Applying this Roth test to the two cases before it, the Court in upholding the convictions concluded that the trial courts below of N. Y., In Kingsley International Pictures Corp. v. Regents of the Univ. 27/ the Supreme Court reaffirmed that motion pictures are within the protection of the First and Fourteenth Amendments and held that the film version of "Lady Chatterley's Lover" could not be outlawed for being "immoral". The difficulty the Justices had in finding common ground is suggested by the fact that six different opinions were written. Justice Stewart, speaking for the majority, held the statute void as a violation of the First Amendment because it restricted not obscenity, but the advocacy of ideas, here the idea that adultery may sometimes be proper. Justices Black and Douglas, while concurring in the majority 28/ opinion, each wrote a separate opinion. Justice Clark concurred separately on the ground that the statute 29/ was too vague and therefore violated the requirement of due process. Justices Frankfurter and Harlan concurred in separate opinions viewing the statute involved as constitutional but feeling it was 30/ misapplied in the instant case. 26/Id. at 489. 27/360 U.S. 684 (1959). 28/Id. at 690 and 697. 29/Id. at 699. 30/Id. at 691 and 702. In 1961, in a case in which obscenity was not in issue but which bears on the general problem, the Court held that a provision requiring submission of motion picutres for examination or censorship prior to their public exhibition is not void on its face as violative of the First and Fourteenth Amendments. 31/ Times Film Corp. v. Chicago, involved the municipal code of the city of Chicago. The plantiff had applied for permission to exhibit a motion picture and a permit was refused on the ground that the picture had not been submitted for examination at the office of the commissioner of police as required. The code provides for a fine of $50.00 to $100.00 a day for exhibition of the film without a permit. Times alleged the ordinance was void on its face as a prior restraint in violation of the First and Fourteenth Amendments. The Supreme court held that there is no absolute freedom to exhibit any and every kind of motion picture even once, and that an ordinance requiring a motion picture producer to submit his films for examination by city officials in order to receive a permit to exhibit the picture to the public was not a prior restraint as 32/ prohibited by the First and Fourteenth Amendments. Justice Clark, speaking for the Court, held that the petitioner's narrow attack on the ordinance did not require that any consideration be given to the validity of the standards set out therein. "The 31/365 U.S. 43 (1961). 32/Id. at 48-49 challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedure Chief Justice Warren, with whom Justices Black, Douglas and Brennan joined, dissented. These Justices agreed neither with the conclusion reached nor the reasons advanced for its support. The Court's decision, say the dissenters, "gives official license to the censor, approving a grant of power to city officials to prevent the showing of any moving pictures these officials deem unworthy of a license. It thus gives formal sanction to censorship in its purest and most far-reaching form, 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..." In a separate dissenting opinion, Justice Douglas, with whom the Chief Justice and Justice Black concurred, expressed the view that censorship of movies is unconstitutional because it is a 35/ prior restraint and violative of the First Amendment. 36/ 341 In Manual Enterprises Inc. v. Day, the Court again considered a case brought under 18 U.S.C. $1461, the same section as was involved 33/Id. at 47. 34/Id. at 55-56. 35/Id. at 78. 36/370 U.S. 478 (1962). in the Roth case and placed an additional qualification on its Harlan and Stewart: Obscenity...requires proof of two distinct 38/ In Bantam Books Inc. v. Sullivan, another case dealing with censorship procedures, the United States Supreme Court held unconstitutional procedures adopted by the State of Rhode Island in an attempt to control the distribution of books considered to be undesirable to be read by young people. The Rhode Island Legislature had created a commission to "educate the public concerning any book...or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of youth as defined [in other sections] and to investigate and recommend the prosecution of all violations of said sections". The commission's practice was to notify a distributor that certain books or magazines distributed by him had been reviewed by the commission and had been declared by a majority of its members 37/Id. at 486. 38/372 U.S. 58 (1963). to be objectionable for sale, distribution or display to youths under 18 years of age. Such notices requested the distributor's "cooperation" and advised him that copies of the lists of "objectionable" material were circulated to local police departments and that it was the commission's duty to recommend prosecution of purveyors of obscenity. Four out-of-State publishers of books widely distributed in the State sued in a Rhode Island court for injunctive relief and a declaratory judgment that the law and the practices thereunder were unconstitutional. The Supreme Court, Mr. Justice Brennan delivering the opinion, found that the effect of the commission's notices was to intimidate distributors and retailers and that they resulted in the suppression of the books listed. The State Attorney General conceded that the notices listed several publications that were not obscene within the Supreme Court's definition of the term. The Supreme Court, Justice Brennan speaking for the Court, held that this system of informal censorship violates the Fourteenth Amendment. The Fourteenth Amendment requires that regulation by the State of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain 391 line. 39/Id. at 59-72. |