{ "id": 5171055, "name": "American Civil Liberties Union, a New York Corporation, and Charles Liebman, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Martin H. Kennelly and Timothy J. O'Connor, Defendants-Appellees", "name_abbreviation": "American Civil Liberties Union v. City of Chicago", "decision_date": "1957-03-18", "docket_number": "Gen. No. 46,889", "first_page": "278", "last_page": "290", "citations": [ { "type": "official", "cite": "13 Ill. App. 2d 278" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "209 Fed. 119", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 5705828 ], "opinion_index": 0, "case_paths": [ "/f/209/0119-01" ] }, { "cite": "343 U. S. 495", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11340482 ], "opinion_index": 0, "case_paths": [ "/us/343/0495-01" ] }, { "cite": "348 U. S. 979", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6956770, 6956796, 6956749, 6956822 ], "opinion_index": 0, "case_paths": [ "/us/348/0979-02", "/us/348/0979-03", "/us/348/0979-01", "/us/348/0979-04" ] }, { "cite": "3 Ill.2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2696597 ], "opinion_index": 0, "case_paths": [ "/ill-2d/3/0334-01" ] } ], "analysis": { "cardinality": 1129, "char_count": 21392, "ocr_confidence": 0.542, "pagerank": { "raw": 8.915080072538241e-08, "percentile": 0.5003538816355703 }, "sha256": "1ede6cf694187dd4f92b9a8811eecac7448c7257db818a073bb097d5df254f3e", "simhash": "1:07e79411fdd64fd2", "word_count": 3548 }, "last_updated": "2023-07-14T14:52:00.454336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURKE, J., concurs.", "NIEMEYER, P. J., took no part." ], "parties": [ "American Civil Liberties Union, a New York Corporation, and Charles Liebman, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Martin H. Kennelly and Timothy J. O\u2019Connor, Defendants-Appellees." ], "opinions": [ { "text": "JUDGE FRIEND\ndelivered the opinion of the court.\nSections 155 \u2014 1-155\u20147 of the Municipal Code of Chicago make it unlawful to exhibit any motion picture or to distribute any motion picture to any exhibitor in the city without having first secured a permit from the commissioner of police. The commissioner is required to issue the permit upon application and payment of the prescribed fee unless he determines that the picture is \u201cimmoral or obscene . . . ,\u201d in which case he is required to refuse a permit. The American Civil Liberties Union and Charles Liebman, assignees of the right to distribute and exhibit in Chicago a motion picture \u2022 called The Miracle, applied to the commissioner for a permit. The commissioner refused to issue it on the ground that the picture was immoral and obscene. As provided by the ordinance, an appeal was taken to the mayor, who affirmed the commissioner\u2019s decision.\nThereupon plaintiffs filed a complaint in the Circuit Court seeking a declaration that they had the right to exhibit the motion picture without first obtaining a license from the defendants, the city of Chicago, its mayor and its police commissioner. Upon hearing, Judge Fisher found the provisions of the code to be unconstitutional and restrained defendants from interfering with plaintiffs\u2019 right to exhibit the film: he certified that, in his opinion, public interest required that an appeal be taken directly to the Supreme Court of Illinois. Accordingly, defendants appealed to the Supreme Court, which (American Civil Liberties Union v. City of Chicago, 3 Ill.2d 334) reversed the trial court, holding that the ordinance was constitutional and that the city had the right to deny a license if it found that the film was \u201cobscene.\u201d The cause was remanded to the Circuit Court with instructions to determine whether or not the motion picture was obscene. At this point in the proceedings plaintiffs appealed to the United States Supreme Court which, in a six-three decision (American Civil Liberties Union v. City of Chicago, 348 U. S. 979), refused to take jurisdiction of the cause \u201cfor want of a final judgment,\u201d Justices Black, Douglas and Harlan dissenting.\nUpon redocketing of the cause in the Circuit Court, it was assigned to Judge Tuohy, who found the film to be \u201cobscene\u201d and concluded that plaintiffs had no right to exhibit it in Chicago. Judgment was entered for defendants, and this appeal followed.\nBecause plaintiffs were not issued a permit, the picture has never been publicly shown in Chicago. The Miracle was produced in Italy by Roberto Rossellini, with Anna Magnani in the leading role. The United States Supreme Court had occasion to view this film, as reported in the case of Burstyn v. Wilson, 343 U. S. 495. There, Mr. Justice Frankfurter, specially concurring in the judgment of the court, introduced Bosley Crowther\u2019s summary of the story from the Atlantic Monthly, April 1951: \u201c \u2018A poor, simple-minded girl is tending a herd of goats on a mountainside one day, when a bearded stranger passes. Suddenly it strikes her fancy that he is St. Joseph, her favorite saint, and that he has come to take her to heaven, where she will be happy and free. While she pleads with him to transport her, the stranger gently plies the girl with wine, and when she is in a state of tumult, he apparently ravishes her. (This incident in the story is only briefly and discreetly implied.)\n\u201c \u2018The girl awakens later, finds the stranger gone, and climbs down from the mountain not knowing whether he was real or a dream. She meets an old priest who tells her that it is quite possible that she did see a saint, but a younger priest scoffs at the notion. \u201cMaterialist!\u201d the old priest says.\n\u201c \u2018There follows now a brief sequence \u2014 intended to be symbolic, obviously \u2014 in which the girl is reverently sitting with other villagers in church. Moved by a whim of appetite, she snitches an apple from the basket of a woman next to her. When she leaves the church, a cackling beggar tries to make her share the apple with him, but she chases him away as by habit and munches the fruit contentedly.\n\u201c \u2018Then, one day, while tending the village youngsters as their mothers work at the vines, the girl faints and the women discover that she is going to have a child. Frightened and bewildered, she suddenly murmurs, \u201cIt is the grace of God!\u201d and she runs to the church in great excitement, looks for the statue of St. Joseph, and then prostrates herself on the floor.\n\u201c \u2018Thereafter she meekly refuses to do any menial work and the housewives humor her gently but the young people are not so kind. In a scene of brutal torment, they first flatter and laughingly mock her, then they cruelly shove and hit her and clamp a basin as a halo on her head. Even abused by the beggars, the poor girl gathers together her pitiful rags and sadly departs from the village to live alone in a cave.\n\u201c \u2018When she feels her time coming upon her, she starts back towards the village. But then she sees the crowds in the street; dark memories haunt her; so she turns towards a church on a high hill and instinctively struggles towards it, crying desperately to God. A goat is her sole companion. She drinks water dripping from a rock. And when she comes to the church and finds the door locked, the goat attracts her to a small side door. Inside the church, the poor girl braces herself for her labor pains. There is a dissolve, and when we next see her sad face, in a closeup, it is full of a tender light. There is the cry of an unseen baby. The girl reaches towards it and murmurs, \u201cMy son! My love! My flesh !\u201d \u2019 \u201d\nIt appears from Burstyn v. Wilson that the picture had been banned in New York on the ground that it was \u201c \u2018sacrilegious.\u2019 \u201d The United States Supreme Court held \u201cthat under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor\u2019s conclusion that it is \u2018sacrilegious,\u2019 \u201d and concluded by saying that \u201csince the term \u2018sacrilegious\u2019 is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor-, motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us.\u201d In his specially concurring opinion, Mr. Justice Reed went beyond the majority opinion by stating that \u201cthis film does not seem to me to be of a character that the First Amendment permits a state to exclude from public view.\u201d\nIn his concurring opinion, in which Justices Jackson and Burton joined, Mr. Justice Frankfurter says: \u201c \u2018The Miracle\u2019 \u2014 a film lasting forty minutes \u2014 was produced in Italy by Roberto Rossellini. Anna Magnani played the lead as the demented goat-tender. It was first shown at the Venice Film Festival in August, 1948, combined with another moving picture, \u2018L\u2019Umano Voce,\u2019 into a diptych called \u2018Amore.\u2019 According to an affidavit from the Director of that Festival, if the motion picture had been \u2018blasphemous\u2019 it would have been barred by the Festival Committee. In a review of the film in L\u2019Osservatore Romano, the organ of the Vatican, its film critic, Piero Regnoli, wrote: \u2018Opinions may vary and questions may arise\u2014 even serious ones \u2014 of a religious nature (not to be diminished by the fact that the woman portrayed is mad [because] the author who attributed madness to her is not mad).....\u2019 While acknowledging that there were \u2018passages of undoubted cinematic distinction,\u2019 Regnoli criticized the film' as being \u2018on such a pretentiously cerebral plane that it reminds one of the early d\u2019Annunzio.\u2019 The Vatican newspaper\u2019s critic concluded: \u2018we continue to believe in Rossellini\u2019s art and we look forward to his next achievement.\u2019 In October, 1948, a month after the Rome premiere of \u2018The Miracle,\u2019 the Vatican\u2019s censorship agency, the Catholic Cinematographic Centre, declared that the picture \u2018constitutes in effect an abominable profanation from religious and moral viewpoints.\u2019 By the Lateran agreements and the Italian Constitution the Italian Government is bound to bar whatever may offend the Catholic religion. However, the Catholic Cinematographic Centre did not invoke any governmental sanction thereby afforded. The Italian Government\u2019s censorship agency gave \u2018The Miracle\u2019 the regular nulla osta clearance. The film was freely shown throughout Italy, but was not a great success. Italian movie critics divided in opinion. The critic for II Popolo, speaking for the Christian Democratic Party, the Catholic party, profusely praised the picture as a \u2018beautiful thing, humanly felt, alive, true and without religious profanation as someone has said, because in our opinion the meaning of the characters is clear and there is no possibility of misunderstanding.\u2019 Regnoli again reviewed \u2018The Miracle\u2019 for L\u2019Osservatore Romano. After criticising the film for technical faults, he found \u2018the most courageous and interesting passage of Rossellini\u2019s work\u2019 in contrasting portrayals in the film; he added: \u2018Unfortunately, concerning morals, it is necessary to note some slight defects.\u2019 He objected to its \u2018carnality\u2019 and to the representation of illegitimate motherhood. But he did not suggest that the picture was \u2018sacrilegious.\u2019 The tone of Regnoli\u2019s critique was one of respect for Rossellini, \u2018the illustrious Italian producer.\u2019 \u201d\nIn American Civil Liberties Union v. City of Chicago, the Supreme Court of Illinois, on review of Judge Fisher\u2019s judgment, noted that it had twice previously upheld the constitutionality of the ordinance in question, that \u201cdefendants consider the question settled,\u201d but that plaintiffs took the position that the court\u2019s decisions were superseded by subsequent decisions of the United States Supreme Court which plaintiffs regarded as rendering unconstitutional, \u201cas a prior restraint upon freedom of speech,\u201d all censorship of motion pictures. In view of this contention the Illinois Supreme Court considered that disposition of the case required a review of its former decisions, as well as a consideration of the decisions of the United States Supreme Court, and after a detailed discussion of both State and Federal cases concluded that \u201cin any event, we do not regard these decisions [Federal cases] as automatically compelling us to overrule this court\u2019s prior approval of the Chicago censorship ordinance,\u201d but \u201cwe do regard them ... as requiring a re-examination of that ordinance in terms of the standards and the procedures which are available to the State in the highly sensitive area of prior restraint upon the expression of ideas.\u201d Considering first the standards of the ordinance, the court observed that censorship in this case rests upon the ground that the film is obscene; and after expressing the view that the meaning of the term \u201cobscene\u201d does not vary with the particular medium of expression, proceeded to review and discuss the judicial interpretations placed on the term \u201cobscene\u201d and the relative importance of instances of obscene diction or episodes in relation to the entire text, as treated in the numerous state and federal decisions, textbooks and law journals cited in the opinion as applicable mainly to the censorship of books. In the light of the authorities reviewed, the court pertinently observed that \u201cthe general course of decisions indicates that the work in question is approached as an aggregate of different effects, and the determination turns on whether the salacious aspects are so objectionable as to outweigh whatever affirmative values the book may possess . . .\u201d The court found the attitude of Judge Learned Hand, in United States v. Kennerley, 209 Fed. 119, persuasive: \u201cI question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas, and whether they will not believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses. Indeed, it seems hardly likely that we axe even to-day so lukewarm in our interests in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child\u2019s library in the supposed interests of a salacious few . . .\u201d In the light of the decisions cited and discussed, Mr. Justice Schaefer, speaking for the court, prescribed the standard for determining obscenity as follows: \u201cWe hold, therefore, that a motion picture is obscene within the meaning of the ordinance if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. In making this determination the film must be tested with reference to its effect upon the normal, average person.\u201d Con-tinning, the court enunciated the rule that \u201cupon review of- the censor\u2019s action, the plaintiff does not carry a burden of proving that that action was arbitrary and unreasonable, but rather ... it must affirmatively be made to appear that the film fairly falls within the proscriptive terms of the ordinance.\u201d\nUnder this rule the censoring authority, in refusing to issue a permit for showing the film, should be obliged to specify reasons for so doing; and upon trial of the issue whether the ban is justified, the trial court should require the censor to assume the burden of establishing the validity of his refusal.- The trial court, as well as the reviewing court, would then have a record, in addition to the film itself, on which to decide whether the ban should be approved. To permit the banning of a motion picture film without requiring the censoring authority to substantiate his action runs directly counter to the spirit and the letter of the law relating to censorship. Freedom of expression is the rule, limitations upon it the exception; in accord with this doctrine, and in conformity with the Illinois Supreme Court ruling that the censoring authority must assume the burden of his action, such authority must present compelling and persuasive reasons to establish a film as obscene; such a determination must rest on something more than mere speculation. Without such procedure, the courts become, not only the final tribunal to pass upon films, but the only tribunal to assume the responsibilities of the censoring authority.\nThe evidence introduced by the city in support of the ruling here appealed from consisted of the film itself and two still enlargements made from the opening portion of the film \u2014 one of Webster\u2019s International Dictionary (Unabridged), open to the page containing the definition of the word \u201clove\u201d; the other, a part of the definition reading: \u201c. . . ardent affection, passionate attachment, men\u2019s adoration of God, sexual passion, gratification, devotion.\u201d Defendants offered no evidence in support of their reasons for rejecting the picture on the ground of obscenity but stood on the film alone. After viewing The Miracle, Judge Tuohy held it to be \u201cobscene\u201d within the meaning of the term as defined by the Illinois Supreme Court. The calculated purpose of the film, he felt, narrowed down to a presentation of sexual passion and gratification. In considering the effect of the film, the trial judge discussed the morals of the goatherdess portrayed in the picture, the events leading to her motherhood \u2014 including the advances by the stranger on the mountainside \u2014 and concluded that, taken with the dictionary definition, the predominant effect of the film was to arouse sexual passion.\nAs the case comes to us for review, the question presented is whether the trial court properly applied to the picture the test of the term \u201cobscenity.\u201d Since the film is attached to the record as an exhibit, and in the absence of any supporting evidence offered by defendants for rejecting the film,- we were obliged to rely on the film alone for the purpose of determining whether it falls within the scope of the term \u201cobscene\u201d as legally defined.\nThe Miracle is the story of a demented girl who thought she saw in a bearded stranger St. Joseph and envisioned a hope that he would take her to Heaven. Following the incident on the mountainside \u2014 which was but one of a series of events and, it seemed to us, one handled with appropriate restraint \u2014 she regards herself as a virgin destined to bear a child; the remainder of the film is concerned primarily with her belief in her destiny, with her abject misery, and with her long climb up a steep hill to a deserted church where she gives birth to her child. To suggest that the predominant effect of the film is to arouse sexual passion is to deny the producer\u2019s intent and his artistry, and to emphasize the incident on the mountainside as against the principal theme of the picture; it is to overlook the aesthetic and the dramatic merit of the film. Rossellini, the producer, stated (as quoted in Mr. Justice Frankfurter\u2019s concurring opinion in the Burstyn case) that \u201c \u2018In The Miracle men are still without pity because they still have not come back to God, but God is already present in the faith, however confused, of that poor, persecuted woman; and since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the poor, demented woman regains sanity in her maternal love.\u2019 \u201d Thus, we think, the emphasis is wrongly placed if sexual passion is considered as the mainspring of the action; it is, rather (to go back to the dictionary definition as given at the outset of the film), \u201cmen\u2019s adoration of God.\u201d The love of a girl for a man \u2014 or, more accurately here, her transient interest in a man \u2014 , and the love of a mother for her child, are used in The Miracle, by way of cumulative effect, by way of contrast, to highlight and interpret the principal theme of men\u2019s adoration of God. To adopt the comment of William P. Clancy from The Commonweal (likewise a quotation from Mr. Justice Frankfurter\u2019s concurring opinion) .\u2022 \u201c \u2018the film is not obviously blasphemous or obscene, either in its intention or execution.\u2019 \u201d\nThe Hicklin standard, as formulated by Cockburn, C. J., in 1868 in Regina v. Hicklin, L. R. 3 Q. B. 360, was based on \u201cwhether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this, sort might fall\u201d \u2014 thus making the young, the inexperienced or the salaciously inclined individual the object of the censor\u2019s protection; the lower Federal courts here followed this test until 1913, when Judge Hand, in the Kennerley opinion, in effect rejected the Hicklin individual as the norm when he stated that he \u201cscarcely\u201d thought that \u201cthey [society] would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its members.\u201d \u201cTo put thought,\u201d he continued, \u201cin leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.\u201d \u201cThe views thus expressed by Judge Hand were subsequently taken up,\u201d Judge Schaefer commented in the American Civil Liberties Union opinion, \u201cand the Hicklin test was repudiated in the Federal courts, in proceedings under both the postal and tariff laws. The rule now followed there, and generally in the State courts is that a book is to be judged as a whole and in terms of its effect on the average, normal reader.\u201d\nI\u00a3 is not at all probable, it seems to us, that The Miracle would arouse sexual desires in the \u201caverage, normal\u201d individual contemplated by Judge Schaefer; indeed, it appears unlikely that even the salaciously inclined individual would be so affected by a film whose central character is clothed only in rags and whose personality is devoid of any charm; there is no gloss of glamour anywhere in the film.\nCensorship is not unconstitutional, but it is a power which must be exercised with the greatest care. The Illinois Supreme Court follows and enjoins this rule of caution; therefore, a motion picture should not be excluded from public view unless it is fairly shown to lie within the proscribed area defined by the ordinance. The Miracle, as we view it, is not such a picture. Accordingly, we think the trial court erred in holding it to be obscene. For the reasons indicated, the judgment of the Circuit Court is reversed and the cause remanded with directions to enter judgment for plaintiffs, to order defendants to issue a permit upon application and payment therefor, and to enjoin them from interfering with the exhibition in Chicago of the motion picture film,- The Miracle.\nJudgment.reversed and cause remanded with directions.\nBURKE, J., concurs.\nNIEMEYER, P. J., took no part.", "type": "majority", "author": "JUDGE FRIEND" } ], "attorneys": [ "Richard Orlikoff, Sanford I. Wolff, and Abner J= Mikva, all of Chicago, for appellants; Henry Heine-man, and F. Raymond Marks, Jr., of Chicago, of counsel.", "John C. Melaniphy, Corporation Counsel, for defendants-appellees." ], "corrections": "", "head_matter": "American Civil Liberties Union, a New York Corporation, and Charles Liebman, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, Martin H. Kennelly and Timothy J. O\u2019Connor, Defendants-Appellees.\nGen. No. 46,889.\nFirst District, First Division.\nMarch 18, 1957.\nReleased for publication April 9, 1957.\nRichard Orlikoff, Sanford I. Wolff, and Abner J= Mikva, all of Chicago, for appellants; Henry Heine-man, and F. Raymond Marks, Jr., of Chicago, of counsel.\nJohn C. Melaniphy, Corporation Counsel, for defendants-appellees." }, "file_name": "0278-01", "first_page_order": 290, "last_page_order": 302 }