When the First Amendment was ratified in 1791, even the most enlightened leaders of our nation could not have predicted the coming of visual media such as film and television. Consequently, new communication technologies have not always received the same kinds of protection under the First Amendment as those granted to speech or print media, including newspapers, magazines, and books. Movies, in existence since the late 1890s, only earned legal speech protection after a 1952 Supreme Court decision. Prior to that, social and political pressures led to both censorship and self-censorship in the movie industry.

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Social and Political Pressures on the Movies

During the early part of the twentieth century, movies rose in popularity among European immigrants and others from modest socioeconomic groups. This, in turn, spurred the formation of censorship groups, which believed that the movies would undermine morality. During this time, according to media historian Douglas Gomery, criticism of movies converged on four areas: “the effects on children, the potential health problems, the negative influences on morals and manners, and the lack of a proper role for educational and religious institutions in the development of movies.”18

Public pressure on movies came both from conservatives, who saw them as a potential threat to the authority of traditional institutions, and from progressives, who worried that children and adults were more attracted to movie houses than to social organizations and urban education centers. As a result, civic leaders publicly escalated their pressure, organizing local review boards that screened movies for their communities. In 1907, the Chicago City Council created an ordinance that gave the police authority to issue permits for the exhibition of movies. By 1920, more than ninety cities in the United States had some type of movie censorship board made up of vice squad officers, politicians, and citizens. By 1923, twenty-two states had established such boards.

Meanwhile, social pressure began to translate into law as politicians, wanting to please their constituencies, began to legislate against films. Support mounted for a federal censorship bill. When Jack Johnson won the heavyweight championship in 1908, boxing films became the target of the first federal censorship law aimed at the motion-picture industry. In 1912, the government outlawed the transportation of boxing movies across state lines. The laws against boxing films, however, had more to do with Johnson’s race than with concern over violence in movies. The first black heavyweight champion, he was perceived as a threat to some in the white community.

The first Supreme Court decision regarding film’s protection under the First Amendment was handed down in 1915 and went against the movie industry. In Mutual v. Ohio, the Mutual Film Company of Detroit sued the state of Ohio, whose review board had censored a number of the distributor’s films. On appeal, the case arrived at the Supreme Court, which unanimously ruled that motion pictures were not a form of speech but “a business pure and simple” and, like a circus, merely a “spectacle” for entertainment with “a special capacity for evil.” This ruling would stand as a precedent for thirty-seven years, although a movement to create a national censorship board failed.

Self-Regulation in the Movie Industry

As the film industry expanded after World War I, the impact of public pressure and review boards began to affect movie studios and executives who wanted to ensure control over their economic well-being. In the early 1920s, a series of scandals rocked Hollywood: actress Mary Pickford’s divorce and quick marriage to actor Douglas Fairbanks; director William Desmond Taylor’s unsolved murder; and actor Wallace Reid’s death from a drug overdose. But the most sensational scandal involved aspiring actress Virginia Rappe, who died a few days after a wild party in a San Francisco hotel hosted by popular silent-film comedian Fatty Arbuckle. After Rappe’s death, the comedian was indicted for rape and manslaughter, in a case that was sensationalized in the press. Although two hung juries could not reach a verdict, Arbuckle’s career was ruined. Censorship boards across the country banned his films. Even though he was acquitted at his third trial in 1922, the movie industry tried to send a signal about the kinds of values and lifestyles it would tolerate: Arbuckle was banned from acting in Hollywood. He later resurfaced to direct several films under the name Will B. Goode.

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In response to the scandals, particularly the first Arbuckle trial, the movie industry formed the Motion Picture Producers and Distributors of America (MPPDA) and hired as its president Will Hays, a former Republican National Committee chair. Also known as the Hays Office, the MPPDA attempted to smooth out problems between the public and the industry. Hays blacklisted promising actors or movie extras with even minor police records. He also developed an MPPDA public relations division, which stopped a national movement for a federal law censoring movies.

The Motion Picture Production Code

During the 1930s, the movie business faced a new round of challenges. First, various conservative and religious groups—including the influential Catholic Legion of Decency—increased their scrutiny of the industry. Second, deteriorating economic conditions during the Great Depression forced the industry to tighten self-regulation in order to maintain profits and keep harmful public pressure at bay. In 1927, the Hays Office had developed a list of “Don’ts and Be Carefuls” to steer producers and directors away from questionable sexual, moral, and social themes. Nevertheless, pressure for a more formal and sweeping code mounted. As a result, in the early 1930s the Hays Office established the Motion Picture Production Code, whose overseers were charged with officially stamping Hollywood films with a moral seal of approval.

The Code laid out its mission in its first general principle: “No picture shall be produced which will lower the moral standards of those who see it. Hence the sympathy of the audience shall never be thrown to the side of crime, wrong-doing, evil or sin.” The Code dictated how producers and directors should handle “methods of crime,” “repellent subjects,” and “sex hygiene.” A section on profanity outlawed a long list of phrases and topics, including “toilet gags” and “traveling salesmen and farmer’s daughter jokes.” Under “scenes of passion,” the Code dictated that “excessive and lustful kissing, lustful embraces, suggestive postures and gestures are not to be shown,” and it required that “passion should be treated in such a manner as not to stimulate the lower and baser emotions.” The section on religion revealed the influences of a Jesuit priest and a Catholic publisher, who helped write the Code: “No film or episode may throw ridicule on any religious faith,” and “ministers of religion . . . should not be used as comic characters or as villains.”

Adopted by 95 percent of the industry, the Code influenced nearly every commercial movie made between the mid-1930s and the early 1950s. It also gave the industry a relative degree of freedom, enabling the major studios to remain independent of outside regulation. When television arrived, however, competition from the new family medium forced movie producers to explore more adult subjects.

The Miracle Case

In 1952, the Supreme Court heard the Miracle case—officially Burstyn v. Wilson—named after Roberto Rossellini’s film Il Miracolo (The Miracle). The movie’s distributor sued the head of the New York Film Licensing Board for banning the film. A few New York City religious and political leaders considered the 1948 Italian film sacrilegious and pressured the film board for the ban. In the film, an unmarried peasant girl is impregnated by a scheming vagrant who tells her that he is St. Joseph and she has conceived the baby Jesus. The importers of the film argued that censoring it constituted illegal prior restraint under the First Amendment. Because such an action could not be imposed on a print version of the same story, the film’s distributor argued that the same freedom should apply to the film. The Supreme Court agreed, declaring movies “a significant medium for the communication of ideas.” The decision granted films the same constitutional protections as those enjoyed by the print media and other forms of speech. Even more important, the decision rendered most activities of film review boards unconstitutional because these boards had been engaged in prior restraint. Although a few local boards survived into the 1990s to handle complaints about obscenity, most of them had disbanded by the early 1970s.

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The MPAA Ratings System

The current voluntary movie rating system—the model for the advisory labels for music, television, and video games—developed in the late 1960s after discontent again mounted over movie content, spurred on by such films as 1965’s The Pawnbroker, which contained brief female nudity, and 1966’s Who’s Afraid of Virginia Woolf?, which featured a level of profanity and sexual frankness that had not been seen before in a major studio film. In 1966, the movie industry hired Jack Valenti to run the MPAA (the Motion Picture Association of America, formerly the MPPDA), and in 1968 he established an industry board to rate movies. Eventually, G, PG, R, and X ratings emerged as guideposts for the suitability of films for various age groups. In 1984, prompted by the releases of Gremlins and Indiana Jones and the Temple of Doom, the MPAA added the PG–13 rating and sandwiched it between PG and R to distinguish slightly higher levels of violence or adult themes in movies that might otherwise qualify as PG-rated films (see Table 16.1).

The MPAA copyrighted all ratings designations as trademarks except for the X rating, which was gradually appropriated as a promotional tool by the pornographic film industry. In fact, between 1972 and 1989, the MPAA stopped issuing the X rating. In 1990, however, based on protests from filmmakers over movies with adult sexual themes that they did not consider pornographic, the industry copyrighted the NC–17 rating—no children age seventeen or under. In 1995, Showgirls became the first movie to intentionally seek an NC–17 to demonstrate that the rating was commercially viable. However, many theater chains refused to carry NC–17 movies, fearing economic sanctions and boycotts by their customers or religious groups. Many newspapers also refused to carry ads for NC–17 films. Panned by the critics, Showgirls flopped at the box office. Since then, the NC–17 rating has not proved commercially viable, and distributors avoid releasing films with the rating, preferring to label such films “unrated” or to cut the film to earn an R rating, as happened with Clerks (1994), Eyes Wide Shut (1999), Brüno (2009), and The Wolf of Wall Street (2013). Today, there is mounting protest against the MPAA, which many argue is essentially a censorship board that limits the First Amendment rights of filmmakers.

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