New Media at the Turn of the Century

Thank you, Frank, for the very kind introduction, and Gaia, for inviting me to participate in this symposium. In an earlier article, I discussed how the encounter of the Church, medieval scribes and Venetian printers with the Gutenberg press had provided interesting insights into our current response to the "digital dilemma" created by the Internet and new media technologies. In this week's entries, I will use a similar approach and offer my thoughts on what a general theory of law and technology would, or should, look like.

My first entry focuses on a new media technology at the turn of the century--the turn of the last century, that is. Motion picture. When the motion picture first emerged, it was the "new, new thing." Except for a few technology enthusiasts, the public rarely saw motion pictures and had limited interest in this new technology. Indeed, when Chief Justice Edward Douglass White and his colleagues were asked to view the oft-banned film The Birth of a Nation, the Chief Justice responded: "Moving picture! It's absurd, Sir. I never saw one in my life and I haven't the slightest curiosity to see one."

By the turn of the twentieth century, however, motion pictures had received a lot of interest and attention. While movies were popular among low-income households, in particular immigrants and new urban migrants, they also became a major concern of social reformers, who considered them a "new kind of urban vice" and called for tougher regulation.

To protect public morality, many states and municipalities enacted censorship laws to regulate the operation and exhibition of motion pictures. In 1907, the Chicago City Council enacted the nation's first motion picture censorship law, which prohibited "immoral or obscene" pictures while requiring exhibitors of motion pictures to first obtain permits from the police department. The States of Pennsylvania, Ohio, Kansas and Maryland soon followed suit by establishing statewide censorship boards, while major cities, like Birmingham, Detroit, Kansas City, Los Angeles, Louisville, St. Louis, San Francisco, Trenton and Washington, introduced local legislation or censorship boards.

The first challenge to film censorship laws as an abridgement of freedom of the press came in the 1915 Supreme Court case of Mutual Film Corp. v. Industrial Commission. There, a motion picture distributor challenged the constitutionality of the Ohio censorship law, asserting that the statute violated the freedom of speech and press guarantees of the Ohio Constitution. (The distributor relied on the Ohio Constitution, because the Supreme Court, at that time, had yet to include freedom of speech and press among the fundamental rights and liberties protected by the Due Process Clause of the Fourteenth Amendment.)

Although the Mutual Film Court recognized that motion pictures might be used for worthy purposes, it underscored the technology's capacity for evil and potential to corrupt the public--children, in particular. Writing for a unanimous court, Justice McKenna distinguished motion pictures from other mediums of expression and found that the exhibition of motion pictures was "a business pure and simple, originated and conducted for profit." The Court therefore held that motion pictures were not part of the press and did not warrant protection under the Ohio Constitution.

The Mutual Film decision was initially well received by the legal community, but its desirability and rationale was soon attacked by commentators and in academic literature. The debate became even more intense when the Supreme Court of Tennessee upheld a ban by the Memphis censorship board on a movie showing a desegregation school class on the ground that "the south [did] not permit negroes in white school nor recognize social equality between the races even in children."

Meanwhile, the technological medium had evolved, partly as a result of the emergence of "talkies" in the late 1920s and partly in response to the industry's self-regulation efforts. By the late 1930s, motion pictures had become a dominant communication medium in American culture. During the Great Depression and the Second World War, movies provided Americans not only with a shared visual experience, but also with a "common bond of language" that helped unify the country.

Moreover, newer media technologies, like radio, television and the sound truck, had emerged since the 1915 decision. As more technologies were developed, motion pictures were no longer considered a "new, new threat" as the Mutual Film Court had found. The subject matter of motion pictures also gradually moved away from the early focus of sex and scandal to the later discussion of racial, social and political matters. As movie content became more serious, the medium was viewed with greater respectability and fostered a closer connection to civil liberties that usually justify First Amendment protection.

Against this background, the Supreme Court began to reconsider its earlier treatment of motion pictures. Shortly after the Second World War, the Court noted in dicta in an antitrust case that motion pictures, along with newspapers and radio, are part of the press as defined by the First Amendment. In another case a year later, three Supreme Court justices again aligned motion pictures with other mediums of communication.

In 1952, the Court finally overruled the unpopular Mutual Film decision in Joseph Burstyn, Inc. v. Wilson. There, a film distributor challenged a New York statute that had permitted Roberto Rossellini's The Miracle to be banned on the ground that the movie was "sacrilegious." This time, the distributor won. Unlike the Mutual Film Court, the Burstyn Court found that the exhibition of motion pictures was no longer "a business pure and simple." Rather, the medium fell squarely within the free speech and free press guarantees of the First and Fourteenth Amendments.

After 35 years, a Great Depression, and two World Wars, the Court finally extended free speech and free press protections to this once-new technology. So, what lessons can we learn from this historical account? Why did the Court treat the Internet differently from its earlier treatment of the motion picture (at least in Reno v. ACLU and other early Internet cases)? Could the comparison between the two contribute to our discussion of a general theory of law and technology? I have some ideas but don't know exactly where I will be going. Comments and feedback will certainly help me find my way forward.