Barbas on How the Movies Became Speech

Samantha Barbas, University at Buffalo Law School, has posted How the Movies Became Speech, which is forthcoming in the Rutgers Law Review.  Here is the abstract:

 In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere "entertainment" and "spectacles" with a "capacity for evil." Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the U.S. had been almost entirely abolished.

Why did the Court go from regarding the cinema as an unprotected medium to part of the constitutionally-protected "press"? The standard explanation for this shift is that civil libertarian developments in free speech jurisprudence in the 1930s and 40s made the changed First Amendment status of the movies and the fall of film censorship inevitable. Challenging this account, I argue that the shift was also the result of a dynamic I describe as the social convergence of mass communications. Social convergence takes place when the functions, practices, and cultures associated with different media come to resemble each other. By the 1950s, movies occupied a role in American culture that increasingly resembled the traditional press. At the same time, print journalism took on styles and functions that were like those historically associated with the movies. The demise of film censorship reflected not only more capacious understandings of freedom of expression, but also convergent communications. The article focuses on the efforts of a nationwide anticensorship movement, between 1915 and the 1950s, to engineer the reversal of Mutual using an argument based on media convergence.

This significant, lost chapter in the history of modern free speech has much to tell us about the ongoing relationship between the First Amendment and new media. It illustrates how courts and the public in an earlier time dealt with a question that is still pressing today: should the medium of communication have significance for free speech law? Illuminating historical patterns of judicial responses to new media, the work offers insights into what we may predict about the regulation of mass media in our own era of media convergence.