3

STATE REGULATIONS EMERGE

Within six months of Lubin’s film adaptation of the Thaw-White scandal in The Unwritten Law, municipal authorities stepped up their efforts to censor motion pictures. Responding to moral reformers and the local press, Chicago’s city council ratified regulations that Mayor Fred A. Busse quickly signed into law. On November 19, 1907, Chicago’s “Ordinance Prohibiting the Exhibition of Obscene and Immoral Pictures and Regulating the Exhibition of Pictures of the Classes and Kinds Commonly Shown in Mutoscopes, Kinetoscopes, Cinematographs and Penny Arcades” became effective.1 Ellis Oberholtzer, a contemporary activist based in Pennsylvania, commended the Windy City in his book The Morals of the Movie.²

The effect of Chicago’s ordinance resonated. This law was not a repetition of the laissez-faire approach of the antiboxing statutes but a move toward strict enforcement. With a name to fit the role of a modern praetorian, Major Metellus Lucullus Cicero Funkhouser (1864–1926) emerged as Chicago’s appointed “guardian of public morals” in March 1913.³

Funkhouser was an eager and enthusiastic censor. The Moving Picture World reported that Funkhouser “says his hands are full trying to live up to his principles of forbidding all plays exploiting crime, showing degradation of women, making a hero of a criminal, or ridiculing authority.”⁴ Within a year his style proved too ambitious. The trade journal commented that the major “has got himself into hot water recently because he has presumed to cut films based on the stories of Dickens, Hawthorne, etc. . . . On Oct. 14 [1914] a part of the film showing Martin Chuzzlewit was cut out. . . . [U]p until [now] nobody ever ventured an opinion that Charles Dickens was a corrupter of morals.”5 Funkhouser was lampooned in Nestor Films’ Pruning the Movies (1915), in which a character named Major Bughouser was portrayed as an excitable official who demanded ridiculous cuts to the film within the film: “The scenes are shown as originally produced [and] as they appear when the Bughouser Board is through with them. . . . The last scene shows the gallant Major filling up on his usual favorite food—a large dish of prunes.”⁶ The pun may not seem as fresh a century later (pruning the pictures, eating prunes), but the film’s satirical intent to lampoon authority remains clear.

The following year Photoplay magazine published an article entitled “Censorship vs. Regulation.” The story recognized that Funkhouser had “become nationally known as the extreme type of police censor.” The article presented two perspectives on the issue. Speaking against regulation was Lucien Cary, editor of the liberal-leaning magazine The Dial. Giving voice to the other side was Funkhouser himself. Funkhouser’s op-ed lectured on the historical importance of censorship in maintaining societal norms. He also confided, “When I became censor in Chicago I found very little to guide me in the laws of Illinois and the ordinances of Chicago; the office was too new.” Funkhouser’s methodology was based on personal taste—the very essence of arbitrary censorship. “We have cut a good many miles of films—scenes obscene, scenes of the nude, scenes of ugly violence, scenes reflecting on constituted authority—because we thought they were unsuitable to present before audiences, 80 per cent of whom are women and children.”⁷

Since Chicago was the nation’s second largest market, film industry executives and financiers took notice when Funkhouser suppressed material. Indeed, by banning films that demonstrated dances such as the turkey trot and the tango,⁸ Funkhouser embodied a capricious censor. With regard to the dance moves, he commented, “The objection is not based so much upon these pictures in themselves, but upon the effect they would have on thousands of young people. . . . [T]hat is where the danger is.”⁹ By 1917 civic authorities began to question Funkhouser’s aggressive censoring.¹⁰

Funkhouser’s unpredictable bans would be his downfall. In April 1918 the major brought his family to the Art Institute of Chicago. As they arrived Funkhouser espied a seven-foot bronze of a nude male that stood at the museum’s entrance. Within moments he ordered the statue removed. When the massive figure could not be budged, the censor had it draped.11 Two months later Funkhouser was removed from his post. Variety reported, “The firing of Funkhouser brings great joy to the men of the picture business. For his absurd censorship of pictures, Funkhouser had achieved national notoriety. His name had become synonymous with narrow-minded, carping criticism and deletion.”¹²

Chicago censor Maj. M. L. C. Funkhouser, in the Chicago Daily News, July 5, 1916.

Funkhouser had been an influential figure in the story of film and the First Amendment, holding his post as Chicago’s movie censor from 1913 until 1918. The sculpture, The Sower, was draped in storage for eighty years until its rediscovery in June 2005.

The next scene in the drama of cinema and censorship was New York City. The New York–New Jersey area had been the birthplace of American cinema. The Edison Company outgrew its first film factory, the Black Maria, in 1901 and moved to a glass-enclosed rooftop facility at Oliver Place and Decatur Avenue in the Bronx, also operating a second stage at 41 East Twenty-First Street in Manhattan. Several competitors were located in and around New York, including Biograph on Fourteenth Street in Manhattan and Vitagraph on Avenue M in Brooklyn. Slightly farther afield, Thanhouser built a production house in New Rochelle, Éclair in Fort Lee, Pathé in Jersey City, and Nestor in Bayonne. In addition to production facilities, exhibition also grew quickly in the region. Storefront screening rooms, nickelodeons, and penny arcades radiated from the central hub of Times Square. By 1907 the New York Times estimated that five hundred nickelodeons and moving picture emporiums were operating in the city.13 Civic authorities were wary. In March 1907 at least forty parlors were cited and shuttered for noncompliance with electricity permits.¹⁴ Despite the city’s efforts, film was becoming a cultural force, generating substantial revenues and exerting significant influence over a growing audience.

Less than a month after Chicago passed its film ordinance, New York increased film regulation. Enforcing blue laws, police commissioner Theodore Bingham ordered all theaters to be shuttered on Sundays.¹⁵ Vaudeville and legitimate stages were subject to the regulation, but nickelodeon owner William Fox petitioned for an injunction for picture parlors. Fox prevailed—the fifty-year-old blue law that regulated “public entertainment on a stage” would not be applied to movie houses.¹⁶ Within months vaudeville stages across the city converted to motion picture theaters. It was a simple business decision: by switching to filmed entertainment the venues could remain open for business on Sunday. As the movie boom accelerated in New York—in part due to the city’s own actions—the desire to inspect and regulate motion pictures intensified.

Like Chicago, with its Maj. Funkhouser, New York had its own version of an enthusiastic municipal enforcer: Mayor George McClellan Jr. The son of a Civil War major general, McClellan is perhaps best remembered for opening the IRT subway lines. He is notable in the history of cinema and censorship for his attempt to shut down all New York nickelodeons.

In 1908 McClellan received a report from Commissioner Bingham that condemned several hastily built movie houses and noted the questionable content of exhibitions. On Christmas Eve 1908 McClellan revoked licenses to over five hundred movie houses. On the night before Christmas, all through the town, motion picture parlors were served with notices to quit. The reason given was poor safety conditions. “I am informed that the inspections in regard to the fire exits have been inadequate,” read the mayor’s statement. “As these licenses for moving-picture shows are issued by me, I feel personally responsible for the safety and lives of the patrons, and take this action on personal knowledge of existing conditions and the firm conviction that I am averting a public calamity.”¹⁷ The statement was a ploy; while safety was an issue, the underlying concern was over both the darkened auditoriums that could breed moral corruption and the unapproved content of films.

Mayor George B. McClellan Jr. (1865–1940), from World’s Work, December 1903.

Leading the opposition once again was pugnacious independent exhibitor William Fox. Fox appealed to judge William Jay Gaynor (1849–1913) to enjoin the mayor’s order.18 In a decision that no doubt brought him popular support among the moviegoing public, Gaynor issued the injunction.¹⁹ New York’s nickelodeons stayed open that Christmas.²⁰ With the endorsement of the city’s Moving Picture Exhibitors’ Association, the following year Gaynor won the mayoral seat and replaced McClellan.²¹

Aside from the short-term victory that kept the doors open and the reels unspooling that Christmas, producers, distributors, and exhibitors began to develop a strategy to address censorship in the longer term. To oppose state censorship industry leaders opted for a system of self-regulation. The Motion Picture Patents Company (MPPC), known informally as the Edison Trust, was the most powerful organization in the American film industry. It formed an alliance with the People’s Institute, a division of the Cooper Union for the Advancement of Science and Art. The Institute was a socially progressive think tank guided by visionary reformer Charles Sprague Smith. Together, the alliance of filmmakers and academics formed a panel to assess motion picture content. Within three months of McClellan’s threat to shutter cinemas the National Board of Censorship began reviewing movies.²²

Despite its name, the National Board of Censorship’s objective was not to ban pictures but rather to uplift the medium toward lofty educational and artistic goals. While the Institute’s intentions may have been noble, the film community made no secret of its purpose to contain governmental regulation, announcing a “nation-wide campaign against all forms of official or legalized censorship.”23 The scheme initially worked. The Moving Picture World reported that many jurisdictions requiring preapproval of motion pictures “have stated that they will recognize the censorship of the National Board of Censors.”²⁴ Under the MPPC’s direction the board members publicized their censoring skills, boasting that within two years they had destroyed two million feet of objectionable film.²⁵ By 1910 a contentious relationship had arisen between the MPPC and independent filmmakers, but one thing both Edison Trust members and indies could agree on was that the board was preferable to social reformers and state censors.

To fit exhibitors’ needs the board’s guidelines were left broad, vague, and flexible: “No iron rules can be laid down for the judging of motion pictures . . . [but] scenes depicting crime and vice and those depending on immorality or suggestiveness are frowned upon.”²⁶ The board was a quick fix to fend off state censorship, but the uneasy alliance of industry and academia quickly began to unwind. When Smith died in 1910, so did the Institute’s passion for advocating on behalf of uplifting educational pictures. The censorship board’s new leadership was more willing to compromise core values and come to terms with the film industry’s emphasis of profits over moral value. The Institute’s mission shifted from the encouragement of quality to the mere oversight of pictures. Within five years the group changed its name to the National Board of Review. Although not true to its founding principles, the board’s new mission offered financial incentives. A fee was charged for each film reviewed. The partnership was mutually beneficial: the film community gained arm’s-length, nongovernmental oversight, and the board filled its coffers with license fees.

By 1914 Mutual Film Corporation claimed that 96 percent of its catalog had been inspected and approved by the board.²⁷ Still, religious leaders, women’s groups, and civic-minded moralists were unhappy over the board’s failure to censor more vigorously. After Smith’s death a letter came to light in which Smith promised not to deal too harshly with the films submitted.²⁸ Outrage followed this exposure of the relationship between the board and the MPPC. The Brooklyn Eagle wrote, “If the National Board of Censorship receives money from the film manufacturers, then it is an institution which relies for its very life on the manufacturers and it would be suicide for the National Board to censor too strictly.”29 Once it was clear the board was in the pocket of film producers, the tide shifted; communities began to make their own cuts.

In New York oversight of motion pictures and theaters had been divided among several agencies, including the Health Department, the Bureau of Buildings, and the Bureau of Licenses. In 1911 the city consolidated control, appointing a dedicated board of censorship empowered to review and permit pictures in the city.³⁰

There were new developments on the national stage as well. Reverend Wilbur Crafts was a longtime lobbyist for temperance and the prohibition of alcohol. In 1914 he turned his attention to the movies. His message: federal film oversight was needed to ensure clean and decent pictures. For Crafts, local boards were still necessary, but a federal agency could provide enforcement.³¹ Crafts lobbied Senator M. Hoke Smith (D-GA) and Representative Dudley M. Hughes (D-GA) to establish a Federal Motion Picture Commission.³² The Smith-Hughes bill came before the House Committee on Education in July 1914, again in October 1915, and was debated for a third and final time in May 1916.³³ The bill failed. On the other side of the issue a group of congressmen filed a counter report,³⁴ and the Moving Picture World offered anticensorship slides for exhibitors to rally their audiences—“The fight against censorship is your fight. Show these slides on your screen . . . and help create a strong public sentiment against this unnecessary and un-American form of legislation. Four slides 50¢.”³⁵ The trade paper saw no resolution in sight on the issue of censorship: “Whatever action may be taken by the Congressional Committee this hearing is practically but the opening gun of a strenuous fight that will follow.”³⁶

As audiences continued to grow so did civic concerns over who controlled production and exhibition. One factor that influenced this concern was the shifting demographic of ownership in the industry. Before 1910 film production had been in the hands of white Protestants—from executives such as Edison, the Latham brothers, J. Stuart Blackton, and William Selig to technicians such as Dickson, Heise, and Edwin S. Porter. The Lubin company provided a notable exception. Essanay’s director-star Broncho Billy Anderson concealed his own Jewish heritage. The nickelodeon boom provided opportunities for risky venture capitalists, and by 1911 a new breed of entrepreneurs—mostly Jewish immigrants—was beginning to join the industry. With this minority group gaining control of the increasingly popular pastime, the perceived need for regulation increased.

Even before Chicago’s film ordinance took effect, the city was actively monitoring motion pictures. In October 1907 the Moving Picture World reported, “Our Chicago correspondent sends us the following: Lieutenant Alexander McDonald, Chief [of Police George M.] Shippey’s five-cent theater and dance hall censor, stopped the display of fourteen pictures this week. . . . The titles of the pictures which were stopped are: Easy Money . . . Kidnapping a Child . . . [and] Clara Got His Money. . . . The pictures according to Lieutenant McDonald were unfit for exhibition and would easily lead some child or man with a weak mind into an evil path.”37 Soon after the city’s censorship ordinance was ratified one exhibitor challenged the law, and on February 19, 1909, the Supreme Court of Illinois rendered its decision in Block v. City of Chicago. Block is a landmark—the first film censorship case to be tried in U.S. courts.

Jake Block owned a chain of nickelodeons in Chicago. He challenged the city’s interference with the exhibition of two films: The James Boys in Missouri and Night Riders. Block argued that the city’s film regulation was vague and ambiguous and that the terms “obscene” and “immoral” were so broad that delegation of censorship power to the chief of police violated the Constitution. The films at the center of the controversy provide color and detail to Block’s claim.

Gilbert M. “Broncho Billy” Anderson (1880–1971) directed The James Boys in Missouri (1908). Even in 1908 Broncho Billy was a seasoned professional in the young industry. Anderson had made his screen debut as the telegraph operator in The Great Train Robbery (1903). He moved to Selig Polyscope, where he wrote, directed, and appeared in films until partnering with George K. Spoor in 1907 to form Essanay Studios (from S and A for Spoor and Anderson). The James Boys was Essanay’s first Western. The one-reeler ran eighteen minutes and covered high points in the life of Jesse James—joining Quantrill’s Raiders, leading his gang in a railroad robbery, and getting shot down by Robert Ford.³⁸ Like the bandit brothers Jesse and Frank, the film was a magnet for trouble; it was banned in Dallas as late as 1911.³⁹

The second film was Night Riders (1908), produced by the Kalem Company. Kalem was formed in 1907 by the partnership of film pioneers George Kleine, Samuel Long, and Frank J. Marion (K, L, M for Kleine, Long, and Marion). The studio’s star director, Sidney Olcott, earned his own place in film-legal history when his unauthorized, unlicensed adaptation of Ben-Hur (1907) became the first motion picture to come before the U.S. Supreme Court, in Kalem Co. v. Harper Bros. (1911). Night Riders was a violent thriller to be sure; the film focused on a true-life vigilante group known as the masked riders, active in Kentucky and Tennessee since 1906. The riders notoriously burned tobacco factories to protest unfair pricing. The self-proclaimed freedom fighters had been making headlines with skirmishes that culminated in a climatic battle with the Kentucky National Guard the very month that Kalem’s film was released.40 Night Riders was an actioner ripped from the newspapers.

There was no doubt that both films depicted controversial subject matter; however, crime and criminals had been popular subjects on the screen for years without formal censorship. Edison had issued a steady stream of pulpy crime dramas, including The Great Train Robbery (1903), Kit Carson (1903), Capture of the “Yegg” Bank Burglars (1904), and Life of an American Policeman (1906). What was different with The James Boys and Night Riders was that for the first time the courts stepped in.

Regulators saw the need to protect vulnerable audiences, particularly children, women, and uneducated viewers, from the threat of morally questionable motion pictures. Chicago’s 1907 municipal ordinance required permits for Mutoscope, Kinetoscope, and cinematograph parlors and prohibited public exhibition of obscene and immoral pictures.⁴¹ Block prayed for an injunction against the law, complaining it unfairly burdened his business. The state countered that the purpose of the law was “to secure decency and morality in the moving picture business, and that purpose falls within the police power.”⁴²

In the court’s brief reasoning it seemed at first that Block’s argument was persuasive. There was no discussion regarding any specific objectionable element in either of the pictures. “It is true,” wrote the court, “that pictures representing the career of the James Boys illustrate experiences connected with the history of the country, but it does not follow that they are not immoral.”⁴³ Block had argued that depictions of true events, acceptable if reported or recorded in other media, from newspapers to adventure magazines, should not be deemed inappropriate when conveyed through the medium of motion pictures. The court rejected this reasoning. Abruptly changing direction in the final sentences of the opinion, the court found both films immoral, asserting that “their exhibition would necessarily be attended with evil effects on youthful spectators. If the other pictures for which permits were refused were of similar character, the chief of police should be commended for the refusal.”⁴⁴

Illinois saw the need to protect audiences “whose age, education, and situation in life specially entitle them to protection against the evil influence of obscene and immoral representations. The welfare of society demands every effort of municipal authorities afford such protection.”45 With little discussion as to the actual offensive elements in the pictures, the municipal regulation of film content was upheld.

After a decade of explosive growth for the film medium a line was drawn. The court saw little value in the cinema as a developing art or industry. The law was clear: in 1909 Chicago’s nickelodeons had little power to challenge municipal regulations.

The following year Delaware regulators challenged the Hyrup Amusement Company in State v. Morris. The name of the censored film was not recorded. Regulators relied on chapter 117, section 1 of Delaware’s revised code of 1893: “Every building, tent, space or area where feats of horsemanship, or acrobatic sports or theatrical performances are exhibited, shall be deemed a circus within the meaning of this act.”⁴⁶ Since the cinema embodied a “theatrical performance,” it could be regulated. Morris found film exhibition could be controlled under an ordinance aimed at circuses.

Interestingly, neither the Block nor the Morris decision contemplated First Amendment rights. These cases came down in 1909–1910, prior to the incorporation of the Bill of Rights to the states. Although there were indications of change prior to 1925, at that time the Bill of Rights only applied to the federal government. Illinois and Delaware could readily censor film exhibitors by relying on their police powers; constitutional protections were not necessarily relevant to a counter argument. The topic of constitutional guarantees would simmer in the background for six more years before the courts would recognize the issue.

New York, the hub of production, distribution, and film financing had resisted regulating the cinema since Mayor McClellan’s attempted Christmas Eve closures. In December 1912 Mayor Gaynor, the former judge and proven ally of the motion picture community, vetoed a bill for more stringent movie censorship.⁴⁷ Gaynor commented, “Our forefathers abolished censorship and declared for freedom of speech and a free press. Now apparently, you want all these things and yet you are arguing for a specific censorship. . . . For all I know, this ordinance might deprive us of a personal liberty.⁴⁸ Gaynor’s endorsement of First Amendment rights fell on deaf ears. In the end it was the inherent danger of the film medium itself—not the thematic content of film—that tipped New York in favor of film regulation. More rigorous laws were passed in 1913 after flammable nitrate film stock was identified as the cause of several fires.⁴⁹ The city could rely on its authority to protect the safety of its citizens—the ability to reign in controversial content was an added perk.

Mayor William Jay Gaynor (1849–1913). Photo taken c. 1910, the year he survived an assassination attempt.

Chicago, Delaware, and New York were not the only communities to regulate motion pictures. On June 19, 1911, Governor John Kinley Tener signed P.L. 1067 into law, creating a board of censors. Pennsylvania became the first to regulate motion pictures on a statewide level. The Keystone State’s ordinance stipulated that “no film can be sold, leased, lent, or exhibited until it has been submitted to and approved by this Board of Censors.”50 J. Louis Breitinger (1877–?) and Ellis Paxson Oberholtzer (1868–1936) were named as the state’s morality czars.⁵¹ Dr. Oberholtzer was a more thoughtful and academic censor than Funkhouser. He considered his role as follows:

I have often been told, when I protested against a particular scene in a film, that this is but a transcript of what is described in a newspaper or magazine. Conditions are very different; the analogy is false. . . . [A motion picture] can be understood by persons of the lowest degree of intelligence and by children. They can sit in cushioned seats and look, to the accompaniment of music, at the vivid and seductive representation of scenes upon the screen for hours. . . . [T]here must be special agents whose duty it shall be to watch the movie. . . . Such film as no changes can disinfect and purify must be entirely barred from exhibition.⁵²

To Oberholtzer, the censor’s value was in protecting impressionable audiences from the evil influences of the moving image.

State legislatures took varying approaches to motion picture regulation. Pennsylvania’s statute empowered censors to “investigate and . . . approve such moving-picture films, or reels, or stereopticon views, as shall be moral and proper, and disapprove . . . [films] which are sacrilegious, obscene, indecent, or immoral, or such as tend to corrupt morals.”53 Ohio, enacting its stricter film ordinance in 1913, stated, “Only such films as are, in the judgment and direction of the board of censors, of a moral, educational, or amusing and harmless character shall be passed and approved by such board.”⁵⁴ That same year Kansas “made [it] the duty of [the censor] to examine the films or reels intended for exhibition, and approve such as he shall find to be moral and instructive, and to withhold his approval from such as tend to debase or corrupt the morals.”⁵⁵ None of these statutes defined moral or immoral; the state censors reviewed pictures based on vague, arbitrary, and often personal standards.

The landscape of the film industry had changed drastically from the freewheeling pioneering days only a decade earlier. The once-powerful Edison Trust came under fire, first in MPPC v. Independent Moving Pictures Co. (1912) and then in United States v. MPPC (1915). The Trust was finally busted by the Supreme Court in 1917.56 For a decade the MPPC had reigned as a restrictive cartel, but it had also been an aggressive proponent of industry self-regulation. The MPPC’s monopoly had squeezed independent competition but kept civic censors at bay. Into this power vacuum stepped state actors, who increased their strength in the largest urban markets—New York and Chicago—as well as statewide in Pennsylvania, Ohio, and Kansas.

Pennsylvania censor Ellis Oberholtzer (1868–1936) (center), April 28, 1931. Courtesy Special Collections Research Center, Temple University Libraries, Philadelphia, Pennsylvania.

Topics considered content-permissible were changing as well. Boxing films, once box office gold—local bans notwithstanding—evaporated after Vitagraph’s Jeffries-Johnson World’s Championship Boxing Contest, Held at Reno, Nevada, July 4, 1910 (1910). This bout pitted the heavyweight champion James Jeffries against Jack “The Galveston Giant” Johnson. With a historic punch, African American Johnson became the first fighter to knock Jeffries down and in the process stir up racial animosities. Two years later Johnson was involved in another controversy when “Fireman” Jim Flynn was disqualified for head butting him in their July 4, 1912, bout, released on film as Jack Johnson vs. Jim Flynn (1912). These racially charged matchups factored into the federal government’s decision to act. Congress banned distribution of prizefighting pictures on July 31, 1912, less than a month after the Johnson-Flynn film was released. The Simmons bill made it unlawful “to bring or to cause to be brought into the United States from abroad, any film or other pictorial representation of any prize fight or encounter of pugilists, under whatever name, which is designed to be used or may be used for purposes of public exhibition.”⁵⁷ The federal law criminalized importing and exploiting fight films with a $1,000 fine and prison time.⁵⁸

The Supreme Court upheld the ban on boxing pictures. In 1915 L. Lawrence Weber, a New Jersey film distributor, imported a “photographic film of a pugilistic encounter” shot in Havana, only to have his picture impounded by U.S. Customs. Weber brought suit, claiming the state exceeded its powers under the Commerce Clause. The Supreme Court disagreed. Writing for the unanimous bench in Weber v. Freed, Chief Justice Edward Douglass White declared that Congress had the power to prohibit importation of fight films.⁵⁹ The following year local censors also cracked down on fistic photoplays, banning imports and exhibition.⁶⁰ The genre of prizefighting pictures had come to an end, or at least went underground for stag party viewings.

As government regulations were enforced, a black market motion picture trade arose. Like the boxing films, a shadow industry of sex loops emerged. Back in 1897 even the most audacious striptease films, such as Fatima’s Coochie-Coochie Dance and Dolorita’s Passion Dance, could play to mainstream audiences in most public parlors. However, once these films went underground the aesthetics turned hardcore, giving rise to “modern” pornography. Many early stag films were foreign imports. From France came A l’ecu d’or ou la bonne auberge (c. 1908), which explicitly depicted a soldier’s tryst with girls at an inn. Another French loop entitled A les culs d’or (The Golden Bottom or Mousquetaire au restaurant, Musketeers at the Restaurant, c. 1908) featured two men, one portly and the other a studly musketeer, entering a tavern to sample the hostess. Imported from Argentina came El satario (c. 1908), possibly the earliest surviving pornographic film.61 In this film three women bathing in a river encounter a devil or satyr who tempts them with forbidden pleasures. Notable for its pioneering use of the extreme close-up, El satario moves through a series of scenes that would become standard in the genre. Film aesthetics had certainly progressed—or degenerated—in the decade since the close-up of The Rice-Irwin Kiss rankled the petticoats and starched collars of Victorian standard-bearers. From Germany came Am Abend (c. 1910). Based in Vienna, Johann Schwarzer’s prolific Saturn Film Company mass-produced stag loops such as A Modern Eve, Diana Bathing, and Games of Youth (all films c. 1906–1911). Blue movies were not all imported; A Free Ride (c. 1915) is thought to be the oldest American stag film in existence. Typical of American filmmaking as compared to foreign films, A Free Ride presented greater narrative structure. The film depicts a man driving his Model T through the countryside with two female passengers, culminating in a pastoral pleasuring in flagrante delicto.

Unidentified stag loops produced in Austria by Johann Schwarzer (1880–1914) for Saturn Film, c. 1906–1908.

Early American porn, A Free Ride (c. 1915).

Government regulations intended to promote morals and sanitize screen content played an important role in the development of this shadow industry. While motion picture theaters were unspooling censor-approved reels in Chicago, New York, and the states of Pennsylvania, Ohio, and Kansas, the underground trade in boxing films and porno loops developed into a secret cinema. By 1913 state regulatory mechanisms unwittingly contributed to the rise of a cinematic subculture.

Beginning with the motion picture adaptations of the Thaw-White scandal, the waning days of an older era became apparent. Pugilistic photoplays, shocking stripteases, and thrilling outlaws roiled Victorian sensibilities and galvanized social reformers. The crowd-pleasing formula of sex and violence became the catalyst that encouraged film censorship laws. The 1909 Block decision demonstrated the power of state censors over filmmakers and exhibitors. But Block avoided discussing the issue of whether film censors chilled free speech. Such constitutional issues would be definitive in determining the balance of power between state regulators and creative filmmakers, between social reformers and champions of the motion picture industry. The parties were not left waiting long: the matter would be decided in the landmark Mutual decisions of 1915.