No. 69


380 U.S. 51

Argued November 19, 1964

Decided March 1, 1965

MR. JUSTICE BRENNAN delivered the opinion of the Court.

“First, once the censor disapproves the film, the exhibitor must assume [60] the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination. We hold, therefore, that appellant’s conviction must be reversed. The Maryland scheme fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the § 2 requirement of prior submission of films to the Board an invalid previous restraint.

But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U.S. 436, we upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing.

Justice Black tags onto the end with this comment.

“For the reasons there stated, I do not believe any form of censorship–no matter how speedy or prolonged it may be–is permissible. As I see it, a pictorial presentation occupies as preferred a position as any other form of expression. If censors are banned from the publishing business, from the pulpit, from the public platform–as they are–they should be banned from the theatre.”

To that we add… the Internet.

Censoring anything (the Internet) before having a hearing in which the person being censored is present and has been given the opportunity to argue his case before the court into why his first Amendment right should not be suppressed, …. hereby violates the First Amendment of the Constitution and is therefore unconstitutional.

SOPA effectively allows the state to remove a person’s right to free speech, without his side being aired at a hearing.