JUNE 6, 2016
AFTER MORE THAN A CENTURY of moviemaking in the United States, there are still two pillars of US film legislation that dominate the legal landscape of cinema: the 1915 Mutual Film Corporation decision and 1952’s Joseph Burstyn, Inc. v. Wilson (a.k.a. the Miracle decision, based on the Roberto Rossellini film at the center of its legal dispute). The former case determined that films did not qualify as protected speech under the First Amendment. Why? Because the ultra-conservative justices at the time considered film to have the “capacity for evil,” in large part because film and nickelodeon culture appealed mainly to the laboring classes. Incredibly, it would be almost four decades later that motion pictures would gain at least partial protection under the First Amendment, when the Supreme Court ruled that “sacrilege” was no longer grounds for banning or censoring a film.
For the 60 or so years since the Miracle decision, courts have retained the prerogative to define and prosecute obscenity as they see fit, even though no high-court judge in our nation’s history has been able to adequately define exactly what “obscenity” is (“I know it when I see it,” was Justice Potter Stewart’s famous attempt at a definition). But if obscenity has been judged by state- and federal-level “community standards,” what happens to this judicial precedent when American community standards themselves become obscene?
You’ll find the answer to this titillating question and more in Jeremy Geltzer’s sprawling legal-cultural history of film and its fraught history with the First Amendment, Dirty Words and Filthy Pictures. According to Geltzer, a onetime Turner Classic Movies executive and intellectual property lawyer, “The history of film’s interaction with the law exposes a vital part of our nation’s ideals, understandings, and inner life.” While the book is a model of scholarly industry, built as it is on a solid foundation of heavy legal and sociological research, Geltzer also expertly finagles this potentially dry legal material (i.e., hundreds of dust-gathering court cases) into something surprisingly readable, despite allowing for the odd block quote from a judicial dissent here or a lengthy concurrence there.
Geltzer’s study begins with the first bans on early 20th-century “nudie” nickelodeons and boxing (or “fistic”) films and ends nearly 100 years later with the prosecution of postmillennial hardcore internet fare, including animal cruelty “crushing” films and bestiality flicks. Whether we’re talking about the influential artsy nudist film Garden of Eden (1954), or post–9/11 “gonzo” porn like Toilet Man 6, these are, like it or not, the kinds of films that over time have helped push the boundaries of First Amendment rights into uncharted territory.
Gay Talese once wrote that “literary freedom comes from the underground” and that often it’s the “smut peddlers” who do the dirty work of fighting censorship while “respectable” artists eventually benefit from these hard-won freedoms. Although directors like Rossellini and Otto Preminger had a hand in stretching the bounds of permissibility in American cinema, First Amendment allowances, insofar as they relate to the cinema, expanded over the years mostly due to the imported provocation of European film or the grassroots efforts of our homegrown crop of renegades, hucksters, and business-minded perverts looking to make a quick buck outside of the restrictive Hollywood system.
To this end, Geltzer plucks dozens of names from industry obscurity whose work, however artistically insignificant or morally despicable, nevertheless served to challenge the status quo and widen the ambit of First Amendment protections. Some more prominent examples in Geltzer’s study include Samuel Cummins and his Jazz Age sexploitation films, the “educational” salaciousness of Al Christie and Bryan Foy, cheeseball “nudie cutie” directors Kroger Babb and Russ Meyer, grindhouse queen Doris Wishman, and the enfant terrible of Swedish sociopolitical porn, Vilgot Sjöman. In Sjöman’s case, rogue publisher Barney Rosset purchased and distributed the Swedish director’s films, but not without crippling financial and legal headaches. But the sacrifices and legal battles of free-expression mavericks like these weren’t in vain, as their efforts led to the “porn chic” revolution of the 1970s and an increasingly mainstream acceptance of a person’s naughty bits on film.
In addition to the inclusion of filmmakers whose work blew raspberries at standards of taste and decorum, Geltzer also devotes considerable space to the filmmakers’ natural nemeses: the notorious censors themselves. The judgments of these self-styled guardians of public decency would profoundly influence what moviegoers could watch in the first half of the 20th century. While Will Hays and his Hays Code are well-known entities in Hollywood history, having had significant influence over the content of mainstream American cinema from the early 1920s to the early 1960s, Geltzer reminds us that there’s more to the story of American film censors than just the gentlemanly “Do’s,” “Don’ts” and “Be Carefuls” of the former Postmaster General Hays.
Indeed, popular history has unfairly branded Hays as a ruthless censor, but Geltzer correctly fingers Joseph Breen, Hays’s successor, as the more aggressively deleterious of the two. Then Geltzer goes on to pluck a few more obscure modern-age bowdlerizers from the dustbin of history who make Hays and Breen seem wildly permissive in comparison. Take, for example, mid-level Chicago cop M. L. C. Funkhouser and virulently racist southerner Lloyd T. Binford, who was head of the Memphis Censor Board for 28 years (1928–1956): both were enthusiastic censors whose racial animosity and Puritan priggishness would torment filmmakers and exhibitors for years. During Funkhouser’s reign as Chicago’s top censor (1913 to 1918), he banned the 1917 pro-American Revolutionary War film Spirit of ’76 because he thought it would offend our British allies. Binford banned 1947’s Curley in Memphis because the film showed too much familiarity between blacks and whites, and he refused to let Charlie Chaplin movies be screened in his city on the grounds that the Little Tramp was “a London guttersnipe.” Such local prejudices were tolerated for years, since the studios’ main concern was avoiding federal censorship.
Once the Hays Code had faded into irrelevance, however, opponents of sleaze had to take a different tack to counter the increasing freedom of sexual expression on film. Geltzer’s book takes on a particularly confident stride when chronicling the porn-chic 1970s, when “community standards” began to lose its power as a determining factor in whether a film was obscene. In this liberal climate of film production and distribution, disapproving establishment figures engaged in more desperate legal wrangling to police the cinema, such as attempting to regulate smut via the post office and the outdated 1930s Smoot-Hawley Tariff Act (which banned “immoral” materials imported into the United States), using zoning laws to displace porn theaters, or prosecuting drive-in movie sleaze through noise and public nuisance laws. All of these secondary channels, however, were pursued with limited effectiveness. With this shift in mind, Geltzer dredges up the exploits of rogue prosecutor Larry Parrish who in the 1970s enacted one of the last of the one-man crusades against on-screen indecency and, as Geltzer puts it, “crafted a porno conspiracy” that would eventually put Deep Throat actor Harry Reems behind bars (at least until a young upstart attorney named Alan Dershowitz got the hard-luck porn hero acquitted).
Judging by Geltzer’s chronological history, when Democrats held political power — as during the Carter, Clinton, and Obama administrations — there was relatively little action taken in the pursuit of obscenity cases. But Republican administrations were more litigious and militantly against fornication on film. In fact, while the Iraq War was in its second year, a special antiporn task force was founded under President Bush, whose administration spent millions of taxpayer dollars in a pathetic attempt to bust the innocuous schlub behind the Girls Gone Wild video series. Although Geltzer’s assertion that “the story of film and the First Amendment charts a steady course toward creative freedom,” rings at least partly true, he also makes the somewhat disturbing claim that “since 2004 more filmmakers have been investigated, tried, and convicted for the content of their films than in the fifty years prior.” Even today the indefinability of obscenity is still a problematically elastic gray area that expands or contracts depending on who’s pulling the strings of national political influence.
If anything, Geltzer’s detailed litany of envelope-pushing movie-biz entrepreneurs — or corruptors of public morality, depending on your view — represents a historically invaluable cross-section of inadvertent freedom fighters working within an American tradition of civil disobedience in challenging the cultural status quo. (Although perhaps not enough emphasis is put on the deviant public tastes here that supported the work of said filmmakers.) But this history of film’s relationship to the First Amendment also serves as a sobering reminder of another very American tradition: the counterrevolutionary, conservative faction of American society that fights to roll back freedoms at every opportunity, whether working toward rescinding a woman’s right to an abortion or criminalizing the director of Gang Bang Horse.
Dirty Words and Filthy Pictures leaves us with a particularly bothersome question: as long as our most powerful and influential lawmakers fail to arrive at a consistently workable and consensual definition of obscenity, how can they seriously continue to prosecute obscenity cases?
Michael Sandlin is a Houston–based writer and critic whose writing on film and books has appeared in the Village Voice, Bookforum, Film Quarterly, Cineaste, and many other print and online publications.