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The Code as Convention: 1935-1939

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By late 1934, peace was breaking out almost all over: even The Churchman praised Breen and Quigley and accepted that, since 15 July, Hays had been given the authority that the MPPDA had previously claimed for him. More important was the evidence of a box-office recovery led by the neighborhood theaters and apparently responsive to the new production trends that elevated Shirley Temple to the box-office pinnacle from 1934 to 1938. The complex ideological phenomenon that Temple represented indicated a change in public sensibility as well as industry strategy, but the films in which she appeared were, as Graham Greene pointed out in 1937, hardly devoid of sexual sophistication, any more than were Astaire-Rogers musicals or screwball comedies. Rather, these genres contained the culmination of Joy’s policy of encoding the representation of sexuality in such a way that a preexistent knowledge was required to gain access to it.

The career of Ginger Rogers follows this development more closely than most: from Anytime Annie in 42ND STREET (“She only said ‘no’ once—and then she couldn’t hear the question”), she progressed, via RKO’s musicals, to B ACHELOR M OTHER (1939), where the comedy is constructed around the resolute failure of the central characters to recognize the sexual suggestiveness of the situations they are placed in. The New York Times reviewer attributed “the spectacle of Miss Rogers and David Niven struggling forlornly to prove their innocence of parenthood, and winning no credence at all,” to the director Garson Kanin. But “the sobriety of their performance,” which ensured that “the audience enjoys the joke alone,” was in fact the work of the PCA and represented one instance of the fulfillment of Joy’s strategy of “sophisticated” representational conventions that allowed for multiple audience response and interpretation.

The events of 1934 had produced a recognition in Hollywood, to match the belief established much earlier in New York, that the Production Code must be accepted as a convention of representation. Having conceded the limitations of its boundaries, in the second half of the decade producers and audiences alike could explore the possibilities as well as the constraints of the convention, much as they had done before, but with much less public hindrance. The Code’s “General Principles” were the equivalent of a formal statement of generic convention, describing the “intended” effect of plot on audiences. The art in their application lay in the detailed negotiation, an often colorful process. Jack Vizzard reports an exchange between Breen and Josef von Sternberg, who, in expounding the plot of a film he was planning, observed, “At this point, the two principals have a brief romantic interlude.” In blunt terms, Breen asked for clarification, and when Sternberg prevaricated, Breen told him to "stop the horseshit and face the issue. We can help you make a story about adultery, if you want, but not if you keep calling a good screwing match a ‘romantic interlude.’ "

Breen argued that his style of giving back “as good as I got” demonstrated his earnestness of purpose; the speed at which the PCA was required to comment on scripts (within seventy-two hours) also encouraged a stentorian tone of certainty that disguised the fact that the PCA was not empowered to disapprove scripts as such. The only point at which the PCA had the authority to reject any element of a film was in refusing to issue a seal of approval on a release print. Despite the tone with which Breen did business, everything prior to that was advisory. But under these circumstances it is not surprising that Breen often chose to express himself as forcefully as possible in the first instance when he thought that proceeding with a script would be inadvisable. Writers and producers commonly left in material that they knew would be cut in hopes of negotiating something else through, and frequently shots or sequences that the PCA initially objected to survived into the final film. By the same token, when Breen informed Jack Warner that the story of EACH DAWN IDIE “in its present form, is thoroughly and completely unacceptable from the standpoint of the Production Code, and … enormously dangerous from the standpoint of political censorship, both in this country and abroad,” he was merely opening negotiations over modifications. 60 On the relatively rare occasions when the PCA did reject a script, Breen’s tone was clear:

We have read with utter amazement the script … of your proposed production, Killers on Parole. This story is so completely in conflict with so many provisions of our Production Code that we are compelled to reject the story in toto. Any … story remotely resembling the story set forth in this script, is certain to result in a picture which we will have to reject entirely. … it hardly seems credible that you have seriously had in mind production of such a picture. (Breen to Harry Zehner, 8 August 1935, Censorship file, Universal Studios Collection, USC)

The dialogues over the Code were themselves conducted in a highly conventionalized language of absolutes, under which adjustments of nuance were engineered. Though they often took place at a high decibel level and in retrospect often seem bizarre (in order to dilute the “flavor suggestive of propaganda for radicalism” in WINTERSET, Breen suggested that RKO “substitute the word ‘lunatic,’ or some other word, for the word, ‘capitalist’”), what took place between the PCA and the studios were genuine negotiations in which concessions were made by both parties in pursuit of a common objective. Breen’s insistence that the PCA was “regarded by producers, directors, and their staffs, as participants in the processes of production” was perfectly accurate: in a typical minor instance, Wallis’s assistant, Walter MacEwen, recognized that Breen’s main aim in having Warners alter one word in Joan Blondell’s final song in GOLD DIGGERS OF 1937 was to prevent the routine being “mutilated” by censor boards.

Beyond the shared assumption that the PCA functioned as an aid, not a hindrance, to production, there were two underlying considerations that governed its working operation. “Compensating moral values,” as understood by Breen, ensured not only that “no picture shall be produced which will lower the moral standards of those who see it” but also that a calculus of retribution or coincidence would invariably be deployed to punish the guilty or declare sympathetic characters innocent. But if plots had to be morally unambiguous in their development, dialogue, and conclusion, the site of textual ambiguity shifted from narrative to the representation of incident, in a manner that required the audience to construct an event that may or may not have taken place. In matters of sex in particular, a policy of ambiguity came to preside over Hollywood’s representation. Lea Jacobs notes the case of Garbo’s CAMILLE in 1936, in whiche “it is difficult for the spectator to pinpoint with certainty when or how the heroine’s sexual transgressions occur.” In DEAD END, Francie’s past, fragments of dialogue, and a knowledge of Sidney Howard’s play suggest she has venereal disease; her cough, however, offers the alternative of tuberculosis. Textual indeterminacy became a feature of Hollywood’s representation of sexuality, emerging in complex and oblique codes that resembled neurotic symptoms or fetishes. Even under Breen, the censorship of sexuality remained an imperfect procedure of repression, with the repressed always returning, as Freud had promised, in distorted form, given a sufficiently imaginative audience. In 1935 the PCA insisted on the removal of one shot, of rain falling on a door, from THE DEVIL IS A WOMAN, because it signified prostitution. This mode of representation developed a life of its own in front of an audience willing to play a game of double entendre. The public, argued Harold J. Salemson, “has learned to supply from its own imagination the specific acts of so-called misconduct which the Production Code has made unmentionable.” Elliot Paul pithily observed, “A scene should give full play to the vices of the audience, and still have a technical out.”

The establishment of the PCA did not abate the process of negotiation over what constituted satisfactory material for films. The first serious anxiety occurred in October 1934, with MGM’s THE MERRY WIDOW . In 1935, disputes over the representation of crime resurfaced with the attempt by several studios to circumvent the prohibition on gangster films in the “G-Men” cycle, until British censors objected to the trend. The Code’s provisions on crime were modified on a number of occasions during the later 1930s to eliminate themes of kidnapping or suicide and to prohibit scenes showing law-enforcing officers dying at the hands of criminals or the display of machine guns. In 1938-1939, too, there was a revival of concern about the volume of crime films, triggered by the “boys gang” cycle following from DEAD END and ANGELS WITH DIRTY FACES by gangster retrospectives such as THE ROARING TWENTIES. Breen suggested in September 1939 that crime stories accounted for 53 percent of all films in production. On the whole, however, these questions of code enforcement were relatively minor: the studios had acquiesced in the PCA machinery and, with occasional displays of resistance, acquiesced in its decisions over details of representation, Breen’s refusal to certify some pre-1934 films for reissue, and the PCA’s advice not to undertake a project. More important, public opinion had, with few and inconsequential exceptions, recovered from its moral panic and accepted the Association’s or the Legion’s account of the industry’s rescue from the abyss in 1934.

However, disputes with independent exhibitors were intensified by the independents’ failure to gain significant concessions from the distributors during the controversy. Allied States persisted in their efforts to gain redress over block booking and cancellation privileges. After the abandonment of the NRA Code machinery in 1935, their campaign switched its focus to an attack on chain and circuit theaters, echoing the charges made by independent retailers against chain stores such as A&P and Woolworth’s. This line of attack proved more promising than their attachment to moral reform, and put anti-block-booking legislation on the congressional calendar and before most state legislatures after 1936. The Neely bill to prohibit block booking was passed by the Senate in 1938 and 1940, but held up in the House of Representatives. Although none of the federal legislation was passed, the independents’ persistent agitation against the industry’s   unfair trade practices and their increasing use of private antitrust suits against distributors played a significant part in provoking the Department of Justice investigation into the industry that resulted in the Paramount suit of 1938.

The difficulties the Association faced over film content in the late 1930s were largely the results of its successes in imposing a definition of entertainment as recreation. Protestant criticism about Catholic domination of Code machinery was concerned less with theology than with the Code’s preoccupation with sex at the expense of less individualistic concerns:

The right of the cinema to portray vested evils and entrenched privilege in their true light, and to embody the struggle for social security and economic plenty, as in Our Daily Bread, is a kind of morality concerning which the Code gives insufficient attention. (Worth M. Tippy to Quigley, 14 March 1935, MPA 1935 Production Code file)

MGM’s decision in 1936 to not to produce a film version of Sinclair Lewis’s It Can’t Happen Here after spending $200,000 on the screen rights led to accusations that the Hays Office was engaging in political censorship. But against Lewis’s assertion that “this decision raises an extremely important and critical question concerning free speech and free opinion in the United States,” Terry Ramsaye, the editor of Motion Picture Herald, suggested that it “has all of the vast significance that would attach to a decision by … Armour and Company to discontinue a brand of ham.” Free speech was not a consideration: MGM’s decision, like that to drop the “G-Men” cycle, was made on business grounds, because the industry depended “for its prosperity on being international merchandise” and was “vulnerable to, and on occasion menaced by, all the governments there are, abroad and at home.”

The industry’s studied neutrality in party politics was itself a calculation of political interest on the part of an industry heavily embroiled in the practical politics of its self-interest. Part of the political protection of those interests involved the definition of its product—entertainment—as being outside the sphere of the political. In his annual report for 1938, Hays argued that the industry could afford “the soft impeachment” that it provided nothing more than “escapist” entertainment:

Entertainment is the commodity for which the public pays at the box-office. Propaganda disguised as entertainment would be neither honest salesmanship nor honest showmanship.…The industry has resisted and must continue to resist the lure of propaganda in that sinister sense persistently urged upon it by extremist groups. (Quoted in Thorp, America at the Movies [London: Faber, 1946], p. 161)

The Association’s definition of extremism was, however, very narrow. Hays averred that “propaganda” could be recognized “only through the process of common sense,” embodied, in effect, in the PCA. As his dealings with the studios became more assertive after 1934, Breen’s correspondence made fewer distinctions between a decision under the Code, advice regarding the likely actions of state or foreign censors, and the implementation of “industry policy” in response   to pressure groups, foreign governments, and corporate interests. Industry policy was, like self-regulation, designed to prevent the movies from becoming a subject of controversy or giving offense to powerful interests. Breen defended his practice of linking this strategy with Code enforcement by arguing that the studio executives supported his “vigorous” tone in urging eliminations of any kind on producers. PCA activities were centered around protecting the industry from criticism, whether that came from censor boards, foreign governments, or pressure groups whose displeasure might lead them to call for government interference in the industry. Since he saw the PCA as representing a national consensus on political issues as well as moral ones, he denied that there was anything “sinister” in his rejecting material that characterized "a member of the United States Senate as a ‘heavy’; or…in which police officials are shown to be dishonest; or…in which lawyers, or doctors, or bankers, are indicated as a class. "

In 1936, as part of the MPPDA’s lobbying campaign to defeat federal block-booking proposals and by way of demonstrating the effectiveness of its self-regulation, the PCA prepared bound volumes of some of its decisions and circulated them among legislators. 66 Against their celebratory intent, these volumes substantiated the accusations of political liberals that “self-regulation … has degenerated into political censorship.” It Can’t Happen Here was cited as an example, as were PCA decisions over THEY WON’T FORGET and two films dealing with the Spanish Civil War, THE LAST TRAIN FROM MADRID and BLOCKADE . It was the overt anti-Communism of official Catholicism, and its attitude toward Spain in particular, that led to the strongest accusations of an excessive Catholic influence in the PCA. BLOCKADE , approved while Breen was on vacation in Europe, was attacked by the Knights of Columbus as Communist propaganda in 1938. Although Breen defended the film, he did so with little genuine conviction. In December 1937 he had proposed to contacts in the Vatican a plan to prohibit films involving “divorce and the re-marriage of divorced persons” and films in which “Communist propaganda” had been “injected.” Breen proposed using the power of the foreign market, via Catholic pressure on government censorship, to prohibit such films in enough countries as to render them unprofitable to the producers. 67 Breen was not alone in seeing that the suppression of Communist propaganda was a moral, not a political, issue. In the middle of the BLOCKADE controversy, Martin Quigley proposed an amendment to the Production Code:

No motion picture shall be produced which shall advocate or create sympathy for political theories alien to, and subversive of, American institutions, nor any picture which perverts or tends to pervert the theatre screen from its avowed purpose of entertainment to the function of political controversy. (Quigley to Hays, 11 July 1938, MPA 1939 Production Code file)

Quigley’s proposal contributed to the innuendo spread by opponents of Holly-wood unionization about a left-wing conspiracy against the industry, but failed to address the exigencies of a moment when the PCA was becoming controversial precisely because of its success in keeping controversy from the screen. Earlier in 1938, Hays had initiated an internal investigation into the extent of the jurisdiction   of the PCA conducted by his executive assistant Francis Harmon. To some extent, the investigation itself represented a reining-in of Breen’s expansionist tendencies and an assertion by the Association’s WASP leadership that Catholic influence should not overstep its boundaries. But it also dealt with what became known within the MPPDA as the “twilight zone” at the borders of the Code’s jurisdiction. By 1937, there was a growing concern over the increasing presence of advertising in films, in the form of advertising shorts, tie-ins, and product placements. Another issue of Code jurisdiction had been raised by the exhibition in affiliated theaters of two documentaries that had not been certificated by the PCA. BIRTH OF A BABY was in clear breach of the Code, and THE RIVER worried both producers and distributors that the government was entering into competition with the commercial industry.

The predominant concern, however, was with the PCA’s jurisdiction over matters of “industry policy” outside the Code and drew its impetus from the antitrust suit filed by the Department of Justice in July 1938. Implicating the PCA in the majors’ restrictive practices, it alleged that through the Code the majors exercised a practical censorship over the entire industry, restricting the production of pictures treating controversial subjects and hindering the development of innovative approaches to drama or narrative by companies that might use innovation as a way of challenging the majors’ monopoly power. Coinciding with the BLOCKADE incident, Harmon’s investigation suggested that

very great care is needed on the part of the PCA to distinguish between its administrative functions under the Code (with its penalty provisions) on the one hand, and its advisory functions (without penalties) on the other.…A reasonably clear and predictable definition of the extent of the jurisdiction of the Production Code Administration, is urgently needed. Legal problems must be met and a course charted through the maze of confusing terminology now in current use. (Harmon memo, 5 July 1938, MPA 1938 Production Code file)

He classified groups of films, including newsreels, advertising, and sponsored and government films, as properly falling outside the authority of the PCA, as did questions other than a film’s conformity “to standards of decency, morality and fairness embodied in the Production Code”:

If the film deals with a controversial subject, but is free from that which offends decency or is listed in the Code as morally objectionable, then the sole remaining question to be decided by the PCA should not be whether the film is “desirable” but whether the presentation deals fairly and honestly, and without deliberate deception, with the subject matter. (“Jurisdiction of Production Code Administration,” MPA 1938 Production Code file)

Quigley was horrified. The changes proposed, he suggested, were “an invitation to disaster.” But the federal government’s redefinition of what constituted unreasonable restraint of trade in the Paramount suit required the restriction of the PCA’s jurisdiction, in order not to embroil the Association in a violation of the antitrust laws. 69 The effect was to encourage, or at least acquiesce in, the use of politically more controversial content as a way of demonstrating that the “freedom of the screen” was not hampered by the operations of the PCA. Although PCA officials continued to voice concern over whether such subjects as CONFESSIONS OF A NAZI SPY constituted appropriate screen entertainment, they were much more circumspect in expressing their opinions. This was only indirectly in response to a change in public sentiment, if indeed such a change had taken place. It was, rather more directly, in response to immediate political pressures.

In 1930-1934 the dominant voices to which the association was attempting to adjust film content were moral conservatives, most clearly orchestrated by the Catholic church, but by 1938-1939 they had become much more marginal because more extreme. In January 1939, Quigley warned Breen that the war against “Red propaganda” on-screen would make the battle for decency seem a skirmish: “In many places in the industry, especially amongst our Semitic brethren, there seems to be growing an acceptance of the idea of radical propaganda on the screen.…[Hays] has been side-stepping and pussyfooting.” Against this kind of rhetoric and Breen’s grandiose ambitions to include all production under the Code, MPPDA Washington bureau chief Ray Norr insisted that in the face of the antitrust suit, the object now was “to limit the jurisdiction of the Motion Picture Production Code in various respects.” Quigley’s notion of an entertainment kept pure from all political utterance was becoming increasingly difficult to sustain—less in practice than as a principle for the MPPDA to adhere to in public.

The change can be measured in Hays’s rhetorical support for “pictures which dramatized present-day social conditions” in his annual report in March 1939. Margaret Thorp identified Hays’s changed tone as marking “the day the motion picture industry extended an official welcome to ideas.” However, Hays was also addressing the Association’s immediate political and legal situation. The Neely bill never came to a vote in the House, while the Paramount suit was engineered into a consent decree in November 1940. For the third time in a decade the Association’s efficient political lobbying power had headed off a major crisis faced by the industry’s oligopoly structure. On the two previous occasions, in 1929-1930 and 1933-1934, that crisis had been successfully diverted away from issues of trade practice into concerns about film content. The affairs of the late 1930s suggested that mechanisms for the control of content had become too extensive, so that it could not so effectively fulfill its function as the currency of negotiation among parties who felt that the movie business was their business. Rather, the censorship of the movies—as opposed to movie content—was in danger of becoming the issue. Hays’s rhetoric in 1939 echoed that of Sinclair Lewis in 1936, but did so according to the changed agenda of the intervening three years and was part of an Association campaign to persuade the federal government to "recognize the ‘special significance and peculiarly difficult problems of the film industry as an international leader in providing ’good and necessary recreation at a moderate cost.’ " This line of argument would allow the MPPDA to gain government acceptance as an “essential industry” during World War II.

As an influence on production, the regulation of movie content through the Production Code might best be understood as a generic pressure, comparable to the pressure of convention in a romantic comedy or a Western. Relocating the Page 71  Code and its administrators as integrated participants in Hollywood’s processes of production, rather than its philistine and picayunish villains, is in itself a contribution to a deeper understanding of how the motion-picture industry operated in practice. In viewing the Production Code as part of the much larger overall activity of the MPPDA, this account also integrates issues around the control of content within the broader concerns of the period about the movies as a cultural institution. Using this broader perspective, we can offer some revisions to the accepted history of Hollywood in the 1930s that, in particular, allow us to recontextualize questions of whether films produced in the early 1930s were “subversive” either in their intent or effect. Rather than identifying a clear-cut distinction between films produced before 1934 and those produced after, a recognition that the Code as a system of conventions was gradually developed during the early 1930s suggests that it is more appropriate to see “the Golden Age of Turbulence” as a period in which a system of representation acceptable both to the industry and to the cultural authorities to whom it deferred was negotiated. Those negotiations were clearly not concluded with the agreements of July 1934; questions of detail remained subject to constant discussion, and issues of broad principle, including the implementation of the Code itself, were as open to revision in the late 1930s as they had been earlier in the decade.

Industry trade practices, which were to a large extent the hidden agenda behind much of the activity around censorship in the decade, were frequently alleged to have an inhibiting effect on the industry’s preparedness to experiment “with less popular themes aimed at smaller, more specific audiences.” Undoubtedly, the industry’s oligopoly structure inhibited experimentation, and the Production Code contributed to that effect. But if the “insane and inane and outmoded” Code made Hollywood’s product less able “to deal more frankly with controversial themes,” the extent to which it also represented a kind of transparent conspiracy between movie and audience remains largely unexplored. The industry had a more sophisticated understanding of the preferences of its several audiences than it was given credit for. It did not produce experimental films of the kind critics like Creighton Peet or Elmer Rice demanded, not because it refused to differentiate among its audiences, but because there was an insufficiently large audience for such productions.

The Production Code did not cause the lack of experimentation in Hollywood product. Rather, it was itself a symptom of the underlying cause. The Code was a consequence of commercialism and of the particular understanding of the audience and its desires that the industry’s commercialism promoted. But to produce films that were radically different from those actually produced in Hollywood would have needed changes far more substantial than the alteration or even abolition of the Code; it would have needed a redefinition of the cultural function of entertainment, and that was a task beyond the limits of responsibility the industry set itself.

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