The United States is one of the only industrialized nations to never censor motion pictures on the national level, though this is not for lack of trying (Randall, 1968). The history of film censorship in the United States follows the story of an industry desperately trying to keep up with a series of state and local censorship boards’ preferences concerning what is acceptable in their jurisdiction (DeGrazia & Newman, 1982; Leff & Simmons, 1990; Randall, 1968). On numerous occasions the industry turned to organized self-regulation to try to fend off potential federal regulation of motion pictures. The history of organized self-regulation is bookended by two significant Supreme Court cases concerning the relationship between movies and the First Amendment. The first case, Mutual v. Ohio, 236 U.S. 230 (1915), effectively stripped the movies of any protection under the law, while the second case, Burstyn v. Wilson, 343 U.S. 495 (1952), completely reversed the first, providing complete First Amendment rights to motion pictures, marking the beginning of the end for motion picture censorship (Jowett, 1996). Not only did the cases set two completely different standards for motion pictures, they are the only two Supreme Court cases involving the content of movies heard during the 37 year time span (Cook, D. A., 1990; Pember, 1999; Randall, 1968). The significance of these cases move beyond their impact on the motion picture industry because motion pictures, as the first electronic mass medium, set the standard for the other mass media that followed (Nyberg, 1998; Saunders, 1994; Schumach, 1964). An understanding of the environment surrounding the self-regulation of motion pictures in this era must include a thorough understanding of these cases.
Motion Picture Censorship before Mutual
The first recorded protest against a motion picture happened in 1895 at a kinetoscope parlor on the boardwalk in Atlantic City, New Jersey. Just two weeks after Edison’s new machine was introduced, the owners pulled a short film, Dolorita in the Passion Dance, to avoid interference with the local authorities (Blanchard, 1992; Miller, F., 1994; Randall, 1968). In 1897 New York City officials filed an official complaint against Orange Blossoms, a short film that showed a bride getting ready for her wedding. The film showed the woman taking off her clothes and showing a little skin (Blanchard, 1992). The film was closed by a court order with the judge denouncing the show as “an outrage on public decency” (People v. Doris, 14 App. Div. 117, aff’d, 43 N.Y.S. 571 (1st Dep’t 1897); see also Randall, 1968). This combination of official censorship and unofficial public pressure continued through the turn of the century.
It was not until 1907 that the first local movie censorship ordinance was passed in Chicago (Blanchard, 1992; Miller, F., 1994; Randall, 1968). But the first line of defense for municipalities against motion pictures came in the form of laws on the books for several decades. Theater licensing laws, in place since the middle of the previous century in most large cities, provided officials and protestors the legal foundation to challenge the showing of “indecent” films. The first comprehensive licensing law, passed in New York in 1839, required any place exhibiting “theatrical or equestrian performances” to obtain a license from the Mayor’s office (Czitrom, 1996, p. 17). Every violation was punishable by a fine of five hundred dollars. Licensing statutes were successfully used in large municipalities to regulate the content of theatrical performances and, later, movies. Anthony Comstock and his supporters actively challenged the renewal of licenses of establishments they found to be encouraging indecent behavior. Many continued to use theatrical licensing laws to regulate motion picture houses until the early 1910s, when more detailed laws became necessary to deal with the newly organized motion picture industry (Czitrom, 1996).
The 1907 Chicago censorship ordinance made it illegal to use any public facility to show any kind of motion picture in a penny arcade or any other place with a motion picture device, “without first having secured a permit thereof from the chief of police who must either grant or deny the permit within three days after such inspection” (Block v. Chicago, 87 N.E. 1011 (Ill. 1909). In 1908 a permit to show The James Boys in Missouri and Night Riders was denied by the Chicago chief of police. This action was challenged in court by Jake Block and two hundred other proprietors of “five and ten-cent theaters,” claiming that the law was unreasonable and oppressive and denied him of his rights under the Constitution (Miller, F., 1994). The district court judge dismissed Block’s claims and the Illinois Supreme Court affirmed that decision (87 N.E. 1011). Chief Justice Cartwright explained in the court’s opinion, “The purpose of the ordinance is to secure decency and morality in the moving picture business” (87 N.E. at 1013). One of the compelling reasons behind the support of this ordinance was:
The audiences include those classes whose age, education and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations. The welfare of society demands that every effort of municipal authorities to afford such protection shall be sustained, unless it is clear that some constitutional right is interfered with. (87 N.E. at 1013)
The fact that the ordinance did not define “obscene” or “immoral” did not seem to bother the court. The court stated, “the average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him” (87 N.E. at 1015). This case provided strong legal support for motion picture licensing acts, and many other cities followed suit in the years to follow. In 1911 Pennsylvania passed the first state licensing program, followed by Ohio and Kansas in 1913 and Maryland in 1916 (Blanchard, 1992; Liston, 1973; Randall, 1968).
In 1909, the same year of the Block decision, the motion picture producers in New York teamed with the People’s Institute to form the first self-regulatory agency, The National Board of Censorship (later the National Board of Review, still in existence today), to review and evaluate films before their release (Blanchard, 1992, Miller, F., 1994, Randall, 1968; Schumach, 1964). According to Richard Randall (1968), “Its creation was in direct response to threats of New York officials to close down movie houses in the city” (p. 12). The threat was real, as New York mayor George B. McClellan had already closed all movie theaters on Christmas Eve of 1908 for “safety reasons.” McClellan had later threatened to revoke the licenses of any proprietor exhibiting movies “which tend to degrade or injure the morals of the community” (DeGrazia & Newman, 1982, p. 10).
The National Board of Censorship served as a buffer between the movie producers and the city officials. The board was comprised of representatives from the City Vigilance League, the Children’s Aid Society and the Neighborhood Worker’s Association (DeGrazia & Newman, 1982). The board issued a set of standards used in evaluating films, which included prohibitions against obscenity, vulgarity, libel, and elaborate depictions of violence (Blanchard, 1992). But the primarily liberal board was more concerned with promoting and circulating films than reforming the motion picture industry (Randall, 1968). For several years the National Board of Censorship, who changed their name to the National Board of Review to disassociate themselves with “censorship,” helped fend off government regulation in New York, but other states actively disagreed with Board assessments of films and cut or banned them in their states (Miller, F., 1994). Then in 1914 a motion picture was released that was so offensive to so many that it would eventually lead to the Supreme Court determining that movies were not protected by the Constitution.
Blanchard, M. A. (1992). The American urge to censor: Freedom of expression versus the desire to sanitize society—from Anthony Comstock to 2 Live Crew. William and Mary Law Review, 33, 741.
Block v. Chicago, 239 Ill. 251; 87 N.E. 1011 (Ill. 1909).
Burstyn v. McCaffrey, 101 N.Y.S.2d 892 (Sup. Ct. 1951).
Burstyn v. Wilson, 104 N.Y.S. 2d 740 (1951), 101 N.E.2d 665 (N.Y. App. 1951), rev’d, 343 U.S. 495 (1952).
Cook, D. A. (1990). A history of narrative film (2nd ed.). New York: W. W. Norton & Company.
Czitrom, D. (1996). The politics of performance: Theater licensing and the origins of movie censorship in New York. In F. G. Couvares (Ed.), Movie censorship and American culture (pp. 16–42). Washington, DC: Smithsonian Institution Press.
DeGrazia, E., & Newman, R. K. (1982). Banned films: Movies, censorship and the First Amendment. New York: R. R. Bowker.
Jowett, G. S. (1996). “A significant medium for the communicating of ideas”: The Miracle decision and the decline of motion picture censorship, 1952–1968. In F. G. Couvares (Ed.), Movie censorship and American culture (pp. 258–276). Washington, DC: Smithsonian Institution Press.
Leff, L. J., & Simmons, J. L. (1990). The dame in the kimono: Hollywood, censorship, and the production code from the 1920s to the 1960s. New York: Grove Weidenfeld.
Liston, R. A. (1973). The right to know: Censorship on America. New York: Franklin Watts, Inc.
Miller, F. (1994). Censored Hollywood: Sex, sin & violence on screen. Atlanta, GA: Turner Publishing.
Mutual Film Corporation v. Industrial Commission of Ohio, 215 F. 138 (N.D.Ohio 1914), aff’d, 236 U.S. 230; 35 S. Ct. 387 (1915).
Nyberg, A. K. (1998). Seal of approval: The history of the comics code. Jackson: University of Mississippi Press.
Pember, D. R. (1999). Mass media law. Boston: McGraw–Hill College.
People v. Doris, 14 App. Div. 117, aff’d, 43 N.Y.S. 571 (1st Dep’t 1897).
Randall, R. S. (1968). Censorship of the movies: The social and political control of a mass medium. Madison: University of Wisconsin Press.
Saunders, K. W. (1994). Media self-regulation of depictions of violence: A last opportunity. Oklahoma Law Review, 47, 445.
Schumach, M. (1964). The face on the cutting room floor: The story of movie and television censorship. New York: William Morrow.