236 U.S. 248
35 S.Ct. 393
59 L.Ed. 561
MUTUAL FILM CORPORATION OF MISSOURI, Appt.,
GEORGE H. HODGES, Governor; Charles H. Sessions, Secretary of State; John S. Dawson, Attorney General; and W. D. Ross, State Superintendent of Public Instruction of the State of Kansas.
Argued and submitted January 6 and 7, 1915.
Decided February 23, 1915.
Appellant, which we shall call complainant, it being such in the court below, is a Delaware corporation and the defendants are officers of the state of Kansas.
The bill attacks the validity of a law of Kansas censoring moving picture films, and prays an injunction against its enforcement. The relief was denied and the bill dismissed. This appeal was then allowed.
The bill alleges that complainant is engaged in local and interstate commerce in the renting, leasing, selling, and delivery of "films" in the state of Kansas and other states, which films have been and now are being used in the motion picture show business in Kansas, as well as elsewhere.
It is alleged that a film 'may be a scenario of an original story or theatrical production, conceived by a writer or author. This is a sketch of a plot, or chief incidents of a libretto or play, a drama, a prose or poetical composition, depicting human life and conduct on a stage. It may be also a reproduction of animated objects, scenery, picturesque views or animals, and is descriptive, educational, instructive, as well as amusing.'
The manner of the production of a film is stated, and that there are in the state about five hundred moving picture theaters using the films, and each theater uses an average of three films a day.
That a revenue in the shape of a tax of $2 is attempted to be imposed upon each film censored, which means a tax of $6 per day on the films sold, rented, or used in each show, approximating $3,000 per day on the picture show business in the state, and making a total revenue of $40,000 for the first three months from the beginning of the enforcement of the act, and thereafter a revenue of thousands of dollars to be imposed as a tax upon films printed and produced in Kansas.
That the act places a tax of about $300 a week on the films rented, hired, and shipped into the state for the period of three months, and about $6,000 for the first year, and means thereafter a tax on the interstate commerce business of complainant, a similar tax to be imposed on all films produced and printed and sent into Kansas.
That upon the films brought into the state the duty of censorship is imposed upon the state superintendent of public instruction, thereby attempting to place in him the exclusive power of censorship of all films sent into the state for use in the state, and the power to review and stamp with his approval the films used, shipped, or rented or sent into the state; and the act provides that no film shall be exempt until a fee of $2 be paid, and that all fees shall be paid into the state treasury and credited to the general fund of the state. That on account of the way the business is conducted, complainant and other film exchanges must necessarily bear the expense of censorship, otherwise the amount of the charges therefor would be necessarily doubled or trebled.
The bill attacks the law for various reasons, having foundation, it is alleged, in the provisions of the Federal and state Constitutions, which may be summarized as follows: The prohibition upon the state to lay an import or export duty; or to abridge the privileges and immunities of citizens of the United States, the statute of the state effending in this as it places an embargo and prohibition upon citizens of other states in transacting a lawful business in Kansas. The statute violates the Bill of Rights of the United States and of the state of Kansas, as it deprives of life, liberty, and property without due process of law, and particularly of the freedom to say, write, or publish whatever one will on any subject, 'being only responsible for all abuse of that liberty,' and that there can be no abuse until it is judicially determined.
It is alleged that the attorney general of the state threatens to enforce the act, although it seems to be charged that he is without the means to do so, and arrests have been made on information filed in one of the courts of the state.
The answer of defendants asserts in elaborate allegations the necessity of the act and of the censorship of films; that it is not primarily a revenue measure, but is an exercise in good faith of the police power of the state for the protection of the public morals, and that 'the legislature, in its unimpeachable wisdom, believed that uncensored pictures were detrimental to the morals and perversive of true education.' In denial of any grievance of complainant under the act the answer alleges the following: 'Answering still further, defendants allege that this complainant has no interest in the act of the Kansas legislature complained of, nor does the complainant exhibit pictures to the people of Kansas in moving picture shows, or elsewhere, nor does the complainant come directly under the provisions of said act, nor can the complainant, as a Delaware corporation licensed to do business in the state of Missouri, transact interstate business within the state of Kansas either with or without the payment of an inspection fee under the act complained of, nor is the complainant liable to any criminal prosecution under the act complained of, but only the persons, firms, partnerships, companies, and corporations which actually do exhibit pictures uncensored within the state of Kansas in violation of the act. And defendants further allege that upon its own showing this complainant has brought only mere moot questions into this honorable court.'
A hearing upon an interlocutory or temporary injunction was waived and the case heard upon its merits, one judge only sitting, the parties agreeing thereto.
Affidavits in support of the bill were filed. One of them was by an exhibitor of films within the state, and showed the number of theaters owned by him, the number of films received by him and the price paid therefor, and that they were manufactured elsewhere than in Kansas. It affirmed that he never exhibited nor has he ever seen exhibited indecent, immoral, obscene, or sacrilegious pictures or films; that among the films exhibited by him is a film known as the 'Mutual Weekly,' which consists of photographs of events of current interest throughout the world. A list of the subjects represented is given.
An affidavit of one of the managers of the complainant was also filed, giving an account of the production of the films and their distribution. After a detail of this by complainant and by other 'film exchanges' renting out films in the state, and which operate independently of complainant, it is said:
'In my opinion the only possible method of continuing the rental of film in the state of Kansas, if the proposed censorship law were to go into effect, would be for the film exchanges to procure the approval required by statute. There are a large number of motion picture exhibitors in the state of Kansas,—about five hundred (500). I do not believe it would be in any wise practicable for the exhibitors themselves to procure the approval of the different films. In the first place, the same subjects are rented from different film exchanges and are shown in different theaters concurrently. No exhibitor would be in a position to know whether the subject had been approved or not, without submitting the same to the superintendent of public instruction. The result would be that in almost every case each reel of film received by an exhibitor on rental for exhibit would have to be sent to Topeka for approval, because the exhibitor would not, at his peril, exhibit the same.
'The film exchange, on the other hand, could, with less difficulty than the exhibitor, ascertain whether a film had been approved or not, because the film exchange itself handles large quantities of films, and at least as to its own produce could keep track of the approval or nonapproval thereof, therefore making it absolutely necessary for this complainant, or the other film exchanges, to submit before renting out their films to their patrons in Kansas the films for approval.
'In the second place, in my opinion, no exhibitor would consent to pay the censoring charge on any particular reel or reels of film, because he would insist that the film be rented out to some other exhibitor in Kansas before him, so that someone else should pay the tax.'
Messrs. Walter N. Seligsberg, Eugene Batavis, Jackson H. Ralston, William B. Sanders, and Harold T. Clark for appellant.
Mr. John S. Dawson, Attorney General of Kansas, and Mr. Frank P. Lindsay for appellees.
Statement by Mr. Justice McKenna:
[Argument of Counsel from pages 253-256 intentionally omitted]
Mr. Justice McKenna after stating the case as above, delivered the opinion of the court:
Necessarily the first factor to be considered is the law of the state. It is entitled, 'An Act Regulating the Exhibiting or Using of Moving Picture Films or Reels; Providing and Regulating the Examination and Approval of Moving Picture Films and Reels, and Fixing Penalties for the Violation of This Act, and Making an Appropriation for Clerical Help to Carry This Act into Effect.' [Laws 1913, chap. 294, p. 504.]
The following are its provisions: On and after the 1st of April, 1913, it shall be unlawful to exhibit or use any moving picture film or reel unless the same shall have been examined and approved by the superintendent of public instruction. Films used in institutions of learning are exempt from the provisions of the act. It is made the duty of such officer to examine the films or reels intended for exhibition, and approve such as he shall find to be moral and instuctive, and to withhold his approval from such as tend to debase or corrupt the morals. His approval is to be stamped in writing upon the films or reels approved. He is to keep a record of examinations made by him, noting those approved and those not approved, stating the reasons for the latter. A charge of $2 is to be made for each examination. He is given the power and authority to supervise and regulate the display of all moving picture films or reels in all places of amusement or elsewhere within the state, to inquire and investigate, and to have displayed for his benefit to aid him in his investigation, those which are intended to be displayed, and shall approve such as shall be moral and proper, and disapprove such as are sacrilegious, obscene, indecent, or immoral, or such as tend to corrupt the morals. His disapproval of any film or reel may be reviewed by a commission consisting of the governor, attorney general, and secretary of state, and if they, or a majority of them, find the film or reel fit for exhibition, it shall be approved. It is the duty of every person exhibiting or permitting to be exhibited any film or reel within the state to furnish the superintendent of instruction, if he require it, a description of such film or reel and a description of its scenes and purposes, and to exhibit and display it for his examination and approval. Any person exhibiting or permitting to be exhibited any unapproved film or reel shall be guilty of a misdemeanor, and each liable to suit and separate fines.
It will be observed that the law makes only exhibitors or those permitting exhibitions of unapproved films liable to the penalties of the act, and, as we have seen, it is alleged by the defendants that as complainant is in neither class, it has no standing to attack the statute. To this complainant replies that its sales are interfered with, and invokes, as sustaining its right to complain, Savage v. Jones, 224 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715. This may be; but complainant, by asserting such right, cannot enlarge the character of the statute, or give to it an operation which it does not have, cannot, for instance, make the importation of films into the state an offense under it, and not their exhibition, which only it punishes,—cannot, therefore, make the act an interference with interstate commerce instead of what it is,—an exercise of the police power of the state upon things within the state. Nor can it make any difference that the 'exchanges' can more conveniently submit the films for approval than exhibitors can.
The opinion in No. 456 [236 U. S. 230, 59 L. ed. ——, 35 Sup. Ct. Rep. 387] becomes applicable here. Indeed, this case was argued conjointly with that, and submitted on the same briefs. It is here contended that the Kansas statute has the same invalidity and for the same reasons as it was contended there that the statute of Ohio had. We need not, therefore, repeat the reasoning. It establishes that both statutes are valid exercises of the police power of the states, and are not amenable to the objections urged against them,—that is, do not interfere with interstate commerce nor abridge the liberty of opinion; nor are they delegations of legislative power to administrative officers.