1952-54: The Superior Films case: La Ronde and M
Even before the Justices could finish The Miracle case (Burstyn v. Wilson), two new cases were on the way, one through the New York courts and the other from Ohio. Just one year after the 1952 Burstyn decision, the Court readily agreed to hear both. By accepting what were to become the third and fourth movie censorship cases, the Court again raised the hopes of the anti-censorites. Surely, they reasoned, if the Justices were willing to take two more cases so soon after Burstyn, they must be ready to rule decisively and would soon clarify the legal environment of film.
The ACLU had taken the Ohio case (the film M which had been banned as "harmful") as an opportunity to open a new line of argument: this time they would question the indirect effects of censorship. “For each picture rejected,” the ACLU asked, “how many more were not submitted through fear of adverse decision?” This circumstance, the Union argued, could “effectively stifle all discussion of political, social, or philosophic significance,” reducing motion pictures to “intellectual pabulum.” Here they might also have been speaking about the Hollywood movie industry whose Production Code Administration had so successfully stifled significant themes for decades. (Indeed, the ACLU had been pestering the MPAA to scrap or at least modernize the Code since 1948.)
The case coming from New York over the French film La Ronde also presented the Justices with something new to consider. While anti-censorites had long argued that the opinion of film critics should be considered in censorship battles, judges had ignored that contention. In the New York case over La Ronde, which had been banned as “immoral,” the Justices found both sides arguing in favor of critical opinion. Usually it was the challenger who argued that film criticism should be considered in censorship decisions, but in La Ronde, both the distributor and the state relied on film reviews as evidence in their briefs. The state just could not resist several reviews which had discussed La Ronde’s “naughtee” nature. As it turned out, however, the state should have abstained from this new and dangerous line of reasoning for it opened the door to the idea that movies were indeed artistic, that they had important messages, and that artistic merit should be a consideration in any censoring.
Florence Shientag, attorney for the distributors of La Ronde, introduced another new argument: why was it constitutional to exercise prior restraint over movies shown in theaters but not those shown on television? Whether this seemingly persuasive argument or the state’s argument about critical interpretation impressed the Justices will never be known because just eleven days after oral arguments in January 1954, the Court issued a frustratingly unclear per curiam opinion, citing only Burstyn as precedent. Those anti-censorites' hopes for further clarification from the Court were dashed. There was little more legal traction on film freedom versus film control after the post-Burstyn decisions. The anti-censorites were disappointed and the censors could only have been confused. The only thing that was clear was that New York could no longer censor on the ambiguous ground of immorality and Ohio could no longer censor under the even-more indefinite ground of harmfulness.
Florence Shientag, attorney in the La Ronde case from New York State
Shown here in a photograph taken about the time of the La Ronde case (1954), attorney Florence Perlow Shientag represented the Hakim Brothers of Commercial Pictures. The Hakims had imported La Ronde but ran afoul of the New York censors. They hired a lone attorney, Shientag, to argue the case before the New York State courts and eventually the U.S. Supreme Court. Representing the censorship case alone, Shientag was able to convince the justices to overturn the ban on the film and to declare that censoring for "immorality" was far too vague to pass constitutional muster.