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to The History of American Film: Primary Sources
Mutual
Film Corp. v. Industrial Commission of Ohio (1915)
This
landmark court decision held that the First Amendment protections
of free expression did not apply to the movies.
Appeal
from the District Court of the United States for the Northern
District of Ohio to review a decree refusing to restrain the enforcement
of a state statute for the censorship of motion picture films.
Affirmed....
Statement
by Mr. Justice McKenna:
Appeal from an order denying appellant, herein designated complainant,
an interlocutory injunction sought to restrain the enforcement
of an act of the general assembly of Ohio, passed April 16, I9I3
(1O3 Ohio Laws, 399), creating under the autllority and superintendence
of the Industrial Commission of the state a board of censors of
motion picture films. The motion was presented to three judges
upon the bill, supporting affidavits, and some oral testimony.
The bill is quite voluminous. It makes the following attacks upon
the Ohio statute (I) The statute is in violation of 5, 16, and
19 of article I of the Constitution of the state in that deprives
complainant of a remedy by due process of law by placing it in
the power of the board of censors to determine from standards
fixed by itself what films conform to the statute, and thereby
deprives complainant of a judicial determination of a violation
of the law. (2) The statute is in violation of articles I and
14 of the Amendments to the Constitution of the United States,
and of Paragraph II of article I of the Constitution of Ohio,
in that it restrains complainant and other persons from freely
writing and publishing their sentiments. (3) It attempts to give
the board of censors legislative power, which is vested only in
the general assembly of the state, subject to a referendum vote
of the people, in that it gives to the board the power to determine
the application of the statute without fixing any standard by
which the board shall be guided in its determination, and places
it in the power of the board, acting with similar boards in other
states, to reject, upon any whim or caprice, any film which may
be presented, and power to determine the legal status of the foreign
board or boards, in conjunction with which it is empowered to
act.
The business of the complainant and the description, use, object,
and effect of motion pictures and other films contained in the
bill, stated narratively, are as follows: Complainant is engaged
in the business of purchasing, selling, and leasing films, the
films being produced in other states than Ohio, and in European
and other foreign countries. The film consists of a series of
instantaneous photographs or positive prints of action upon the
stage or in the open. By being projected upon a screen with great
rapidity there appears to the eye an illusion of motion. They
depict dramatizations of standard novels, exhibiting many subjects
of scientific interest, the properties of matter, the growth of
the various forms of animal and plant life, and explorations and
travels; also events of historical and current interest, the same
events which are described in words and by photographs in newspapers,
weekly periodicals, magazines, and other publications, of which
photographs are promptly secured a few days after the events which
they depict happen; thus regularly furnishing and publishing news
through the medium of motion pictures under the name of "Mutual
Weekly." Nothing is depicted of a harmful or immoral character.
The complainant is selling and has sold during the past year for
exhibition in Ohio an average of fifty-six positive prints of
films per week to film exchanges doing business in that state,
the average value thereof being the sum of $100, aggregating $6,000
per week, or $300,000 per annum.
In addition to selling films in Ohio, complainant has a film exchange
in Detroit, Michigan, from which it rents or leases large quantities
to exhibitors in the latter state and in Ohio. The business of
that exchange and those in Ohio is to purchase films from complainant
and other manuufacturers of films and rent them to exhibitors
for short periods at stated weekly rentals. The amount of rentals
depends upon the number of reels rented, the frequency of the
changes of subject, and the age or novelty of the reels rented.
The frequency of exhibition is described. It is the custom of
the business, observed by all manufacturers, that a subject shall
be released or published in all theaters on the same day, which
is known as the release day, and the age or novelty of the film
depends upon the proximity of the day of exhibition to such release
day. Films so shown have never been shown in public, and the public
to whom they appeal is therefore unlimited. Such public becomes
more and more limited by each additional exhibition of the reel.
The amount of business in renting or leasing from the Detroit
exchange for exhibition in Ohio aggregates the sum of $1,OOO per
week.
Complainant has on hand at its Detroit exchange at least 2,500
reels of film which it intends to and will exhibit in Ohio, and
which it will be impossible to exhibit unless the same shall have
been approved by the board of censors. Other exchanges have films,
duplicate prints of a large part of complainant's films, for the
purpose of selling and leasing to parties residing in Ohio, and
the statute of the state will require their examination and the
payment of a fee therefor. The amounts of complainant's purchases
are stated, and that complainant will be compelled to bear the
expense of having them censored because its customers will not
purchase or hire uncensored films.
The business of selling and leasing films from its offices outside
of the state of Ohio to purchasers and exhibitors within the state
is interstate commerce, which will be seriously burdened by the
exaction of the fee for censorship, which is not properly an inspection
tax, and the proceeds of which will be largely in excess of the
cost of enforcing the statute, and will in no event be paid to
the Treasury of the United States.
The board has demanded of complainant that it submit its films
to censorship, and threatens, unless complainant complies with
the demand, to arrest any and all persons who seek to place on
exhibition any film not so censored or approved by the censor
congress on and after November 4, 1913, the date to which the
act was extended. It is physically impossible to comply with such
demand and physically impossible for the board to censor the films
with such rapidity as to enable complainant to proceed with its
business, and the delay consequent upon such examination would
cause great and irreparable injury to such business, and would
involve a multiplicity of suits....
Messrs. William B. Sanders and Walter N. Seligsberg argued the
cause, and, with Mr. Harold T. Clark, filed a brief for appellant:
Appellant is entitled to invoke the protection of the constitutional
guaranty of freedom of publication as fully as any person with
whom it does business could do....
Motion pictures are publications....
Motion pictures constitute part of "the press of Ohio within
the comprehensive meaning of that word....
The Ohio motion picture censorship law is in direct contravention
of the guaranty of freedom of publicatioll contained in paragraph
II of article I of the Constitution of Ohio....
The question is not whether or not the framers of our state and
Federal Constitution had in mind this particular method of publication
by motion pictures at the time when the Constitution was adopted.
Obviously they did not, but this fact does not in any way remove
this form of publication from the protection of the constitutional
guaranty if it is within the spirit thereof....
Neither the legislative nor the judicial branches of the government
can, through censorship or injunction or by any other means, constitutionally
impose a previous restraint upon publications, whether these publications
be made through the medium of speech, writing, acting on the stage,
motion pictures or through any other mode of expression now known
or which may hereafter be discovered or invented....
However far-reaching the police power vested in the legislature
of Ohio may be, it is always subject to the limitation that the
legislature may not pass an act which is in direct conflict with
any provision of the Constitution of the United States or of the
state of Ohio....
The Ohio censorship law violates the provisions of art. 2 section
I of the Constitution of Ohio, in that it attempts to delegate
legislative power....
A constitutional guaranty need not embody a specific prohibition
in order to be entitled to protection against violation by legislative
act....
Even as to theaters, the legislature of Ohio could not demand
the surrender of rights guaranteed by the Constitution as a condition
precedent to the issuing of a license. The conducting of a theater
or other place of amusement is a perfectly lawful business, and
can only be subjected to such regulations as may other legitimate
businesses....
Under the law of Ohio, just as elsewhere, a corporation has the
right to avail itself of these constitutional guaranties....
Mr. Justice McKenlla delivered the opinion of the court:
Complainant directs its argument to three propositions: (I) The
Statute in controversy imposes an unlawful burden on interstate
commerce; (2) it violates the freedom of speech and publication
guaranteed by section II, article I, of the Constitution of the
state of Ohio; and (3)it attempts to delegate legislative powers
to censors and to other boards to determine whether the statute
offends in the particulars designated.
It is necessary to consider only sections 3, 4, and 5. Section
3 makes it the duty of the board to examine and censor motion
picture films to be publicly exhibited and displayed in the state
of Ohio. The films are required to be exhibited to the board before
they are delivered to the exhibitor for exhibition, for which
a fee is charged.
Section 4. "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 films are required to be stamped or designated in a proper
manner.
Section 5. The board may work in conjunction with censor boards
of other states as a censor congress, and the action of such congress
in approving or rejecting films shall be considered as the action
of the state board, and all films passed, approved, stamped, and
numbered by such congress, when the fees therefor are paid, shall
be considered approved by the board.
By section 7 a penalty is imposed for each exhibition of films
without the approval of the board, and by section 8 any person
dissatisfied with the order of the board is given the same rights
and remedies for hearing and reviewing, amendment or vacation
of the order "as is provided in the case of persons dissatisfied
with the orders of the Industrial Commission."
The censorship, therefore, is only of films intended for exhibition
in Ohio, and we can immediately put to one side the contention
that it imposes a burden on interstate commerce. It is true that,
according to the allegations of the bill, some of the films of
complainant are shipped from Detroit, Michigan, but they are distributed
to exhibitors, purchasers, renters, and lessors in Ohio, for exhibition
in Ohio, and this determines the application of the statute. In
other words, it is only films which are "to be publicly exhibited
and displayed in the state of Ohio" which are required to
be examined and censored....
It is true that the statute requires them to be submitted to the
board before they are delivered to the exhibitor, but we have
seen that the films are shipped to "exchanges" and by
them rented to exhibitors, and the "exchanges" are described
as "nothing more or less than circulating libraries or clearing
houses." And one film "serves in many theaters from
day to day until it is worn out."
The next contention is that the statute violates the freedom of
speech and publication guranteed by the Ohio Constitution. In
its discussion counsel have gone into a very elaborate description
of moving picture exhibitions and their many useful purposes as
graphic expressions of opinion and sentiments, as exponents of
policies, as teachers of science and history, as useful, interesting,
amusing, educational, and moral. And a list of the "campaigns,"
as counsel call them, which may be carried on, is given. We may
concede the praise. It is not questioned by the Ohio statute,
and under its comprehensive description, "campaigns"
of an infinite variety may be conducted. Films of a "moral,
educational, or amusing and harmless character shall be passed
and approved," are the words of the statute. No exhibition,
therefore, or "campaign" of complainant will be prevented
if its pictures have those qualities. Therefore, however missionary
of opinion films are or may become, however educational or entertaining,
there is no impediment to their value or effect in the Ohio statute.
But they may be used for evil, and against that possibility the
statute was enacted. Their power of amusement, and, it may be,
education, the audiences they assemble, not of women alone nor
of men alone, but together, not of adults only, but of children,
make them the more insidious in cormption by a pretense of worthy
purpose or if they should degenerate from worthy purpose. Tndeed,
we may go beyond that possibility. They take their attraction
from the general interest, eager and wholesome it may be, in their
subjects, but a prurient interest may be excited and appealed
to. Besides, there are some things which should not have pictorial
representation in public places and to all audiences. And not
only the state of Ohio, but other states, have considered it to
be in the interest of the public morals and welfare to supervise
moving picture exhibitions. We would have to shut our eyes to
the facts of the world to regard the precaution unreasonable or
the legislation to effect it a mere wanton interference with personal
liberty.
We do not understand that a possibility of an evil employment
of films is denied, but a freedom from the censorship of the law
and a precedent right of exhibition are asserted, subsequent responsibility
only, it is contended, being incurred for abuse. In other words,
as we have seen, the Constitution of Ohio is invoked, and an exhibition
of films is assimilated to the freedom of speech, writing, and
publication assured by that instrument, and for the abuse of which
only is there responsibility, and, it is insisted, that as no
law may be passed "to restrain the liberty of speech of the
press," no law may be passed to subject moving pictures to
censorship before their exhibition.
We need not pause to dilate upon the freedom of opinion and its
expression, and whether by speech, writing, or printing. They
are too certain toneed discussion--of such conceded value as to
need no supporting praise. Nor can there be any doubt of their
breadth, nor that their underlying safeguard is, to use the words
of another, "that opinion is free, and that conduct alone
is amenable to the law."
Are moving pictures within the principle, as it is contended they
are? They, indeed, may be mediums of thought, but so are many
things. So is the theater, the circus, and all other shows and
spectacles, and their performances may be thus brought by the
like reasoning under the same immunity from repression or supervision
as the public press,--made the same agencies of civil liberty.
Counsel have not shrunk from this extension of their contention,
and cite a case in this court where the title of drama was accorded
to pantomime; and such and other spectacles are said by counsel
to be publications of ideas, satisfying the definition of the
dictionaries,--that is, and we quote counsel, a means of making
or announcing publicly something that otherwise might have remained
private or unknown,--and this being peculiarly the purpose and
effect of moving pictures, they come directly, it is contended,
under the protection of the Ohio constitution.
The first impulse of the mind is to reject the contention. We
immediately feel that the argument is wrong or strained which
extends the guaranties of free opinion and speech to the multitudinous
shows which are advertised on the billboards of our cities and
towns, and which regards them as emblems of public safety, to
use the words of Lord Camden, quoted by counsel, and which seeks
to bring motion pictures and other spectacles into practical and
legal similitude to a free press and liberty of opinion.
The judicial sense supporting the common sense of the country
is against the contention. As pointed out by the district court,
the police power is familiarly exercised in granting or withholding
licenses for theatrical performances as a means of their regulation....
It seems not to have occurred to anybody in the cited cases that
freedom of opinion was repressed in the exertion of the power
which was illustrated. The rights of property were only considered
as involved. It cannot be put out of view that the exhibition
of moving pictures is a business, pure and simple, originated
and conducted for profit, like other spectacles, not to be regarded,
nor intended to be regarded by the Ohio Constitution, we think,
as part of the press of the country, or as organs of public opinion.
They are mere representations of events, of ideas and sentiments
published and known; vivid, useful, and entertaining, no doubt,
but, as we have said, capable of evil, having power for it, the
greater because of their attractiveness and mamler of exhibition.
It was this capability and power, and it may be in experience
of them that induced the state of Ohio, in addition to prescribing
penalties for immoral exhibitions, as it does in its Criminal
Code, to require censorship before exhibition, as it does by the
act under review. We cannot regard this as beyond the power of
government.
It does not militate against the strength of these considerations
that motion pictures may be used to amuse and instruct in other
places than theaters,--in churches, for instance, and in Sunday
schools and public schools. Nor are we called upon to say on this
record whether such exceptions would be within the provisions
of the statute, nor to anticipate that it will be so declared
by the state courts, or so enforced by the state officers.
The next contention of complainant is that the Ohio statute is
a delegation of legislative power, and void for that if not for
the other reasons charged against it, which we have discussed.
While administration and legislation are quite distinct powers,
the line which separates exactly their exercise is not easy to
define in words. It is best recognized in illusttations. Undoubtedly
the legislature must declare the policy of the law and fix the
legal principles which are to control in given cases; but an administrative
body may be invested with the power to ascertain the facts and
conditions to which the policy and principles apply. If this could
not be done there would be infinite confusion in the laws, and
in an effort to detail and to particularize, they would miss sufficiency
both in provision and execution.
The objection to the statute is that it furnishes no standard
of what is educational, moral, amusing, or harmless, and hence
leaves decision to arbitrary judgment, whim, and caprice; or,
aside from those extremes, leaving it to the different views which
might be entertained of the effect of the pictures, permitting
the "personal equation" to enter, resulting "in
unjust discrimination against some propagandist film," while
others might be approved without question. But the statute by
its provisions guards against such variant judgments, and its
terms, like other general terms, get precision from the sense
and experience of men, and become certain and useful guides in
reasoning and conduct. The exact specification of the instances
of their application would be as impossible as the attempt would
be futile. Upon such sense and experience, therefore, the law
properly relies.... If this were not so, the many administrative
agencies created by the state and national governments would be
denuded of their utility, and government in some of its most important
exercises become impossible....
We may close this topic with a quotation of the very apt comment
of the district court upon the statute. After remarking that the
language of the statute "might have been extended by description
and illustrative "words," but doubting that it would
have been the more restrictive might be more easily thwarted,
the court said: "In view of the range of subjects which complainants
claim to have already compassed, not to speak of the natural development
that will ensue, it would be next to impossible to devise language
that would be at once comprehensive and automatic. "
In conclusion we may observe that the Ohio statute gives a review
the courts of the state of the decision of the board of censors.
Decree affirmed.
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