Between “Mutual” and “Miracle”

In the early twenties a series of events lead to the motion picture industry’s first attempt at self-regulation. As movie revenues declined and the star system in Hollywood emerged, motion picture producers began to offer more sensational fare at the cinema and a series of scandals rocked the industry (Anger, 1975; Blanchard, 1992; Miller, F., 1994). A new legislative wave hit the industry, as nearly 100 censorship bills were introduced in 37 states in 1921 alone. In late 1921 legislation to create a federal censorship commission was reintroduced in Congress (Blanchard, 1992). The motion picture industry responded to the pressure in 1921 by creating the National Association of the Motion Picture Industry (NAMPI), which would later become the MPPDA, and issuing a list of thirteen controversial topics that movie producers should avoid in their films (see Appendix A). This attempt at self-regulation would not be a tremendous success, and additional attempts to regulate motion pictures on the federal level would come in the following years (Blanchard, 1992; Inglis, 1947; Jowett, 1999; Randall, 1968).

Very little changed legally regarding motion pictures in the decades following the Mutual decision—on the contrary, the pressure put to bear on the motion picture industry increased dramatically in the years to follow the Mutual decision—the legal position towards obscenity and censorship changed drastically in that time, due primarily to two key decisions. In 1931 the U. S. Supreme Court ruled in Near v. Minnesota, 283 U.S. 697 (1931), that a Minnesota nuisance statute that resulted in the prior restraint of a newspaper was unconstitutional. In this case the Minnesota statute stated that “(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a nuisance, and all persons guilty of such a nuisance may be enjoined” (Mason’s Minnesota Statutes, 1927, 10123-1 to 10123-3, cited in Near v. Minnesota, 283 U.S. at 701). The Court had newfound power over state law as a result of the Gitlow v. New York decision, 268 U.S. 652 (1925), which ruled that the “due process” clause of the Fourteenth Amendment granted federal constitutional guarantees to state laws as well as federal laws.

Using this power, in a narrow 5–4 decision, the Supreme Court found the Minnesota statute unconstitutional as a violation of the First Amendment guarantees of free speech and free press (Pember, 1999). In the majority opinion Chief Justice Hughes wrote that while this statute, unusual in its blatant disregard for the freedom of the press, was unconstitutional, certain qualifications should be made concerning the constitutional position of prior restraint. Hughes first argued that the restrictions on prior restraint are not unlimited. Hughes mentions wartime restrictions, restrictions on obscenity and protections against incitements to acts of violence as examples when prior restraint might be permissible and constitutional (283 U.S. at 716). Hughes also qualified the decision by stating that the First Amendment guarantees of free speech and free press are not limited to protection against prior restraint only, but argued that other forms of punishment after publication could as easily violate the First Amendment protections the Constitution provides (283 U.S. at 717).

Another milestone in First Amendment law occurred in 1934 when a Federal Appeals Court found James Joyce’s Ulysses not to be obscene using a standard that varied greatly from the Hicklin Rule (United States v. One Book Entitled “Ulysses”, 5 F. Supp. 182 (S.D. N.Y. 1933), aff’d, 72 F.2d 705 (2d Cir. 1934). The book by Joyce had been found to be obscene by customs officials according to the Tariff Act of 1930, 19 U.S.C.A. § 1305 (a). When challenged in court, the District Court judge found that the work, when taken as a whole, had such literary merit that it could not be legally obscene (5 F. Supp. at 183, 184). Straying from the concepts in the Hicklin Rule, the majority opinion stated: “We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly it does not fall within the statute, even though it justly may offend many” (72 F.2d at 708, 709). The opinion cited United States v. Kennerley, 209 F. 119 (S.D.N.Y. 1913), which objected to the Hicklin Rule’s “test which protected the ‘salacious’ few,” while upholding the rule as established in the Rosen case (see Rosen v. United States, 161 U.S. 29; see also United States v. One Book Entitled “Ulysses”, 72 F.2d at 711). While the decision marked a decisive turn from the previous legal views on obscenity, the concepts in the Ulysses case would be met with opposition for several years. This opposition can be seen in the harsh dissent from Judge L. Hand Manton, who argued:

If we disregard the protection of the morals of the susceptible, are we to consider merely the benefits and pleasures derived from letters by those who pose as the more highly developed and intelligent? To do so would show an utter disregard for the standards of decency of the community as a whole and an utter disregard for the effect of a book upon the average less sophisticated member of society, not to mention the adolescent . . .. The statute is designed to protect society at large, of that there can be no dispute; notwithstanding the deprivation of benefits to a few, a work must be condemned if it has a depraving influence. (72 F.2d at 711)

This concept would prevail in the legal system for many years with regards to the censorship of motion pictures, television, and comic books, despite the changes these cases made in the approach to the press and works of literature. The application of the First Amendment to state law in 1925 and the prohibition of prior restraint in 1931 should have invalidated all of the state film censorship boards, but the Mutual decision remained intact until 1952 (Gibson, 1986). The Mutual case would have far reaching influence on not only motion pictures, but on other forms of mass media for several decades.

On March 29, 1948, the Supreme Court decision in Winters v. New York, 333 U.S. 507, stated that the censorship of violent material was unconstitutional (Nyberg, 1998). The case dealt with a  60 year-old New York law that prohibited the distribution of periodicals “principally made up of criminal news, police reports or accounts of criminal deeds or pictures or stories of deeds of bloodshed, lust or crime” (333 U.S. 507). The majority opinion criticized the vagueness of the statute and ruled the New York law unconstitutional as an abridgement of free speech. The fallout from this ruling was significant. The strong language in the Winters decision would foreshadow the later “Miracle” and Gelling decisions:

We do not accede to [the] suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between informing and entertaining is too illusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. (333 U.S. at 510)

As a result of the Winters ruling, twenty other state laws using the New York statute as a template were found to be unconstitutional (333 U.S. at 522, 523). Additionally, four other state laws were questioned, though not expressly ruled unconstitutional by the ruling (333 U.S. at 523). While this ruling was positive for publishers of magazines and comic books, the Supreme Court left open the possibility for future censorship of violent material in their opinion (Nyberg, 1998). The majority opinion concluded with these words:

To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications . . . Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise. (333 U.S. at 520)

State legislators also took comfort in the strong dissent by three of the justices. Justices Frankfurter, Jackson, and Burton made clear their willingness to support any statute protecting from the influence of violent material that encourages criminal behavior, so long as the it is properly worded (see 333 U.S. at 527, 528; see also Nyberg, 1998). As a result, this ruling would prove to be little aid to those depicting the details of crime, as the pressure would continue to mount in the coming years. It would be almost twenty years before many of the new crime statutes would be found unconstitutional (Saunders, 1994). Nevertheless, this Winters decision set the stage for the United States’ unique position of seeing violence, but not sexual activity, as Constitutionally protected.