In the United States, films were not protected as free speech until halfway through the twentieth century, and were subject to legal censorship in dozens of states and municipalities. For much of this time, the film industry engaged in its own film censorship regime, under the guidelines of what is commonly referred to as the Hays Code. Keep reading to learn more about the Code, and how films came to be protected under the First Amendment of the U.S. Constitution.

Legal Censorship

The first projected moving pictures—or movies, as we like to call them—were presented to a paying audience of theater-goers for the first time by the Lumière brothers in Paris in December 1895. The first presentation of moving pictures to a paying audience in the United States took place not long after, in New York City in June 1896, with the first dedicated movie theater opening in New Orleans a month later.

For the first half century of their existence, movies in the United States were exempt from the protections of the First Amendment of the U.S. Constitution, and were not considered to be protected speech. As the popularity of films spread, and as increasing numbers of dedicated cinemas were constructed in the early twentieth century, state and religious authorities grew increasingly concerned over the potential morally deleterious impact of movies on impressionable consumers.

Beginning in the 1900s, hundreds of states and municipalities issued their own censorship laws in order to determine the “moral fitness” ^[1]Claire Piepenburg, Not Yet Rated: Self-Regulation and Censorship Issues in the U.S. Film Industry, 25 UCLA ENT. L. REV. 97 (2017-2018). This article can be found in HeinOnline’s Law Journal Library. of films prior to authorizing their presentation to paying audiences. These were often de facto arrangements of collusion between local law enforcement, public officials, and local religious authorities. In 1907, the city of Chicago passed an ordinance that empowered the chief of police to review and censor any films he found morally objectionable,^[2]Claire Piepenburg, Not Yet Rated: Self-Regulation and Censorship Issues in the U.S. Film Industry, 25 UCLA ENT. L. REV. 97 (2017-2018). This article can be found in HeinOnline’s Law Journal Library. regardless of artistic merit. Theater operators challenged the law but, in 1909, it was upheld by the Illinois Supreme Court in Block v. City of Chicago.^[3]Block, et al., v. City of Chicago, 239 Ill. 251, Supreme Court of Illinois. This case can be accessed on Fastcase. Following the Block decision, numerous other states and municipalities enacted their own censorship regimes, modelled after Chicago.

Filmmakers continued to challenge censorship regimes until disaster struck. In 1915, in Mutual Film Corp. v. Industrial Commission of Ohio,^[4]Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230, 246 (1915). This case can be found in HeinOnline’s U.S. Supreme Court Library. the U.S. Supreme Court ruled, in a unanimous 9-0 decision, that free speech protections did not apply to motion pictures. The Court ruled that films represented consumer products, and not examples of speech, and thus were not protected by the First Amendment.

Self-Censorship and the Hays Code

In the wake of the Mutual Film Corp. decision, the film industry began to self-organize to produce films that would be able to stand up to the legal scrutiny of censorship and, most importantly, be able to access the most markets. The patchwork of local censorship laws presented a challenge. Some things (such as depictions of sexual intercourse) were prohibited pretty much everywhere. But others were allowed in some places and prohibited in other, depending upon local legislation. For the film industry, censorship was an exercise in managing risks.

The industry collaborated on a set of standards in the interest of ensuring that their films would make it through the review and censorship process with as little delay or hassle as possible, and be able to do so in as many media markets as possible. The Motion Picture Producers and Distributors of American Incorporated (MPPDA)—which changed its name to present form, MPAA, in 1945—began reviewing film scripts on an “advisory basis”^[5]Claire Piepenburg, Not Yet Rated: Self-Regulation and Censorship Issues in the U.S. Film Industry, 25 UCLA ENT. L. REV. 97 (2017-2018). This article can be found in HeinOnline’s Law Journal Library. beginning in 1926.

Nevertheless, films continued to be censored after production at increasing rates throughout the late 1920s, and there were rumblings of impending action at the federal level. In 1930, the MPPDA adopted the Motion Picture Production Code,^[6]Gordon S., Watkins. Motion Picture Industry (1947). This text can be found in HeinOnline’s Business and Legal Aspects of Sports and Entertainment (BLASE) collection. written by Daniel A. Lord, a Catholic priest who wrote the code with the interest of “purifying”^[7]Claire Piepenburg, Not Yet Rated: Self-Regulation and Censorship Issues in the U.S. Film Industry, 25 UCLA ENT. L. REV. 97 (2017-2018). This article can be found in HeinOnline’s Law Journal Library. American cinema. The Production Code soon became known as the Hays Code, after Will H. Hays, the puritanical chairman of the MPPDA, who oversaw the implementation of self-censorship in the film industry. Under Hays, the Production Code functioned according to three central principles:

1. No picture shall be produced that will lower the moral standards of those who see it. Hence the sympathy of the audience should never be thrown to the side of crime, wrongdoing, evil or sin.
2. Correct standards of life, subject only to the requirements of drama and entertainment, shall be presented.
3. Law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation.

However, initially there was no enforcement mechanism for films that violated the Code. From 1930 to 1934, in the era referred to as “Pre-Code Hollywood,” “producers deliberately flouted the comprehensive yet unenforceable Code to create some of the most sin-filled movies^[8]Alexandra Gil, Great Expectations: Content Regulation in Film, Radio, and Television, 6 U. DENV. SPORTS & ENT. L.J. 31 (2009). This article can be found in HeinOnline’s Law Journal Library. in Hollywood history.” Hays moved to institute penalties for those who flouted the Production Code and, from 1934 onward, member firms that violated code could incur a $25,000 penalty,^[9]Claire Piepenburg, Not Yet Rated: Self-Regulation and Censorship Issues in the U.S. Film Industry, 25 UCLA ENT. L. REV. 97 (2017-2018). This article can be found in HeinOnline’s Law Journal Library. equivalent to close to half a million dollars relative to 2024. Beyond the financial penalties, films and filmmakers that ran afoul of the Code were essentially blackballed, and struggled to find distributors. For nearly the next three decades, the Code would reign supreme in Hollywood.

Challenges to the Hays Code

In 1951, Joseph Burstyn, a New York City film producer, sought to exhibit the short film “The Miracle,” an excerpted vignette from the famed Italian director Roberto Rossellini’s feature length L’Amore. The plot, in which a man impregnates an Italian woman who believes herself to be the Virgin Mary, was ruled “sacrilegious” by the state of New York, and censored. Burstyn appealed the ruling all the way to the United States Supreme Court. The Court’s decision in Joseph Burstyn, Inc. v. Wilson^[10] Joseph Burstyn, Inc. v. Wilson, et al., 343 U.S. 495. This case can be accessed on Fastcase. which came to be referred to as “the Miracle Decision,” brought films under the freedom of speech protections of the First Amendment.

The protected status of films was further reinforced in 1957 with the Court’s decision in Roth v. United States,^[11]Roth v. United States, 354 U.S. 476, 514 (1957). This case can be found in HeinOnline’s U.S. Supreme Court Library. which established a stricter definition of obscenity. In the wake of the “Miracle Decision” and the establishment of the Roth standard for obscenity, filmmakers began to openly challenge the self-imposed censorship of the Hays Code. In 1959, Some Like It Hot,^[12]Taylor Simpson-Wood, As Seen through the Eye of the Camera: A Portrayal of How Cultural Changes, Societal Shifts, and the Fight for Gender Equality Transformed the Law of Divorce, 42 WOMEN’s RTS. L. REP. 1 (Fall/Winter … Continue reading a sexually-charged cross-dressing comedy, was released without a certificate of approval from the Production Code Administration, to wild commercial success. That same year, Otto Preminger’s Anatomy of a Murder pushed the limits of the Code with its direct and non-euphemistic depiction of sexual assault.

The Roth standard of obscenity was tested in Jacobellis v. Ohio^[13]Jacobellis v. Ohio, 378 U.S. 184, 204 (1964). This case can be found in HeinOnline’s U.S. Supreme Court Library. in 1964. The case established obscenity, with the exception of “hard-core pornography,” as being constitutionally protected speech. The case also established the famously imprecise “I know it when I see it”^[14]Christopher Thomas McDavid, I Know It When I See It: Obscenity, Copyright, and the Cautionary Tale of the Lanham Act, 47 U. LOUISVILLE L. REV. 561 (2009). This article can be found in HeinOnline’s Law Journal Library. definition of pornography. Filmmakers scored another legal victory in 1965 with Freedman v. Maryland,^[15]Freedman v. Maryland, 380 U.S. 51, 62 (1965). This case can be found in HeinOnline’s U.S. Supreme Court Library. in which a film distributor in Maryland successfully challenged the constitutionality of a state law requiring the pre-approval of films by censors before their distribution. The Court’s decision in Freedman effectively invalidated numerous state-level censorship regimes. 

By the time of the Freedman decision, the Hays Code was already much diminished in Hollywood, and increasingly ignored by filmmakers and audiences. The Production Code was abandoned altogether, and replaced with the present MPAA film rating system in 1968.

Further Research

If you’re interested in further exploring case law centering on questions of art, obscenity, and free speech, you will find a wealth of information in HeinOnline’s U.S. Supreme Court Library, which contains the official U.S. Reports, as well as preliminary prints, slip opinions, and more titles related to the U.S. Supreme Court. And if you’re interested in exploring the legal ins and outs of film, check out some of these blog posts. And don’t forget to subscribe!

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