B2022 ANNOTATED
FREEDMAN V MARYLAND
I. Recit-ready summary
Appellant Freedman seeks to challenge the constitutionality of the
Maryland Statute which requires the State of Board Censor’s approval of any motion
picture before it is publicly screened.
Freedman exhibited the film “Revenge at Daybreak” at his Baltimore Theatre
without first submitting it for review by the Board. Because of this, he was held
liable under the Maryland Statute. Freedman’s main argument is that the Maryland
Statute “is an invalid prior restraint because it presents a danger of unduly
suppressing protected expression. He focuses particularly on the procedure for an
initial decision by the Board, which, without any judicial participation, effectively
bars exhibition of any disapproved film unless and until the exhibitor undertakes a
time-consuming appeal to the Maryland courts and succeeds in having the Board’s
decision.” CA upheld the conviction and the constitutionality of the the Statute. The
main issue of the case is whether or not the Maryland Motion Picture Censorship
Statute is valid. SC held that it was not.
SC reversed the CA ruling and held that “a non-criminal process which
requires the prior submission of a film to a censor avoid constitutional infirmity only
if it takes place under procedural safeguards designed to obviate (avoid) the dangers
of a censorship system.” These procedural safeguards are as follows:
1. The burden of proving that the film is unprotected expression must rest on
the censor.
2. The requirement cannot be administered in a manner which would lend an
effect of finality to the censor’s determination whether a film constitutes
protected expression. This is because only a procedure requiring a judicial
determination suffices to impose a valid final restraint.
3. The procedure must also assure a prompt final judicial decision, to
minimize the deterrent effect of an interim and possible erroneous denial
of a license.
Applying this to the case, SC held that Maryland’s procedural scheme doesn’t
satisfy the two requirements. Thus, the scheme is invalid.
II. Facts of the case
● Appellant Freedman sought to challenge the constitutionality of the
Maryland motion picture censorship statute which states that (*see notes
for the verbatim.) The statute prohibits a person to sell, lease, lend, exhibit
or use any motion picture film or view in Maryland unless it has already
G.R. NO: 69
ARTICLE 3, Sec. 4; TOPIC OF CASE: Prior Restraint, Judicial Determination
380 US 1964
FREEDMAN V MARYLAND
been submitted for the approval and license of the Maryland State Board
of Censors (Board).
● Even if the State concedes that the film passed the required standards to
receive a license, appellant was still held liable since he exhibited the film
“Revenge at Daybreak” at his Baltimore Theatre without first submitting it
to the Board for review.
● The CA of Maryland affirmed the conviction against appellant and upheld
the requirement of submitting the film in advance and its review. They
claimed, based on the authority of the decision in Times Film Corp. v City
of Chicago, that “the Maryland censorship law must be held to be not void
on its face as violative of freedoms protected against State action by the
First and Fourteenth Amendments.”
● However, SC reversed CA’s decision. They held that CA’s reliance on
Times is misplaced since the only question tendered on that case was
“whether a prior restraint was necessarily unconstitutional under all
circumstances.” The exhibitor in that case argues that the requirement of
submitting the film without anything else is a constitutionally prohibited
prior restraint. This argument was interpreted by the Court to mean that
the “constitutional protection includes complete and absolute freedom to
exhibit, at least once, any and every kind of motion picture…even if the
film contains the basest type of pornography, or incitement to riot, or
forceful overthrow of orderly government.”
o However, the Court provided the principle against prior
restraints that are too broad; that the protection even as to
previous restraint is not absolutely unlimited. It is therefore
inaccurate to say that the Times Film upheld the specific features
of the Chicago censorship ordinance.
● SC highlights that unlike the petitioner in Times Film, appellant herein
doesn’t argue that Sec. 2 is unconstitutional because it may prevent even
the first showing of a film whose exhibition may legitimately be the
subject of an obscenity prosecution. He argues instead that Sec. 2 is an
invalid prior restraint because it presents a danger of unduly
suppressing protected expression. He focuses particularly on the
procedure for an initial decision by the Borad, which, without any
judicial participation, effectively bars exhibition of any disapproved
film unless and until the exhibitor undertakes a time-consuming appeal to
PONENTE: Justice Brennan
DIGEST MAKER: Alec Parafina
 B2022 ANNOTATED
FREEDMAN V MARYLAND
the Maryland courts and succeeds in having the Board’s decision, (as
provided in sec. 17).
o Under the statute, the exhibitor is required to submit the film to
the Board for examination, but no time limit is imposed for the
completion of Board action. If the film is disapproved, or any
elimination ordered, § 19 provides that although the person will
be notified immediately of the decision and there is a right to
appeal, the appeal is subject to the time and manner provided for
taking appeal to the CA. *please check notes for the verbatim
version. *
o The problem with this, according to the petition is that there
is no statutory provision for judicial participation in the
procedure which bars a film, nor even assurance of prompt
judicial review.
● Because of the difference between the contentions of the petitioners in
Times and in this case, SC held that CA erred in claiming that appellant
has restricted himself to an attack on that section (sec. 2) alone, and lacks
standing to challenge the other provisions (sec. 17 and 19). This is because
appellant challenged a concrete statutory context. His main
contention is that Sec. 2 is an invalid prior restraint because the
structure of the other provisions of the statute contributes to the
infirmity of Sec. 2. He doesn’t assert that the other provisions are
independently invalid.
o In the area of freedom of expression, it is well established that
one has standing to challenge a statute on the ground that it
delegates overly broad licensing discretion to an administrative
office, whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied for a
license.
III. Issue/s
WON the Maryland Motion Picture Censorship Statute is valid. NO.
IV. Ratio/Legal Basis
SC held that the Maryland Scheme is invalid since it fails to provide adequate
safeguards against undue inhibition of protected expression, and this renders the
Sec. 2 requirement of prior submission of fils to the Board as an invalid previous
restraint.
G.R. NO: 69
ARTICLE 3, Sec. 4; TOPIC OF CASE: Prior Restraint, Judicial Determination
380 US 1964
FREEDMAN V MARYLAND
First of all, SC held that “any system of prior restraint of expression comes to this
Court bearing a heavy presumption against its constitutional validity.” The State is
onot free to adopt whatever procedure it pleases for dealing with obscenity…without
regard to the possible consequences for constitutionally protected speech, which the
films are part of.
Essentially, a censorship system always presents a danger to constitutionally
protected speech. Why? Because the censor’s business is to censor, they may well
be less responsive than a court to the protected interest of free expression. Moreover,
there is also the possibility that the censorship’s determination will be final when
seeking for judicial review is made to be unduly onerous.
Therefore, SC holds that “a non-criminal process which requires the prior
submission of a film to a censor avoid constitutional infirmity only if it takes place
under procedural safeguards designed to obviate (avoid) the dangers of a censorship
system.” These procedural safeguards are as follows:
1. The burden of proving that the film is unprotected expression must rest on
the censor. (Doctrine: “Where the transcendent value of speech is
involved, due process certain requires that the State bear the burden of
persuasion to show that the appellants engaged in criminal speech.”)
2. While the state may require advance submission of all films, in order to
proceed effectively to bar all showings of unprotected films, the
requirement cannot be administered in manner which would lend an effect
of finality to the censor’s determination whether a film constitutes
protected expression.”
a. Because only a judicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination
suffices to impose a valid final restraint.
Therefore, given these safeguards, the exhibitor will be assured, through statute or
judicial construction, that the censor will, within a specific brief period, either issue
a license or go to court to restrain the showing of the film. The procedure must also
assure a prompt final judicial decision, to minimize the deterrent effect of an interim
and possible erroneous denial of a license.
Applying this to the case, SC held that Maryland’s procedural scheme doesn’t
satisfy the two requirements and the scheme is invalid since:
1. Once the censor disapproves the film, the burden of instituting judicial
proceedings and of persuading the courts that the film is protected
expression rests on the exhibitor (when it should be the burden of the
censor)
PONENTE: Justice Brennan
DIGEST MAKER: Alec Parafina
 B2022 ANNOTATED 380 US 1964
FREEDMAN V MARYLAND FREEDMAN V MARYLAND

2. Once the Board has acted against a film, exhibition is prohibited pending
judicial review, however lengthy it is.
3. It is abundantly clear that the Maryland statute provides no assurance of
prompt judicial determination.

To end, SC suggests a possible procedural safeguard that is modeled after the New
York injunctive procedure against obscene books.
- The 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.
- The procedure operates without prior submission to a censor

Moreover, since films differ from other forms of expression, SC suggests that
different time limits for judicial determination should be imposed. One possible
scheme would be to allow the exhibitor or distributor to submit his film early
enough to ensure an orderly final disposition of the case before the schedule
exhibition date.

V. Disposition

Conviction of appellant is REVERSED.

VI. Notes

- Md.Ann.Code, 1957, Art. 66A, Sec. 2

o “It shall be unlawful to sell, lease, lend, exhibit, or use any
motion picture film or view in the State of Maryland unless the
said film or view has been submitted by the exchange, owner,
or lessee of the film, or view and duly approved and licensed by
the Maryland State Board of Censors, hereinafter this article
called the “Board.”
- Sec. 19
o “The person submitting such film or view for examination will
receive immediate notice of such elimination or disapproval,
and if appealed from, such film or view will be promptly
reexamined(…)There shall be a further right of appeal from the
decision of the Baltimore City Court to the Court of Appeals of
Maryland, subject generally to the time and manner provided
for taking appeal to the Court of Appeals.

G.R. NO: 69 PONENTE: Justice Brennan

ARTICLE 3, Sec. 4; TOPIC OF CASE: Prior Restraint, Judicial Determination DIGEST MAKER: Alec Parafina