# Interstate Circuit, Inc. v. City of Dallas (390 U.S. 676)

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## Concurring Opinion

    Harlan
United States Supreme Court
390 U.S. 676
Interstate Circuit, Inc. v. City of Dallas
Appeal from the Court of Civil Appeals of Texas, Fifth Supreme Judicial District
No. 56. Argued: January 15-16, 1968 --- Decided: April 22, 1968
Appellee, the City of Dallas, enacted an ordinance establishing a Motion Picture Classification Board to classify films as suitable or not suitable for young persons, who are defined as those under 16 years old. In classifying a picture as "not suitable for young persons" the Board must follow standards set forth in the ordinance and find that, in its judgment, the film describes or portrays (1) brutality, criminal violence, or depravity in such a manner as likely to incite young persons to crime or delinquency or (2) "sexual promiscuity or extra-martial or abnormal sexual relations in such a manner as... likely to incite or encourage delinquency or sexual promiscuity on the part of young persons or to appeal to their prurient interest." A film shall be considered likely to produce such results if in the Board's judgment "there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted." If the exhibitor does not accept the Board's "not suitable" classification, the Board must file suit to enjoin the showing of the picture and the Board's determination is subject to de novo review. The ordinance is enforceable by a misdemeanor penalty, injunction, and license revocation. Acting pursuant to the ordinance the Board, without giving reasons for its determination, classified as "not suitable for young persons" the film "Viva Maria," for which appellants are respectively the exhibitor and distributor. Following the exhibitor's notice of nonacceptance of the Board's classification, appellee petitioner for an injunction alleging in terms of the ordinance that the classification was warranted because of the film's portrayal of sexual promiscuity. Two Board members testified at the hearing that several scenes portraying male-female relationships contravened "acceptable and approved behavior." The trial judge, concluding that there were "two or three features in the picture that look to me would be unsuitable to young people," issued an injunction. The appellate court, without limiting the standards of the ordinance, affirmed.
Held: The ordinance is violative of the First and Fourteenth Amendments as being unconstitutionally vague since it lacks "narrowly drawn, reasonable and definite standards for the officials to follow," Niemotko v. Maryland, 340 U.S. 268, 271 (1951). Pp. 682-691.
    (a) Motion pictures are protected by the First Amendment and cannot be regulated except by precise and definite standards. Pp. 682-683.
    (b) The vice of vagueness is particularly pronounced where expression is subjected to licensing. P. 683.
    (c) Vague censorship standards are not cured merely by de novo judicial review and unless narrowed by interpretation only encourage erratic administration. P. 685.
    (d) The term "sexual promiscuity" is not defined in the ordinance and was not interpreted in the state courts. The failure to limit that term or related terms used in the ordinance and the breadth of the standard "profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted" give the censor a roving commission. Pp. 687-688.
    (e) The evil of vagueness is not cured because the regulation of expression is one of classification rather than direct suppression or was adopted for the salutary purpose of protecting children. Pp. 688-689.
402 S.W. 2d 770, reversed and remanded.
Grover Hartt, Jr., argued the cause for appellant in No. 56. With him on the briefs was Edwin Tobolowsky. Louis Nizer argued the cause for appellant in No. 64. With him on the briefs were Paul Carrington and Dan McElroy.
N. Alex Bickley argued the cause for appellee in both cases. With him on the briefs was Ted P. MacMaster.
Briefs of amici curiae, urging reversal in No. 64, were filed by Irwin Karp for the Authors League of America, Inc., and by Osmond K. Fraenkel, Edward J. Ennis, Melvin L. Wulf and Alan H. Levine for the American Civil Liberties Union et al.

## Notes

* ↑ Together with No. 64, United Artists Corp. v. City of Dallas, on appeal from the same court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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