Chicago at center of First Amendment fights for a century

Is America at war with the First Amendment? Donald Trump threatened to shut down the Internet to deal with extremists. Hulk Hogan prevailed in a lawsuit against Gawker pitting privacy rights against free speech. Google’s CEO toyed with a plan to “scrub the Internet” of hate speech. When powerful public figures see the regulation of speech as an option to combat undesirable comments, we should all take notice.

Ever since the first printed page there has been tension between freedom and control. The City of Chicago has been on the front line of this battle for better and worse.

Before easy access to forbidden ideas on the Internet, there were the movies. In 1907, Chicago became the first city to pass and enforce a film censorship law.

Stepping in as city’s morality czar was Maj. M.L.C. Funkhouser. With a handlebar mustache, an eye for obscenity, and the iron fist of enforcement, Funkhouser went on a crusade to clean the screens of Chicago. He was unpredictable, permitting Cocaine Traffic (1914) but banning Theda Bara’s The Rose of Blood (1917) and blue-penciling D.W. Griffith’s Hearts of the World (1918). Funkhouser’s opinions were personal, his decisions, arbitrary, his rulings, final.

In addition to Funkhouser’s oversight, the first case to consider film and the First Amendment was also brought in Chicago. After two pictures were banned — The James Brothers in Missouri and a thriller called The Night Riders — the case rose to the Illinois Supreme Court as Block v. Chicago (1909). The court sided with the censors and the pictures remained forbidden.

In 1915, the US Supreme Court handed down its first opinion on film freedom but it was not the decision moviemakers had hoped for. In Mutual Film v. Ohio, the High Court held that motion pictures were not protected speech.

Mutual gave the green light to censors. Funkhouser was one of the first, but soon film boards sprang up crisscrossing the country.

The tides turned in 1952 when the Supreme Court reversed itself in what became known as The Miracle decision. Chicago again became a key battleground for the fight for freedom of the screen. In Paramount v. Chicago, the studio lobbied to screen Desire Under the Elms for all-age audiences. Columbia Pictures disagreed when censors ruled Anatomy of a Murder obscene. A decade later Universal attempted to have the city’s censorship ordinance declared unconstitutional. They failed.

Instead of one fell swoop, the censors would die a death of a thousand cuts. It was not the studios but independent filmmakers that brought down regulators. An exploitation movie named Mom and Dad demonstrated that images of childbirth were not indecent. Garden of Eden, an eye-winking “documentary” on nudism, demonstrated that nudity by itself was not obscene. When censors banned Louis Malle’s The Lovers without giving a reason, the 7^th Circuit stepped in to overrule the film board.

A local lawyer named Elmer Gertz put the final nail in the coffin of Chicago censorship. The World Playhouse Theater on Michigan Avenue had screened art films since the 1930s. In the ‘60s it became a grindhouse showing adult movies. When The World scheduled an S&M-tinged slasher flick named Body of a Female, the city’s cinema police objected. Gertz fought the film law all the way to the Supreme Court in Teitel v. Cusack and prevailed. Chicago’s screens were freed from government censorship.

We may take film freedom for granted now, but the tension between free speech and control remains. From celebrity sex tapes to college campus rules on political correctness, the limits of regulation are still evolving. While there may be reasons to review media, a broad directive to protect morals can too easily be abused. The answer rests with the people — how much government involvement with your media will you tolerate before the regulators have gone too far?

Los Angeles attorney Jeremy Geltzer, a former TV cameraman in Chicago, is the author of Dirty Words & Filthy Pictures: Film and the First Amendment.Follow the Editorial Board on Twitter: Follow @csteditorials

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