John Wertheimer—Mutual Film Reviewed

John Wertheimer
" Mutual Film Reviewed: The Movies, Censorship, and Free Speech in Progressive America"
(1993)

[160] the nation's highest tribunal brushed aside the Mutual's claim to freedom of speech and of the press on the grounds that films did not qualify for such protection: "It cannot be put out of view," Justice McKenna wrote, "that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit." As such, movies were "not to be regarded, nor [were they] intended to be regarded by the Ohio Constitution, we think, as part of the press of the country." The bald fact that most newspapers, books, and other "part[s] of the press of the country" were also "originated and conducted for profit" seemed not to matter to the judges. ...

At the time, the Court's decision in the Mutual Film case met with general if not universal approval from the legal community. ...[e.g.] The Central Law Journal, which also endorsed the Court's decision, pointed out that because moving pictures appealed to "the other senses than the intellectual sense," they had no legitimate claim to freedom of the press.

But as the years passed, and as American opinion makers grew increasingly fond of both films and the First Amendment, support for the Mutual Film decision dried up and gave way to criticism.

...

[161] In English law, from which American law derived, advance censorship of theaters and shows was both widely practiced and widely accepted for centuries prior to 1915. The history of the censorship of public amusements in England extends at least as far back as the sixteenth century. ...

[162] One may wonder at the widespread acquiescence of the English people in this state of affairs more easily than one may doubt it. Through the eighteenth and nineteenth centuries, as Sir William Blackstone and others condemned prior restraints on the press as unacceptable infringements on English liberties, neither Blackstone nor any other notable English commentator applied similar logic to works of the theater. Owing perhaps to the popular belief that the stage possessed an extraordinary power to influence morals, "nearly everyone" in England accepted as legitimate the system of advance censorship established by statute in 1737. ...

It remains possible, however, that the United States, with its written constitutions, its Bills of Rights, and its free-speech traditions walked a freer path than did England... The lawyers for the Mutual Film Corporation certainly thought so. ... A glance at the past, however, reveals that although the stage may have been freer in America than it was in contemporary England or Europe, the Mutual's lawyers' faith in the American heritage of liberty was blind. The American past was replete with prior restraints on theatrical expression. Moreover, and just as significantly, prior to the Mutual Film Corporation's lawyers themselves, scarcely anyone in America had thought to argue that the governmental control of public amusements raised constitutional free-speech issues.

...

[163] Although theatrical bans passed through cycles of passage, expiration or repeal, and reinstatement, and although enforcement of such measures was inconsistent, the fact remains that prior constraints on theatrical exhibitions had long roots in American soil.

...

Some level of official control over the content of theatrical amusements persisted through the nineteenth centure and into the twentieth. A few states continued the colonial practice of banning all theatrical performances outright. ... More common than complete proscription, however, were two-tiered regulation mechanisms in which some sorts of shows were banned entirely while all other sorts had to be licensed in advance.

...

[165] Did these nineteenth-century laws licensing and prohibiting theatrical shows in advance violate American constitutional speech and press guarantees? More important than any answer is the observation that this was a question that nobody at the time thought to ask...

[emailed to self, 26 March 2021]