Fine Arts Guild, Inc. v. City of Seattle

Hunter, J.

(dissenting)—The majority, in my opinion, has reached out without justification to strike down two ordinances which I am satisfied are compatible with constitutional standards. I dissent both because I think that the result reached by the majority is not required by the facts of the case, and because I am concerned that this decision will tend to discourage our municipalities from performing their clear duty to safeguard the moral welfare of the young.

I take as my point of departure that which the constitution permits. It permits the state to prohibit the publication of obscenity in whatever form obscenity may take. Roth v. United, States, 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 Sup. Ct. *517 1304 (1957). I am further convinced that it permits the state to take necessary and reasonable measures to insure that young people are protected from corrupting influences, such as films that exploit illicit sex, senseless violence, and other themes fundamentally contrary to the accepted moral values of our nation.

The United States Supreme Court recently decided a case which supports the view that the First Amendment does not require society to expose its youth to degenerate forms of “expression” even though such forms might be constitutionally protected so far as adults are concerned. See Ginsburg v. New York, 390 U.S. 629 , 20 L. Ed. 2d 195 , 88 Sup. Ct. 1274 (1968); Jacobellis v. Ohio, 378 U.S. 184 , 12 L. Ed. 2d 793 , 84 Sup. Ct. 1676 (1964). The majority decides this case without reference to the state’s overriding interest in regulating expression for the purpose of protecting youth from the dissemination of objectionable films.

The majority evidently concludes, first, that ordinances No. 83099 and No. 93227 are unconstitutional on their face, and second, that they are unconstitutional as applied, since in both respects they fall short of the constitutional standards against which prior restraints on the exhibition of films are measured.

Neither of these conclusions in my opinion is justified. The ordinances do not, on their face, impose prior restraints on the exhibition of films. Ordinance No. 83099 contains nothing which interferes with an exhibitor showing any film he pleases, except the requirement that a preview, if requested, be given to the board of theatre supervisors. The greatest extent of the board’s power, under the ordinance, is to issue a recommendation that a given film not be shown. There is no penalty attached to ignoring such a recommendation.

Ordinance No. 93227 does not empower the board to prevent the exhibition of any film to adults, and it provides no penalty under any circumstances when a film is shown only to adults. The net effect of its provisions is that the exhibitor, if and only if he wishes to admit persons under 21 to *518 his theater, must afford the board “a reasonable opportunity to review” the film. If the board classifies the film as “adults only,” or “18 years and older only,” the ordinance authorizes an appeal from the board’s classification to the city council licensing committee, which must hear the appeal within 30 days. Even though a film earns an unfavorable classification and even though the exhibitor is appealing that classification, the film may be shown to adults without any penalty being incurred. In fact, the only restraint involved in the ordinance is that (1) the exhibitor may not, without committing an offense, exhibit a film to persons under 21 without first having given the board an opportunity to classify it, and (2) after a proper and valid classification is made and upheld on appeal, if taken, the terms of the classification may not be violated. This restraint is not only merely a partial restraint, it is also one which is justifiable and necessary. Cf. Ginsburg v. New York, supra. There is no fatal curtailment of freedom of expression involved in this reasonable means, chosen by the city of Seattle to vindicate a serious and compelling public interest: protecting juveniles from debased “entertainment,” which undermines their moral values. The First Amendment is not a shield for commercial pandering to our young people.

The majority’s determination that the ordinances, in operation, amount to a scheme of censorship, is a non sequi-tur. Granting that it is a fact that the board has used the threat of such consequences to coerce exhibitors into refraining from exhibiting certain films, this is no fault of the ordinances and no ground on which to attack their constitutionality. If the board engages in such a practice, the appropriate remedy is a legal challenge to the practice and not an assault on ordinances which do not themselves authorize the practice.

I conclude that the majority has misconstrued the ordinances before it as a scheme of censorship, and has not adequately weighed the compelling public interest underlying the ordinances. Censorship is indeed incompatible with *519 our constitution and our traditions of free government, but reasonable steps to safeguard the morals and sensibilities of the young, such as the ordinances involved in this case, are not censorship. The Seattle ordinances are not, in my view, constitutionally invalid as a scheme of prior restraint, and the judgment of the trial court should be reversed.