Independent Exhibitors Film Bulletin (1960)

fOUHT BLASTS CLNSIIHSIIII' < ilfs Ht't't'nt Suprt>ni<> i'nuri ft/tin ion be made by a Board which is not required to have any qualifications whatsoever. The lack of fundamental procedural rights under the Act is aggravated by the fact that members of the Board are not even required to have any qualifications for the important quasijudicial functions which they perform. This is contrary to every prior censorship act in Pennsylvania. Under the earliest act, the Act of June 19, 1911, P. L. 1067, it was provided that the Board of Censors "shall be duly qualified by education and experience." The same requirement was contained in the Act of May 15, 1915, P. L. 534, 4 P. S. $ 41, et seq., which replaced the 1911 Act. This was carried over as a requirement into the Administrative Code of 1929, under the Act of April 9. 1929. P. L. 177, Art. IV, $ 409, 71 P. S. § 119. In commenting on the prior Board's qualifications, the Supreme Court said in the Goldtvyn Distributing Corp. case, supra, at page 341: ". . . That the members of the board should be learned in the science of the law is not made a qualification of their appointment; therefore, the power and authority given the board to determine the matters properly brought before them in the exercise of their discretion is not to be understood judicial discretion, but such discretion as may be expected jrom persons well qualified by education and experience to act as censors under the act, that is to say, persons with education and experience sufficient to enable them to understand the purpose and object of the particular legislation with which they hate to deal and its several provisions, and for them to know what are the common standards of morality which the act seeks to protect, and to act intelligently when it becomes their duty to discriminate fairly between pictorial exhibitions which are consonant with the established canons of morality and such as tend to lower and degrade such standards . . ." Those standards and the act under which they are applicable were held unconstitutional in the Hallmark case, supra. But certainly, it should be a minimum requirement that the Board be qualified by education and expreience to understand the law impinging so substantially on our most cherished constitutional right and the serious issues involved in its enforcement. Now, however, for the very first time, there are no qualifications for membership on this Board, and no safeguards of due process, not even the most basic right of our jurisprudence, the right to a hearing. ' DENIES EQUAL PROTECTION In addition to all which we have said heretofore, the present Act establishes an arbitrary and discriminatory system of classifications, denying plaintiffs equal protection of the laws. The Act establishes a system of control of exhibition and distribution of motion pictures, w ith no similar control of other media of communication — newspapers, books, periodicals, radio, television or the live theater. Defendants' answer alleges that such "other media of communication are subject to other laws prohibiting obscenity. Newspapers, books, periodicals and the live theater, as well as motion pictures, are subject to the criminal laws of the Commonwealth prohibiting obscenity." But so are motion pictures, and there is no rational basis we feel for saddling only this medium of expression and communication with the additional burden of administrative control. Moreover, the Act exempts news reels, and also exempts films exhibited for "purely educational, charitable, fraternal, family or religious purpose by any religious association, fraternal society, family, library, museum, public school or private school" or films "commonly known as industrial, business, institutional, advertising or training films, or films concerned exclusively with the advancement of law, medicine and other professions: Provided, That any such film is not exhibited or to be exhibited in theaters or in public places of entertainment commonly used as such." (Sections 8 and 14). If films artdeemed to be suitable to be shown under such asu pices, the) are suitable to be shown anywhere and conversely, if they are subject to prohibition at all, the prohibition should be universal, The evil at which control of obscenity, whether by censorship or otherwise, is directed, mainly so-called "dirt for dirt's sake" or "hard core pornography," is notoriously much more likely to occur at functions sponsored by many fraternal organizations than in commercial theatres. The commercial theater has to act in the open, is always subject to the threat of the criminal law, and conscious of the injury to its business reputation which will undoubtedly follow a successful prosecution. Some of the private exhibitions, sanctioned by the exemptions in the Act, (the "Smokers" and "Stags" sponsored by fraternal organizations) are hard to detect, are usually clandestinely held, and less deterred by fear of prosecution. For these reasons, both because of other media of communication which the Act fails to cover, and because of the exemptions which it grants, plaintiffs are the victims of arbitrary indiscriminatorv classification. Morey v. Doud 354 U. S. 457 (1957); Clark v. Meade, 377 Pa. 150 (1954). It is clearly apparent that the plaintiffs here are entitled to equitable relief. From . . . admitted facts, it is clear that plaintiffs will be irreparably harmed unless they can obtain equitable relief against operation of the Act. They will be deprived of substantial property rights without the hearing fundamental to due process. See Kingsley International Pictures v. Blanc, 396 Pa. 448 (1959) and the cases therein cited. Plaintiffs are not required to go through the administrative process in order to vindicate their constitutional rights. In plaintiffs' reply memorandum, filed at the argument before the full court, we were reminded that the Attorney General candidly stated in her oral argument that the Motion Picture Control Act is a censorship law. Whether it is or is not, whether or not the Commonwealth is correct in arguing that prior censorship is not per se unconstitutional, this particular statute cannot be upheld. In their reply memorandum the plaintiffs' attorneys have pointed out that in their most recent opinions, every justice of the Supreme Court of the United States has expressed the view that one or more statutory provisions, substantially the same as those in this statute, are unconstitutional, and invalidate the legislation. (1) Justices Frankfurter and Harlan, because the Act does not provide for the reception of evidence of contemporary community standards at a hearing. Smith v. California, 4 L. Ed. 2d 205, 215, 220 (1959). The Commonwealth's answer, paragraph 14(b), and the brief of the Catholic congregations also, pages 43-44, admit the Act does not provide for such evidence, erroneously assuming that there is no constitutional right to present it. (2) Justice Brennan, because it does not provide for a jury trial. Kingsley Books, Inc. v. Brown. 354 U. S. 436, 447 (1959). (3) Justices Black and Douglas, because they have consistently maintained that any form of control in this area is unconstitutional per se. Smith v. California, 4 L. Ed. 2d 205, 212, 219 (1959); Kingsley International Pictures Corp. v. Regents of the University of the State of Sew York, 360 U. S. 684, 697 (1959). Kingsley Books, Inc. v. Brown, supra, at pages 508. PRIOR RESTRAINT (4) Chief Justice Warren and Justices Stewart, Clark, Brennan, Harlan, Frankfurter and Whittaker, because the statutory definition of "incites to crime" namely "represents or portrays as acceptable conduct or as conduct worthy of emulation the commission of any crime or the manifesting of a contempt for (Continued on Pu^l ?■/ ) Film BULLETIN August 8. 1 960 Page 23