Appellants are an exhibitor and the distributor of a motion picture named 'Viva Maria,' which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dalas classified as 'not suitable for young persons.' A county court upheld the Board's determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed, and we noted probable jurisdiction, 387 U.S. 903, 87 S.Ct. 1685, 18 L.Ed.2d 620, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee's classification ordinance.
That ordinance, adopted in 1965, may be summarized as follows. It establishes a Motion Picture Classification Board, composed of nine appointed members, all of whom serve without pay. The Board classifies films as 'suitable for young persons' or as 'not suitable for young persons,' young persons being defined as children who have not reached their 16th birthday. An exhibitor must be specially licensed to show 'not suitable' films.
The ordinance requires the exhibitor, before any initial showing of a film, to file with the Board a proposed classification of the film together with a summary of its plot and similar information. The proposed classification is approved if the Board affirmatively agrees with it, or takes no action upon it within five days of its filing.
If a majority of the Board is dissatisfied with the proposed classification, the exhibitor is required to project the film before at least five members of the Board at the earliest practicable time. At the showing, the exhibitor may also present testimony or other support for his proposed classification. Within two days the Board must issue its classification order. Should the exhibitor disagree, he must file within two days a notice of nonacceptance. The Board is then required to go to court within three days to seek a temporary injunction, and a hearing is required to be set on that application within five days thereafter; if the exhibitor agrees to waive notice and requests a hearing on the merits of a permanent injunction, the Board is required to waive its application for a temporary injunction and join in the exhibitor's request. If an injunction does not issue within 10 days of the exhibitor's notice of nonacceptance, the Board's classification order is suspended. The ordinance does not define the scope of judicial review of the Board's determination, but the Court of Civil Appeals held that de novo review in the trial court was required. If an injunction issues and the exhibitor seeks appellate review, or if an injunction is refused and the Board appeals, the Board must waive all statutory notices and times, and join a request of the exhibitor, to advance the case on the appellate court's docket, i.e., do everything it can to assure a speedy determination.
The ordinance is enforced primarily by a misdemeanor penalty: an exhibitor is subject to a fine of up to $200 if he exhibits a film that is classified 'not suitable for young persons' without advertisements clearly stating its classification or without the classification being clearly posted, exhibits on the same program a suitable and a not suitable film, knowingly admits a youth under age 16 to view the film without his guardian or spouse accompanying him, makes any false or willfully misleading statement in submitting a film for classification, or exhibits a not suitable film without having a valid license therefor.
The same penalty is applicable to a youth who obtains admission to a not suitable film by falsely giving his age as 16 years or over, and to any person who sells or gives to a youth under 16 a ticket to a not suitable film, or makes any false statements to enable such a youth to gain admission.
Other means of enforcement, as against the exhibitor, are provided. Repeated violations of the ordinance, or persistent failure 'to use reasonable diligence to determine whether those seeking admittance to the exhibition of a film classified 'not suitable for young persons' are below the age of sixteen,' may be the basis for revocation of a license to show not suitable films. Such a persistent failure, or exhibition of a not suitable film by an exhibitor with three convictions under the ordinance, inter alia, are defined as 'public nuisances,' which the Board may seek to restrain by a suit for injunctive relief.
The substantive standards governing classification are as follows:
"Not suitable for young persons' means: