We need not pause to dilate upon the freedom of opinion and its expression, and whether by speech, writing or printing. They are too certain to need discussion-of such conceded value as to need no supporting praise. Nor can there be any doubt of their breadth nor that their underlying safeguard is, to use the words of another, "that opinion is free and that conduct alone is amenable to the law." Are moving pictures within the principle, as it is contended they are? They, indeed, may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press,-made the same agencies of civil liberty. 1 Counsel have not shrunk from this extension of their contention and cite a case in this court where the title of drama was accorded to pantomime; 1 and such and other spectacles are said by counsel to be publications of ideas, satisfying the definition of the dictionaries, that is, and we quote counsel, a means of making or announcing publicly something that otherwise might have remained private or unknown,-and this being peculiarly the purpose and effect of moving pictures they come directly, it is contended, under the protection of the Ohio constitution. The first impulse of the mind is to reject the contention. We immediately feel that the argument is wrong or strained which extends the guaranties of free opinion and speech to the multitudinous shows which are advertised on the bill-boards of our cities and towns and which regards them as emblems of public safety, to use the words of Lord Camden, quoted by counsel, and which seeks to 1 Kalem v. Harper Bros., 222 U. S. 55. Opinion of the Court. 236 U.S. bring motion pictures and other spectacles into practical and legal similitude to a free press and liberty of opinion. The judicial sense supporting the common sense of the country is against the contention. As pointed out by the District Court, the police power is familiarly exercised in granting or withholding licenses for theatrical performances as a means of their regulation. The court cited the following cases: Marmet v. State, 45 Ohio, 63, 72, 73; Baker v. Cincinnati, 11 Ohio St. 534; Commonwealth v. McGann, 213 Massachusetts, 213, 215; People v. Steele, 231 Illinois, 340, 344, 345. The exercise of the power upon moving picture exhibitions has been sustained. Greenberg v. Western Turf Ass'n, 148 California, 126; Laurelle v. Bush, 17 Cal. App. 409; State v. Loden, 117 Maryland, 373; Block v. Chicago, 239 Illinois, 251; Higgins v. Lacroix, 119 Minnesota, 145. See also State v. Morris, 76 Atl. Rep. 479; People v. Gaynor, 137 N. Y. S. 196, 199; McKenzie v. McClellan, 116 N. Y. S. 645, 646. It seems not to have occurred to anybody in the cited cases that freedom of opinion was repressed in the exertion of the power which was illustrated. The rights of property were only considered as involved. It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government. It does not militate against the strength of these considerations that motion pictures may be used to amuse and instruct in other places than theatres in churches, for instance, and in Sunday schools and public schools. Nor are we called upon to say on this record whether such exceptions would be within the provisions of the statute nor to anticipate that it will be so declared by the state courts or so enforced by the state officers. The next contention of complainant is that the Ohio statute is a delegation of legislative power and void for that if not for the other reasons charged against it, which we have discussed. While administration and legislation are quite distinct powers, the line which separates exactly their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly the legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws, and in an effort to detail and to particularize, they would miss sufficiency both in provision and execution. The objection to the statute is that it furnishes no standard of what is educational, moral, amusing or harmless, and hence leaves decision to arbitrary judgment, whim and caprice; or, aside from those extremes, leaving it to the different views which might be entertained of the effect of the pictures, permitting the "personal equation" to enter, resulting "in unjust discrimination against some propagandist film," while others might be approved without question. But the statute by its provisions guards against such variant judgments, and its terms, like other Opinion of the Court. 236 U.S. general terms, get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies. This has many analogies and direct examples in cases, and we may cite Gundling v. Chicago, 177 U. S. 183; Red "C" Oil Manufacturing Co. v. North Carolina, 222 U. S. 380; Bridge Co. v. United States, 216 U. S. 177; Buttfield v. Stranahan, 192 U. S. 470. See also Waters-Pierce Oil Co. v. Texas, 212 U. S. 86. If this were not so, the many administrative agencies created by the state and National governments would be denuded of their utility and government in some of its most important exercises become impossible. To sustain the attack upon the statute as a delegation of legislative power, complainant cites Harmon v. State, 66 Ohio St. 249. In that case a statute of the State committing to a certain officer the duty of issuing a license to one desiring to act as an engineer if "found trustworthy and competent," was declared invalid because, as the court said, no standard was furnished by the General Assembly as to qualification, and no specification as to wherein the applicant should be trustworthy and competent, but all was "left to the opinion, finding and caprice of the examiner." The case can be distinguished. Besides, later cases have recognized the difficulty of exact separation of the powers of government, and announced the principle that legislative power is completely exercised where the law "is perfect, final and decisive in all of its parts, and the discretion given only relates to its execution." Cases are cited in illustration. And the principle finds further illustration in the decisions of the courts of lesser authority but which exhibit the juridical sense of the State as to the delegation of powers. Section 5 of the statute, which provides for a censor 236 U. S. Statement of the Case. congress of the censor board and the boards of other States, is referred to in emphasis of complainant's objection that the statute delegates legislative power. But, as complainant says, such congress is "at present nonexistent and nebulous," and we are, therefore, not called upon to anticipate its action or pass upon the validity of § 5. We may close this topic with a quotation of the very apt comment of the District Court upon the statute. After remarking that the language of the statute "might have been extended by descriptive and illustrative words,' but doubting that it would have been the more intelligible and that probably by being more restrictive might be more easily thwarted, the court said: "In view of the range of subjects which complainants claim to have already compassed, not to speak of the natural development that will ensue, it would be next to impossible to devise language that would be at once comprehensive and automatic." In conclusion we may observe that the Ohio statute gives a review by the courts of the State of the decision of the board of censors. Decree affirmed. MUTUAL FILM COMPANY v. INDUSTRIAL APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO. No. 457. Argued January 6, 7, 1915. Decided February 23, 1915. Decided on authority of Mutual Film Corporation v. Industrial Comm. of Ohio, ante, p. 230. THE facts are stated in the opinion. |