Category: Film Censorship

The “Miracle” Case and After

While much occurred to the art form known as motion pictures between 1915 and 1952 and many developments were made in the regulation of film content during that time, very little changed legally for films from the Mutual case in 1915 to the “Miracle” case in 1952 (Burstyn v. Wilson, 343 U.S. 495). Several cases of film censorship were challenged in the courts, but all of them were denied injunctions based in great part to the precedent set in Mutual v. Ohio. Examples of films banned in the years following the Mutual decision are Birth Control heard in Message Photo-Play v. Bell, 166 N.Y.S. 338 (Sup. Ct. 1917); The Sex Lure in Ivan Film v. Bell, 167 N.Y.S. 123 (Sup. Ct. 1917); The Spirit of ’76 in United States v. Motion Picture Film The Spirit of’76, 252 F. 946 (S.D. Cal. 1917); The Road to Ruin in Brooks v. City of Birmingham, 32 F. 2d 274 (N.D. Ala. 1929); Ecstasy in Eureka Productions v. Byrne, 300 N.Y.S. 218 (Sup. Ct. 1937); and The Outlaw in Hughes Tool v. Fielding, 80 N.E. 2d 540 (N.Y. App. 1948). In each instance the courts upheld the rejection or revocation of a license for the showing of the film, citing the Mutual case as precedent (DeGrazia & Newman, 1982).  Before 1925 First Amendment rights were not applied to state laws. After the 1925 Gitlow decision, however, it was held that the Fourteenth Amendment’s guarantee to due process under the law for all states extended the right of the federal Constitution to state law (see Gitlow v. New York, 268 U.S. 652); Pennekamp v. Florida, 328 U.S. 331 (1946); see also Pember, 1999; Zelezny, 2001). But even with this change, motion pictures were still not granted Constitutional protection based on the Mutual decision. That finally changed in 1952 when the Supreme Court heard Burstyn v. Wilson, better known as the “Miracle” case.

The Italian film Il Miracolo (“The Miracle”), written by Frederico Fellini and directed by Roberto Rossellini, was introduced in the United States in 1949 (Cook, D. A., 1990). “The Miracle” was granted a license by the New York state licensing board on March 2, 1949. It was not shown until late 1950, when it was granted a license to be shown with two French films, A Day in the Country and Jofroi (DeGrazia & Newman, 1982; Draper, 1999). The film tells the story of a “demented peasant woman who is seduced by a bearded stranger whom she thinks is Saint Joseph. The woman becomes pregnant, and after being tormented by the people of her village, she is forced to flee into the hills, where she delivers her child in an isolated church as the film ends” (Jowett, 1996, p. 262). The movie opened at the Paris Theater in Manhattan on December 12, 1950, when some film critics and the Catholic Legion of Decency quickly criticized the film as sacrilegious and blasphemous (DeGrazia & Newman, 1982; Randall, 1968).

Twelve days after it opened, Edward T. McCaffrey, the licensing commissioner for the state, told the owners of the Paris Theater that if he did not immediately stop showing the movie then his license would be revoked (Jowett, 1996; Randall, 1968). McCaffrey said he found the film “officially and personally blasphemous” (Randall, 1968, p. 28).  The Paris Theater complied the next day, but the film’s distributor, Joseph Burstyn, went to court challenging the authority of the licensing commissioner to revoke licenses (Burstyn v. McCaffrey, 101 N.Y.S.2d 892 (Sup. Ct. 1951). The New York Supreme Court agreed that the city license commissioner had no power over movie censorship, and the film was showing again one week later (DeGrazia & Newman, 1982). Up to 1,000 members of the Catholic War Veterans picketed outside the Pairs Theater in the weeks following the decision (Randall, 1968). Francis Cardinal Spellman of the Archdiocese of New York publicly denounced the film, calling for Catholics to avoid the film and theaters showing it. Just a few days later, the New York State Board of Regents, which was the governing board over the film licensing board of the state, convened to review the film and the Motion Picture Division’s original decision to grant the film a license. They determined that the film’s license should be revoked on the grounds that it was “sacrilegious” and censorable according to New York licensing laws (DeGrazia & Newman, 1982; Randall, 1968). Burstyn again challenged the Regents decision in court, but the decision was upheld in the New York Supreme Court, Burstyn v. Wilson, 104 N.Y.S.2d 740, as well as in the New York Appeals Court by a 5–2 decision, 101 N.E. 2d 665 (N.Y. App. 1951).

The U.S. Supreme Court agreed to hear the case in February of 1952. Burstyn received little support from the motion picture industry, which was busy trying to influence the outcome of another case involving a Hollywood produced movie, Pinky (Gelling v. Texas, 343 U.S. 960 (1952); see also Jowett, 1996). On May 26, 1952, the U.S. Supreme Court unanimously reversed the state appeals court decision and lifted the ban on “The Miracle” (343 U.S. 495). Most significantly the opinion stated there were compelling reasons for motion pictures to enjoy constitutional protection under the First and Fourteenth Amendments. Writing the opinion for the Court, Justice Tom C. Clark said,

It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. (343 U.S. at 501)

The “Miracle” ruling had established a basis for the First Amendment protection of motion pictures. The Court ruled that the New York statute prohibiting “sacrilegious” content was unconstitutionally vague, but the motion picture industry would have to wait to be completely free of laws restricting the content of movies (Randall, 1968). A series of cases following Burstyn v. Wilson (Gelling v. Texas, 343 U.S. 960; Commercial Pictures v. Board of Regents, Superior Films v. Department of Education of Ohio, 346 U.S. 587 (1954); Holmby Productions v. Vaughn, 350 U.S. 870 (1955) ruled other vague standards, such as “immoral,” “harmful,” and “indecent” to be unconstitutional (Draper, 1999). But all of these cases were decided with per curiam decisions, so it was not until 1957 with Roth v. United States, 354 U.S. 476, that the constitutional line was drawn at obscenity (Randall, 1968; Draper, 1999). Though Roth did not concern a motion picture, the establishment of an obscenity standard set the standard for all motion picture censorship statutes to be measured against. Finally, in Kingsley International Pictures Corp. v. Regents of University of N. Y., 360 U.S. 684 (1957), the principles from Burstyn v. Wilson met the practical definition of unprotected speech in Roth. In Kingsley the Court ruled that a licensing standard that barred the depiction of “sexual immorality” was in essence “a bar to the discussion of ideas” (Randall, 1968, p. 33).

During the time between the “Miracle” and Kingsley decisions state film licensing statutes began to fall to constitutional challenges in Ohio, Massachusetts, and Kansas (Randall, 1968). Two subsequent cases in the sixties, Times Film Corp. v. Chicago, 365 U.S. 43 (1961) and Freedman v. Maryland, 380 U.S. 51 (1965), rendered most licensing statutes powerless, marking the end to over fifty years of prior censorship through motion picture licensing (Draper, 1999; Liston, 1973). While the courts were redefining protected speech and establishing First Amendment rights for motion pictures, the motion picture Production Code struggled to stay current and pertinent. In 1956 the Production Code was revised to lift restrictions against the portrayal of narcotics, prostitution, and interracial marriage. In 1961 it was further amended to allow cautious depictions of homosexuality (Liston, 1973). In November 1968 the MPAA eliminated the Production Code and introduced a new labeling system in its place. In announcing the new system, MPAA president Jack Valenti said:

There are many audiences and if we seek out the lowest common audience denominator, we will find ourselves making movies that would be . . . inane. We cannot allow children to set the boundaries for motion picture creativity, any more than we would allow children to organize our moral apparatus or our national priorities. But we can be concerned about children. (Liston, 1973, p. 53)

The motion picture ratings system has been in place for over thirty years, and no true form of content regulation, either self-regulation or government regulation, exists for motion pictures. On occasion a film is challenged in court as being obscene or as inciting to violence, but as a whole the film industry must only struggle with the rating their films might receive and what impact the rating may have on their box office success. Though the ratings system has received criticism, this self-regulatory ratings system has proven itself and has served as a pattern for the music industry’s advisory label, some comic book companies’ content labeling systems, and the parental guidelines for television.


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.

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.


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).

National Board of CensorshipThe 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.