Appeals, Nos. 22 and 23, May T., 1961, from decrees of Court of Common Pleas of Dauphin County, Nos. 2385 and 2387 Equity Docket, Nos. 530 and 538 Commonwealth Docket, 1959, in cases of William Goldman Theatres, Inc. et al. v. Peter T. Dana et al., and Twentieth Century-Fox Film Corporation v. Charles H. Boehm, Superintendent of Public Instruction of the Commonwealth of Pennsylvania et al. Decrees affirmed.*fn*
Anne X. Alpern, Attorney General, with her Lois G. Forer, Deputy Attorney General, for State Board of Motion Picture Control and Superintendent of Public Instruction, appellants.
Edwin P. Rome, with him Morris L. Weisberg, and Blank, Rudenko, Klaus & Rome, for appellees.
Bernard G. Segal, with him Samuel D. Slade, Arlin M. Adams, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellees.
William B. Ball, with him John H. Bream, for amicus curiae.
Matthew W. Bullock, Jr. and Julian Goldberg, for American Civil Liberties Union, amicus curiae.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The Commonwealth appeals from separate decrees of the court below in two suits, which respectively adjudged
the Motion Picture Control Act of September 17, 1959, P.L. 902, 4 PS § 70.1 et seq., unconstitutional.
The first suit (Appeal No. 22) was instituted by William Goldman Theatres, Inc., and Pennsylvania Association of Amusement Industries by William Goldman Theatres, Inc., Trustee ad litem, seeking to enjoin the members of the Pennsylvania State Board of Motion Picture Control from enforcing any of the provisions of the Act and to relieve the plaintiffs and all others similarly situated from registering under the Act or from complying with any of its provisions. The members of the Motion Picture Control Board were appointed by the Governor pursuant to the Act of 1959, supra. The other suit (Appeal No. 23) was instituted by Twentieth Century-Fox Film Corporation, as a taxpayer's bill, for itself and all others similarly situated, for the purpose of enjoining the fiscal officers of the Commonwealth and the Superintendent of Public Instruction from expending any funds of the Commonwealth appropriated by Section 16 of the Act of from any other appropriation made for the enforcement of the Act. Twentieth Century's complaint also prayed that the members of the Board of Motion Picture Control be restrained from taking any proceedings pursuant to the provisions of the Act. Both appeals will be disposed of in this one opinion.
In Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584 (1956), the Motion Picture Censorship Act of May 15, 1915, P.L. 534, as amended by the Act of May 8, 1929, P.L. 1655, was stricken down as unconstitutional on the ground that the standards prescribed for the Board of Censors' disapproval of submitted films for public showing were so vague and indefinite in their statutory connotation as to offend the due process clause of the Fourteenth Amendment of the Federal Constitution. Consideration of the question of pre-censorship in that case was deemed unnecessary to
the decision and, consequently, was expressly not passed upon, Mr. Chief Justice STERN saying for the court in that connection (p. 358), "It is not necessary for us to consider... whether, however amended and 'clearly drawn,' any statute censoring motion pictures must be held to be unconstitutional on the theory that motion pictures are as much entitled to the protection of the constitutional guaranty of free speech as is now enjoyed by newspapers, magazines, books, theatrical exhibitions, radio and television scripts."
At all events, it is not open to question that motion pictures for public exhibition are entitled to the constitutional guarantee of free speech and free press. In Burstyn v. Wilson, 343 U.S. 495, 502 (1952), the Supreme Court of the United States succinctly declared that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments."
These constitutionally protected freedoms are not, of course, absolute. But, where a restrictive statute is made to operate in the area of individual liberty, "the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. State, 308 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296; Prince v. Massachusetts, 321 U.S. 158. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions": Thomas v. Collins, 323 U.S. 516, 529-530 (1945).
Apart from the Fourteenth Amendment, the guarantee of free communication of thought and opinion is independently protected by our State Constitution of 1874. Article I, § 7, thereof recognizes and declares that "The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being
natural right." See State v. Jackson, 224 Ore. 337, 356 P. 2d 495, 499 (1960). Blackstone so recognized (circa 1767) when he wrote, "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects,": 4 Bl. Comm. 151-152, (footnote omitted).
What Blackstone thus recognized as the law of England concerning freedom of the press came to be, 130 odd years later, an established constitutional right in Pennsylvania as to both speech and press; Article IX, § 7, of the Constitution of 1790 so ordained; and, as already
pointed out, the provision still endures as Article I, § 7, of our present Constitution.*fn2
We come then to consider the provisions of the Motion Picture Control Act of 1959, in the interpretation whereof the usual presumption of legislative validity must, in keeping with the pronouncement of the Supreme Court in Thomas v. Collins, supra, be weighed against "the great, the indispensable democratic freedoms" whose preferred status in our scheme of local government is secured by Article I, § 7, of our State Constitution. No matter how laudably inspired or highly conceived a sumptuary statute may be, if its restrictions impinge upon the freedoms of the individual, as constitutionally guaranteed, it cannot stand. The harm to our free institutions, which the enforcement of such a statute would entail, would be of far greater portent than the evil it was designed to eradicate.
The Act of 1959 requires any person intending to sell, lease, lend, exhibit or use any motion picture film, reel or view (defined as "what is usually known as a stereopticon view or slide or... one or more frames of a motion picture film") to register with the Board and to notify the Board within 48 hours before the first showing thereof in Pennsylvania of the time and place of such showing. Upon the request of the Board at any time after such showing the registrant must furnish the Board with an exact copy of such film, reel or view for examination. A registrant must pay an annual registration fee of one dollar, and for the listing of the first showing of each film, reel or view, a fee of fifty cents for each 1,200 lineal feet or less.
The Board is empowered to examine any film, reel or view which has been exhibited at least once in Pennsylvania,
and if a majority of the members of the Board are of the opinion that the film, reel or view is "obscence," the same shall be disapproved. If a majority of the members of the Board are of the opinion that the film, reel or view is "unsuitable for children," the same shall be disapproved for exhibition to children.
A child is defined by the Act as "any person less than seventeen years of age." A film, reel or view is obscene, according to the Act, "if to the average person applying contemporary community standards its dominant theme, taken as a whole, appeals to prurient interest." A film, reel or view is unsuitable for children, according to the Act, if it "is obscene or... incites to crime." Incites to crime is defined as that "which represents or portrays as acceptable conduct or as conduct worthy of emulation the commission of any crime, or the manifesting of contempt for law."
At the end of each week, or earlier if the Board so desires, it shall cause to be published a record of all films, reels and views which it has disapproved or disapproved for exhibition to children.
If an aggrieved registrant appeals from the Board's ruling, his film, reel or view will be promptly re-examined in his presence by at least two members of the Board and the ruling affirmed, reversed or modified. An aggrieved registrant has a right to appeal from the latter decision to the court of common pleas of the proper county.
The Board may apply to the court of common pleas of any county in which a film, reel or view which has been disapproved or disapproved as unsuitable for children is being shown or is about to be shown for an injunction to restrain its showing. Upon the affidavit of a member of the Board that the film, reel or view has been disapproved or disapproved as unsuitable for children the court may issue a preliminary injunction.
Section 8 of the Act prohibits the sale, lease, loan, exhibition or use of any film, reel or view which has been disapproved by the Board, and prohibits the exhibition to children of any film, reel or view which has been disapproved by the Board as unsuitable for children.*fn3 Section 11 of the Act prohibits any person from causing to be printed or displayed in Pennsylvania any advertising matter to aid in or advertise the showing of any film, reel or view which has been disapproved by the Board, whether or not the showing is to be held in Pennsylvania.
Section 13 makes the violation of any provision of the Act a criminal offense subject to a fine of from $500 to $1,000 or a prison sentence not exceeding 6 months, or both.
Section 14 provides that the Act "does not apply to any sale, lease, loan, exhibition or use of films, reels or views for purely educational, charitable, fraternal, family or religious purpose by any religious association, fraternal society, family, library, museum, public school or private school, or to any sale, lease, loan, exhibition or use of 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 theatres or in public places of entertainment commonly used as such."
The Act is clearly invalid on its face. It is designed to effect, in violation of Article I, § 7, of the Pennsylvania Constitution, a pre-censorship of the exercise of the individual's right freely to communicate thoughts and opinions. Section 3 of the Act expressly
restrains the initial showing of a film for 48 hours after notice to the Board of its intended exhibition; and subsequent showings are likewise subjected to previous restraint for the reason that, if the motion picture is exhibited after the censors have disapproved it, the exhibitor may be criminally punished upon proof, not of showing a picture that is obscene or unsuitable for children, but merely upon proof of showing a picture the exhibition of which had been priorly restrained by the administrative action of the Board of Censors.
And, concomitantly, the Act offends, additionally, Article I, §§ 6 and 9, of the Pennsylvania Constitution. Section 6 prescribes that "Trial by jury shall be as heretofore, and the right thereof remain inviolate", while Section 9 provides that "In all criminal prosecutions the accused hath a right to... a speedy public trial by an impartial jury of the vicinage;... nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the the land." No provisions in the Pennsylvania Constitution are more fundamental to the liberty of the individual. What they ordain is that the individual is entitled to a public trial by an impartial jury of the vicinage in every situation in which he would have been entitled to such a trial at the time of the adoption of our State Constitution of 1790 and ever since under our succeeding constitutions. See Premier C. & B. Co. v. Pa. Alcohol P.B., 292 Pa. 127, 133, 140 Atl. 858 (1928); Rhines v. Clark, 51 Pa. 96, 101 (1866); Commonwealth v. Wesley, 171 Pa. Superior Ct. 566, 91 A.2d 298 (1952); Commonwealth ex rel. v. Heiman, 127 Pa. Superior Ct. 1, 190 Atl. 479 (1937).
The utterance of obscene matter was a crime at common law for which a defendant chargeable therewith was entitled to a trial by jury. This was likewise so under similar guarantees in the Constitution of 1790 and 1838, long before the adoption of our present Constitution.
peremptorily. But, under the Act a defendant would have no such right of challenge, even for cause, as to any of the three gubernatorially appointed censors. In fact, the sole qualification they need present is that they are residents of Pennsylvania.
Since one accused cannot constitutionally be punished for the utterance of alleged obscene matter except upon a finding by an impartial jury of the vicinage that the matter was in fact obscene, such result cannot be achieved by the artful device of granting to administrative officials the power to disapprove the utterance if they think it is obscene, prohibit the sale, lease, loan, exhibition or use of anything so disapproved and impose a criminal penalty for a violation of their prohibition. Constitutionally protected rights are not to be so adroitly subverted. It follows that the Motion Picture Control Act of 1959, in its deprivation of the individual's right to have "an impartial jury of the vicinage" pass upon the issue of whether or not his utterance was obscene, violates Article I, §§ 6 and 9, of the Pennsylvania Constitution.
The appellant places great reliance upon Times Film Corporation v. City of Chicago, 365 U.S. 43 (1961), in which the United States Supreme Court, by a five to four decision, ruled that a particular section of a Chicago ordinance "requiring the submission of films prior to their public exhibition [was] not, on the grounds set forth, void on its face."*fn4 That case in
no way involved the rights guaranteed the individual by the Pennsylvania Constitution. Moreover, the opinion of the Court expressly declined to deal with "any statutory standards employed by the censor or procedural requirements as to the submission of the film."
The Motion Picture Control Act of 1959, in its defective censorial standards and the failure of its procedural requirements to safeguard adequately the constitutionally protected rights of freedom of expression, whether by speech or press, violates both the "due process" clause of the Fourteenth Amendment of the Federal Constitution and the "law of the land" provision in Article I, § 9, of the Pennsylvania Constitution.
The definition of obscenity, as used in the Act of 1959, was obviously culled from the opinion of the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489 (1957) in an attempt to satisfy the due process requirement of clarity under the Fourteenth Amendment. But, the definition of obscenity there enunciated has never been approved by the Supreme Court other than in the context of a criminal proceeding; and there is good reason why this is so. A criminal proceeding ordinarily means a trial by jury of the vicinage. The members of the jury represent a cross-section of the community in which the allegedly obscene utterance was made. The jury naturally possesses a special aptitude for reflecting the view of the "average person" of the community. A determination of whether or not a particular utterance is obscene requires, by the Act's own definition, an appraisal of its
quality according to the average person's application of contemporary community standards.
However, the appellant contends that the word "community" as used in the Act's definition of obscenity should be interpreted to mean "Commonwealth of Pennsylvania", that a definitive contemporary standard of morality exists for the State as a whole, and that the three gubernatorially appointed censors are capable of determining just what this standard is in any particular circumstances of time and place. The contention is patently specious. A "community" in relation to standards of morality is a regional, and not a political, entity. Obviously the moral standards of the average resident of a metropolitan area are not the same as the moral standards of the average resident of a rural county.
Even if there were a definitive contemporary standard of morality applicable to the State as a whole, there is no guarantee that the censors appointed under the Motion Picture Control Act would be capable of ascertaining it. The only qualification for membership on the Board of Censors is that the appointees be "residents of Pennsylvania." No minimum requirements of academic education or sociological training is necessary. Indeed, it is possible under this statute to have uneducated, or even illiterate, persons ruling upon whether or not motion pictures of published and easily obtainable literary works are obscene. And, all this, without even a hearing on the point!
It is highly significant, moreover, that the Supreme Court in defining the term "obscenity", as applied in the criminal proceeding involved in the Roth case, stipulated that the allegedly obscene utterance must be considered "as a whole." Yet, the Act, here under consideration, empowers the censors to condemn not only an entire motion picture film and an individual reel of a film as well, but it expressly authorizes the censors
to condemn a single "view", which the Act defines as "one or more frames of a motion picture film." Thus, under the statute, the Board of Censors need not consider a motion picture film "as a whole" but may censor any individual frame separately and slice the film accordingly. Such a procedure for applying the standard of "obscenity" has never yet been sanctioned by the Supreme Court.
The Act empowers the Board to disapprove a film, reel or view for exhibition to children if it "represents or portrays as acceptable conduct or as conduct worthy of emulation the commission of any crime or the manifesting of contempt for law." This standard is broad enough to empower the Board to disapprove for exhibition to children (i.e., persons under 17 years of age according to the Act) a large portion of films depicting historical, including Biblical, events. There is no need here to catalogue the many such instances that will readily come to mind upon a moment's reflection.
It is abundantly evident that the Act of 1959 empowers the censors to trespass too far upon the area of constitutionally protected freedom of expression. As the Supreme Court said in Winters v. New York, 333 U.S. 507, 509-510 (1948): "It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment. Stromberg v. California, 283 U.S. 359, 369; Herndon v. Lowry, 301 U.S. 242, 258. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute's inclusion of prohibitions against expressions, protected by the principles of the First Amendment, violates an accused's rights under procedural due process and freedom of speech or press."
So far as the procedural protection afforded by the Act to those who exercise their right of free speech, which the Attorney General stresses, is concerned, it is to be borne in mind that "since only considerations of the greatest urgency can justify restrictions on speech, and since the validity of a restraint on speech in each case depends on careful analysis of the particular circumstances... the procedures by which the facts of the case are adjudicated are of special importance and the validity of the restraint may turn on the safeguards which they afford.": Speiser v. Randall, 357 U.S. 513, 521 (1958).
Section 4 of the Act, which requires each person who intends to sell, lease, lend, exhibit or use any motion picture film, reel or view in Pennsylvania to pay to the Board an annual registration fee of $1, and for the listing of the first showing of each film, reel or view a fee of 50 cents for each 1,200 lineal feet or less, is a plain attempt to tax the exercise of the right of free speech, a right that exists wholly apart from State authority and whose utilization a State may not, therefore, license. In Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943), the Supreme Court declared that "A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution." The brief of the Commonwealth on these appeals makes no attempt whatsoever to justify the fees imposed by Section 4 of the Act.
Section 5 of the Act purports to empower the Board to disapprove, or disapprove for exhibition to children, any film, reel or view which has been exhibited at least once in Pennsylvania without any hearing or any opportunity for any person to present testimony of any kind regarding the contents of the film, reel or view, or the contemporary community standards to be applied in judging it, or any other relevant matter. The Act prohibits the sale, lease, loan, exhibition, use or
the causing to be printed or displayed in Pennsylvania of any advertising matter to aid in or advertise the showing of any film, reel or view from the moment of its disapproval, with criminal sanctions for violation of the prohibition, regardless of whether or not an appeal to the court of common pleas from the Board's ruling has been ...