Earl Warren: Number 69, Ronald L. Freedman, Appellant, versus Maryland. Mr. Bilgrey.
Felix J. Bilgrey: Mr. Chief Justice, may it please the Court. This case comes to this Court on appeal from the judgment of the Maryland Court of the Appeals. The judgment appealed upon affirmed a criminal conviction and a fine of $25 pronounced by the Baltimore Criminal Court. That Court found Ronald Freedman, the appellant, guilty of violating sections of the Maryland Code which establishes the Maryland Motion Picture Censor Board and which make it a crime to commercially, publicly exhibit any film not submitted to that Board together with the amounted fee and which is not approved and licensed by the Board. To put concretely, this appeal puts the question before this Court whether Maryland can compatibly with the First and Fourteenth Amendments impose criminal penalties on the act of exhibiting a film which as Maryland has here conceded, does not run a foul any valid First Amendment standard. The question arose in this way. The appellant, Ronald Freedman, is a lessee of a motion picture theater located in Baltimore. He is on principle unsympathetic to the idea of censorship and I may add, he has had a series of disputes with the Board in which he's always come out on top. He's always disputed the discretionary authority of the Board. In at least one instance, as the record in this case indicates at page 15 of the record, the appellant have to fight the Board on a ban of a film which after many months in a great expense, he was finally vindicated on and this was a film like all others, he thought that he could in his judgment play without submitting to the Board to begin with. It was against this background that Mr. Freedman decided in the fall of 1962 to test directly the authority of the Maryland Motion Picture Censor Board. Accordingly, he called and this is at page 17 on the record. He called one of the officials of the Board. In fact, he called the Chief Reviewer and he told her of his intension to ignore or to defy the law that he would commercially exhibit a film without a permit. And that evening, when in fact he exhibited the film, the Chief Reviewer was present and she caused Mr. Freedman to be arrested after the exhibition. Now, he was arrested for the alleged violation of Section 2 of Article 66A of the Maryland Code which makes it unlawful and incidentally, that is at page 1 of our record. Section 2 makes it unlawful to exhibit any motion picture film, and the statute is concerned with commercial exhibitions, in the State of Maryland unless the set film has been submitted by the lessee of the film and duly approved and licensed by the Motion Picture Censor Board. I should like to point out to the Court at this time that principal provisions of Article 66A are set forth at pages 3 through 5 of our brief and that the entire article is reproduced as Appendix A following page 41 of our brief. At some months later, Ronald Freedman was tried in the Baltimore Criminal Court on this charge. And at the trial, we -- Mr. Freedman sought to introduce testimony which it admitted would have indicated that the Chief Reviewer, Mrs. Holland would have passed the film -- had been submitted to her. However, the State objected to the introduction of that evidence. However, in response to a question by Judge Darrell, he was the trial judge, the State made it clear that it would have licensed the film and that there were no objections to the film. Now, at pages 2 -- I'm sorry, page 7 through 9 in our brief, we -- the appellant developed a testimony from the members of the Board of Censors as to how the Censor Board actually functions. I mentioned that because I do not believe I will have time to take up that testimony but I would like to point out that among the things that Mr. Freedman demonstrated was that the Board takes in fees for every print that is commercially shown in a motion picture theatre in the State of Maryland and that the fees average about $30 for initial prints and about roughly $15 for sub -- for all subsequent prints.
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well, Mr. Justice Goldberg, my answer to your question would be that I suppose the city could have imposed a tax but that this tax is in the nature of a tax as this Court has struck and set aside in the Goldstein case. I think this -- the sole purpose of this tax was to -- to restrain in advance all films.
Arthur J. Goldberg: Are you saying that (Inaudible)?
Felix J. Bilgrey: Well I don't know if I can go too far to say that Mr. Justice Goldberg, but I think we have to look at the statute at the fee requirement together with the other requirements of the statute. I think the sole requirement here of the fee pertains to the Board, to the Censor Board. This is not a tax. I don't know.
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well, I think the sole relevancy that I may suggest in this Court is that the Court is held in cases like Goldstein and Murdock that the tax here is -- there it was used to restrain speech. I believe that that is the sole context in which I suggest this Court, accept those cases.
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: I'm using -- I'm using the tax together with -- with the manner in which the tax is here used, the purpose of the tax which is to pay the Board the sole function of which is to censor films.
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: You mean the ministerial tax like a tax -- strictly ministerial tax. I suppose it would -- it would be different although I certainly don't want to foreclose of prejudice at that issue one way or another.
Arthur J. Goldberg: Is it that motion pictures have equal taxation?
Felix J. Bilgrey: No. I hardly can allege that Mr. Justice Goldberg. Now, at the close of the testimony, Mr. Freedman moved for judgment of acquittal on various federal grounds which are set forth verbatim at pages 8 and 9 of our brief. Specifically, the appellant urge on the trial judge that Article 66A is an infringement of the rights of free speech, that the standards are vague and indefinite and also that the -- that it imposes a tax on the exercise of protected rights. These constitutional claims had been urged that every level of this litigation and the reason that I mentioned them here is because I hardly think I will have time to develop them on this argument. Now, some two months after the completion of the trial, Judge Sidero (ph) filed a memorandum opinion which is set forth in the record at page 75 in which he overruled Mr. Freedman's federal claims and which he denied his motion for acquittal. And he then convicted Mr. Freedman and he fine him $25. Of course he could have sent him to jail and before the payment of the fine. To put the matter briefly, the trial judge held that the appellant's claims with foreclosed by this Court's ruling in the Times Film Corporation case, 365 U.S. 43. The Court of Appeals affirmed the appellant's conviction and that opinion is set forth at page 78 of our record and also is reported at 197 A. 2nd 232. Also, I should note that the opinion appears as an appendix to our jurisdictional statement. Now, the Court of Appeals like the trial judge, ruled that Mr. Freedman was without standing to attack any section in this statute other than Section 2 under which he had been indicted. And as to that section, the Court of Appeals felt that this Court had foreclosed the issue in its holding in the Times Film case. Now, however, before rendering that decision or rather in -- at page 80 in our record, we quote verbatim from a portion of the decision of the Maryland Court of Appeals because we believe that that quotation totally undermines the asserted applicability of the Times Film's case to this case. I'd like to read from page 80 of our record, the last sentence of the first paragraph. Parenthetically, it is noted that neither the appellant nor the State even suggests that the film “Revenge at Daybreak” would violate any of the standard set out in the statute. And the State has conceded that it would have been approved, had it been submitted for licensing.
Earl Warren: Wouldn't that -- wouldn't that the situation in the Times case?
Felix J. Bilgrey: No, it was not, Your Honor. I was coming to the Times Film case now. And we believe that the Times Film case has completely presented the completely different proposition to this Court. In Times Film, the petitioner asked for a Federal District Court and ultimately this Court for total judicial protection. I mean total judicial protection against the Chicago ordinance which in res -- in all essential respect similar to this statute require -- which would have required the issuance of a permit to show a film called “Don Juan”, or in the alternative to enjoin the Chicago ordinance -- the Chicago authorities from preventing in showing. However, this Court pointed out that the -- the only question that was decided was whether or not, this Court should grant a total judicial protection to the showing of all films. I should like to read from this Court's decision in the Times Film case to point -- to point out what we consider as a vital distinction between the Times Film case and the Freedman case. I'm reading now from page 46 and 47 of the Times Film decision. Moreover, there was not a word in the record as to the nature and content of “Don Juan”. We are left entirely in the dark in this regard, as were city officials and other reviewing courts. The petitioner claims that the nature of the film is irrelevant and that even if this film contains the basic type of pornography or incitement to riot or forceful overthrow of the government, it may nonetheless be shown without prior submission. Now, it was on those premises that this Court declined to require a Federal District Court to compel the state authorities to issue the license. In short, as this Court has recently observed in Bantam Books at 372 U.S. 58 in -- in a footnote, the only question tended to this Court in the Times Film case was whether a prior restraint was necessarily unconstitutional under all circumstances. Now --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well, we -- we --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well, Mr. Justice Goldberg, I'd like to answer that question this way. We think it is highly relevant that Mr. Freedman showed the film and that the State acknowledges that the film is constitutionally protected because it is our view that at that point, when -- when we attempted to introduce testimony from the Chief Reviewer that whereby she admitted, she would have had admitted had she been permitted to answer, that this film was constitutionally protected communication. We believe at that point, the judge should have dismissed the -- the -- the indictment. And that Mr. Freedman at that point should have been free. Now in -- in order to -- to -- in order to --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well -- well --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Well we -- we -- that is what -- what we believe the -- that was being alleged in the Times Film case. Of course, I'd like to say at the outset that I was the counsel in that case and that I personally feel that the views of the -- dissenter's order prevailed. But I also believe that the position that Mr. Freedman is here taking is a much narrower position than was taken in Times Film case because we have here as --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Because we have a situation here Mr. Justice Goldberg --
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: No, we're not saying that. We -- I would like to come back to something that Mr. -- Mr. Chief Justice Warren pointed out in his dissent in the Times Film case which I believe the majority of the Court did not address itself to and -- and therefore, I may suggest that it might had been a point which the majority cannot have said to have condoned. I'd like to read from page 65 and 66 of the Times Film decision in which the Chief Justice referred -- referring to the Kingsley Books case pointed out what we consider a major distinction between this procedure and the procedure in Kingsley Books. In Kingsley, the Chief Justice said, the person enjoined had available the defense that the written or printed matter was not obscene if an -- if an attempt was made to punish him for disobedient of the injunction. The Chicago ordinance admits no defense in the prosecution for failure to procure a license other than that the motion picture was submitted to the Censor and a license was obtained. Now, as has been so dramatically illustrated in this case, the Maryland statute like the Chicago ordinance admits no such defense. In short, it is our position that that this statute, like the Chicago ordinance, presents exactly the pitfall which was commented upon by -- by Professor Paul Freund to whom Mr. Justice Frankfurter was -- was referring when he wrote the -- his decision in the Kingsley Books case. Specifically, Mr. Justice Frankfurter, in writing that Kingsley Books decision, added a footnote at page four -- 443 which – which I would like to -- which I would like to read to the Court if I may because I believe it's pertinent. This comparison of remedy takes note of the fact that we do not have before us a case where although the issue of obscenity is ultimately decided in favor of the bookseller. The State nevertheless attempts to punish him for disobedience of the interim injunction. For all we know, Mr. Justice Frankfurter concluded, New York may impliedly condition the temporary injunction so as not to subject the bookseller to a charge of contempt if he prevails on the issue of obscenity. Now, this is precisely the -- what we believe is a constitutional pitfall in this statute. We believe that it --
William O. Douglas: Unless there's – there's different rule to movies and books.
Felix J. Bilgrey: Well, I would say Mr. Justice Douglas irrespective of whether or not there has to be a different rule. We -- we believe that whether or not, there could be a different rule may be considered in whether or not this Court decides to reconsider the Times Film case which of course I would welcome greatly. However, I believe that once it is established that a motion picture is permissible constitutionally, that certainly at that point, the rule is the same with respect to any medium of expression. Now, Professor Alexander Bickel in his -- in his book which we cite at page 38 and 39 of our brief was addressing himself to that very point, the point that Professor Freund and that Mr. Justice Frankfurter was addressing himself to in the Kingsley Books case which seems to be unresolved as of this point.
Arthur J. Goldberg: (Inaudible)
Felix J. Bilgrey: Yes, there is Mr. Justice Goldberg. That is the long way which is urged upon Mr. Freedman by the Maryland State Board of Censors. In effect, they said -- they said to -- they say, why didn't he submit his film and then if we would have refused them a license, and then he can appeal. But the fact is that anyone who knows how Censor Boards operate, that they can for all expense and purposes, for all practical intents and purposes, they can just lift the picture out of circulation and we all know that it takes months and years before the film is finally vindicated. I may add that the batting average of this particular Censor Board is zero in every instance in the Maryland Court of Appeals and that findings of bans have been reversed. But this takes years. And as a --
Potter Stewart: But in this particular case by hypothesis, there wouldn't have -- there wouldn't have been any appeal. You could get your license of which just a matter of paying $30, wasn't it?
Felix J. Bilgrey: Well –-
Potter Stewart: Is this a completely unobjectionable film by hypothesis.
Felix J. Bilgrey: Well that is true, Mr. Justice Stewart --
Potter Stewart: (Voice Overlap) paying the $30 –
Felix J. Bilgrey: That -- that --
Potter Stewart: No play, no appeal, no –
Felix J. Bilgrey: That is -- that is true and that is -- and that is the State's position. But of course, Mr. Freedman as -- and as the record shows, in fact 99.7% of all exhibitors show -- show concededly permissible films. The point is that Mr. Freedman decided to take a shortcut here because he felt that his film was -- that his film was among the 99.7% of permissible film which the average annual reports of the State Board show -- are shown in Maryland. He just felt that -- that the Censor Board are not to be allowed to play Russian roulette with this film and -- and pull the trigger and then his film might never be shown. And in fact, I'd like to refer you, Mr. Justice Stewart to a point which was made by the Chief Justice in his dissent in the Times Film case where -- where he pointed out to an example of a film called “The Miracle” which was the subject in the Burstyn case which was never shown in Chicago because of precisely this point, there was five years of litigation and the distributor died, and the film was after five years, the film was never shown when it was finally vindicated. This is precisely what Mr. Freedman objected to --
Potter Stewart: (Voice Overlap) you either got to -- you don't have to of course but either this is Times Film and we're going to -- or it isn't, Times Film I think he correctly says decided on the -- by the Court on the -- on this proposition that you headed by -- to assume that the film there in question, no description of which was in the record was as violent objectionable film as you could possibly imagine. And we still have to say that there could be no previous discretion of the most -- or even if society have studied the film or something that advocated the overthrow of the government by force and violence very effectively in a lot of --
Felix J. Bilgrey: And you have to assume that (Voice Overlap) because it was never shown.
Potter Stewart: Because it was never shown, right. So we have to assume it was, as I say, completely objectionable in every way, in a variety way. This case you say is different because this film is entirely unobjectionable by stipulation of the section is proper.
Felix J. Bilgrey: It was shown Mr. Justice Stewart –-
Potter Stewart: By property.
Felix J. Bilgrey: -- that the film was shown.
Potter Stewart: Well in that case, then it was just a matter in this case; it's just a matter of paying the $30.
Felix J. Bilgrey: Well, I think that -- in -- in -- in effect, I think the State of Maryland would concede 90 -- every film that's licensed is constitutionally unobjectionable which would entail 99.7% of all prints submitted to that Court.
Potter Stewart: And you've also said I think in answer to Mr. Justice Goldberg's earlier question that you would concede that I mean a municipality or a state could impose a business tax on -- on -- on a movie theater.
Felix J. Bilgrey: Yes, I would not concede that this is a business tax, Mr. Justice Stewart. If -- if the State of Maryland were to enact the tax, that anyone who submits $25 can have his film -- can get a license for whatever purpose. If there were some valid purpose which I really don't know, then that would be a different case but that is –
Potter Stewart: Raise revenue.
Felix J. Bilgrey: Well raise revenue but they're doing that now. I think they have a state tax, Mr. Justice Stewart.
William J. Brennan, Jr.: It seems to me the essence of your position necessarily must be without regard to whether it's a picture which would have been licensed or not. And an exhibitor may exhibit without prior submission. And then if he is prosecuted for showing something that may be suppressed as a motion picture, if he prevails that it's not suppressible, then the indictment should be dismissed in any event he should prevail. And that he suffers a penalty only if it's something that might be suppressible as obscene or otherwise, isn't -- basically, isn't that your position?
Felix J. Bilgrey: That is our position, Mr. Justice Brennan. If this Court finds that --
William J. Brennan, Jr.: Yes but if that is your position, Mr. Bilgrey, I have the same difficulty as Mr. Justice Goldberg has. Why that -- if we will -- are to agree with that, why that doesn't involve overruling Times Film?
Felix J. Bilgrey: Well of course, I would welcome --
William J. Brennan, Jr.: I know you'd welcome it but (Voice Overlap)
Felix J. Bilgrey: I really don't think it does involve --
William J. Brennan, Jr.: What I'm trying to get to is whether acceptance to your position, but does it necessarily mean that we overrule Times Film?
Felix J. Bilgrey: I really don't think it entails that and -- and in --
William J. Brennan, Jr.: Then what's left -- what's left of this -- of this Maryland licensing law?
Felix J. Bilgrey: I admit Mr. Justice Brennan that very little might be left of it, but if the State would --
William J. Brennan, Jr.: But what -- what at all is left of it?
Felix J. Bilgrey: Well, something might be (Voice Overlap)
William J. Brennan, Jr.: If an exhibitor doesn't have to submit in advance and he can't be punished for not submitting in advance, but that the question of penalty has to wait a prosecution for exhibiting something which is otherwise suppressible. I don't see how that doesn't mean you (Voice Overlap) the whole –-
Felix J. Bilgrey: Well, I think if Maryland wants to keep -- keep up this type of scheme to -- to pair it out what it believes to be the infinite decimal -- infinite decimal portion of film that it can legitimately keep out of Maryland, I believe that there might -- there might conceivably be some people who would sort of ban insurance policy and submit but I don't -- I think that that is all that would be left out. But I think that the initiative ought to be with the -- with the exhibitor and not with the State. I'm not saying now that the State can't use this method or some other valid method to restrain what can be restrained or to condemn what can be condemned. And we're not asking for total --
William J. Brennan, Jr.: But once you leave it with the exhibitor, then the mandate of the law that operates this is no longer mandated.
Felix J. Bilgrey: Well, it would still be a mandate, Mr. Justice Brennan if on a judicial determination, the film turns out to be not protected but we do not think that it should be a mandate if -- if the film turns out to be a protected film which happens of course in a vast majority of cases. Now, I would like to state that -- to say, before reserving if I may a few minutes for rebuttal, that we are not only relying on the First Amendment in this case, but we are also relying on the case of Gelling versus Texas, 343 U.S. 960 which we cite in our brief. There, it will be recalled an almost analogous situation happened. They had a local ordinance pursuant to which all films have to be submitted. And this case was decided by -- by this Court together in the same term as the Burstyn case. The exhibitor did submit the film and the film was turned down. Then he did not take the review which the -- which the Censor Board had urged him to do but instead he went ahead and he exhibited the film. And he was prosecuted in an exact similar fashion as Ronald Freedman was prosecuted here. He was prosecuted for failure to submit. And this Court set aside the -- the conviction. For the -- for the foregoing reasons and for other reasons that have urged and that we've set forth in our brief, we urge this Court to -- to reverse Ronald Freedman's conviction.
Byron R. White: Well, aren't you -- aren't you essentially claiming that you don't need to overrule the Times Film here because the State says to you or to your client that we don't claim this film that you want to show, it's obscene at all but nevertheless you have to -- you have to get a license. On the fact of this case, it's just as though the State had already reviewed this film in connection with this exhibition by another exhibitor at the time that it was an obscene and gave him a license. And then you want to show the same film in another city or in the same city on the second line. And the licensing board says, nevertheless, you must submit it and pay your license fee even though we know it's not obscene. Isn't that your position on the facts of this case?
Felix J. Bilgrey: Well, on the facts of this case, Mr. Justice White, it's our position that the State has criminally convicted a man he -- for -- for --
Byron R. White: The State is insisting on licensing even though they -- they know it's not -- it's not obscene. That's what your position.
Felix J. Bilgrey: Well the State is insisting on licensing without affording a chance to an exhibitor to come into -- to come in some place, the court or some place to -- and show that the film is -- is not obscene or is protected. I think that's our case.
Byron R. White: Well, they purported you that, I presume. They said anytime you want to submit a film, we'll tell you whether it's obscene or not. They're giving you the opportunity. I would think your position would be that on the facts of this case, at the time that they attempted to stop you or to threaten you with criminal prosecution, they knew the thing was obscene.
Felix J. Bilgrey: Well, whether or not they knew, they -- they -- it's our position that they should have purported --
Byron R. White: Otherwise, that's how you avoid Times Film.
Felix J. Bilgrey: Well, whether or not, they knew it's our position, Mr. Justice White that they should afford as it was pointed out in Kingsley Books and as it was pointed out by the Chief Justice in his dissent of the Times Film case that at some point, they should afford an exhibitor who does show a film, a chance to come in and prove the innocence of his film, constitutionally speaking. I should like, if I may, to reserve a few minutes for rebuttal.
Earl Warren: Well, you may.
Felix J. Bilgrey: Thank you.
Earl Warren: Attorney General Finan.
Thomas B. Finan: Chief Justice -- Mr. Chief Justice, may it please the Court. We accept the facts that -- that have been presented here by the appellant with one or two exception which we do not believe are too material but we would like to call with the Court's attention. First of all, we have a situation here where Mr. Freedman called a Censorship Board, told them the hour and the place where he was going to show this film “Revenge at Daybreak”. And Mrs. Holland who was a reviewer employed by the Board at that juncture specifically told him that he would be violating the laws of the State of Maryland specifically Section 2 of Article 66A which is our censorship law. Mr. Freedman and the record will show, said that that is exactly what he wanted to do. He wanted to set up a test case. When Mrs. Holland went to the theater that evening and viewed the film for the purpose of saying whether it did have a state censorship seal on it. Mr. Freedman was there with his lawyer and after the movie, when she presented him with a violation notice, he accepted it in the presence of his lawyer. In addition to that, we have one other thing which we -- item we like to call the Court's attention and that is although in the appellant's brief, they emphasize that over a period of 40 years, the revenue which the Board has realized through its license fees with an excess of half a million dollars, that's a little over 11 to 12,000 – a little over $12,000 a year. There had been several years, including 1959, 1962, and it would have been in operating in the deficit in ‘61 if it had not been for none appropriated or non-expended appropriation of $1500. The point I'm making is this. A fee charge is an administrative fee. It's not a revenue fee. It is a fee to cover the expenses of the Board. Now, we reach with this case again the Armageddon of censorship because it is obvious what Freedman has done in this case is to try to put more flesh on the old Times Film case versus Chicago which this Court heard in 1961 and bring it back to the Court, the same old purpose, with a little bit more of flesh on it because it's in the record. I want to rather elaborate things to show that Mrs. Holland who had seen the film to see if it had the censorship seal on it, stated after the film was over that if they exhibited to the Board anyway, they would have approve it because it was innoxious. The very inception of this case, the State has taken the stand that the film was innoxious. And the trial of the case before Judge Sidero (ph), they kept insisting that the judge see the film, the judge -- that he didn't see where it was -- any point to seeing the film, no point of viewing it, that's not an issue. The standards aren't the issue. That they admit that the film is -- is innoxious. They finally made an arrangement for him to see it. He went to the censorship office -- censor's office in a state office building where they have a little theater and they viewed the film. He again, likewise in his opinion states that it's innoxious. We contend that this is immaterial entirely to the issue which is involved here. Now, in the Times Film case when it was heard by this Court, you have Justice Clark stating that the character and nature of the film was unknown but is immaterial. And even Justice Warren in his dissenting opinion in that case, the Court does not even have before it an attempt by the city to restrain the exhibition of an allegedly obscene film. Again at page 418, Justice Warren is speaking for the minority of the Court said the inquiry as stated by the Court but never resolved is whether licensing as a prerequisite to exhibition is barred by the First and Fourteenth Amendments. And I submit we have this -- again it's a reprise of the Times Film case. Those were filed briefs in this case as amicus curiae recognizes it as the same case. They state the issue in their brief as the same, a question of a pre-review or pre-restraint prior to exhibition for the purpose of reviewing the film. Now, we also contend that if the Court feels that it should have some preview of the censorship laws of the State of Maryland and a question of censorship in general, that what we have here is an effort on the part of the appellant to come back into Court and to again try to rehearse this case. But if we wouldn't take a review of the development of this issue, we note that the appellant makes a very brave array of cases trying to show what great crimes there were have been committed to suppress censorship or to suppress freedom of speech and freedom of the press. And they have assembled many of the old landmark cases which have come down to us in the common law and our own great cases here in this country. However, all of these brave language has little strength or meaning in the contents of this present case. I'm sure that all of us as Americans have a great appreciation of our Anglo-Saxon heritage of freedom of speech. And every cultivated and intelligent man respects and admires the purity of freedom of speech advocated by such great champions as Voltaire, Russo, Peter Zenger, Pane, Thomas Jefferson, we could go on down the list. And we know that recent history introduces -- as introduced to this Court such constitutional eminences as the American cases of J. M. Near, Newton Cantwell and R. J. Thomas. And we know of the arguments of free speech which have been urged over the decades in the field of Philosophy and Science, a tremendous list of Jehovah Witnesses cases in the field of religion, the cases of Eugene-Debs and trying out these economic theories, and all of these were landmark cases. And they represent great men in many instances trying to challenge and confront the government and theories of government under the protection which they were validly entitled to of the First Amendment of the Constitution. But I submit to this Court that those who lurk around their pornographic fringes of the film industry have no communality with these great landmark cases which we read about with pride as Americans and which certainly as a tribute to this Court in its effort to try to give to us as Americans, as complete of liberty and the exercise of our freedoms as possible. Now, we certainly hope that this Court, that this case presented, it would be almost ludicrous, the manner in -- the elaborate way in which this was restaged to get it before this Court if it were not for the profundity of the issue involved. And we certainly submit that this Court will not voluntarily declare its bankruptcy to the libidinous. And hold that the State of Maryland has no power to its Censorship Board to determine what may or may not be an obscene movie. If the Court is prone to consider the constitutionality of movie censorship, I should also suggest we think for a moment what has happened to the film industry. We know that family film has practically disappeared from the scene. The old face in Western and the mystery has been abandoned to television. What remains generally is the predetermined effort of the industry to attract the public primarily to sex and violence. Now, for almost 50 years, this Maryland Censorship Board has been in existence. We feel that it has not acted arbitrary or capricious for the number of cases that actually get into court as I'm sure the Court is well aware and recognizes. There is a vast multitude of films which never get into litigation because the people who would show them are keenly aware of the existence of the Censorship Board and know that they are obscene, and that they will be turned down so they don't make the effort. Now, if you remove completely censorship, I predict as you would have a complete enroll of these type of films which are certainly today not allowed. Just recently, many films -- I'm sure we've all seen -- Maryland goes about as far as anybody. They -- people kill up to see Tom Jones three, eight to 10 blocks almost long when it first was shown. We have certainly adopted standards which we feel are not beyond what this Court has indicated in a number of decisions which have come before it. Actually, I do not feel that the question of the standards are before the Court today because --
Potter Stewart: You're pretty firm in that position, aren't you, that the standards would not be –
Thomas B. Finan: Absolutely not, that's correct, Mr. Justice. No -- we feel that's not the issue at all. Section 2 of Article 66A is the only thing before us.
Potter Stewart: That's what I thought your position is.
Arthur J. Goldberg: But the government (Inaudile).
Thomas B. Finan: But for a moment, let's take the situation regarding the invoking of what statutes Maryland have -- has on obscenity. And I might state that there are four of Section 417 and 418 of Article 27 and it's quite doubtful whether they are -- whether they are applicable to films. Now of course, I realize the legislature could pass obscenity laws relating to the film but our present obscenity laws deal with photographs. We use the word photographs indecent literature and so forth, a pornographic literature and it would appear that it would -- particularly the date in which it was passed that they had in mind still as it were. But let us assume for the sake of argument that our obscenity statute would apply to a film. Now, if the movie house operator who is guilty of the violation of showing an obscene film is arrested, he goes before the magistrate. He has an appeal as the court well knows from the magistrate to the Circuit Court and from the Circuit Court to the Court of Appeals, and then can apply to this Court for writ of certiorari. Now, I would presume in the interim that that film will be shown all over the State. By the time the litigation has come to some conclusion as to whether he was guilty of violating the statutes on obscenity of Maryland, that would probably then be ready for a second run of the movie. We feel that this is a situation where the appellant is saying -- have no preventative medicine at all, only remedial medicine. It would be as though of that –-
William O. Douglas: Well, that's true of books, isn't it Attorney General?
Thomas B. Finan: That's correct Mr. Justice.
William O. Douglas: How does it work in Maryland on books?
Thomas B. Finan: We have no censorship of books other than they --
William O. Douglas: No, I mean the criminal fact –-
Thomas B. Finan: The sec -- Section 417 and 418 which I just mentioned of our criminal statute would be applicable.
William O. Douglas: But do they work pretty well on books?
Thomas B. Finan: We might -- let me state this. We -- it's invoked occasionally but I would say that I don't say this with any degree of pride at all. It depends on how you look at these things but I don't believe Maryland is abused by any untoward crusade to ban books or ever had that reputation if something as social issues that it's called to the authority's attention and it is so obviously pornographic, they move in under that statute. But that had been many, many years since we've had any cases in the Court of Appeals on that. But the –-
William O. Douglas: Well, if you don't over burden to the books, you probably wouldn't be with movie.
Thomas B. Finan: No but the situation is we feel that you can distinguish between books and between movies. First of all, the impact -- a visual impact has been recognized by the Court. The question of the sound background, the motion of the film, and everything has a greater impact on the public. And we feel that you -- that the courts have recognized that you can make a very valid distinction between the norms of action taken to curtail obscene movies and perhaps obscene books. We certainly feel that there is no substance to the appellant's contention that when a movie is banned by the censors and it gets into court and years go by. Actually, it is --
William J. Brennan, Jr.: What other procedures Mr. Attorney General? Are there administrative procedures after the Board turns it down before he goes to the Court?
Thomas B. Finan: Oh yes!
William J. Brennan, Jr.: I mean before they get into court?
Thomas B. Finan: No, the Chicago's -- the Chicago ordinance for instance provide for the merits to look out it after the censorship court.
William J. Brennan, Jr.: How is it in Maryland?
Thomas B. Finan: Maryland, it would go directly to the court which is the Circuit Court, right.
William J. Brennan, Jr.: And then it's from the Circuit Court to the Court of Appeals?
Thomas B. Finan: The Court of Appeals.
William J. Brennan, Jr.: And is that an appeal of right from the Court of Appeals.
Thomas B. Finan: That is on appeal of right to the Court of Appeals.
Byron R. White: Is there a -- according to the administrative level, there is no -- the only thing the Censorship Board does is to look at the film.
Thomas B. Finan: They stand over the seal.
Byron R. White: They doesn't purport to have any kind of a hearing.
Thomas B. Finan: They -- yes they do. I'm wrong. They do if they -- if the reviewer turns it down or if one or two members of the Board turn it down, they call the whole board together for a hearing and they will call in the film operator and his attorney.
Byron R. White: But the -- but then if it goes to Court, is it completely a de novo thing?
Thomas B. Finan: Completely de novo.
Byron R. White: So it's not on the record. It's not on the administrative record and you don't say that you had a judi -- judicial type hearing before the administrative order.
Thomas B. Finan: No, that's correct. That's correct.
Arthur J. Goldberg: (Inaudible)
Thomas B. Finan: Well, I think, Mr. Justice, there again, you're getting into the field of the responsibility of a federal government to feel it for any protection of public moral as I assume it does somewhat. Naturally, we have no control over that. They can be shown. I would say this as we read in the papers everyday, there is a considerable human outcry throughout the nation over what they feel might be the impact of this film being shown without any -- any censorship. But I think the -- the crux of this might be phrased by an analogy. Mr. Freedman has -- his attorney has urge that he should be able to show a film without any type of license, without submitting it for censorship. And he is somewhat akin to for instance, a restaurant -- restaurant operator who sells meals to the public. And let us assume he has a well in the back of his restaurant on the ground that he has at the back of his restaurant. And he insists on using well water to feed or to give water to his patrons. And the city has an ordinance which says that nobody can serve water in a commercial restaurant or in a restaurant unless it comes from the city water supply. And the restaurant here says, why -- I have the finest water in the State. And I'm going to insist on serving it to my patrons. And then they arrest him and they take samples of the water and they find that it is even more pure than the city water. So therefore he says the ordinance is no good, I should -- even though everybody have to comply with this ordinance, who sell or serve water publicly in a restaurant, I should not be compelled to -- to do it. And for the simple reason that the innoxious character of my product is my defense.
William J. Brennan, Jr.: Well, may I suggest Mr. Attorney General, I wonder whether the analogy is good because the argument has been made, and of course is practically on the First Amendment.
Thomas B. Finan: On what?
William J. Brennan, Jr.: On the First Amendment -- on the First Amendment --
Thomas B. Finan: First Amendment, right.
William J. Brennan, Jr.: -- which does not sort of thing of course that would be involved is in the case that it would.
Thomas B. Finan: I -- I realized that but -- we -- again we know that the First Amendment has never authorize obscenity.
William J. Brennan, Jr.: Right.
Thomas B. Finan: And those types of films are not in the protected group. Now --
William J. Brennan, Jr.: Now this would tell you -- with this of course, what is the determination whether there is something is or isn't.
Thomas B. Finan: Well Mr. Justice, we of course feel that if Mr. Freedman is successful, he may as well forget about any state censorship.
William J. Brennan, Jr.: Do you think that our decision last year in quantity of books has any bearing in the question we're discussing today? Remember that was the one where a warrant issued on the examination of seven books and we thought that a warrant to pick up 39 other titles could be justified because of prior restraints at least until it had been a determination of obscenity in the first instance.
Thomas B. Finan: Well –-
William J. Brennan, Jr.: Do you think that has any bearing here so?
Thomas B. Finan: Yes, I think it does Mr. Justice but I -- I feel that, again, I think that we must never overlook or fail to observe the traditional distinction made between literature and the --
William J. Brennan, Jr.: And motion picture.
Thomas B. Finan: Of the motion picture where the -- you have many other influences coming in together to focus on the screen.
William J. Brennan, Jr.: I suppose the suggestion there was at least in the case of books, there has to be a prior judicial determine -- determination and adversary hearing on the issue of obscenity and you suggest that perhaps the distinction between books and motion pictures doesn't require that same sort of procedure in the case of motion picture.
Thomas B. Finan: That -- that is our contention to have a –
Byron R. White: So you would say -- you would say Mr. Attorney General that if -- if -- if Maryland had a censorship law applicable to books like it has for movies, the quantity of books would -- would do away with your book censorship.
Thomas B. Finan: Right. I -- but we have never censored books and that -- in the sense that we have films. And of course, this has been one of the continual arguments that I'm sure this Court has heard on other occasions when this -- what is the difference? Why is there a difference? Why is there a distinction? But we do feel that this case if it is resolved against the State, we'll do nothing to advance freedom of speech but we do feel that we all go far to advance the distribution of obscene movies.
William O. Douglas: From these books who are pretty lewd and that get picked at here.
Thomas B. Finan: Yes but, Mr. Justice, I still feel that if censorship is completely banned, these movies will -- let us assume they want to show mostly they're from the foreign market as we know some film which -- and children from the ages, they can buy a ticket and walk in and they -- they might even have for adult consumption but the very few theater owners that go around checking whether or not the people coming in are over 18, 14 or whatever they might be. But they walk in to these movies and the damage is done if we assume that there is some damage, traumatic effect to their thinking on these things. It's done before, they can be corrected, and this shifts the burden completely to merely have us go out and arrest people on violation of the statutes of obscenity. We feel it would do irreparable damage to the whole concept of censorship.
Potter Stewart: With the vast majority of the states do just that, don't they, all but Kansas and your state and New York and Virginia?
Thomas B. Finan: Well Mr. Justice, if I may answer that in this manner. The four states I believe have censorship but there are a number of large cities --
Potter Stewart: Municipality of Chicago and others --
Thomas B. Finan: Philadelphia? I would venture to say that perhaps a goodly 60% of the urban population of this nation or 50% of the urban population of this nation, less than an area where there is some type of movie censorship.
Speaker: (Inaudible)
Thomas B. Finan: In District of Columbia --
William O. Douglas: Yes.
Thomas B. Finan: No.
Potter Stewart: The factual matter I suppose, first, it's going to exhibit the extreme kind of obscenity wouldn't bother asking for a license. He will just go ahead and then do exhibiting in the black market.
Thomas B. Finan: Well, the only way that Mr. Justice that I would see that you would get the first indication that such movies would -- were being exhibited would be by the police officer on the beat who would probably see these things and hear some boys on the street corner talking about it or something and decide what he'll do and see what it's all about. And how many days or weeks could be running and how many places, I don't know. I'm sure we'd only estimate or make a guess on that but conjecture -- but perhaps we are old fashion, I don't think so. But I firmly believe that the impact of many of these lewd films on young people especially, there r by young people especially from the ages say about 13 to 19 has an incalculable effect upon them. And I think we're just kidding ourselves if we don't think it does. And it -- perhaps we put some burden on the movie industry in this regard but I don't believe that it outweighs the general welfare of the public and we're not -- I don't feel unduly impinging upon the great right of free speech which the First and the Fourteenth Amendments give us.
Arthur J. Goldberg: (Inaudible)
Thomas B. Finan: I recognize that, Mr. Justice, but let me state this if I may. We are approaching this case in the background of the Times Film versus Chicago. And frankness would compel me to state that the only reason that this case if we will assume on the basis of stare decisis that Times Film versus Chicago still prevail, I think we're right on this. And I would say that the only reason that this case is here before under somewhat of a disguise is that the appellant in this case is well aware that since 1961 when the Times Film case was decided, there has been some change of personnel and so does the tribunal. And what the ultimate decision might be, I don't know. I certainly hope that the Court will sustain this.
Earl Warren: Mr. Bilgrey.
Felix J. Bilgrey: Mr. Chief Justice, may it please the Court. Before addressing myself to a few of the questions which some of the justices have posed me a little further, I would like to say that I believe that if the view of the Attorney General of Maryland, Mr. Finan, prevails here that the Court may have to overrule the Burstyn case because he cited an example of I think a well with water. And I recall that this Court held -- I believe it was in Smith case that food for the mind and food for the belly are not one of the same things. I should also like to state that I -- well, in defending Ronald Freedman, he is involved in the motion picture business and I resent on his behalf the insinuation that -- that what he wants to do is to bring or what anyone else wants to do is to bring a lot of lewd films in into Maryland. I believe that rests from the completely false assumption that this statute in fact deters people from presenting obscene films to the Board. Of course, this is entirely conjectural and that we -- we all know that especially with the statute of this nature which is censorship outbreak that there are a lot of people who are inhibited and who may bypass Maryland. I should now like to address myself to the -- the question on -- that Justice -- Mr. Justice Goldberg and Stewart asked me about in connection with the tax, whether this -- this could be sustained if it were a tax. The fact is if it may please the Court, that -- that this is not an ordinary business tax. I think if this were an ordinary business tax, this Court could be confronted by an entirely different problem. We think that this is a specific discriminatory tax. It picks out one constitutional medium and motion pictures are exactly that. In a real sense, this is a tax which discriminates against a particular constitutional right just as Maryland, in an earlier case, well over hundred years ago in McCulloch versus Maryland sought to distinguish against the federal government. And of course, that was not sustained. Now, it has also been urged by the Attorney General here of Maryland that to reverse Freedman's conviction would in effect require for this Court to overrule Times Film. Now, we do not believe that that is so. We think that a -- to overrule Times Film would dismantle any system of censorship although that would not necessarily itself entail to -- total judicial protection to motion pictures. We believe, however, that we have a much narrower case here. The Attorney General has totally ignored the fact that the film has been shown. In fact he has insinuated that this was -- might not be the proper way to -- for Mr. Freedman to test his beliefs that -- that the conviction has to -- as applied to him is invalid. I believe in that context that Ms. Thaw (ph) and Mr. Thomas, and many of the other cases that have been before this Court have come up in exactly the same context. We believe that -- that Maryland could if this Court reverses within the narrow scope of this -- that this movie may conceivably entail that if Maryland's brief -- if this Court reverses, we believe Maryland could still maintain its Film Review Board if it so desire to do so for all those as I have suggested before who want to buy an insurance policy. As long as it is permissible for people who show a film to commit -- who do not want to comply with this as long as it is permissible for those people to come in and to later on any proceeding, this proceeding or any other state proceeding whether it'd be criminal or an injunctive method that this Court might have sustained, that the exhibitor may come in and that it may be able to show that this particular film is constitutional. And therefore, as Mr. Justice Stewart addressed himself to in his concurrence in the Kansas Book case which was brought up before, Mr. Justice Stewart said that the books involved there were not hardcore pornography. And therefore he thought that Kansas could not by any procedure constitutionally suppress him anymore than Kansas could constitutionally make their sale or distribution of criminal act. We believe that we are in exactly the same boat here. And we therefore urge this Court to reverse Ronald Freedman's conviction.
Earl Warren: May I ask you this question? What would be left in censorship in Maryland if -- if this case is reversed?
Felix J. Bilgrey: We think, Mr. Chief Justice, probably very little. However, I would like to dispute in passing the Attorney General --
Earl Warren: Wouldn't it be nothing?
Felix J. Bilgrey: I beg your pardon.
Earl Warren: Wouldn't it be nothing --
Felix J. Bilgrey: It's -- it's --
Earl Warren: Let's face the fact --
Felix J. Bilgrey: Well, in all capability, I think that Maryland may then do what 46 other states and I don't think it's 40 cities, I think it's only two cities and I think it's only 2% or 3% of our population and not 50% of our population. What the -- what the courts do there? What the states do there? Maryland would probably resort to some other method whether injunctive or criminal or combination of both but a method that has been validly sustained by this Court.
William O. Douglas: Do you think the States have injunctions on the film?
Felix J. Bilgrey: Well, I think that quite a few states these days have injunctive proceedings such as that they have been sustained in the Kingsley Books, Your Honor.
William J. Brennan, Jr.: They do apply in the movie?
Felix J. Bilgrey: They -- they -- I don't think they apply to movies --
William J. Brennan, Jr.: It's all for books --
William O. Douglas: New York did apply it --
Felix J. Bilgrey: No New York does not.
William O. Douglas: Do you know of any state that applies to you?
Felix J. Bilgrey: Not to my knowledge.
Byron R. White: And why do you suppose they don't?
Felix J. Bilgrey: Well, they -- they might not find to see the problem as greatly as the State of Maryland sees it. They might find that it's quite more sufficient to invoke the traditional American process against the exhibitors of films -- allegedly obscene films. They might find it easier than (Voice Overlap)
Byron R. White: You mean the -- you mean the criminal prosecution.
Felix J. Bilgrey: I mean criminal prosecution but I'm not saying that Maryland is necessarily relegated to that.
William O. Douglas: (Inaudible)
Felix J. Bilgrey: Well I -- I suggest Mr. Justice that -- that -- that is even more difficult with respect to those media which enjoy a far greater circulation and impact than the motion picture medium which I think is a great medium and I --
William O. Douglas: The impact?
Felix J. Bilgrey: I don't think impact has any constitutional relevance. No, not with respect to those films which are constitutionally protected. But I do suggest that in the States -- in the 46 states that -- that follow the traditional American method, that they have an easier time with respect to prosecuting for allegedly offensive films than they do with respect to magazines that are disseminated far away. And of course, the batting average of the Maryland Board of Appeals has been zero. Thank you very much.
Earl Warren: By that, what do you mean that the courts have overruled them in every --
Felix J. Bilgrey: The Court of Appeals indeed has overruled (Voice Overlap) one or two years, I've had a few cases myself before the Court took me two years in this Mr. Chief Justice.
Earl Warren: How many cases have they happen to --?
Felix J. Bilgrey: They have three.
Earl Warren: Three cases.
Felix J. Bilgrey: Yes, Mr. Chief Justice.
Potter Stewart: Suppose there have been cases where they haven't been appealed to the Court.
Felix J. Bilgrey: Because the exhibitors possibly made it perpetuated. Thank you very much.