’t a movie, I think, was it?

    Felix J. Bilgrey:

    No, it was not Your Honor.

    But this Court referred to it in the Burstyn case.

    Potter Stewart:

    Although it wouldn’t — isn’t Near quite different also in this way.

    You’d have a Near case, Near against Minnesota wouldn’t you if there were an absolute refusal to license this petitioner’s movies quite — without viewing them at all or without an exhibition of them but solely on the basis that one time he made a bad movie.

    Felix J. Bilgrey:

    Well, that that — that is — that is right Mr. Justice Stewart that that is one form of censorship but we think that the —

    Potter Stewart:

    That’s the Near case.

    Felix J. Bilgrey:

    That’s the Near case.

    Potter Stewart:

    Near against Minnesota.

    Felix J. Bilgrey:

    Yes.

    But they’re —

    Potter Stewart:

    But here, they tried to (Voice Overlap) —

    Felix J. Bilgrey:

    This is an even —

    Potter Stewart:

    — by a movie.

    Felix J. Bilgrey:

    This is an even clearer case of censorship because the city presumes and in fact, it presumes that every motion picture meets every objection within the ordinance.

    In fact, they put the shoe in the other foot and I think that this revolts against our traditional mode of justice and according to the other remedies and we would like to point out to the Court that we maybe permitted to do so the — that the Motion Picture Association of America has filed an amicus brief in this case and this Court has granted the motion and they have an appendix in that amicus brief which shows that 46 states in our union and the great vast majority of our cities, the municipalities, rely on our traditional judicial processes.

    And that I think that these points out what the Mr. Justice Brandeis once referred to as “the judgment of mankind.”

    I think that it shows that our traditional judicial mode of dealing with the — with that which maybe rejected is not lost and that the state would not be left in any confusion.

    In fact, Illinois has a penal code and in fact the — this may not be too pertinent from a constitutional viewpoint but we noticed that the ordinance does not provide for immunity from the Illinois penal code.

    Felix J. Bilgrey:

    In fact, the — Your Honors, the way we read the holding of the Circuit Court of Appeals in this case, they are remaking the First Amendment all over again.

    Their argument is that the motion pictures are very effective and — and that therefore, they ought to be censored.

    Well its —

    Potter Stewart:

    Are you suggesting there maybe some self-incrimination angle here that compulse — compulsion to exhibit something to which you might be prosecuted?

    Felix J. Bilgrey:

    Well, we — we hadn’t raised that —

    Potter Stewart:

    (Voice Overlap) to the licenser?

    Felix J. Bilgrey:

    Well, we — we — that may certainly be an issue Mr. Justice Stewart but we hadn’t raised the self-incrimination issue.

    Potter Stewart:

    I just wanted — if that wasn’t your point of the arguments you’re now making.

    Felix J. Bilgrey:

    Well, the — the —

    Potter Stewart:

    (Inaudible)

    Felix J. Bilgrey:

    The — the argument that — well, the argument that we are making and we’re perfectly willing to show this picture privately to the respondents if they care to see it instead.

    The argument that we are making Your Honors is that even if motion pictures were irresponsible as a form of speech, and I think that the Court has said this in Burstyn and repeated it in Kingsley and even if they are very eloquent as a form of speech, then they still are entitled to the First and Fourteenth Amendment protection.

    And I think that we appreciate the — the glamour that the — that the Circuit Court of Appeals give to the motion picture industry.

    I think it’s been long since lost but they called it a very effective medium.

    I think the industry has long since lost that glamour to television.

    Felix Frankfurter:

    You mean, the implication is that it’s innocuous and therefore they ought not to be censored here.

    Felix J. Bilgrey:

    No, your — Mr. Justice Frankfurter, the implication is that — and this Court has so held in the Kingsley pictures case that even if it is most eloquent, it still is entitled to the First Amendment protection and even if it is mostly irresponsible which we object to quite strenuously.

    Earl Warren:

    We’ll recess now.

    Felix J. Bilgrey:

    Thank you Your Honor.