Sunday, December 31, 1922. New Year's Eve.

It was New Year's Eve, 1922.

That meant a lot of parties.  Parties occurring during Prohibition.  A fair number of them were dry, but a fair number were not.

French Prime Minister Raymond Poincare rejected German Chancellor Wilhelm Cuno's proposal for a non-aggression pact with Germany, which would have replaced French troops in the Rhineland with an international disinterested force.

Frankly, were I Poincare, I would have rejected it also.  What international force, following the Great War, would have even qualified as disinterested?

We mentioned Cuno here the other day, he was an economist.  Of some interest, he was born in 1876 and would die in 1933.  Poincare was born in 1860, and would outlive him, dying in 1934.

The Nine Power Treaty went into effect.  We've run the text of the treaty, signed by the U.S. France, Italy, Belgium, the Netherlands, Japan, the United Kingdom, Portugal, and China previously.

United States Supreme Court Justice Mahlon Pitney retired following his having suffered a stroke.

Justice Pitney.

Pitney was conservative, but also a libertarian, and has received praise in the modern era for being consistently libertarian.  He hailed from New Jersey, where his family had been located since colonial times, and only served for ten years before his stroke idled him.  He died in 1924 at age 66.

The Casper Daily Tribune had a cartoon on the cover regarding the Hays of the Hays Production Code, which we just discussed.

Babylon. . . um, then or now?

 An original epic set in 1920s Los Angeles led by Brad Pitt, Margot Robbie and Diego Calva, with an ensemble cast including Jovan Adepo, Li Jun Li and Jean Smart. A tale of outsized ambition and outrageous excess, it traces the rise and fall of multiple characters during an era of unbridled decadence and depravity in early Hollywood.

Description of the movie Babylon.

Seriously?

Well, in keeping with the ostensible focus of this site, let us first acknowledge that early Hollywood was a complete moral sewer.  I haven't seen, obviously, Babylon (nobody in the general public has yet) and I'm not going to, but it would frankly be difficult to inaccurately depict the moral depravity of early Hollywood by going too low. . . which is what makes it the perfect topic for Hollywood today, doesn't it?

Before the Hayes Production Code came in, in 1934, movies were unrestrained by any standards other than community and local ones, and they plumbed the depth as far as they could.  As we earlier noted:

The Hays Production Code of 1934 had been a voluntary code that the movie industry had imposed upon itself to prevent further regulation due to outcry of the moral content of early films, some of which were outright pornographic even when aimed at a general audience and even when camouflaged with supposedly religious themes with even such moviemakers as Cecil B. DeMille taking that approach.  The code had imposed eleven items that were outright prohibited in films, including nudity and associated sexual portrayals, but also banned such items as profanity, disrespect to the clergy, childbirth and willful offense to any religion or race.  It also included twenty five items that film makers were required to be careful about in their depictions.

Indeed, illustrating the above, Cecil B. DeMille, whom we associate with Biblical epics like The Ten Commandments, released a "Biblically" themed silent movie which still receives viewer warnings today due to such scenes depicting female "saints", in Roman times, writhing in agony, nude, chained to columns.  People went to see that in order to see nude women on the screen and have some excuse for it.  It was pornography then, and it remains pornography now.

And not just that, although that's a spectacular example.  Fairly routinely moviemakers slipped in nude scenes of women to see how far they could go.  One famous example involving a well known actress then and post code had a brief snipped of the actress emerging from a bathtub.  It's apparently really brief, but the point was she was nude.  Filming nude swimming actresses was pretty common, barely obscuring them.  You get the point.

And not just that. The moral tone of movies itself was often amazingly low.  Indeed, many popular films of the pre code era were refilmed shortly after the code was put in place, in part because they could still be viewed.  1940's beloved Waterloo Bridge was a remake, for example, of the 1931 variant by the same name.  IMDB provides the plot line for the 1931 version as this:

In World War I London, Myra is an out-of-work American chorus girl making ends meet by picking up men (i.e, by being a prostitute) on Waterloo Bridge. During a Zeppelin air raid she meets Roy, a naive young American who enlisted in the Canadian army. They fall for each other, and he tricks her into visiting his family, who live in a country estate outside London, where his stepfather is a retired British Major. However, Myra is reluctant to continue the relationship with Roy because she has not told him about her past.

The 1940's variant? Well:

On the eve of World War II, a British officer revisits Waterloo Bridge and recalls the young man he was at the beginning of World War I and the young ballerina he met just before he left for the front. Myra stayed with him past curfew and is thrown out of the corps de ballet. She survives on the streets of London, falling even lower after she hears that her true love has been killed in action. But he wasn't killed. That those terrible years were nothing more than a bad dream is Myra's hope after Roy finds her and takes her to his family's country estate.

A little different. . . ^{1  2}

As far ago as a century back, it was widely known that actors and actress in Hollywood were a libertine set, which they remain.  Scandals surfaced early on, with marriages breaking up and affairs sufficiently rife in order to hit print from time to time.  While social standards generally remained fairly high in American society itself.  People basically turned a blind eye to it, as long as it didn't surface.

Of course, it did surface spectacularly with the death of Virginia Rappe, an actress now remembered only for her death.  We had an item back on that in 2021, which we will repeat here in its entirety, as it is realevant to this entry:

Labor Day, September 5, 1921. The Wages Of Sin

On this day in 1921 one of the most infamous, most misreported, and one of the most still most mysterious deaths in Hollywood history occurred.  And one that features all the things that still cause Hollywood to fascinate and repel.

The death of young actress Virginia Rappe.

Even though the critical events in the death of Rappe, then age 26, occurred at a party, where lot of people were around, what really occurred leading to her untimely death remains a mystery.  From what seems to be clear, we can tell the following.

Rappe was a guest at a party hosted by Fred Fischbach, a friend of celebrated silent movie comedian Roscoe "Fatty" Arbuckle.  The party was partially in celebration of a hit Arbuckle movie, Crazy To Marry.  The five reel movie was a recent release and doing well, although it is now obscure and may be in the category of lost film (I'm not sure of that).  At the time, Arbuckle was making $1,000,000 a year from films, a gigantic sum not only now, for most people, but particularly then, given the respective value of a dollar compared to now.  Arbuckle, we'd note, was married, with his spouse at the time being Minta Durfee, although the couple had recently separated.  In spite of that, it should be further noted, Durfee would call Arbuckle in later years the most generous man she'd ever met, and that in spite of their 1925 divorce, if given the choice, she'd do it all again.

Minta Durfee.

Fischback rented three hotel rooms, and, in the spirit of the times, supplied them with large quantifies of bootleg booze.  Rappe was an invited guest, and arrived with  Bambina Maude.  At the party Rappe drank a lot of alcohol.  At some point in the party it seems that he and Rappe went into room 1219 of the hotel alone, and shortly thereafter some sort of commotion occurred, Arbuckle emerged and Rappe was desperately sick.  She was taken to the hospital and died four days later from a ruptured bladder and peritonitis.

One of the hotel rooms after the party.

Arbuckle was arrested and accused of rape and manslaughter, with an essential element of the accusation being that forced sex had caused Rappe's death.

Seems, at first blush, clear enough, but it gets very confused from there.

Arbuckle maintained his innocence throughout.  He was tried three times, resulting in two mistrials, and then an acquittal.  Bambina Maude was a witness in the story, filling in lurid details, but she was later revealed to be a procurer who used that role to blackmail recipients of the favors she'd arranged to supply, although there was no evidence that she was acting as a procurer at the time of the attendance at the party.  Indeed, while there are multiple stories as to what occured, one of the versions that exists is that the room that Rappe went into was the only one with a bathroom and she went into it to throw up, going through the bedroom where Maude was having sex with a movie director. In that version, which isn't the only one, Arbuckle went in the room to carry the collapsed Rappe out. ^[1]. 

The final jury apologized to Arbuckle for what he'd been through. And, indeed, it seems fairly clear that whatever occurred between Arbuckle and Rappe, it wasn't that which resulted in her death, but rather a chronic medical condition that was exacerbated by alcohol.  It's likely her drinking at the party, which killed her.

Rappe, who was at one time regarded as the "best dressed girl in films".

Even that, however, doesn't flesh the entire tragic story out.  Rappe was only 26, but by that age was already a photographic veteran, having worked as an orphan raised by her grandmother as a model since age 14.  She had some trouble holding alcohol and was inclined to strip when drunk.  She'd been the live in with Henry Lehamn only fairly recently, to whom she'd been engaged.  According to at least some sources, which may be doubted given that they are a century old, she was freer with her affections than the norms of the time would have endorsed.

What occurred between Arbuckle and Rappe is not known and never well be and now too much time has passed to sort it out.  About as much as we can tell is that it seems that Arbuckle might have made some sort of advance on Rappe and that at first Rappe might have welcomed it.  That she was desperately ill is clear.  Her illness killed her.

This, in turn, provides an interesting look at public morals and standards, then and now.  At least some of the conduct Rappe and Arbuckle were engaging in was immoral by Christian standards, and Christian standards were clearly the public standards of the day.  Be that as it may, it's clear that in his trials, the fact that Arbuckle was doing something with a drunk woman doesn't seem to have been held against him, or at least it ultimately wasn't.  Of course, maybe the jurors didnt' feel he was doing anything with her, or even aiding her, or at least some must have thought that in all three trials.  If Arbuckle was advancing on her, it most definitely would be regarded as improper today.  Having said that, it wasn't all that long ago that "get her drunk" was sort of a joke which implied that inebriation to the point of being unable to consent was consent.

Arbuckle's career would never recover from the evening.  Perhaps, in some ways, it shouldn't have.  He wasn't a killer, but what occurred was unconscionable for other reasons. .  reasons we seemingly have managed to forget, however, over the years.  Even after his acquittal he was more or less blackballed in the industry for a time, and then when that was lifted his star power was gone.  He changed his name and made a much smaller living behind the scenes before starting to stage a minor comeback in the 1930s.  He died in 1933 in a hotel room from a heart attack.  He was 46.

Arbuckle movie poster from 1932.

It's interesting to see how this event compares to contemporary ones.  We have a person in attendance at the party who associated with the rich and famous whose role seems to have been supplying female favors (Maude), much like Jeffrey Epstein and his hangers on have been accused of.  We have a Hollywood set who lived personal lives that departed greatly from public standards, something that's still the case, although less so now as standards have declined so much, and we might have some sort of sexual contact between a male Hollywood figure and a very drunk actress (or not), something that in our contemporary culture would be a career ending event irrespective of the accusations of rape.  Indeed, accusations of rape in Hollywood, not all of which are substantiated, have become very common in recent years.

In the end it was a terrible tragedy.  People thought they were going to a party  Rappe probably knew she was drinking too much.  Arbuckle surely knew he shouldn't make advances on her.  Death came like a "thief in the night", which nobody anticipated.

On the same day, elsewhere, the League of Nations convened for the second time and admitted Albania, Austria, Bulgaria, Finland and Luxembourg.

Footnotes:

1  Yet another version, upon which a book was written asserts that Rappe had received  botched abortion that had nicked her bladder, and it ruptured when she tickled Arbuckle and he accidentally kneed her.  

Others criticize that assertion, which would by definition be based on a large element of speculation.  It seems based on Rappe having reported received something like five prior abortions in an era when they were all fully illegal.

Rappe's death remains a tragedy, but the wider details of how the overall situation came about, sex, abortions, alcohol and the like, are pretty beyond the pale even now.

Or are they?

Nothing since Rappe's death in 1921 has improved, morally, in Hollywood.  Indeed, the irony of Babylon is that moral depravity that was recognized as such in 21 is celebrated now, in no small part because Hollywood always recognized that going below a moral standard generated income.  The problem always was that once you erode a standard, you need to go still lower still.

Which in one way brings us back around to Babylon.  Apparently it contains an orgy scene.  Is that something unreasonable to depict as to Hollywood in 21?  No, not really.

Could such a scene have been included in a movie in 21?  Frankly, probably. Which is why the Code came about.

Reports hold that the actresses who were filmed in the orgy scene were worried it would be cut out of the movie.  It was, of course, not.

Why would it have been.  Post code, the moral standard today are much lower than they were in a century ago.  The movie might not even be a success, moral depravity and all. And part of the reason for that is depicting the shocking violation of a moral standard, which in our heart of hearts we know remains one, might not be all that interesting when we already figure this is pretty much how Hollywood is today.

Harvey Weinstein. . .Jeffrey Epstein. . .your cue to appear on screen has been lit.

Footnotes:

1. The plot of the first version is remarkably similar to one of the vignettes in Rosellini's Paisan.

2.  Humphrey Bogart version of The Maltese Falcon is also a remake.  For one thing, the first version had veiled references to homosexuality in it.  Reportedly the second version is almost word for word the same as the first, but for things offending the code removed.

The Motion Picture Rating System introduced, October 7, 1968.

On this day in 1968, Jack Valenti, head of the Motion Picture Association of America, announced that the movie industry was introducing a new rating code and rejecting the Hays Production Code.

The move was momentous and frankly has not been a success, even though the American public has become highly acclimated to it.   At the time, Valenti claimed that the movie industry would no longer approve or disapprove the content of a film, but would "now see our primary task as giving advance cautionary warnings to parents so that parents could make the decision about the movie going of young children".  In reality, it was a vehicle for the industry to bypass the restrictions of the Hays Code and introduce more permissive material.

The original ratings were G, M (mature), R and X. R required a parent to attend with a person under sixteen years of age, and X prohibited entry by those under age 16.  Given this, even the original restrictions contemplated allowing entrance to minors to the most restricted films.

The Hays Production Code of 1934 had been a voluntary code that the movie industry had imposed upon itself to prevent further regulation due to outcry of the moral content of early films, some of which were outright pornographic even when aimed at a general audience and even when camouflaged with supposedly religious themes with even such moviemakers as Cecil B. DeMille taking that approach.  The code had imposed eleven items that were outright prohibited in films, including nudity and associated sexual portrayals, but also banned such items as profanity, disrespect to the clergy, childbirth and willful offense to any religion or race.  It also included twenty-five items that filmmakers were required to be careful about in their depictions.

Actual adherence to the code had been breaking down by the 1950s, and the introduction of a new set of standards was likely inevitable.  Critics have noted, however, that the content of films changed extraordinarily rapidly after filmmakers were allowed to openly ignore the earlier restrictions on movie making and essentially make any film, as long as a warning of its content was attached to it.  Movie theater adherence to policing the code has been problematic and the original set of ratings has been changed at least twice in an effort to give them at least some teeth, largely unsuccessfully.

Tuesday, February 23, 1915. Movies aren't speech (well, yes, they are).

The U.S. Supreme Court decided in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915) that movies were not speech, upholding Ohio's film censorship board.  The Court stated:

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF OHIO

Syllabus

Where provisions for censorship of moving pictures relate only to films intended for exhibition within the state and they are distributed to persons within the state for exhibition, there is no burden imposed on interstate commerce.

The doctrine of original package does not extend to moving picture films transported, delivered, and used as shown in the record in this case, although manufactured in, and brought from, another state.

Moving picture films brought from another state to be rented or sold by the consignee to exhibitors are in consumption and mingled as much as from their nature they can be with other property of the state, and subject to its otherwise valid police regulation, even before the consignee delivers to the exhibitor.

The judicial sense, supporting the common sense of this country, sustains the exercise of the police power of regulation of moving picture exhibitions.

The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit like other spectacles, and not to be regarded as part of the press of the country or as organs of public opinion within the meaning of freedom of speech and publication guaranteed by the Constitution of Ohio.

This Court will not anticipate the decision of the state court as to the application of a police statute of the state to a state of facts not involved in the record of the case before it. Quaere whether moving pictures exhibited in places other than places of amusement should fall within the provisions of the censorship statute of Ohio.

While administration and legislation are distinct powers and the line that separates their exercise is not easily defined, the legislature must declare the policy of the law and fix the legal principles to control in given cases, and an administrative body may be clothed with power to ascertain facts and conditions to which such policy and principles apply.

It is impossible to exactly specify such application in every instance, and the general terms of censorship, while furnishing no exact standard

Page 236 U. S. 231

of requirements may get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. Whether provisions in a state statute clothing a board or Congress composed of officers from that and other states with power amount to such delegation of legislative power as to render the provisions unconstitutional will not be determined by this Court in a case in which it appears that such Congress is still nonexistent.

The moving picture censorship act of Ohio of 1913 is not in violation of the federal Constitution or the Constitution of the State of Ohio either as depriving the owners of moving pictures of their property without due process of law or as a burden on interstate commerce, or as abridging freedom and liberty of speech and opinion, or as delegating legislative authority to administrative officers.

215 F. 138 affirmed.

Appeal from an order denying appellant, herein designated complainant, an interlocutory injunction sought to restrain the enforcement of an act of the General Assembly of Ohio passed April 16, 1913 (103 Ohio Laws 399), creating under the authority and superintendence of the Industrial Commission of the state a board of censors of motion picture films. The motion was presented to three judges, upon the bill, supporting affidavits, and some oral testimony.

The bill is quite voluminous. It makes the following attacks upon the Ohio statute: (1) the statute is in violation of §§ 5, 16 and 19 of Article 1 of the constitution of the state in that it deprives complainant of a remedy by due process of law by placing it in the power of the board of censors to determine from standards fixed by itself what films conform to the statute, and thereby deprives complainant of a judicial determination of a violation of the law; (2) the statute is in violation of Articles I and XIV of the amendments to the Constitution of the United States, and of § 11 of Article 1 of the Constitution of Ohio in that it restrains complainant and other persons from freely writing and publishing their sentiments; (3) it attempts to give the board of censors legislative power,

Page 236 U. S. 232

which is vested only in the general assembly of the state, subject to a referendum vote of the people, in that it gives to the board the power to determine the application of the statute without fixing any standard by which the board shall be guided in its determination, and places it in the power of the board, acting with similar boards in other states, to reject, upon any whim or caprice, any film which may be presented, and power to determine the legal status of the foreign board or boards, in conjunction with which it is empowered to act.

The business of the complainant and the description, use, object, and effect of motion pictures and other films contained in the bill, stated narratively, are as follows: complainant is engaged in the business of purchasing, selling, and leasing films, the films being produced in other states than Ohio, and in European and other foreign countries. The film consists of a series of instantaneous photographs or positive prints of action upon the stage or in the open. By being projected upon a screen with great rapidity, there appears to the eye an illusion of motion. They depict dramatizations of standard novels, exhibiting many subjects of scientific interest, the properties of matter, the growth of the various forms of animal and plant life, and explorations and travels; also events of historical and current interest -- the same events which are described in words and by photographs in newspapers, weekly periodicals, magazines, and other publications, of which photographs are promptly secured a few days after the events which they depict happen, thus regularly furnishing and publishing news through the medium of motion pictures under the name of "Mutual Weekly." Nothing is depicted of a harmful or immoral character.

The complainant is selling and has sold during the past year for exhibition in Ohio an average of fifty-six positive prints of films per week to film exchanges doing business in that state, the average value thereof being the sum of

Page 236 U. S. 233

$100, aggregating $6,000 per week, or $300,000 per annum.

In addition to selling films in Ohio, complainant has a film exchange in Detroit, Michigan, from which it rents or leases large quantities to exhibitors in the latter state and in Ohio. The business of that exchange and those in Ohio is to purchase films from complainant and other manufacturers of films and rent them to exhibitors for short periods at stated weekly rentals. The amount of rentals depends upon the number of reels rented, the frequency of the changes of subject, and the age or novelty of the reels rented. The frequency of exhibition is described. It is the custom of the business, observed by all manufacturers, that a subject shall be released or published in all theaters on the same day, which is known as release day, and the age or novelty of the film depends upon the proximity of the day of exhibition to such release day. Films so shown have never been shown in public, and the public to whom they appeal is therefore unlimited. Such public becomes more and more limited by each additional exhibition of the reel.

The amount of business in renting or leasing from the Detroit exchange for exhibition in Ohio aggregates the sum of $1,000 per week.

Complainant has on hand at its Detroit exchange at least 2,500 reels of films which it intends to and will exhibit in Ohio, and which it will be impossible to exhibit unless the same shall have been approved by the board of censors. Other exchanges have films, duplicate prints of a large part of complainant's films, for the purpose of selling and leasing to parties residing in Ohio, and the statute of the state will require their examination and the payment of a fee therefor. The amounts of complainant's purchases are stated, and that complainant will be compelled to bear the expense of having them censored because its customers will not purchase or hire uncensored films.

The business of selling and leasing films from its offices

Page 236 U. S. 234

outside of the State of Ohio to purchasers and exhibitors within the state is interstate commerce, which will be seriously burdened by the exaction of the fee for censorship, which is not properly an inspection tax, and the proceeds of which will be largely in excess of the cost of enforcing the statute, and will in no event be paid to the Treasury of the United States.

The board has demanded of complainant that it submit its films to censorship, and threatens, unless complainant complies with the demand, to arrest any and all persons who seek to place on exhibition any film not so censored or approved by the censor congress on and after November 4, 1913, the date to which the act was extended. It is physically impossible to comply with such demand and physically impossible for the board to censor the films with such rapidity as to enable complainant to proceed with its business, and the delay consequent upon such examination would cause great and irreparable injury to such business, and would involve a multiplicity of suits.

There were affidavits filed in support of the bill and some testimony taken orally. One of the affidavits showed the manner of shipping and distributing the films, and was as follows:

"The films are shipped by the manufacturers to the film exchanges enclosed in circular metal boxes, each of which metal boxes is in turn enclosed in a fiber or wooden container. The film is in most cases wrapped around a spool or core in a circle within the metal case. Sometimes the film is received by the film exchange wound on a reel, which consists of a cylindrical core with circular flanges to prevent the film from slipping off the core, and when so wound on the reel is also received in metal boxes, as above described. When the film is not received on a reel, it is, upon receipt, taken from the metal box, wound on a reel, and then replaced in the metal box. So wound and so enclosed in metal boxes, the films are shipped by the film

Page 236 U. S. 235

exchanges to their customers. The customers take the film as it is wound on the reel from the metal box, and exhibit the pictures in their projecting machines, which are so arranged as to permit of the unwinding of the film from the reel on which it is shipped. During exhibition, the reel of film is unwound from one reel and rewound in reverse order on a second reel. After exhibition, it must be again unwound from the second reel from its reverse position and replaced on the original reel in its proper position. After the exhibitions for the day are over, the film is replaced in the metal box and returned to the film exchange, and this process is followed from day to day during the life of the film."

"All shipments of films from manufacturers to film exchanges, from film exchanges to exhibitors, and from exhibitors back to film exchanges, are made in accordance with regulations of the Interstate Commerce Commission, one of which provides as follows:"

" Moving picture films must be placed in metal cases, packed in strong and tight wooden boxes of fiber pails."

Another of the affidavits divided the business as follows:

"The motion picture business is conducted in three branches -- that is to say, by manufacturers, distributors, and exhibitors, the distributors being known as film exchanges. . . . Film is manufactured and produced in lengths of about 1,000 feet, which are placed on reels, and the market price per reel of film of a thousand feet in length is at the rate of 10 cents per foot, or $100. Manufacturers do not sell their film direct to exhibitors, but sell to film exchanges, and the film exchanges do not resell the film to exhibitors, but rent it out to them."

After stating the popularity of motion pictures, and the demand of the public for new ones, and the great expense their purchase would be to exhibitors, the affidavit proceeds as follows:

"For that reason, film exchanges came into existence, and film exchanges such as the Mutual Film Corporation are like clearing houses or circulating libraries, in that they purchase the film and rent it out to different exhibitors. One reel of film being made today serves in many theaters from day to day until it is worn out. The film exchange, in renting out the films, supervises their circulation."

An affidavit was filed, made by the "general secretary of the national board of censorship of motion pictures, whose office is at No. 50 Madison Avenue, New York City." The "national board," it is averred, "is an organization maintained by voluntary contributions, whose object is to improve the moral quality of motion pictures." Attached to the affidavit was a list of subjects submitted to the board which are "classified according to the nature of said subjects into scenic, geographic, historical, classical, and educational and propagandistic."

Page 236 U. S. 239

MR. JUSTICE McKENNA, after stating the case as above, delivered the opinion of the Court.

Complainant directs its argument to three propositions: (1) the statute in controversy imposes an unlawful burden on interstate commerce; (2) it violates the freedom of speech and publication guaranteed by § 11, Article 1, of the Constitution of the State of Ohio; [Footnote 1] and (3) it attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated.

It is necessary to consider only §§ 3, 4, and 5. Section 3 makes it the duty of the board to examine and censor motion picture films to be publicly exhibited and displayed

Page 236 U. S. 240

in the State of Ohio. The films are required to be exhibited to the board before they are delivered to the exhibitor for exhibition, for which a fee is charged.

Section 4.

"Only such films as are, in the judgment and discretion of the board of censors, of a moral, educational, or amusing and harmless character shall be passed and approved by such board."

The films are required to be stamped or designated in a proper manner.

Section 5. The board may work in conjunction with censor boards of other states as a censor congress, and the action of such congress in approving or rejecting films shall be considered as the action of the state board, and all films passed, approved, stamped, and numbered by such congress, when the fees therefor are paid, shall be considered approved by the board.

By § 7, a penalty is imposed for each exhibition of films without the approval of the board, and by § 8, any person dissatisfied with the order of the board is given the same rights and remedies for hearing and reviewing, amendment or vacation of the order "as is provided in the case of persons dissatisfied with the orders of the Industrial Commission."

The censorship therefore is only of films intended for exhibition in Ohio, and we can immediately put to one side the contention that it imposes a burden on interstate commerce. It is true that, according to the allegations of the bill, some of the films of complainant are shipped from Detroit, Michigan, but they are distributed to exhibitors, purchasers, renters, and lessors in Ohio, for exhibition in Ohio, and this determines the application of the statute. In other words, it is only films which are "to be publicly exhibited and displayed in the State of Ohio" which are required to be examined and censored. It would be straining the doctrine of original packages to say that the films retain that form and composition even when unrolling and exhibiting to audiences, or, being ready for

Page 236 U. S. 241

renting for the purpose of exhibition within the state, could not be disclosed to the state officers. If this be so, whatever the power of the state to prevent the exhibition of films not approved -- and, for the purpose of this contention, we must assume the power is otherwise plenary -- films brought from another state, and only because so brought, would be exempt from the power, and films made in the state would be subject to it. There must be some time when the films are subject to the law of the state, and necessarily when they are in the hands of the exchanges, ready to be rented to exhibitors, or have passed to the latter, they are in consumption, and mingled as much as from their nature they can be with other property of the state.

It is true that the statute requires them to be submitted to the board before they are delivered to the exhibitor, but we have seen that the films are shipped to "exchanges" and by them rented to exhibitors, and the "exchanges" are described as "nothing more or less than circulating libraries or clearing houses." And one film "serves in many theaters from day to day until it is worn out."

The next contention is that the statute violates the freedom of speech and publication guaranteed by the Ohio Constitution. In its discussion, counsel have gone into a very elaborate description of moving picture exhibitions and their many useful purposes as graphic expressions of opinion and sentiments, as exponents of policies, as teachers of science and history, as useful, interesting, amusing, educational, and moral. And a list of the "campaigns," as counsel call them, which may be carried on, is given. We may concede the praise. It is not questioned by the Ohio statute, and under its comprehensive description, "campaigns" of an infinite variety may be conducted. Films of a "moral, educational, or amusing and harmless character shall be passed and approved," are the words of the statute. No exhibition, therefore, or "campaign"

Page 236 U. S. 242

of complainant will be prevented if its pictures have those qualities. Therefore, however missionary of opinion films are or may become, however educational or entertaining, there is no impediment to their value or effect in the Ohio statute. But they may be used for evil, and against that possibility the statute was enacted. Their power of amusement, and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences. And not only the State of Ohio, but other states, have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. 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.

We do not understand that a possibility of an evil employment of films is denied, but a freedom from the censorship of the law and a precedent right of exhibition are asserted, subsequent responsibility only, it is contended, being incurred for abuse. In other words, as we have seen, the Constitution of Ohio is invoked, and an exhibition of films is assimilated to the freedom of speech, writing, and publication assured by that instrument, and for the abuse of which only is there responsibility, and, it is insisted, that as no law may be passed "to restrain the liberty of speech or of the press," no law may be passed to subject moving pictures to censorship before their exhibition.

Page 236 U. S. 243

We need not pause to dilate upon the freedom of opinion and its expression, and whether by speech, writing, or printing. They are too certain to need discussion -- of such conceded value as to need no supporting praise. Nor can there be any doubt of their breadth, nor that their underlying safeguard is, to use the words of another, "that opinion is free, and that conduct alone is amenable to the law."

Are moving pictures within the principle, as it is contended they are? They indeed may be mediums of thought, but so are many things. So is the theater, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press -- made the same agencies of civil liberty.

Counsel have not shrunk from this extension of their contention, and cite a case in this Court where the title of drama was accorded to pantomime, [Footnote 2] and such and other spectacles are said by counsel to be publications of ideas, satisfying the definition of the dictionaries -- that is, and we quote counsel, a means of making or announcing publicly something that otherwise might have remained private or unknown -- and this being peculiarly the purpose and effect of moving pictures, they come directly, it is contended, under the protection of the Ohio constitution.

The first impulse of the mind is to reject the contention. We immediately feel that the argument is wrong or strained which extends the guaranties of free opinion and speech to the multitudinous shows which are advertised on the billboards of our cities and towns, and which regards them as emblems of public safety, to use the words of Lord Camden, quoted by counsel, and which seeks to

Page 236 U. S. 244

bring motion pictures and other spectacle into practical and legal similitude to a free press and liberty of opinion.

The judicial sense supporting the common sense of the country is against the contention. As pointed out by the district court, the police power is familiarly exercised in granting or withholding licenses for theatrical performances as a means of their regulation. The court cited the following cases: Marmet v. State, 45 Ohio St. 63, 72-73; Baker v. Cincinnati, 11 Ohio St. 534; Commonwealth v. McGann, 213 Mass. 213, 215; People v. Steele, 231 Ill. 340, 344-345.

The exercise of the power upon moving picture exhibitions has been sustained. Greenberg v. Western Turf. Ass'n, 148 Cal. 126; Laurelle v. Bush, 17 Cal. App. 409; State v. Loden, 117 Md. 373; Block v. Chicago, 239 Ill. 251; Higgins v. Lacroix, 119 Minn. 145. See also State v. Morris, 1 Boyce (Del.) 330; People v. Gaynor, 137 N.Y.S. 196, 199; McKenzie v. McClellan, 116 N.Y.S. 645, 646.

It seems not to have occurred to anybody in the cited cases that freedom of opinion was repressed in the exertion of the power which was illustrated. The rights of property were only considered as involved. It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal

Page 236 U. S. 245

Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.

It does not militate against the strength of these considerations that motion pictures may be used to amuse and instruct in other places than theaters -- in churches, for instance, and in Sunday schools and public schools. Nor are we called upon to say on this record whether such exceptions would be within the provisions of the statute, nor to anticipate that it will be so declared by the state courts, or so enforced by the state officers.

The next contention of complainant is that the Ohio statute is a delegation of legislative power, and void for that, if not for the other reasons charged against it which we have discussed. While administration and legislation are quite distinct powers, the line which separates exactly their exercise is not easy to define in words. It is best recognized in illustrations. Undoubtedly the legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done, there would be infinite confusion in the laws, and, in an effort to detail and to particularize, they would miss sufficiency both in provision and execution.

The objection to the statute is that it furnishes no standard of what is educational, moral, amusing, or harmless, and hence leaves decision to arbitrary judgment, whim, and caprice; or, aside from those extremes, leaving it to the different views which might be entertained of the effect of the pictures, permitting the "personal equation" to enter, resulting "in unjust discrimination against some propagandist film," while others might be approved without question. But the statute by its provisions guards against such variant judgments, and its terms, like other

Page 236 U. S. 246

general terms, get precision from the sense and experience of men, and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies. This has many analogies and direct examples in cases, and we may cite Gundling v. Chicago, 177 U. S. 183; Red "C" Oil Manufacturing Co. v. North Carolina, 222 U. S. 380; Monongahela Bridge Co. v. United States, 216 U. S. 177; Buttfield v. Stranahan, 192 U. S. 470. See also Waters-Pierce Oil Co. v. Texas, 212 U. S. 86. If this were not so, the many administrative agencies created by the state and national governments would be denuded of their utility, and government in some of its most important exercises become impossible.

To sustain the attack upon the statute as a delegation of legislative power, complainant cites Harmon v. State, 66 Ohio St. 249. In that case, a statute of the state committing to a certain officer the duty of issuing a license to one desiring to act as an engineer if "found trustworthy and competent" was declared invalid because, as the court said, no standard was furnished by the general assembly as to qualification, and no specification as to wherein the applicant should be truthworthy and competent, but all was "left to the opinion, finding, and caprice of the examiner." The case can be distinguished. Besides, later cases have recognized the difficulty of exact separation of the powers of government, and announced the principle that legislative power is completely exercised where the law "is perfect, final, and decisive in all of its parts, and the discretion given only relates to its execution." Cases are cited in illustration. And the principle finds further illustration in the decisions of the courts of lesser authority, but which exhibit the juridical sense of the state as to the delegation of powers.

Section 5 of the statute, which provides for a censor

Page 236 U. S. 247

congress of the censor board and the boards of other states, is referred to in emphasis of complainant's objection that the statute delegates legislative power. But, as complainant says, such congress is "at present nonexistent and nebulous;" and we are therefore not called upon to anticipate its action, or pass upon the validity of § 5.

We may close this topic with a quotation of the very apt comment of the district court upon the statute. After remarking that the language of the statute "might have been extended by description and illustrative words," but doubting that it would have been the more intelligible, and that probably by being more restrictive might be more easily thwarted, the court said:

"In view of the range of subjects which complainants claim to have already compassed, not to speak of the natural development that will ensue, it would be next to impossible to devise language that would be at once comprehensive and automatic."

In conclusion, we may observe that the Ohio statute gives a review by the courts of the state of the decision of the board of censors.

Decree affirmed.

[Footnote 1]

"Section 11. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted."

[Footnote 2]

Kalem Co. v. Harper Bros., 222 U. S. 55.

This ruling, rather obviously, is not the current state of the law at all.

Pornographic content was already becoming a problem.

A court of inquiry started on the causes of the Singapore Mutiny.

Joseph Davilmar Théodore was forced to resign as President of Haiti following a counter-revolution.

Last edition:

Monday, February 22, 1915. Long shot.

Labels: 1910s, 1915, British Army, Second Battle of the Masurian Lakes, World War One