That Time the Supreme Court Unanimously Ruled Films Were Not Protected By the First Amendment

Mutual Film Corp. v. Industrial Commission of Ohio (1915) was a Supreme Court decision that shows just how far we’ve come with protections for free speech in the intervening years and the risks entailed in any backsliding on free speech rights.

Mutual Film Corporation was a conglomerate that produced movies during the early 20th century. In 1913, Ohio enacted a law creating a censorship board that had the power to ban films.

Mutual Film Corporation filed a lawsuit against the state of Ohio, and lost. The Supreme Court unanimously ruled that films were not protected by the First Amendment.

The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit like other spectacles, and not to be regarded as part of the press of the country or as organs of public opinion within the meaning of freedom of speech and publication guaranteed by the Constitution of Ohio.

Of particular interest is that a major part of the Court’s reasoning was that the act of showing a film was purely commercial speech,

The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit like other spectacles, and not to be regarded as part of the press of the country or as organs of public opinion within the meaning of freedom of speech and publication guaranteed by the Constitution of Ohio.

Republican Taliban Alive and Well in North Carolina

Back in March, the American Civil Liberties Union filed a federal lawsuit against North Carolina’s Rowan County Board of Commissioners. The lawsuit alleges that the Board of Commissioners unconstitutionally opens almost all of its meetings with a Christian prayer. According to an ACLU press release announcing the lawsuit,

The complaint, filed in the U.S. District Court for the Middle District of North Carolina, details how more than 97 percent of board meetings since 2007 have been opened with prayers specific to one religion, Christianity.

“I want my local government to be open and welcoming to people of all beliefs,” said Nan Lund, a Salisbury resident who is one of three plaintiffs named in the lawsuit. “But when officials begin a public meeting with prayers that are specific to only one religious viewpoint, I feel unwelcome and excluded.”

The commissioners, who deliver the prayers themselves, routinely call on Jesus Christ and refer to other sectarian beliefs during invocations. Opening invocations have declared that “there is only one way to salvation, and that is Jesus Christ,” as well as given thanks for the “virgin birth,” the “cross at Calvary,” and “the resurrection.”

The lawsuit did not go over well with some North Carolina legislators who decided the best solution would be to craft a joint resolutions in favor of the establishment of a state religion in North Carolina. Specifically, the resolution maintains that U.S. Supreme Court rulings relating to the First Amendment’s Establishment Clause do not apply to North Carolina:

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2013

H1

HOUSE JOINT RESOLUTION 494

Sponsors:

Representatives Ford and Warren (Primary Sponsors).

For a complete list of Sponsors, refer to the North Carolina General Assembly Web Site.

Referred to:

Rules, Calendar, and Operations of the House.

April 2, 2013

A JOINT RESOLUTION to proclaim the Rowan county, North Carolina, Defense of Religion Act of 2013.

Whereas, the Establishment Clause of the First Amendment of the Constitution of the United States reads:”…Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof;…”; and

Whereas, this prohibition does not apply to states, municipalities, or schools; and

Whereas, in recent times, the federal judiciary has incorporated states, municipalities, and schools into the Establishment Clause prohibitions on Congress; and

Whereas, the Tenth Amendment to the Constitution of the United States reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”; and

Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion; and

Whereas, Rowan County, North Carolina, asserts that the protections afforded to citizens of the United States under the First Amendment are not in any way to be abridged when such citizens become government actors by virtue of their appointment, election, contract, employment, or otherwise engagement; and

Whereas, Rowan County, North Carolina, requests and encourages the North Carolina General Assembly to pass a resolution declaring that the State of North Carolina does not recognize the authority of federal judicial opinions arising from the exertion of powers not granted to the federal government by the Constitution of the United States; Now, therefore,

Be it resolved by the House of Representatives, the Senate concurring:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

SECTION 3. This resolution is effective upon ratification.

The resolution brought a lot of ridicule and embarrassment to the North Carolina legislature. Just a few days after it was introduced, North Carolina’s Speaker of the House Republican Thom Tillis pulled the resolution.

That did not prevent one last unbelievable exchange between North Carolina state Rep. Michele Presnell, one of the co-sponsors of the resolution, and one of her constituents.

In an email exchange, the constituent wondered if Presnell would like it if a Muslim prayer was said before the start of a public meeting in North Carolina, to which Presnell allegedly responded,

No, I do not condone terrorism.