The state government of Ohio had passed a statute in 1913 forming a board of censors which had the duty of reviewing and approving all films intended to be exhibited in the state. Like other state and municipal governments, Ohio charged a licensing fee to distributors.[2] The board could order the arrest of anyone showing an unapproved film in the state.[citation needed]
The plaintiff, Mutual Film Corporation, was a movie distributor and sought an injunction against the Board. Mutual argued that in addition to the violation of its freedom of speech, the censorship board was interfering with interstate commerce in violation of the Dormant Commerce Clause[2] and that the government had illegally delegated legislative authority to a censor board. Those arguments were dismissed by the Court perfunctorily.
... the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit ... not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.[2]
The Court described movies in some technical detail and noted their popularity but wrote that as "they may be used for evil, ... We cannot regard [the censorship of movies] as beyond the power of government." The Court added that it would be equally unreasonable to grant free speech protection to the theater or the circus and noted that in many prior cases regarding government licensure of theatrical performances, the issue of freedom of opinion had not been raised.
The decision that motion pictures did not merit First Amendment protection drove an increase in regulation of film content, which culminated in the enforcement in July 1934 of the Production Code over all Hollywood films. The Production Code, also known as the Hays Code, was not law but an agreement between studios and theaters to self-censor, partly to avoid the patchwork of local censorship laws that existed around the country. In May 1952, the Supreme Court overturned its Mutual decision in Joseph Burstyn, Inc v. Wilson, popularly known as the "Miracle Decision" since it referred to the short filmThe Miracle, part of the anthology filmL'Amore (1948), directed by Roberto Rossellini.
The Production Code was loosened in the 1950s and 1960s and was eventually abandoned, in favor of the MPAA film rating system in 1968.
^Walter, Robert H.K. (1951). "Constitutional Law: Possible Impact of Television Rule on Motion Picture Censorship". California Law Review. 39 (3): 421–429. doi:10.2307/3478157. ISSN0008-1221. JSTOR3478157.
Jowett, Garth 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.
Wertheimer, John (1993). "Mutual Film Reviewed: The Movies, Censorship, and Free Speech in Progressive America". American Journal of Legal History. 37 (2). Temple University: 158–189. doi:10.2307/845372. JSTOR845372.
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