The opinion
JOHN R. BROWN, Circuit Judge
(concurring in part and dissenting in part).
I concur readily in the reversal of the District Court’s judgment, but, with deference, I dissent from the holding that this is a case for abstention with it thereafter remaining in a state of limbo while the parties repair to the long, tortuous and wholly superfluous process of a suit in the state courts of Texas. Neither party desires this. On the contrary, each urges us to decide the case.
The claim of plaintiffs is bottomed on 28 U.S.C.A. § 1331 and challenges directly the constitutionality of the ordinance and decision of the Board of Censors. It is not a mere diversity case.
Neither the doctrine of abstention nor the preservation of federalism requires or permits a federal court — to whom Congress has committed jurisdiction of a specified controversy — to escape the awful responsibility of adjudication merely because the validity of a state law or state action is at issue. There must be something more. 1
That something more may at times be uncertainty as to state interpretation of the state statute as a predicate for determination whether there is really presented a federal constitutional problem. But that, too, is a relative, not an absolute. It must be assayed in the light of the statute or field of regulation involved, not declared upon some doctrinaire basis.
What is left for the Texas courts here?
Not the construction of the ordinance. 2 The ordinance cannot pass muster as a valid right to censor for material which, *541 in the Board’s opinion, is “injurious to the morals of the citizens of Fort Worth” or which would “tend to promote or encourage * * * immorality” or which would tend to promote “racial or sectional prejudices” or would encourage “juvenile delinquency.” All such standards have been knocked out. 3
This leaves only material which, in the opinion of the Board, is “indecent” or that which would tend to “promote or encourage indecency.” And as to this it is further limited as the parties and the court below concede that the ordinance term “indecent” is synonymous with “obscene.” But Texas has little elbow room in construing obscene. It can go in only one direction — giving it a quality making it more and more restrictive as to what is forbidden. For Roth v. United States, 1957, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 , prescribes the minimum required for valid state censorship — that the suspected material must appeal to the prurient interests of the average person of the community. Texas may make that standard more severe. But it may not lessen it to make subject to censorship that which Roth would declare to be within the realm of protected free expression of ideas.
Nor, on this record, is there any leeway for Texas to decide whether this film meets the Roth prurient interests formula. That is to say, there is no evidence in this record of a fully developed trial which would permit any court— state or federal — to hold that this film appealed to the prurient interests of the average person of metropolitan Fort Worth.
The Board of Censors certainly did not think so. For its approval as a showing for adults only was conditioned upon the excision of four scenes. And its stated reasons reflect the vague standards of moral censorship applied: “The Censor Board and the Referees felt that this picture, like many others offered to the public, was too suggestive and not up to the desired moral standard.”
Nor did the District Court consider either that the Board of Censors had applied any such standard, or that this was the standard to be followed. 4 Indeed, the Court concluded that Fort Worth could establish a board of moral censors who were clothed with the power to determine whether a movie was “a desirable picture for the good of society.” On that approach he held that there was evidence to support the Board’s order of *542 censorship since the picture “lessens to a degree, or a considerable degree, the social restraints that conventionalities place on society.” 5
And finally had the District Court faced up to the prurient-Roth formula it could not, on this record, have declared the picture obscene. In the first place, the Court declined the urgent proffer of a private showing of the film. By a sort of modern compurgation he allowed each side to produce three witnesses to describe the movie and its questionable scenes. This, as to be expected, was about as revealing as program notes to a symphony concert. We have compounded the confusion by rejecting a similar formal proffer long in advance of argument and submission.
The result is that in the serious field of trespass by municipal functionaries 6 on the hard-fought-hard-won principle of free expression of ideas, determination of the underlying constitutional problems of great magnitude has been left to a non judicial body with the judicial review thereof being based, not on what is really portrayed in the film, but by what persons say they saw or thought they saw.
Granted that Roth measures obscenity in terms of community standards as to which evidence for the enlightenment of the trier is appropriate, if not constitutionally mandatory, 7 the decision whether censorship of the material offends the First or Fourteenth Amendments is finally and inevitably, one of federal, not state, law.
There is and can be no escape from the travail of critical inquiry and the agony of judicial decision to test finally whether state censorship action was unconstitutionally applied because of the intrinsic content of the challenged material. 8 This is a responsibility committed to all federal courts no less than to the Supreme Court. We have no right to withdraw from decision or spare the District Court that duty pending a declaration by state courts of what, in the final analysis, can be but an advisory opinion on the very matter which the First and Fourteenth Amendments and the supremacy clause of Article VI make a matter of federal constitutional law.
While the vehicle may be something less than morally attractive, the plaintiff here is asserting a right which history and our Constitution regard as of transcendent value. A Board of Censors stands in the way of free expression. Whether that action accords with the Constitution is the question. It is a question which the District Court, and thereafter this Court, should decide. We cannot run from responsibility or wish it off onto the state courts.
I therefore dissent.
. This is discussed at great length by Professor Charles Alan Wright, The Abstention Doctrine Reconsidered, 37 Texas L.Rev. 815 (1959).
. Ordinance 3475 creates a Board of Censors for the City of Fort Worth. It is the duty of the Board “to supervise all motion picture exhibitions * * * and to cause the suppression of any such entertainment deemed by the Board indecent or injurious to the morals of the citizens, or encouraging or promoting juvenile delinquency.” An exhibitor must apply for a permit. But “no permit shall be issued * * * for the showing of motion pictures * * * which are, in the opinion of the Board, indecent or injurious to the morals of the citizens of Fort Worth, or which would tend to promote or encourage indecency, immorality or racial or sectional prejudices, or juvenile delinquency.”
No permit shall be issued if the Board after inspection “shall condemn said picture * * * as being indecent or injurious to the morals of the citizens, or as tending to promote or encourage indecency, immorality, or racial or sectional prejudices, or juvenile delinquency.”
The Board is also given the power to require the exhibitor to submit “advertís- *541 ing copy, including photographs, newspaper cuts, and drawings to be displayed in connection with such picture, * * * and cause said exhibitor to eliminate any such advertising deemed by the Board objectionable on the grounds of indecency or immorality, or being misleading.”
. See Note, 37 Texas L.Rev. 339 (1959); see the general discussion of the censorship cases by Doan, Sax & Waite, Per Curiam Decisions of the Supreme Court: 1957 Term, 26 U.Chi.L.Rev. 309-313 (1959).
. While the Board’s minutes reflected that “it was the opinion of the Appeal Board that with such eliminations [the deletions of four scenes] the picture would not arouse a prurient desire on the part of the public; otherwise, it would,” the District Judge thought Ms function was exhausted once he determined whether the Board had “abused its discretion in rejecting this picture.”
Tbe District Judge then analyzed, in his informal oral findings, testimony from members of the Board of Censors. One had emphasized that the “whole tenor of the picture was to make a mockery of the marriage fidelity, one of the sacred thing of life.” Among these sacred things, the Court reasoned, were those things “we call conventionaliiies.” The Judge put it this way. “And one of the sacred things that has made the English people * * * a people of high ethics * * * has been those things that have come down to them in a measure from what we call the Victorian Regime or era, and out of that has grown a certain thing that we call conventionalities. Those conventionalities of society restrain people from using language, certain words. Those conventionalities restrain people from doing certain things in certain ways in good company.”
. The Court earlier reasoned: “Now, if the Board was correct in reaching the conclusion that this picture was calculated to loosen the restraint that these conventionalities exercised on polite society so that they would be freed from their restraint of these conventionalities that have been in existence among us, and that the public would, as a result, become more lax in our language and morals, then the Board, * * * would be warranted in saying that the picture was not a desirable picture. * * * This Board was a fact finding Board and they have brought in their verdict that this was not a desirable picture for the good of society * *
. No disparagement is meant of the individuals comprising the Board. Undoubtedly they are dedicated and well thought of citizens undertaking conscientiously to perform a public service.
. See the concurring opinion of Mr. Justice Frankfurter, Smith v. People of State of California, 80 S.Ct. 215 , at page 222, and that of Mr. Justice Harlan, 80 S. Ct. at page 227 .
. See the concurring opinion of Mr. Justice Harlan in Kingsley International Pictures Corp. v. Regents of the University of State of New York, 1959, 860 U.S. 684 , 703, 79 S.Ct. 1362, 1373 , 3 L. Ed.2d 1512, 1525 .