Mutual v. Ohio

Birth of a Nation, produced and directed by D. W. Griffith, was released nationwide in 1914. The film, a racist depiction of the Civil War and the following Reconstruction era, is arguably the most widely censored film ever made (DeGrazia & Newman, 1982). Based on Thomas Dixon’s The Clansman and The Leopards Spots, the film depicts blacks as lazy, power-hungry, and sex-crazed animals and promotes the Ku Klux Klan as the last hope for our nation. In 1915 Birth of a Nation had been banned in Minneapolis, Chicago, Pittsburgh, Boston, Denver, St. Louis, and the state of Ohio. In Minneapolis Mayor W. G. Nye told a theater owner that if he showed the film, he would revoke the theater’s license (DeGrazia & Newman, 1982). The theater owner went to court to prevent the censorship, but was refused, and the Minnesota Supreme Court affirmed the decision (Bainbridge v. City of Minneapolis, 154 N.W. 964 (Minn. 1915). The Chicago, St. Louis, and Pittsburgh decisions were all enjoined, however (154 N.W. at 966 (Minn. 1915). Birth of a Nation and other films were barred in the state of Ohio. The Mutual Film Corporation of Detroit leased films to exhibitors in Ohio and other states, and in 1915 Mutual Film took the state of Ohio to court to enjoin their prior-censorship law (Mutual Film Corporation v. Industrial Commission of Ohio, 215 F. 138 (N.D. Ohio 1914), aff’d, 236 U.S. 230 (1915); see Randall, 1968). Mutual made three arguments to the court:

  1. The statute in question imposes an unlawful burden on interstate commerce.
  2. It violates the freedom of speech and publication guaranteed by section 11, article 1 of the constitution of the State of Ohio.
  3. It attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated. (236 U.S. at 239)

The District Court of Northern Ohio dismissed each of the arguments and denied the request for an injunction (215 F. at 149). Mutual appealed to the U.S. Supreme Court. The Court ruled unanimously against Mutual, affirming the lower court decision (236 U.S. at 247). The significance of the case, however, lies in the decisiveness and finality of the opinion of the Court written by Justice Joseph McKenna (Blanchard, 1992; Randall, 1968).

McKenna completely rejected Mutual’s First Amendment claims. The lower court had simply based their decision on the precedent that state laws cannot be found unconstitutional under the federal Constitution (215 F. at 141). This concept would not be rejected for another ten years (see Gitlow v. New York, 268 U.S. 652 (1925).  McKenna went a step further, rejecting Mutual’s claim that motion pictures deserve First Amendment protection, stating:

Are moving pictures within the principle, as it is contended they are? They, indeed, may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press, made the same agencies of civil liberty. (236 U.S. at 243)

McKenna refused to consider motion pictures as a tool for communication, similar to speech or the press. He further explained:

It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. (236 U.S. at 244)

D. W. Griffith vehemently opposed the Court’s refusal to extend free speech protection to movies. In a tract written in 1915, Griffith contended that movies should have identical protection to the printed press, calling movies, “the pictoral press” (Blanchard, 1992, p. 765). Griffith argued, “It is said the motion picture tells its story more vividly than any other art. In other words, we are to be blamed for efficiency, for completeness. Is this justice? Is this common sense? We do not think so” (Blanchard, 1992, pp. 765, 766).

According to Richard S. Randall in his book, Censorship of the Movies, three lines of reasoning are apparent in McKenna’s efforts to separate motion pictures from other Constitutionally protected media (1968). First, motion pictures were “primarily entertainment rather than vehicles for ideas” (Randall, 1968, p. 19). Though this has been highly criticized and became the focus of its eventual reversal in Burstyn v, Wilson, 343 U.S. 495, this argument reflected the popular thinking of the time when movies were still primarily spectacles displayed in nickelodeons (Jowett, 1996; Randall, 1968). This thinking would change over time, as films came to be seen more as an artistic vehicle for serious messages and less as a novelty (Cook, D. A., 1990). Second, McKenna distinguished movies as “business, pure and simple.” Though this was likely the weakest of his reasons, since newspapers and book publishers too operate as a business to make a profit, it became “the most widely cited of his attempted distinctions in the case” (Randall, 1968, p. 20). Third, McKenna argued that motion pictures were capable of great evil if not controlled. The unique influence of visual images has been the focus of thousands of studies throughout the century and is still the focus of much debate; however, this can be considered the Court’s strongest reason. Randall argues “the entire decision might have rested on this point alone, and would have been stronger if it had” (1968, p. 20). McKenna’s statements reflect a legal understanding that is rooted in the Hicklin Rule and the Comstock Act. McKenna considered material to be obscene or immoral if it had the ability to affect the most susceptible person. It is from this perspective that McKenna argued for the compelling government interest to protect “public morals and welfare” (236 U.S. at 242).

The Mutual decision set the framework for permissible prior restraint of motion pictures and of other mass media to follow. Licensing was determined to be permissible as a form of regulation, considering the great capacity for evil that movies possessed. The resulting shockwave of this decision was felt by the motion picture industry until the mid-fifties and would greatly impact the development of radio and television. This decision set the stage for a series of political battles where the government interest in protecting “public morals and welfare” collided with the motion picture industry’s desire to survive, resulting in a number of self-regulatory attempts. Several attempts were made, and none were completely successful in appeasing its critics. The Motion Picture Producers and Distributors of America (MPPDA) Production Code under the supervision of Joseph Breen came the closest (Inglis, 1947; Leff & Simmons, 1990; Miller, F., 1994; Randall, 1968). It would be 37 years until the Supreme Court would hear another case concerning the constitutionality of motion picture censorship, with surprisingly different results.