FREEDMAN v. MARYLAND 380 U.S. 51 (1965)

Although the Supreme Court often remarks that the first amendment imposes a heavy presumption against the validity of any system of prior restraint on expression, the Court has tolerated state censorship of motion pictures through advance licensing. Typically, such a law authorizes a censorship board to deny a license to a film on the ground of obscenity. Other substantive standards ("immoral," "tending to corrupt morals") have been held invalid for vagueness. In addition, the Court insists that the licensing system's procedures follow strict guidelines designed to avoid the chief evils of censorship. Freedman is the leading decision establishing these guidelines.

In a test case, a Baltimore theater owner showed a concededly innocuous film without submitting it to the state censorship board, and he was convicted of a violation of state law. The Supreme Court unanimously reversed the conviction. The Freedman opinion, by Justice william j. brennan, set three procedural requirements for film censorship. First, the censor must have the burden of proving that the film is "unprotected expression" (for example, obscenity). Second, while the state may insist that all films be submitted for advance screening, the censor's determination cannot be given the effect of finality; a judicial determination is required. Thus the censor must, "within a specified brief period, either issue a license or go to court to restrain showing of the film." Advance restraint, before the issue gets to court, must be of the minimum duration consistent with orderly employment of the judicial machinery. Third, the court's decision itself must be prompt. Maryland's statute failed all three parts of this test and accordingly was an unconstitutional prior restraint. Justices william o. douglas and hugo l. black, concurring, would have held any advance censorship impermissible.

Kenneth L. Karst
(1986)