Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Aaron Reese: Welcome to this episode of ‘So to Speak.’
I’m Aaron Reese, Video Editor and Production Manager at FIRE, and the editor of ‘So to Speak.’ In today’s episode, we’re going to look at Hollywood’s early Motion Picture Production Code, commonly referred to today as the Hays Code, named after Will H. Hays, the first chairman of the MPPDA, the Motion Picture Producers and Distributors of America.
The Hays Code was a set of rules that guided the content, including images, story, and dialogue, of Hollywood films from the early 1930s to late 1960s.
The Hays Code was self-imposed, meaning the movie industry policed itself, rather than allow government censorship. However, the code was staunchly enforced. Movies could not be shown in theaters in America without a code seal of approval.
Importantly for this podcast, the enforcement of the Hays Code tracks the culture of censorship in the early to mid-part of the past century and how different groups pushed the boundaries, called for censorship, and fought for control over a new medium of art.
The changes that were inflicted on films during the time of the Hays Code were in all stages of movie production. Scripts were altered. Actors and filmmakers were forced to redo entire scenes. Editors were asked to cut dialogue and shots from films. Music was changed. Ultimately, directors had to be cognizant of the censors at all times; while looking at potential scripts, pitching movies to producers, production, post-production and distributing film reels to movie theaters.
To understand how the Hays Code first came into existence, it is important to revisit the early days of cinema.
Motion pictures using film were first created in the late 1800’s, and they were widely received.
Bob Corn-Revere: Obviously, it created great excitement and great controversy because for the first time, people could see moving pictures, even going back to the nickelodeons. One of the very popular first features was “The Kiss.” And it just showed a man with whiskers leaning over and kissing a young woman.
Aaron: That’s First Amendment lawyer Bob Corn-Revere. His forthcoming book is “The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma” He’s a frequent guest on this show and the person to talk to when you have questions about the history of censorship in America.
Bob Corn-Revere: [P]eople would line up and drop their nickel and watch this display. And that very naturally led to people who were vice crusaders claiming that this was corrupting and something had to be done about it.
Aaron: The popularity of films grew exponentially, and by the turn of the century, cinema was drawing audiences from around the world.
Like any new artform, though, it attracted not only those looking to create, but also censors and those concerned with the images and messages disseminated on the screen.
Bob Corn-Revere: Now, keep in mind, this was at a time before the Supreme Court had created any First Amendment doctrine because it didn’t start addressing the First Amendment directly until around the time of the first World War and shortly thereafter. And it wasn’t until 1931 that the Supreme Court actually upheld any First Amendment claim.
Laura Wittern-Keller: You know, to our minds, today, we would say, how can you have governmental censorship? It can’t possibly be constitutional.
Aaron: That’s Laura Wittern-Keller. She’s a history professor at the University at Albany and author of the books “Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981” and “The Miracle Case: Film Censorship and the Supreme Court.”
Laura Wittern-Keller: [T]he the First Amendment jurisprudence in 1900 was very different from what it is today. So something like movies and new technology like that, certainly not considered to be protected speech the way it is today. And, you know, around 1900, you know, we forget also we think it’s the good old days. 1990 was a period of tremendously rapid social change. I mean it was tremendously rapid social dislocation for people in the United States. I mean, unbelievably rapid urbanization, industrialization, huge waves of immigration coming into the country. It’s a period of tremendous flux. And it’s the height of the progressive era, the progressives, the people who said, you know, we’ve got all these societal problems now because of this great flux. Shouldn’t government have a role in doing something to fix that? And 1900 when movies come in, movies seem really, really threatening because they’re invading what had always been part of the private sphere. So things that your mother or your father or your priest or your educator would say, you could see or you couldn’t see, all of a sudden now you can see anything you want to if you’ve got that nickel. You can go out there and see anything. So movies start to seem really, really threatening. Who’s making these movies? And then there’s a religious component here, because most of the moviemakers were Jewish. And most of the people who are worried about movies at this time, because they’re not controlled, are Protestants. So wherever reformers, mostly Protestants at this time, who didn’t like these movies uncontrolled, whenever they could point to a vulnerable viewer, they would be very likely to get a really receptive audience from legislators. And the vulnerable viewer was always going to be children.
Aaron: Remember, early cinema was silent, so these censors weren’t concerned with dialogue. Rather, imagery, story, and messaging. Beginning in 1907, states and cities across the country authorized censorship boards to edit films before they were shown to the public.
Laura Wittern-Keller: It all started out in Chicago. 1907 is the very first censorship ordinance in the United States, and that was challenged by a filmmaker. And only two years later, in 1909, it was upheld by a Chicago court. So when Chicago instituted this movie censorship panel, and then it was upheld immediately by a court, other cities said, “Whoa, maybe we should be doing this. It’s legal. You know, it’s constitutional. Maybe we should do it as well.”
Aaron: As Laura Wittern-Keller writes in her book “Freedom of the Screen,” “Between 1907 and 1926, seven states and more than 100 cities authorized censors to suppress all images and messages considered inappropriate for American audiences.”
During this time, movies were edited differently depending on the state or city that they were shown in. And these censorship boards were ruthless in what they edited.
Laura Wittern-Keller: They were basically upholding laws that were so vague, and they weren’t finding the vagueness of a law to be a problem. That was fine. The censorship statutes almost all had the same language. This is what they would say that the censors could ban. And these are the words they use. Anything that was obscene, indecent, immoral, inhuman, sacrilegious or would incite to crime. Now, in none of the statutes or the ordinances where these words defined. So it’s completely up to the censor in Memphis or the censor in New York City to decide what those words meant. So what you have then is this crazy quilt of censorship statutes all across the country, and a filmmaker never knew what was going to be banned in one place or accepted in another.
And really, the most important thing about these governmental censorship statutes, this is something that a lot of people don’t realize, is that it was prior restraint, meaning you couldn’t show your movie and then have somebody object to it. You couldn’t show it in the first place if they objected to it. You had to get a censor seal of approval before you could ever show it in a theater.
Aaron: To combat governmental movie censorship, lawsuits were brought against the states, and in 1915, an important decision known as Mutual Film Corporation v. Industrial Commission of Ohio came before the Supreme Court.
Mutual Film Corporation was challenging a film censorship board in the state of Ohio, which had been formed 2 years earlier in 1913. Mutual Film Corporation claimed that the board was interfering with interstate commerce, that the government had illegally delegated legislative authority to a censor board, and that it was a violation of their freedom of speech.
Bob Corn-Revere: The law was undeveloped and the argument was made and accepted by the Supreme Court that cinema isn’t a member of the press or it isn’t speech at all . It’s merely a business, pure and simple. And by the way, the court wrote, we think it’s pretty dangerous.
Laura Wittern-Keller: Mutual Film was the Supreme Court’s seal of approval. “You’re a business. You’re not journalists, you’re not not creating art. You’re just creating something that you just want to profit out of and therefore you can be regulated.”
And that Supreme Court case lasted as good law until 1952.
Aaron: So, movie studios are facing government censorship and are accused of corrupting society. And to add to the notion that Hollywood was lowering American values, the movie industry dealt with several PR scandals in the early 1920s. Silent film actor and comedian “Fatty” Arbuckle was tried for raping the actress Virginia Rappe, and the trials dominated the headlines in 1921 and 1922. Also in 1922, filmmaker and actor William Desmond Taylor was murdered. Religious groups also called for censorship of films.
Bob Corn-Revere: Naturally, if there were scandals that also got a lot of prominent play and one of the side effects of that was the film studios started looking for ways to protect themselves against the backlash when there was bad press like this. One of the things they started doing before ultimately adopting the production code was adopting morals clauses in the contracts of stars as a way to try and tamp down the controversy or at least to insulate themselves from it.
Aaron: As author John Billheimer writes in his book ‘Hitchcock and the Censors,’ quote “Fearing that they might eventually have to march to the tune of forty-eight different state drummers, and possibly follow a conductor at the federal level, the studio heads countered the move to state censorship boards early in 1922 by forming the Motion Picture Producers and Distributors of America.” End quote. The MPPDA
Today, the MPPDA is known simply as the Motion Picture Association or MPA. When it was formed, it represented the major film studios of the United States, and it’s goal was to ensure the viability of the American film industry and establish guidelines for film content.
Essentially, the movie industry needed to rehabilitate their image, and this was their solution.
To lead the MPPDA, the studio heads selected Will Hays, who had successfully led Warren G. Harding’s presidential campaign.
Will Hays: No story ever written for the screen is as dramatic as the story of the screen itself. Tonight we write another chapter in that story. Far, indeed, have we advanced from that few seconds of shadow of a serpentine dancer 30 years ago when the motion picture was born.
Bob Corn-Revere: When Will Heads became the head of the MPPDA, His first job was to prevent these states from following along with the others in adopting their own form of regulation. So that was really job one.
Aaron: The studio heads, a majority of them Jewish, saw Hays as an ideal fit, as he was quote “folksy and Protestant, a Republican from Indiana, who could speak the language of the American heartland.”
Remember, the 1915 Supreme Court decision Mutual Film Corporation gave local censors the power to edit and alter films with large discretion. Hays’s job was to ensure that films could be shown as they were intended by the studios and improve Hollywood’s image to the public.
One of his early decisions at the job was to create a list of 117 actors that he deemed unfit for movie roles for reasons of illicit sex, drug use, and licentious behavior. The list was referred to as “The Doom Book,” and Hays hoped to improve the movie industry’s image by avoiding future scandals. He also set up a Public Relations Committee to review plays and novels considered for screen adaptation and the committee’s job was to advise studios on film contents that might offend local censorship boards.
In addition to these measures, he created a list of 13 points, which later grew to 36 “Dos,” “Don’ts,” and “Be Carefuls.” The list included profanity, nudity, drugs, sex perversion, robbery, brutality, murder, lustful kissing, and numerous other items that films should avoid.
Bob Corn-Revere: The “don’ts” were pretty obvious. No profanity, no nudity. Never show the clergy as the villain. Respect authority, things like that. Be careful included things like “respect the flag” and “careful with how you portray,” things like that. Yeah. It was just sort of a list of suggestions more than actual enforceable guidelines. And so as a result, you know, things didn’t change all that much.
The tremendous crowds which you see gathered outside the stock exchange are due to the greatest crash in the history of the New York Stock Exchange and market prices.
Aaron: The stock market crash in 1929 wiped out billions of dollars and affected every sector of society.
As the Great Depression began to take hold, conservative publisher and film magazine journalist Martin Quigley took it upon himself to help clean up the movie industry. He recruited Jesuit priest Father Daniel A. Lord to help write a code to list what would be appropriate and inappropriate for movies.
Bob Corn-Revere: And so as we enter the thirties, there is a great deal of pressure for some form of heightened regulation of the Hollywood studios.
Aaron: In 1930, the two men presented their lengthy code to Will Hays who saw the list as a godsend. The list was 4,000 words long, and among the chief goals, quote, “No picture should lower the moral standards of those who see it.” End quote.
At the behest of Hays, The Motion Picture Producers and Distributors of America signed onto the new code provisions in 1930.
However, from 1930 to 1934, the new list still didn’t carry much weight.
Laura Wittern-Keller: In that pre-code Hollywood era, as it’s called, between 1930 and 1934 films were really scandalous. I mean, really salacious. Lots of crime. Lots of violence. It was really heavy-duty stuff.
Aaron: When it was first implemented, the Motion Picture Production Code, or Hays Code, was largely ignored. Whenever the Studio Relations Committee refused to approve a film, which only happened 10 times in 3 and a half years, the studios could simply appeal. It then went to a jury pool consisting of 3 producers from 3 different studios. And forming a small pact, the 3 producers could all work together and approve the film on appeal because they expected the same treatment when one of their own films was rejected by the committee.
Laura Wittern-Keller: The movie industry is then faced with two to threats in 1934. The first is the rise of the National Legion of Decency, an enormously influential organization of lay Catholics who were about to boycott all Hollywood movies unless Hollywood lived up to the code. And then there is the New Deal’s code, the National Industrial Relations Code. And there was a threat that the NIRA code would also cause the Hollywood movie studios to adhere to the original production code.
Aaron: So in 1934 the Motion Picture Producers and Distributors of America (the MPPDA) created the Production Code Administration, the PCA, and its job was to enforce the Motion Picture Production Code. While studios suffered financial setback, and under pressure to keep his job, Will Hays appointed Joseph I. Breen to lead the PCA.
Joe Breen was considered just the man to clean up Hollywood movies. Breen was Irish Catholic and had a background in journalism and public relations.
Laura Wittern-Keller: He was the person who was brought in to put teeth into the production codes. He was very sociable, very likable. He was what we would call today, a Type A kind of personality. But he wanted that code enforced and he was going to do that.
Breen never thought of himself as a censor. He always thought of himself as someone who was helping to make movies better. And he always believed that. And in many ways, I think he did make movies better. He forced movie studios to be more creative. He forced them to rely less on sex and drama and drug use and all of that stuff and rely more on greater creativity. And there’s a huge difference between the movies in 1933 before Breen comes in, in 1934 when he comes in. So he makes a difference almost immediately.
Bob Corn-Revere: [B]y 1934, the studios adopted and enforced very strongly the production code. And within six months of the code being adopted, Breen had final cut authority for every film that came out of Hollywood.
Aaron: John Billheimer wrote the book ‘Hitchcock and the Censors’ in 2019, which tracks numerous changes that Alfred Hitchcock made to films during the period of the Hays Code. ‘Hitchcock and the Censors’ was the inspiration for making this episode. I reached out to John Billheimer for an interview and he agreed to talk with me. Before we talked about Hitchcock’s films though, I asked Billheimer about Joseph I. Breen and how Breen ran the Production Code Administration.
John Billheimer: Well, we ran it like a tyrant. Breen was a feisty Irish Catholic. He was also, his private letters, showed him to be virulently anti-Semitic.
Breen was already Will Hays’s personal assistant. So he’d been around and he’d been lobbying for this position. And he became the head of the motion picture production code, which meant that suddenly the code had teeth in that they reviewed all the scripts and then they reviewed the final print of the movie. And if the producers and directors hadn’t obeyed the dictates of the code, then they wouldn’t get a seal and couldn’t show the film in the U.S.
Aaron: I also asked him about what sort of things the production code administration worried about when they reviewed films.
John Billheimer: Things they worried about were everything from individual words to plot elements. You couldn’t deal with homosexuality. You couldn’t deal with adultery, you couldn’t deal with alcoholism. Just a lot of taboo elements. And their changes ranged from the mundane to the mind boggling.
Biggest problem they had, they inflicted on producers was the dictate that evil-doers must be punished. And that really changed a lot of movies. It made hash of a lot of plots. And it was Breen. And he had seven men that worked for him that were actual censors.
Aaron: Alfred Hitchcock is possibly the most famous movie director of all time. He’d established himself in England directing thrillers, and he was already dealing with film censorship there. But he moved to the US in 1939 after signing an agreement with film producer David O. Selznick.
John Billheimer: When he first started working in America, he just went along with what the censors suggested. The first first movie that he made in America was “Rebecca.”
And I don’t know how familiar you are with the story, but it was based on a bestseller by Daphne du Maurier. And David O. Selznick, Hitchcock’s boss at the time, paid 50 grand for the rights to the book, which is as much as he paid for “Gone with the Wind.” And all of the sudden the production code said, “You really can’t film this, because the heart of the story is a man who gets away with murdering his wife.” His first wife, Rebecca, is never really seen in the movie, but her death is a force, and she’s a specter over the hero, Maxim de Winter, she’s a specter over his new wife, who is haunted by the image of Rebecca.
And it turns out, you find out that Maxim de Winter killed Rebecca. And in the book, he’s gotten away with it. And the production co couldn’t allow that.
So they met with Hitchcock, and Hitchcock was actually the person who suggested this. He said, “Well, maybe Rebecca dies by accident.” And then, but of course, the Maxim de Winter, the husband, does everything that he did when he killed her. So the plot doesn’t make any sense, but that’s the only way they got the movie made. Selznick was irate. He said, “You know, we bought Rebecca, we wanted to make Rebecca. It’s the story of a man who kills his wife, and suddenly the man, the story of the man who buries a wife who died accidentally. It’s silly.”
Hitchcock was good enough to just take the viewer past that little stumbling block. So you never really questioned it. And the film was good enough to win an Academy Award.
Aaron: As Billheimer writes, Hitchcock had a method for dealing with the censors.
John Billheimer: Now, as Hitchcock’s career progressed and he developed a fan base, a history of successes, and became essentially his own boss, he started dealing with the production code in the way, as you just suggested, that is, he was on to them. He would insert elements that he knew they would take out so he could do some horse trading and say, “Well, you’re going to take this out. You’re going to give me this then.” And that’s the way he proceeded to work with them further on in his career. In “Rear Window,” for example. It’s the story of the voyeur, essentially. James Stewart is a wheelchair-bound photographer who, uss watching neighbors across the courtyard in Greenwich Village.
One of the neighbors is a voluptuous young lady who is a dancer. And so she does a lot of her practicing within James Stewart view. And so Hitchcock filmed her practices in three different ways. First, he filmed her topless from behind. Then he filmed her in a black negligee and he filmed in a white negligee. And he showed the censors the topless from behind view, which they said, “No, you can’t do that.”
So he apologized profusely and said he would film it. Actually just showed them what he had already filmed and said, “Well, you know, I’ve taken this out, so you’ve got to be a little more lenient with the love scenes between James Stewart and Grace Kelly. And that’s the sort of thing he did. And he even became a little clever in using the censors against themselves. The idea of their reviewing the script was they could flag something so that you didn’t waste time filming it because it wouldn’t be approved. Well, Hitchcock, he would deliberately leave in things that they asked him to take out of the script. And so when it came to bargaining with the final film, he would say, “Well, I’ll take out this piece of dialog, but then you’ve got to give me this scene that I want.” But he knew what they would object to. And there are many things that he didn’t mind at all taking out. Dialog. Logic. He said logic was deadly. He didn’t care that the plot didn’t make sense. He could get viewers past that. He had individual scenes that he wanted to show. And so he would bargain away dialog, bargaining away plot points just so he could keep the scenes that he wanted.
Aaron: Another example that Billheimer covers in his book is the music score in the 1955 film, ‘To Catch a Thief.”
John Billheimer: Breen was on his last legs when “To Catch a Thief” came before the production code.
Aaron: A reminder, Joseph I. Breen was the head of the Production Code Administration.
John Billheimer: And so Breen was part of the review of the script and they had all sorts of problems with the script. Mostly they were worried about the relationship between Cary Grant and Grace Kelly, the two leads. But they were worried about too much butt-pitching on the French Riviera. There were scenes where bikinis were too revealing. There was a scene in a casino where Cary Grant drops a chip down the bodice of a female gambler just to get attention in a way that he needed to get attention. And there was a set scene where French gendarmes were watching Grant. And while they were waiting outside his hotel, they were looking at naughty French postcards. So that was kind of a joke that Hitchcock had inserted. There were all these scenes that Breen had cited and his buddies had cited in the script and asked to be taken out. So as with Hitchcock’s way, by that time, he just left these things in. And suddenly, you know, the censors had this whole list of things that had been filmed that they wanted to take out. The thing that Hitchcock really wanted to keep in was the love scene between Cary Grant and Grace Kelly. So he bargained away this gag with the French gendarmes looking at naughty French postcards, said, “Well, I’ll take that out, but then you’ve got to give me the love scene.” And that wasn’t enough for the censors. But here I think fate intervened because Breen resigned. He had lung cancer. He was pensioned off. And he was replaced by a man named Geoffrey Shurlock, who was more lenient than Breen and who favored a lot of directors. He appreciated Hitchcock, so he was willing to deal with Hitchcock. So when it came to the final bargaining, Shurlock still said it wasn’t enough that he took out the gendarmes. There was a line of dialog where Grace Kelly says to Cary Grant, “Have you ever had a better offer in your life, one with everything, diamonds, excitement, and me?” And they chopped the “diamonds, excitement, and me” from the dialog. And that still wasn’t enough. So Hitchcock really loved this scene. It was backed with a sexy tenor sax. And he went to the music director and said, “Well, look, why don’t you back up with something more traditional like strings? It’ll make it romantic.” And so he went to Shurlock and showed him the new scene. And his sales point was, “Look, I understand it was pretty sexy with that tenor sax back there. But here, this is romantic. Now we’ve got the strings behind it.” And Shurlock actually passed it with the provision that they don’t go far enough on the couch where the seduction is taking place, they don’t relax far enough to be horizontal.
Aaron: I had to ask Billheimer about the idea of “lustful kissing,” which Hitchcock took to mean a kiss that lasted longer than 3 seconds.
John Billheimer: The funny thing is there was really no three second rule. The censors denied that they ever put a stopwatch on kisses. But directors thought they were doing it. And so effectively, that’s the way they determined whether a kiss was excessively lustful.
Aaron: How was Hitchcock able to work within the censors to get a movie like “Psycho” produced that’s just been incredible for all of us to enjoy?
John Billheimer: Well, a lot of it was just what he did with “Notorious.” He used the censors’ own rules against them. Hitchcock filmed it in black and white because he didn’t want to show blood, really gruesome red blood. And the shower scene was voted at some point, the most memorable movie scene in history. And you know, he composed that of, I think, 78 separate images that he collapses into 45 seconds that are really harrowing. But he was careful with each of the images. So you never really saw what would count as nudity. And you never saw the knife on Janet Leigh’s flesh. So he could take that to the censors and say, “Look, you know, there’s no nudity here.” And there were five, it wasn’t Breen by that time. It was Shurlock. Five of Shurlock’s men looking at this scene. And he said, “you know, there’s no nudity here.” And there was actually, there was an overhead. The final shot was an overhead shot that showed Janet Lee’s bare buttocks. So he agreed to take that out. But what was left was this harrowing scene. And they had these five sensors. And when he showed it to them, three of them said, “Well, I saw nudity.” And two of them said, “No, we didn’t. There’s no nudity. You’re right.” And so Hitchcock took it back and he said, “Well, OK, I understand. I’ll fix it.” He didn’t do anything to it. He just sat back to them. This time, the three that had seen nudity didn’t see it, but the two that hadn’t seen nudity did see it. And so he bargained away. I mean, he just bargained with them.
The other scene they objected to was a seduction scene between Janet Leigh and John Gavin. It starts the movie.
And he did a little soft shoe and got to keep the shower scene.
Aaron: These are all examples of just one Hollywood director, but The Production Code Administration had influence on nearly every film that was created in the US. Here’s Laura Wittern-Keller.
Laura Wittern-Keller: Breen was a fascinating person, and I just want to point out that if anyone is interested in learning more about Breen, I have to point you to Thom Doherty’s 2007 book called “Hollywood’s Censor.” It’s a fabulous book. And what Doherty says about Breen, and I think he’s absolutely right on this, is that Breen, in the 20 years that he was the production code administrator, actually had more influence on what people saw on American movie screens than any studio mogul or any producer or any director. That’s how important he was.
Aaron: The Hays Code was implemented with the intention to clean up Hollywood’s image. Some of the code rules though, had dire consequences for minorities. The code banned miscegenation, relationships between people of different ethnicities, so people who weren’t white were passed up for roles as spouses. In the 1940s and 50s, though, several Supreme Court cases caused the Hays Code to lose its influence.
Laura Wittern-Keller: The reason the code worked so well is because the movie studios owned the production facilities, but they also owned the movie theaters. So they would say to somebody, “If you don’t have a code, you can’t play in the movie theater.” And because they owned so many theaters, that was an enormous, you know, you couldn’t make money if your movie didn’t play in movie theaters. You couldn’t make money. And they owned the movie theater so they could keep you out. So that was the reason that it had such good clout. But in 1948, the federal government sued and brought an antitrust suit against the movies and won. And so over the course of 1948 to about 1958, the movie studios had to divest themselves of many of those theaters to comply with the antitrust decision. So that took away a lot of the teeth of the production code.
Aaron: The 2nd important decision (Burstyn v. Wilson), came in 1952, a case that would come to be known as the ‘Miracle Case.’
Laura Witten-Keller: That case was the case that overrode that 1915 Mutual case we talked about earlier and said that was no longer constitutional. That was the case that said that movies were, indeed, methods of expression and did indeed enjoy the protection of the First Amendment. So it brought movies under the protection of the First Amendment. So you might say, “Well, OK, case closed, everything’s done in 1952. Censors can’t censor anymore.” No. Because the case was very vague. I should say the opinion in the case was very vague. It was very unclear. It did not say movies are under the First Amendment and therefore, censorship is unconstitutional. They didn’t go that far. They said, “Yeah, well, you know, if a narrowly drawn statute that censors movies for obscenity is still constitutional.” And so what we wound up with was this era of tremendous uncertainty. Nobody really knew. OK, are they protected under the First Amendment? Are they not? And this went back and forth. All kinds of cases came to the Supreme Court, all kinds of people coming out of the woodwork trying to get their case to the Supreme Court. It’s seven cases in the space of seven years after 1952. Not one of them specifically said motion picture censorship is unconstitutional. They kept whittling away at the statutes. They’d take away this word and they’d take away that word. In fact, the Supreme Court never declared movie censorship unconstitutional. Even the last big case that came, which was 1965, even that one did not say that states had to stop censoring. So, as far as the Supreme Court, as far as that jurisprudence is concerned, movie censorship was never declared unconstitutional. But what happened was because of that 1952 case, some of the lower courts in the states started declaring their state censorship or their city censorship unconstitutional. So Ohio was the first to go in 1955. Massachusetts had some jury-rigged thing, and that went in 1955. Pennsylvania went in 1956. So after 1956, you’ve only got New York, Virginia, Maryland and Kansas left. And in those states, those state court decisions were weakening their statutes. So by 1959, the only thing that’s really left for governmental censorship is outright obscenity. But what is obscene? Again, no real definition of what that means. So at this point, some of the movie producers start saying, “OK, the legal culture is changing and shifting. We can see this in these court decisions. Maybe we should start bucking the code ourselves.” And so we get people like Howard Hughes, Otto Preminger, Alfred Hitchcock will start saying, “I don’t need your code. I can get my movie into enough films now that you don’t own all the theaters anymore. And maybe I’ll just release my film without your code.” So starting in 1953, we get some movies that are released. And here’s the really important thing. Not only were they released without the code, they made money. They were profitable. They made good money and other producers started paying attention now, at this point and saying, “Well, why can’t I do this?” And so we get more and more movies being released without the production code seal of approval. And that’s when, this is becoming a house of cards, and it starts sinking in the mid 1950s.
Breen retires in 1954, and Hollywood was actually quite happy to see him go.
Bob Corn-Revere: What really changed was that you had a new head of what had become the MPAA, the Motion Picture Association of America, Jack Valenti, who was very anti-censorship, argued very vociferously to eliminate the production code and instead have the rating system.
Aaron: Jack Valenti became president of the MPAA in 1966. The Hays Code was gotten rid of under his leadership. In 1968, Valenti developed the MPAA film rating system. At first, films were given a rating of G, M, R or X. Today, those ratings are G, PG, PG13, R, and NC-17.
The ratings allow directors and producers to create the films they want and audiences can choose what they want to see.
I asked all three of my guests how we should think about the Hays Code today. I started with John Billheimer.
John Billheimer: It’s really hard to say that any of this affected Hitchcock’s films because, even when the plot was a shambles, he managed to take the viewers past it. The thing you really don’t know is what films weren’t made, because Hitchcock really adapted what he would do to his knowledge of the production code. So there were films during that period that just weren’t made. “Foreign Correspondent.” Hitchcock made this great spy thriller. But the original property was a memoir by a journalist named Vincent Sheean. It was called, I think, “Personal History.” There was a real warning in the mid-thirties about the rise of Naziism. And the the filmmakers struggled with that for a long time and ultimately decided they can’t make this film because it’ll offend the Nazi government. It’ll offend the German government. You know, so here’s a film that wasn’t made. I mean, it was made by Hitchcock, but it was totally, you know, he had the property, but he didn’t use any of the background. Just the idea. The Spy. So there are films that didn’t get made. And that’s a real harm that censorship imposed.
Aaron: Here’s Laura Wittern-Keller’s take.
Laura Wittern-Keller: If you were asking me what was the legacy of governmental censorship, which is of course, what I study, I would say the legacy is, “Been there, done that. Doesn’t work.” and we’re not going to we’re not going to go down that path again. But asking about the Hays Code, that’s different. And I think the legacy is that industry-wide self-censorship can work as long as the administrators listen to public pressure and societal changes. And as long as they listen to the legal culture. But if an industry refuses to bend with societal changes, then it’s going to run into trouble.
Bob Corn-Revere: What we do know, looking back, is that there are certain artists whose careers were adversely affected by this. I’m thinking Mae West, for example.
The classic sex siren from the thirties, who in movies like “Diamond Lil” and “She Done Him Wrong,” became renowned for the use of double entendre and sexual innuendo. And because of that, when the code came into effect, she was effectively banned from Hollywood. She was the highest paid woman in America in 1935, but by the time, the end of the thirties, after the code had really taken hold, she wasn’t making movies anymore. The same thing happened for radio. When she appeared on radio, and the FCC chairman at the time complained to NBC because of a racy sketch she did with Charlie McCarthy and Edgar Bergen, the ventriloquist and his puppet, she ultimately was banned from radio or didn’t appear on radio for another 14 years after that. So we do know that these kinds of codes enforced by industry at the threat of government action if they don’t do it, certainly curtailed the careers of people that audiences love.