Opinion · Supreme Court of the United States
Mutual Film Corp. v. Industrial Commission of Ohio
Mut. Film Corp. v. Indus. Comm’n of Ohio, 236 U.S. 230 (1915)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1915-02-23
- Topic
- general
Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court. Complainant directs its argument to three propositions: (1) The statute in controversy imposes an unlawful burden on interstate commerce; (2) it violates the freedom of speech and publication guaranteed by § 11, art. 1, of the constitution of the State of Ohio; 1 and (3) it.attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated. It is necessary to consider only §§ 3, 4 and 5. Section 3 makes it the duty of thé board to examine and censor motion picture films to be publicly exhibited and displayed *240 in the State of Ohio.
Citator
Mutual Film Corp. v. Industrial Commission of Ohio is no longer good law, at least in part: overruled by Joseph Burstyn, Inc. v. Wilson (1952). 220 later decisions cite it, 1 of them negatively.
- Authority status
- negative
- Cited by
- 220 opinions
- Negative treatment
- 1 citing opinion
Headnotes
- Constitutional Law — Commerce Clause A state censorship statute that applies only to motion picture films intended for public exhibition within the state does not impose a burden on interstate commerce, even where the films are manufactured outside the state and shipped in from another state, because films brought from another state and held by exchanges ready to be rented to exhibitors, or already passed to exhibitors, are in consumption and mingled with other property of the state and subject to its otherwise valid police regulation. 236 U.S. 230, 240-241
- Constitutional Law — Police Power The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit like other spectacles, and is not to be regarded as part of the press of the country or as an organ of public opinion within the meaning of constitutional guarantees of freedom of speech and publication; the state may therefore require censorship of films before exhibition as an exercise of its police power, notwithstanding that films may be used to amuse and instruct. 236 U.S. 230, 244-245
- Administrative Law — Delegation of Legislative Power While the legislature must declare the policy of the law and fix the legal principles to control in given cases, an administrative body may be invested with power to ascertain the facts and conditions to which the policy and principles apply; general terms such as "moral, educational or amusing and harmless" get precision from the sense and experience of men and become certain and useful guides, so that a censorship statute employing such terms does not unconstitutionally delegate legislative power. 236 U.S. 230, 245-246
- Administrative Law — Delegation of Legislative Power A court will not pass upon the validity of a statutory provision establishing a censor congress of state boards where it appears that such congress is at present non-existent, and will not anticipate its action. 236 U.S. 230, 246
- Constitutional Law — Due Process A state statute providing for the censorship of motion pictures before exhibition, and giving a review by the courts of the state of the decision of the board of censors, does not deprive the owners of moving pictures of their property without due process of law. 236 U.S. 230, 246-247
MUTUAL FILM CORP.v. OHIO INDUS'L COMM.,236 U.S. 230(1915)
35 S.Ct. 387
MUTUAL FILM CORPORATIONv. INDUSTRIAL COMMISSION OF OHIO.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF OHIO.
No. 456.
Argued January 6, 7, 1915.
Decided February 23, 1915.
APPEAL from an order denying appellant, herein designated
complainant, an interlocutory injunction sought to restrain the
enforcement of an act of the General Assembly of Ohio passed
April 16, 1913 (103 Ohio Laws, 399), creating under the authority
and superintendence of the Industrial Commission of the State a
board of censors of motion picture films. The motion was
presented to three judges, upon the bill, supporting affidavits
and some oral testimony.
The bill is quite voluminous. It makes the following attacks
upon the Ohio statute: (1) The statute is in violation of §§ 5,
16 and 19 of article 1 of the constitution of the State in that
it deprives complainant of a remedy by due process of law by
placing it in the power of the board of censors to determine from
standards fixed by itself what films conform to the statute, and
thereby deprives complainant of a judicial determination of a
violation of the law. (2) The statute is in violation of
articles 1 and 14 of the amendments to the Constitution of the United
States, and of §11of article1of the constitution of Ohio in
that it restrains complainant and other persons from freely
writing and publishing their sentiments. (3) It attempts to give
the board of censors legislative power,
Page 232
which is vested only in the General Assembly of the State,
subject to a referendum vote of the people, in that it gives to
the board the power to determine the application of the statute
without fixing any standard by which the board shall be guided in
its determination, and places it in the power of the board,
acting with similar boards in other States, to reject, upon any
whim or caprice, any film which may be presented, and power to
determine the legal status of the foreign board or boards, in
conjunction with which it is empowered to act.
The business of the complainant and the description, use,
object and effect of motion pictures and other films contained in
the bill, stated narratively, are as follows: Complainant is
engaged in the business of purchasing, selling and leasing films,
the films being produced in other States than Ohio, and in
European and other foreign countries. The film consists of a
series of instantaneous photographs or positive prints of action
upon the stage or in the open. By being projected upon a screen
with great rapidity there appears to the eye an illusion of
motion. They depict dramatizations of standard novels, exhibiting
many subjects of scientific interest, the properties of matter,
the growth of the various forms of animal and plant life, and
explorations and travels; also events of historical and current
interest — the same events which are described in words and by
photographs in newspapers, weekly periodicals, magazines and
other publications, of which photographs are promptly secured a
few days after the events which they depict happen; thus
regularly furnishing and publishing news through the medium of
motion pictures under the name of "Mutual Weekly." Nothing is
depicted of a harmful or immoral character.
The complainant is selling and has sold during the past year
for exhibition in Ohio an average of fifty-six positive prints of
films per week to film exchanges doing business in that State,
the average value thereof being the sum of
Page 233
$100, aggregating $6,000 per week or $300,000 per annum.
In addition to selling films in Ohio complainant has a film
exchange in Detroit, Michigan, from which it rents or leases
large quantities to exhibitors in the latter State and in Ohio.
The business of that exchange and those in Ohio is to purchase
films from complainant and other manufacturers of films and rent
them to exhibitors for short periods at stated weekly rentals.
The amount of rentals depends upon the number of reels rented,
the frequency of the changes of subject, and the age or novelty
of the reels rented. The frequency of exhibition is described. It
is the custom of the business, observed by all manufacturers,
that a subject shall be released or published in all theaters on
the same day, which is known as release day, and the age or
novelty of the film depends upon the proximity of the day of
exhibition to such release day. Films so shown have never been
shown in public, and the public to whom they appeal is therefore
unlimited. Such public becomes more and more limited by each
additional exhibition of the reel.
The amount of business in renting or leasing from the Detroit
exchange for exhibition in Ohio aggregates the sum of $1,000 per
week.
Complainant has on hand at its Detroit exchange at least 2,500
reels of films which it intends to and will exhibit in Ohio and
which it will be impossible to exhibit unless the same shall have
been approved by the board of censors. Other exchanges have
films, duplicate prints of a large part of complainant's films,
for the purpose of selling and leasing to parties residing in
Ohio, and the statute of the State will require their examination
and the payment of a fee therefor. The amounts of complainant's
purchases are stated, and that complainant will be compelled to
bear the expense of having them censored because its customers
will not purchase or hire uncensored films.
The business of selling and leasing films from its offices
Page 234
outside of the State of Ohio to purchasers and exhibitors within
the State is interstate commerce, which will be seriously
burdened by the exaction of the fee for censorship, which is not
properly an inspection tax and the proceeds of which will be
largely in excess of the cost of enforcing the statute, and will
in no event be paid to the Treasury of the United States.
The board has demanded of complainant that it submit its films
to censorship and threatens, unless complainant complies with the
demand, to arrest any and all persons who seek to place on
exhibition any film not so censored or approved by the censor
congress on and after November 4, 1913, the date to which the act
was extended. It is physically impossible to comply with such
demand and physically impossible for the board to censor the
films with such rapidity as to enable complainant to proceed with
its business, and the delay consequent upon such examination
would cause great and irreparable injury to such business and
would involve a multiplicity of suits.
There were affidavits filed in support of the bill and some
testimony taken orally. One of the affidavits showed the manner
of shipping and distributing the films and was as follows:
"The films are shipped by the manufacturers to the film
exchanges enclosed in circular metal boxes, each of which metal
boxes is in turn enclosed in a fibre or wooden container. The
film is in most cases wrapped around a spool or core in a circles
within the metal case. Sometimes the film is received by the film
exchange wound on a reel, which consists of a cylindrical core
with circular flanges to prevent the film from slipping off the
core, and when so wound on the reel is also received in metal
boxes, as above described. When the film is not received on a
reel, it is, upon receipt, taken from the metal box, wound on a
reel and then replaced in the metal box. So wound and so enclosed
in metal boxes, the films are shipped by the film
Page 235
exchanges to their customers. The customers take the film as it
is wound on the reel from the metal box and exhibit the pictures
in their projecting machines, which are so arranged as to permit
of the unwinding of the film from the reel on which it is
shipped. During exhibition, the reel of film is unwound from one
reel and rewound in reverse order on a second reel. After
exhibition, it must be again unwound from the second reel from
its reverse position and replaced on the original reel in its
proper position. After the exhibitions for the day are over, the
film is replaced in the metal box and returned to the film
exchange, and this process is followed from day to day during the
life of the film.
"All shipments of films from manufacturers to film exchanges,
from film exchanges to exhibitors, and from exhibitors back to
film exchanges, are made in accordance with regulations of the
Interstate Commerce Commission, one of which provides as follows:
"`Moving picture films must be placed in metal cases, packed
in strong and tight wooden boxes or fibrewood pails.'"
Another of the affidavits divided the business as follows:
"The motion-picture business is conducted in three branches;
that is to say, by manufacturers, distributors, and exhibitors,
the distributors being known as film exchanges. . . . Film is
manufactured and produced in lengths of about one thousand feet,
which are placed on reels, and the market price per reel of film
of a thousand feet in length is at the rate of ten cents per
foot, or one hundred dollars. Manufacturers do not sell their
film direct to exhibitors, but sell to film exchanges, and the
film exchanges do not resell the film to exhibitors, but rent it
out to them."
After stating the popularity of motion pictures and the demand
of the public for new ones and the great expense their purchase
would be to exhibitors, the affidavit proceeds as follows:
Page 236
"For that reason film exchanges came into existence, and film
exchanges such as the Mutual Film Corporation are like clearing
houses or circulating libraries, in that they purchase the film
and rent it out to different exhibitors. One reel of film being
made to-day serves in many theatres from day to day until it is
worn out. The film exchange, in renting out the films, supervises
their circulation."
An affidavit was filed made by the "general secretary of the
national board of censorship of motion pictures, whose office is
at No. 50 Madison Avenue, New York City." The "national board,"
it is averred, "is an organization maintained by voluntary
contributions, whose object is to improve the moral quality of
motion pictures." Attached to the affidavit was a list of
subjects submitted to the board which are "classified according
to the nature of said subjects into scenic, geographic,
historical, classic, educational and propagandistic."
The Federal courts have jurisdiction to decide all the constitutional questions, whether Federal or state, presented by the records.Ohio R. W.R.R. v.Dittey,232 U.S. 578;Silerv.Louis. Nash. R.R.,213 U.S. 175,191.
Appellants are entitled to invoke the protection of the constitutional guaranties of freedom of publication and liberty of the press as fully as any person with whom they do business could do.Savagev.Jones,225 U.S. 501, at pp. 519-521;Collinsv.New Hampshire,171 U.S. 30;Caldwellv.NorthCarolina,187 U.S. 622;Crenshaw, v.Arkansas,227 U.S. 389,397;Kahnv.Cincinnati Times Star, 10 Oh. Dec. 599, aff'd52 Ohio St. 662.
Appellants' motion pictures are publications and entitled as such to the protection afforded by the freedomPage 237of publication guaranty contained in §11, Art.Iof the Ohio constitution.Kalemv.Harper Bros.,222 U.S. 55,60;HarperBros. v.Kalem, 169 F. 61;Dalyv.Webster, 56 F. 483;Daileyv.San Francisco Superior Court,112 Cal. 94;United Statesv.Williams, 3 F. 484;United Statesv.Loftis, 12 F. 671;LeRoyv.Jamison, 15 Fed. Cas. 373.
Appellants' motion pictures constitute part of "the press" of Ohio within the comprehensive meaning of that term. They play an increasingly important part in the spreading of knowledge and the molding of public opinion upon every kind of political, educational, religious, economic and social question. The regular publication of new films under the name of "Mutual Weekly" is clearly a press enterprise.
See §11, ArtI, Ohio constitution, providing that "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.
The Censorship Law violates § 11 in that it imposes a previous restraint upon freedom of publication, which applies to all publications whether made through the medium of speech, writing, acting on the stage, motion pictures, or through any other mode of expression now known or which may hereafter be discovered or invented, and upon the liberty of the press.Doppv.Doll, 9 O. Dec. Rep. 428;Judsonv.Zurhorst, 10 O.C.C. (N.S.) 289;S.C., aff'd, 78 O.S. 446; Cooley's Const. Law, 3d ed., Ch. XIV, § V, especially 309; Story on the Constitution, 5th ed., § 1182; Black's Const. Law, 3d ed., 658; Paterson on Liberty of Press, pp. 10 and 41; Cooley's Blackstone, 4th ed., p. 1326;Pattersonv.Colorado,205 U.S. 454,462;Daileyv.Superior Court,112 Cal. 94;Ex parte Neil, 32 Texas Criminal Court, 275;Cowanv.Fairbrother(N.C.), 32 L.R.A. 829, 836;UlsterSquare DealerPage 238v.Fowler,111 N.Y.S. 16;Life Associationv.Boogher,3 Mo. App. 173;Clothing Co. v.Watson,168 Mo. 153;Atchison c. Ry. v.Brown,80 Kan. 312; Rawle on Constitution, 2d ed., pp. 123, 124;Levertv.Daily StatesPub. Co.,123 La. 594;Sweeneyv.Baker,13 W. Va. 182;Williams Printing Co. v.Saunders,113 Va. 156;Williamsv.Black,24 S.D. 501.
The constitutional guaranties are not limited to forms of publication known at the time the Constitution was adopted.Hurtadov.California,110 U.S. 516,530;Boydv.UnitedStates,116 U.S. 746,752;Holdenv.Hardy,169 U.S. 366,385;In re Debs,158 U.S. 164,591.
The censorship law is not sustainable as a plan for the regulating of theatres by a system of granting or withholding licenses, because appellants' films are exhibited in churches, libraries, factories, store windows, before open air gatherings, etc. Moreover, even as to theaters, the surrender of the constitutional guaranty of freedom of publication could not be required as a condition precedent to the granting of a license.Dist. of Col. v.Saville,8 App.D.C. 581;Peoplev.Steele,231 Ill. 340;Chicagov.Weber, 246; Illinois, 304;Indianapolisv.Miller,168 Ind. 285;William FoxCo. v.McClellan,62 Misc. 100;Ex parte Quarg,84 P. 766;Empire City Trotting Clubv.State Racing Commission,190 N.Y. 31.
The censorship law cannot be sustained as a proper exercise of the police power, because it directly contravenes the constitutional guaranties of freedom of publication and liberty of the press.Board of Healthv.Greenville,86 Ohio St. 1,21;Lawtonv.Steele,152 U.S. 133,137;Muglerv.Kansas,123 U.S. 623,661;Sperry ex rel. v.SperryHutchinson,94 Neb. 785.
The Ohio Motion Picture Censorship violates the provisions of §11, Art.Iof the constitution of Ohio, in that it attempts to delegate legislative power.Harmonv.State, 66 O.S. 249;Toledov.Winters, 21 O. Dec. 171;Page 239Ex parte Sam Lewis, 14 O.N.P. (N.S.) 609;Noelv.People,187 Ill. 591;Kerrv.Ross,5 App.D.C. 441;Statev.Burdge(Wis.), 37 L.R.A. 157, 161;Mathewsv.Murphy, 63 S.W. 785.Mr. Robert M. Morgan, with whomMr. Timothy S. Hogan, Attorney General of the State of Ohio,Mr. James I. BoulderandMr. Clarence D. Laylinwere on the brief, for appellees.
See brief on behalf of State of Kansas in No. 597,post, p. 253.
By leave of court,Mr. Waldo G. MorseandMr. JacobSchechterfiled a brief asamici curicein behalf of the Universal Film Manufacturing Company.
It is necessary to consider only §§ 3, 4 and 5. Section 3 makes it the duty of the board to examine and censor motion picture films to be publicly exhibited and displayedPage 240in the State of Ohio. The films are required to be exhibited to the board before they are delivered to the exhibitor for exhibition, for which a fee is charged.
Section 4. "Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by such board." The films are required to be stamped or designated in a proper manner.
Section 5. The board may work in conjunction with censor boards of other States as a censor congress, and the action of such congress in approving or rejecting films shall be considered as the action of the state board, and all films passed, approved, stamped and numbered by such congress, when the fees therefor are paid shall be considered approved by the board.
By § 7 a penalty is imposed for each exhibition of films without the approval of the board, and by § 8 any person dissatisfied with the order of the board is given the same rights and remedies for hearing and reviewing, amendment or vacation of the order "as is provided in the case of persons dissatisfied with the orders of the industrial commission."
The censorship, therefore, is only of films intended for exhibition in Ohio, and we can immediately put to one side the contention that it imposes a burden on interstate commerce. It is true that according to the allegations of the bill some of the films of complainant are shipped from Detroit, Michigan, but they are distributed to exhibitors, purchasers, renters and lessors in Ohio, for exhibition in Ohio, and this determines the application of the statute. In other words, it is only films which are "to be publicly exhibited and displayed in the State of Ohio" which are required to be examined and censored. It would be straining the doctrine of original packages to say that the films retain that form and composition even when unrolling and exhibiting to audiences, or, being ready forPage 241renting for the purpose of exhibition within the State, could not be disclosed to the state officers. If this be so, whatever the power of the State to prevent the exhibition of films not approved — and for the purpose of this contention we must assume the power is otherwise plenary — films brought from another State, and only because so brought, would be exempt from the power, and films made in the State would be subject to it. There must be some time when the films are subject to the law of the State, and necessarily when they are in the hands of the exchanges ready to be rented to exhibitors or have passed to the latter, they are in consumption, and mingled as much as from their nature they can be with other property of the State.
It is true that the statute requires them to be submitted to the board before they are delivered to the exhibitor, but we have seen that the films are shipped to "exchanges" and by them rented to exhibitors, and the "exchanges" are described as "nothing more or less than circulating libraries or clearing houses." And one film "serves in many theatres from day to day until it is worn out."
The next contention is that the statute violates the freedom of speech and publication guaranteed by the Ohio constitution. In its discussion counsel have gone into a very elaborate description of moving picture exhibitions and their many useful purposes as graphic expressions of opinion and sentiments, as exponents of policies, as teachers of science and history, as useful, interesting, amusing, educational and moral. And a list of the "campaigns," as counsel call them, which may be carried on is given. We may concede the praise. It is not questioned by the Ohio statute and under its comprehensive description, "campaigns" of an infinite variety may be conducted. Films of a "moral, educational or amusing and harmless character shall be passed and approved" are the words of the statute. No exhibition, therefore, or "campaign"Page 242of complainant will be prevented if its pictures have those qualities. Therefore, however missionary of opinion films are or may become, however educational or entertaining, there is no impediment to their value or effect in the Ohio statute. But they may be used for evil, and against that possibility the statute was enacted. Their power of amusement and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences. And not only the State of Ohio but other States have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the precaution unreasonable or the legislation to effect it a mere wanton interference with personal liberty.
We do not understand that a possibility of an evil employment of films is denied, but a freedom from the censorship of the law and a precedent right of exhibition are asserted, subsequent responsibility only, it is contended, being incurred for abuse. In other words, as we have seen, the constitution of Ohio is invoked and an exhibition of films is assimilated to the freedom of speech, writing and publication assured by that instrument and for the abuse of which only is there responsibility, and, it is insisted, that as no law may be passed "to restrain the liberty of speech or of the press," no law may be passed to subject moving pictures to censorship before their exhibition.Page 243
We need not pause to dilate upon the freedom of opinion and its expression, and whether by speech, writing or printing. They are too certain to need discussion — of such conceded value as to need no supporting praise. Nor can there be any doubt of their breadth nor that their underlying safeguard is, to use the words of another, "that opinion is free and that conduct alone is amenable to the law."
Are moving pictures within the principle, as it is contended they are? They, indeed, may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press, — made the same agencies of civil liberty.
Counsel have not shrunk from this extension of their contention and cite a case in this court where the title of drama was accorded to pantomime;1and such and other spectacles are said by counsel to be publications of ideas, satisfying the definition of the dictionaries, — that is, and we quote counsel, a means of making or announcing publicly something that otherwise might have remained private or unknown, — and this being peculiarly the purpose and effect of moving pictures they come directly, it is contended, under the protection of the Ohio constitution.
The first impulse of the mind is to reject the contention. We immediately feel that the argument is wrong or strained which extends the guaranties of free opinion and speech to the multitudinous shows which are advertised on the billboards of our cities and towns and which regards them as emblems of public safety, to use the words of Lord Camden, quoted by counsel, and which seeks toPage 244bring motion pictures and other spectacles into practical and legal similitude to a free press and liberty of opinion.
The judicial sense supporting the common sense of the country is against the contention. As pointed out by the District Court, the police power is familiarly exercised in granting or withholding licenses for theatrical performances as a means of their regulation. The court cited the following cases:Marmetv.State,45 Ohio 63,72,73;Bakerv.Cincinnati,11 Ohio St. 534;Commonwealthv.McGann,213 Mass. 213,215;Peoplev.Steele,231 Ill. 340,344,345.
The exercise of the power upon moving picture exhibitions has been sustained.Greenbergv.Western Turf Ass'n,148 Cal. 126;Laurellev.Bush,17 Cal.App. 409;Statev.Loden,117 Md. 373;Blockv.Chicago,239 Ill. 251;Higginsv.Lacroix,119 Minn. 145. See alsoStatev.Morris, 76 A. 479;Peoplev.Gaynor,137 N.Y.S. 196,199;McKenziev.McClellan,116 N.Y.S. 645,646.
It seems not to have occurred to anybody in the cited cases that freedom of opinion was repressed in the exertion of the power which was illustrated. The rights of property were only considered as involved. It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its CriminalPage 245Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.
It does not militate against the strength of these considerations that motion pictures may be used to amuse and instruct in other places than theatres — in churches, for instance, and in Sunday schools and public schools. Nor are we called upon to say on this record whether such exceptions would be within the provisions of the statute nor to anticipate that it will be so declared by the state courts or so enforced by the state officers.
The next contention of complainant is that the Ohio statute is a delegation of legislative power and void for that if not for the other reasons charged against it, which we have discussed. While administration and legislation are quite distinct powers, the line which separates exactly their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly the legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws, and in an effort to detail and to particularize, they would miss sufficiency both in provision and execution.
The objection to the statute is that it furnishes no standard of what is educational, moral, amusing or harmless, and hence leaves decision to arbitrary judgment, whim and caprice; or, aside from those extremes, leaving it to the different views which might be entertained of the effect of the pictures, permitting the "personal equation" to enter, resulting "in unjust discrimination against some propagandist film," while others might be approved without question. But the statute by its provisions guards against such variant judgments, and its terms, like otherPage 246general terms, get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies. This has many analogies and direct examples in cases, and we may citeGundlingv.Chicago,177 U.S. 183;Red "C" Oil ManufacturingCo. v.North Carolina,222 U.S. 380;Bridge Co. v.UnitedStates,216 U.S. 177;Buttfieldv.Stranahan,192 U.S. 470. See alsoWaters-Pierce Oil Co. v.Texas,212 U.S. 86. If this were not so, the many administrative agencies created by the state and National governments would be denuded of their utility and government in some of its most important exercises become impossible.
To sustain the attack upon the statute as a delegation of legislative power, complainant citesHarmonv.State,66 Ohio St. 249. In that case a statute of the State committing to a certain officer the duty of issuing a license to one desiring to act as an engineer if "found trustworthy and competent," was declared invalid because, as the court said, no standard was furnished by the General Assembly as to qualification, and no specification as to wherein the applicant should be trustworthy and competent, but all was "left to the opinion, finding and caprice of the examiner." The case can be distinguished. Besides, later cases have recognized the difficulty of exact separation of the powers of government, and announced the principle that legislative power is completely exercised where the law "is perfect, final and decisive in all of its parts, and the discretion given only relates to its execution." Cases are cited in illustration. And the principle finds further illustration in the decisions of the courts of lesser authority but which exhibit the juridical sense of the State as to the delegation of powers.
Section 5 of the statute, which provides for a censorPage 247congress of the censor board and the boards of other States, is referred to in emphasis of complainant's objection that the statute delegates legislative power. But, as complainant says, such congress is "at present non-existent and nebulous," and we are, therefore, not called upon to anticipate its action or pass upon the validity of § 5.
We may close this topic with a quotation of the very apt comment of the District Court upon the statute. After remarking that the language of the statute "might have been extended by descriptive and illustrative words," but doubting that it would have been the more intelligible and that probably by being more restrictive might be more easily thwarted, the court said: "In view of the range of subjects which complainants claim to have already compassed, not to speak of the natural development that will ensue, it would be next to impossible to devise language that would be at once comprehensive and automatic."
In conclusion we may observe that the Ohio statute gives a review by the courts of the State of the decision of the board of censors.Decree affirmed.
- Page 239 "Section 11. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted." ↩
- Page 243Kalemv.Harper Bros.,222 U.S. 55. ↩