Censors for Free Speech

Jack Valenti's legacy

Jack Valenti, the long-reigning king of the Hollywood lobbyists, died last Thursday, nearly four decades after he fathered the Motion Picture Association of America's movie rating system. It is thanks to Valenti that compact codes like "PG" and "NC-17" define who is allowed to watch a film in a theater and who must wait 'til he's 18 or the picture comes out on video, whichever happens first.

From the beginning, the movies have faced not just direct government censorship but unofficial, semi-voluntary restrictions by private bodies within the industry, formed to forestall more intrusive regulations imposed from without. Three such efforts stand out, each emerging during a period associated with liberal reform. The National Board of Censorship, born in 1909, was a product of the Progressive Era. The Production Code Administration got its teeth in 1934, not coincidentally the second year of the New Deal. And the modern MPAA ratings were created by a former aide to Lyndon Johnson in 1968, at the tail end of the Great Society. Each system was different from the others, but all embodied the same paradox: They were formed to fend off public censorship, but it was the threat of public censorship that gave them their power.

Movies did not initially enjoy the protection of the First Amendment, and state and local governments almost immediately passed rules radically restricting what could be screened. The U.S. Supreme Court ratified such censorship in Mutual Film Corp. v. Industrial Commission (1915), declaring that "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." Congress was more cautious about dipping its toes into content regulation, but it still managed to pass, for example, the Smith Act of 1912, which banned the transport of fight films across state lines. As early as 1916, members of the industry were adopting sometimes bizarre maneuvers to escape such edicts. In April of that year, a small party of entrepreneurs erected a tent on the boundary separating New York from Quebec. Over the course of five days, they projected a film of Jack Johnson's heavyweight fight against Jess Willard from one side of the border to the other, where it was rephotographed on American soil. During the procedure, the original negative was approximately one foot into Canadian territory; a customs official kept close watch to ensure that no one carrying it ever stepped onto U.S. soil. The idea was to import the images without actually importing the film—a clever, ridiculous, and ultimately doomed attempt to evade the Smith Act.

Rumors soon claimed that the effort had been an elaborate feint: not a way to import a movie so much as an alibi after the movie was found on American soil. If so, the process was even more revealing. To project a movie over a national frontier to avoid the law is odd enough, but to do it as a cover story is positively baroque.

And the Smith Act was relatively lenient. On Christmas Eve, 1908, New York Mayor George McClellan, Jr., the son of the Civil War general, shut down all the city's movie theaters. Theoretically this was a public health measure—the venues were denounced as dirty and cramped—but the real reason for the command was pressure from anti-movie moralists, from nativists who distrusted the theaters' immigrant audiences, and from vaudeville houses and other institutions that didn't like the competition. The mayor's decision was soon rescinded, but the prospect of losing the entire New York market rattled the movie business. So the Motion Picture Patents Company, a patent pool cum cartel that was the industry's most powerful player, allied itself with the People's Institute, a New York-based Progressive group. The result was the National Board of Censorship. The Progressives, the historian Nancy Rosenbloom wrote, "hoped to create better alternatives to saloons, dance halls and the streets" by "transforming the moving picture shows into cleaner, safer social centers and by encouraging the production of quality entertainment." To that end, they signed on to the new National Board, which soon became, paradoxically, both the chief censor of motion picture content and the chief force fighting legal censorship.

In more recent years, it seemed strange that when would-be censors attacked films they judged too erotic or violent, the chief spokesman for free speech would often be Valenti, the creator of a ratings system that routinely enforces repressive and inconsistent standards. But he was hardly the first man to play that contradictory role. For a period in the 1910s, Frederic Howe was simultaneously the chair of the National Board of Censorship and a vocal opponent of government censorship, helping to lead a legal fight against political interference in film content. If that wasn't confusing enough, Howe's most notorious conflict with the rest of the board came not because he judged the group too strict but because he thought it was being too lenient: He was upset that it had approved D.W. Griffith's pro-Klan epic The Birth of a Nation.

Independent filmmakers have long charged the MPAA with discriminating against movies made outside the major studios. In the Progressive Era, similarly, investigators accused the National Board of colluding with the Patents Company to penalize pictures made by filmmakers outside the cartel. If the collusion was real, it ended in 1915, after an antitrust suit broke up the Patents Company. After that, the board's influence faded; it soon renamed itself the National Board of Review, and today it is known mostly for its annual film awards. Many movie critics wish they could be censors. These censors were reduced, or elevated, to the status of critic.

The feds imposed draconian controls during World War I—one filmmaker was actually imprisoned for making a movie about the American Revolution, on the grounds that it might "create a prejudice" against our ally Great Britain—but afterwards the crackdowns would return to the state and local levels. There would be no effective nationwide restrictions on movie content until 1934, when the liberal Motion Picture Research Council and the conservative Legion of Decency were both fanning calls for controls, Congress was considering several bipartisan censorship bills, and FDR's National Recovery Administration was imposing its own code on the industry, complete with content rules. In that environment, Hollywood rushed to create an internal enforcement body lest it have to answer to someone else. Henceforth, mainstream American filmmakers would have to obey a set of dos and don'ts in which "methods of crime shall not be explicitly presented," "sex perversion or any inference to it is forbidden," and "scenes of actual childbirth, in fact or in silhouette, are never to be presented." Films could not "throw ridicule on any religious faith," seduction was "never the proper subject for a comedy," and vengeance could not be justified "in modern times," though "in lands and ages of less developed civilization and moral principles, revenge may sometimes be presented."

The code would remain in place until 1968, when Valenti's ratings supplanted it. But the commands started to lose their force after 1952, when the Supreme Court ruled in Burstyn v. Wilson that the First Amendment protects motion pictures after all. The decision revoked the regs imposed by state and local prudes and scaled back the threat of federal censorship; between that and changing social mores, filmmakers such as Alfred Hitchcock and Billy Wilder were soon getting away with material that never would have passed the censors in the '30s. By sweeping away the increasingly archaic Production Code, the MPAA ratings looked like a blow for free expression. Instead of restricting information with censorship, the judges would increase the available information, with classifications aimed at letting potential patrons know just what to expect.

It didn't work out that way. According to Valenti, the original proposal didn't include a rating stronger than R, but the National Association of Theater Owners objected, arguing that allowing minors to see extremely explicit films would leave the venues open to legal harassment. The result was the X rating, now called the NC-17, which before long was associated so closely with pornography that it became the kiss of death for any non-porn film that received it. The ratings, meanwhile, are imposed by a shadowy central authority with its own peculiar prejudices. Many filmmakers have questioned the workings of that mysterious council. In Kirby Dick's documentary This Film Is Not Yet Rated, for example, Matt Stone contrasts the treatment given his early film Orgazmo, released independently, and his later effort South Park: Bigger, Longer, and Uncut, released by a major studio. When the first cut of Orgazmo got an NC-17, he reports, the MPAA said it was "for the overall sexual content"; asked if there was any way to recut the picture to get an R, the association said they were welcome to submit a new version but "we don't give specific notes." With South Park, by contrast, Stone says the board "was extremely specific"—they were told to remove "this word, this line, this joke." When Orgazmo was released, it still had an NC-17. South Park went out with an R.

The MPAA has a lot of influence, but it can't really block an unrated film from theaters. It has become much less difficult, though hardly painless, to put out a movie without its stamp of approval, and even the big studios are happy to avoid their own rules when it comes time to call in those theatrical prints and issue an uncensored director's cut on DVD. But even as the system grows weaker, battered by the less-regulated alternatives of the Internet and home video, the drive to control what people can say and hear continues unabated. It merely shifts its focus to a different medium.

The day before Jack Valenti died, the Federal Communications Commission released a dubious report about violent television's alleged effects on children. It ended with a call for new regulations, and while those proposals are couched—like the movie ratings—in the language of consumer choice, it's hard to miss the authoritarian impulse that runs through the report. The government wants to control what people see. "Violent speech and depictions of violence have been found by the courts to be protected by the First Amendment," the commission concedes. But then it quotes the Supreme Court's 1978 Pacifica decision, which noted that broadcasting receives "the most limited First Amendment protection." The report suggests, among other approaches, that Congress restrict violent programming to particular hours of the day. (The FCC, apparently unable to program its VCR, seems to assume the same is true of the country's children.) Members of Congress have gone further, speculating routinely about imposing the FCC's indecency rules on cable and satellite broadcasters. In the most radical proposals, pushed by Sen. Ted Stevens (R-Alaska) and others, such controls would be extended even to premium channels such as HBO, disrupting the creative freedom of The Sopranos, The Wire, Deadwood, and other landmark works of art that simply couldn't exist as either network TV shows or theatrical movies.

I don't expect that particular scenario to happen. But that doesn't mean there won't be any new encroachments on televised speech. As the regulators close in, the time will be ripe for a new Jack Valenti or Frederic Howe to emerge -- a great compromiser who can repel formal censorship by extending the informal kind, its nominally voluntary nature belied by the guns of the government lurking behind it.

Jesse Walker is managing editor of reason.

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