Freedman v. Maryland

The ruling outlined limitations on a state's right to require exhibitors to submit movies to a censoring authority prior to their being shown. Although the ruling did not go so far as to label all such "prior restraint"--i.e. banning something before the public sees it--unconstitutional, the Court's decision did establish guidelines aimed at protecting against the "undue inhibition of protected expression." The decision indicated that censorship procedures must: (1) place the burden of proving the film is not protected expression on the censors, (2) make provisions for a judicial procedure to impose a valid determination--i.e. the censor's decision cannot be final, and (3) require prompt determination "within a specified time period."

By the mid-1960s, official censorship of motion pictures was already clearly on the decline. As of 1964, the year Freedman v. Maryland was argued before the Supreme Court, only four states--Maryland, New York, Virginia, and Kansas--and a handful of municipalities had statutes requiring the submission of all films to a censorship board before they could be shown. Although the Court was still struggling with the seemingly impossible task of drawing the line between obscenity and protected expression, a series of Court decisions over the previous decade had brought into question the legitimacy of such "prior restraint" of various forms of expression. The Freedman case was the first to address the machinery of the censorship process, rather than the validity of all prior censorship or the boundaries of freedom of expression.

Under Maryland law, every movie had to be prescreened and licensed by the board of censors before it could be shown at a public venue. The board could reject films it deemed were obscene, morally corrupt, or likely to incite crime. No limit was placed on how long the decision-making process could take. Ronald Freedman, a Baltimore theater manager, sought to challenge the legality of Maryland's film censorship statute. To test the law, Freedman informed the board in advance of his intention to screen a film without first putting it through the licensing process. The film he showed was Revenge at Daybreak, a story of the Irish Revolution. It was clearly not obscene, and, likely would have been approved had he submitted it to the board. He showed the movie in November of 1962, and was promptly arrested after the screening. In March of 1963, Freedman was convicted by the Baltimore Criminal Court of violating the censorship code and was fined $25.

Freedman's actions came on the heels of another Supreme Court ruling, Times Film Corp. v. Chicago (1961). That case involved a Chicago ordinance similar in most respects to the Maryland statute. In that case, Times Film Corp. argued that total constitutional protection should cover at least the initial showing of all films, regardless of their content. The Court ruled that a law requiring that all motion pictures be submitted for review prior to their showing was not automatically unconstitutional. This left an important question regarding the circumstances which made such a requirement acceptable. In refusing to submit Revenge at Daybreak, Freedman hoped to demonstrate that laws such as Maryland's, which in effect made it a criminal act to show a perfectly benign movie without a license, represented an unreasonable threat to freedom of expression. Where the Times Film case had asked the Court to consider only the narrow question of whether prior restraint was ever constitutionally valid, Freedman v. Maryland broadened the issue to include other aspects of the statute.

The Supreme Court took up the Freedman case after Freedman's conviction was upheld by the Maryland Court of Appeals. Freedman's lawyer, Felix Bilgrey, had also represented Times Film Corp. in the earlier case. It was no secret that Bilgrey's ultimate goal was the same in both cases--namely, the elimination of routine film licensing. His main task here was to make clear the differences between the two cases. Since the Times Film decision removed the idea that a submission requirement was by its very nature unconstitutional, in the Freedman case Bilgrey turned his attention to the specifics of the Maryland statute. Rather than claiming that prior submission should never be required, he asserted in the Freedman case that it must be considered in the context of the entire statute. The statute taken as a whole, Freedman claimed, represented an undue suppression of his right to free expression.

The state of Maryland, represented by Thomas Finan, argued essentially that the Freedman case was merely a rehashing of Times Film. Finan asserted that the importance of preventing the public from being exposed to pornography and other harmful material outweighed the film owner's or distributor's right to freedom of expression. But he also claimed that the existence of the Freedman case was a thinly disguised attempt to get the Supreme Court to overrule its previous decision in Times Film, in light of personnel changes that had taken place on the Court since 1961.

The Supreme Court ruled unanimously in Freedman's favor. Although the Court reversed the decision of the Maryland Court of Appeals, however, Freedman v. Maryland was not a clear-cut victory for the anti-censorship camp. Rather than taking an all or nothing view on the validity of prior censorship, the Court chose to travel the middle of the road. In siding with Freedman by accepting that this case was different from Times Film, the Court confirmed its view that prior restraint was sometimes acceptable, but it imposed guidelines under which such censorship procedures must operate.

Writing for the majority, Justice Brennan outlined the specific areas in which the Maryland statute failed to adequately protect film exhibitors' First and Fourteenth Amendment rights. Brennan wrote:

The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court--part of an independent branch of government--to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final.

In other words, the Court decided that the burden of proving that the film is not a form of expression protected by the Constitution must lie with the censor. Under the Maryland statute the burden of appealing the censor's decision had been carried by the film owner. Brennan also declared that an assurance of a prompt final judicial review must be given. The Maryland statute made no provisions for any judicial involvement of any kind, and the amount of time a determination could take was not limited. The ruling reduced the role of the censor. After deeming a film unacceptable, the censor now had to initiate judicial proceedings to have licensing withheld.

Although the vote to reverse was unanimous, Brennan's opinion represented the views of only seven justices. Douglas wrote a concurring opinion, joined by Black. Their view was that the Maryland statute was unconstitutional because any attempt to censor expression, be it a film, a book, or speech, was a violation of the First Amendment. Douglas wrote that "I do not believe any form of censorship--no matter how speedy or prolonged it may be--is permissible . . . I would put an end to all forms and types of censorship and give full literal meaning to the command of the First Amendment."

In the long term, the requirements outlined in the Freedman case probably paved the way for the virtual death of state and local film censorship boards in the United States. It had several immediate effects as well. The ruling led directly to the elimination of prior censorship of movies in most of the places where it was in effect at the time. Those authorities that chose to retain such laws were forced to revamp them to incorporate the Freedman safeguards. Freedman v. Maryland also inspired a similar case dealing with the censorship of import films by the Federal Bureau of Customs. Since 1965, Freedman has come into play in countless cases involving instances of censorship and prior restraint, where the party being restrained claims that the rigorous standards created by the Court in Freedman were not met.