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The magic of movies vs. the mind of the censor

By Paul McMasters
First Amendment ombudsman

It's easy to dismiss Sunday night's annual Academy Awards event as a celebration of celebrity and an exercise in hype, ego and excess. It was all that and a made-for-television ratings grab, too.

But it also was a reminder of just how magical this medium can be in touching the heart and moving the mind. That peculiar power is the reason that lawmakers and cultural and religious guardians have been so constant and relentless in their pursuit of ways to control movies, often with the complicity of Hollywood moguls themselves.

The movies honored this year demonstrate just how large a role movies play in the life of this nation. In addition to making money for their producers and entertaining millions, these films made moving statements about capital punishment, abortion, sexual prejudice, racism, Big Tobacco and Big Media, and a host of other compelling issues.

Ironically, a cartoon movie, "South Park: Bigger, Longer & Uncut," even tackled the issue of censorship, accounting for one of the five songs nominated this year. No doubt, a lot of people tuned into the Oscar extravaganza just to see how ABC would censor the song, "Blame Canada." (The show provided a wonderful diversion by having Robin Williams perform the song, stopping just short of the naughty parts.)

Actually, Hollywood censors itself frequently. It's something of a miracle that controversial content ever reaches the movie-going audience.

It takes real courage for producers and directors to take on a controversial subject or select a provocative way of telling a story. First they have to get past studio executives who for the most part seem far more interested in commercial success than artistic or social relevancy.

That no doubt drove the decision of Bob and Harvey Weinstein, co-chairs of Miramax, which is owned by Walt Disney Co., to form a separate company two years ago to acquire the film "Dogma." That move was designed to deflect from Disney any protests and controversy the religious satire might provoke.

Producers and directors also strive to negotiate around adverse ratings from the Motion Picture Association of America's citizen board. Even esteemed director Stanley Kubrick had to acquiesce to having more than a minute sliced from "Eyes Wide Shut," his last film, in order to get an R rating rather than the dreaded NC-17. Distribution of "Two Girls and a Guy" was held up in 1998 while James Toback tried to negotiate a different rating than NC-17 for his film, finally making cuts in a sex scene to get the R rating.

Movie executives have learned the hard way that they court disaster at the box office by flouting the sensibilities of various groups, religious organizations especially. They remember well the protests and threats accompanying the release of "The Last Temptation of Christ" in 1988 and "Priest" in 1995.

As a backdrop to this self-censorship is the very real censorship Hollywood has endured from its earliest days. In fact it took movies nearly four decades to win even shaky First Amendment rights after the first film court case.

In 1915, the Supreme Court ruled in Mutual Film Corp. v. the Industrial Commission of Ohio that since moviemaking was a business, films didn't qualify for the same First Amendment rights as other forms of expression. In that case, the court allowed prior restraint of speech in the form of local movie-censorship boards.

In 1922, Will H. Hayes, the postmaster general, was recruited to head the Motion Picture Producers and Distributors of America, to blunt the power of these local boards. Under Hayes, the motion-picture industry adopted the Production Code, which held that "No picture shall be produced which will lower the moral standards of those who see it."

It wasn't until 1952 that the court disavowed the pernicious doctrine it had adopted in the Mutual Film case. The later case, Joseph Burstyn v. Wilson, arose when the Legion of Decency said "The Miracle" was sacrilegious and blasphemous and pressured the New York City license commissioner into withdrawing the movie's license. Burstyn, the distributor, took the case to court. Interestingly, he got no help or encouragement at all from Hollywood.

But he did have Ephraim London, a Brooklyn attorney who specialized in constitutional law. Before his death, London argued nine cases before the Supreme Court and won them all. One of his greatest victories, The New York Times wrote in his obituary in 1990, was Burstyn v. Wilson.

In that ruling, the Supreme Court said that motion pictures enjoy the same First Amendment protection as other speech, that the New York law was void as prior restraint and that films may not be censored on the basis of "sacrilege."

Justice Tom Clark wrote, "It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform."

Despite Justice Clark's ringing guarantee of First Amendment protection for movies, the censorship threat always looms in the background.

Seven years after the Burstyn decision, in 1959, Ephraim London was back before the Supreme Court arguing against the same New York law found unconstitutional in 1952. This time, the commissioner had denied a license for "Lady Chatterley's Lover." Again, the court affirmed First Amendment protection for movies.

To give some sense of the durability of the threat of movie censorship, just remember how in 1997 Oklahoma City police knocked on the doors of homes, video stores, and the public library to confiscate video tapes of "The Tin Drum," the movie based on Gunther Grass's award-winning novel.

Once more, the power of the court had to be invoked to stop the censorship.

Those involved in the socially significant movies that received Academy accolades Sunday night should enjoy the moment but keep in mind that censors have long memories.

"The Tin Drum" won an Academy Award for best foreign film in 1979.

Paul McMasters may be contacted at

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