By Tom Head
Are moving pictures within the [free speech] 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 …The Mutual Film Corporation ruling is not, as many commentators have suggested, an explicit statement that the First Amendment cannot cover film—as until the incorporation doctrine was set out in Gitlow, state-level laws restricting free speech were not seen as part of the First Amendment's mandate to begin with—but its basic position, that film is a business industry rather than a full medium of expression, would remain the prevailing view until the 1950s. Despite this view, many films of the era continued to deal with morally complex themes, controversial topics, and sexuality.
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 Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.
But the implications of this code were bizarre, and substantially limited the ability of filmmakers to tell stories. The Code's servile attitude towards the law, for example, meant complete submission to Jim Crow laws—the Code explicitly banned depictions of interracial relationships (describing them as representative of "miscegenation"), and prevented criticism of unjust laws by requiring that "courts of the land should not be presented as unjust." Because the Code also established that members of the clergy "should not be used as comic characters or villains," pastors were presented as unrealistically saintly figures who could not disagree on matters of moral significance. Mere mention of Sodom, Amsterdam, and Babylon could have been regarded as too sexually explicit for the Hays Code censors, because these cities were "so closely and thoroughly associated with sexual life or with sexual sin that their use must be carefully limited." Films could not depict the early drug war, because "[t]he existence of the trade should not be brought to the attention of audiences." And the Hays Code would not have been complete without a cryptic parting shot at lesbians and gay men: "the love which society has always regarded as wrong and which has been banned by divine law," the Code states, "must not be made to seem right and permissible."
- 1. No picture shall be produced that will lower the moral standards of those who see it. Hence the sympathy of the audience should never be thrown to the side of crime, wrongdoing, evil or sin.
- 2. Correct standards of life, subject only to the requirements of drama and entertainment, shall be presented.
- 3. Law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation.