Appellants Brief — Interstate Circuit, Inc. v. City of Dallas

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LIBRARY __ ashy

UPREME COURT. U. & as as JAN -S

, : on he he Bi ce

Supreme Court of the United States

ean OCTOBER TERM, 1967 .

No. 56

INTERSTATE Cigcutt, INC., .

: : Appellant,

v. .

Crry oF DALLAS, .

| Appellee.

«

On Appeal From the Court of Civil Appeals for the Fifth

Supreme Judicial District of Texas Sitting at Dallas

"REPLY BRIEF OF APPELLANT

INTERSTATE CIRCUIT, INC.

y*

GrovER Haart, JR.,

Epwin TOBOLOWSKY,

TosoLowskyY, Hartt, SCHLINGER |

& BLALOCK, !

. $525 Southland Center,

' Dallas, Texas 75201,

Attorneys for the Appellant,

+. : Interstate Circuit, Inc. .

—

. WARLICK PRESS,.INC.—P. O. BOX 10543——2263 VALDINA STREET—DALLAS-—ME 1-3130

. - . > .

- INDEX

Argument: a .

City Has Changed Its Position on Construction

‘of Freedman v. State of Maryland. ...............--"

Ordinance 11284 Prohibits:the Exhibition of

Motion Pictures on Standards That Are Vague ~

and Ambiguous ............. SORA ae :

The “Balancing of Interests” Test is Inapplicable .....

SN AEE RO REE NAT

“ oe List of Authorities.

| Page

Spat - Statutes .

Article 527, Texas Penal Code... ace ee ee ae ce:

| Cases:

: A Book, Etc. v. Attorney General of Commonwealth

we Massachusetts, 383 .U. S. Py enero 13

American Communications Association v. Douds, 339 .

U.S. 382, 397 (1950) s......2eeeeses eee esttceecteteettes 11

Barenblatt v. United States, 360 U. S. 109 (1959) |

reh. denied 361°U.S. 854.................: ees a aneee ; : .

Breard v. City of Alexandria, La., 341 U.S. 622 (1951)...

Freedman v. State of Maryland,

+380 U.S. 81 (1965) nce teres RR 48

Ginzburg v. United States, 383 U. S. 463 (2008) ...............:, 13

Interstate Circuit, Inc. v. City of Dallas, 247 F. ae * ;

906 (NSD. Tex. 1965) .....)....- inte 233

Interstate Circuit, Inc. v. City of Dallas, 249 F. Supp.

19 (N. D. Tex. 1965) ....-...:-16 Toes cette tee re tccententinne

Interstate Circuit, Inc. v. City of Dallas, 366 F. 2d. 590, |

600: (5th Cir. 1966) ......... a oe en ree rnc 24.

" Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) 8

Marcus v. Search Warrants of Property, Etc.,.367 U.S.

TUT, TRO (UGGL) ....n:.-escicesneetecedessecseeedasseseesensansscunenesengennenaten 10,

Mishkin v. State of New York, 383 U.S. 502 (1966) ” “esheh. 13

National Association for the Advancement of Colored .

_ People v. State of Alabama, 357 U.S. 449>(1958) .......... 11

Roth v. United States, 954 U.S. 476 (1957) .......:-.:..5/ 3 13

_ United States v. 56 Cartons Containing 19,500 Copies ;

~~ of Magazines, 373 F. 2d. 635 (4th Cir. 1967)... sins eee "5

United States v. One Carton Positive Motion Picture |

Film, 367 F.2d. 889 (2nd Cir. ARANETA ETD PRIA. 5

Wilkinson v. United States, 365 U.S. 399 (1961) a

cremenen naar RE ere art naconeennein oo

ee & ay

ei ties .

| a 7

Supreme Court of the United States

OCTOBER TERM, 1967 :

_ No. 56

INTERSTATE Cicurr, INc., a

| Appellant,

v.

‘Crry or DALLAs,

. em _ Appellee.

On Appeal From the Court of Civil Appeals for the Fifth

Supreme Judicial District of Texas Sitting at Dallas _

REPLY BRIEF OF APPELLANT

- INTERSTATE CIRCUIT, INC.

City Has Changed Its Position on Construction of

Freedman v. State of Maryland

. This Court’s decision in Freedman v. State of Maryland,

380 U.S. 51 (1965) requires that a prompt final judicial

review of the censor’s action be assured in prior censorship

cases, either. by statute or authoritative judicial -construc-

tion. Heretofore, the City understood, or seems to have

understood, the clear meaning of the Freedman language

“Therefore, the procedure must also assure a prompt fF

final judicial decision * * *.” (p. 59, emphasis added) :

¢

2

to require a decision by a Texas court of civil appeals and

the Supreme Court of Texas. Now, the City contends that.

this language requires only that there be a prompt judicial

determination . in an adversary proceeding . before a trial .—

court. Appellee’s Brief, pp. 2-11.

_A brief examination of the history of Dallas City Ordi-

nance 11284, and the attendant litigation, will reveal the

reason for the a s shift in position.

Dallas has bier trying desperately to have some kind of

censorship. Dallas City Ordinance 10963 .was. passed on

April 5, 1965. The local exhibitors, including the appellant.

herein, brought suit. to have it declared unconstitutional.

Interstate Circuit, Inc. v. City: of Dallas, 247 F. Supp. 906

(N.D. Tex. 1965)..The provision of ‘that ordinance for

judicial review is found in Section. 7, set out on page 916

oe opinion. The court found that, “* * * there being

no provision in Texas statutes for prompt judicial review

in the trial and appellate courts.* * *.” (p: 911, emphasis

added), the ordinance was unconstitutional because it did

not provide for judicial review satisfying the Freedman

requirements. Ht

Two weeks after that decision the present ordinance was

passed. R. 121-134. Section 7, relating to judicial review,

was substantially expanded. The paragraphs of that sec- -

. tion make detailed provisions for the waiving of notice,

shortening of the time allowed for reply briefs, and joint

filing of motions to advance in the Court of Civil Appeals

' and the Supreme Court of Texas.

a

Following the passage of this second ordinance, the local

exhibitors again brought suit. Interstate Circuit, Inc. v. City.

of Dallas, 249 F. Supp. 19 (N.D. Tex. 1965).' The City’s

_ answer in that case provided in part:

“This Defendant affirmatively alleges that it has been

the practice of both trial and appellate courts in this

State to. advance the hearing or submission of a cause

when requested to do so by the parties involved, par-

ticularly when one of the parties is a political subdi-

vision such as is this Defendant, and the matter to be ~

- litigated affects the public.in general resulting from the

exercise of police powers, such as is involved in the case

at bar, which requires a speedy determination, there- .

fore, the ordinance in question is constitutional as ap-

plied to the Plaintiffs, because as enacted it affords the

Plaintiffs prompt judicial review as a matter of law.”

Record in the United States Court of Appeals for the Fifth

Circuit, p. 51.

To. sustain its claims regarding satitnnl judicial review in

the trial and appellate courts in Texas, during the trial of -

this second ordinance, the City called Judge Dick Dixon,

Chief Justice. of the Court of Civil Appeals for ‘the Fifth -

| Supreme Judicial District of Texas, sitting at Dallas, as

a witness. Record in. the United a 5 Court ‘of Appeals

| for the Fifth Circuit, p. 384.

Pormunded by the arguments and testimony, the District’

Court found that “The appellate courts of Texas have like-

wise made it a policy to advance cases * * *.” and that

«s ** a final hearing could be obtained in the Supreme -

‘1 A Petition for Certiorari in this case is now pending before this

Court styled Interstate Circuit, Inc., et al. v. City of Dallas, No. 41,

October Term, 1967.

Ao 9g SOIREE,

4

Court of Texas in less.than thirty-five days.” Findings IX

and X, 249 F. Supp. 19, 23."

The United States Court of Appeals for the Fifth Circuit

affirmed the judgment, referring to the finding of the Dis-

trict Court. that a final judgment could be obtained in the

"Texas Supreme Court in thirty-five days. Interstate Circuit,

Inc. v. City of Dallas, 366 F. 2d 590; 600 (1966): Even SO,

that court’s approval was conditional. The court stated,

“So long as the courts are willing to cooperate in this man-

ner (recited history of Viva Maria in trial court in early .

hearing in the Court of Civil Appeals) Freedman’s require-'

ments for speedy judicial action on the merits and of review

are satisfied.” (p. 601, emphasis added)

-Interstate’s first point for reversal is directed to the

failure of Ordinance 11284 to assure a prompt final judicial

decision to review the acts of the Classification Board.

Interstate Brief, p. 11. Interstate contends that the delay

of 247 days before a final decision of the Texas courts is

obtained does not satisfy Freedman’s requirements.

In its brief, the City does not defend the delay as’ being

within ‘the limits of a reasonable requirement established

by Freedman. It does not defend the “system” which it

used to secure Judge Hughes’ findings that a final deter-

mination can be obtained from the Supreme Court of Texas

in less than thirty-five days. It does not explain why it

enacted such a detailed provision’ for appellate review and

why it called Judge Dixon as‘a witness in the case before

Judge Hughes. These actions are not consistent with the

|

J

Pe) Sint pt Sled wae ‘ a an i Ti th. a ii de lt ei ai

interpretation which it now places upon the Freedman

requirements.

This change in position by the City, in construing Freed-

'-* man’s requirements of a prompt final judicial determination

to mean a judgment of a trial court instead of meaning a

___ final judicial determination by the Supreme Court of Texas,

~~¥s- necessary in order for it to avoid a more difficult

problem—the explanation of the eight and one-half month

. delay before a final judicial decision that Viva Maria i is not |

suitable for young persons in Dallas. | “

‘Now that it is proven that cooperation is mt obtained

- the Texas Supreme Court: and that there is no -thirty-

five, day trial, candor requires that the City either confess

that its ordinance does not provide a prompt final judicial

determination and that it is unconstitutional, or explain

- (1) why it wasted words about judicial review in a long™ .

ordinance about a subject that is not relevant, (2) why it

wasted the time of Judge Dixon individually and as a wit-

_ ness, and (3) why it has urged the courts of the United

States at all levels to approve a system of appellate review

for motion picture censorship which it now says is un-

necessary. bad

The City cites two cases to support its contention that

- promptness is required only at the trial court level. United

States v. 56 Cartons Containing 19,500 Copies of Magazines,

373 F. 2d 635, (4th Cir. 1967) involved the importation of

: - undated nudist magazines. United States v. One Carton’

_ Positive Motion Picture Film, 367 F. 2d 889 — Cir. 1967)

6 ;

involved the importation of the motion picture “4 ”, In

the latter case, the importer delayed answering ked

for a recess, all of which is set.out in the opinion. Although

the case concerned a motion picture, the picture had not

been released for public distribution and exhibition, as Viva

Maria was when the present case arose. This court has

recognized the ephemeral value of motion pictures in the

Freedman case. 380 U.S. 51, 61 (1965). \

Ordinance 11284 Prohibits the 7

of Motion Pictures on Standards That Are .

Vague and Ambiguous

” Section 46A-1 (f) of Dallas City. Ordinance 11284 lists

terms such as “delinquency” and “harmful effects” as stand-

ards for the Classification Board to use in determining

whether a’ film is not suitable for young persons. These

have been discussed in detail in Interstate’s Brief beginning

on page 21, and particularly on page 24. Words of this

nature which lack a precise meaning have been held to be

too vague to serve i standard for censorship as is illus-

trated in the brief. Rather than to admit this point, the

City addresses itself to a platitude that ‘the parent is

responsible for and should direct the training of the young

mind and of the young person. Appellee’s Brief, p. 18. Even

if it is conceded that there is something less than obscenity

which is a detriment to the community, and to the people

that live in it, this does not help the ordinance provide a

valid standard of censorship. Neither the standards of “not

- ‘suitable for young persons” as defined in the ordinance,

nor any case cited by the City, tells us what cas particular

7 s

“gcanothing” is that is less than desu which is a detri-

ment to the community and the people that live in it. This én

argument gives. no precision to the words such as “harmful

effects” .which the ordinance directs the board to use in

* classifying motion pictures.’

The City has consistently refused to base its ition

classification upon obscenity in-order to avoid coming with-

_in.the scope of decisions announced by. this Court defining

obscenity and protecting as free speech material which is

not obscene. Yet, on page 19 of its brief, as it has done on

other occasions, the City uses terms which are considered

to be synonyms of “obscene”, ie., “filth” and “salacious

material”, to describe the subject matter found in various

motion pictures. Neither “filth” nor “salacious material” is .

found anywhere in the terms describing “not suitable for

young persons” in 1 the ordinance.

By using its own definition of “not suitable for young

persons”, the City avoids the restrictions. of an obscenity

. test. It tries to justify its definition because the material

is only censored for young persons. Yet, when it describes

the material which is harmful for children, it uses “filth”

and “salacious material”, which, to the layman, are the

equivalent of “obscene”. Both law and common sense should

- require that the City either restrict its censorship to that. .

which is obscene without-using synonyms, or find constitu-

tional support for its definition of “not suitable for young

7As a matter of interest, according - ‘to a report in the Dallas

Times Herald of November 6, 1967, the board doesn’t even use this

vague standard. As reported: “Members say they make their a

ments on the basis: of ‘would I want my youngster to see

- movie?’.”

AO RNP ORE REE EE UNE mye

8

‘casaal without equating the vichlage of the ordinance to

synonyms of obscenity. 3

. Texas has a law against obecenity—Article 527, Texas

- Penal. Code. .

The City ate to censor Pe that is not obscene.

There is no dispute about obscenity because the Appellant

does not contend for the right to: ‘show obscene pictures.

. Its pictures. are not obscene. If the City is to censor ma-

terial which is “not suitable for young persons”, as defined

by. the ordinance, then it should justify its definition with-

out resorting to terms which are considered vn to

obscene. Stripped of the poisoning effect of “filth” and “

Jacious material”, the City. still has the burden. of arte |

ing its definition of “not suitable for young persons”. R.

121-122. It has cited .no opinions by this Court to support.

___ its definition. There are’ none. Its resort to synonyms of ob- .

- . gcene should not cloud the issue. The standards of. the ordi-

| nance are unconstitutional.

The City. cannot make Viva Maria dieniiae by arguing

that “filth” and “salacious material”: are found in some’

"motion pictures. This. picture is not obscene. Its exhibition

~ to anyone cannot be restricted, and it cannot be censored,

by any test that has been approved by this Court.

_ The City misconstrues Joseph Burstyn, Inc. v, Wilson,

343 U.S. 495, 502 (1965) when it states, on page 22 of its

" gboeial: “The Court recognized that motion pictures as- -and

of themselves can possess a ‘greater capacity for evil and _

particularly ‘among the young people of a community, be- |

yond that of other modes of expression.”

9

The exact language of the Court in that case is as follows:

“It is further urged that motion pictures possess a

greater capacity for evil, particularly among the youth

of a‘community, than other modes of expression. Even

if one were to accept this hypothesis, it does not fol- —

- ‘low that motion pictures should be disqualified from

First Amendment protection. If there. be capacity for

evil it may be relevant iri determining the possible scope ~

of ‘community control, but it does not authorize sub-

stantially unbridled censorship such as we have here.”

_ Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).:

(emphasis added) » ea ks

Another assertion overstating facts is made at the bot-

tom of the same page where the following language is

found: — nuns x

“To limit classification, as opposed to censorship, to

only those films portraying obscenity beyond any re-

deeming social value. completely ignores the detrimental

and damaging effect that sexual promiscuity, abnormal

sex relations, extreme brutality and criminal violence ..

: or depravity exert upon the immature mind. It can ‘be

a disease ‘implanted in young persons. Such:a disease

_ once implanted, reflects upon the whole of society and

‘particularly upon the individuals most closely concerned.

It becomes not only a personal problem but a social.

problem of state and local concern.”-

_ There is no reference made to the record of this case

to support these statements which the City, asserts to be

established facts. No citation can be given to support this

series of conclusions, and there is not a scintilla of evidence

in the record to support them. . |

~The City has made an error which is common to many

who prate against “obscenity”. This error is recognized by

*

’

a tes ae ee aes

- ee ee

OLIN MIELE EDN ENE PRE yl ob ECORI IORI ITA eR ON BOI Ace —

7 aie . S

. .

10

writers who have attempted to make responsible investiga-

tions into the subject of erotica and pornography.*

_ If these unsupported charges and spurious facts can be

wiped from the record, it will be easy to see that the stand-

ards of the ordinance are uncertain, vague, and unconsti-

tutional. fe |

_ The City recognizes that censorship is said to come be-

. fore this Court with a “heavy burden.” Ordinance 11284

- cannot meet the constitutional requirements imposed upon

a censorship for obscenity. ° .

_ There is no question that the state has the authority to

regulate the admission of children to pool halls, their use

of alcoholic beverages, their right to drive automobiles, ‘to .

vote, and to purchase firearms. The lengthy analogiés used

by the City on these subjects to establish the right to

regulate free speech for children is neither valid nor rele-

vant unless the City wishes to contend that the right to

enter a pool hall, or to drink alcoholic beverages, is pro-

tected by the Constitution of the United States as a basic ©

' . or fundamental freedom. Similar analogies have been made

before and have been rejected by this Court. Marcus v.

Search-Warrants of Property, Etc., 367 USS. 717, 730 (1961).

> See Sex Offenders, Gebhard, Gagnon, Pomeroy. and Christenson,

of the Institute of Sex Research, Inc., Harper and Rowe, 1965,

- p. 670 where it is stated: : ae?

_ « * * * With great assurance many persons state that ex-

- posure to erotica and pornography leads to moral decay and

sex offenses. The axiomatic character of these -statements

would lead one to the conclusion that incontrovertible scientif-

ic evidence had’ been adduced, either of an experimental or

_ survey character, for their co aka The present state of con-

fusion in the courts and legislatures is ample evidence that

these purported causal relationships have not been subjected

to any scientific test. * * * ”

11

The Balancing of Interests”. Test is Inapplicable.

The balancing test advocated by the Appellee in its

brief (p. 34) was used by this Court in Breard v. City of .

Alexandria, La., 341 U.S. 622 (1951) in upholding the

validity of a city ordinance that restricted door-to-door __

. solicitation by uninvited salesmen. It was also used in sus-—

‘taining the contempt convictions of persons who refused: .

to answer questions asked them by the House Un-American

Activities Committee relating to their alleged membership

and activity in the Communist Party. Barenblatt v. United,

States, 360 -U.S. -109 (1959) reh: denied 361 US. 854;

Wilkinson v. United States, 365 U.S. 399 (1961) reh. denied

365 U.S. 890. Other cases, mostly involving problems. arising

from contempt of Congress citations or Smith Act prose-

cutions, are cited.on pages 34-37 of Appellee’s Brief. How-

ever, as was stated in American Communications Associa-

tion v. Douds, 339 U.S. 382, 397 (1950), and National Asso-

ciation for .the Advancement of Colored People v. State of _.

Alabama, 357 U.S. 449 (1958), the interest of the State to

warrant the. abridgment of First Amendment rights must

be substantial or compelling. The question thus presents

itself as follows: Is the interest of the State in forbidding

‘the exhibition of certain movies, not legally obscene, to

persons under sixteen (16) years of age, compelling or sub- |

stantial?

vippelles has cited no facts, either within or without the

record, that lend support: to ‘its contention that certain”

‘movies, not classed as obscene, are or can be harmful to

a “child’s welfare”. There are none. The first: classification

Ue ENTE

. 7 .

bis 12

ordinance passed by the City, No. 10963, recited in’ its

preamble that “there has been a serious increase in crime, |

delinquency and sexual promiscuity on the part. of young

: persons of school age within the City * * *.” Interstate

Circuit, Inc. v. City of Dallas, 247. F. Supp. 506; 912 (N.D.

1965). As 4 matter of fact, there was no such increase, and -

the recitation was dropped from the preamble, of Ordinance

No. 11284. This present ordinance does recite that “certain

a commercially produced motion picture films are one of the

contributing causes to juvenile delinquency, sexually pro-

miscuous behavior, and along with other factors, tend to

incite criminal behavior on the part of young persons; * * *”.

R. 120. There is not a shred of evidence anywhere to —

this finding.

Evidence directly controverting this allegation of the

ordinance was produced by the City from Captain Frank

Martin, who was in charge of the Juvenile Bureau of the

Police Department. He testified as follows:

“Q. Captain Martin, is the problem concerning ‘aan

charges with juveniles decreasing or a. in the.

_ City of Dallas?

“A I’d say it is just about stable. It is not much

_ increase, not much decrease.

“Q: It has been with us all the time?

“A, It stays with us, yes, sir.

“Q. You are not —— as to oer causes this, F

are you? ,

“A. No. I don’t sie

; “Q. But you are testifying that there is a a problem

_ here? (fol. 08s ’

“A, Yes, sir

13

The use of the balancing test has never been permitted

__ in censorship cases. The general rule is that, material may be

censored, if obscene; if not, it cannot be. Roth v. United

States, 354 U.S. 476 (1957); A Book, Etc. v. Attorney Gen-.

eral of Commonwealth of. Massachusetts, 383 U.S. 413

(1966). The rule has. been slightly modified. to permit cen- °

sorship of material that is obscene as to certain clearly de-

fined deviant sexual groups. Ginzburg v. United States, 383

U.S. 463 (1966); Mishkin v. State of New York, 383 U.S.

502 (1966). There is absolutely no showing that Viva Maria,

the film in question, or any other film which the isd in-

. tends to classify as “not suitable for young persons”, is

- - designed to appeal to any such clearly defined deviant sex-

ual group, or that young persons under sixteen (16) years

of age are a clearly defined deviant sexual group. The

ordinance generally, and as applied to Viva Maria, is un-

constitutional.

Based upon the foregoing, and for the reasons set out in ©.

Appellant’s brief, Appellant prays that the judgments below

be reversed.

oe ee we ww ow ge me eee eee eee errr

Edwin Tobolowsky,

TosBoLowsky, Hartt, GER

& BLALOCK, -

3525 Southland Center,

Dallas, Texas 75201,

_ Attorneys for the Appellant,

. Interstate Circuit, Inc. -

14

PROOF OF SERVICE

I, — Hartt, Jr., one of the attorneys for Interstate

-Circuit, Inc,, Appellant herein, and a member of the Bar

of The Supreme Court of the United. States, hereby certify

that, on the 5th day of J anuary, 1968, I served copies of

the foregoing Reply Brief of the Appellant Interstate Cir-

cuit, Inc., on the several parties hereto, as follows:

ee On Appellee City- of Dallas, by mailing a copy, ina -

duly addressed envelope, with postage prepaid, to Mr. N.

Alex Bickley, City Attorney, 501 Municipal Building, Dallas,

- + Texas, attorney of record.for the City of Dallas.

2. On Intervenor United Artists Corporation, by mailing

a = in.a duly addressed: envelope, with postage prepaid,

to Mr. Paul Carrington and Mr. Dan McElroy, 1900 Mer-

_cantile Dallas Building, Dallas, Texas, attorney of record

for United Artists Corporation.

Grover Hartt, Jr.

3525 Southland Center

Dallas, Texas :

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