Independent Exhibitors Film Bulletin (1954)

The Censorship Ruling The judgments are reversed. Joseph Burstyn v. Wilson, 343 U. S. 495. In these few drab, colorless words, the Supreme Court of the United States overruled the lower courts of New \ ork and Ohio in upholding censor boards that sustained a ban on the films, "M" and "La Ronde". Although several miles of newsprint have been consumed to date in hailing the monumental consequence of this decision, the entire decree consists, soaking wet, of the mere re-citation of a precedent case. This, plus a highly impassioned minority view, is the sum total of its language. The pot of political pre-censorship — contrary to the shouts of trade and lay press headlines — has not yet boiled over. The occasion, we feel, is something less than historic. Out of all the clamor, this conspicuously singular fact remains: nothing has fundamentally changed in the letter of censorship doctrine since the "Miracle" case. What has changed, temporarily, is the climate in which the various state boards of censorship will now operate — until their state legislatures write laws clearly defining the basis for censorship. Meanwhile, amid the confusion, these inferences seem most logical : ' L ntil further legal tests are made, political censorship by the states will continue, only with the restrictions set forth in "The Miracle" decision. ^ The key issue of political pre-censorship's constitutionality was not resolved. The silence of the Supreme Court majority, plus the citation of the "Miracle" decree, infers that the decision was based solely upon the vagueness of State statutes in classifying objectionable themes. The minority concurrence (text in full on this page) pleaded for motion pictures the same freedoms and immunities as are enjoyed by the press, books, theatre, television and other opinion-making agencies, but a specific ruling to this end will have to be forced from the court majority by another legal action. ^ Unsettled is the establishment of an uncompromising list of standards upon which future examination of film subject matter can be made. All that can be presently deduced is that the use of such words as "immorality" and "harmful" are so indefinite and nebulous as to be unconstitutional in their application to the banning of films. ^ WTiere all this leaves the censor right now is hard to say. He has hardly any choice but to interpret the existing, uncertain statutes as best he can. Most of them have asserted that the ruling does not destroy their right to shelve material dealing with "obscene" or "indecent" themes. But even this position is unclear and challengeable. In that twilight zone between what some call "adult" entertainment and downright vulgarity is a multitude of perplexities, subject to varying human standards and conflicting values. The Minority View on Censorship -Mr. Justice Douglas, with whom Mr. Justice Black agrees, concurring. The argument of Ohio and New York lliat the government may establish censorship o\cr moving pictures is one I cannot accept. In 1952 Minnesota passed a law aimed at suppressing before publication any "malicious, scandalous and defamatory newspaper." 'Jhe Court, speaking through Chief Justice Hughes, struck down that law as violating the I'ourtecnth .Amendment, which has made tile I'irst .Xinendment applicable to the States. J'hc "chief purpose" of the constitutional guaranty of liberty of the press, said the Court, was "to prevent previous restraints upon publication." The history of censorship is so well known it need not be summarized here. Certainly a system, still in force in some nations, which required a newspaper to submit to a board its news items, editorials, and cartoons before it published them could not be sustained. Nor could book publishers be required to submit their novels, poems, and tracts to censors for clearance before publication. Any such scheme of censorship would be in irreconcilable conflict with the language and purpose of the First Amendment. Nor is it conceivable to ine that producers of plays for the legitiinate theatre or for television could be required to submit their manuscripts to censors on pain of penalty for producing them without approval. Certainly the spoken word is as freely protected against prior restraints as that which is written. Such indeed is the force of our decision in Thomas v. Collins, 323 U. S. 516, 540. The freedom of the platform which it espouses carries with it freedom of the stage. The same result in the case of motion pictures necessarily follows as a consc<iutnce of our holding in Joseph Burstyn, Inc. v. WUson, 343 U. S. 495, 502, that motion pictures are "within the free speech and free press guaranty of the I'irst and I'ourtccnth Amendments." Motion pictures are of course a different medium of expression than the public speech, the radio, the stage, the novel, or the magazine. But the I~irst .•\mendment draws no distinction between the various methods of comnmnicating ideas. On occasion one may be more powerful or efTective than another. The movie, like the public speech, radio, f>r television, is transitory — here now and gone in an instant. The novel, the short story, the poem in printed form are permanently at hand to reenact the drama or to retell the story over and again. W'hicii medium will give the most excitement and have the most enduring effect will vary with the theme and the actors. It is not for the censor to determine in any case. The First and the Fourteenth Amendments say that Congress and the States shall make "no law" which abridges freedom of speech or of the press. In order to sanction a system of censorship I would have to say that "no law" docs not mean what it says, that "no law" is qualified to mean "some" laws. I cannot take that step. In this Nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor. FILM BULLETIN January 7S. 1954 Page 7