Times Film Corporation v. City of Chicago

In Times Film Corp. v. City of Chicago, 365 U.S. 43, Times Film Corporation once again wanted to show a film in Chicago but was denied a permit. This time the film was entitled Don Juan. The petitioner paid the license fee but refused to submit the film for examination. When the permit was refused, the corporation sued the city in federal court, arguing that the ordinance violated the First and Fourteenth Amendments.[8]

The U.S. District Court of Northern Illinois dismissed the suit, stating that it presented no justiciable controversy; the Court of Appeals for the Seventh Circuit agreed, concluding that since neither the film nor evidence of its content had been presented, the case merely presented an abstract question of law.[9]

The United States Supreme Court, however, agreed to adjudicate the case,[8] in which the Times Film Corp. was represented by the ACLU. The Court heard the case on October 19, 1960, and issued its ruling on January 23, 1961. It found against Times Film Corp. on the grounds that it was not challenging the validity of the censor's standards but was challenging the censor's very right to censor.[10]

The Court ruled, 5–4, that “there is not a word in the record as to the nature and content of 'Don Juan'” and that “[t]he challenge here is to the censor's basic authority.” Citing Gitlow v. New York, the court stated, “It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid.” The court rejected the petitioner's argument against prior restraint, maintaining that it was not the Court's job “to limit the State in its selection of the remedy it deems most effective to cope” with the problem of obscenity in films.[11]

The majority opinion was written by Justice Clark, with Justices Frankfurter, Harlan, Whittaker, and Stewart joining in the majority opinion.[11]

Both Justices Warren and Douglas wrote dissenting opinions; they were joined by Justices Black and Brennan.[11]

Chief Justice Warren's long and probing dissent, in which Justices Black, Douglas, and Brennan joined, argued that the court's 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.”[11]

Citing such precedents as Near v. Minnesota[2] and Grosjean v. American Press Co.,[12] as well as Cantwell v. Connecticut,[13] in which the court found previous restraint unconstitutional, Chief Justice Warren emphasized that the question presented in the case was not whether an exhibitor has a “complete and absolute freedom to exhibit at least once, any and every kind of motion picture.” Rather, the question was whether government at any level can “require all motion picture exhibitors to submit all films...for licensing and censorship prior to public exhibition within the jurisdiction.”[11]

Protesting that the court's decision “gives formal sanction to censorship in its purest and most far-reaching form,” Chief Justice Warren compared the Chicago censorship procedure to the “English licensing laws of the seventeenth century which were commonly used to suppress dissent.” Recounting several dozen recent examples of egregious censorship in the U.S., including a Chicago ban on Charlie Chaplin's The Great Dictator, which the city deemed offensive to German-Americans, he referred to “the evils of the censor's basic authority, of the mischief of the system against which so many great men have waged stubborn and often precarious warfare for centuries.”[11]

Justice Douglas, in a briefer dissent with which Justices Warren and Black concurred, wrote that “censorship of movies is unconstitutional because it is a prior restraint and violative of the First Amendment.” Citing statements about censorship from Plato's Republic and Hobbes's Leviathan, he noted: “Regimes of censorship are common in the world today. Every dictator has one; every Communist regime finds it indispensable.” While censors had once been concerned with political satire, they were now preoccupied “with atheism and with sexual morality,” with a variety of groups seeking to “translate into secular law their notions of morality.”[14]

Yet in the U.S., Justice Douglas pronounced, “the state is not the secular arm of any religious school of thought, nor is the church an instrument of the state.” The First Amendment forbids the government from supporting any censor: “It is not for government to pick and choose according to the standards of any religious, political, or philosophical group. It is not permissible, as I read the Constitution, for government to release one movie and refuse to release another because of an official's concept of the prevailing need or the public good.”[14]

Justice Douglas further warned of “the ease with which the censor can erode liberty of expression.” The point of the First Amendment is “to enlarge, not to limit, freedom in literature and in the arts as well as in politics, economics, law, and other fields....No more potent force in defeat of that freedom could be designed than censorship. It is a weapon that no minority or majority group, acting through government, should be allowed to wield over any of us.”[14]

Within a very short time after rendering these two decisions, the U.S. Supreme Court would shift toward a far broader interpretation of the First Amendment. Justice Brennan, who wrote the majority opinion in the 1957 case, would reverse his position on the issue in Miller v. California.[15][10]

One observer has noted that Chief Justice Warren foresaw the mistake the court was making in the 1961 case. The Court would hear several related cases over the next five years, and by 1965 reversed its decision on censorship, ruling states and municipalities can not necessarily censor films under the First and Fourteenth Amendments.[10]