Independent Exhibitors Film Bulletin (1960)

COURT HLASTS CENSORSHIP Lists Vompvlling iteusons for Decision ( Continued from Page 23) law" cannot be applied constitutionally. It is too vague and advocacy cannot be prohibited. Kingsley International Pictures Corp. v. Regents of the University of the State of New York, supra, at 685, 699 (1959). (5) Chief Justice Warren, because it is a prior restraint which does not take into account the intent and manner of use by the particular individual. Kingsley Books, Inc. v. Broivn, supra, at page 446. A majority of the United States Supreme Court would also invalidate the statute because, in regulating obscenity, it also inhibits freedom of expression of constitutionally protected material, that is pictures which are not obscene. Smith v. California, 4 L. Ed. 2d 205 (1959). The Attorney General in her argument stressed the fact that the law was intended to be a deterrent to "fringe producers" of motion pictures. We believe that because of its vagueness, its lack of prior hearing and the provision for ripping out a picture during the showing, it will deter most exhibitors from licensing any but the most vapid pictures. Also with reference to these so-called "fringe producers" of motion picturs we must point out that there are on the statute books of Pennsylvania, among its criminal laws, ample provisions by which these "fringe producers" could be quickly punished and stamped out. Energetic and alert public officers in every county, without great expense to the state, can soon put an end to such pictures, and obviate the necessity of a large expenditure of money by the Commonwealth. Furthermore, we are of the opinion that the entire United States Supreme Court would invalidate the statute because its restriction on all advertising of pictures disapproved for showing to children violates Butler r. Michigan, 352 U. S. 380 (1957). The Act is also invalid for permitting the censoring of a single view or reel. The Constitution requires that the entire film be judged, and if, as a whole it is not obscene, no single view can be ordered deleted. Roth V. United States, supra, page 490. The Commonwealth's answer concedes (Pars. 13(a), 14(d) that the Act establishes a registration system, which is prohibited in the area of free speech. Thomas v. Collins, 323 U. S. 516 (1945); Lotell v. Griffin, 303 U. S. 444 (1938), and see also T alley v. California, decided by the Supreme Court March 7, I960, 28 U. S. Law Week, 4186. The Commonwealth states in its brief that in Commonwealth v. Blumenstein, 396 Pa. 417 (1959) "There was no finding that the motion picture in question was in fact obscene" (p. 11). On the contrary, the trial judge found the picture was obscene and the Supreme Court sustained that finding. The only word in the statute which was in issue before the Supreme Court was "obscene," and the court held it was unconstitutionally vague, regardless of whether or not the trial judge's definition of the term satisfied the Roth test. INEVITABLE CONCLUSIONS On page 17 of the Commonwealth's brief we find that Tahiti Bar, Inc. v. Pa. liquor Control Board, decided by the United States Supreme Court in October, 1959, is cited. This case simply holds that the sale of liquor is subject to complete regulation by the state. All entertainment could be prohibited in a bar, whether or not obscene. If applied to motion pictures or newspapers, this doctrine would mean that these media of free expression could be completely prohibited, which we feel is patently absurd. The State has pointed out in its brief (p. 19) that the State may protect children from improper influence. That is true, but it cannot ignore the guarantee of the First Amendment in so doing, as is shown by the Winters case, 333 U. S. 507 (1948), and many other citings of the plaintiffs dealing specifically only with children's publications. The article in 69 Yale Law Journal 141 (1959), on which both the Commonwealth and the Catholic congregations rely, recognizes that such controls must conform to constitutional standards. But the Yale Law Journal article also takes the view that all motion picture censorship for adults is unconstitutional under the decisions of the Supreme Court of the United States. The invalidity of the Commonwealth's attempted equation of control under this censorship statute as compared with the regulation of milk and other business, is graphically expressed by Justice Frankfurter in Smith v. California, supra: "Of course there is an important difference in the scope of the power of a State to regulate what feeds the belly and what feeds the brain ..." 4 L. Ed. 2d at page 216. We have already pointed out heretofore that the present Attorney General said at the argument that she would urge the receipt of "evidence of community standards" (Commonwealth Brief, p. 30) and the other "amendments" are plainly at variance with the statutory language, which the Commonwealth and amici now make, cannot save this statute. However well intended we again must point out that ours is a government of laws not men, and constitutional rights are not subject to judgment or dispensation of the particular attorney general then in office. The obvious application of the statutory definition of "incites to crime" to such pictures as "Robin Hood" or "Treasure Island" is dismissed by the Catholic congregations because such pictures "would plainly have no theme, in reality, of inciting to crime . . . because no element of reality is present." There is no basis in the Act for distinguishing between the lessons to be learned from fiction and reality. If that be a proper test, news reels should be banned, instead of being exempted, and fiction should be allowed. This is a most peculiar and unfounded argument. IDEA PATENTLY ABSURD' Our considered opinion in view of the many cases we have analyzed leads us to these inevitable conclusions which are: The Motion Picture Control Act is unconstitutional on its face, because it deprives plaintiffs and motion picture exhibitors throughout Pennsylvania of their guaranteed freedom of expression; it establishes a prior restraint on all those pictures exhibited in Pennsylvania; its standards are so vague as to provide no rational basis to guide defendants, members of the Motion Picture Control Board, in their determination; it has no rational basis for distinguishing between what may be shown to persons above and below the age of seventeen; it is completely lacking in all the traditional and fundamental procedural safeguards; and it singles out motion pictures for control from all other media of communication, at the same time exempting certain classes of films and films shown under certain auspices, without any rational basis for such classification. We, therefore, enter the following DECREE 1. It is hereby ordered, adjudged and decreed that the defendants, named herein, are permanently enjoined from enforcing any of the provisions of Act No. 538, as approved on September 17, 1959. 2. It is hereby ordered, adjudged and decreed that said Act is unconstitutional and void. 3. It is hereby ordered, adjudged and decreed that the plaintiffs and all others affected by said Act No. 358 are not required to register themselves or comply with any of its provisions. 4. Judgment on the pleadings is hereby ordered, adjudged and decreed in favor the plaintiffs and against the defendants. /s/ Walter R. Sohn, /. July 30, 1960.