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There were some challengers to state film censorship prior to World War II but only in one egregious instance of arbitrary censorship were any of those challenge cases successful. By the late 1940s, the public was coming to demand more realistic, less stylized happy endings and pressure mounted on producers to respond to societal change. Normally in business that is good. But movies were a legal anomaly: censors had been put in charge to make sure that exactly this type of change did not occur. Thus we have the scene set for a clash that will play out in America’s courts—audiences who want greater realism, movie producers who want to meet that demand, censors who have been legally empowered to keep a lid on threats to the status quo—and it will be up to the courts to determine who wins.
Although the judiciary leaned decidedly in favor of the censors in the pre-war years, change was coming in the legal culture, tilting gradually in favor of the free speech rights of individuals and against the police power of the states to infringe such rights in the name of the common good. Movie censorship was exactly that type of law. The Court had been held back from protecting speech by the wording of the First Amendment: “Congress shall make no law…abridging the freedom of speech…” If states wished to abridge freedom of speech, the legal culture held that the Constitution offered no remedy. But there was a powerful weapon at the Supreme Court’s disposal that had lain mostly dormant since its ratification, and that was the Fourteenth Amendment. Ratified in1868, it was intended to assist the former slaves by protecting them against discriminatory state action. But it also denied to states the ability to infringe any individual’s liberty without due process of law.
By 1925, when it became clear that some states were doing exactly that—seriously infringing speech and press rights in all sorts of ways—the Supreme Court decided that these rights were so basic to“liberty” that they should be included in what the Fourteenth Amendment was meant to protect from state laws. In a process that legal scholars call incorporation, the Court gradually added to the list of fundamental “liberties” that states could no longer infringe: picketing, phonographs, loudspeakers, leafleting, magazines, and radio. This, then, was the beginning of an extraordinarily powerful intersection between the Bill of Rights and the Fourteenth Amendment that would drive much of the rights revolution of the 1950s and 1960s. Those who loathed prior restraint on movies were watching.
The Supreme Court had not heard a movie censorship case since the 1915 Mutual decision, and that had come a full ten years before the Court signaled its directional change toward protection of individual rights. And just as movie culture was expanding to include realistic foreign films and some Hollywood upstarts in the late 1940s, Justice William O. Douglas dropped a big hint in the Paramount decision when he wrote that “we have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.” Since this was a monopoly case and Douglas’s comment was dictum (a statement made that did not directly bear on the issues of the case) the statement carried no real legal weight. It did, however, signal a major shift in jurisprudential attitude.[1]
With this convergence—audience demand for greater realism, expanding First Amendment rights, and distributors who had chafed at the delay and expense of censorship—censors across the nation would find themselves increasingly besieged. Although many censors did adapt somewhat to changing social mores, their liberalization moved too slowly for their critics—the independent producers and distributors, film critics, movie lovers, and free speech advocates. And in their defense, we should note that holding the line was their job. Legal challenges cropped up in many locales, with three cases angling for Supreme Court review. These distributors were gambling that the time was right to overturn the stranglehold of the Mutual precedent. [2]
Although the judiciary leaned decidedly in favor of the censors in the pre-war years, change was coming in the legal culture, tilting gradually in favor of the free speech rights of individuals and against the police power of the states to infringe such rights in the name of the common good. Movie censorship was exactly that type of law. The Court had been held back from protecting speech by the wording of the First Amendment: “Congress shall make no law…abridging the freedom of speech…” If states wished to abridge freedom of speech, the legal culture held that the Constitution offered no remedy. But there was a powerful weapon at the Supreme Court’s disposal that had lain mostly dormant since its ratification, and that was the Fourteenth Amendment. Ratified in1868, it was intended to assist the former slaves by protecting them against discriminatory state action. But it also denied to states the ability to infringe any individual’s liberty without due process of law.
By 1925, when it became clear that some states were doing exactly that—seriously infringing speech and press rights in all sorts of ways—the Supreme Court decided that these rights were so basic to“liberty” that they should be included in what the Fourteenth Amendment was meant to protect from state laws. In a process that legal scholars call incorporation, the Court gradually added to the list of fundamental “liberties” that states could no longer infringe: picketing, phonographs, loudspeakers, leafleting, magazines, and radio. This, then, was the beginning of an extraordinarily powerful intersection between the Bill of Rights and the Fourteenth Amendment that would drive much of the rights revolution of the 1950s and 1960s. Those who loathed prior restraint on movies were watching.
The Supreme Court had not heard a movie censorship case since the 1915 Mutual decision, and that had come a full ten years before the Court signaled its directional change toward protection of individual rights. And just as movie culture was expanding to include realistic foreign films and some Hollywood upstarts in the late 1940s, Justice William O. Douglas dropped a big hint in the Paramount decision when he wrote that “we have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.” Since this was a monopoly case and Douglas’s comment was dictum (a statement made that did not directly bear on the issues of the case) the statement carried no real legal weight. It did, however, signal a major shift in jurisprudential attitude.[1]
With this convergence—audience demand for greater realism, expanding First Amendment rights, and distributors who had chafed at the delay and expense of censorship—censors across the nation would find themselves increasingly besieged. Although many censors did adapt somewhat to changing social mores, their liberalization moved too slowly for their critics—the independent producers and distributors, film critics, movie lovers, and free speech advocates. And in their defense, we should note that holding the line was their job. Legal challenges cropped up in many locales, with three cases angling for Supreme Court review. These distributors were gambling that the time was right to overturn the stranglehold of the Mutual precedent. [2]
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One of the cases came from the distributor of a movie called Lost Boundaries. The movie told the story of a black family passing as white in a New Hampshire town.[3] This was too much for the censors of Atlanta, and the ACLU saw this is movie a possible vehicle to the Supreme Court. A second case came from Marshall, Texas whose censors had objected to another race-themed film called Pinky.
The Supreme Court declined to hear the case brought by the producers of Lost Boundaries and the Pinky case got bogged down in the Texas courts. But in New York City, a new movie controversy was percolating--one that would shift the tenor of censorship permanently. [1] United States v. Paramount Pictures, 334 U.S. 131 (1948). [2] Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915). [3]RD-DR Corp. vs. Smith, 183 F.2d 562 (1950) [4] Gelling v. Texas 343 U.S. 960 (1952). |