Antieau, Chester James

Valenti, Jack

English

The Catholic University of America Columbus School of Law

Catholic University Law Review Volume 18 Issue 4 Article 8 1969 CENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROL OF A MASS MEDIUM. By Richard S. Randall. – AMERICAN LAW OF ZONING: ZONING, PLANNING, SUBDIVISION CONTROL, by Robert M. Anderson. Jack Valenti Chester James Antieau Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Jack Valenti & Chester J. Antieau, CENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROL OF A MASS MEDIUM. By Richard S. Randall. – AMERICAN LAW OF ZONING: ZONING, PLANNING, SUBDIVISION CONTROL, by Robert M. Anderson., 18 Cath. U. L. Rev. 565 (1969). Available at: https://scholarship.law.edu/lawreview/vol18/iss4/8 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. Book ReviewsCENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROLOF A MASS MEDIUM. By Richard S. Randall. Madison, Wisconsin:The University of Wisconsin Press, 1968. Pp. xvi, 280. Cloth: $7.95.Professor Richard S. Randall says more than the average layman would wish to knowbut no less than the expert should know in this comprehensive, scholarly, andthorough exploration into movies and censorship. The book should be welcomed byboth.The field he traverses is dotted with booby-traps. Few have managed to cross thehazardous and slippery ground without mishap. Professor Randall passes through theordeal with a few scratches and bruises but with no disfiguring wounds. That deservesa medal, although in bestowing it I retain doubts and disagreements, some of themserious, as I shall mention later.The perils confronting the author who seeks to dispel the clouds enveloping censor-ship are two-fold. First, censorship tends to stand still and look backward while every-thing around it is in change, often cataclysmic, and moving forward. What was con-sidered obscene and censorable before, in the telescoped time of the era, becomescomme il faut. We have come from the one-piece bathing suit to the bikini (whichsome consider over-dressing); from Ulysses to I Am Curious (Yellow), by edict ofcourts, 1 and this raises the question: are the courts ahead of or behind public opinionin the United States?Courts may or may not follow the election returns but, perhaps as well as any of ourdemocratic institutions, they are at least aware of the world outside the cloistered hallsof government. I have often thought that a young candidate for top honors in the lawcould do a valuable treatise on the "whirling theory of judicial practice." For example,the motion picture was walled off from the First Amendment in 1915 by the SupremeCourt in Mutual Film Corp. v. Industrial Commission,2 but the walls were brokendown and the film brought within guaranteed constitutional protection in censorshipcases decided three and four decades later by the same Court.3 I do not denounce thetheory; I doubt if our society could survive without orderly and permissive resiliencyin our democratic institutions.The second peril lies in the self-assumption on the part of most of us that we areexperts, than whom there are no others, on censorship, obscenity, pornography, sexand violence. Perhaps each of us is, but the dogmatism leads to chaotic, disruptive,and hostile disagreements of inordinate magnitude in American society. Conflictsgenerate pressure and the media, notably films and television today, often feel the heatthat arises outside the processes of the law and the legislative system.It is to Professor Randall's great credit that he faces up to these perils with vigorand candor and deals with them in some of the most perceptive parts of the book.1. See, e.g., United States v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196 (2d Cir. 1968).2. 236 U.S. 230 (1915).3. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Joseph Burstyn, Inc. v.Wilson, 343 U.S. 495 (1952); United States v. Paramount Pictures, Inc., 334 U.S. 131(1948).Catholic University Law ReviewProfessor Randall sets his discussion in a broad perspective, whether he is tracingthe judicial milestones which have diminished the censor's powers or telling of thesocial, religious, and political forces that have always beat against speech and expres-sion, and still do. He wonders whether these forces aren't so insistent today that "[iltis unlikely that any mass medium in the American mass democratic society today canbe completely, or even nearly, free of control except at a tremendous potential costto the political system itself." (p. 232) He argues that a denial of the values censor-ship defends could lead possibly to "a reaction of generalized intolerance," to "supportfor extremist politics . . . or to even a sense of alienation from the political systemitself." (p. 232)In the manner of members of courts, I dissent. If denial of freedom of expressioncould cause a social explosion over values "often of an emotionally elementalcharacter," (p. 232) which I doubt, I would contend that censorship rather thanfreedom is far more likely and certain to destroy democratic values, elemental orotherwise. I call upon all the experience of man's history to sustain me. Why has manfought so valiantly and at such great peril always upward to liberty?When Professor Randall goes on to say, at the book's end, that there is need torecognize that censorship is in large measure a social and political problem, and there-fore only partially curable through legal action, I happily concur. In the industry andoutside we need to keep this valid point uppermost in mind.Professor Randall's assumptions and conclusions on the relationship of governmentcensorship to freedom of speech and the effects of prior restraint as opposed to crimi-nal proceedings are, I believe, based on doubtful or erroneous premises. First, heclaims that motion pictures, although the only medium subject to prior restraint, enjoya greater freedom because of the absence of "powerful internal restraints" which adjust"the free speech ethic . . . to the level of popular acceptability." (pp. 228-29)This premise completely ignores the fact that the content of motion pictures is alsosubject to "popular acceptability" since, as a commercial enterprise, it cannot existwithout "popular acceptability."I take exception to Professor Randall's criticism of the Production Code (pp.198-214, 229). His conclusions differ substantially from my own close observationsof its operation during the last three years. The testimony of producers in Hollywoodwould support my observations. His conclusions would differ from the views of thepublic who have seen on the screen the clear evidence of the Code's positive andbeneficial influences.The second premise is that in some way government censorship represents the willof the majority. Certainly from his own able research, he must be aware that govern-ment censorship more often reflects the narrowest views of the community.Professor Randall directs several observations to the absence of "an establishedaudience stratification." (p. 229) It is precisely because we had it in mind that theindustry, on November 1, 1968, buttressed its Code with a film-rating system placingmotion pictures in four categories to indicate audience suitability. This was our wayof taking concrete steps to show our concern for children. It is a voluntary programsupported by all elements in the industry, from the studios to the local theaters. Itmarked a sharp break with the attitude maintained by the industry in the past.[Vol. XVIIIBook ReviewsI am happy that the industry is now in agreement with Professor Randall althoughhe did write that our opposition to such self-rating appeared "unshakable." He thoughtthat the development of "a reliable stratification for the medium that would afford amore finely drawn audience-content balance" would be a measure of major importancepossibly toward "an accommodation of opposing interests in the controversy over themovies." (p. 233)The rating system now in effect had clearly not been initiated when ProfessorRandall wrote his book. I hope that its operation will justify his arguments on behalfof such a system. We shall certainly do our best to carry it forward in a manner towarrant the favor and the support of the public, movie-goers and non-movie-goersalike.A new kind of film is being made today, in the United States and in all producingcountries. It is a film with a new frankness, a new honesty, a new realism. Puttingsemantics aside and using the word in its generic sense, there is, truly, a new candor infilms today. This was an inevitable evolvement, stemming from the fact that whatwas available, desirable and seemed rational a decade or two ago in this country is nolonger so. In consequence the industry came to understand and realize that a newapproach to the public was needed; especially to let parents know, for the sake ofchildren, what was in a film. Thus was born the rating system.Often I am asked by lawyers outside the industry, by law students, by thesis-writingundergraduates and graduates for sources on films and censorship. If I have fumbledin responses before, I shall do so no longer. I shall mention Censorship of the Movies,whose peer I do not know.JACK VALENTI**President, Motion Picture Association of America.AMERICAN LAW OF ZONING: ZONING, PLANNING, SUBDIVISIONCONTROL, by Robert M. Anderson. Rochester, New York: LawyersCo-operative Publishing Company, 1968. Pp. 2919 (four volumes).Cloth: $100.00.This is a superlatively organized and informatively written work on all aspects of theAmerican law of zoning. The author is Congdon Professor of Public Law and Legisla-tion at the College of Law of Syracuse University and he brings to the work manyyears of experience in legislative and litigational aspects of zoning. He is also thewell known author of an earlier work on New York zoning law which has been reliedon constantly by members of the bench and bar of that state.1Appropriately, Professor Anderson begins with a thorough treatment of the powerto zone, including constitutional limitations upon exercise of that power. He includesa full and lucid treatment of enactment and amendment procedures, followed by adiscussion of substantive limitations upon zoning imposed by various legislatures, e.g.,the requirement that the zoning be in accordance with a comprehensive plan.1. R. ANDERSON, ZONING LAW AND PRACTICE IN NEW YORK STATE (1963)..19691Catholic University Law ReviewThe first volume contains a remarkably full, scholarly and useful treatment of thenonconforming use and a timely treatment of aesthetic justification for zoning con-trols. Succeeding volumes treat the specific uses and structures subject to modemzoning controls. These sections are all well written, authoritative, contemporary andmost useful to a practicing lawyer or judge.Professor Anderson is certainly cognizant of the impact of administrative law in thearea of zoning and includes a definitive chapter on the workings of modem zoningboards of appeal and adjustment.The practicing bar spends much of its time endeavoring to persuade such boardsand ultimately the judiciary of the desirability or undesirability of allowing variances,and Professor Anderson's treatment of this topic in volumes two and three is the mostthorough exposition and useful text in the four volumes. It organizes the materialsvery ably, completely indicating the state of the present law, and is replete with sug-gestions for effective advocacy in the area.Professor Anderson's text is not limited to zoning. Approximately half of the thirdvolume is devoted to municipal planning, in a nonzoning sense. He introducesthe reader to the newer forms of metropolitan and regional planning, and discusseswith knowledge and insight the functioning of local government planning boards andcommissions. There is today extensive practice revolving around local governmentcontrol of subdivisions. The instant work contains all the relevant law in this area andshould be of immense help to lawyers and members of local planning boards.Volume three also contains a full treatment of judicial review of local governmentzoning and planning action, with emphasis properly placed upon the use of manda-mus, injunctions and declaratory relief. The author has made available all the judicialprecedent and he has been willing to share with us his reflections upon those rulingsthat do not fully satisfy the needs of the community and the profession.Volume four contains a variety of provisions that can be included in zoning ordi-nances, as well as forms used before and by local administrative boards concernedwith both zoning and planning. They should be of immense utility to local legislativebodies, members of zoning boards and the practicing bar. It also contains many plead-ings that have been used in judicial proceedings affecting zoning. These materialscould safely be used, one imagines, in New York practice, but inevitably some changeswill be necessary for those practicing in other jurisdictions. The suggested clauses,provisions and forms to be used in zoning ordinances and in the internal functioningof zoning authorities, however, have a clear utility throughout the nation.The American bar and bench are indebted to Professor Anderson for his scholarlyresearch, his superlative organization of many diverse materials, his lucid exposition ofthe law and for his suggestions on the improvement of the law in this most significantarea of local government law. It can safely be asserted that Anderson's American Lawof Zoning will have a most important impact upon the administration and growth ofthe law in this area. CESTER JAMES ANT1AU**Professor of Constitutional and Local Government Law, Georgetown University LawCenter; Author, ANTIEAU ON LOCAL GOVERNMENT LAw (5 vols. 1958-68) and MOD-ERN CONSTITUTIONAL LAw (2 vols. 1969).[Vol. XVIII

CENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROL OF A MASS MEDIUM. By Richard S. Randall. – AMERICAN LAW OF ZONING: ZONING, PLANNING, SUBDIVISION CONTROL, by Robert M. Anderson.

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CENSORSHIP OF THE MOVIES: THE SOCIAL AND POLITICAL CONTROL OF A MASS MEDIUM. By Richard S. Randall. – AMERICAN LAW OF ZONING: ZONING, PLANNING, SUBDIVISION CONTROL, by Robert M. Anderson.

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