American Smut: Free Speech and the Right to Make a Buck

HERE IS A HANDY PRIMER on the difference between art and film. Art involves the universal, timeless human need to express ideas and emotions. Film exists to make money. This is why it is called the film industry. Its products are manufactured in quantity through use of formulas for mass consumption. It isn’t show fun. It is show business. To quote the cliché: When they say it’s not about the money, what they mean is, it’s about the money.

Like all company towns, Hollywood takes a wry view of the source of its wealth. Folks in Detroit make cracks about the car industry. People in Hollywood always took MGM’s motto — “Ars Gratia Artis” — as an inside joke. Even today, contracts for above-the-line talent refer to the writers, actors, and directors as “artists.” Whenever these contracts arrive in the mail, inevitably years after my services have been rendered or are no longer needed, I can almost hear the snickering of the in-house attorney who sent them, his homuncular tongue firmly in his pale, mottled cheek. They can call it the “Motion Picture Academy” — they can describe Vivid or other porn houses, or Paramount or Sony, as studios. It doesn’t make them any more respectable than calling Supercuts a hair salon. Over the last 16 years, I’ve sat through enough story and production meetings to know for certain that nobody out here is looking to invest in art.

Like show business, Jerry Geltzer’s Dirty Words and Filthy Pictures: Film and the First Amendment sounds sexier than it is. I mean that as a compliment. The most important part of any script is the title. Whatever you can promote on the poster, whatever sells the most tickets, that’s what makes a hit. But Geltzer’s book also delivers the goods. His one-volume history of efforts to control the content of American film is informative, engaging, and entertaining.

More importantly, it is a bracing reminder that, for most of its history, film was treated by the law as commerce, not art, and the First Amendment had nothing to do with it. Both film and art might have been better off when this was the case.

At the heart of the book are questions that have long dogged art and film: “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?”

The answers to these questions seem clear enough to me — no — but others are equally certain I am wrong. It has always been so. “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.”

In 1896, Edison Manufacturing Company’s 18-second featurette, The Kiss, a reenactment of a scene from a stage play where a man and woman lip-lock, prompted one reviewer to fulminate: “The spectacle of the prolonged pasturing on each other’s lips was hard to bear. When only life size, it was pronouncedly beastly. Magnified to Gargantuan proportions and repeated three times over it is absolutely disgusting.”

From 1907 on, every American city of any size had its censorship boards enacting civil ordinances banning the showing of specific films, sometimes even whole genres. The criteria was, to put it nicely, subjective: “It’s just our own opinion,” one censor admitted. But that opinion reflected the prejudices of the day. They always do. Films of prizefights, including reenactments of past brawls, became the first popular genre. After African-American champ Jack Johnson took the title, Congress prohibited the sale of boxing films over state lines. In Weber v. Freed, a unanimous Supreme Court upheld the ban.

As Geltzer points out, not all the censors were bigots or prudes. Some were simply absurd. Chicago’s chief film censor was Major Metellus Lucullus Cicero Funkhouser, who admitted his “methodology was based on personal taste,” and who boasted:

We have cut a good many miles of films — scene obscene, scenes of the nude, scenes of ugly violence, scenes reflecting on constituted authority — because we thought they were unsuitable to present before audiences, 80 per cent of whom are women and children.

Hell is paved with good intentions. As Geltzer points out, the censors often meant well. They were neither all enemies of culture nor unintelligent buffoons. Most were volunteers in a fight against forces they believed threatened their families, communities, and ways of life. The author’s empathy is a reminder that free speech advocates and civil libertarians will fight for almost any form of expression, except the form that seeks to set standards or encourage personal responsibility over what is expressed.

But that doesn’t make the act of censorship any less egregious. Geltzer doesn’t mention him, but no Los Angeles–based journal should talk about censorship without paying homage to our homegrown champion of free speech, Carey McWilliams. The 20th century’s first great chronicler of Southern California culture understood Hollywood’s power to influence the nation and the world. As a liberal champion of the First Amendment, he stood foursquare against any effort to censor its products. His reasons had less to do with the people doing the censoring than with the idea of censorship itself.

“Whatever the individual motives of the censors may be, censorship is a form of social control,” McWilliams wrote. “It is a means of holding a society together, of arresting the flux which censors fear. And since the fear cannot be appeased, the demands for censorship mount in volume and intensity. And one form of censorship can easily lead to other forms.”

Of the many crimes of the censor, none is quite so sad as those visited upon Robert Goldstein. The son of a German Jew, he opened a costume shop that provided the costumes for D. W. Griffith’s The Birth of A Nation. Geltzer writes dryly: “Inspired by Griffith’s historic success and massive profits, Goldstein decided to produce his own movie.” The triumph of profit over art — let alone good taste — is as old as Hollywood itself. Griffith had already done the Civil War, so Goldstein chose the Revolutionary War as his subject.

We will never know if his The Spirit of ’76 was any good, the film is lost, but the evidence is not encouraging. It contained, for example, the intriguing scene of “King George III crashing his fist in the face of kindly old Benjamin Franklin.”

All we know for sure is Goldstein had lousy timing. Released in 1917, the film was banned as an affront to the United States’s war ally Britain, “tantamount to treason,” the Supreme Court holding that “the constitutional guaranty of free speech carries with it no right to subvert the purposes and destiny of the nation.” Poor Goldstein was imprisoned under the Espionage Act and served three years. By the time he was released, his money was gone and his film destroyed. Goldstein eventually had to return to his father’s homeland, where he “almost certainly died in the Holocaust.” Who says Hollywood isn’t a tough town?

For the first three decades of the film industry’s existence, American “courts were not yet ready to consider motions pictures as speech worthy of constitutional protection.” And local and state governments were not ready to give up censorship as a form of good government. “In addition to the moral uplift, the logistics of film regulation were attractive. Regulation was a revenue generator; boards charged distributors for examination and approval and charged theaters for permitted exhibitions.”

Like other industries eager to avoid regulation, the film industry’s response to censorship was self-regulation, creating its own commissions to ensure its products were clean and pure. By 1915, “the movie business had exploded to become the fifth largest industry in the nation, with capital investments topping $500 million.” To preserve their business, Griffith, Adolph Zukor, and others created the National Association of the Motion Picture Industry to fight federal efforts to censor films. They developed a “Thirteen Points,” listing things filmmakers would voluntarily refuse to show, including “prolonged demonstrations of passionate love,” “depreciation of law officers,” and “vulgar and improper gestures.”

Self-censorship worked, but only up to a point. When courts did weigh in on the issue of government censorship, the industry invariably lost. In the Mutual Film Corp. v. Industrial Commission of Ohio, a unanimous Supreme Court upheld regulations under the Commerce Clause of the Constitution, “comparing the medium to a circus sideshow, long subject to restrictions on exhibition.” Film was not free speech or art. The Court “reduced motion pictures to ‘a business, pure and simple,’” one which had “a capacity for evil” that should be regulated to protect the impressionable.

This wasn’t all bad for business. There was a lucrative trade in luridly advertised film that just passed muster as well as the outright underground porn. Like Prohibition, censorship increased demand for the illicit. Howard Hughes’s The Outlaw triggered a legal wrangle that boosted ticket sales. Exploitation moguls like Kroger Babb made money with titles such as Child Bride, She Shoulda Said ‘No!’, and Mom and Dad, where screenings were segregated by gender, and a “sexologist” gave lectures between shows. Russ Meyer was far from the first of his kind. Roger Corman and Samuel Z. Arkoff found gold skirting censorship laws with films that would become part of mainstream teen, taboo, and porn genres.

Change came in the early 1950s. In a case involving Roberto Rossellini’s The Miracle, the Supreme Court finally “brought the medium of motion pictures under the protection of the First Amendment.” Neither sacrilege nor the fact Rossellini had an affair and love-child with Ingrid Bergman justified banning the film.

And yet for years after, American film censorship kept a wide array of material from the public, including foreign films, films about social issues ranging from segregation to birth control, and films made by actors or directors deemed subversive in their personal lives. Geltzer does a nice job describing the long slog of cases that led the Supreme Court to redefine its view of obscenity and extend full First Amendment protection to film. As to whether the world is better off for being able to view Deep Throat or Mona the Virgin Nymph, the author is too polite to say.

After Geltzer’s fine book, I read Melvyn Bragg’s The Book of Books, a history of the King James version of the Bible. Perhaps I needed a moral palette cleaning. As Bragg notes, Protestantism, coupled with technological developments in printing, eventually ended what amounted to a thousand-year practical ban on the Bible. But the results only confirmed the censors’ worst fears. The Bible turned out to be as inflammatory as feared, justifying all sorts of excess, not to mention revolution, regicide, and equal rights. It is possible that censors have a point — that free speech doesn’t necessarily always serve the commonwealth’s best interests. But try to explain that to a YouPorn viewer.

There is no reason to think the battle between free expression and government efforts to protect the governed will become less brutal in the future. If anything, the stakes have gotten higher. As Geltzer notes, “[s]ince 2004 more filmmakers have been investigated, tried, and convicted for the content of their films than in the fifty years prior.”

As long as there’s money to be made, the film industry will figure out some way to provoke and profit. The law gives them the right to show every manner of mortification, gratification, amorality, cruelty, and violence. It also affords prosecutors, rather than censors, the power to prosecute those who go too far. What “too far” means depends on public taste. We may not all agree as to what’s obscene, but we all think we know it when we see it. If that isn’t the definition of a meaningless, subjective, useless standard of law, I don’t know what is.

¤

Former federal prosecutor Jonathan Shapiro’s first novel, Deadly Force, was released this month. He is the co-creator and executive producer of the Amazon Prime series Goliath, and the author of Lawyers, Liars and the Art of Storytelling.