Is Hollywood covered by the First Amendment, and if so, how could the censors get away with what they did from the thirties to the sixties?
The First Amendment applies to all speech and that includes things like art, music and movies. Censors merely rate movies. You can say anything you like in a movie but the censors may decide to give it an X rating which won’t help sales of your movie (unless it was intended to be pornography in the first place).
As regards TV the idea was that all citizens own the airwaves thus the government should regulate what gets beamed through the air. Cable changed that because you did not need cable. You had to make a proactive step on your part to bring that to your house as opposed to radio waves that are around you like it or not. Hence cable can get away showing most anything they like…especially when the stuff that is likely to be offensive to some people has to be paid extra for anyway thus making you doubly proactive in allowing that content into your house.
As for film censorship up until the 60s, the censors got away with it because no on challenged the law. Hollywood set up its production code – voluntary, so there was no first amendment violation – but many states had boards of censors that licensed films. No one objected to them enough to take them to court.
And though the production code was voluntary, any filmmaker who ignored it would find that theaters wouldn’t show the films and groups (like the Legion of Decency) would boycott the films. That led to a lot of pressure to stay in line.
The movie companies also had their own censors. The companies did not want anything that could offend a large group of people.
Even today, the movie companies are careful about sensitive topics.
The First Amendment has never been absolute. Obscenity was, and continues to be, something that is not “protected speech.” Obscenity has always been defined by local standards, so if something was “banned in Boston” (and several movies were) it was up to the movie distributor to prove that the movie was not obscene in Boston, by Boston standards.
Most studios found it easier to edit the movie to Boston standards.
Obscenity is nominally not protected by the First Amendment. However, when is the last time a court ever ruled that something was obscene under the Miller test? Barring child pornography, which is not protected for reasons other than obscenity, it seems to me that under current American law, obscenity is a fiction.
acsenray-
What is the Miller Test? Can you elaborate, please?
A complete understanding of the Hays Office isn’t complete unless you start with the Fatty Arbuckle scandal and its message that Hollywood was a modern day Sodom. The studios just accepted self-censorship to mollify politicians who would try to get votes by really clamping down. The comic-book industry did the same thing with the “Comics Code Authority”, a set of rules that said, above all, “Hey, we’re policing ourselves! Don’t bug us!”
Sorry, rivit –
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court set out a three-part definition of obscenity –
As far as I know, no expression has been found to constitute obscenity under this test. Being pro-free speech and an appreciator of sexually explicit expression, I myself would not be in favour of any restriction on pornography, but if obscenity law was meant to prohibit anything, wouldn’t it at the very least be meant to ban explicit visual depictions of sexual activity? Yet, I have never heard of a hard-core porn mag or an adult movie’s having been found to be obscene under this test. If that isn’t obscene, what is?
I suppose bestality and child pornography might qualify under this test (again, I’m not aware of a case that does make such a finding, but it’s possible that they are out there). Maybe I’m being a little naive here, but that’s pretty esoteric stuff, isn’t it? Even if it were protected expression, I wouldn’t expect there to be very much of it around.
In any case, as far as I know, banning of bestiality and child pornography is probably justified as a permissible restriction on otherwise protected speech under strict scrutiny, rather than a valid restriction on obscenity. I could be wrong though.
Crap, I messed up the coding. Administrator! Help!
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