In this post I’m going to be mashing together several lesson plans from two very different courses: my Intro to Mass Communication course at DePaul University, and the course “Frames, Claims, and Videogames,” which I’m currently teaching at the School of the Art Institute right now. Despite their different origins, these lessons speak to common themes, and in fact they could be productively combined in the future. At issue in all of them: the US Supreme Court’s shifting views on various media, their potential for socially valuable expression, and their first amendment protections (or lack thereof). We could call it a vernacular legal theory of medium specificity, moments in which those whose job it is to interpret the law dip their toes into defining the specific affordances and dangers of a given medium.
What is our country coming to when a so-called judge can define a medium’s potential as a mode of expression? THE DEFINITIONS OF OUR MEDIA ARE AT STAKE.
Part one: Mutually-Assured Distinctions
I taught Into to Mass Communication three times in the 2015–2016 academic year, during DePaul’s Fall, Winter, and Spring quarter. Each time I tweaked it a bit, trying to get the transitions between the weeks better. I was pretty happy with what I ended up with the third time I taught it. In that particular configuration, I had a week that dealt generally with issues of the First Amendment sandwiched in between my week on newspaper-based journalism and my week on the film industry. It provided great context for discussing SCOTUS’s evolving positions on the relationship between popular mass media and “the press.”
For the first day of this two-week sequence, I had students read the chapter “Media Freedom, Regulation, and Ethics” from Stanley J. Baran’s Introduction to Mass Communication textbook. In my short lecture, I went over the basics of the history of the judicial branch’s interpretation of the First Amendment. Of central importance here was two clarifications, which I thought were necessary due to misunderstandings as to the history and purview of the First Amendment that frequently fly around in online discussions. First, I made it clear that US legal precedent does not and never has had an absolutist or fundamentalist stance toward the issue of “free speech.” The concepts of incitement, defamation (libel/slander), obscenity, fighting words, and prior restraint have a long history in the court as marking out categories of speech that are not protected. Secondly, I made the always-worth-reiterating point that the First Amendment applies only to the government, and not to private corporations. The go-to pithy way to explain this remains, as ever, xkcd’s comic on the subject.
From here, I segued into discussion, breaking students into small groups to argue about conflicting points of view presented in the Baran chapter. You can see those in my visual presentation for this particular day’s lesson, which is here.
The following class was devoted to much more formalized in-class debates. I had students break into groups and debate different First Amendment-related issues, which served as a hinge point between journalism and cinema. Two debates revolved around issues of prior restraint, looking at the situations of Chelsea Manning and Edward Snowden. The third debate revolved around something that happened a century prior, and involves a completely different set of First Amendment issues: the Mutual Film Corporation v. Industrial Commission of Ohio SCOTUS case, in which the notion that cinema deserves First Amendment protections first made its way to the Supreme Court … and was unanimously rejected by its judges.
I assign the actual Mutual decision as course reading, as a way of getting students out of the textbook and thinking about how mass media technologies circulate through the world at large, including the very specific world of the court system. When I assigned it for reading, I also assigned this a short take-home quiz, which includes the following three questions:
- On pp 236–239 of the decision, the arguments put forward for the Mutual Film Corporation, as argued by their lawyers William B. Sanders and Walter N. Seligsberg, are laid out. Most of these relate to freedoms afforded to publication under both the US and Ohio constitutions. On pg 237, the argument is forwarded that “Appellants’ motion pictures constitute part of ‘the press’ of Ohio within the comprehensive meaning of the term.” What are some of the reasons listed for movies to be considered part of “the press”?
On pg 244, Justice Joseph McKenna lays out his view on why movies are “not to be regarded,” in the court’s view, either as “part of the press” or as “organs of public opinion.” Instead, they are something else … “pure and simple.” What, purely and simply, is the exhibition of moving pictures, according to Justice McKenna?
Look to the answer you gave to question 2. Justice McKenna seems to believe that the category he proposes there, for cinema, is mutually exclusive with the category of the press. Do you agree that these two categories are mutually exclusive? Can the former never overlap with the latter? Why, or why not?
This last question is kind of tricky, and, looking it over, I think I’d re-design it in the future. A significant amount of my students didn’t gravitate toward the distinction I had in mind—namely, the distinction between “the press,” on the one hand, and cinema, which is “a business pure and simple, originated and conducted for profit, like other spectacles.” Especially coming off of a week on the business and ethics of journalism (both of which are being complicated with the decline of advertising revenue and the rise of sponsor content and BuzzFeed-style journalism-as-listicle in the digital age), it seemed necessary to question the assumptions baked into this distinction.
In general, I find the Mutual decision to be a fascinating read, because it really shows how much our nation’s notions of the bounds of free expression and the value of mass communication media and mass art have changed over the intervening century. There are just so many assumptions to pick apart in the following passage from McKenna’s decision, which seem so foreign to us today:
It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded … as part of the press of the country or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the State of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.[i]
There’s the assumption, already indicated above, that a distinction can somehow be maintained between “the press” and “business/spectacle,” as if the two were mutually incompatible arenas. There’s the narrow reading that First Amendment protections apply only to “the press,” and not to other more broadly defined forms of expression, such as popular mass media (“spectacle”). Then there’s this foreboding idea that motion pictures are not only “capable of evil,” but having evil powers that are “greater because of their attractiveness and manner of exhibition.” A year before The Photoplay, McKenna seems to be predicting Hugo Münsterberg’s language of “psychical infection.”[ii] And, what’s more, he seems to propose that this danger of psychical infection means it is the court’s duty to deny cinema First Amendment protections. All of these would be considered questionable legal assumptions in 2017.
In my Intro to Mass Communications course, I pivoted from these Supreme Court ruling to the Hays Code, examining the ways in which it made good business sense for the film industry to self-censor its product rather than expose itself to the ire of a patchwork of state and local regulations … and how that lead to the MPAA still kicking around today, decades after full First Amendment protections for cinema have been recognized.
For the purposes of this post, though, that’s less important. (You can find the visual presentation for that lesson here, if you’re curious as to how things played out. It all leads up to a clip from Ernst Lubitsch’s Trouble in Paradise, because I’ll use anything as an excuse to expose students to the world’s only perfect film.) Instead, I want to trace a little bit more of the history of First Amendment cases post-Mutual, as a way of leading into the next major focus of this post.
It took a half a century for the precedent set by the Mutual decision to gradually fall apart, and finally be completely abandoned. Winters v. People of State of New York, a 1948 case concerning the distribution of lurid true-crime magazines, saw Justice Stanley Forman Reed chipping away considerably at the wall McKinnon attempted to erect between the legitimate (and legitimately protected) press and the trashy spectacle of mass culture:
We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.[iii]
Cinema, meanwhile had a downright wild ride on the way to recognized First Amendment protections. The Court’s 1952 decision in Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, et al. (343 U.S. 495) is usually heralded as the victory redeemed the Court from the dark ages of the Mutual decision and set into motion the pattern of eventual expansion of First Amendment rights to contested new media within the U.S. And while it is true that the Burstyn decision holds a central place within the history of media censorship law within the U.S., the actual history is a bit more complicated (as histories usually are). One oft-unsung case in this history is the 1948 United States v. Paramount Pictures, Inc. et al. This case, of course, is well known by historians of American cinema for its role in ending the vertical integration of the Hollywood studio system. What’s less known is that it served as sort of a trial run for the eventual abandoning of the Mutual precedent. Justice William O. Douglas, in delivering the opinion of the court, offers one of the most unequivocal renunciations of the ruling of Mutual imaginable, writing plainly that “We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.”[iv] However, as an antitrust case, the Paramount decision didn’t adequately establish a new precedent overruling the Mutual decision … hence, the necessity of the Burstyn decision. There, Justice Tom C. Clark takes direct aim at the “business, pure and simple” logic of the Mutual decision:
It is urged that motion pictures do not fall within the First Amendment’s aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures.[v]
But it wasn’t over yet! The process was really, truly messy. There’s no point into going into too much detail here, but both Kinglsey International Pictures Corp. v. Regents of the University of the State of New York (360 U.S. 684) and Times Film Corp v. City of Chicago et al (365 U.S. 43) saw the court treading water, waffling on some key issues. It wasn’t until the one-two punch of 1964’s Jacobellis v. Ohio (378 U.S. 184), which found that “obscenity” must be defined as a national standard rather than a system of competing local standards, and 1965’s Freedman v. Maryland ruling (380 U.S. 51), which shifted the burden of proof on obscenity cases from the exhibitors and distributors to the censors themselves, that film censorship finally just became too legally inefficient to effectively continue.
Whew. Alright, now: on to our next topic.
Part Two: Heading down to Brown Town
In my “Frames, Claims, and Videogames” course, I did a quick run-down on Mutual, Winters, and the history of non-journalistic mass media gradually getting First Amendment protections extended to them. Then, I moved on to Brown, Governor of California, et al. v. Entertainment Merchants Association et al. No. 08-1448. (2011), the case that officially extended this rights to videogames. Before class, I had students read both the oral argument transcripts for the case, and its eventual decision.
The Brown case is meaty … in a very literal way. At one point, Samuel Alito and Antonin Scalia have the following spirited exchange about chopping people up in a meat grinder:
Justice Alito: But we have here a new—a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified. It is totally different from—it’s one thing to read a description of—as one of—one of these video games is promoted as saying, “What’s black and white and red all over? Perhaps the answer could include disposing your enemies in a meat grinder.” Now, reading that is one thing. Seeing it graphically portrayed—
Justice Scalia: And doing it.
Justice Alito: —and doing it is still a third thing. So this presents a question that could not have been specifically contemplated at the time when the First Amendment was adopted.”
Beyond the blood and guts here, we have a classic argument as to the potential pernicious effects of a new medium. Much like Münsterberg’s worries of “psychical injection,” or McKenna’s warning of the way cinema’s “attractiveness” enhances its capability for evil, there’s the idea here that old media are staid and safe, but this new medium on the block has some unique, medium-specific dangers to it—and therefore might fall out of the purview of the First Amendment. Even the film industry itself tipped its hat to this rhetoric in the opening framing of the Motion Picture Production Code of 1930: “The mobility, popularity, accessibility, emotional appeal, vividness, straight-forward presentation of fact in the films makes for intimate contact on a larger audience and greater emotional appeal,” the Code announces, “Hence the larger moral responsibilities [viz., need self-censorship] of the motion pictures.”
But arguments like these are almost inevitably outgrown, and videogames proved to be no exception. Justice Scalia himself comes across as a seasoned media theorist, skeptically interrogating the concept of “interactivity” and challenging uniqueness claims for videogames as a medium, in his authoring of the Court’s eventual opinion:
California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. … As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
We could perhaps say that the process by which a given medium gets First Amendment protections extended to it in the US is one in which the gradual realization dawns that there’s nothing all that new in new media.
For course discussion I started with a quick five-minute free-writing exercise, asking students to answer two questions: 1) How would you define the concept of “free speech”? and 2) What is “expression”? What should count as “expression,” and what shouldn’t?
After students shared some of their responses to these questions, and I gave a quick historical overview lecture, I broke students into groups to discuss, and then present on, four very big questions:
- Why is free expression important in a democratic society?
- Do you agree with the bounds placed upon expression by the US court system? (I encouraged students to go either way here: they could argue broader bounds, and against current restrictions based on the grounds of concepts such as obscenity or prior restraint, or they could argue for narrower grounds, perhaps by excluding certain media from the realm of “expression” … such as videogames.)
- How would you you define the relationship between our concept of free expression and our concept of art? (I wanted this question to link our current class’ discussion on the legal status of games as expression with the previous class session’s focus on the questions of whether videogames are an art form.)
- Does it make sense to have different rules of expression based around different media?
After a robust discussion, I turned to the exceptions to free speech that the US court system currently recognizes. In my Intro to Mass Communications course, prior restraint was a big issue here, connecting as it did with current issues in journalistic ethics. For this particular class, I went after obscenity. What the heck is it? Should my students, as artists, be skeptical of the category, given how it has historically been used to censor artists? And, of course, the big question: why, in the US, is our concept of “obscenity” so tightly linked with human sexuality? (Given the strongly international makeup of my class, I was hoping that this query would prompt some robust conversation.)
This comes out quite explicitly in the Brown ruling, where Scalia writes:
As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” Miller, supra, at 24.
As a way of stimulating conversation here, I took about 15 minutes out of the seminar to have students play three games about sex by Robert Yang: Hurty Me Plenty (2014), Rinse & Repeat (2015), and Cobra Club (2015). Nominally, this was done to continue our discussion on obscenity, but once these games were in front of the class, it became hard not to segue into a more focused discussion on the possibilities of games as a tool for education about consent, as well as the relationship between sexuality and humor (and whether they can ever happily co-exist within a game).
[i]. SCOTUS Opinion: Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915). Pp 244–245.
[ii]. Münsterberg, Hugo. The Photoplay: A Psychological Study, and Other Writings. Edited by Allan Langdale. New York: Routledge, 2002. Pg 154.
[iii]. SCOTUS Opinion: Winters v. People of State of New York, 333 U. S. 507, 510 (1948)
[iv]. SCOTUS Opinion: United States v. Paramount Pictures, Inc. et al, 334 U.S. 131 (1948). Pg 166.
[v]. SCOTUS Opinion: Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, et al., 343 U.S. 495 (1952). Pp 501-502.