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The First Amendment and Film Censorship from 1915-1952, 41 Hastings Const Hastings Constitutional Law Quarterly Volume 41 Article 4 Number 2 Winter 2014 1-1-2014 From Spectacle to Speech: The irsF t Amendment and Film Censorship from 1915-1952 Jessica J. Hwang Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Jessica J. Hwang, From Spectacle to Speech: The First Amendment and Film Censorship from 1915-1952, 41 Hastings Const. L.Q. 381 (2014). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol41/iss2/4 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. From Spectacle to Speech: The First Amendment and Film Censorship from 1915-1952 by JESSICA J. HWANG* Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. - U.S. CONST. amend. I Introduction The First Amendment, often hailed as the great protector of free expression and speech, has not always meant what it means to us today. Though it boldly prohibits Congress from enacting any law "abridging the freedom of speech," the exact meaning of that phrase has changed over time. The modern First Amendment grants "special protection" to "speech on matters of public concern."' And though the United States Supreme Court recently referred to the First Amendment as "the essence of self-government,"2 such a view * J.D. Candidate 2014, University of California, Hastings College of the Law; B.A. 2009, Reed College, History. I thank Professor Reuel Schiller for his help in discovering this historical question and for his untiring guidance throughout the entire writing process. In addition, I thank the editors of the Hastings Constitutional Law Quarterly for their professionalism and diligence. Finally, I thank my family and friends for their support, patience, and prayers-without you, none of this would have been possible. 1. Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985)). 2. Id. at 1215 (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). [381] 382 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 41:2 was not always accepted.' In fact, for certain forms of speech, no kind of "special protection" applied despite their public, and even political, relevance. From the Civil War through to the middle of the twentieth century, both the state and federal government often regulated speech and expression through censorship.4 As time passed, the law changed and now "the First Amendment reflects 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." This Note will examine the transformation of the First Amendment in the context of the medium of film. When the Supreme Court first addressed censorship of moving pictures in 1915, the Court unanimously rejected films as mere "spectacle" unworthy of the protections granted to other "mediums of thought."' Then in 1952, the Court, again unanimously, overturned its prior ruling and held that "expression by means of motion pictures is included within the free speech and free press guarantee of the First and Fourteenth Amendments."' This Note seeks to understand this shift in perception of movies from "spectacle" to "speech." Although there exists a robust historiography of film censorship in general, there is a dearth of scholarship on why the Supreme Court changed its view on the application of the First Amendment to films. Some scholars have depicted the end of film censorship as "inevitable" and merely a "matter of time," while others have worked to highlight some of the social events or political personalities involved in bringing about the change.' Seeking to understand the 3. Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 VA. L. REV. 1, 2-3 (2000). See generally LEONARD LEVY, EMERGENCE OF A FREE PRESS (1985); PAUL L. MURPHY, THE MEANING OF FREEDOM OF SPEECH: FIRST AMENDMENT FREEDOMS FROM WILSON TO FDR (1972); DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTIEN YEARS (1997). 4. Id. 5. Snyder, 131 S. Ct. at 1215 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). 6. Mut. Film Corp. v. Indus. Comm'n of Ohio, 236 U.S. 230,243-44 (1915). 7. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). 8. LAURA WITIERN-KELLER, FREEDOM OF THE SCREEN: LEGAL CHALLENGES TO STATE FILM CENSORSHIP, 1915-1918, at 3-4 (2008). See also FRANCIS G. COUVARES, MOVIE CENSORSHIP AND AMERICAN CULTURE (1996); RICHARD S. RANDALL, CENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROL OF A MASS MEDIUM (1968). 9. Samantha Barbas, How the Movies Became Speech, 64 RUTGERS L. REV. 665, 666 (2012). See also RANDALL, supra note 8, at 25-28; Melville B. Nimmer, The Constitutionalityof Official Censorship of Motion Pictures, 25 U. CHI. L. REV. 625, 627 (1958). Winter 2014]1 FROM SPECTACLE TO SPEECH 383 parallel transformation of both film and the First Amendment, this Note argues that the Court's perspective of film changed as the medium and industry of film changed. From 1915 to 1952, as film evolved and its relationship to society and politics shifted, so too did its relationship with the law. Section I describes the beginnings of film both as a medium and an industry: Soon after its invention, social reformers and government agencies intervened to regulate the public display of film. In a ruling that would go on to haunt the film industry for decades, the Supreme Court held that film was not a form of speech protected under the First Amendment. Section II traces the growth of film: New technology brought the medium of film new attention from audiences, government agencies, and businessmen, and the film industry transformed into a complex, yet effective self- regulating body. Section III examines the Supreme Court's understanding of the First Amendment between the two world wars: Though once limited to specific kinds of communication, the Court eventually extended protection to many different forms of expression. Finally, Section IV highlights the intersection of film and the First Amendment: The Court's view of both protected speech and film as a medium had transformed; that which was once mere spectacle, was now a powerful form of expression and speech. I. The Birth of Film: Invention and Intervention Motion pictures emerged as a part of American public entertainment in the late nineteenth century in vaudeville houses.'o These "visual novelties" soon became "the first form of mass entertainment for an emerging mass public."" Beginning in 1902, special theaters made exclusively for the exhibition of films began to be built.12 Within a decade, over 20,000 theaters were scattered throughout the United States. This rapid development and expansion of film as a form of entertainment was part of revolutionary changes in American society. During his campaign for presidency in 1912, Woodrow Wilson spoke of "the presence of a new organization of society" that was "nothing short of a new social age, a new era of human relationships, a new 10. Barbas, supra note 9, at 672. 11. Id. at 672-73. 12. Id. (citations omitted). 13. Id. 384 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 41:2 stage-setting for the drama of life." 14 This "new era"-now known as the Progressive Era and spanning from the late nineteenth to the early twentieth century-was a period of social reform through political intervention." Rejecting the classical economic ideas of laissez-faire, progressive interventionism turned to legislation to actively effect change in the world. Reformers believed that the government should work to protect society and improve American life.16 For some progressive reformers, the uncontrolled-and uncontrollable-rise of motion pictures as a form of mass entertainment "sparked a moral panic." 7 Though the content of movies offended reformers, it was the "spectacular" nature of the medium of film that terrified them." More than newspapers, books, or even theater, movies stood out as a powerful form of social influence. Contemporary social scientists decried film as something "that stimulates man's ... senses merely for the sake of the pleasure and excitement attendant upon the stimulation."'9 Contemporary writers likewise condemned movies as an "encouragement of wickedness" and recommended that "[t]he proper thing for city authorities to do is to suppress them at once."20 For many of the more moderate reformers, movies were "a powerful new medium capable of influencing masses of people and manipulating thought and behavior." 2' Like alcohol or child labor, the movies needed to be controlled. 14. WOODROW WILSON, THE NEW FREEDOM: A CALL FOR THE EMANCIPATION OF THE GENEROUS ENERGIES OF A PEOPLE 7 (1918). 15. See generally DANIEL T. ROGERS, ATLANTIC CROSSINGS: SOCIAL POLITICS IN A PROGRESSIVE AGE (1998). See also MORTON KELLER, REGULATING A NEW ECONOMY: PUBLIC POLICY AND ECONOMIC CHANGE IN AMERICA, 1900-1933 (1990); ALICE O'CONNOR, POVERTY KNOWLEDGE: SOCIAL SCIENCE, SOCIAL POLICY, AND THE POOR IN TWENTIETH-CENTURY U.S. HISTORY (2001). 16. See generally JOHN W. CHAMBERS II, THE TYRANNY OF CHANGE: AMERICA IN THE PROGRESSIVE ERA, 1900-1917 (1980). 17. Barbas, supra note 9, at 673. 18. Id. 19. Id. 20. Margaret A. Blanchard, The American Urge to Censor: Freedom of Expression Versus the Desire to Sanitize Society - From Anthony Comstock to 2 Live Crew, 33 WM.
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