Freedom of the Screen

Legal Challenges to State Film Censorship, 1915-1981

Laura Wittern-Keller

• Publisher: The University Press of Kentucky
• Year: 2008
• Print ISBN: 9780813124513
• eBook ISBN: 9780813138404
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

At the turn of the twentieth century, the proliferation of movies attracted not only the attention of audiences across America but also the apprehensive eyes of government officials and special interest groups concerned about the messages disseminated by the silver screen. Between 1907 and 1926, seven states—New York, Pennsylvania, Ohio, Virginia, Kansas, Maryland, and Massachusetts—and more than one hundred cities authorized censors to suppress all images and messages considered inappropriate for American audiences. Movie studios, hoping to avoid problems with state censors, worrying that censorship might be extended to the federal level, and facing increased pressure from religious groups, also jumped into the censoring business, restraining content through the adoption of the self-censoring Production Code, also known as the Hays code.But some industry outsiders, independent distributors who believed that movies deserved the free speech protections of the First Amendment, brought legal challenges to censorship at the state and local levels. Freedom of the Screen chronicles both the evolution of judicial attitudes toward film restriction and the plight of the individuals who fought for the right to deliver provocative and relevant movies to American audiences. The path to cinematic freedom was marked with both achievements and roadblocks, from the establishment of the Production Code Administration, which effectively eradicated political films after 1934, to the landmark cases over films such as The Miracle (1948), La ronde (1950), and Lady Chatterley's Lover (1955) that paved the way for increased freedom of expression. As the fight against censorship progressed case by case through state courts and the U.S. Supreme Court, legal authorities and the public responded, growing increasingly sympathetic toward artistic freedom. Because a small, unorganized group of independent film distributors and exhibitors in mid-twentieth-century America fought back against what they believed was the unconstitutional prior restraint of motion pictures, film after 1965 was able to follow a new path, maturing into an artistic medium for the communication of ideas, however controversial. Government censors would no longer control the content of America's movie screens. Laura Wittern-Keller's use of previously unexplored archival material and interviews with key figures earned her the researcher of the year award from the New York State Board of Regents and the New York State Archives Partnership Trust. Her exhaustive work is the first to discuss more than five decades of film censorship battles that rose from state and local courtrooms to become issues of national debate and significance. A compendium of judicial action in the film industry, Freedom of the Screen is a tribute to those who fought for the constitutional right of free expression and paved the way for the variety of films that appear in cinemas today.

1

The Origins of Governmental
Film Censorship, 1907–1923

With the advent of moving pictures at the turn of the century, Americans experienced a totally new phenomenon. For the first time, new and sometimes unwelcome ideas could be transmitted quickly and easily to anyone, regardless of education, age, or economic status, and without the usual communal filters imposed by family, church, and civic groups. The burgeoning film industry threatened traditional values of modesty, propriety, and lawfulness, and it did so in a most public fashion.¹ It particularly attacked the Victorian boundary between public and private behavior, once quite well defined but gradually melting at the turn of the century. Many social critics railed against what they saw as a retreat of decency, sounding alarm bells over the insertion of private matters into public discourse. A “party of reticence,” as they have been sympathetically dubbed by Rochelle Gurstein, had been worrying over popular novels, intrusive journalistic techniques, and sex education for decades. They believed that the advancing trend toward openness, pushed by a “party of exposure,” was debasing public life and making normal, healthy, intimate relationships impossible.² In 1865, Congress had entered the discussion of private and public when it enacted the first national antismut law, which authorized the U.S. postmaster to intercept obscene photographs. Eight years later, Congress appointed antivice crusader Anthony Comstock as a special agent of the postal service and charged him with intercepting “obscene, lewd, or lascivious” books, postcards, pamphlets, and pictures, a job he spiritedly pursued for forty years, until his death in 1915.³ The reticent had been battling invasive journalistic practices, realistic novels, and unauthorized advertising practices for decades when, in 1900, they got a new target: movies.

Movies were an entirely new medium—far more graphic, more widespread, and more rapid in delivering realistic, riveting instruction in the ways of romance, seduction, and crime. Moralists worried about movie content they considered to be “social sewage”—films about straying spouses, wild “dancing daughters,” gun-crazed gangsters, hard-drinking youths, and seductive foreigners.⁴

The arrival of movies provided all the necessary ingredients for a “moral panic”⁵—a level of public concern disproportionately high considering the potential harm—and a full-blown conflict over moral values. As James Morone has shown, the reticent typically demand governmental action to control a medium if they perceive in it a dangerous other who lazes about, drinks or takes drugs, or acts violently or sexually uninhibitedly.⁶ Movies and their makers easily fit the category of other. The movie men were responsible for encouraging large numbers of people to drop productive activities in favor of sitting idly in movie theaters. The characters in their movies often drank or took drugs. They could be violent. And many were seducing or being seduced by someone. So it was a natural reaction for moral guardians to demand policy changes both to control the dangerous other and to protect the virtuous, which in the case of movies was verbalized as “the children.”

The moralists’ response to motion pictures had as much to do with the rapid changes of society as it did with the content of the films themselves. Industrialization and urbanization of the mid-nineteenth century took farm sons and daughters away from home to the wicked city and led to panic over issues like masturbation, prostitution, and a male “sporting culture.”⁷ Several decades later, the “flickers” became the damnable vehicles that hastened what was already perceived as a moral breakdown by bringing dangerous ideas to millions of society’s most impressionable—uneducated workers, unassimilated immigrants, and unchaperoned, impressionable youths.

That moral guardians (a neutral term in this study) turned to censorship of this new, supposedly threatening medium should not be surprising, nor was it so to people at the time. Americans had long accepted the idea of censorship for the theater, starting in the colonial era and continuing through the nineteenth and early twentieth centuries. While English law, upon which much of American law was based, condemned prior restraint on the press, it had no problem with such restraint on theatrical productions.⁸ Prior restraint on a new medium, then, especially one that was similar to staged productions, was not likely to be considered either unconstitutional or un-American in the Progressive Era.

Pressure Groups Push for Censorship

The moral panic that greeted movies was more than a knee-jerk reaction to a new medium, or a reaction to a new, dangerous other, or the next logical step in efforts to contain smut: this backlash also had religious roots—specifically Protestant. Protestants saw their values (thrift, hard work, individual achievement) threatened by the massive cultural and social changes of the early twentieth century. Biergartens, vaudeville, amusement parks, and dance halls had all caused the Protestant establishment great concern, but it was movies that seemed the epitome of what was wrong with the changing culture.⁹ Long dominant in American life but declining in cultural authority at the turn of the century, Protestants saw in movies a manifestation of the very social and political changes that they found so threatening.¹⁰ Movies bypassed the normal communal filters—parents, pastors, teachers—so Protestant progressives wanted a substitute filter that could weed out the bad movies and send forth the good ones with a recognizable label of purity.

The intensity of the Protestant reaction only grew as the new medium became popular among middle-class audiences and as movie theaters cropped up seemingly on every street corner. More people were going to movie theaters each week than to church.¹¹ And when it became clear that most of the new film companies were Jewish owned, Protestant progressives found another reason to question the movies’ morality. It was no longer merely what was in the movies and who was watching, but also who was creating them and with what motivation. Paul Starr attributes much of the negative reaction against filmmakers in this early period to a religious dichotomy: Christian reformers demanding control of Jewish filmmakers.¹²

Moral guardians had two powerful justifications that they used in their campaign to control the movie industry: the effect of movies on the innocent (children and the uneducated) and the growing societal concern about juvenile delinquency. These trepidations formed a mighty foundation on which the procensorites built their case for film control. To use historian Frances Couvares’s term, reformers spotlighted the “vulnerable viewer.” It worked. As Andrea Friedman has shown, wherever progressive reformers could persuade legislators that vulnerable viewers were being harmed, they succeeded in getting legislative protection. Vulnerable viewers could certainly be found in the cheap movie theaters of every neighborhood.¹³ In New York, by 1910, fully one-quarter of the city attended at least one movie each week. Forty thousand children went to the movies daily, and many working-class mothers were using movie theaters as babysitters.¹⁴

What kinds of movies were these children and illiterates watching? According to Sharon Ullman, early film content represented “an important shift in cultural imagination,” commodifying female bodies by displaying women disrobing, or initiating romantic contact, or engaging in sexually suggestive exercise.¹⁵ Titles like His Naughty Thought (1917), His One Night Stand (1917), and Her Purchase Price (1919) helped sell tickets. Films and their advertising were frank in matters of sex compared to cultural norms. For progressives, the potential of such films to cause moral disorder made an afternoon in a darkened theater no different from other societal menaces like sausage or patent medicine. All needed regulation for the public good.

These progressives were earnest reformers working to cure the societal ills that came in the late nineteenth and early twentieth centuries from the triple blow of overwhelming immigration, explosive urbanization, and unrestrained industrialization. While progressives varied so widely in their beliefs that defining their philosophy is impossible, most of them would have agreed that the worship of individual property rights condoned by the U.S. courts of the nineteenth century led to most of America’s social problems—worker abuse, impure food, substandard housing, moral decay. In the progressive mind, it was the excessive individualism of industrial capitalism that caused societal problems. According to civil liberties historian David Rabban, “Progressives believed the promise of American democracy could only be realized by replacing an outmoded attachment to individualism with a commitment to an activist state.”¹⁶ Protection of the individual’s right to make money had caused the great urban woes, progressives argued, so Americans needed to focus on the greater good, sacrificing the rights of the individual if necessary to achieve a just result for the majority.

Pushing for movie regulation, pressure groups used the same language that was used in the campaigns to regulate child labor and housing conditions. The Society for the Prevention of Crime called for the “moral equivalent of a state board of health to protect us from the moral pestilence which lurks in the attractive, seductive motion-picture.”¹⁷ The magnetic quality of movies also worried many women’s reform groups. Since activist women were often concerned with the socialization (or Americanization) of poor urban children, the content of movies shown in urban neighborhoods quickly became a major anxiety.

Yet even though these activist women agreed on the need to control film content, they split over who would make the better referee—dedicated, enlightened volunteers (like them) or governmental agencies. The two largest women’s organizations exemplified this schism. The Woman’s Christian Temperance Union (WCTU) pushed for governmental regulation—preferably federal—of movies.¹⁸ The General Federation of Women’s Clubs, a national umbrella organization of women’s self-improvement and civic clubs, was less certain about governmental censorship. Before 1918, the federation’s clubs were so divided on the issue that the group could take no national stand. At their 1918 meeting, a close vote pushed the federation to endorse a drive for federal censorship. But because the decision was so contentious and the group was so far from unanimity, its newly adopted procensorship stance was weak. Like many other groups that worried over movies, the General Federation of Women’s Clubs agreed there was a problem but disagreed on the solution. Just four years later, it withdrew its call for federal censorship.¹⁹

Another group that was vocally critical of movies’ influence was the education community. Like the women’s groups, educators saw themselves as guardians of American morality who suddenly were competing with the visual stimulus of the movies. And like the women’s groups, teachers’ organizations began pleading for some sort of censorship by 1918. Yet they mounted no organized lobbying effort for censorship. Thus the clout of another large group was nullified because it could not decide whether movie control belonged with a governmental agency, a voluntary agency, or parents.²⁰

Those moral guardians who did favor governmental censorship set to work and began lobbying for censorship laws, achieving some success at both the state and local levels. The political atmosphere of the Progressive Era—which reflected a growing belief that government could and should work for the betterment of society—and the new modernist philosophy of scientific management in government combined to provide a good fit between organized procensorship reformers and the legislators they lobbied. Moral reformers of all sorts agreed that movies needed to be cleansed for the moral health of the nation, but the mostly Protestant groups pushing for governmental censorship wanted that cleansing carried out by experts within administrative agencies. Seven states answered the call.

Censorship Begins and the Moguls Respond

The City of Chicago enacted the first moving picture ordinance in the United States in 1907. Chicago vested control of its movie screens in its police commissioner, who in turn was empowered to hire such censors as he saw fit. This first censorship victory, in a major city filled with immigrants, encouraged the procensorites and flustered the movie industry. The Chicago market represented millions of dollars of potential revenue, and this ordinance could snowball into other cities. So the beleaguered industry set out to cleanse its image. The public’s faith in governmentally sanctioned expert control, however, meant that any halfhearted effort to elevate movie content by the industry itself would satisfy no one for very long.

While some purity groups busied themselves lobbying for governmental motion picture control, the movie industry considered its options. It might have responded with one outraged voice, but those in the movie trade were rarely in agreement when it came to censorship. This discord was in part due to the fractured nature of the industry. People now refer to the industry as Hollywood, a term that implies a monolith. But the movie industry has never been anything of the sort; it actually comprises three separate yet interrelated parts: producers, distributors, and exhibitors. Since exhibitors were on the front lines in the neighborhoods, they often welcomed censorship because sanitized content defanged any local protests. Those who made and distributed films also realized that governmental regulation could bestow an unassailable mark of purity and thwart further criticism, but they feared the absolute control of a federal censorship agency. And they feared the prospect of a chaotic city-by-city censorship, in which local boards in the enormously profitable urban markets would each impose differing requirements. For an industry that relied on the creation of a single product for national distribution, that would be disastrous. Whatever their individual reactions, by 1907, with the establishment of the Chicago censor board, the moviemakers realized that more censors would soon appear.

The next scene in the censorship struggle was the immensely significa...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Preface and Acknowledgments
• Introduction
• 1. The Origins of Governmental Film Censorship, 1907–1923
• 2. The Courts Provide No Relief, 1909–1927
• 3. Hollywood and the Legion of Decency, 1922–1934
• 4. Early Challenges to State Censors, 1927–1940
• 5. The First Amendment Resurfaces, 1946–1950
• 6. The Strange Case of The Miracle, 1950–1952
• 7. La Ronde, 1951–1954
• 8. The Tide Turns against the Censors, 1953–1957
• 9. The Seventh Case in Seven Years, 1957–1959
• 10. The Curtain Coming Down, 1957–1964
• 11. Fight for Freedom of the Screen, 1962–1965
• 12. Denouement, 1965–1981
• Conclusion
• Notes
• Selected Bibliography
• Index