Motion Picture Commission : hearings before the Committee on Education, House of Representatives, Sixty-third Congress, second session, on bills to establish a Federal Motion Picture Commission (1978)

MOTION" PICTXTRE COMMISSION. 99 Mr. Towner. Would not a national law in the case we are dis- cussing be for your benefit? Mr. Seligsberg. It would not. sir, unless you conceive that the lesser of the evils is for our benefit. If censorship is constitutional anywhere in this country, which I stoutly deny, then we shall have to take the best we can get. We contend that Federal censorship is not constitutional. Now, we maintain, and we think rightly, that any censorship law with respect to books or newspapers or motion-picture films is un- constitutional because of the provision in the amendment to the Constitution that Congress shall make no law abridging the freedom of speech or the press. The term " press" is a broad and all- inclusive term. We have a decision in the Ben Hur case in regard to that, in which Harper Bros, had a copyright on the book called " Ben Hur," and a motion-picture company published the photo play of Ben Hur Avithout the permission of Harper Bros. In that case, which was very stoutly contested, our Supreme Court held that the motion-picture film in that instance was no more and no less than a dramatization of the book arid that the copyright law protected the owner in that regard, and therefore the motion-picture company was enjoined. Mr. Fess. What you quoted a while ago was the first amendment to the constitution, adopted in 1791, but in 1798 we had the alien and sedition law. and that was declared unconstitutional. Mr. Seligsberg. That was acquiesced in as a war measure. Mr. Fess. There was not any trouble at that time. Mr. Seligsberg. I mean the trouble with France. Mr. Fess. The dispute that might have been a war? Mr. Seligsberg. Undoubtedly the sedition law, if it attempted a prior adjudication—prior to the other—without the interpretation of a jury as as to whether the publication was seditious or not, violated the constitutional provision. I do not believe it was ever tested. Mr. Towner. Will you file a brief on that? Mr. Seligsberg. I will. In a case which approaches this subject very nearly, a California case, Daley v. The Superior Court, a mur- der trial was in progress and an enterprising owner of a theater company got up a stock company to depict the action of the crime, although the man was being tried for his life in a neighboring court- house, and the owner of the theater was cited for contempt in that case, and the Supreme Court of California held that he could not be inhibited in advance from giving the performance; that if it were contemptuous after he gave it, he might be cited for contempt, but that no prior restraint on publication by such means would be per- missible. We have raised this question in a case in Kansas, and in a case in Ohio it has been decided adversely to us. That case is in the Supreme Court of the United States at this time. Mr. Towner. Those cases will all be cited? Mr. Seligsberg. They will all be cited. The most interesting document on the question of the constitu- tionality of a motion-picture censorship law is the veto opinion of Mayor Gaynor. If it were not so late I would read it all. Mr. Towner. It would be very useful for the committee, and I hope you will print it all in the record.