Boxoffice (Jul-Sep 1939)

Editorial OJfices: 9 rockefeller plaza, new YORK city; Publication Office: 4804 e. 9th ST., KANSAS CITY, MO.,' HollyWOOd'. 6404 HOLLYWOOD BLVD.; Chicago: 332 s. Michigan blvd. PUBLISHED EVERY SATURDAY BY ASSOCIATED PUBLICATIONS VoL. 35 Number 14 August 26, 1939 Member Audit Bureau of Circulations BEN SHLYEN Publisher MAURICE KANN Editor-in-Chief LOUIS RYDELL Advertising Manager William G. Formby, Editor; Jesse Shlyen, Managing Editor; J. Harry Toler, Modern Theatre Editor; A. J. Stocker, Eastern Representative; Ivan Spear, Western Manager. PEACE IN WHAT YEAR? Now that cool and dispassionate inspection has had a chance, the still smouldering bombshell out of Washington may turn out to be some sort of a blessing, although it is essential to dig around before discovering how and why. The major companies and, particularly men like William F. Rodgers, Gradwell Sears and Abe Montague who have been carrying the working load, are keenly disappointed. Very likely some, even many, of the exhibitor code negotiators around the country are passing through the same brand of vibrations. It is easily understandable, naturally. Approximately eighteen months of endeavor, a good deal of it undertaken at business and personal sacrifice, are now seriously jeopardized and, not remotely, perhaps kicked out completely. Until now and frequently reported in BOXOFFICE, the majors have maintained persistently that the code, when finished, will become operative regardless of what the Department of Justice thought. Actually, they anticipated no opinion on the prevailing Washingtonian theory, of which they were thoroughly aware, that any expression would bind the department and hamstring any future prosecutions it may determine to launch. This much became apparent, however, when the allindustry suit was filed in mid-July last year. In that connection, Thurman Arnold then issued an extensive statement, the context of which and even the very existence of which conceivably may have been lost sight of in the onrush of subsequent events. The statement, in highlight, declared: "In the past it was the custom of business men to seek from the Department of Justice some vague form of approval for their plans of operation which involved anti trust questions. That practice now is generally discredited. It put the department in a position of acquiescence in practices the evil results of which could not be foreseen at the private conferences with representatives of the industry. "The truth is that without a judicial proceeding the department is not in a position to inform the industry what arrangements it will accept. The law contemplates that the department must work with the courts and that it must not bind itself in any way except by a public proceeding in court. The department can only talk through the medium of complaints filed in court and applications for relief addressed to the court. No situation can ever become crystallized without this form of proceeding. Approval voiced by individual representatives of the department in private conference cannot be binding on the department or create immunity from prosecutionSuch approval clarifies nothing and it lacks the sanction of public confidence. It does not provide Congress with a guide for amending the laws where they are achieving an uneconomical result." Pretty definite stuff. The quintet of attorneys who visited Washington recently in an effort to get a reaction to the code were thrown off the track because Paul Williams, who will conduct the government's case, told them he saw noth ing illegal in the final code draft as submitted, at the same time making it clear its adoption would not bear on the prosecution of the industry-wide suit. But apparently and as pointed out by Arnold over a year ago, he meant it when he stated "approval voiced by individual representatives of the department in private conference cannot be binding on the department or create immunity from prosecution." What has caused the initial uproar has been the department's surprise tactic in taking any stand by declaring code adoption, in its present form, will result in an even more highly intensified legal barrage. But let's take a look further and see if the conclusion does not emerge as reasonable that this stand actually constitutes some sort of a gift lurking behind a long, black beard. Arnold, by the uncertainty of his methods, actually makes his method certain in this instance. The time, the energy and the money expended on the code finally may turn into a regrettable and regretted loss, but now, at least, the chance has been provided to alter it or drop it rather than plunge and perhaps ultimately face criminal indictment for openly defying the government. Obviously, this is vital information to have, no matter how disappointing its application to the code may be. We have no manner of knowing if Arnold set out to do the industry a favor or not. Maybe nothing of the sort. Maybe he was thinking only, or primarily, of the suit which he intends to push and what effect a selfregulation program might have on his issues, his witnesses and their willingness to testify under a functioning code that might improve, if not entirely remedy, the complaints which originally took them to the department of justice. Irrespective of all this, however, Arnold, by design or otherwise, informs the industry precisely where it stands on the long and prolonged and vexatious trade practice problem. In the doing, he sends aloft a helpful sign flickering lonesomely on a dubious and increasingly black horizon. Dubious and black alike because now that the code dangles over oblivion by a thread of undetermined strength, it becomes obvious no determination of the industry's future course is possible until the government suit is tried and ultimately resolved by the Supreme Court, if needs be. Between now and then is a discouragingly long period of time, even years. In the interim, uncertainty will rule the day and harmony cannot prevail.