Mutual Film Corporation v. Industrial Commission of Ohio

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 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 § 11 of article 1 of 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, 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* $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 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 inclosed in circular metal boxes, each of which metal boxes is in turn inclosed in a fiber or wooden container. The film is in most cases wrapped around a spool or core in a circle 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 inclosed in metal boxes, the films are shipped by the film 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 of fiber 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, distributers, and exhibitors, the distributers being known as film exchanges. . . . Film is manufactured and produced in lengths of about 1,000 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 10 cents per foot, or $100. 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:

'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 theaters 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, classical, and educational and propagandistic.' Messrs. William B. Sanders, Walter N. Seligsberg, and Harold T. Clark for appellant.

Messrs. Waldo G. Morse and Jacob Schechter as amici curiae.

[Argument of Counsel from pages 236-239 intentionally omitted]

Messrs. Robert M. Morgan, Clarence D. Laylin, James I. Boulger, and Mr. Timothy S. Hogan, Attorney General of Ohio, for appellees.

Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: