Where provisions for censorship of moving pictures relate only
to films intended for exhibition within the state and they are
distributed to persons within the state for exhibition, there is no
burden imposed on interstate commerce.
The doctrine of original package does not extend to moving
picture films transported, delivered, and used as shown in the
record in this case, although manufactured in, and brought from,
another state.
Moving picture films brought from another state to be rented or
sold by the consignee to exhibitors are in consumption and mingled
as much as from their nature they can be with other property of the
state, and subject to its otherwise valid police regulation, even
before the consignee delivers to the exhibitor.
The judicial sense, supporting the common sense of this country,
sustains the exercise of the police power of regulation of moving
picture exhibitions.
The exhibition of moving pictures is a business, pure and
simple, originated and conducted for profit like other spectacles,
and not to be regarded as part of the press of the country or as
organs of public opinion within the meaning of freedom of speech
and publication guaranteed by the Constitution of Ohio.
This Court will not anticipate the decision of the state court
as to the application of a police statute of the state to a state
of facts not involved in the record of the case before it.
Quaere whether moving pictures exhibited in places other
than places of amusement should fall within the provisions of the
censorship statute of Ohio.
While administration and legislation are distinct powers and the
line that separates their exercise is not easily defined, the
legislature must declare the policy of the law and fix the legal
principles to control in given cases, and an administrative body
may be clothed with power to ascertain facts and conditions to
which such policy and principles apply.
It is impossible to exactly specify such application in every
instance, and the general terms of censorship, while furnishing no
exact standard
Page 236 U. S. 231
of requirements may get precision from the sense and experience
of men and become certain and useful guides in reasoning and
conduct. Whether provisions in a state statute clothing a board or
Congress composed of officers from that and other states with power
amount to such delegation of legislative power as to render the
provisions unconstitutional will not be determined by this Court in
a case in which it appears that such Congress is still
nonexistent.
The moving picture censorship act of Ohio of 1913 is not in
violation of the federal Constitution or the Constitution of the
State of Ohio either as depriving the owners of moving pictures of
their property without due process of law or as a burden on
interstate commerce, or as abridging freedom and liberty of speech
and opinion, or as delegating legislative authority to
administrative officers.
215 F. 138 affirmed.
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, 1913 (103 Ohio Laws 399), creating under the authority 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: (1) the statute is in violation of
§§ 5, 16 and 19 of Article 1 of the constitution of the
state in that it 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 XIV of the amendments to the Constitution of the United States,
and of § 11 of Article 1 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,
Page 236 U. S. 232
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
Page 236 U. S. 233
$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 manufacturers 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 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 $1,000 per
week.
Complainant has on hand at its Detroit exchange at least 2,500
reels of films 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
Page 236 U. S. 234
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.
There were affidavits filed in support of the bill and some
testimony taken orally. One of the affidavits showed the manner of
shipping and distributing the films, and was as follows:
"The films are shipped by the manufacturers to the film
exchanges enclosed in circular metal boxes, each of which metal
boxes is in turn enclosed in a fiber or wooden container. The film
is in most cases wrapped around a spool or core in a circle within
the metal case. Sometimes the film is received by the film exchange
wound on a reel, which consists of a cylindrical core with circular
flanges to prevent the film from slipping off the core, and when so
wound on the reel is also received in metal boxes, as above
described. When the film is not received on a reel, it is, upon
receipt, taken from the metal box, wound on a reel, and then
replaced in the metal box. So wound and so enclosed in metal boxes,
the films are shipped by the film
Page 236 U. S. 235
exchanges to their customers. The customers take the film as it
is wound on the reel from the metal box, and exhibit the pictures
in their projecting machines, which are so arranged as to permit of
the unwinding of the film from the reel on which it is shipped.
During exhibition, the reel of film is unwound from one reel and
rewound in reverse order on a second reel. After exhibition, it
must be again unwound from the second reel from its reverse
position and replaced on the original reel in its proper position.
After the exhibitions for the day are over, the film is replaced in
the metal box and returned to the film exchange, and this process
is followed from day to day during the life of the film."
"All shipments of films from manufacturers to film exchanges,
from film exchanges to exhibitors, and from exhibitors back to film
exchanges, are made in accordance with regulations of the
Interstate Commerce Commission, one of which provides as
follows:"
" Moving picture films must be placed in metal cases, packed in
strong and tight wooden boxes of fiber pails."
Another of the affidavits divided the business as follows:
"The motion picture business is conducted in three branches --
that is to say, by manufacturers, distributors, and exhibitors, the
distributors being known as film exchanges. . . . Film is
manufactured and produced in lengths of about 1,000 feet, which are
placed on reels, and the market price per reel of film of a
thousand feet in length is at the rate of 10 cents per foot, or
$100. Manufacturers do not sell their film direct to exhibitors,
but sell to film exchanges, and the film exchanges do not resell
the film to exhibitors, but rent it out to them."
After stating the popularity of motion pictures, and the demand
of the public for new ones, and the great expense their purchase
would be to exhibitors, the affidavit proceeds as follows:
"For that reason, film exchanges came into existence, and film
exchanges such as the Mutual Film Corporation are like clearing
houses or circulating libraries, in that they purchase the film and
rent it out to different exhibitors. One reel of film being made
today serves in many theaters from day to day until it is worn out.
The film exchange, in renting out the films, supervises their
circulation."
An affidavit was filed, made by the "general secretary of the
national board of censorship of motion pictures, whose office is at
No. 50 Madison Avenue, New York City." The "national board," it is
averred, "is an organization maintained by voluntary contributions,
whose object is to improve the moral quality of motion pictures."
Attached to the affidavit was a list of subjects submitted to the
board which are "classified according to the nature of said
subjects into scenic, geographic, historical, classical, and
educational and propagandistic."
Page 236 U. S. 239
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
Complainant directs its argument to three propositions: (1) the
statute in controversy imposes an unlawful burden on interstate
commerce; (2) it violates the freedom of speech and publication
guaranteed by § 11, Article 1, of the Constitution of the
State of Ohio; [
Footnote 1] and
(3) it attempts to delegate legislative power to censors and to
other boards to determine whether the statute offends in the
particulars designated.
It is necessary to consider only §§ 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
Page 236 U. S. 240
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 § 7, a penalty is imposed for each exhibition of films
without the approval of the board, and by § 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 would be straining the
doctrine of original packages to say that the films retain that
form and composition even when unrolling and exhibiting to
audiences, or, being ready for
Page 236 U. S. 241
renting for the purpose of exhibition within the state, could
not be disclosed to the state officers. If this be so, whatever the
power of the state to prevent the exhibition of films not approved
-- and, for the purpose of this contention, we must assume the
power is otherwise plenary -- films brought from another state, and
only because so brought, would be exempt from the power, and films
made in the state would be subject to it. There must be some time
when the films are subject to the law of the state, and necessarily
when they are in the hands of the exchanges, ready to be rented to
exhibitors, or have passed to the latter, they are in consumption,
and mingled as much as from their nature they can be with other
property of the state.
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 guaranteed 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"
Page 236 U. S. 242
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 corruption by a pretense of worthy purpose or if they
should degenerate from worthy purpose. Indeed, 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 or
of the press," no law may be passed to subject moving pictures to
censorship before their exhibition.
Page 236 U. S. 243
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 to need 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, [
Footnote 2] 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
Page 236 U. S. 244
bring motion pictures and other spectacle 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. The court cited the following cases:
Marmet v.
State, 45 Ohio St. 63, 72-73;
Baker v. Cincinnati, 11
Ohio St. 534;
Commonwealth v. McGann, 213 Mass. 213, 215;
People v. Steele, 231 Ill. 340, 344-345.
The exercise of the power upon moving picture exhibitions has
been sustained.
Greenberg v. Western Turf. Ass'n, 148 Cal.
126;
Laurelle v. Bush, 17 Cal. App. 409;
State v.
Loden, 117 Md. 373;
Block v. Chicago, 239 Ill. 251;
Higgins v. Lacroix, 119 Minn. 145.
See also State v.
Morris, 1 Boyce (Del.) 330;
People v. Gaynor, 137
N.Y.S. 196, 199;
McKenzie v. McClellan, 116 N.Y.S. 645,
646.
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 manner 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
Page 236 U. S. 245
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 illustrations. 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
Page 236 U. S. 246
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. This has many
analogies and direct examples in cases, and we may cite
Gundling v. Chicago, 177 U. S. 183;
Red "C" Oil Manufacturing Co. v. North Carolina,
222 U. S. 380;
Monongahela Bridge Co. v. United States, 216 U.
S. 177;
Buttfield v. Stranahan, 192 U.
S. 470.
See also Waters-Pierce Oil Co. v.
Texas, 212 U. S. 86. 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.
To sustain the attack upon the statute as a delegation of
legislative power, complainant cites
Harmon v. State, 66
Ohio St. 249. In that case, a statute of the state committing to a
certain officer the duty of issuing a license to one desiring to
act as an engineer if "found trustworthy and competent" was
declared invalid because, as the court said, no standard was
furnished by the general assembly as to qualification, and no
specification as to wherein the applicant should be truthworthy and
competent, but all was "left to the opinion, finding, and caprice
of the examiner." The case can be distinguished. Besides, later
cases have recognized the difficulty of exact separation of the
powers of government, and announced the principle that legislative
power is completely exercised where the law "is perfect, final, and
decisive in all of its parts, and the discretion given only relates
to its execution." Cases are cited in illustration. And the
principle finds further illustration in the decisions of the courts
of lesser authority, but which exhibit the juridical sense of the
state as to the delegation of powers.
Section 5 of the statute, which provides for a censor
Page 236 U. S. 247
congress of the censor board and the boards of other states, is
referred to in emphasis of complainant's objection that the statute
delegates legislative power. But, as complainant says, such
congress is "at present nonexistent and nebulous;" and we are
therefore not called upon to anticipate its action, or pass upon
the validity of § 5.
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 intelligible, and that probably by being 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 by the courts of the state of the decision of the board of
censors.
Decree affirmed.
[
Footnote 1]
"Section 11. Every citizen may freely speak, write, and publish
his sentiments on all subjects, being responsible for the abuse of
the right, and no law shall be passed to restrain or abridge the
liberty of speech, or of the press. In all criminal prosecutions
for libel, the truth may be given in evidence to the jury, and if
it shall appear to the jury that the matter charged as libelous is
true, and was published with good motives and for justifiable ends,
the party shall be acquitted."
[
Footnote 2]
Kalem Co. v. Harper Bros., 222 U. S.
55.
