Can ogling a forbidden image sow the seeds of rebellion? Can a curse word be an act of defiance? Should there be any limit to creative expression on film?
Audiences accustomed to horrific splatter violence, explicit sexual acrobatics, CGI explosions, or streams of profanity might not realize that not long ago a naughty word or risqué picture was thought to threaten the moral fabric of America. Rising from its roots as a nickelodeon attraction and sideshow amusement to its emergence as an art form and multibillion-dollar business, the American film industry has an alternative history. Court decisions and censorship codes influenced what movies could be financed and filmed and which pictures state censors, regional regulators, and municipal moral guardians had the power to suppress.
Dirty Words & Filthy Pictures: Film and the First Amendment is the story of the movies that entertained America, but it also presents the history of the motion pictures that expanded fundamental freedoms. In the beginning forbidden films focused on lewd dancers, boxers, and outlaws. By the 1920s the movies brought images of sex, drugs, and VD to neighborhood screens. The cinema could unspool shocking, scandalous, salacious, and often socially relevant stories. These controversial movies challenged a society still anchored in Victorian values, Christian morals, and “proper” modesty.
While movies provided cost-effective entertainment for the masses and a massive economic boom for well-positioned investors, the projected image came under fire almost immediately. As nickelodeon parlors opened their doors, censors sprang into action. Within a decade regulatory boards crisscrossed the country.
After Chicago enacted a film ordinance in 1907 and New York City threatened to shutter theaters in 1908, other cities fell in line. Beginning in 1915 film commissions opened in Atlantic City, Boston, Chattanooga, Dallas, Detroit, Duluth, Fort Worth, Indianapolis, Kansas City, Los Angeles, Memphis, Milwaukee, Nebraska City, Pasadena, Pittsburgh, Portland, Providence, San Francisco, Seattle, Spokane, St. Louis, Topeka, and Wichita. States added another layer of review: after the first laws were put in place in Pennsylvania and New York, codes were enacted in Alabama, Connecticut, Georgia, Indiana, Illinois, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, Ohio, Oklahoma, Tennessee, Virginia, West Virginia, and Wisconsin. Some regions set up their own film czars; others relied on neighboring censors. Sacramento’s film commission looked to Chicago; the state of Florida relied on the New York board of regents.1 Additionally, in over fifty cities and townships censor boards operated sporadically, triggered when a picture aroused controversy elsewhere. Filmmakers in the young industry were faced with multiple layers of government approval as well as outspoken temperance unions and evangelical activists who also had strong ideas on what was to be permitted and prohibited.
The censors could be random and unpredictable. From topical newsreels to Revolutionary War stories, local laws threatened a national distribution network. Even family-friendly Walt Disney was not immune. The Vanishing Prairie (1954) was halted in New York for a scene depicting the birth of a buffalo. The state’s film division issued a special exemption, and the Academy Award–winning documentary played on.
For filmmakers, financiers, audiences, and moral authorities the key question was, where is the line that divides free speech from forbidden films? After watching Shirley Temple in Honeymoon (1947), Baltimore censor Helen Tingley commented, “We can reject pictures that are sacrilegious, obscene, indecent, immoral or inhuman. Too bad we can’t bar this little gem for inhumanity . . . to the audience.” Could a censor ban a film simply because she didn’t like it? “‘I’d like to scream after [watching] a whole day of B-pictures,’ Mrs. Tingley continued, ‘and I frequently do.’” Another censor, when asked about his method of review, merely replied, “It’s just our own opinion.”4 Personal preference seemed to be the guiding force for the most powerful censors during Hollywood’s Golden Age.
Just as The Birth of a Nation, The Jazz Singer, and Citizen Kane define eras in American cinema, film-legal history has its own benchmarks. In 1915 the Mutual decision excluded motion pictures from constitutional protection, allowing censors to trim, edit, cut, and ban as they saw fit. The Miracle decision shifted the balance of power in 1948. But freedom of the screen was a hard fought battle. A series of cases won a bit more ground for free expression; these decisions stand as important but overlooked markers: Superior, Excelsior, Kingsley, and Freeman.
In addition to the pictures and the cases, the history of cinema and censorship also shines a spotlight on the colorful, controversial, and often forgotten characters who changed the course of American film. From the tragic Robert Goldstein, whose Spirit of ’76 was branded treasonous propaganda, to the triumphant Ephraim London, an attorney who tirelessly crusaded for free speech. From the firebrand censors, such as Major M. L. C. Funkhouser and Lloyd T. Binford, to the uncompromising filmmakers who pushed the envelope, such as Howard Hughes and Otto Preminger.
Hollywood studios opted for self-censoring solutions that minimized risk, so the battle for creative freedom was mostly left to independent filmmakers. Highbrow European art films and low-budget grindhouse exploitation flicks occupy key positions in the story of film and the First Amendment. The Miracle, Mom and Dad, and Garden of Eden may not be as familiar as the canon of classic movies, but these were the films that furthered the medium. As the limits of the permissible gained ground, many of the fights were not glamorous. Roger Diamond, an attorney who represented a fetish pornographer, commented that his client’s films “were so disgusting I couldn’t even watch them. . . . But that doesn’t mean they’re not free speech.”
What began with the hand-cranked images of a kissing couple, striptease shows, and boxing bouts grew into outrageous displays of sexual acrobatics, eye-popping violence, and animal cruelty. Through much of the century state regulations held motion pictures to strict standards that forced filmmakers to find creative solutions. Without these limitations Golden Age Hollywood could not have developed; however, filmmakers also pushed legal authorities to reevaluate and reconsider what should be deemed constitutionally protected speech. The underlying question remains relevant: in what situations should the state use its power to limit the freedom of expression? Dirty Words & Filthy Pictures is the story of the movies that expanded personal rights and furthered free expression.
"Geltzer, a movie-loving lawyer, has written what is, in effect, a guide to the moral presumptions of those who felt emboldened to speak for the movie audience."
—David Denby, The New Yorker
". . . if you want to learn more about censorship and the movies, then check out writer Jeremy Geltzer's fascinating new book from the University of Texas Press, Dirty Words & Filthy Pictures: Film and the First Amendment."
—Susan King, Los Angeles Times
“An important reference book for scholars of the law and cinema.”
"Dirty Words & Filthy Pictures’s scope is impressively broad, and to the best of my personal knowledge virtually complete; it appears to leave no pertinent censorship situation unmentioned and makes fascinating reading. This book should be the ultimate resource for information regarding film censorship for some time to come."
—E. Leonard Rubin, Adjunct Professor of Entertainment Law, John Marshall Law School, and former Adjunct Professor of Copyright Law, Northwestern University School of Law. Former Vice President, General Counsel, and Corporate Secretary for Playboy Enterprises. Currently in private practice at the Chicago law firm of Querrey & Harrow
“Dirty Words tells the inside story of Hollywood’s fight for freedom of speech. It’s filled with great characters—from moviemakers who pushed the edge to the censors who pushed back.”