"Fighting For Freedom of the Screen: The Legal Battle
over State Film Censorship, 1930-1965."
University at Albany (SUNY)
Historians, lawyers, and journalists have debated for several decades whether the
United States has had a “legacy of suppression” (a phrase first used by Leonard W. Levy
in 1960),1 or whether America has fostered freedom of expression. The arguments have
gone back and forth for forty years.2 But, whether America suffered from Levy’s legacy
of suppression or whether the nation nurtured free speech, when movies burst onto the
cultural scene at the beginning of the twentieth century, the scales tipped decidedly
toward suppression. Those concerned about the nation’s moral tenor found the new
medium of moving pictures a menace to traditional values, and America’s urge to censor
(only at a simmer during the Victorian era) came to a full rolling boil in the era of the
nickelodeon. These moral reformers, who were just beginning to turn to state and local
governments for regulatory aid, demanded an unprecedented statutory prior restraint on
the new medium of film.
Leonard W. Levy, Freedom of Speech and Press in Early America: Legacy of Suppression (New York:
Harper & Row, 1963).Leonard W. Levy, Freedom of Speech and Press in Early America: Legacy of
Some who have argued in favor of the libertarian position in the controversy include David M. Rabban,
Free Speech in its Forgotten Years (Cambridge University Press, 1997).David M Rabban, Free Speech in
Its Forgotten Years (Cambridge University Press, 1997). and Zechariah Chafee, Free Speech in the United
States (Cambridge, Massachusetts: Harvard University Press, 1941).Those who argue the repressive side of
the controversy include Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early
American History (Cambridge, Massachusetts: Harvard University Press, 1960).Levy, Freedom of Speech
and Press in Early America: Legacy of Suppression. and Mark A. Graber, Transforming Free Speech: The
Ambiguous Legacy of Civil Libertarianism (Berkeley and Los Angeles: University of California Press,
1991).Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism
(Berkeley and Los Angeles: University of California Press, 1991). For more on this issue, see Margaret A.
Blanchard, "The American Urge to Censor: Freedom of Expression Versus the Desire to Sanitize Society -
From Anthony Comstock to 2 Live Crew," William and Mary Law Review 33 (1992).According to
The first governmental film censorship came in 1907 when Chicago empowered
its police to pass upon the suitability of films for the young and impressionable. In 1911,
Pennsylvania became the first state to authorize a censor board, an example followed
over the next ten years by Ohio, Kansas, Maryland, New York, and Virginia. All the
censorship statutes were remarkably similar: they authorized politically appointed
censors to restrict any films that might tend to tempt to criminal activity or immorality as
well as those deemed immoral, inhuman, sacrilegious, obscene, indecent.3 Eventually,
ninety to one-hundred local and state censorship boards would operate (some diligently,
some haphazardly), interfering with the profitability, intellectual freedom, and artistic
output of America’s most highly visible industry.4
In the progressive era, motion picture censorship was widely perceived as an
asset: something of benefit to the people, like meat inspection. And the urge to censor
films proved quite tenacious, hanging on into the 1960s. Moreover, it was different from
other forms of censorship practiced in the United States because it was prior restraint.
Unlike other censorious urges, like the attempts to control salacious literature,
photography, or theater (subject to control only after release to the public), prior restraint
of movies placed the burden of proof on the person who wished to communicate,
effectively reversing the usual legal process. In other words, if Mr. X had a book that
was considered dangerously obscene in mid-century America, no governmental body
Blanchard, Levy’s 1960 book received so much criticism that he released another version in 1985 in which
he argued that there had been some degree of a tradition of press and speech freedom.
Ohio and Kansas followed Pennsylvania’s lead in 1913, Maryland in 1916, New York in 1921, and
Virginia in 1922. In 1921, thirty-seven bills were introduced proposing state film censorship but Virginia
was the last to set up a working board. A Massachusetts referendum went down to defeat in 1922.
Louisiana adopted film censorship but never implemented the act.
Leonard Leff and Jerold Simmons estimate that by the early 1930s, 60 per cent of film revenue was under
some form of local censorship control. Leonard J. Leff, The Dame in the Kimono: Hollywood, Censorship,
could have kept him from publishing it. He might have become candidate for an
obscenity prosecution after the book’s publication, but he could not have been stopped
before his book had become part of the “marketplace of ideas.” Then, if he were
prosecuted for obscenity, the state would have to prove the charge. However, if Mr. X
produced the same content as a motion picture, it would never see the inside of a movie
theater. It would not become part of the “marketplace of ideas” and no one would even
know much about it. Nothing like the publicity surrounding The Passion of the Christ
took place over banned films before the 1950s. Moreover, X’s only recourse would be to
bring suit against the censors and prove to a series of judges that his film was not
objectionable under the terms of the statute or regulation. Take this scenario and add to it
the prevailing judicial climate prior to World War II that considered the legislatively
empowered experts of most bureaucratic agencies to be virtually infallible, and the
picture of what the motion picture industry was up against becomes apparent.
As progressivism died out, the pro-censorship mantle was handed off to other
groups: in the 1930s censorship was championed by Catholics, in the 1940s by wartime
patriots, and in the 1950s by anti-Communists. It faded away only when the impetus to
the greater good lost out to the impetus for individual liberty in the rights revolution of
the 1960s. But the paper I present today is not about the urge to censor: it is about the
urge to fight against censorship. This is the story of a small and unorganized bunch of
independent film distributors, who, with very little funding or backing, chose to dispute
state film censorship. As small businessmen with few financial resources and no political
and the Production Code from the 1920s to the 1960s (New York: Grove Weidenfeld, 1990).Leff, The
Dame in the Kimono: Hollywood, Censorship, and the Production Code from the 1920s to the 1960s, 8.
clout, they were unable to turn to legislative repeal, so they fought against censorship in
the only arena available to them: the courts.
These independent film distributors made their living in a risky business, gambled
whatever they had on a few movies, and were severely affected if those movies were
snubbed by censors. But, unlike their Hollywood brethren, the independents did not
knuckle under to the dictates of the censor bureaucrats. They hired lawyers, planned
strategy and legal arguments, and they challenged the censor boards, hoping to overturn
the statutes, some of them going as far as the United States Supreme Court.5 While
certainly not free speech ideologues, they and their lawyers became some of the most
effective crusaders for the expansion of free speech rights in the middle part of the
twentieth century. In their fight against prior restraint of films, these distributors
combined principled opposition to government intrusion into individual rights with a
healthy dose of profit motivation. Without their film distribution businesses, it is unlikely
that any of these men (and they were all men) would have become First Amendment
warriors; however, motivated as they were by a governmental mechanism that interfered
with their pursuit of profits, they adopted an idealistic anti-censorship position and their
fight helped to carry the legal interpretation of First Amendment rights to new levels.
This was, by no means, however, an organized litigation campaign. Unlike the school segregation
litigation campaign that culminated in Brown v. Board of Education, this was both unorganized and
unplanned. For more on litigation campaigns, see Richard Kluger, Simple Justice: The History of Brown v.
Board of Education and Black America's Struggle for Equality (New York: Vintage Books, 1975), Mark V.
Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 (Chapel Hill: University
of North Carolina Press, 1987), Stephen L. Wasby, Race Relations Litigation in an Age of Complexity
(Charlottesville: University Press of Virginia, 1995).}Richard Kluger, Simple Justice: The History of
Brown V. Board of Education and Black America's Struggle for Equality (New York: Vintage Books,
1975), Mark V. Tushnet, The Naacp's Legal Strategy against Segregated Education, 1925-1950 (Chapel
Hill: University of North Carolina Press, 1987), Stephen L. Wasby, Race Relations Litigation in an Age of
Complexity (Charlottesville: University Press of Virginia, 1995).
Their counterparts—the major Hollywood studios—not only acquiesced in the
state censorship efforts, they also accepted self-censorship, adopting a set of “do’s and
don’ts” called the Production Code in 1930 that remained in effect until 1968. Hollywood
studios did not fight against censorship because they found it easier and less expensive to
do what the censors wanted. Theater owners, on the front line of any public disapproval,
actually welcomed censorship because it protected them from the assault of moral
reformers and pressure groups like the Catholic Legion of Decency, which launched its
assault on dirty films in the 1930s.6 Not one challenge case in any of the states came from
a Hollywood production.7 In contrast, the independent producers and distributors
challenged the restrictions of state and local censorship boards repeatedly, starting in
1915 and slacking off only during the rampant patriotism of the World War II years, then
ramping up again in 1947. Only in the 1950s did the Hollywood studios begin to fight
against censorship, and even then, the Motion Picture Association’s efforts consisted only
of press releases and a few amicus (friend of the court) appearances. Similarly, the
American Civil Liberties Union, which had announced its opposition to film censorship
in 1929, did little to aid the independent distributors in their fights against censorship. In
only four of the nine prior restraint cases that went before the U.S. Supreme Court was
the ACLU present even as an amicus.8
Estimates of the size of the Legion range from seven to eleven million. Paul Facey, W., The Legion of
Decency: A Sociological Analysis of the Emergence and Development of a Social Pressure Group (New
York: Arno Press, 1974), Garth Jowett, "Moral Responsibility and Commercial Entertainment: Social
Control in the U.S. Film Industry, 1907-1968," Historical Journal of Film, Radio & Television 10, no. 1
Two of the better-known censored film cases, The Outlaw and The Moon is Blue, were American-made,
but they were independent productions, independently distributed.
The four were Burstyn v. Wilson (1952), Superior Films v. Ohio (1954), Times Film v. Chicago (1961)
and Freedman v. Maryland (1965). A fifth case, Jacobellis v. Ohio (1964) was also joined by the ACLU
but this involved an obscenity prosecution rather than a prior restraint statute.
Whoever mounted the attack, the fight against film censorship involved the tricky
proposition of convincing judges that the film medium was no different from other
methods of communication and thus deserved the same First Amendment protections.
But film freedom faced considerable barriers: it was widely believed, first, that film had a
special capacity for negative effect, especially on children; and, second, that legislatively
empowered bureaucrats could best determine which movies were fit to be seen and which
were harmful.9 So powerful was the appeal of censorship as protection for innocents in
the early and mid-twentieth century that no state legislature ever voluntarily repealed its
censorship law. Moreover, the U.S. Supreme Court never ruled film censorship
unconstitutional. Only an increasingly onerous set of judicially mandated restrictions on
the mechanism of film censorship forced the states to give up.
Censor Boards Attacked
Just as quickly as moral reformers moved to clamp down on films, distributors
turned to the courts for relief. However, their legal challenges were doomed to defeat for
more than four decades because of the prevailing legal culture of judicial restraint. Judges
in this era refused to question the work of legislatively empowered bureaucracies such as
censor boards, and so the censors went on demanding cuts, excising dialogue, and
sometimes throwing out entire films with little judicial oversight. Yet, despite a decidedly
hostile bench and the complicity of the Hollywood studios, independent distributors
continually questioned how the censors worked.
The defiant distributors learned early on just how difficult their legal disputes
would be when one of the first challenges found its way to the United States Supreme
As late as 1964, a legal commentator in the Villanova Law Review wrote that “motion pictures are of such
a different nature from books that…the Roth test should not be extended to them.” (Summer 1964, 132.).
Court. Hope of aid from the nation’s highest court in 1915 was dashed when the opinion
rendered in Mutual Film v. Ohio specifically denied to motion pictures the free-press and
free-speech protections of the First Amendment; declaring that, like circuses and freak
shows, movies were nothing more than any other business and deserved no greater
freedom.10 Indeed, at this time, even newspapers were not specifically protected by the
First Amendment.11 For films, this was no minor setback: the precedent stood, guiding
the decisions of state courts, for thirty-seven years. In the shorter term, the Mutual
decision paved the way for the growth of a “patchwork” of state and local censorship
boards throughout the United States.12 Understandable in the social and legal climate of
1915, the Mutual Film decision turned back any attempt at constitutional protection and
gave to prior censorship bodies “an aura of judicial approval” that lasted far beyond the
early twentieth century.13 Motion pictures would be subjected to an unprecedented,
judicially sanctioned prior restraint by states and municipalities until another film
distributor could convince the Supreme Court to hear another case—and that did not
happen for thirty-seven more years.
New York State: The Most Influential Censor Board
[be sure to see this article in Trans-Lux file before finishing intro]
Mutual Film v. Ohio, 236 U.S. 230; 35 S. Ct. 387; 59 L. Ed. 552 (1915).
Not until the 1931 Supreme Court decision in Near v. Minnesota were newspapers specifically protected
by the First Amendment from state interference.
The word “patchwork” is used by Stephen Skowronek to describe the state-building efforts of the late
nineteenth century. While later state-building efforts reflected a growing struggle between the federal
government and the state governments, film censorship remained a strictly local governing activity,
recognized as a sacrosanct part of the state’s police power. Stephen Skowronek, Building a New American
State: The Expansion of National Adminstrative Capacities, 1877-1920 (Cambridge University Press,
1982).}Stephen Skowronek, Building a New American State (Cambridge University Press, 1982).
See David Post, "Understanding the Techno Evolution," The American Lawyer (1996): 104.}David Post,
"Understanding the Techno Evolution," The American Lawyer (1996): 104. Post argues that Mutual was
perfectly understandable because the courts do not know how to handle new technology, of which Mutual
is a prime example.
With its large, multi-ethnic population, the New York market was crucial to any
film’s success. Films that could not be shown in New York because of censor troubles
would have difficulty being seen anywhere. Moreover, without reviews from the
influential New York film critics, a distributor’s chances of getting a movie into other
states’ theaters diminished greatly. The New York censor board was the most powerful
and influential of all the censor boards, not only because of the importance of the New
York market, but because other state censor boards looked to New York’s action on
particular films as guidance. Florida took the New York censors’ word as gospel,
refusing to allow any movie to be shown that had not been passed by the New York
censors or by the National Board of Review.14 So, most of the court challenges to state
film censorship came in New York and the majority of the major precedent-setting cases
came through the New York court system.15
Of thousands of films denied licenses in the crucial New York market in the years
after the Mutual decision and before World War II, only ten challenged in court.16 All ten
cases concerned either independent productions or foreign films. And they all lost. These
cases questioned the censors’ opinions (repeatedly), the secrecy in which they made their
decisions, the vagueness of the statute, the lack of accountability, and the censors’
disregard for public opinion. Yet none questioned the qualifications of the people
empowered to act as society’s guardians, none attacked the issue of prior restraint, and
none attacked on the grounds of the free speech provisions of the New York State
Ira H. Carmen, Movies, Censorship and the Law (Ann Arbor: University of Michigan Press, 1966), 127.}
State censor archives (Ohio, Virginia, Maryland, Pennsylvania) contain bulletins published by the New
York Motion Picture Division (the official name of the censor board) for distribution to the other states.
The only major Supreme Court cases not to come from New York after the Mutual Film case in 1915
were Times Film v. Chicago in 1961 and Freedman v. Maryland in 1965.
Motion Picture Division Archives Special Cases Files, “Supreme Court Cases,” box #2553-2556.
Constitution or of the First and Fourteenth Amendments to the U.S. Constitution. The
Mutual Film precedent set back in 1915 stood unquestioned and invincible. Even after the
U.S. Supreme Court invalidated prior restraint on newspapers in 1931,17 no film
distributor questioned the state’s seizure of the constitutional rights to free speech. And
even after the U.S. Supreme Court Justices began to venture into the area of preferred
freedoms—one of which was freedom of speech—distributors still failed to base their
cases on freedom for movie content.
So the courts, understandably and predictably, sided with the legislatively
empowered bureaucrats. In at least one New York case – that of a semi-documentary
about childbirth produced and sanctioned by the American Medical Association—the
censors clearly overreacted, yet once they had made their ruling, they never reversed
themselves nor were they overruled by the courts in these pre-war years.18
And so the courts of the 1930s, with all their judicial restraint and faith in
legislatively empowered bureaucrats, repeatedly upheld censor determinations.19
Constitutional challenges, based on the right to free speech, freedom of the press, and due
process of law would not come until after World War II.
While the courts were busy deferring to the legislatures, the issue of free speech
was becoming the subject of much legal debate, assuming “the proportions of a national
Near v. Minnesota, 238 U.S. 697; 51 S. Ct 625 (1931).
The childbirth film, intended to educate women about the importance of pre-natal care, was The Birth of
a Baby. It had been sanctioned by several medical associations but probably suffered from the association
of its subject matter with the growing genre of exploitation films. These were shoddy movies about
venereal disease, nudism, and drug use that purported to be educational but were nothing more than
attempts at a fast buck. For more on exploitation films, see [Miller, 1994 #508@80-81]
Only in the Pennsylvania case of Spain in Flames did a state court determine that the censors had gone
beyond their authority.
cause” in the 1930s.20 Businessmen, newspaper publishers, and radio broadcasters
seeking redress from New Deal controls, requested First Amendment protections.21 Yet,
because of the enduring belief that movies carried the potential for evil effect, attacks on
censor decisions were still futile.22 Only when the film distributors realized that the time
was ripe to retry appeal to the First Amendment’s protections of speech and press, did
they began to realize some success.
After decades of neglect by film distributors, the First Amendment was again
called into service in 1947 and again in 1951.23 For opponents of censorship like the
ACLU, the first film, Howard Hughes’s The Outlaw, was a bad test of New York’s
censorship statute. The other, The Miracle, was a good case. The Outlaw used a variation
on the Billy the Kid legend as a thin excuse to showcase the considerable endowments of
Hughes’s most recent discovery, Jane Russell. The Miracle, on the other hand, was an
artistic effort by respected director Roberto Rossellini. While almost diametric opposite
as films (one domestic, the other foreign; one pure entertainment; the other artistic), the
two films shared two unusual traits. Each attracted the ire of the New York City
Commissioner of Licenses after being passed by the New York State censors, and each
had been condemned by the Catholic Church.24 Priests across the country outlawed the
two films, censors insisted refused approval, and the two independent distributors
decided to retaliate.
Richard W. Steele, Free Speech in the Good War (New York: St. Martin's Press, 1999), 11.
"So thoroughly have the Judges, with very few exceptions, been imbued with the liberal spirit. . . that the
danger at present does not seem to lie in a reluctance of the Court to bow to the Legislative will, but rather
in a too facile readiness to confirm to whatever the Legislature may temporarily have chosen to decree."
Charles Warren, The Supreme Court in U.S. History, v. II, 1947: as quoted by Skowronek, Building a New
American State, 285.Skowronek, Building a New American State, 285.
Not since 1923 had a film claimed First Amendment protection. The case involved newsreel censorship
in New York: Pathe v. Cobb, 236 N.Y. 539; 142 N.E. 274 (1923).
Although they relied upon First Amendment arguments in their cases against film
censorship, neither distributor had much assistance from the American Civil Liberties
Union. While opposed in principle to film censorship since 1929,25 more than two
decades passed before the Union made any headway against prior restraint on films.
Partially at least, this was due to internal debates within the ACLU. Before 1962, most
members of the ACLU adhered to legal scholar Alexander Meikeljohn’s distinction
between political speech (which he believed should be absolutely protected) and
entertainment speech (which could be restricted for obscenity). A few of the more radical
members like Morris Ernst, argued early and often that the Union should adopt the
absolutist position on free speech issues, but this idea did not prevail in the organization
until changing societal norms after World War II and the sexual revolution of the 1950s
and '60s made literature and entertainment dealing with sex socially acceptable.26
So, dDuring the 1940s and 1950s, the ACLU’s involvement in fighting film
censorship was sporadic. Local affiliates of the ACLU might have sympathized with the
plight of censored film distributors, but with the Union’s limited resources, they were
waiting for a worthy test case. In this they were the opponents of censorship not alone in
questing for a test case to judicially advance their cause. The proponents of censorship,
the largest and most vocal of which was the Catholic Church, were also looking for a
test—a test that would solidify the Church’s considerable control over domestic films and
extend that control to imported films. These middle decades of the twentieth centuryyears
When the Legion of Decency condemned a film, attendance became “an occasion of sin.”
Samuel Walker, In Defense of American Liberties: A History of the ACLU , 84. Leff, The Dame in the
Kimono, 8.Leff, The Dame in the Kimono: Hollywood, Censorship, and the Production Code from the
1920s to the 1960s, 8.
Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford
University Press, 1990), 232-35.Walker, In Defense of American Liberties: A History of the Aclu.
saw nothing less than a showdown between the American Civil Liberties Union and the
Catholic Church on several issues, with the dissident distributors somewhere between.
The ensuing furor over The Outlaw and The Miracle was not the first time the
Catholic Church had involved itself in matters of American entertainment. The Church’s
Legion of Decency had been active in film censorship matters since the early 1930s.
Working with the MPAA, Catholics had written the industry’s Production Code in 1930.
Four years later, a threatened national boycott by Catholics convinced Hollywood to
begin rigorous enforcement of this Code. Once the Production Code Administration
began policing scripts and final versions of MPAA-member studio films, Hollywood
productions rarely faced censorship problems with state and local boards. Independent
productions and foreign films, however, were another matter. And in the early years of
the Cold War, New York State became the legal combat zone for one of each: The
Outlaw was an independent production and The Miracle was foreign.
Trying to get The Outlaw into New York State theaters, Howard Hughes made a
big mistake: the speech that he sought to protect under the First Amendment was not true.
After passing the New York State censors, The Outlaw’s advertising campaign attracted
the ire of New York City License Commissioner. Taking advantage of an earlier bout
with New York’s censors in 1941, Hughes’s publicity campaign claimed that the film
was “Exactly as Filmed: Not a Scene Cut.” But Hughes had made plenty of cuts in order
to get his 1946 exhibition license. The New York State Supreme Court upheld the
License Commissioner’s power to interfere with a state-sanctioned film and Hughes
lost.27 Next, Hughes sued the MPAA, claiming that it had interfered with free speech,
withholding “from the public a large body of information, knowledge and understanding
of controversial topics against the wishes of individual producers, distributors and
exhibitors and to the great detriment of the public…” But Federal District Court Judge
John Bright showedhad little patience with Hughes’s contentions, agreeing with the
MPAA that their Production Code restricted films to uphold high moral standards and
had no relation to the First Amendment.28 Hughes had the right idea: appeal by using the
First Amendment, but he had chosen the wrong vehicle, imprudently promoted. In the
end, the publicity surrounding Hughes’s battle actually set back the cause of the anti-
Death by Slow Litigation: 1952-1965
Four years later, a short Italian film about a demented peasant girl caused a social
uproar in New York City that pitted religious sect against sect, set the ACLU against the
Catholic Church, opened a new arena in church/state adjudication, and initiated the next
big round in the censorship struggle. The Miracle arrived into an increasingly
impassioned atmosphere of anti-Communist rhetoric. Yet it also arrived just as
Americans were beginning to discover and enjoy the grittier realism of foreign films.
These two divergent forces would clash over The Miracle, a film that some Catholics
considered a mockery of the virgin birth (although its maker, Roberto Rossellini, claimed
that it portrayed only the miracle of birth).
Hughes Tool v. Fielding, 188 Misc. 947; 73 N.Y.S.2d 98 (1947).
Hughes Tool v. MPAA, 66 F. Supp. 1006 (1946). Dismissing the worthiness of Hughes’s case, Bright
concluded “that the whole matter is a trivial one, a tempest in a teapot. In fact, it seems more an effort on
the part of the plaintiff to add this case and its peregrinations through the courts as additional publicity and
advertising in promotion of the picture.”
The New York Legislature passed a bill that tightened the provisions of its censorship statute’s
provisions on advertising in response to the flap over The Outlaw. Moreover, Hughes’s litigation against
the New York City License Commissioner led to a judicial affirmation of his power over films even if they
had been passed by the state’s censors.
Independent film distributor Joseph Burstyn brought suit against the State of New
York when its censors, responding to political and religious pressure about the film’s
supposed blasphemy, revoked The Miracle’s exhibition license in early 1951. Burstyn’s
attorney, Ephraim London, argued that the state’s censoring of The Miracle for sacrilege
violated not only free speech rights, but also the separation of church and state. Losing
twice in New York State courts, Burstyn refused to give up and sought review by the
U.S. Supreme Court. When the Justices agreed to hear Burstyn’s case, the anti-censorites
were delighted: it was the first time that the Court had agreed to consider a state film
censorship case since the crippling 1915 Mutual decision. Following the war, the
Supreme Court had begun to scrutinize state laws infringing on individual liberties, so
there seemed some cause for optimism. The ACLU, which had been waiting for a good
test case, eagerly jumped in. So did Archbiship Cardinal Spellman, who denounced the
film from the pulpit and commanded all right-thinking Americans to boycott The
Miracle. But Spellman was not alone: many prominent Protestant and Jewish leaders also
spoke out, defending the film’s exhibition rights. Pickets surrounded the theater for
weeks denouncing the film as Communist subversion, bomb threats harassed the theater’s
management, and newspaper editorials continued for weeks. Here, finally, was a good
test case for the ACLU. The Miracle was a fine foreign film, imported by a reputable
company, with a distributor willing to stand on principle, coupled with a highly
publicized scenario, and with a healthy dose of church/state separation controversy
thrown in for good measure. As a test case, The Miracle was everything The Outlaw was
Burstyn’s motives in taking his movie all the way to the Supreme Court appear
those of a committed civil libertarian.30 He had, of course, a financial stake in The
Miracle, but he was clearly motivated by more than economic interests. A Polish
immigrant, Burstyn’s life story reads like the American entrepreneurial dream. Starting a
career in New York City in 1921 as a diamond polisher, he moved on to publicity work
for a Yiddish theater, getting a big break when he paid $500 to rent the theater and sold
$2,500 in tickets.31 That seed money led him to the film importation and distribution
business where he developed a solid reputation for artistic selection. His long-term
partner, Arthur Mayer, also well respected in the film business both as an exhibitor and a
distributor, described Burstyn as “a wonderful associate, and a very courageous little
man.”32 Through this final round in the Supreme Court, Burstyn consistently maintained
his commitment to a free screen. When local censors in Oregon attempted to close
another Burstyn prize-winning import, The Bicycle Thief, he announced his intention to
do battle in that state.33 He also battled the MPAA, hoping to get a Code seal for this
Vittoria de Sica film which is still highly regarded by film critics and film scholars today.
Although he failed to move Breen and the Production Code Adminstration, the
controversy damaged the PCA’s credibility when Burstyn released the film to critical
It is difficult to state with certainty because Burstyn died soon after the decision and his corporate papers
are in private hands. He gave only a few interviews on the subject so I can only speculate based on his
public statements in newspapers and prepared remarks in the New York Motion Picture Division files.
Andrew James Driggs, "The Miracle:The Controversy and the Constitution" (Masters, Brigham Young
University, 1986), 62-63.
Arthur Loeb Mayer oral history, Columbia University Oral History Project, 26-27.
ACLU file #757-24 contains a newspaper clipping dated 7 June 1950 detailing Burstyn’s willingness to
take the case to court in order to keep the film from having any scenes cut (the film’s director, Vittoria de
Sica had actually refused to allow any scenes to be removed from his film). Like The Miracle, The Bicycle
Thief had won awards as best foreign film of the year.
applause.34 On the eve of the Supreme Court’s acceptance of The Miracle, Burstyn
maintained his idealism, calling this next move “a step forward in the long struggle to
free the American screen…”35
At the Supreme Court, Burstyn and London argued that New York’s censorship
statute violated the First Amendment and that “sacrilege” as a censoring standard was
unconstitutionally vague. This was Ephraim London’s first appearance at the Supreme
Court but before he finished his long and distinguished legal career, he became a
champion of artistic freedom and a noted civil liberties attorney. Several of the
independent distributors turned to London for representation, and while he often lost in
the lower courts, he never failed to win in nine appearances before the U.S. Supreme
On May 26, 1952, the Supreme Court handed down a unanimous decision that
turned the tide of film censorship litigation. The Court’s opinion seemed unequivocal: it
had taken thirty-seven years to overturn the stranglehold of the Mutual decision, but the
majority opinion brought motion pictures squarely under the umbrella of the First
Amendment. But, this was not the clear-cut, knock-out blow of film censorship that the
anti-censorites desired. The Court stopped short of any such declaration, cautioning that
while films were a significant medium of expression, the Constitution did not require
Frank Miller, Censored Hollywood: Sex, Sin & Violence in Hollywood (Turner Publishing, 1994), 141-
42.Miller, Censored Hollywood: Sex, Sin & Violence in Hollywood, 141-42. Miller writes that “The Bicycle
Thief dealt Breen and the Code a swell black eye.”
The New York Times, 5 February 1952.
Obituary, The New York Times, 14 June 1990. London’s many film censorship cases included Burstyn v.
Wilson, Superior Films v. Department of Education of Ohio, Capitol Enterprises v. Regents, Kingsley
International v. New York, The Connection Company v. Regents, Jacobellis v. Ohio, and United States v.
One Carton Positive Motion Picture Film. While he was a long-term member of the New York Civil
Liberties Union (the state affiliate of the ACLU), when London argued film censorship cases, he did so as a
private attorney and without ACLU backing except for the Burstyn, Superior, and Jacobellis cases, and in
“absolute freedom to exhibit every motion picture of every kind. . . .”37 This statement, in
its frustrating ambiguity, left both the pro- and the anti-censorship forces guessing. They
would continue in a sort of legal limbo and ambiguity for another thirteen years—until
the Supreme Court offered a more definitive pronouncement. In the interim, more film
distributors faced the legal uncertainties of film censorship, bringing case after case to the
state courts and the U.S. Supreme Court, hoping for a more definitive pronouncement.
And, each time, they would find some comfort, and some frustration. In each case, the
individual film would be released for viewing, but the constitutional reasons for doing so
were left undefined. The Supreme Court never definitively ruled prior restraint of motion
pictures an unconstitutional exercise of a state’s power, although they continually
whittled away at the scope of the censoring authority.
But the process of dismantling state censorship statutes had begun. The Burstyn
decision proved to be the first in a five-round knockout of many long standing film
censorship statutes.38 Even within the same Supreme Court term, a case that the MPAA
had chosen as a test, Gelling v. Texas, succeeded in overturning a local censorship
ordinance, with the Justices citing the recent Burstyn ruling as precedent. Within five
years, four more slivers fell from the edifice of censorship statutes. A month after the The
Miracle decision, the International Motion Picture Organization honored Burstyn,
extolling his “courage and pertinacity [in fighting] suppression of the film. . .” In
response, Burstyn explained why he had worked so hard against New York’s censorship:
“every time I had to submit a film for censorship,” he said, “I felt that I was in an
each of these cases, the ACLU’s participation seems confined to the filing of amicus briefs. "American
Civil Liberties Union files," (Princeton, New Jersey).
Opinion, Burstyn v. Wilson, 343 U.S. 495; 72 S. Ct. 777 (1952).
illegitimate business and that being in this business was a crime. . . . It was about time to
try to restore a little dignity. . . .” Speaking for the ACLU, Arthur Garfield Hays
applauded Burstyn, calling the Union’s involvement that of “back-seat drivers,” and he
noted that “the motion picture industry with all its money couldn’t accomplish what
Burstyn and London did.”39 The litigation’s total cost to Burstyn was considerable—
almost $60,000,40 the equivalent of $385,000 in today’s dollars. Although he had been
offered financial help from “major figures in and out of the business,” none agreed to
lend their names to the fight. “I could use their money,” Burstyn said in an interview,
“but if they would not stand up with me, I would rather be without it.” 41
Sadly, Joseph Burstyn did not live to see film censorship ended in his home state.
He died of coronary thrombosis on a trans-Atlantic flight the year after his Supreme
Court victory. He was on his way to purchase the following season’s films.
In a last tribute to Joseph Burstyn on December 13, 1953, when censorship’s grip
was still strong but loosening with each court challenge, film critic Bosley Crowther
headed his New York Times column, “The Fight on Film Censorship Goes on, in an
Honorable Name,” and wrote, “though Mr. Burstyn is no longer here to see it done, the
case he singly and bravely carried. . . may yet spearhead full freedom for the screen.”42
Crowther was right.
State Censorship at the Supreme Court: Five Cases in Five Years
Other non-film cases also helped: Bantam Books, Inc. v. Sullivan, Marcus v. Search Warrant, 367 U.S.
717, Speiser v. Randall, 357 U.S. 513.
Luncheon program in MPD file #55250-2561.
Alan Westin, The Miracle Case: The Supreme Court and the Movies, The Inter-University Case Program
as quoted by Alton Cook, unnamed newspaper, 25 January 1952, Joseph Burstyn file, Billy Rose
Collection, New York Public Library.
Ibid., 13 December 1953.
The next year, the U.S. Supreme Court took on another New York case State’.
The film was La Ronde, a saucy, satirical, slightly cynical comedy about love and casual
sex. La Ronde carried an all-star cast and was directed by the internationally renowned
Max Ophuls. By the time Robert and Raymond Hakim of Commercial Pictures Company
brought La Ronde to the United States in late 1951, it had played for two years to
favorable reviews in Paris and for ten months in London (where it had been passed by the
usually stringent British censors with no cuts).43 New York was the only state to ban the
While all six of New York’s censors enjoyed the film, they felt that it contradicted
the “standards of normal family life” and mocked the “accepted moral structure.”45
Pronounced “immoral,” and “would tend to corrupt morals,” La Ronde was denied an
exhibition license. The distributors filed appeals with the New York appellate courts, and
losing there, convinced the Supreme Court to hear the case. Basing their case on the
recent Miracle decision, the Hakim brothers of Commercial Pictures and other anti-
censorites were confident that in accepting their case, the Supreme Court was signaling
its readiness to make a more definitive statement about the unconstitutionality of state
film censorship. Undoubtedly pleased with the pre-trial publicity courtesy of New York
State’s ban, the Hakims empowered their attorney, Florence Perlow Shientag, to argue
forcefully that the censoring of this fine French film violated the First Amendment.46
Meanwhile, the ACLU and the MPAA were both helping a concurrent case from Ohio,
Mathews, Censored, 127. Mathews notes that while censoring in Britain in the 1950s was “heavy
handed,” the board had started to make allowances for artistic license. Mathews uses La Ronde as an
example of this new British accommodation for artistic considerations. New York made no such
Dissenting Opinion, Commercial Pictures v New York, 305 N.Y. 336; 113 N.E.2d 502 (1953).
Hollis Alpert, "Talk with a Movie Censor," Saturday Review, November 22 1952.Ibid.
Florence Perlow Shientag interview by author, tape recording, personal interview, 12 April 2001.
but they failed to offer any support to La Ronde and its First Amendment claims. Both
the MPAA and the ACLU undoubtedly felt more comfortable backing the Ohio case
since it involved an American-made film, distributed by an MPAA-member studio.47
So, the Hakim brothers and Shientag argued before the Supreme Court unaided.
Their case and the Ohio case were heard together, to be decided with one opinion. And
they won. It was a great victory for the films La Ronde and M, but a hollow victory for
the anti-censorship cause as the Justices delivered yet another ambiguous per curiam
decision, the second abstruse opinion since Burstyn. Important questions went
unanswered: was all New York censoring on the grounds of immorality unconstitutional
or just the censoring of this one film? Was New York’s censorship statute
unconstitutional or just this one censoring standard of immorality? Was Ohio’s statute
unconstitutional or just its use of the term “harmful?” No one knew for sure and the
Justices were not about to take a definitive stand.
While unclear to legal commentators and filmmakers alike, the La Ronde and M
decision did have a major effect: it influenced justices of the lower courts to begin
overturning state censorship statutes (an attribute of this case that has gone largely
overlooked by film historians and legal scholars). After the censors had their wrists
slapped for censoring for immorality, New York’s intermediate appeals court, which had
only overruled its state censors once since 1921, began to look more closely at challenge
films. With the next challenge film, a narcotics film called Teenage Menace, the
Appellate Division began overruling its state censors and never stopped. In fact, just two
years later, after two more cases brought in state court by independent distributors, the
Appellate Division ordered the censors to cease cutting films for any reason other than
The film was M (1951), a Columbia Pictures remake of the 1931 German film by the same name.
obscenity. In this demand, however, this intermediate court was ahead of both New
York’s highest court48 and the nation’s highest court.
Justices of the U.S. Supreme Court are usually reluctant to tamper with the right
of a state legislature to exercise its authority to protect its citizens. But, once the Supreme
Court Justices began to accept in principle that the state police power had been used as an
excuse for the unconstitutional restriction of individual freedoms like street corner
speech, picketing, or parading, the Court began to rethink its attitude toward state
interference with the movies. As the Supreme Court moved in this direction, so too did
the state courts and 1955 became a particularly tough year for the pro-censorship forces.
That year alone, two state film censorship statutes fell before their own state supreme
courts and a third statute fell before the U.S. Supreme Court. Barely into 1956, a fourth
state’s censoring was cut short. In quick succession, then, the Ohio,49 Massachusetts,50
Kansas51, and Pennsylvania52 censoring bureaucracies were struck down, largely because
of the U.S. Supreme Court’s series of per curiam decisions against film censorship cases.
The Court’s exact meaning may have been unclear, but its direction was not. It
was manifestly moving toward enhanced scrutiny of any statute infringing on freedom of
speech. The Court’s path toward the speech protective zenith of the Warren Court years
has been well documented. But legal scholars have overlooked the significant role played
by independent film distributors in this movement. In none of the 1955-1956 cases that
In New York State, there are two appellate courts whereas most states have only one. New York has an
intermediate appellate court called the Appellate Division and a superior appellate court called the Court of
Appeals. Film distributors who chose to challenge New York’s censorship of film had to file suit in both
New York state courts and carry all the concomitant legal fees of two suits before seeking certiorari from
the U.S. Supreme Court.
RKO Radio Pictures v. Department of Education, 162 Ohio St. 263; 122 N.E.2d 769 (1954).
Brattle Films v. Commissioner of Public Safety, 333 Mass. 58; 127 N.E.2d 891 (1955).
Holmby Productions v. Vaughn, 350 U.S. 870; 76 S. Ct. 117; 100 L. Ed. 770 (1955).
Hallmark Productions v. Carroll, 384 Pa. 348; 121 A.2d 584 (1956).
overturned censorship statutes was the plaintiff a Hollywood studio or producer. All four
cases were brought by, and won by, independent distributors.
1957 was another bad year for pro-censorites. In that year, the Supreme Court
began its attempt to define obscenity. With the two greatest foundations of film
censorship deteriorating—the progressive-era’s faith in legislatively empowered experts
and the long-held tenet of judicial restraint, censorship would meet its greatest
Film Censorship In Legal Trouble
In the six years following the 1952 landmark Burstyn decision, the U.S. Supreme
Court decided six more film censorship cases.53 One by one, the Court struck down the Comment [LWK1]: It would be very interesting
to find out how many film censorship cases applied
for certiorari but were denied in the long dry spell
wording of previously sacrosanct censoring standards: “sacrilegious” was the first to fall, between 1915 and 1952.
followed shortly by “prejudicial to the best interests of the people,” “harmful,”
“immoral,” and tending to “debase or corrupt morals.” After such repudiation by the
nation’s highest court, it would seem that the censors were becoming constrained as to
what they could censor and what they were forced to allow. However, since all five of the
post-Burstyn decisions were decided per curiam, they offered little legal traction as
precedents for either side of the censorship debate. Much speculation filled the pages of
law journals. Not only were the per curias frustratingly unrevealing in their reticence,
they were also inconsistent, based on different precedents. As much as lower courts feel
feel compelled to abide by the precedents of the Supreme Court—and such that is
acompliance is highly variable situation—in the area of obscenity and censorship in the
mid-1950s, the Supreme Court had given them precious little to abide by. So, when the
case of Lady Chatterley's Lover arrived in the New York courts in 1958, predictions
about its legal chances were murky, at best. However, while legal certainty may have
been impossible, signs were scattered throughout the judicial landscape that film
censorship would continue to face increasingly robust judicial scrutiny.
The New York’s censors had made clear to Edward Kingsley, distributor of Lady
Chatterley's Lover, that his film had been banned because it advocated an idea: that
adultery could be acceptable behavior. But the U.S. Supreme Court was showing signs
that it was uncomfortable with the censoring of ideas: the Justices had recently narrowed
the definition of speech that presented a clear and present danger to that which advocated
the overthrow the government.54 Now with Earl Warren as its Chief Justice, the Court
began even closer scrutiny of speech-restrictive activity, like censorship. Moreover, the
Court had also decided that reading material could no longer be kept from everyone
because it might be harmful to children. Justice Felix Frankfurter suggested that doing so
was like “burning the house to roast the pig.”55
Hopefully, Edward Kingsley, a fierce opponent of censorship, brought Lady
Chatterley's Lover to the New York courts but they dismissed his First Amendment
claims. When Kingsley and his attorney, Ephraim London (the same attorney who had
won The Miracle case six years earlier) convinced the U.S. Supreme Court to hear the
Gelling v. Texas (Pinky), Commercial Pictures v. New York (La Ronde), Superior Films v. Ohio (M),
Holmby v. Vaughn (Kansas - The Moon is Blue), Times Film v. Chicago (The Game of Love), and Kingsley
International Pictures v. New York (Lady Chatterley’s Lover).
Henry J. Abraham, Freedom and the Court (New York: Oxford University Press, 1994), 196. This
decision came in the case of Yates v. United States, 354 U.S. 298 (1957).Abraham, Freedom and the
Court.Henry J. Abraham, Freedom and the Court (New York: Oxford University Press, 1994).
Butler v. Michigan, 352 U.S. 380; 77 S. Ct. 524; 1 L. Ed. 2d 412 (1957).
case, censorship opponents hoped that the Justices would finally hand down a clear and
comprehensible ruling on prior restraint. Yet again, they were disappointed. Although the
Supreme Court agreed with Kingsley that his film was not immoral, five of the Justices
felt compelled to arrive at that conclusion via different routes. Six opinions meant that
any clarity was impossible. Potter Stewart wrote for the majority that censoring an
‘immoral’ idea clearly violated the First Amendment, Clark and Harlan merely found the
statute’s language too vague, Douglas and Black found all prior restraint unconstitutional,
and Frankfurter suggested that the Supreme Court should adopt the role of super-censor.
The Court had again sidestepped the issue of the constitutionality of New York’s film
censorship. Its only definitive position was that censoring for immoral ideas was
impermissible. Overall, then, the majority of the Court had found New York’s statute
banning any film that presented immoral ideas unconstitutional, while Frankfurter,
Harlan, and Whittaker had found the statute itself constitutional but incorrectly applied to
this specific film. Most observers and censors agreed, though, that the Court’s ruling left
only “obscenity” as an acceptable censoring standard.
But, while the realm of permissible censoring was narrowing, the film censorship
situation was becoming ever more complicated. On top of all the disagreement from the
high court, films were becoming more explicit and daring than ever. After years of
quiescence, members of the MPAA were starting to question its self-regulation56 and a
growing number of independent producers brought adult themes like marital relations,
drug addiction, alcoholism, and bigotry to the screen. Films like The Man with the
Hollywood’s control via the Production Code Administration is usually called self-censorship. Jon
Lewis, however, calls it content regulation, a phrase that I find far more descriptive. Jon Lewis, Hollywood
v. Hard Core: How the Strugglen over Censorship Saved the Modern Film Industry (New York: New York
University Press, 2000).
Golden Arm, Lost Weekend, and Gentleman’s Agreement stretched the boundaries of
permissible content under the Production Code. But no films stretched the limits more
than the foreign films of the post-War years. The Italian neo-realists’ surprising
popularity with American audiences emboldened more independent distributors to fight
back against state censorship. But many more court cases would be argued before the
anti-censorship forces could claim victory. Always in the vanguard of this fight were the
By 1961, four states still censored films: Maryland, Kansas,57 Virginia, and New
York.58 The only thing that censors could legally ban was obscenity, but since the
Supreme Court had still not defined obscenity to anyone’s satisfaction, the censor battles
raged on.59 And lest anyone thought that the Supreme Court was slowly but inexorably
moving toward outlawing all film censorship at the dawn of the new decade, the Justices
reversed direction, handing down a pro-censorship decision—its first since 1915.
In 1961, Times Film Corporation, another independent distributor bent on
destroying prior restraint on films, took on the municipal censors in Chicago, considered
one of the nation’s most stringent censor boards. When Times Film decided to bring a
case that would test the very basis of prior restraint, industry observers held their breath.
Times Film’s Jean Goldwurm was well known in the independent distribution world,
largely for his adamant opposition to censorship. In the words of Michael Mayer, The
Kansas’s statute had been repealed by its legislature after the Holmby v. Kansas Supreme Court decision
in 1954, but due to a legislative mistake, the statute continued in force and its censor board remained active
until 1965. For details, see Linda K. Warner, "Movie Censorship in Kansas: the Kansas State Board of
Review" (Masters, Emporia State University, 1988), 70-71.
Pennsylvania’s statute had been declared unconstitutional by its state supreme court, but its legislature
reinstated film censorship in 1959, only to have it declared unconstitutional again in 1961.
The Supreme Court had begun its attempt to define obscenity with the 1957 case of Roth v. United
States. It would continue to labor on this elusive definition through the 1960s and early '70s. The bulk of
the challenge cases in the ensuing five years came in New York and Maryland.
Executive Director of the Independent Film Importers and Distributors Association
(IFIDA), Michael Mayer, reports that Goldwurm had “no hesitation in taking on the
censor anywhere—he was anxious to.took on the censors at every point.”60 As a test of
the Chicago censor ordinance, Goldwurm refused to submit Don Juan, a film version of
the Mozart opera Don Giovanni.61 Here was a new twist: an anti-censorship case had
been brought that questioned only the foundation of the statute, not the details of its
application. By refusing to submit the film for review, Times Film denied the court a
narrow route on which to base a decision. All previous censorship cases had asked the
courts for broad constitutional interpretations, while offering more narrow grounds on
which to reverse state determinations, and their requests for constitutional overturn had
gone unanswered. Goldwurm and Times Film Corporation decided that it was time to test
the issue of First Amendment constitutionality without any complicating issues like
statutory vagueness or denial of due process. The Illinois Civil Liberties Union
recognized the value of this test case and joined in. It was a bold move, and it backfired.
Questions from the Justices during oral argument foreshadowed the majority opinion:
both Frankfurter and Clark told the Times Film attorneys, Felix Bilgrey and Abner
Mikva, that they should have exhibited the film without permit and then have accepted
prosecution. This, the Justices suggested, would have made a better test case. With no
narrow issue on which to rule, the majority refused to deny that prior restraint of motion
pictures contravened protected speech and Times Film lost.62 Anti-censorites worried that
the case could significanly re-enliven state censorship activities.
Michael F. Mayer, interview by author, tape recording, 9 June 2003.
The New York Times, 24 January 1961, 1:3.
Times Film v. Chicago, 365 U.S. 43 (1961).
But two new and significant factors were now thrown into the mix. First, the
ACLU was moving closer toward adoption of an absolutist position on free speech, even
the speech of pornographers. Second, Chief Justice Earl Warren, who had been silent on
earlier film censorship cases, had come down squarely in the anti-censorship court in the
Times Film case. Warren wrote an impassioned dissent, questioning the inevitable delay
inherent in film censorship litigation. That the film industry could avail itself of judicial
recourse was no help, Warren wrote. “The delays in adjudication may well result in
irreparable damage, both to the litigants and to the public.” It had taken Times Film three
years to get to the Supreme Court. “This is the delay occasioned by the censor; this is the
injury done to the free communication of ideas.”63 And this was the issue that would
bring film censorship to its knees four years later.
In the meantime, though, film distributors went back to questioning the censors’
determinations of individual films. In 1962, even New York’s use of “obscenity” as a
censoring term was clipped. When the New York censors banned an avant-garde film
about drug addicts because it used the word “shit” as slang for dope, its owner/distributor
appealed and the censors again faced Ephraim London as their legal adversary. New
York’s Appellate Division agreed with London that use of the word “shit” did not
constitute obscenity, and the New York censors found their range of motion restricted
But, as had been shown in 1961, there was no straight-line march toward film
censorship’s demise. One year later, New York’s highest court displayed a more
conservative inclination when it surprisingly found motion pictures to be conduct rather
Dissenting opinion, Ibid.
than speech and therefore not protected under the First Amendment. One of the judges
even suggested that motion pictures were nothing more than exactly that: moving
photography—and therefore not protected. Years of litigation pounding away on the
unconstitutionality of prior restraint on film went ignored and New York’s highest court
pushed the film art back to the level of photographic pornography.65 Where a book had to
be considered as a whole, thanks to the 1957 Roth decision, a film’s scenes could still be
considered separately, according to New York’s highest court. If this decision—coming
from one of the most powerful courts in the nation—were to stand, the cause of the anti-
censorites would take a staggering blow since they could no longer look to the Roth test
for relief. An individual scene could be enough to ban an entire film, no matter how
artistically worthy. Not surprisingly, the film’s distributor, Richard Brandt, appealed to
the Supreme Court. Even though Brandt was a good test-case litigant (a reputable and
respected film importer, distributor, and theater-chain owner) and the film itself was a
good subject for censorship litigation (a well-reviewed artistic Danish film called A
Stranger Knocks), and the Trans-Lux decision would have been a devastating decision if
let stand, Brandt went on to the Supreme Court without help from either the MPAA or
the ACLU. Before the Supreme Court could hear arguments in the Trans-Lux case,
though, it decided another film case from Ohio, ruling that Roth did apply to films, in
effect overruling the New York court. In addition, the case also made it clear that to be
obscene, a film had to be without artistic value and exceed the customary limits of
The film was The Connection, directed by Shirley Clark. The case was The Connection Company v.
Regents, 17 A.D.2d 671; 230 N.Y.S.2d 103 (1962).
Concurring opinions, Trans-Lux v. Regents, 14 N.Y.2d 88; 198 N.E.2d 242 (1964). The film involved
was the Danish import, A Stranger Knocks, which contained a scene of simulated intercourse. The
distributor, Richard Brandt, argued that the scene was necessary to the plot (which it was) and was
therefore not prurient or obscene.
candor, and must have as its major theme the appeal to an average person’s prurient
interest, when viewed as a whole by standards of the national community.66 But before
Brandt could get his case considered by the Supreme Court, a case rising through the
Maryland courts would make the whole issue moot. [need to check NYCLU papers when
they arrive for any discussion of involvement in Trans-Lux].
Ronald Freedman and the Censors of Maryland
On March 1, 1965, the U.S. Supreme Court handed down a unanimous decision in
Freedman v. Maryland, transforming the course of governmental film censorship.
Independent exhibitor Ronald Freedman of Baltimore, a foe of censorship for years, had
been listening carefully when the Supreme Court Justices told the Times Film attorneys
in 1961 that their case would have been strengthened had they exhibited an unlicensed
film to secure prosecution. That is exactly what Freedman did. The day that Freedman
was carted off in handcuffs for showing the unlicensed, yet innocuous Revenge at
Daybreak, he instructed his theater staff to re-sign his marquee: “Fight for Freedom of
the Screen.”67 Freedman then carried on, using funding from the Baltimore Film Society
(a group he had founded for just such a purpose), litigating his way through the Maryland
courts, on to the U.S. Supreme Court. Like so many other anti-censor activists, he had
requested assistance from the MPAA and the ACLU, but he was told by the latter group,
“that they had bigger fish to fry.”68 The ACLU took no further notice of Freedman until
his case came before the Supreme Court. Then the Maryland chapter offered an amicus
Jacobellis v. Ohio, 378 U.S. 184; 84 S. Ct. 1676; 12 L. Ed. 2d 793 (1964).O'Mara, "Obscenity: Roth
Goes to the Movies."
Ronald Freedman, telephone interview by author, tape recording, 11 September 2002.
participation. Freedman did, however, have assistance from another independent, the
Times Film Corporation and its doggedly anti-censorship owner, Jean Goldwurm.
At the Supreme Court, Freedman argued that Maryland was violating the First
Amendment as well as the due process clause of the Fourteenth Amendment. Ducking the
First Amendment issue, the Justices did agreed that the entire censorship edifice, built
upon a reversed burden of proof and inevitable delay, justified overturn of the Maryland
statute. Bosley Crowther later called the decision “a left hook and right upper cut.”69 But,
he pointedly refrained from calling it a knockout because the case did not rule prior
restraint on film to be unconstitutional. It did, though, finally make good on the promise
dangled before the film industry in the Burstyn case thirteen years earlier that the censors
must bear a “heavy burden” of proving a film unworthy of exhibition rather than the
distributor proving it worthy. The Freedman decision set up procedural safeguards that
kept state and municipal film censorship bodies from delaying exhibition licenses. Never
again could a censor board ban a film without judicial approval. Basically, the Freedman
decision came in three parts: first, the burden of proof that a film was obscene shifted to
the censors; second, prompt legal action had to be instituted by the censors to prove any
determination that a film should not be licensed; and third, the censors had no
enforcement power until a decision has been made in their favor by a court (which meant
that lengthy delays waiting for court decisions would be a thing of the past).70 The
decades-long presumption that constitutionality existed so long as the banned film had
recourse to judicial review—no matter how long that review took—had been recognized
The New York Times, 20 June 1965, II, 1:8.
Freedman v. Maryland, 380 U.S. 51; 85 S. Ct. 734 (1965).
as innately unfair.71 Stunned, Maryland’s Attorney General Thomas J. Finan called the
case “the Armageddon of motion picture censorship.”72 In Maryland, jubilant exhibitor
Robert Marhenke sent his enemies at the censor board a telegram reading: “Good
Riddance. The unemployment line is just two blocks away. You may join it.”73
And so, Maryland, New York, Virginia, and Kansas, as well as the cities of
Chicago, Ft. Worth, Providence, and Detroit all had their censorship statutes
overturned—but not because prior restraint on motion pictures was unconstitutional, only
because the statutes did not set up adequate and fair procedure.74 As Ernest Giglio
pointed out at the time, although the Supreme Court had refused to acknowledge that
prior restraint violated the First Amendment, several state and lower federal courts had
done so. Ohio, Massachusetts, and Pennsylvania had each invalidated statutes based on
the federal Constitution while Oregon and Georgia had done so based on their state
Ernest David Giglio, "Prior Restraint of Motion Pictures," Dickinson Law Review 69 (1965): 384.Giglio,
"Prior Restraint of Motion Pictures."
Baltimore Sun, 2 March 1965. Enoch Pratt Free Library collection. He had also used that term in his brief
before the Supreme Court. “The present controversy is a fabrication…with which appellant hopes to
destroy the criminal sanction of Maryland’s motion picture censorship law…This is the Armageddon of
motion picture censorship. . . a Trojan Horse.” Brief for Appellee, Freedman v. Maryland.
Maryland State Archives, Department of Licensing and Regulation, Board of Censors, box #11, Minutes
of 4 March 1965. Marhenke was one of the more colorful anti-censorites and had been quite a bother to the
Maryland censors. In 1963, he brought a $250,000 lawsuit against the censors charging that they were
accepting state money illegally. The case was thrown out since the censors were protected in their capacity
as state employees. Also in 1963, he sued the board chairman, charging that he was improperly using his
state expense account. Four days after the Freedman decision, he filed yet another lawsuit “as to why the
Board members and personnel thereof were entitled to receive pay from the State, wherein the U.S.
Supreme Court had ruled the Board invalid.” Board minutes refer to him as “the everlasting Board’s
habitual agitator.” (Minutes of 4 March 1965). In the late 1960s, he stepped up his activities, frequently
printing and publishing cartoons that mocked the censors and inserting titles into movies, saying “this scene
deleted by the Maryland State Board of Censors.” He also apparently created a 45-second film that
published the chief censors’ home phone number. She received twenty-nine calls after 11 p.m. the first
night. He also hired a sound truck to drive through her neighborhood making disparaging remarks about her
stewardship of the censor board. He routinely came by to read their minutes. (Minutes of 1 December
The statutes of these states and cities were specifically mentioned in the ACLU amicus as well as in
Brennan’s majority opinion. Virginia’s prior restraint statute was under constitutional attack at the time.
constitutions.75 Perhaps the Supreme Court believedfelt that as long as obscenity
remained outside the First Amendment, movies, with their potential for obscenity, needed
to be reviewed prior to being seen by the public76 while state courts, closer to political
currents, may have realized that censorship’s time was running out.
Either way, any governmental unit that wanted to continue to censor motion
pictures needed to begin redrafting its legislation. Into this volatile atmosphere, came the
decision of the Supreme Court in New York’s Trans-Lux case. After reading the
Freedman decision, both sides knew that the case would be a foregone conclusion.
Indeed, two weeks later, the opinion came down: citing only Freedman, the per curiam
decision reversed the New York Court of Appeals.77 By basing the decision on only
Freedman, the Court made clear that it had invalidated the method of New York’s
censoring apparatus, but by leaving out any mention of Roth, it had refused to rule on the
obscenity issue presented by A Stranger Knocks. The Court also ignored the New York
Court of Appeals’ determination that film scenes were conduct and not speech. Thus,
both Freedman and Trans-Lux had struck down what the Court saw as invalid prior
restraints rather than striking down all prior restraint.78
But this was 1965 and the U.S. was entering a period of rapid social and cultural
change. The '60s were a true dividing line between a culture based on saving and sacrifice
and the post-war culture based on consumerism and abundance. “The defining battle of
the sixties,” David Steigerwald tells us, “was a cultural civil war that pitted a traditional
Giglio, "Prior Restraint of Motion Pictures," 388-89.Giglio, "Prior Restraint of Motion Pictures," 388-89.
John R. Verani, "Motion Picture Censorship and the Doctrine of Prior Restraint," Houston Law Review 3
(1965): 40.Verani, "Motion Picture Censorship and the Doctrine of Prior Restraint," 40.
Trans-Lux v. Regents, 380 U.S. 259; 85 S. Ct. 952; 13 L. Ed. 2d 959 (1965). The Court returned the case
to the state courts for “further proceedings not inconsistent with this ruling,” according to The New York
Times, 11 June 1965, 33:6.
culture born in an age of scarcity against a new culture that was more appropriate to the
age of affluence.”79 The traditional culture, under which censorship had been born, was
based on self-denial, devotion to work, and faith in technological progress. Its ethos was
“authoritarian” and “puritanical.” The new culture was based on pacifism, egalitarianism,
and open sexuality.80 Born in the societal upheaval of the progressive era, film censorship
would die in the cultural upheaval and social unrest of the rights revolution.
To conform to Freedman, Maryland drew up a new statute that assured
distributors no more than thirteen days for final judicial determination.81 This new
Maryland procedure passed judicial scrutiny when immediatley challenged by Trans-
Lux.82 However, along with social transformation, the legal climate was also changing. A
far cry from the earlier days of film censorship litigation when courts refused to consider
the testimony of experts, the Maryland high court now insisted upon it: In a 1965 case,
the court warned that:“Save in the case of the exceptional motion picture which not only
speaks for itself but screams for all to hear that it is obscene, the Board under the statute
of 1965 will need more than the film to support its opinion in court.”83 Three more cases
challenged the new Maryland procedures in rapid succession and in each one, the board
failed to supply the requisite expert assessment of the film’s obscenity and in each case,
Verani, "Motion Picture Censorship and the Doctrine of Prior Restraint," 49.Verani, "Motion Picture
Censorship and the Doctrine of Prior Restraint," 49.
David Steigerwald, The Sixties and the End of Modern America (New York: St. Martin's Press, 1995),
154.David Steigerwald, The Sixties and the End of Modern America (New York: St. Martin's Press, 1995),
154. See also Allen J. Matusow, The Unraveling of America: A History of Liberalism in the 1960s (New
York: Harper Torchbooks, 1984), xiii.Allen J. Matusow, The Unraveling of America: A History of
Liberalism in the 1960s (New York: Harper Torchbooks, 1984), xiii. Matusow sees the increase in
discretionary income between 1950 and 1970 as the single most significant influence on the developing
American society because it blurred class lines and undermined the tradition of self-denial.
Steigerwald, The Sixties and the End of Modern America, 154.Steigerwald, The Sixties and the End of
Modern America, 154.
Trans-Lux v. Maryland State Board of Censors, 240 Md. 98; 213 A.2d 235 (1965).
Trans-Lux v. Maryland State Board of Censors, 240 Md. 98; 213 A.2d 235 (1965).
Dunn v. Maryland State Board of Censors, 240 Md. 249; 213 A.2d 751 (1965).
the board lost. Finding experts to testify to obscenity proved far more difficult than
finding experts to testify to a film’s redeeming value.
New York had also instituted new procedures after the Freedman decision and,
like Maryland, they were immediately challenged by Trans-Lux. However, while
Maryland’s statute had passed judicial scrutiny, New York’s new mechanism failed its
legal test and the legislature gave up, ending the state censoring apparatus in September
Like Maryland and New York, Kansas changed its rules after Freedman and
continued censoring.84 But within a few months, the board had been notified that most
major film distributors had no intention of complying with its new rules. To test the
constitutionality, Columbia Pictures, an MPAA member, began exhibiting two
unobjectionable yet unlicensed films. In July 1966, The Kansas Supreme Court, like the
New York Court of Appeals, struck down its state’s entire statute.85 In Virginia, an
independent distributor successfully relied on the Freedman decision to seek an end to
Virginia’s censor board.86 The General Assembly repealed its forty-four year old statute
in April 1965.87
“Still Stubbornly Censoring”
The new rules were adopted on 26 April 1965 to take effect on 1 January 1966. It required the board to
approve a film within two days or to notify the distributor that the film would not be approved within one
day. Within two days of receiving a non-approved film, the Board had to institute legal proceedings, unless
the film were withdrawn by the distributor. After filing, the board could request a temporary restraint on
distribution but only for four days. The State of Kansas, ex rel. Robert C. Londerholm v. Columbia Pictures
Corporation, 197 Kan. 448; 417 P.2d 255 (1966).
The State of Kansas, ex rel. Robert C. Londerholm v. Columbia Pictures Corporation, 197 Kan. 448;
417 P.2d 255 (1966).
The case was Victoria Films v. Division of Motion Picture Censorship, Division of Motion Picture
Censorship Records, Virginia State Archives, Attorney General correspondence, Box 53, file 54.
Virginia Division of Motion Picture Censorship Records, Virginia State Library and Archives, box 53,
file 54.John N. Salmon, "A Guide to State Records in the Archives Branch of the Virginia State Library,"
(Virginia State Library, 1985).
Now, all that was left was Maryland. The Maryland censors did not intend to
fade away, nor did the Maryland legislature show any great enthusiasm for repealing the
censors’ authority. In the end, Maryland’s decades of film censorship were not terminated
by a state court or a Supreme Court decision: it succumbed only to a state sunset law in
1981. Indeed, no legislature ever voluntarily repealed its film censorship. Those
lawmakers who ended their state censoring did so either because their attorneys general
advised them to or because a court had forced them to. Even in Maryland, censorship was
neither overturned nor repealed. It just faded to black.
Sadly, though, Ronald Freedman, who had done so much to fight for freedom of
the screen, feels little sense of accomplishment for his troubles. While he realizes that the
decision caused the other censoring states to disband their censor boards, he was
frustrated with both Maryland’s reaction and the lower courts’ implementation. “We were
disappointed because the Court did not abolish censorship,” Freedman said thirty-seven
years later. “The problem with the Supreme Court’s decision was that they assumed that
the lower courts would be as knowledgeable of the laws of obscenity as the Supreme
Court was but they weren’t. It was useless going to the lower courts. . . . Freedman versus
Maryland turned out to be a waste of time.”88 Perhaps it seems that way to Ronald
Freedman now, but his was the case that turned the tide on film censorship’s acceptance
by the courts. It took some time to filter down to the lower courts’ level, and it was never
used to overturn Maryland’s censorship by its highest court. Eventually, though, the post-
Freedman cases benefited from the Supreme Court’s procedural requirements that had
come from a case brought by this single exhibitor with the backing of a single
independent film company and a small film society.
Freedman seems typical of the other independent film distributors who had come
before him: Burstyn, Kingsley, Brandt, and other earlier opponents of state film
censorship. These men were willing to fight against the state censors, alone if necessary,
with the help of others if possible. The ACLU, which had publicly denounced censorship
three decades earlier, had been able to assist only a few cases. Both the national office
and its state affiliates needed promising litigants (i.e., clean-cut and upstanding) and local
attorneys willing to take on the state censors. With its resources strained by many civil
liberties issues in the mid-twentieth century (separation of church and state, public
speech, loyalty oaths, civil rights, defendants’ rights), the ACLU can hardly be faulted for
playing a minor role against motion picture censors. The MPAA also had other issues. As
a member organization, it had to run its affairs by committee. Fighting the censorship of a
foreign or independent production was not likely to appeal to its dues-payers. And so,
those who chose to fight the censors were largely on their own.
Each time a new mass medium has appeared, it has been welcomed with calls for
its restriction. When moving picture technology allowed the mass dissemination of
lifelike moving images for the first time at the turn of the century, the result was moral
panic. Arriving just at the height of the progressive era, motion pictures bore the full
brunt of the progressive notion that an educated, bureaucratized elite could best choose
what its nation’s children should watch on their neighborhood movie screens. Appeals to
the First Amendment rights of motion picture producers were denied by the U.S.
Telephone interview with Ronald Freedman, 11 September 2002.
Supreme Court, and motion pictures continued to be reviewed by unqualified patronage
appointees throughout the 1920s, '30s, and '40s. During this period, motion picture
distributors challenged the determinations of film censors in state and federal courts, but
only after World War II, did the independent film distributors who fought back make any
headway in their continuing quest to overturn censorship through the states’ and the
As these appeals began to chip away at the state censors’ authority, the range of
censorable items began to shrink. By 1959, the only permissible standard was obscenity.
Even though many court watchers envisaged the fall of this last censoring standard, they
were mistaken. No state or federal court ever held the prior restraint practiced by
governmental agencies on film unconstitutional. So powerful was the appeal of
censorship as protection for innocents that no state legislature felt compelled to end its
censoring. Despite massive cultural change between film censorship’s creation and its
lingering death, it managed to hold on. In the end, it was terminated by increasingly
constricting procedural requirements demanded by the Supreme Court combined with
state legislatures that cared little about film content.
But the remarkable part of the story of this death-by-slow-litigation is its cast of
characters. An unorganized group of small businessmen took on the censorship
bureaucracies starting in the 1920s, continuing until 1965, fighting the authority of the
seven censoring states to examine all movies before exhibition. Some of the group were
immigrants with a passionate belief in the American Constitution and its protection of
free speech rights. Some were exhibitors who had problems with authority figures. Some
were nearly bankrupted by the precarious business of independent film distribution. Some
were moderately successful importers. But all of them were unwilling to accept
restrictions on their ability to disseminate films they thought worthy. So, they opposed
the censors in the only legal way possible: through litigation.
The turning point came in 1952 when the Supreme Court applied the First
Amendment to films in Burstyn v. Wilson, but there was still much litigation left to be
done. As society changed rapidly in the late 1950s and '60s, moving from the scarcity-
based culture of thrift to the consumption-based culture of abundance and individual
freedom, film censorship began to look less honorable. The distributors began to win and
the censors gradually lost authority. All but one of the major cases brought after Burstyn
was decided in favor of the film men. And each win knocked a bit off the censors’ ability
to control the content of the American screen.
Then in 1965 came a second turning point: Ronald Freedman challenged the
Maryland censor board and the Supreme Court set down such rigid procedural
requirements for governmental film censorship that all of the remaining states gave up,
except Maryland. Beginning with the Burstyn decision and increasing with the Freedman
decision, states realized, one-by-one, that film censorship was no longer worth the effort.
As the state censors retired, a rush of erotic films like Behind the Green Door and Deep
Throat hit movie theaters across the country. The pro-censorite predictions of increasing
tides of smut without governmental restriction had proven true. However, along with the
sometimes unwelcome vulgarity came mature treatments of adult themes. Society got not
only Debbie Does Dallas but also Who’s Afraid of Virginia Woolf, Last Tango in Paris,
Bonnie & Clyde, and Fight Club. The Burstyns and Freedmans who fought censorship
individually probably did not spend their time and money to pave the way for hardcore
pornography, but their struggle brought film viewers across the world more mature, more
thoughtful, and more independent voices.
Today, governmental film censorship is gone, thanks to the independent film
distributors who refused to accept interference with free speech and free press guarantees.
Yet, the work of those who would fight film censorship continues. Instead of bowing to
the dictates of censor boards or the Catholic Church, filmmakers answer to the MPAA’s
ratings board and pressure groups. The situation has changed, but film artistry remains
subject to outside interference.
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