Essay on First Amendment and Freedom of Speech

In August 2019, Universal Pictures announced they would not release the horror-thriller film The Hunt, which was set to hit theaters on September 27, 2019. The film follows 12 strangers as they’re being hunted by a group of rich “liberal” elites, who hunt and slaughter them for sport. Universal ceased all marketing of the film due to social media backlash and the recent mass shootings in El Paso, Texas; Dayton, Ohio; and Gilroy, California. The free speech issues raised included the right to express political opinions, and the right of the press to operate free of government interference (freedom of the press). The ethical issues/questions included whether or not it was right for the studio to self-censor themselves solely because of social media backlash and President Trump’s tweet, the question of does the film incite gun violence, the question of cinema being immune from public criticism as it’s a form of escapism art, and the concern if censorship detracts the artistic vision and intentions of filmmakers. The Supreme Court had ruled in Mutual Film Corp. v. Industrial Commission of Ohio (1915) that motion pictures were a form of business, not art. Therefore it was not classified as protected speech under the First Amendment. Thirty-seven years later in Burstyn v. Wilson, the Supreme Court reversed the 1915 decision declaring that motion pictures are protected as speech under the First Amendment. Even with establishing the MPPA rating system, Universal’s decision to postpone their film may have broken some unfortunate new ground in self-censorship.

Free Speech Precedents and Implications

In a unanimous decision in Mutual Film Corp. v. Industrial Commission of Ohio, the Supreme Court ruled that “movies were not part of the nation's ‘press,’ and therefore that state censorship of motion pictures did not violate the constitutionally guaranteed freedom of expression” (Wertheimer, 1993, p. 158). The state of Ohio passed a law creating a board of motion picture censors where they determined the acceptability of all films before their public exhibition. It instructed the board to approve only films that incorporated a moral, educational amusing, and harmless character; and established penalties to punish those who did not submit to and approved by the board (Wertheimer, 1993, p. 159). Mutual Film Corporation refused to submit its films and challenged the constitutionality of the censorship law in a federal district court in Ohio's Northern District. In court, Mutual also argued that in addition to the violation of its First Amendment rights, the board of censors was interfering with interstate commerce but was later dismissed. The significance of this decision was the beginning of censorship of motion pictures as a governing body chose what was presentable or not to its citizens.

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The criticism revolving around the Mutual decision is how Justice McKenna classified the characterization of the motion pictures as having a greater 'capacity for evil' than other forms of mass communication, and therefore subject to prior restraint (Jowett, 1989, p. 69). According to McKenna, movies were capable of disseminating ideas and people could abuse them to merely make a profit. He believed that movies were harmful and a threat to traditional American morals and beliefs. Religion may have played a factor in the decision as Jowett (1989) mentions the following:

The motion picture controversy was much more than a fight between reformers and a morally suspect group of filmmakers. For the long-dominant Protestant segment, the new entertainment medium was, in reality, a dramatic and highly visible symbol of those social and political changes in turn-of-the-century America which they seemed powerless to prevent, and which threatened to inexorably alter the face of the nation they had striven to build. For most of its history, the United States had been a Protestant nation, but at the beginning of the twentieth century, this was changing (p. 59).

The first issue here is that the First Amendment explicitly says that Congress shall make no law establishing a national religion so if the case was based on mere religious ideals, it makes the Mutual decision unconstitutional. Protestant morals and beliefs lean more towards the conservative side of politics so the censorship of motion pictures would have been favored by them. Referring to social and political changes, the Progressive movement was in full force during this time as it allowed the public to advocate against political corruption and more. An argument can be made that Justice McKenna, who was conservative, censored motion pictures because of their potential to change the traditional views of the public during an era where change was inevitable. As Seidman (2018) mentions:

Without change, a progressive First Amendment is impossible because it is inconsistent not only with deeply entrenched legal principles but also with First Amendment common sense. With change, a progressive First Amendment is unnecessary because progressives will already have achieved their goals (p. 2226).

Tying this back to The Hunt, if the film was released in 1915 it would have automatically been denied to screen because the concept of the hunting and killing of innocent human beings by liberal elites would have been a culture shock but necessary to commentate on issues of current events.

Thirty-seven years later, the landmark case of Burstyn v. Wilson (1952) ruled that motion pictures were considered protected speech under the First Amendment. Roberto Rossellini’s film The Miracle, which followed a woman who believed she was carrying the son of God, was revoked its New York license after violating the Hay’s Code for being sacrilegious. The court upheld the right of the motion picture industry to police itself but ruled that the film was not blasphemous. In a 9-0 vote, the court unanimously reversed Mutual’s ruling announcing that “liberty of expression using motion pictures is guaranteed” (Tedford & Herbeck, 2017, p. 142). The significance of this precedent establishes the means to express political opinions without prior restraint. This change in precedent, among other things, activated a chain of events for future cases that dealt with prior censorship. As Marceau and Chen (2016) mention:

Motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought that characterizes all artistic expression (p.1012).

This is important to the concept of freedom of expression as this established precedent made it okay for movie studios to publish their work to commentate on social and political issues without prior restraint. The Hunt, a film commentating on radicalism and gun violence, wasn’t censored by the studio alone but by the filmmaker himself (Craig Zobel). From a free speech standpoint, there was no need to cancel this film as Burstyn established the right to publish their work as a form of artistic expression – free of government interference.

Ethical Dimensions of The Hunt

Numerous ethical issues revolving around The Hunt have sparked the debate of whether or not it was right for Universal Pictures to self-censor their film, given they legally could have screened based on precedents. President Trump’s tweet disowning the film and “Liberal Hollywood” raised this question of self-censorship due to social pressure. Universal’s decision was unethical because it violates First Amendment rights and the freedom of expression. The fact that a major movie studio canceled a high-profile film right after the president seemingly tweeted about it begs the question of whether or not government interference is still an issue with First Amendment rights. This also establishes the precedent that powerful government leaders can theoretically shut down a movie’s release because they solely heard about it on TV or the internet through a trailer for a movie nobody’s seen. This is a move back towards government censorship which Hollywood geared away from forty years ago (Hays Code), and it flies in the face of First Amendment freedoms by today’s standards. In John Stuart Mill’s essay On Liberty (Mill, 1859), he mentions how society is entitled to protect itself against harm but only if justified by good reason. Connecting Mill’s Utilitarianism ideas to self-censorship, Funk (1984), mentions “Unless [the] reasons [for censorship] are good for an extreme case, they are not good for any case' (p. 455). It’s without a question The Hunt is classified as a controversial film but ethically speaking, it is a commentary on current social and political events. Movies that have political and social messages incorporated within them aren't new, let alone received some sort of backlash but are still released in theaters. The social media backlash for this film was the primary component of the film’s cancelation but the film was not yet released. It goes forth to show just how influential social media, especially during a divided time, can determine the life or death of a movie even before its release to the public.

Another ethical issue raised was whether or not The Hunt incited gun violence after the recent mass shootings. In a study done by Romer (2017), the research noted that while studies have not yet identified the clear connections and effects of films that glorify the use of guns, “the American Academy of Pediatrics has noted the large body of research showing that repeatedly viewing violent media content can influence some youth to become more aggressive” (p. 2). In the wake of the unfortunate mass shootings in El Paso, Dayton, and Gilroy, American politicians have repeatedly tried to link violent films with violent actions and that’s simply not true. The Hunt didn’t receive a rating before its release was canceled, but the trailer seems to indicate it would have been R-rated. Gun violence isn't something new in R-rated films specifically as the MPAA classifies them as adult content not suitable for younger viewers. Ethically speaking, The Hunt was a film not intended to glorify violence but a critique of violence in modern-day America. Freedom of expression and political opinions are granted by First Amendment rights so for this film to be targeted as another excuse for influencing violence is unethical. It can be argued that people have seen a rise in mass shootings due to the corrupt nature of the Trump administration, but unfortunately, mass shootings have been a major problem in the 21st century that exceeds far beyond gun violence in film. Looking back to Mill’s Utilitarian perspectives of good reason and maximizing happiness/minimizing unhappiness, Funk (1984) goes on to mention:

Mill does not deny that censorship is optimal in some cases. But even when optimistic, it is not justified. The distinction between what is right and what is optimal is reflected in our common discourse. It may be optimal to break a promise, but it would not be right. Mill also makes this distinction. A wrong act is one not merely expedient but one where sanctions against it are justified. And for that, the sanction cannot itself have overriding disutility, as Mill argues would be the case with the sanction of censorship (p. 454).

With the recent mass shootings, the cancelation of the film may have been a win for right-wing (and some left-wing) individuals but it raises the concern that filmgoers and filmmakers who don't consider themselves political (or see past political opinions) weren’t justified when maximizing/minimizing happiness. The filmmakers didn't take into consideration the variety of people – regardless of their political affiliation – who would go see their movie with an open mind on current events. Funk (1984) further goes on to mention:

Adoption of any reason, even a reason for limited censorship, will lead to a breakdown of a general prohibition against censorship. Once censorship is evaluated on a ‘reason by reason' basis it can be expected that too many reasons to censor will be unjustifiably accepted, that this will be used for repression, and the harm that results will be above any good done. Therefore, it is better not to adopt any reason to censor (p. 459).

As mentioned before, the filmmakers in a way have given power back to the government for potentially censoring future films that depict gun violence and mass shootings. Universal’s move sets up the rest of the industry to be battered about by the radicalism of politicians, in direct opposition to Liberal Hollywood’s historical efforts to keep state intervention away. Because of this, it creates mistrust in moviegoers and their ability to choose which films they pay to see.

Finally, another major ethical issue involved with The Hunt involves it being immune from public criticism as it’s a form of escapism art and whether or not censorship detracts from the artistic vision and intentions of filmmakers. The answer to this question, film is indeed a form of escapist entertainment as the stories and worlds created reflect people’s imaginations, but it should always be a center of public discussion. Tratner (2003) explains the following:

Hollywood relies on the emotions that threaten to fuel mass rejection of capitalism— anger at class or gender or racial inequities—but turns those emotions into mass support for American individualism by showing that they would be dangerously misdirected if they become the motives for crowd action. Instead, movies construct private plots that parallel the plots underlying public issues and hence can borrow the passions generated by those issues. Private life in twentieth-century America is no longer a place to escape mass emotions; it has become instead a receptacle into which the intensity of mass emotions can be poured without danger of riot or revolution (p. 71).

For The Hunt to be scheduled to be released at a time when Americans were mourning the loss of innocent lives is unfortunate, but the discussion of the film is necessary to progress the politics of it and vocalize for change in reality. The fact that the film utilizes the term “deplorables” (Hillary Clinton used this term to refer to Trump supporters during her 2016 United States presidential election campaign) as the group of people being slaughtered by the “liberal” elites just goes to show satire is necessary to commentate on political issues. It is indeed ethical to classify motion pictures and this film as escapism art because it’s like a piece of art on the wall that people stop by and just observe from their point of view. This supports Mill’s perspective that the standard becomes “no harm, no foul” as the film doesn’t explicitly mention specific names of groups and people - making it ethical. On the other hand, Universal pulling the plug on this film was unethical as this does indeed detract from the artistic intentions of the filmmakers. As a filmmaker, it is their job to tackle social and political issues as these types of films grab the attention of lawmakers and representatives the most alongside activists. Censoring this film is like taking away one’s right to petition against the government which violates First Amendment freedoms. A filmmaker has to view both the resolutions and consequences of ethical choices, which is a perspective Mill holds ideal to. Though the director of the film released a statement saying he agrees with Universal’s decision, it just further supports this overarching theme that self-censoring this film has established a precedent that government interference will continue to subtly look over controversial films.

Conclusion

Burstyn v. Wilson, the landmark case that decided motion pictures as a form of protected speech, is considered a free speech victory as it laid down the foundations of artistic expression through film. However, the self-censoring of The Hunt is a major loss to free speech freedoms in Liberal Hollywood as this is the first film to be canceled during President Trump's term. I would prefer it if social media didn't play a factor in canceling The Hunt as it’s hard to avoid social pressure and toxic comments on there.

Whether or not you think a movie like The Hunt should even be made, I found a few small moments throughout my research that made me believe that Universal shouldn’t have canceled the film’s release in this manner. For example, today’s MPAA rating system is set up to provide freedom of expression to both artists and audiences. Filmmakers get to make the movies they want to make because of the established free speech precedents mentioned above. No one is forced to see them or be denied seeing them by a government body and/or agency. In the end, everyone gets to self-govern in the motion picture industry because the studio self-censored its film without the explicit aid of “Big Brother”.

Works Cited

1. Funk, N. (1984). Mill and Censorship. History of Philosophy Quarterly, 1(4), 453-463. Retrieved from www.jstor.org/stable/27743702
2. Marceau, J., & Chen, A. (2016). FREE SPEECH AND DEMOCRACY IN THE VIDEO AGE. Columbia Law Review, 116(4), 991-1062. Retrieved from www.jstor.org/stable/43783608
3. Jowett, G. S. (1989). ‘A capacity for evil’: The 1915 Supreme Court Mutual Decision. Historical Journal of Film, Radio and Television, 9(1), 59–78. doi: 10.1080/01439688900260041
4. Romer, D., Jamieson, P. E., & Jamieson, K. H. (2017). The Continuing Rise of Gun Violence in PG-13 Movies, 1985 to 2015. Pediatrics, 139(2). doi: 10.1542/peds.2016-2891
5. Seidman, L. (2018). CAN FREE SPEECH BE PROGRESSIVE? Columbia Law Review, 118(7), 2219-2250. Retrieved from www.jstor.org/stable/26524959
6. TRATNER, M. (2003). Working for the Crowd: Movies and Mass Politics. Criticism, 45(1), 53-73. Retrieved from www.jstor.org/stable/23126371
7. TEDFORD, THOMAS L. (2017). Freedom Of Speech In The United States. Place of publication not identified: STRATA Publishing.
8. Wertheimer, J. (1993). Mutual Film Reviewed: The Movies, Censorship, and Free Speech in Progressive America. The American Journal of Legal History, 37(2), 158. doi: 10.2307/845372