Times Film Corporation v. City of Chicago (365 U.S. 43)/Dissent Douglas

by William O. Douglas

United States Supreme Court

365 U.S. 43

Times Film Corporation  v.  City of Chicago

 Argued: Oct. 19 & 20, 1960. --- Decided: Jan 23, 1961

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

My view that censorship of movies is unconstitutional because it is a prior restraint and violative of the First Amendment has been expressed on prior occasions. Superior Films, Inc. v. Department of Education, 346 U.S. 587, 588-589, 74 S.Ct. 286, 98 L.Ed. 329 (concurring opinion); Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 697, 79 S.Ct. 1362, 1370, 3 L.Ed.2d 1512 (concurring opinion).

While the problem of movie consorship is relatively new, the censorship device is an ancient one. It was recently stated, 'There is a law of action and reaction in the decline and resurgence of censorship and control. Whenever liberty is in the ascendant, a social group will begin to resist it; and when the reverse is true, a similar resistance in favor of liberty will occur.' Haney, Comstockery in America (1960) pp. 11-12.

Whether or not that statement of history is accurate, censorship has had many champions throughout time.

Socrates: 'And shall we just carelessly allow children to hear any casual tales which may be devised by casual persons, and to receive into their minds ideas for the most part the very opposite of those which we should wish them to have when they are grown up?'

Glaucon: 'We can not.'

Socrates: 'Then the first thing will be to establish a censorship of the writers of fiction, and let the censors receive any tale of fiction which is good, and reject the bad; and we will desire mothers and nurses to tell their children the authorized ones only. Let them fashion the mind with such tales, even more fondly than they mould the body with their hands; but most of those which are now in use must be discarded.' Plato, Republic 'The Dialogues of Plato, Jowett trans., Ox. Univ. Press 1953) vol. 2, p. 221.

Hobbes was the censor's proponent: '* * * it is annexed to the sovereignty, to be judge of what opinions and doctrines are averse, and what conducing to peace; and consequently, on what occasions, how far, and what men are to be trusted withal, in speaking to multitudes of people; and who shall examine the doctrines of all books before they be published. For the actions of men proceed from their opinions; and in the well-governing of opinions, consisteth the well-governing of men's actions, in order to their peace, and concord.' Leviathan (Oakeshott ed. 1947), p. 116.

Regimes of censorship are common in the world today. Every dictator has one; every Communist regime finds it indispensable. ^[1] One shield against world opinion that colonial powers have used was the censor, as dramatized by France in North Africa. Even England has a vestige of censorship in the Lord Chamberlain (32 Halsbury's Laws of England (2d ed. 1939), p. 68) who presides over the stage-a system that in origin was concerned with the barbs of political satire. ^[2] But the concern with political satire shifted to a concern with atheism and with sexual morality-the last being the concern evident in Chicago's system now before us.

The problems of the wayward mind concern the clerics, the psychiatrists, and the philosophers. Few groups have hesitated to create the political pressures that translate into secular law their notions of morality. Pfeffer, Creeds in Competition (1958), pp. 103-109. No more powerful weapon for sectarian control can be imagined than governmental censorship. Yet in this country the state is not the secular arm of any religious school of thought, as in some nations; nor is the church an instrument of the state. Whether-as here-city officials or-as in Russia-a political party lays claim to the power of governmental censorhip, whether the pressures are for a conformist moral code or for a conformist political ideology, no such regime is permitted by the First Amendment.

The forces that build up demands for censorship are heterogeneous.

'The comstocks are not merely people with intellectual theories who might be convinced by more persuasive theories; nor are they pragmatists who will be guided by the balance of power among pressure groups. Many of them are so emotionally involved in the condemnation of what they find objectionable that they find rational arguments irrelevant. They must suppress what is offensive in order to stabilize their own tremulous values and consciences. Panic rules them, and they cannot be calmed by discussions of legal rights, literary integrity, or artistic merit.' Haney, op. cit. supra, pp. 176 177.

Yet as long as the First Amendment survives, the censor, no matter how respectable his cause, cannot have the support of government. 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. The Court in Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357, said that the 'chief purpose' of the First Amendment's guarantee of freedom of press was 'to prevent previous restraints upon publication.'

A noted Jesuit has recently stated one reason against government censorship:

'The freedom toward which the American people are fundamentally orientated is a freedom under God, a freedom that knows itself to be bound by the imperatives of the moral law. Antecedently it is presumed that a man will make morally and socially responsible use of his freedom of expression; hence there is to be no prior restraint on it. However, if his use of freedom is irresponsible, he is summoned after the fact to responsibility before the judgment of the law. There are indeed other reasons why prior restraint on communications is outlawed; but none are more fundamental than this. Murray, We Hold These Truths (1960), pp. 164-165.

Experience shows other evils of 'prior restraint.' The regime of the censor is deadening. One who writes cannot afford entanglements with the man whose pencil can keep his production from the market. The result is a pattern of conformity. Milton made the point long age: 'For though a licenser should happen to be judicious more than ordinarily, which will be a great jeopardy of the next succession, yet his very office, and his commission enjoins him to let pass nothing but what is vulgarly received already.' Areopagitica, 3 Harvard Classics (1909), p. 212.

Another evil of censorship is the ease with which the censor can erode liberty of expression. One stroke of the pen is all that is needed. Under a censor's regime the weights are cast against freedom. ^[3] If, however, government must proceed against an illegal publication in a prosecution, then the advantages are on the other side. All the protections of the Bill of Rights come into play. The presumption of innocence, the right to jury trial, proof of guilt beyond a reasonable doubt-these become barriers in the path of officials who want to impose their standard of morality on the author or producer. The advantage a censor enjoys while working as a supreme bureaucracy disappears. The public trial to which a person is entitled who violates the law gives a hearing on the merits, airs the grievance, and brings the community judgment to bear upon it. If a court sits in review of a censor's ruling, its function is limited. There is leeway left the censor, who like any agency and its expertise, is given a presumption of being correct. ^[4] That advantage disappears when the government must wait until a publication is made and then prove its case in the accepted manner before a jury in a public trial. All of this is anathema to the censor who prefers to work in secret, perhaps because, as Milton said, he is 'either ignorant, imperious, and remiss, or basely pecuniary.' Areopagitica, supra, p. 210.

The First Amendment was designed to enlarge, not to limit, freedom in literature and in the arts as well as in politics, economics, law, and other fields. Hannegan v. Esquire, Inc., 327 U.S. 146, 151-159, 66 S.Ct. 456, 459-463, 90 L.Ed. 586; Kingsley International Pictures Corp. v. Regents of University of State of New York, supra. Its aim was to unlock all ideas for argument, debate, and dissemination. 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. ^[5]

Notes

1. 'Nowhere have the Communists become simply a vote-getting party. They are organized around ideas and they care about ideas. They are the great heresy hunters of the modern world.' Ways, Beyond Survival (1959), p. 199.
2. Ivor Brown in a recent summary of the work of the Lord Chamberlain states: 'The licensing of plays was imposed not to protect the morals of the British public but to safeguard the reputation of politicians. This happened in 1737 when the Prime Minister, Sir Robet Walpole, infuriated by the stage lampoons of Henry Fielding and others, determined to silence these much enjoyed exposures of his alleged corruption and incompetence. This had the curiously beneficial result of driving Fielding away from the stage. He then became an excellent magistrate and a major creator of the English novel. But in the puritanical atmosphere of the nineteenth century the discipline was applied to the moral content of plays and applied so rigorously that the dramatists were barred from serious treatment of 'straight sex,' as well as the abnormalities. The prissiness of respectable Victorian society was such that legs were hardly to be mentioned, let alone seen, and Charles Dickens wrote cumbrously of 'unmentionables' when he meant trousers.' N.Y. Times, Jan. 1, 1961, § 2, p. X3. And see Knowles, The Censor, The Drama, and The Film (1934). As to British censorship of movies see 15 & 16 Geo. 6 & 1 Eliz. 2, c. 68.
3. John Galsworthy wrote in opposition to the British censorship of plays: 'In this country the tongue ad pen are subject to the law; so may it ever be! But in this country neither tongue nor pen are in any other instance subject to the despotic judgments of a single man. The protest is not aimed at the single man who holds this office. He may be the wisest man in England, the best fitted for his despotic office. It is not he; it is the office that offends. It offends the decent pride and self-respect of an entire profession. To those who are surprised that dramatic authors should take themselves so seriously we say, What workman worthy of his tools does not believe in the honour of his craft? In this appeal for common justice we dramatists, one little branch of the sacred tree of letters, appeal to our brother branches. We appeal to the whole knighthood of the pen-scientists, historians, novelists, journalists. The history of the health of nations is the history of the freedom-not the license-of the tongue and pen. We are claiming the freedom-not the license-of our pens. Let those hold back in helping us who would tamely suffer their own pens to be warped and split as ours are before we take them up.' London Times, Nov. 1, 1907, p. 7. And see the testimony of George Bernard Shaw in Report, Joint Select Committee of the House of Lords and the House of Commons on the Stage Plays (Censorship) (1909), p. 46 et seq. Shaw, three of whose plays had been suppressed, caused a contemporary sensation by asking, and being refused, permission to file with the Committee and attack on censorship that he had prepared. Shaw's version of the story and the rejected statement can be found as his preface to The Shewing-Up of Blanco Posnet. He says in his statement: 'Any journalist may publish an article, any demagogue may deliver a speech without giving notice to the government or obtaining its license. The risk of such freedom is great; but as it is the price of our political liberty, we think it worth paying. We may abrogate it in emergencies * * * just as we stop the traffic in a street during a fire or shoot thieves on sight after an earthquake. But when the emergency is past, liberty is restored everywhere except in the theatre. (Censorship is) a permanent proclamation of martial law with a single official substituted for a court martial.' The Shewing-Up of Blanco Posnet (Brentano's, 1913), p. 36.
4. See Note, 71 Harv.L.Rev. 326, 331. Cf. Glanzman v. Christenberry, D.C., 175 F.Supp. 485, with Grove Press, Inc., v. Christenberry, D.C., 175 F.Supp. 488, as to the weight given to post-office determinations of nonmailability.
5. 'First, within the larger pluralist society each minority group has the right to censor for its own members, if it so chooses, the centent of the various media of communication, and to protect them, by means of its own choosing, from materials considered harmful according to its own standards.

'Second, in a pluralist society no minority group has the right to demand that government should impose a general censorship, affecting all the citizenry, upon any medium of communication, with a view to punishing the communication of materials that are judged to be harmful according to the special standards held within one group.

'Third, any minority group has the right to work toward the elevation of standards of public morality in the pluralist society, through the use of the methods of persuasion and pacific argument.

'Fourth, in a pluralist society no minority group has the right to impose its own religious or moral views on other groups, through the use of the methods of force, coercion, or violence.' Murray, We Hold These Truths (1960), p. 168.