The motion picture has entered every city and town of the country. It makes a widespread and subtle appeal to people of all ages and all degrees of mental development. In the short period of fifteen years it has established itself beside the book, the school, and the church as an instrument for moulding opinion.
— Orrin Cocks
The issue of censorship gained even more steam in April 16, 1913, when the state of Ohio passed an ordinance that allowed them to enforce censorship of films released in their state. This formed an organization which stated that their objective “is to improve the moral quality of motion pictures.” A fee had to be paid by film distributors in that state in order for it to be under consideration by the Ohio state commission, who would determine if the film should be released theatrically (the only way films could be seen at the time) in the state of Ohio. If the commission deemed the film unfit or immoral for audiences in their state, it would be illegal for the film to be released there. And any attempt to release the film in the state without approval would result in the arrest of the film distributors.
In 1914, World War I broke out. This would prove to be a foreshadowing of the tumultuous times that lay ahead for the film industry. Partly because propaganda films would be released that would either discourage getting into war (such as D.W. Griffith’s 1916 epic Intolerance), or encourage going to war (via famous actors encouraging the buying of war bonds). Even the government would get involved with film-making for pro-war propaganda purposes.
However, it would be on February 23, 1915 when something (arguably) more significant would take place in film history. The censorship law passed by Ohio would be challenged in the Supreme Court. The case would be known as Mutual Film Corporation v. Industrial Commission of Ohio. This is when the issue of film censorship came to a head in the United States (yes, even before the Hays Code). Mutual Film Corporation, the film distributor best known for releasing a large amount of Charlie Chaplin flicks, argued against the Ohio commission.
Justices of the Supreme Court at the time: Edward Douglass White (Chief Justice), Charles Evan Hughes, Willis Van Devanter, Joseph Rucker Lamar, Mahlon Pitney, Joseph McKenna, Oliver W. Holmes Jr., James Clark McReynolds, and William R. Day.
The board has demanded of complainant that it submit its films to censorship, and threatens, unless complainant complies with the demand, to arrest any and all persons who seek to place on exhibition any film not so censored or approved by the censor congress on and after November 4, 1913, the date to which the act was extended. It is physically impossible to comply with such demand and physically impossible for the board to censor the films with such rapidity as to enable complainant to proceed with its business, and the delay consequent upon such examination would cause great and irreparable injury to such business, and would involve a multiplicity of suits.
Note the justification for the final ruling delivered by Joseph McKenna, who was a Catholic justice, and who would suffer a stroke in 1915 which made his mental impairment worse and worse throughout the rest of his term. Currently, I don’t know if this happened before or after this ruling.
The censorship, therefore, is only of films intended for exhibition in Ohio, and we can immediately put to one side the contention that it imposes a burden on interstate commerce. It is true that, according to the allegations of the bill, some of the films of complainant are shipped from Detroit, Michigan, but they are distributed to exhibitors, purchasers, renters, and lessors in Ohio, for exhibition in Ohio, and this determines the application of the statute. In other words, it is only films which are ‘to be publicly exhibited and displayed in the state of Ohio’ which are required to be examined and censored.
This was the main grounds many would argue upon which the court ruled against first amendment rights for film as an art form. That the ruling came not for concern as to the content of a film, but rather for strictly business purposes. Film being transported from state to state, country to country. One of the main concerns was financial. But it would be wrong to ignore the other justification, especially when the reason for it is given considerably more length than the interstate commerce excuse.
[…] however missionary of opinion films are or may become, however educational or entertaining, there is no impediment to their value or effect in the Ohio statute. But they may be used for evil, and against that possibility the statute was enacted. Their power of amusement, and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences. And not only the state of Ohio, but other states, have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the precaution unreasonable or the legislation to effect it a mere wanton interference with personal liberty.
We do not understand that a possibility of an evil employment of films is denied, but a freedom from the censorship of the law and a precedent right of exhibition are asserted, subsequent responsibility only, it is contended, being incurred for abuse. In other words, as we have seen, the Constitution of Ohio is invoked, and an exhibition of films is assimilated to the freedom of speech, writing, and publication assured by that instrument, and for the abuse of which only is there responsibility, and, it is insisted, that as no law may be passed ‘to restrain the liberty of speech or of the press,’ no law may be passed to subject moving pictures to censorship before their exhibition. We need not pause to dilate upon the freedom of opinion and its expression, and whether by speech, writing, or printing. They are too certain to need discussion-of such conceded value as to need no supporting praise. Nor can there be any doubt of their breadth, nor that their underlying safeguard is, to use the words of another, ‘that opinion is free, and that conduct alone is amenable to the law.’
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 theater, 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.
Counsel have not shrunk from this extension of their contention, and cite a case in this court where the title of drama was accorded to pantomime; and such and other spectacles are said by counsel to be publications of ideas, satisfying the definition of the dictionaries, that is, and we quote counsel, a means of making or announcing publicly something that otherwise might have remained private or unknown, and this being peculiarly the purpose and effect of moving pictures, they come directly, it is contended, under the protection of the Ohio constitution.
The first impulse of the mind is to reject the contention. We immediately feel that the argument is wrong or strained which extends the guaranties of free opinion and speech to the multitudinous shows which are advertised on the billboards of our cities and towns, and which regards them as emblems of public safety, to use the words of Lord Camden, quoted by counsel, and which seeks to bring motion pictures and other spectacle into practical and legal similitude to a free press and liberty of opinion.
The judicial sense supporting the common sense of the country is against the contention. As pointed out by the district court, the police power is familiarly exercised in granting or withholding licenses for theatrical performances as a means of their regulation.
Emphasis added with the bold words. Now the concerns of the religious have made their way into the law, and affect the final judgement passed down. Films represent a threat to the morals of everyday individuals, especially the children. They could teach the wrong lessons under the guise of being “educational”. It should be within the power of the police, whose purpose is “to regulate the public health and morals,” as stated by William M. Seabury (he will be a more prominent figure in a later article). But then McKenna would switch from the “morality” argument back to the “business” argument to end the hearing. And then switch right back to morality again.
The rights of property were only considered as involved. 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. It was this capability and power, and it may be in experience of them, that induced the state of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.
It does not militate against the strength of these considerations that motion pictures may be used to amuse and instruct in other places than theaters, in churches, for instance, and in Sunday schools and public schools. Nor are we called upon to say on this record whether such exceptions would be within the provisions of the statute, nor to anticipate that it will be so declared by the state courts, or so enforced by the state officers.
In February 23, 1915, the court ruled, in a 9-0 unanimous decision, in favor of the Industrial Commission. For the first time in American history, it became federally legal for any State to have the police power censor films via State regulation. It was ruled that the first amendment did not apply to films. Because, as far as the court was concerned, films were not an art form, they were a business, and businesses were subject to federal regulation.
It is argued that films are capable of great evil and corruptible influence. McKenna wasn’t exactly wrong. 1915 would also be the year in which stag films would become popular; unofficially speaking. Because stag films were basically porn, and completely illegal. You would have to go to special places of business, like front-houses, in order to see them. These were true hardcore pornographic moving pictures, even by today’s standards. And people thought kissing on the screen was pushing the envelope.
There’s another incident that happened in 1915 which would prove McKenna’s point, both on the grounds that film would insidiously corrupt individuals, and on the grounds that film would mis-educate.
Nothing is more anti-American than censoring freedom of speech. Of course we all know that the first amendment which protects free speech only applies to government censorship, and not to private companies. Not even to monopoly private companies who troll and censor what has become the public square and who collude cartel-like and use their muscle to aggressively shut down competitors who support ‘free speech’, an idea they find offensive and threatening.
“MUTUAL FILM CORP. v. INDUSTRIAL COMMISSION OF OHIO” FindLaw. Retrieved January 13, 2019 from FindLaw.com: https://caselaw.findlaw.com/us-supreme-court/236/230.html
“Religious Affiliation of the Supreme Court” Adherents. Retrieved January 13, 2019 from Adherents.com: http://www.adherents.com/adh_sc.html
Appel, Jacob M. September 22, 2009 (Updated May 25, 2011) “Anticipating the Incapacitated Justice” Huffington Post. Retrieved January 13, 2019 from HuffingtonPost.com: https://www.huffingtonpost.com/jacob-m-appel/anticipating-the-incapaci_b_266179.html