Without Apology, The Movies And Those Who Make Them Should Campaign For Free Speech

A stray thought for Hollywood: Just because Donald Trump is campaigning for free speech—last week, he announced a class-action anti-censorship lawsuit against Twitter, Facebook and Google—doesn’t mean it’s a bad idea.

Free speech, that is. I don’t know about the lawsuit, which will have to reconcile the tech giants’ First Amendment rights and legal protections with a claim that they have abused their immunity by acting as politically one-sided censors.

More heat than light will be shed as the suit works its way through the courts and media mill. But never mind Trump. Freedom of expression is something the movie business should start worrying about, sooner rather than later.

It’s no secret that the movies—like the rest of pop culture—have been operating in an ever-narrower field when it comes to what can be portrayed on-screen, and by whom. Even to identify the growing list of prohibitions would invite attack.

Suffice it to say that Sean Penn had a point when he suggested on a recent Conan O’Brien podcast that today, as a straight person, he probably couldn’t be cast as the gay activist Harvey Milk, a role for which he won an Oscar in 2009. “You wonder at some point if only Danish princes can play Hamlet,” he said.

On another front, Lin-Manuel Miranda apologized for his lack of racial sensitivity in In The Heights. Rita Moreno then apologized for defending Miranda. Meanwhile, John Cena scrambled to salvage F9 by apologizing for an offense to China.

In truth, Hollywood might as well be operating under the Hays Code, which, in a  version adopted on June 29, 1927, outlawed the portrayal, “irrespective of the manner in which they are treated,” of, among other things, any “willful offense to any nation, race or creed.

Obviously, this can’t go on—not if a supposedly creative business that has long taken pride in its rule-breakers (Warren Beatty, Quentin Tarantino), anti-heroes (Super Fly, Thelma & Louise), and incorrigible irreverence (from Charlie Chaplin, through Monty Python, to The Hangover and beyond), is ever going to breathe again.

This isn’t to say that the film industry, as a whole, has ever been especially brave when it comes to free expression. The aforementioned Hays Code, from a century ago, set a now familiar pattern. When under attack, the movie business and those in it tend to preempt censorship by censoring themselves. For a while, it seems to work. The Code, which sterilized American film for decades, certainly put a cork in dozens of local censorship measures that would have made national theatrical distribution impossible.

But the wonderful thing about Hollywood is its buoyancy.  Just when you think it’s about to sink in abject surrender to finger-wagging moralists who object to gangsters, or sex, or cigarettes, or whatever, filmdom’s rebel spirit bobs back up, like a self-righting sailboat.

Thus, long before it was abandoned in the late 1960s, the Code was defied by vibrant rule-breaking movies like The Pawnbroker, Anatomy Of A Murder, and Some Like It Hot. (It helped that the United States Supreme Court, reversing its own previous position, held in 1952 that movies are indeed a form of constitutionally protected free speech.)

In much the same way, the current film ratings system—designed to forestall next-wave censorship with age-restrictions at the theater door—stretched and bent until finally it allowed almost anything into PG-13 pictures, and just about everything else into accessible-to-all-but-kids R films.

Ultimately, even the anti-Communist blacklist didn’t snuff free expression. Kirk Douglas hired the blacklisted Dalton Trumbo to write Spartacus, which won four Oscars. Jay Roach told the back story in Trumbo. The incorrigibly irreverent Coen Brothers had fun with it in Hail, Caesar!

But back to the present.

The uncodified but very real strictures on film—as with those curbing speech on campus, in social media, at comedy shows—are piling up faster than offenders can Tweet apologies. Yet the industry’s key players and institutions have been slow to campaign for free expression (as even Harvey Weinstein once did, with his endless ratings appeals). Sometimes, in fact, they have actually narrowed the movie safe zone, whether with disclaimers attached to classics like Gone With The Wind, or with forthcoming Best Picture inclusion and representation standards that will ask whether a would-be Oscar contender delivers a “main storyline(s), theme or narrative” that “is centered on an underrepresented group(s).”

It’s another version of the old tactic, preemption. But that is a high-risk approach–playing along, while waiting for the boat to right itself– in an online world where cancellation is immediate, and almost total.

Something more emphatic is in order. (Much more than the safely historical bravery of a Mank.)

Comedians like Ricky Gervais, Bill Maher and Jerry Seinfeld have already spoken up. Journalists like Glenn Greenwald have joined in. Musician Winston Marshall, late of Mumford & Sons, just took a stand.

It’s time for movie people to do as much. No matter what Trump says.

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