Content Regulation / Censorship
Association for Freedom of Thought and Expression (AFTE) v. Mohamed Hamid Salem
Closed Expands Expression
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The Supreme Court, in a seminal ruling, declared the Maryland motion picture censorship statute unconstitutional on the grounds that it lacked a recourse for a timely and impartial review of censorship decisions. The Appellant was convicted for exhibiting a motion picture without obtaining a prior approval from the Maryland State Board of Censors, despite his claim against the constitutionality of the prior restraints on expression under the censorship law. The Court devised a three-pronged test, ensuring that adequate “procedural safeguards” are put in place to obviate the perils of censorship: 1) the government entity (Censorship Board, in this case) seeking to restrain the speech bears the burden of proof in court; 2) restraints may be imposed only for a specified brief period during which the status quo must be maintained; and 3) an expeditious and prompt judicial review is available for final determination. Based on the procedural safeguards test, the Court reversed the judgment of the Maryland Court of Appeals.
The Appellant, a film exhibitor, was arrested when he exhibited a motion film “Revenge at Daybreak” at a theatre in Baltimore City without first submitting the film to Maryland State Board of Motion Picture Censors for approval and licensing, as mandated by Md. Ann. Code, 1957, Art. 66A, § 2. Under the law, the board was to approve films that were moral and proper and was to disapprove such as are obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes.
Even though the motion picture did not violate statutory standards (as the State Board later conceded) and was subject to receipt of a proper license upon submission, the Appellant was indicted and tried in the Criminal Court of Baltimore for violation of § 2 and convicted after his motions for acquittal were denied. He appealed to the Court of Appeals of Maryland against the judgment of the First Instance Court.
In the appellate forum, despite his conviction for violation of § 2, the Appellant attacked Art. 66A in entirety in an apparent attempt to test the constitutionality of Maryland motion picture censorship statute. He argued that the statute is void on its face as an infringement upon the principles of free speech and press envisaged in the First Amendment to the US Constitution and Art. 40 of the Maryland Declaration of Rights. The Appellant also contested separately various “constitutional infirmities” of the Act on several grounds, specifically the lack of adequate procedural safeguards, vague standards established by § 6 (dealing with the power of the Board to examine, approve/disapprove films and the definition of obscenity), the illegality of a “fee” for inspection and licensing charged to exercise freedom of speech as well as the absence of equal protection of law on account of exclusion of newsreels and non-commercial exhibitors from the operation of the Act.
In response, the State claimed that the Appellant lacked standing before the Court to challenge any other provision apart from § 2 for which he was indicted, since by refusing to submit his film to the Board as stipulated under § 2, he restricted himself to an attack on that section alone.
In a judgment delivered on February 10, 1964, the Maryland Court of Appeals adjudged that a prior restraint on public exhibition before approval and licensing was valid and enforceable and that the Appellant was barred from challenging other provisions of the statute. On appeal to the Supreme Court, the Appellant again sought to challenge the constitutionality of the entire statute which was upheld by the Court.
Justice Brennan delivered the opinion of the United States Supreme Court. The Appellant had principally sought to challenge the constitutionality of the State censorship law, arguing against an unlawful suppression on his freedom of expression.
First, the Court considered the violation by the Maryland censorship law of the freedoms protected under the First and the Fourteenth Amendment (which made the First Amendment applicable to States). The Court began by disregarding the misplaced reliance placed by the Court of Appeals on the decision in Times Film Corp. v. City of Chicago, 365 U. S. 43, where the main question was whether prior censorship “under all circumstances” was violative of the constitutional guarantee of freedom of expression. In that decision, the Supreme Court had considered the invasion on constitutional rights by the Chicago censorship ordinance which also required a similar submission of films to the Board prior to their public exhibition.
The Court noted that quite dissimilar to the factual matrix in the Times Film case where the challenge to § 2 was based solely on the ground that it may prevent “even the first showing of the film whose exhibition may legitimately be subject of an obscenity prosecution” [p. 4], the Appellant in the present case had distinctly argued against the constitutionality of § 2 in the context of an undue suppression of expression in the remainder of the statute. Accordingly, the Court overlooked the limited reading of the Court of Appeals of the Times case.
In its reasoning, it held that the lower court was, therefore, inaccurate to say that the “Times Film upheld specific features of the Chicago ordinance” [p.4]. This was furthered by the fact that the sole question considered by the Court in Times Film was on the unconstitutionality of a prior restraint “in all circumstances”. On account of the separate issues presented in Times Film case and the one which the Court considered, the Court concluded that the lower court erred in holding that the Appellant’s challenge was restricted merely to § 2, as the “structure of the other provisions of the Maryland censorship statute contributed to the infirmity of § 2” [p. 6], and were therefore, also invalid in essence.
On a related note, the Court also agreed by relying upon the decisions in Thornhill v. Alabama, 310 U. S. 88, 97; Staub v. City of Baxley, 355 U. S. 313, 319; Saia v. New York, 334 U. S. 558; Thomas v. Collins, 323 U. S. 516; Hague v. CIO, 307 U. S. 496 and Lovell v. City of Griffin, 303 U. S. 444, 452-453 that it is possible to challenge a statute on account of its “overly broad licensing discretion to an administrative office” [p. 6], irrespective of the Appellant’s application for license or his conduct under the statute. A similar danger to freedom of expression in the censorship statute raised by the Appellant gave him an adequate standing to make that challenge.
According to the Court, the Maryland statute gave excessive administrative discretion, as there was no judicial participation in the procedure barring screening of the film under the statute. To make things worse, the “risk of delay” was built into the procedure and a time-consuming appeals process was pre-requisite in having the decision of the Board reversed. Thus, the Court settled on the fact that adequate safeguards to confine a censor’s action within the judicially determined constitutional limits were lacking from the statute.
Highlighting an important distinction between a prosecution for obscenity and a censorship proceeding, the Court declared that the latter presents “peculiar” dangers to constitutionally-protected speech. Consequently, the State is not free to adopt “whatever procedures it pleases” without factoring its possible grave consequences to free speech (quoting Marcus v. Search Warrant, 367 U. S. 717, 731). The Court’s concern was well-placed as a censor, functioning as an independent branch of the Government, may act against constitutionally protected interests in free expression in a manner which is less responsive, and his determination may as well be a final one in circumstances leading to a delay in seeking judicial review.
In order to avoid such a constitutional infirmity, the Court devised a three-pronged test, ensuring that adequate “procedural safeguards” are put in place to obviate the perils of censorship:
Relying on this criteria, the Court held that Maryland’s censorship statute fails to satisfy the procedural safeguards stipulated as, (i) burden of proof upon censor’s disapproval lies on the exhibitor, (ii) exhibition, post the Board’s adverse decision, is proscribed pending judicial review, and (iii) there is no assurance of a prompt judicial determination under the statute. Thus, a § 2 requirement mandating prior submission of films was held to be an invalid prior restraint.
Notably, the Court went further ahead to suggest a “model” to incorporate procedural safeguards, relying on the judgment in Kingsley Books, Inc. v. Brown, 354 U. S. 436 where the Court had previously upheld an injunctive procedure concerning sale of obscene books. It also took cognisance of the fact that films differ from other modes of expression, thus requiring different time limits for a judicial determination. On this point, the Court’s reasoning was consistent with the requirement for prior submission to a censor sustained in the Times Film case.
Justice Douglas, joined by Justice Black wrote a concurring opinion. In a rather liberal interpretation to the First Amendment rights, he noted that no form of censorship is permissible under the First Amendment, nor there can be any distinction between movies and other modes of expression. He disregarded completely any form or type of censorship, even if it was meant for a “limited role” accorded to a censor in Kingsley Books, Inc. v. Brown. In granting a full literal interpretation to the rights under the First Amendment, he viewed any grant of temporary injunction as granting the State a “paralysing power” thereof.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment of the Supreme Court expands expression. In a seminal judgment that formed a “keystone” for several subsequent freedom of expression cases, the Court laid down concrete standards safeguarding against undue inhibition of protected expression, though it stopped short of categorising all prior restraints as unconstitutional. The Freedman case addressed, for the first time, the impending perils of the censorship machinery, resulting in a huge decline of many official censorships and subsequently, a seizure of censorship in remaining States. The principles laid down by the Court also prompted the State of Maryland to redraft its statute in conformity with the procedural standards test.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
U.S. Supreme Court cases are binding and mandatory authority on all lower courts in the United States. That it was a unanimous decision enhances the persuasive authority espoused by the Court. The constitutional muster required to be met for prior restraint licensing schemes established by the case have largely guided subsequent approaches to free expression in the United States, including to name a few, United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) [with respect to regulatory schemes that resulted in seizure of photographs by U.S. customs agents], Blount v. Rizzi, 400 U.S. 410 (1971) [concerning seizure of mails by US Customs], Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) [dealing with the rejection of an application to stage a musical in a municipal theatre], Vance v. Universal Amusement Co., 445 U.S. 308 (1980) [declaring a Texas nuisance statute as unconstitutional for authorizing an invalid prior restraint], FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) [holding that an ordinance regulating sexually oriented business failed to meet the procedural safeguards test] and most recently Twitter, Inc. v Barr (2020) [where the motion of the government to restrict publication of a report on grounds of national security was granted].
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