Independent Exhibitors Film Bulletin (1960)

rOUHT BLASTS LENSUHSHIP Act is Constitutionally Defective (Continued from Ptige 21) of Common Pleas is provided for, but no time is fixed within which the appeal must be decided. The case not triable "de novo" and there is no provision for presentation of any evidence before the court. Thus the Board in making its determination plainly performs a quasi-judicial function affecting substantial property and constitutional rights. Proceedings before the Board of Censors under the prior censorship act, held unconstitutional by the Supreme Court in the Hallmark case, were expressly made subject to the requirements of the State Administrative Agency Law. Act of June 4, 1945, P. L. 1388, Section 51, as amended, 71 P. S. § 1710.51. That Act provides that "No adjudication (defined to include any order or decision by an agency affecting personal or property rights) shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be beard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings." 71 P. S. $ 1710.31. There is a clear recognition by the legislature that such a board does perform quasijudicial functions requiring due process in its procedures. Section 15 of the present Act repeals the prior Act which created the Board of Censors. The new Board of Motion Picture Control is not subject to the requirements of the Administrative Agency Act, since it is not referred to therein and does not adopt its provisions. Nor are any of its fundamental procedural rights written into the Motion Picture Control Act itself. We believe that in that respect the Act is fatally defective. The United States Supreme Court held in Morgan v. United Stales, 304 U. S. 1, 18, 19 (1938) that: ". . . Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command." Moreover the failure of the Act to require a hearing as a matter of right makes it unconstitutional even though the Board might elect to hold such a hearing of its own initiative, (oc p. Armour Fertilizer Works, 237 U. S. 413 (1915); 42 Am. Jur. § 135, p. 471. At the time of the argument of this case before the court en banc, the question was asked of the Attorney General as to how the Act provided for due process of law. The answer was "Oh, you need not worry about that for as long as I am Attorney General we will see that these hearings afford due process." We believe that that answer was made in entire good faith and sincerity, but must take note of the fact that America, from time of its birth has been a land governed by laws and not by human beings. Political regimes change from time to time and "The best-laid schemes o' mice an' men Gang aft agley." This Act certainly does not in terms provide for any due process and in that respect we believe is glaringly defective. EVIDENCE NOT PERMITTED Under the wording of the Pennsylvania Act in question in ili is case, the Board is required to base its decision of obscenity on contemporary community standards. F.vidence of such standards is relevant to any determination and is constitutionally required. The Act's failure to permit it, or any hearing, makes it constitutionally defective. There is still another reason why we believe this Act violates due process. It permits determination by an unqualified ad ministrative board of issues which should be determined by judge or by a jury. Certainly the majority of the court in the Kingsley Bool case, which permits a court, under strict procedural safeguard to interfere after publication with distribution of materi; alleged to be obscene, would refuse to allow the same right c interference to an unqualified administrative board, which hi no way of knowing what contemporary community standarc are, or what contempt for law means. The New York statute involved in the Kingsley Books cas provided that the persons enjoined were entitled to a trial c the issues within one day after joinder of issue and that a dec sion must be rendered by the court within two days of cor elusion of the trial. Under the present Pennsylvania Act, the: is no similar protection once a determination is made in th case of a specific exhibitor, since there is no requirement ththe appeal to the court be decided within any fixed period < time. Meanwhile the picture has to be taken off, the invesi ment in advertising its opening is lost, and the problem of fine ing a substitute must be faced. The right of appeal to the Common Pleas Court under th present Pennsylvania Act is the same as that provided undi the 1915 Act. 4 P. S. $ 54. Under that act it was held that th court is limited to the issue of whether the Board acted arb trarily, unreasonably, and in such a way as to abuse the discn tion committed to it under the act. In In the Matter of th Goldwyn Distributing Corp., 265 Pa. 335 (1919), the Cou said, at page 339 "... a careful reading of the statute here in question coi vinces us it was never contemplated that the courts of con mon pleas were to be constantly called upon to permit mo\ ing picture reels to be reproduced before them, and sit supercensors thereof, in order to review the decisions of th administrative body created by the act . . ." Thus, even on appeal, the fundamental right to a hearin and to introduce relevant evidence is denied. But there is another violation of due process in the Act. 1 permits determination by the Board which adversely affeci persons not even involved in the proceedings in which sue determinations are made. BINDING ON ALL EXHIBITORS The Board's initial determination as to any particular filij will be made in the case of a single exhibitor (Sec. 5 of th Ac.t). Such determination is binding on all persons who may 1 exhibiting the same film in Pennsylvania or who may ther after desire to exhibit it. The exhibitors singled out by tl Board have no hearing in the constitutionally required sens Those who are not involved in the specific case before tl Board are a fortiori deprived of any right to be heard, despit the fact that their property rights may be vitally affected. In Kingsley International Pictures Corp. v. Blanc, 396 P; 448, 455 (1959), the Supreme Court held that equity ha> jurisdiction to enjoin prosecution by a district attorney of ex hibitors of motion pictures alleged to be obscene, at the suit the distributor of the film who was not a party to the crimina proceedings, stating that. ". . . In such a situation equity has jurisdiction because th plaintiff has no adequate and complete remedy at la^\ Indeed, he has no other remedy at all." This is certainly true of exhibitors and distributors, who ar not involved in the disapproval of the picture by the Boarc but are nevertheless bound by it. However, there is still another reason why the present Ac violates due process. In effect it permits the determination til Pjqe 22 Film RUMFTIN August 8, 1940