Abstract
This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse relations of film to law – a semiotics of film in the high court’s jurisprudence – to decouple the notion of film with entertainment or visual truth.
This chapter discerns the many ways in which the court perceives the role of film in legal disputes and social life. It also illuminates how the court imagines and reconstitutes through its decisions the evolving forms and significances of film and film spectatorship as an interactive public for film in society. As such, this project contributes to the work on the legal construction of social life, exploring how court cases constitute social reality through their legal discourse. It also speaks to film enthusiasts and critics who understand that film is much more than entertainment and is, in practice, a conduit of information and a mechanism for lived experience. Enmeshed in the fabric of society, film is political, commercial, expressive, violent, technologically sophisticated, economically valuable, uniquely persuasive, and, as these cases demonstrate, constantly evolving.
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- 1.
Both of these books are most akin to the law-in-literature approach. Jessica Silbey, What We Do When We Do Law And Popular Culture, 27 Law & Soc. Inquiry 139, 141–42 (2002) (describing the law and literature movement).
- 2.
I deliberately reverse the nouns here. Where law-as-literature or law-as-film is a study of law as a rhetoric (be it linguistic or visual rhetoric), film-as-law is a study of filmic practices that are as pervasive and effective as legal ones in the ways in which they influence and inspire social order.
- 3.
For a much more thorough discussion of semiotic analysis and a specific area of law, see Barton Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA L. Rev. 621, 629–633 (2004).
In a given language, all the words which express neighbouring ideas help define one another’s meaning. Each of a set of synonyms like redouter (“to dread”), craindre (“to fear”), avoir peur (“to be afraid”) has its particular value only because they stand in contrast with one another. If redouter did not exist, its content would be shared out among its competitors.… So the value of any given word is determined by what other words there are in that particular area of the vocabulary.… No word has a value that can be identified independently of what else there is in the vicinity.
Beebe, 640 (quoting Ferdinand de Saussure, Course in General Linguistics, ed. Charles Bally and Albert Sechehaye in collaboration with Albert Reidlinger, trans. Roy Harris (Peru: Open Court, 1990), 114).
- 4.
See, for example, Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009) (describing how formal law – statutes and cases – constructs and constitutes notions of intimacy).
- 5.
The data set is on file with the author and is available for review upon request.
- 6.
Several other categories were created but subsequently removed from the data set because they did not relate sufficiently to the question at issue. For example, a category regarding the Federal Communications Commission (FCC) was created but not considered for this essay because they involved regulation of radio and television programming far more than “film” in any sense of the word. The cases in that category concerned interpreting FCC regulations and the extent of the FCC’s power. See FCC v. Midwest Video Corp., 440 U.S. 689 (1979); U.S. v. Midwest Video Corp., 406 U.S. 649 (1972); FCC v. Schreiber, 381 U.S. 279 (1965). A group of cases focusing on religious freedom mentioned film and film equipment but not to any extent that would illuminate the meaning of film beyond that it is communicative. See Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb’s Chapel v. Ctr. Morches Union Free Sch. Dist., 508 U.S. 384 (1993); Meek v. Pittenger, 421 U.S. 349 (1975). Other categories excluded include a miscellaneous criminal category, labor law, civil rights, tax law, jurisdiction, and federal court procedure.
- 7.
See Dennis v. U.S., 341 U.S. 494, 579 (1951) (Douglas, J., dissenting) (arguing organizing Communist Party organization protected by First Amendment); Lederman v. Bd. of Educ. of the City of N.Y., 95 N.Y.S. 2d 114 (N.Y. App. Div. 1949) (discussing importance of free speech in schools); Robert v. City of Norfolk, 188 Va. 413, 426 (1948) (stating license taxes are form of censorship that infringe on freedom of the press).
- 8.
Schenk v. U.S., 249 U.S. 47 (1919) (upholding violation of Espionage Act on the basis of distribution of anticonscription flier); Abrams v. U.S., 250 U.S. 616 (1919) (upholding violation of Espionage Act on basis of distribution of perceived pro-Bolshevik pamphlets); Near v. Minn., 283 U.S. 697 (1931) (invalidating state law that restricted freedom of press as applied to circumstances where paper critical of Chief of Police was perceived by state as malicious or scandalous); Schneider v. State, 308 U.S. 147 (1939) (invalidating state law that restricted public from distributing handbills in streets and on sidewalks); Valentine v. Chrestensen, 316 U.S. 52 (1942) (adding commercial speech to list of unprotected expression); Martins v. City of Struthers, 319 U.S. 141 (1943) (invalidating anti-leafleting law as applied to Jehovah’s Witnesses who were distributing fliers door to door); Saia v. New York, 334 U.S. 558, 562 (1948) (constraints on First Amendment freedoms should be narrowly tailored); Kunz v. New York, 340 U.S. 290, 294 (1951) (licensing systems must have standards; otherwise, they are overbroad and unconstitutional); Beauharnais v. Ill., 343 U.S. 250 (1952) (upholding by 5–4 decision state libel law as applied to hate speech); Roth v. U.S., 354 U.S. 476 (1957) (established obscenity as unprotected speech).
- 9.
Kunz v. New York, 340 U.S. 290, 294 (1951) (declaring licensing systems must have standards or are otherwise unconstitutionally overbroad); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931) (explaining different effect of restraints preventing publication versus effect of punishment following publication of illegal or improper statements and the court’s preference for the latter); Gitlow v. New York, 268 U.S. 652, 666 (1925) (holding that the Due Process Clause of the 14 Amendment protects freedom of expression against infringement by states).
- 10.
“Despite Chrestensen and Breard, … [t]he mere presence of a commercial motive, for example, was not deemed dispositive, as evidence by Court’s continued protection of books, movies, newspapers, and other forms of expression produced and sold for profit.”
- 11.
I am indebted to Peter DeCherney and Simon Stern for several of the ideas contained in this section. Any errors are my own.
- 12.
This is precisely what the court says about film evidence that is relevant to the case but not the subject of the case itself. See Silbey, Judges as Film Critics: New Approaches to Filmic Evidence.
- 13.
Citing to The Motion Picture Industry, vol. 254 of Annals of the American Academy of Political and Social Science (1947) 7–9, 140, 155, 157.
- 14.
Quoting Alexander Bickel, Dissenting and Concurring Opinions, 22 The Public Interest 25–26 (1971).
- 15.
Quoting Olmstead v. U.S., 277 US 438, 478 (1928) (Brandeis, J. dissenting).
- 16.
The court goes on to say that the Constitution’s “guarantee is not confined to the expression of ideas that are conventional or shared by a majority.… And in the realm of ideas it protects expression which is eloquent no less than which it is unconvincing. Nor is it relevant that … the particular films before the Court are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this court to draw, if indeed such a line can be drawn at all. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Ga., 566.
This does not apply to cases of the possession of child pornography where the film is again seen as an “act” rather than “expression” because of what it has done to the child. U.S. v. Williams, 553 U.S. 285 (2008); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
- 17.
Where previously film acts were akin to circus entertainment, here pornographic film is akin to sex acts.
- 18.
As one Supreme Court justice has said recently about the believability of a film of a car chase, “I see with my eyes … what happened….” Transcript of Oral Argument at 45, Scott v. Harris, 550 U.S. 372 (2007) (No. 05–1631) [hereinafter Transcript of Oral Argument].
- 19.
This is the essence of much intellectual property – there is a tangible form (a book) and the intangible aspect (the expression). Law protects the two components differently, the former under real property statutes and the latter under intellectual property statutes. See 17 U.S.C. § 109 (2006) (first sale doctrine in copyright law drawing the distinction between selling a copy and thereby losing control over it, but retaining ownership rights over the original expression and preventing others from reproducing it).
- 20.
See supra note 19 and the discussion infra of intellectual property cases in the main text.
- 21.
Citing Marcus v. Search Warrant, 367 U.S. 717, 724.
- 22.
Heller v. N.Y., 413 U.S. 483 (1973). “Seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particular where … there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Lo-Ji Sales, Inc. v. N.Y., 442 U.S. 319, 328 (1979) (citations omitted).
- 23.
See also Wilson v. Lane, 526 U.S. 603 (1999) (determining that media accompanying a search is unlawful intrusion in suspect’s Fourth Amendment rights).
- 24.
But see Silbey, Judges as Film Critics: New Approaches to Filmic Evidence.
- 25.
Whether film is in fact exceptional as a representational medium is of course one of the questions this essay and others I have published explore. Film is not uniquely truthful or transparent, despite its treatment as such in law. And it is certainly not necessarily the “best evidence” of what happened. See Jessica Silbey, Cross-Examining Film (criticizing Justice Scalia’s interpretation of the film in Scott v. Harris).
- 26.
See Jessica Silbey, Cross-Examining Film (criticizing Justice Scalia’s interpretation of the film in the 2007 case Scott v. Harris). See also Dan M. Kahan et al. (2009).
- 27.
Kelly v. Cal., 129 S.Ct. 567 (2008) (J. Breyer, dissenting from denial of certiorari). Yamashita v. Styer, 327 U.S. 1, 54 n. 20 (1946) (J. Murphy, dissenting partially on grounds of prejudicial documentary film purporting to show the war crimes at issue in the case).
- 28.
See supra discussions in main text, particularly those assessing allegedly obscene films to determine whether they conflict with contemporary community standards. See also Miller v. Cal., 413 U.S. 15, 18–30 (1973) (discussing the evolution of the standards that the court employs when reviewing obscenity cases).
- 29.
See Scott v. Harris, 550 U.S. 372 (2007). The video is available at http://www.supremecourt.gov/media/media.aspx
- 30.
This was not the first time the court was taken in by film despite other evidence at trial. See Cox v. State of La., 379 U.S. 536, 547 (1965).
- 31.
Transcript of Oral Argument, 45. Justice Stevens was the lone dissenter in the 8–1 decision and the only Justice who recognized that the film was not the whole story. Scott v. Harris, 550 U.S. at 389–97 (Stevens, J., dissenting).
- 32.
See, for example, U.S. v. Paramount Pictures, 334 U.S. 131 (1948); Shine Chain Theaters v. U.S., 334 U.S. 110 (1948).
- 33.
See also U.S. v. Shubert, 348 U.S. 222, 227 (1955).
- 34.
Eldred v. Ashcroft, 537 U.S. 186 (2002) (Appendix to Opinion of Breyer, J. at B) (discussing how films account for dominant share of export revenues earned by new copyrighted works of potential lasting commercial value); Mills Music v. Snyder, 469 U.S. 153, 176–177 (1985); Sony Corp of America v. Univ. City Studios, 464 U.S. 417 (1984); Teleprompter Corp. v. Columbia Broad. Sys., 415 U.S. 394 (1974); Fortnightly Corp. v. United Artists Television, 392 U.S. 390 (1968); Educ. Films Corp. of America v. Ward, 282 U.S. 379 (1931); Fox Film Corp. v. Knowles, 261 U.S. 326 (1923); Motion Picture Patents Co. v. Universal Film Mfg., 243 U.S. 502 (1917).
- 35.
See Eldred v. Ashcroft, 239–40 (Stevens, J. dissenting) (discussing the interest in preserving perishable copies of old copyrighted films).
- 36.
Steward v. Abend, 495 U.S. 207 (1990) (evaluating whether the blockbuster Orson Wells film Rear Window is an authorized derivative work of the short story “It Had to Be Murder”); Mills Music v. Snyder, 469 U.S. 153, 176–177 (1985).
- 37.
U.S. v. Stevens, 130 S.Ct. 1577 (2010) (invalidating as overbroad a criminal statute that prohibits the depiction of animal cruelty, which would include films of animal sacrifice, mutilation, and maiming); Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876 (2010) (invalidating portions of campaign finance law that banned certain corporate-sponsored speech within several weeks of an election).
- 38.
The court mentions these changes but does not discuss whether they merit a new application of First Amendment principles. See Citizens United v. Fed. Election Comm’n, 917. Indeed, the court lumps all speech together as undifferentiated. This seems odd given how in other contexts film’s exceptionalism sets it apart.
- 39.
This recalls Lenin’s prediction that “of all the arts, for us the cinema is the most important.” Jay Leyda,Kino: A History of the Russian and Soviet Film (Princeton: Princeton University Press, 1973), 161.
References
Austin, Regina. 2006. The next “New Wave”: Law-genre documentaries, lawyering in support of the creative process, and visual legal advocacy. Fordham Intellectual Property Media & Entertainment Law Journal 16: 809–868.
Beebe, Barton. 2004. The semiotic analysis of trademark law. UCLA Law Review 51: 621, 629–633.
Buchanan, Ruth, Rebecca Johnson. 2008. Strange encounters: Exploring law and film in the affective register. Law, Politics & Society, 46: 33, 33–34. See also Elizabeth Carolyn Miller. 2008. Framed: The new woman criminal in British culture at the Fin de Siècle. Ann Arbor: University of Michigan Press.
Chase, Anthony. 2002. Movies on trial: The legal system on the silver screen. New York: The New Press.
Chase, Anthony. 1996. Legal reelism: Film as legal texts, ed. John Denvir. Urbana: University of Illinois Press.
Johnson, Rebecca. 2000. Leaving normal: Constructing the family at the movies in law. In New perspectives on deviance: The construction of deviance in everyday life, ed. Lori G. Beaman, 163–179. Scarborough: Prentice-Hall.
Kahan, Dan M., David A. Hoffman, and Donald Braman. 2009. Whose eyes are you going to believe: Scott v. Harris and the perils of cognitive illiberalism. Harvard Law Review 122: 837–906.
Kamir, Orit. 2006. Framed: Women in law and film. Durham: Duke University Press.
Leyda, Jay. 1973. Kino: A history of the Russian and Soviet film, 161. Princeton: Princeton University Press.
Lucia, Cynthia. 2005. Framing female lawyers: Women on trial in film. Austin: University of Texas Press.
Mnookin, Jennifer. 1998. The image of truth: Photographic evidence and the power of analogy. Yale Journal Law & Humanities 10: 1.
Murray, Melissa. 2009. Strange bedfellows: Criminal Law, family law, and the legal construction of intimate life. Iowa Law Review 94: 1253–1314.
Schauer, Fred. 1979. Speech and “Speech” – Obscenity and “Obscenity”: An exercise in the interpretation of constitutional language. Georgetown Law Journal 67: 899, 906, 922, 923, 926.
Sherwin, Richard. 2011. The visual persuasion project at New York Law School. http://www.nyls.edu/centers/projects/visual_persuasion. Accessed 28 Jan 2011.
Silbey, Jessica. 2001. Patterns of courtroom justice. Journal of Law Society 28: 97–116.
Silbey, Jessica. 2002. What we do when we do law and popular culture. Law & Society Inquiry 27: 139, 141–142.
Silbey, Jessica. 2004. Judges as film critics: New approaches to filmic evidence. University of Michigan Journal of Law Reform 37: 493–572.
Silbey, Jessica. 2005. Filmmaking in the precinct house and the genre of documentary film. Columbia Journal of Law & the Arts 29: 107–108.
Silbey, Jessica. 2007a. A history of representations of justice: Coincident preoccupations of law and film. In Representations of justice, ed. Masson Antoine and O’Connor Kevin, 131–152. New York: P.I.E. – Peter Lang.
Silbey, Jessica. 2007b. Criminal performances: Film, autobiography, and confession. New Mexico Law Review 37: 189–243.
Silbey, Jessica. 2008. Cross-examining film. University Maryland Law Journal Race, Religion Gender & Class 8: 17.
Stone, Geoffrey, et al. 1996. Constitutional law, 3rd ed, 1226–1227. Gaithersburg: Aspen.
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Silbey, J., Slack, M.H. (2014). The Semiotics of Film in US Supreme Court Cases. In: Wagner, A., Sherwin, R. (eds) Law, Culture and Visual Studies. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9322-6_9
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