BRATTLE FILMS, INC. vs. COMMISSIONER OF PUBLIC SAFETY & another.

WILKINS, J. The plaintiff, which is engaged in the business of exhibiting motion pictures, brings this bill in equity against the commissioner of public safety of the Commonwealth and the city manager of the city of Cambridge to obtain a binding declaration as to the plaintiff's right to exhibit on Sunday a certain motion picture film entitled

Page 59

"Miss Julie." A demurrer to the bill was sustained, a final decree was entered dismissing the bill, and the plaintiff appealed.

Among the allegations of the bill are these. On three occasions the plaintiff applied to the defendant commissioner for his written approval, and to the defendant city manager for a license, to exhibit the film in its theatre in Cambridge on Sunday, and both applications were refused. The film has been shown in the theatre on weekdays, and "is not of such a character as to disturb the peace and quiet of the Lord's day or to interfere with its due observance." The refusal of the written approval and of the license "constitutes a prior restraint of the freedom and rights" of the plaintiff and is in violation of the First and Fourteenth Amendments to the Constitution of the United States and of art. 16 of the Declaration of Rights of the Constitution of this Commonwealth. Likewise repugnant to these constitutional provisions is G. L. (Ter. Ed.) c. 136, Section 4, [Note p59-1] in so far as it purports to authorize the commissioner to withhold written approval and the city manager to withhold a license.

The bill states a proper case for a binding declaration, and, in any event, the demurrer should not have been sustained. Booker v. Woburn, 325 Mass. 334, 335. Burnes v. Metropolitan District Commission, 325 Mass. 731, 733. Foley v. Springfield, 328 Mass. 59, 62-63. Cohen v. Santoianni, 330 Mass. 187, 189. Stern v. Stern, 330 Mass. 312, 318. Zaltman v. Daris, 331 Mass. 458, 462.

The material portions of G. L. (Ter. Ed.) c. 136, Section 4, are: "the mayor of a city [Note p59-2] . . . may, upon written application describing the proposed entertainment, grant, upon such terms or conditions as . . . [he] may prescribe, a license to hold on the Lord's day a public entertainment, in keeping

Page 60

with the character of the day and not inconsistent with its due observance . . . provided, that no such license shall . . . have effect unless the proposed entertainment shall . . . have been approved in writing by the commissioner of public safety as being in keeping with the character of the day and not inconsistent with its due observance." By Section 3 of c. 136 a violation is subject to a criminal penalty of not more than $500. [Note p60-1]

We think that Section 4 is void on its face as a prior restraint on the freedom of speech and of the press guaranteed by the First and Fourteenth Amendments. That such would be the holding of the Supreme Court of the United States seems to follow from a series of decisions. In Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, the court held that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments," thereby overruling Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230. The Burstyn case also held that under the First and Fourteenth Amendments the State of New York could not ban a film as "sacrilegious" on the basis of a censor's conclusion made pursuant to statute (page 506). Similar results have been reached in even more recent cases. In Gelling v. Texas, 343 U.S. 960, there was held invalid a city ordinance which authorized a board of censors to deny a license for the showing of a motion picture which the board is "of the opinion" is "of such character as to be prejudicial to the best interests of the people of said city." In Superior Films, Inc. v. Department of Education of Ohio, 346 U.S. 587, and Commercial Pictures Corp. v. Regents of the University of the State of New

Page 61

York, 346 U.S. 587, two judgments of State courts of last resort were reversed without opinion on the authority of the Burstyn case. One concerned an Ohio statute which provided for the licensing of "only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character." Superior Films, Inc. v. Department of Education of Ohio, 159 Ohio St. 315, 320. The other related to a New York statute providing that a motion picture shall not be licensed if it is "immoral . . . or is of such a character that its exhibition would tend to corrupt morals." Commercial Pictures Corp. v. Regents of the University of the State of New York, 305 N. Y. 336, 343. See Central States Theatre Corp. v. Sar, 245 Iowa, 1254, 1260-1261; R. K. O. Radio Pictures, Inc. v. Department of Education of Ohio, 162 Ohio St. 263.

That the present controversy concerns exhibitions on only one day a week, and that day Sunday, does not seem to us to alter the governing rules of law. It is unthinkable that there is a power, absent as to secular days, to require the submission to advance scrutiny by governmental authority of newspapers to be published on Sunday, of sermons to be preached on Sunday, or public addresses to be made on Sunday.

Whether Section 4 is also void for indefiniteness under the due process clause of the Fourteenth Amendment need not be determined. In broad principle the present case resembles Commonwealth v. Carpenter, 325 Mass. 519, which was decided in large part (see page 521) on the authority of Connally v. General Construction Co. 269 U.S. 385, Lanzetta v. New Jersey, 306 U.S. 451, and Winters v. New York, 333 U.S. 507.

In the light of the controlling decisions of the Supreme Court of the United States, we forbear academic discussion of the Declaration of Rights of our own Constitution, which we in no sense intimate is less capable of protecting the essentials of freedom of speech or of the press. Commonwealth v. Gilfedder, 321 Mass. 335, 343.

We are not called upon to discuss Commonwealth v.

Page 62

McGann, 213 Mass. 213, 215, which deals with a predecessor statute of G. L. (Ter. Ed.) c. 140, Section 181.

The final decree below is reversed, and a new final decree is to be entered declaring that G. L. (Ter. Ed.) c. 136, Section 4, as applied to the plaintiff in the circumstances set forth in the bill of complaint is unconstitutional and void.

So ordered.