Tom C. Clark

“ Moreover, the decision presents a real danger of eventual censorship for every form of communication, be it newspapers, journals, books, magazines, television, radio or public speeches. The Court purports to leave these questions for another day, but I am aware of no constitutional principle which permits us to hold that the communication of ideas through one medium may be censored while other media are immune. Of course each medium presents its own peculiar problems, but they are not of the kind which would authorize the censorship of one form of communication and not others. ”

“ Freedom of speech and freedom of the press are further endangered by this 'most effective' means for confinement of ideas. It is axiomatic that the stroke of the censor's pen or the cut of his scissors will be a less contemplated decision than will be the prosecutor's determination to prepare a criminal indictment. The standards of proof, the judicial safeguards afforded a criminal defendant and the consequences of bringing such charges will all provoke the mature deliberation of the prosecutor. ”

“ The Court held there that a license tax of two percent on the gross receipts from advertising of newspapers and periodicals having a circulation of over 20,000 a week was a form of prior restraint and therefore invalid. Certainly this would seem much less an infringement on the liberties of speech and press protected by the First and Fourteenth Amendments than the classic system of censorship we now have before us. It was held, in Grosjean, that the imposition of the tax would curtail the amount of revenue realized from advertising and therefore operate as a restraint on publication. ”

“ Brief for Petitioner, p. 17. The instant litigation has now consumed almost three years. This is the delay occasioned by the censor; this is the injury done to the free communication of ideas. This damage is not inflicted by the ordinary criminal penalties. The threat of these penalties, intelligently applied, will ordinarily be sufficient to deter the exhibition of obscenity. However, if the exhibitor believes that his film is constitutionally protected, he will show the film, and, if prosecuted under criminal statute, will have ready that defense. ”

“ The contention may be advanced that the impact of motion pictures is such that a licensing system of prior censorship is permissible. There are several answers to this, the first of which I think is the Constitution itself. Although it is an open question whether the impact of motion pictures is greater or less than that of other media, there is not much doubt that the exposure of television far exceeds that of the motion picture. ”

“ Let it be completely clear what the Court's decision does. It gives official license to the censor, approving a grant of power to city officials to prevent the showing of any moving picture these officials deem unworthy of a license. It thus gives formal sanction to censorship in its purest and most far-reaching form, [5] to a classical plan of licensing that, in our country, most closely approaches the English licensing laws of the seventeenth century which were commonly used to suppress dissent in the mother country and in the colonies. ”

“ There has been general criticism of the theory that Blackstone's statement was embodied in the First Amendment, the objection being "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions'; and that 'the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.' 2 Cooley, Const. ”

“ We are satisfied that a justiciable controversy exists. The section of Chicago's ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such 'permit shall be granted only after the motion picture film for which sid permit is requested has been produced at the office of the commissioner of police for examination'; that the commissioner shall refuse the permit if the picture does not meet certain standards ”

“ The Chicago ordinance makes no exception for newsreels, documentaries, instructional and educational films or the like. All must undergo the censor's inquisition. Nor may it be suggested that motion pictures may be treated differently from newspapers because many movies are produced essentially for purposes of entertainment. As the Court said in Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840:
'We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. ”

“ The vice of censorship through licensing and, more generally, the particular evil of previous restraint on the right of free speech have many times been recognized when this Court has carefully distinguished between laws establishing sundry systems of previous restraint on the right of free speech and penal laws imposing subsequent punishment on utterances and activities not within the ambit of the First Amendment's protection. ”

“ Examination of the background and circumstances leading to the adoption of the First Amendment reveals the basis for the Court's steadfast observance of the proscription of licensing, censorship and previous restraint of speech. Such inquiry often begins with Blackstone's assertion: 'The liberty of the press is indeed essential to the nature of a free state ”

“ Five years later, a unanimous Court observed:
'As early as 1644, John Milton, in an 'Appeal for the Liberty of Unlicensed Printing,' assailed an act of Parliament which had just been passed providing for censorship of the press previous to publication. He vigorously defended the right of every man to make public his honest views 'without previous censure'; and declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform it duties.' Grosjean v. ”

“ This is the traditional argument made in the censor's behalf; this is the argument advanced against newspapers at the time of the invention of the printing press. The argument was ultimately rejected in England, and has consistently been held to be contrary to our Constitution. No compelling reason has been predicated for accepting the contention now.
It is true that 'each method (of expression) tends to present its own peculiar problems.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. The Court has addressed itself on several occasions to these problems. ”

“ Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as 'Don Juan.' It applied for a permit, as Chicago's ordinance required, and tendered the license fee but refused to submit the film for examination. ”

“ The statute in Kingsley authorized 'the chief executive, or legal officer, of a municipality to invoke a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial (by a court) to be obscene * * *.' Id., 354 U.S. at page 437, 77 S.Ct. at page 1326. The Chicago scheme has no procedural safeguards; there is no trial of the issue before the blanket injunction against exhibition becomes effective. ”

“ Forty-six of our States currently see fit to rely on traditional criminal punishment for the protection of their citizens.↑ Although the Chicago ordinance designates the Commissioner of Police as the censor, counsel for the city explained that the task is delegated to a group of people, often women. ”

“ The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.' See Thomas v. ”

“ The Chicago objective is to capture much more. The Kingsley statute required the existence of some cause to believe that the publication was obscene before the publication was put on trial. The Chicago ordinance requires no such showing. ”

“ The police sergeant in charge of the censor unit has said: 'Children should be allowed to see any movie that plays in Chicago. If a picture is objectionable for a child, it is objectionable period.' Chicago Tribune, May 24, 1959, p. 8, col. 3. And this is but a smattering produced from limited research. Perhaps the most powerful indictment of Chicago's licensing device is found in the fact that between the Court's decision in 1952 in Joseph Burstyn, Inc., v. ”

“ Witchcraft, a study of superstition through the ages, was suppressed for years because it depicted the devil as a genial rake with amorous leanings, and because it was feared that certain historical scenes, portraying the excesses of religious fanatics, might offend religion. ”

“ State of Connecticut, supra, further reveals the Court's sharp divergence today from seriously deliberated precedent. The statute in Cantwell forbade solicitation for any alleged religious, charitable or philanthropic cause unless the secretary of the public welfare council determined that the 'cause (was) a religious one or (was) a bona fide object of charity or philanthropy and conform (ed) to reasonable standards of efficiency and integrity * * *.' Id., 310 U.S. at page 302, 60 S.Ct. ”

“ The police refused to permit its showing in Providence, Rhode Island, on the ground that it was communistic propaganda. Millions of Us, a strong union propaganda film, encountered trouble in a number of jurisdictions. Spanish Earth, a pro-Loyalist documentary picture, was banned by the board in Pennsylvania. Ernst and Lindey, The Censor Marches On, 96-97, 102 103, 108-111. ”

“ Id., 361 U.S. at pages 152-153, 80 S.Ct. at pages 218, 219.↑ For the particularly provocative statements made by Kunz, see the dissent of Mr. Justice Jackson. Id., 340 U.S. at pages 296 297, 71 S.Ct. at pages 316, 317.↑ Judge Stanley H. Fuld rightly observed:↑ Tolstoy once wrote:↑ In Smith v. ”