380 U.S.

51

Freedman v. Maryland

March 1, 1965

Brennan, J.
FACTS:
Maryland required that all films be submitted to a board of censors before being exhibited. The board could
disapprove films that were obscene, debased or corrupted morals, or tended to incite crime. There was no time
limit on the decision-making process. Ronald Freedman challenged the law as unconstitutional due to the
procedures to obtain approval. He did not suggest that prior approval itself was unconstitutional.
ISSUE(s):
Whether or not the Maryland law violates the freedom of expression protected by the First Amendment. YES
HELD:
The Court found the Maryland law to be invalid. The Court decision reflected a concern that the statute
provides the danger of "unduly suppressing protected expression." The board was allowed overly broad
licensing discretion with a lack of statutory provisions for judicial participation in the the procedure to
prohibit a film.
The Court established that a State may in fact require prior submission of a film to a board of censors, but
may only do so under procedural safeguards designed to obviate the dangers of a censorship system. The
Court established three guidelines as adequate safeguards to protect against the "undue inhibition of
protected expression." The Court held that a censorship statute is constitutional only if:
o First, any prior restraint to judicial review can be imposed only briefly in order to preserve the status
quo;
o Second, to continue to restrict the exhibition of the picture, the censor must bear the burden of
instituting judicial proceedings and proving that the material is obscene; and,
o Finally, a prompt judicial determination of obscenity or non-obscenity by the court must be assured.
Therefore, while the State may require advance submission of all films, the requirement must be
administered in accordance with these three criteria.
This case reveals the Courts willingness to uphold modified censorship statutes despite the strong
presumptions against prior restraints.
DOCTRINE(s)/KEY POINT(s):
- Where motion pictures are concerned, a requirement of prior submission to a censorship board is not
necessarily unconstitutional.
- There is a heavy presumption against the constitutional validity of prior restraints of expression.
- A noncriminal process requiring prior submission of a film to a censor avoids constitutional invalidity only
with procedural safeguards designed to eliminate the dangers of censorship:
(a) The censor must have the burden of proving that the film is expression unprotected by the
Constitution.
(b) Any restraint prior to judicial review must be limited to preservation of the status quo and for the
shortest period compatible with sound judicial procedure.
(c) A prompt final judicial determination of obscenity must be assured