Freedman v. Maryland
380 U.S. 51 (1965)
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Rule of Law:
A noncriminal process that requires the prior submission of a film to a censor is constitutional only if it includes procedural safeguards that (1) place the burden of proving the film is unprotected expression on the censor, (2) require the censor to either issue a license or seek a court order within a brief period, and (3) assure a prompt final judicial decision.
Facts:
- Ronald Freedman owned and operated the Rex Theatre in Baltimore, Maryland.
- A Maryland statute required that all motion pictures be submitted to the Maryland State Board of Censors for approval and licensing before being exhibited.
- Freedman exhibited the film 'Revenge at Daybreak' at his theater without first submitting it to the Board for a license.
- The State of Maryland conceded that the film was not obscene and would have been granted a license had it been submitted.
- The Maryland statute did not impose a time limit for the Board to make its decision and required the exhibitor to initiate any judicial appeal of the Board's disapproval, with no guarantee of a prompt final judicial ruling.
Procedural Posture:
- Ronald Freedman was charged and convicted in a Maryland state court for violating the state's motion picture censorship statute.
- Freedman, the appellant, appealed his conviction to the Court of Appeals of Maryland, the state's highest court.
- The Court of Appeals of Maryland affirmed the conviction, holding the statute was not void on its face.
- Freedman appealed the decision of the Maryland Court of Appeals to the Supreme Court of the United States, which noted probable jurisdiction.
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Issue:
Does a state motion picture censorship statute that requires prior submission of films to a board of censors, but which lacks procedural safeguards to ensure a prompt judicial determination, constitute an unconstitutional prior restraint in violation of the First and Fourteenth Amendments?
Opinions:
Majority - Mr. Justice Brennan
Yes. A state motion picture censorship statute that requires prior submission but fails to provide adequate procedural safeguards is an unconstitutional prior restraint. While a state may require advance submission of films, any such prior restraint bears a heavy presumption against its constitutional validity. To be constitutional, the censorship scheme must contain three procedural safeguards: (1) the burden of proving that the film is unprotected expression must rest on the censor; (2) any restraint imposed in advance of a final judicial determination must be for the shortest fixed period compatible with sound judicial resolution, as the censor cannot have the final say; and (3) the procedure must assure a prompt final judicial decision. The Maryland statute fails on all three grounds: it places the burden on the exhibitor to challenge the censor's decision in court, it prohibits exhibition indefinitely pending judicial review, and it provides no assurance of a prompt judicial determination. Therefore, the requirement of prior submission under this scheme is an invalid prior restraint.
Concurring - Mr. Justice Douglas
Yes. Any form of censorship, regardless of procedural safeguards, is an unconstitutional prior restraint. Motion pictures are entitled to the same absolute First Amendment protection as any other form of expression, such as books or speeches. Just as censors are banned from the publishing business and the public platform, they should be banned from the theater. The majority's allowance for censorship, even with procedural safeguards, is improper because any system that allows the state to obtain an injunction before expression occurs grants the government the 'paralyzing power of a censor' and is contrary to the literal command of the First Amendment.
Analysis:
This case is significant for establishing the 'Freedman safeguards,' a three-part test that any government prior restraint or licensing scheme must meet to be constitutional. While not declaring all film censorship unconstitutional, the decision made it procedurally very difficult for states and municipalities to maintain such systems. The principles established here have been extended beyond film censorship to other areas of First Amendment law involving licensing or permit schemes that could inhibit protected expression, shifting the procedural burdens and risks of delay from the speaker to the government.
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