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March 13, 1956


Appeal, No. 345, Jan. T., 1954, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1953, No. 9265, in case of Hallmark Productions, Inc. v. Edna R. Carroll, John Clyde Fisher and Beatrice Z. Miller, of Pennsylvania State Board of Censors. Order affirmed.


Lois Forer, Deputy Attorney General, with her Elmer T. Bolla, Abraham J. Levy, Special Deputy Attorney General, Harry Stambaugh, Special Deputy Attorney General and Herbert B. Cohen, Attorney General, for appellant.

Edwin P. Rome, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno And Arnold, JJ.

Author: Stern

[ 384 Pa. Page 349]


Hallmark Productions, Inc., submitted to the Pennsylvania State Board of Censors for approval a motion picture film which presented the story of a dope peddler and the manner in which he enticed innocent people in the use and sale of marijuana cigarettes. The Board concluded that the film was "indecent and immoral and, in the judgment of the Board, tended to debase and corrupt morals," and therefore disapproved it. Court of Common Pleas No. 2 of Philadelphia County reversed the order of the Board and the latter now appeals from that reversal.

No question is here raised as to the merits or demerits of the film or whether the Board of Censors was guilty of an abuse of discretion in refusing to issue a certificate of approval. The sole issue presented is whether the Motion Picture Censorship Act of May 15, 1915, P.L. 534, as amended by the Act of May 8, 1929, P.L. 1655, is unconstitutional, either because it is so vague and indefinite in its terms as to offend the due process clause of the Fourteenth Amendment, or because it abridges freedom of speech in contravention of the First the Fourteenth Amendments to the Constitution of the United States and the free communication of thoughts and opinions in violation of Article I, § 7, of the Constitution of Pennsylvania.

The censorship of motion picture films in this Commonwealth goes back almost to the inception of the industry. The 1915 Act, as amended, provides ( § 6) that "The board [of censors] shall examine or supervise the

[ 384 Pa. Page 350]

    examinations of all films, reels, or views to be exhibited or used in Pennsylvania; and shall approve such films, reels, or views which are moral and proper; and shall disapprove such as are sacrilegious, obscene, indecent, or immoral, or such as tend, in the judgment of the board, to debase or corrupt morals." From any elimination or disapproval of a film, reel, or view ordered by the board there is given a right of appeal to the Court of Common Pleas of the proper county.

A New York statute provided for the banning of a motion picture film if it or a part thereof was "obscene, indecent, immoral, inhuman, sacrilegious, or of such a character that its exhibition would tend to corrupt morals or incite to crime." The New York State Board of Regents determined that a certain film examined by them was "sacrilegious" and ordered a rescission of the license to exhibit it which had been previously given. An affirmation of that order by the New York Court of Appeals was reversed by the Supreme Court of the United States: Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, 343 U.S. 495. The appellant there argued that the statute was a violation of the right of free speech, and also that the term "sacrilegious" was so vague and indefinite as to constitute a denial of due process. The court held (p. 502) that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments," but hastened to add (pp. 502, 503) that "It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. ... Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression." While the Court stated (p. 503) that "This Court recognized many years ago that ... a previous restraint is a form

[ 384 Pa. Page 351]

    of infringement upon freedom of expression to be especially condemned," it apparently did not base its decision on that ground but on the conclusion that the term "sacrilegious" did not provide a sufficiently definite standard for the guidance of a censor and therefore vested in him an almost unlimited restraining control over motion pictures. The Court's opinion ends with the statement (pp. 505, 506) that "Since the term 'sacrilegious' is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us. We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor's conclusion that it is 'sacrilegious.'" In a concurring opinion Mr. Justice REED emphasized this limited scope of the decision by saying (pp. 506, 507) "Assuming that a state may establish a system for the licensing of motion pictures, an issue not foreclosed by the Court's opinion, our duty requires us to examine the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored."

In Gelling v. State, 157 Tex.Cr.Rep. 516, 247 S.W.2d 95, an ordinance was held to be constitutional which authorized a local board of censors to refused permission for the exhibition of a motion picture when, in the opinion of the board, it was "of such character as to be prejudicial to the best interests of the people of said city." On appeal to the Supreme Court of the United States the judgment was reversed (Gelling v. Texas, 343 U.S. 960) per curiam, citing the Burstyn case, 343 U.S. 495, and Winters v. New York, 333 U.S. 507. Mr. Justice FRANKFURTER, concurring, stated that in his opinion the ordinance offered the Due Process Clause

[ 384 Pa. Page 352]

    of the Fourteenth Amendment on the score of indefiniteness, but Mr. Justice DOUGLAS, also concurring, went further and condemned the evil of prior restraint in general as a violation of the First Amendment.

In Superior Films, Inc. v. Department of Education, Division of Film Censorship, 159 Ohio St. 315, 112 N.E.2d 311, a statute of Ohio provided that "Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by such board." The Supreme Court of the State, after analyzing the opinion and decision in the Burstyn case, concluded (pp. 327, 328, N.E. p. 318) that "although a motion picture film may not be rejected because of 'sacrilegious' expressions or portrayals, there still remains a limited field in which decency and morals may be protected from the impact of an offending motion picture film by prior restraint under proper criteria ... As we view it, the United States Supreme Court has not ipso facto taken away all community control of moving pictures by censorship, and this court will not do so under the claim of complete unconstitutionality of censorship laws." The court held that while the criteria by which films were to be judged under the terms of the statute could doubtless have been made more definite their connotation was sufficiently clear to permit of their valid enforcement.

In Commercial Pictures Corporation v. Board of Regents of University of State of New York, 305 N.Y. 336, 113 N.E.2d 502, the Court of Appeals of New York had before it for consideration the same statute of the State as was involved in the Burstyn case. A picture had been rejected by the authorities on the ground that it was "immoral" and "would tend to corrupt morals." The Court said (p. 346, N.E. p. 507) that "Viewing the statute under consideration in its proper setting ...

[ 384 Pa. Page 353]

    the words 'immoral' and 'tend to corrupt morals' as used therein relate to standards of sexual morality. As such they are not vague or indefinite. In this sense they are kindred to 'obscene' and 'indecent,' ..." Accordingly the Court held that these terms provided a standard adequate to satisfy the requirements of due process, and it therefore affirmed the disapproval of the picture by the administrative body.

Both the Superior Films, Inc. case and the Commercial Pictures Corporation case were appealed to the Supreme Court of the United States and both were there reversed (346 U.S. 587) per curiam, citing merely the Burstyn case. Mr. Justice DOUGLAS, concurring in an opinion with which Mr. Justice BLACK agreed, stated that he could not accept the argument that the government might establish censorship over moving pictures, that it was inconceivable to him that plays for the theatre or for television could be pre-censored, and that (p. 589) "The same result in the case of motion pictures necessarily follows as a consequence of our holding in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, that motion pictures are within the free speech and free press guaranty of the First and Fourteenth Amendments."

Following these decisions and pronouncements of the United States Supreme Court cases involving the same questions have arisen in various jurisdictions. In RKO Radio Pictures, Inc. v. Department of Education of the State of Ohio, Division of Film Censorship, 162 Ohio St. 263, 122 N.E.2d 769, the court construed the decision of the United States Supreme Court in the Superior Films, Inc. case as an invalidation of the Ohio statute as a whole, and therefore held that no censorship under the act could be sustained. However, Chief Justice WEYGANDT dissented, saying (p. 269, N.E. p. 772) that "The basic different of opinion among the

[ 384 Pa. Page 354]

    members of this court is whether the federal Supreme Court has in fact held the Ohio statutes unconstitutional. The conclusion of the majority seems to be that this has been done inferentially. It is the view of the minority that if, at a time when delinquency - both juvenile and adult - is a problem of unprecedented concern, the federal Supreme Court intends to hold that every film, no matter how obscene, profane, inflammatory or subversive can be shown, this is too serious a matter to be left to mere inference alone."

In American Civil Liberties Union v. The City of Chicago, 3 Ill.2d 334, 121 N.E.2d 585, an ordinance of the City of Chicago required the Commissioner of Police to issue permits for the exhibition of motion pictures unless he determined that they were "immoral or obscene" or had certain other objectionable qualities there enumerated. The Court, after reviewing and discussing the decisions of the United States Supreme Court hereinbefore referred to, concluded that they were not intended to invalidate all film censorship but were to be interpreted as holding merely that the standards employed in the statutes there under consideration were so broad or vaguely drawn as to sanction the suppression of some films which might not constitutionally be censored. The Court held that the term "obscene" had a sufficiently precise meaning to describe a class of films which the State might validly suppress. It further held that the term "immoral" in the ordinance must be construed as referring to that which is immoral because it is obscene, and accordingly determined that the Commissioner's refusal to issue a permit on the ground that the picture was "immoral and obscene" was not invalid on any ground of unconstitutionality or otherwise.

In Brattle Films, Inc. v. Commissioner of Public Safety, 333 Mass. 58, 127 N.E.2d 891, there was presented

[ 384 Pa. Page 355]

    to the Supreme Judicial Court of Massachusetts for consideration a statute of that Commonwealth which authorized the mayor of a city to grant a license to hold on the Lord's Day a public entertainment, provided, however, that no such license should have effect unless the proposed entertainment should have been approved in writing by the commissioner of public safety as being in keeping with the character of the day and not inconsistent with its due observance. The Court, reviewing the decisions of the United States Supreme Court previously referred to, held that the provision of the act in question was void on its face as a prior restraint on the freedom of speech and of the press guaranteed by the First and Fourteenth Amendments, and added that it was not necessary to determine whether it was also void for indefiniteness under the due process clause of the Fourteenth Amendment.

The latest case involving the question of the validity of these pre-censorship statutes is Holmby Productions, Inc. v. Vaughn, 177 Kan. 728, 282 P.2d 412. There the Supreme Court of Kansas sustained an order of the State authorities disapproving the exhibition of a film under the authority of a statute which provided that the State Board of Review should approve such films as "are moral and proper; and shall disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals." The Court declared (p. , P.2d p. 414) that it was of opinion that the words "obscene, indecent, or immoral, or such as tend to debase or corrupt morals" were not so vague and indefinite as to offend due process, but that they had "an accepted, definite, and clear meaning." The Court cited the passage from the opinion in the Burstyn case in which the Supreme Court had stated that it was not deciding whether a State might censor motion pictures under a clearly drawn statute designed and applied to

[ 384 Pa. Page 356]

    prevent the showing of obscene films. Since the Board had given as one of its reasons for disapproving the picture that it was "obscene," the Court stated that they did not deem it necessary to define other words contained in the censorship statute. The order of the Board rejecting the picture was accordingly upheld. On appeal to the Supreme Court of the United States ...

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