Dirty Words and Filthy Pictures: Film and the First Amendment
by Jeremy Geltzer
Austin: University of Texas Press, 2016. 384 pp., illus. Hardcover: $85.00 and Paperback: $29.95.

Reviewed by Thomas Doherty

Despite the perennial legal troubles of its subject, cinema studies prefers screening rooms to courtrooms. No argument here: nothing, not even the spacey stratospheres of high film theory, can make the eyes glaze over like the arcane prose and circuitous reasoning of American case law—depositions, evidence, expert testimony, appeals, lawyerly convolutions, and writs of certiorari, whatever they are.

Yet the motion picture industry has run afoul of the criminal justice system too often to neglect its rap sheet, whether as a business, where the action swirls around the interstate commerce clause, or as a medium of expression, where the fine print is in the First Amendment. The canon of landmark cases collides with the canon of landmark films only incidentally, but if no Citizen Kane, The Searchers, or Vertigo enliven the reading, we do get Fatima’s Coochee-Coochee Dance, This Nude World, The Birth of Baby, The Miracle, and, yes, Deep Throat.

Jeremy Geltzer, an intellectual property attorney who has served time at Paramount, Warner Bros., Disney, and Lionsgate, offers a plain-spoken parallel history of the movies in which the exhibits submitted into evidence glow only dimly with the aura of art. Highlighting instead “the motion pictures that expanded fundamental freedoms,” he seeks to “chronicle the century-long balance between free expression and government regulation of content.” Though the judicial decisions are conscientiously cited and chewed over, Geltzer favors an accessible style that avoids legalese. He wants the jury awake and alert. There are few Perry Mason moments, but the steady preponderance of evidence makes the case that the intersection of law and cinema generates its own kind of courtroom drama.

Plaintiff and defendant certainly have a long record of litigious face-offs. 35mm celluloid had no sooner sped through the projector gate than regulators and censors sought to shut down the show. Surely, an art for the unwashed masses, apprehensible to non-English speaking immigrants with bad habits and dubious morals, could only spell trouble for social order and spiritual uplift. Sundry blue-noses, moral guardians, and progressive reformers narrowed their eyes at the scandalous smooches and ridiculous cops. Nickelodeons were breeding grounds for unbridled lust and rebellious impulses.

Being good Americans, the filmmakers took the fussbudgets to court. Bad idea. In 1915, the very year that The Birth of a Nation was proving otherwise, in Mutual Film Corporation v. Industrial Commission of Ohio, the Supreme Court ruled unanimously that motion pictures were not covered under the First Amendment, but were “a business pure and simple,” and, as a business, may be regulated by the state the same way the Food and Drug Administration regulated meat: grade it, cut it, or ban it outright. The landmark decision kept American cinema out of the U.S. Constitution for thirty-seven years. For defenders of the nascent medium, writes Gletzer, “the approach changed from the ideological stance that all movie censorship is wrong to the more narrowly focused stance that censorship of this movie is wrong.”

Given a green light by the Supremes, state and municipal censor boards—a patronage racket packed with local busybodies and political hacks—proliferated. The anticinephiles set their sights on the blights that were the main attractions of cinema: sex, violence, and insolent (insurrectionist?) behavior. Geltzer profiles some of the most colorful scissors-wielders, men with Dickensian names such as Chicago’s mercurial Major Metellus Lucullus Cicero Funkhouser, who from 1913 to 1918 made the Second City first in bonehead censorship; Memphis’s virulently racist Lloyd C. Linford, who banned Hal Roach children’s film Curley (1947) for depicting a multicultural cohort of little rascals in integrated classrooms; and Pennsylvania’s Justice Michael Musmanno who was immune to the charms of Brigitte Bardot in …And God Created Woman (1956).

The vagaries, stupidities, and expenses of a crazy quilt of municipal censors, at a time when a county sheriff could take it upon himself to shut down the local Bijou, explains why the Hollywood moguls embraced a regime of self-censorship with such fervor in 1934. Besides keeping the Catholic Legion of Decency from boycotting motion picture theaters, the Production Code Administration had the collateral advantage of solidifying the cartel that was the classical Hollywood studio system—no studio-affiliated theater, or theater that wanted to book studio films, was permitted to play a film without a Code seal. From 1934 until 1954, Production Code head Joseph I. Breen presided over a clean regime of “self-censorship,” which was fine by Hollywood…

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