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ABSTRACT
The article argues that the legal about face in 1950s law in which film was granted First Amendment protection was driven in part by a change in the “emotional regimes” of US democracy, or emotions/performances of emotion that are part of legitimate political culture. The legal understanding of how film does or does not contribute to democratic political culture tracks historical shifts in these emotional regimes. In the teens, elites feared the activation of the masses, as crowds, in political uprisings. By 1950, elite fears had turned to passive audiences, “narcotized” masses that might easily be seduced by totalitarian demagogues.
Notes
1 These are among the underlying rationales for free speech, as defined by legal scholars and used by judges (Sunstein, Citation1995).
2 Law is a highly affective institution. Legislative acts and court decisions are judgments, which require both reason and emotion. It comes as no surprise that legal bans on murder, laws about abortion and marriage, and so on index feelings. This true as well, though, of the less dramatic areas of law and policy that regulate media.
3 Malin (Citation2014) traces the history of oratory training, showing that instruction in the art (and later science) of public speaking shifted from an emphasis on conveying strong feelings in the mid to late nineteenth century toward a more reserved style demonstrating self-mastery and control (over bodies and feelings) in the early twentieth century.
4 The decision stated that films could only re-present ideas published elsewhere, and thus worked more to illustrate existing ideas than to present new ones (Petersen, Citation2014).
5 Publics might not always employ reason, a point Tarde (Citation1901) and later Lippman (Citation1922) were quite clear about, but as collectives held together through reading and responding to news, they operate through the idiom, if not always the exercise, of cognition and reflection. This is a large part of why publics continue to be held to a print-based ideal of rationality.
6 And for at least some of its champions, the promise in film was precisely in its ability to stimulate and excite senses “dulled” by industrialized labor and life. Some of these, like Elizabeth Butler, in many ways prefigured the shift in public opinion that happened on a larger scale later, arguing that in industrialized conditions, the elevation of the mind or Arnoldian conceptions of culture “a remote dream.” (cited in Czitrom, Citation1982, p. 48).
7 By the 1930s, psychology was the dominant paradigm for understanding social behavior and processes in fields from economics to political theory (Purcell, Citation1973).
8 In West Virginia Board of Education v. Barnette 319 US 624 (Citation1943).
9 Prior to Gitlow v. New York 268 US 652 (Citation1925), the First Amendment only applied to federal laws. Mutual v. Ohio was decided in relation to Ohio's state constitutional guarantee to free speech, and understood to apply to other states’ similar guarantees.
10 In 1957, recognizing the difficulty of defining what materials were purely prurient and which might have some redeeming social value, the Court adopted a community standard test for defining obscenity (in Roth v. United States Citation354 US Citation476)
11 The decision in fact preserved the notion that film might be more dangerous than other forms of media, but argued that any censorship would have to be narrowly crafted and better argued. This reflects not only changes in the status of film, but also in the type of threat that merited regulation within First Amendment law (increasingly, only “clear and present danger”).
12 Such ideas were circulated as well in popular books like Sloan Wilson’s 1955 novel, The Man in the Gray Flannel Suit and popular academic books like C. Wright Mills’ 1951 White Collar (Butsch, Citation2008).
13 These concerns can be distinguished from those voiced in the early 1920s by commentators like Lippman (Citation1922) in the divergence of the animating ideals. Lippman pined for a reasoning public. The later critics tried to grapple with what makes for a democratic attitude or personality—a shift in the very substance of public opinion.
14 Despite their other differences, Lazarsfeld and Merton, and Adorno and Horkheimer agreed on passivity and conformity as the problem of mass media and mass audiences in the 1930s and 1940s.