Censoring the Censors

Although the First Amendment guarantees freedom of speech and press, the Supreme Court has held that certain kinds of expression, such as obscenity, are unworthy of protection. But if this makes some censorship permissible, what limits should the court place on the censor's power?

The court has long protected books and newspapers from "prior restraint" --from any censorship that would affect them before they reach the public. But the court puts movies in a special category because of their graphic nature and "capacity for evil." Thus in 1961, the court narrowly upheld the power of Chicago's police commissioner to precensor all movies and check them for obscenity. That decision, however, failed to answer crucial questions: Are even nonobscene movies subject to precensorship? How long can censors delay decisions and thus make exhibitors knuckle under?

Sharp Challenge. To get the answers, Baltimore Theater Owner Ronald L. Freedman challenged a Maryland law making it illegal to show any film not approved and licensed by the state censorship board. Freedman did so by refusing to let the censors screen a non-obscene movie: Revenge at Daybreak, a French film about the Irish Rebellion that the board admittedly would have licensed had Freedman submitted it. Freedman was fined $25, and Maryland's highest court upheld the conviction. When Freedman appealed to the U.S. Supreme Court, Maryland argued that precensorship of movies is necessary to prevent commercial exploitation of obscenity.

Last week the court reaffirmed the constitutionality of movie precensorship. But it unanimously reversed Freedman's conviction and voided the Maryland law on the ground that it lacked procedural safeguards and judicial participation. The trouble with Maryland's setup was that it provided no time limit or court appeal while the censors made up their minds. Nor did the law provide any rapid relief in the courts even after the board did act.

Short Tether. Significantly shifting the burden of proof to censors, Justice William J. Brennan ruled that "the exhibitor must be assured by statute or authoritative judicial construction that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film." As for the judicial part of the process, Brennan suggested that it should take no more than three or four days.

Justices William O. Douglas and Hugo Black concurred, but they wanted to go much further. "I would put an end to all forms and types of censorship and give full literal meaning to the command of the First Amendment," insisted Douglas. His brethren thought it was enough simply to put the censor on a shorter tether.

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