Story by Charlotte Dekle
Associate Feature Editor
Illustration by Isole Kim
Supreme Court Justice Potter Stewart summed up censorship laws best in his threshold test for obscenity in 1964’s Jacobellis v Ohio, stating “I know it when I see it.” This now infamous quote perfectly encapsulates society’s hasty interpretations of obscenity in film and television content, and the problematic results of these definitions.
Modern discussions of media censorship usually begin with the 1934 to 1968 implementation of the Hays Code, which were censorship guidelines named after former Postmaster General and initial overseer of the code Will H. Hays. Hays’ role as a Presbyterian deacon and chair member of the Republican party proved to be the exact credentials that the film industry needed after a push from religious organizations for cleaner films. This catapulted Hays into his position as the chairman of the Motion Picture Producers and Distributors of America (MPPDA), the chief censor of content. Hollywood’s censor timeline can be divided into three eras: pre-code, during code, and post-code.
Pre-code Hollywood explored taboo themes like nudity, same-sex relationships, gender roles, blasphemy, and sex. The first Best Picture winner of the 1927/28 year, Wings, contains a kiss between two male combat pilots in the Army Air Service. In 1932 The Sign of the Cross, actress Marlene Dietrich challenged gender norms by appearing in a tuxedo, because god forbid women wear pants. In the film Baby Face, actress Barbara Stanwyck’s character plans to sleep her way into a luxurious lifestyle. These frank depictions of sex and sexual activity continued with little interference up until 1934’s Hays Code due to the lack of a cohesive censorship code.
Although films had no united policy, there was a tremendous push for the rehabilitation of Hollywood’s image from religious groups after the murder of film director William Desmond Taylor and the alleged rape and murder of silent film actress Virginia Rappe by actor Roscoe “Fatty” Arbuckle. Industry professionals had attempted to clean up films before, most notably with the creation of the National Association of the Motion Picture Industry in 1916, but it resulted in little change in the production of films.
In addition to a push from religious organizations, government oversight began to bear down upon pre-code Hollywood. In 1915, the U.S. Supreme Court decided that free speech did not extend to films. At the time, state or municipal governments could create their own censorship boards. Ohio had one such board and, like many other governments, levied taxes against film distributors for violating the regulations. The Mutual Firm Corporation of Detroit sought an injunction, claiming that it hindered interstate film commerce and violated the first amendment.
Justice Joseph McKenna disagreed, writing in the majority opinion, “the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit…not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.”
Following this Supreme Court opinion, New York implemented its own film censorship code in 1921. Virginia followed suit the following year. Instead of contending with states’ individual film discretion, however, the industry decided it would rather institute its own uniform censorship code.
In 1927, the Hays Office issued a codified list of “Don’ts” and “Be Carefuls” that were voluntary but encouraged. The document’s censorable material includes profanity, ridicule of the clergy, scenes of childbirth, nudity, and interracial relationships. According to NPR, “the Production Code was voluntary for film companies, who figured it was a nifty way to avoid government censorship. But it was mandatory for filmmakers, if they wanted their films to play in American theaters.”
During the Roosevelt administration, there was a heightened sense of moral panic surrounding film content. Mary Gelsey Samuelson, author of The Patriotic Play: Roosevelt, Antitrust, and the War Activities Committee of the Motion Picture Industry, wrote “Although the president remained publicly neutral on the controversy over film content after taking office in 1932, Mrs. Roosevelt’s interest in social reform and education certainly affected her view on cinema’s role in American culture.”
So to stave off government censorship during the Roosevelt administration the MPPDA appointed Joseph Breen in 1934 to oversee and enforce the self-imposed censorship code in the Production Code Administration division of the MPPDA. Breen was a newspaper-man and prominent Catholic, deemed by Variety to be the “supreme pontiff of picture morals from now on.” His religious morality judgments were in an attempt to cleanse the motion picture industry from the underbelly of sin and tuxedo-clad women it was previously. The Hays Code era film industry was, as the historian Francis G. Couvares put it, “an industry largely financed by Protestant bankers, operated by Jewish studio executives, and policed by Catholic bureaucrats.”
These Catholic bureaucrats imposed their own zealous regulations upon the industry. Among the prohibited content were “nudity, suggestive dances, discussions of sexual perversity, superfluous use of liquor, ridicule of religion, and miscegenation (interracial relationships).” In short, anything that defied the homogeneous and strict moral codes of the time were blacklisted from appearing in film.
“The code sets up high standards of performance for motion-picture producers,” Hays proclaimed when the new code was unveiled. “It states the considerations which good taste and community value make necessary in this universal form of entertainment.”
The ‘good taste’ and ‘community value’ was just cultural shorthand for ‘the status quo.’ This directly contributed to perpetuation of sexism, racism, and homophobia on screen. Female characters were often subjugated to the roles of housewife and mother. Due to the Hays Code stringent anti-sex doctrine, women’s bodies were censored, often leading to sexual women being vilified and either reformed or killed. Racism and homophobia were further perpetuated due to the anti-interracial relationships and anti-homosexuality laws imbued within the code. To the former, Hollywood opted to not include people of color at all. To the latter, it manifested in queer characters being villainized or brazenly stereotyped.
Director Sam Huston’s 1941 film, The Maltese Falcon, follows detective Sam Spade as he searches for a stolen treasure. Along the way, he meets Joel Cairo, who attempts to distract Spade from his quest. Cairo is explicitly gay in the novel the film is based on. But since the Hays Code could not have overtly queer characters, Cairo was reduced to an offensive stereotype, and implicitly coded as gay. To avoid any subsequent backlash, Cairo is explicitly villainized, as to prove that the film was not condoning queerness.
Asian-American actress Anna May Wong was one of the many victims of the Hays Code. Wong had been occupying the limited space for Asian actors in classic Hollywood, primarily portraying stereotypical characters. For example, when Pearl S. Buck’s novel about Chinese farmers, The Good Earth, was being adapted for film, Wong thrust herself into consideration. She was one of the only Asian movie stars at the time, after all. Unfortunately, when white actor Paul Muni was cast in the main role. The role of his wife O-lan could not be played by an Asian actress due to the anti-miscegenation laws. O-lan eventually went to white actress Luise Rainer, who won an Oscar.
Filmmakers were also beholden to the code, for fear of being blacklisted from American theaters. Many films were heavily sanitized or changed completely to accommodate the rigid rules. This led to two primary options: adapt to the code or attempt to defy it. The Oscar winning film Casablanca used the former method. Breen intervened on the film production and objected to any explicit reference that the two protagonists (Rick and Ilsa) had slept together. However, the sexual tension between them remained heavily implied, culminating in one of the most iconic movie romances. With this, the iconic final scene where Rick ends the relationship and delivers “here’s looking at you kid,” was born. This is a prime example of the code imploring creators to become inventive with their storytelling, one of its few benefits.
Conversely, the latter method showcased the difficulty to maintain artistic integrity within regulations. Director Howard Hughes threw a publicized fit over the censorship of actress Jane Russell’s bosom in his film, ironically titled, The Outlaws. When 20th century Fox decided to pull the release, Hughes went phone banking to publicize his “lewd film.” The phone banking sparked public outcry and protests which was exactly the shock-value he needed to force his film into theaters.
The cause of the Hays Code’s demise was simple: the public thirst. While the stodgy Hays Code persisted until 1968, community standards shifted. According to the same NPR article, “After World War II, with competition from TV on the family front, and from foreign films with nudity on the racy front, movie companies were less inclined to rein in filmmakers who couldn’t wait for the rules to catch up.”
In 1959, United Artists released the picture Some Like It Hot, without a seal of approval. Some Like It Hot offered a smorgasbord of previously forbidden topics: a scantily-clad and often intoxicated Marilyn Monroe, flanked by Jack Lemmon and Tony Curtis in drag being hit on by male suitors, in addition to explicit gambling and racketeering. The film was a monstrous success, grossing $14 million in the US by 1962. While public discourse surrounding the previously taboo topics grew softer, Some Like It Hot made a dent in the previously impenetrable Hays Code.
Public tolerance of risque material post-code was almost instantaneous. In 1970, the X-rated film Midnight Cowboy won the Best Picture Oscar. The public longed for previously considered obscene content, allowing for once-taboo topics to be depicted in film. Yet, the negative racial and sexual attitudes perpetuated by the code still exist, and many actors of color and actors in the LGBTQ+ community are tasked with either conforming to the stereotypes or risk job loss defying them. Today, the mandatory Hays Code has been replaced by the voluntary MPAA production ratings with the now ubiquitous: Rated G, PG, PG-13, R, and NC-17.
The 1970s television landscape mirrored the one presented in the pre-code and post-code eras. More risque topics permeated the airwaves, spearheaded by television producer of 70s hits such as All In The Family and The Jeffersons, Norman Lear. After the release of a particularly graphic non-consensual sex scene in the 1974 TV movie Born Innocent, however, there was a crackdown on explicit content.
Family Viewing Hour, was an FCC-imposed censorship policy where the three major television networks (ABC, CBS, NBC) were obligated to air ‘family-friendly’ content between the primetime hours of 8 to 9 pm. Actions that were excluded from airing were, according to a 1975 New York Times article, “deemed inappropriate for viewing by a general family audience.” Although, the sex scene may be too triggering and graphic for audiences, what ensued was a denunciation of all sex and crime for familial viewers.
But the specifics on what was considered inappropriate remained unclear. According to the same New York Times article, “On ABC, a person or a thing cannot be referred to as a ‘big mother,’ because of its supposedly offensive derivation, whereas on CBS’s show Good Times, the character J.J. uses the phrase all the time.”
“Of this season’s new shows, a lot‐17 perhaps—will have bit the dust by mid‐year,” John Mitchell, president of Columbia’s television division, in the 1975 New York Times article said. “To my recollection — and I’ve been around the business many years—this will be the highest percentage ever. No one can tell me the Family Hour was not responsible.”
Ultimately, the Family Hour negatively affected the economic returns of network programming. The constant schedule shuffling and shelving led to Family Hour shows cutting into ‘rerun hours’ so networks couldn’t recoup their $300,000 or so investments from syndicated television. Additionally, the Family Hour decision was brought to a United States district court, spearheaded by Lear. On November 4, 1976, judge Warren J. Ferguson decided that the Family Hour was unconstitutional on the grounds of violating the first amendment’s freedom of speech clause.
While the Family Hour may have ended, censorship by television corporation’s individual boards persisted. Ahead of its 1977 premiere, the television series Soap leaked the censorship notes and internal revisions from ABC’s Standards And Practices on their first episode to the Los Angeles Times. Soap was a comedy on ABC that satirized the typical soap opera format, with many cutting edge topics being covered in its four-season run, including one of the first openly gay main characters and relationships on television, between film director Jodie (played by Billy Crystal) and a football player. The treasure trove of obscene content included the relationship between Jodie and the football player, to which the leaked Standard’s and Practices memo said, “should be handled in such a manner that explicit or intimate aspects of homosexuality are avoided entirely,” and “[The] affair with a Jesuit priest, [the] subsequent pregnancy as a result, and later exorcism, are all unacceptable.” The notes were an unprecedented glimpse into what network censors considered objectionable, and helped to further characterize what the Family Viewing Hour deemed obscene content. Soap used this publicity to market itself as an ‘edgy’ show, similar to how Howard Hughes marketed The Outlaw.
Television censorship has followed similar patterns to film censorship. With TV ratings controlled by the FCC, the standards for obscene material were similar to the Hays Code. The FCC and Justice Potter seemed to have attended the same school of thought in regards to obscene material: they know it when they see it.
“It is a violation of federal law to air obscene programming at any time. It is also a violation of federal law to broadcast indecent or profane programming during certain hours. The Federal Communications Commission (FCC) defines indecent speech as material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium,” The FCC says.
So, gone are frank discussions of sexuality and activity during certain hours. Sound familiar? FCC policing language is not only unconstitutional, it’s also sexist. Writer-producer Carolina Paiz was on Grey’s Anatomy early in its run and writers were told that they could use the word “penis” but not “vagina.” For a show called Grey’s Anatomy, it’s paradoxical why discussions of female anatomy were too bawdy, but male anatomy was fair game.
The MPAA rating system’s hasty content definitions permeate through film as a whole and the economic benefits thereof. In theory, for a film to gain a PG-13 rating, it’s able to have extended violence, stronger language, sexual situtations and drug use. But in practice, the emphasis is placed less on violence as opposed to language and sex.
“The reason the ratings board does not rate films as harshly because of violence is because most of the films that are PG-13 and violent are making a lot of money,” said filmmaker Kirby Dick.
And why wouldn’t they? Opening a film up to a larger audience in turn receives more money. According to The Wrap, “Movies rated R returned about $42 million at the box office on average in 2014 while the average haul of PG ($82 million) and PG-13 movies ($79 million) was roughly double that.”
Public television and censorship scrutiny has definitely lessened since the advent of streaming services with more relaxed censorship guidelines. Previously objectionable content such as cursing and sex are becoming readily available to children who would not have been exposed to it 40 years ago. Network television still has to abide by the rules, however. But there is still an unprecedented wave of LGBTQ+ and people of color starring and helming major television shows and films. The Hays Code may have ended, but the censorship of female sexuality still exists in the MPAA rating system. Women enjoying sexual activities still garner more controversy and censorship than violence or men enjoying sexual activities.
“Well, in a construct where most movies are written by men [and] directed by men they’re mostly the male experience. And even in sex scenes they’re mostly from the male perspective, so I don’t think that the focus is female pleasure. I think that female pleasure is unnatural; I think that female pleasure is scary.” Director Kimberly Pierce said, “And so if you’re a woman who understands it from the female perspective you’re treading in unfamiliar territory, and I think that this unfamiliarity is what breeds these NC-17s.”
Ridding the world of ratings and regulations is not the solution, some material can be triggering and harmful to certain demographics. But the unfair application of these restrictions is where the problem lies. Treat various degrees of sexuality, violence, and profanity the same. A rape scene shall be weighed heavier than consensual sex, of course, but the genders, races, and sexualities of the parties involved should not determine the rating. All in all, the public can self-regulate what they see as objectionable. How does the public determine whether or not silencing obscene content is necessary or ruinous to societal welfare? Well, to reference Justice Potter Stewart, we know it when we see it.