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Volume 15, Number 3 (1991) reprinted by permission Legal Studies Forum Frank Capra's First Amendment JOHN DENVIR University of San Francisco School of Law word or image can ever capture the totality it attempts to represent.1 A Chev- ron highway map of Southern California, a novel by Raymond Chandler, and a Beach Boys' song all tell us something about Los Angeles, but the reality obviously transcends any of these "renderings" or "versions." This essay extends Goodman's point to the study of Constitutional law. Freedom of speech is also a concept which defeats the limitations of any one "version." While many lawyers think that the text of the First Amendment has some canonical priority over other "renderings" of free speech, this is more likely the product of unexamined habit than the voice of reason. In fact, the text of the First Amendment actually tells us very little about "freedom of speech" other than that Congress shall pass no law "abridging" it. Certainly Justice Holmes' dissent in Abrams v. U.S. with its famous metaphor of "a free marketplace of ideas" has played a far more significant role than the text of the Amendment itself in molding contemporary views of free speech. But Holmes' "version" of free speech does not exhaust the concept's potential. Popular arts, like film, can also provide important "versions" of free speech. This essay argues that Frank Capra's 1930s film comedy, Mr. Smith Goes to Washington challenges Holmes' conception of free speech, thereby deepening our understanding of the ideal of free speech and how it operates, or falls to operate, in American polit- ical culture. influential statement of the reigning American theory of freedom of speech. The following excerpt testifies to its persuasive power: Persecution for the expression of opinions seems to me perfectly logical. heartedly for the result, or that you doubt either your power or yourWe should recognize at the outset that Holmes' legal opinion is every bit as much a fiction as Capra's film. Despite its discursive form, Holmes mini- essay is no mere listing of "facts" or "law", but instead implies its own narrative logic. Holmes' text evokes a special evil which the First Amendment is designed to combat. Holmes' initial mention of "persecution for expression of opinions" in juxtaposition with the "lesson" of history that "time has upset many fighting faiths" reminds the reader of the specific evil of government censorship of unorthodox opinion. The image presented is one of the plight of a great solitary thinker whose unorthodox ideas are suppressed by ruling elites fearful of the effects of new ideas on the status quo; Galileo quickly comes to mind. Holmes' famous claim that the "best test of truth is the ability of the thought to get itself accepted in the competition of the market place" also implies its own narrative logic. Holmes clearly is not looking to the rough and tumble of electoral politics where Holmes the skeptic clearly recognized there was no "truth" other than the tautological one of majoritarian acceptance, but to intellectual disputes within a community which accepts the existence of received standards of objectivity and rationality.3 Holmes may well be think- ing of Darwin's eventual victory in the nineteenth century's scientific market- place of ideas. Rogat and O'Fallon remind us that it was Holmes' Darwinist faith which provided the nucleus of his free speech theory: every idea should have an opportunity to compete for acceptance.4 While Holmes does transfer these insights to democratic government ("At any rate, this is the theory of our Constitution."), it is clear that he himself had little interest or faith in democra- tic process. Thomas Grey's characterization of Holmes as a "detached skeptic whose commitment to democracy was at best ambivalent" seems, if anything, a little too charitable.5 There is good reason to believe Holmes never repudia- ted his comment as a young man: "I loathe the thick-fingered clowns we call the people ... ."6 only narrative relevant to our commitment to free speech. Frank Capra's 1938 comedy Mr. Smith Goes to Washington presents a wholly different free speech "rendering," one which differs substantially from that of Holmes. The film begins with the appointment of Jefferson Smith (James Stewart) to finish the last two months of the term of a recently deceased Senator. Smith is the leader of the "Boy Rangers" and publisher of a newspaper for kids called Boys' Stuff. He is chosen after some strong lobbying by the governor's own children ("Jeff's a swell guy"), but for reasons neither the boys nor Smith himself understand. To the professional politicians, he is appointed "honorary stooge" because of his political naivete. "Boss" Jim Taylor (Edward Arnold) is confident that Smith will vote as instructed by the State's senior Senator, Joseph Paine (Claude Rains). Smith's supposed docility is important to Taylor and Paine since they intend to slip into a pending appropriations bill funding for an unnecessary dam. The dam will be sited on land Taylor, Paine, and their cronies secretly own. In order to keep Smith occupied for a couple of months, Paine suggests that he draft a bill to promote Smith's one original idea, a boys' camp where inner city kids can get a taste of nature. Smith starts to draft the bill with the help of his legislative aide, Clarissa Saunders(Jean Arthur), a savvy political operator whose ideals have slowly been ground down by living too long in Washington. By coincidence, Smith's boys' camp is slated to go on the same land which Taylor and Paine want for their graft-ridden dam. This coincidence forces Taylor and Paine to confront Smith. They tell him to go along with the dam or they will "break" him. When the young idealist refuses to cave in and instead tries to expose the corrupt plan, the Taylor "machine" goes into action. They forge documents to show that Smith would gain financially if the boys' camp were built, and then they utilize this smear as justification for Senator Paine's motion that Smith be expelled from the Senate. At first, Smith is so stunned by Taylor's viciousness that he is unable to defend himself. But Saunders convinces him he owes it to the boys to fight back. Saunders schools him in "hard ball" politics, and, by some adroit politi- cal maneuvering, gets him the Senate "floor" where he engages in a filibuster in which he appeals to the citizens in his home state over the heads of the political bosses. This attempt to influence "public opinion" merely awakens Taylor's resourcefulness. ("I'll make public opinion.") He uses all his newspapers and money to make sure that Smith's story of graft and corruption is drowned by countercharges and appeals to patriotism. He even uses his goons to disrupt the Boy Rangers' attempt to deliver a special edition of Boys' Stuff which exposes the fraud. This "Taylor-made" public opinion crushes Smith; he is deluged by letters demanding his resignation. Yet it turns out that Smith's impassioned plea for idealism ("a little looking out for the other guy") has been heard after all. Senator Paine, in a fit of remorse, confesses all and exonerates Smith. While the film's final scene is somewhat open-ended, the audience is encouraged to think that the dam bill will be defeated, Smith will stay in the Senate, and that he and Clarissa will marry. How does Capra's version of free speech differ from Holmes' version First, it implies a wholly different sociology; Capra replaces Holmes solitary unorthodox thinker with Smith's disenfranchised citizen. Capra depicts a "twentieth-century world where impersonal technologies, systems, and institu- tions have displaced individuals."7 The audience witnesses a struggle between Jefferson Smith, bearer of our eighteenth century democratic ideals and Boss Taylor, the incarnation of the power of twentieth-century mass media tech- nologies. Capra time and again frames the idealistic Smith against a background of Washington's solid, granite monuments in contrast to fast-paced montage sequences showing Taylor's machine at work. A film, as a mass medium, must maintain a connection with its audi- ence's hopes and fears. For instance, as Andrew McKenna points out,8 the Hollywood "western" makes no attempt to credibly represent the "historical reality of late nineteenth-century America; instead it projects twentieth-century emotional concerns about the rival claims of community and individualism and an ambivalence about violence onto a mythic time and place. Similarly, Mr. Smith's plot expresses American confusion about how to incorporate the grow- ing influence of the tools of mass democracy into a culture whose ideology still celebrates a "Jeffersonian" theory of democracy in which each citizen's voice can be heard. The audience shares (with Clarissa Saunders) the need to resolve the conflict between their beleaguered hope in Smith's democratic faith and their fears of the efficacy of Boss Taylor's power. In contrast to Holmes' Galileo-like free sipeech hero, Jefferson Smith is not a solitary; nor even an original, thinker. His ideology is no more startling than the comment that "we should all look out a little for the other guy." So too, within the film's structure, his ideas on the boys' camp are in no way controversial; every character in the movie agrees that political "truth" lies with Smith's plan which is only opposed by villainous "special interests" motivated by greed. Nor are Smith's ideas suppressed in the classical sense that he is not allowed to speak. After all, Smith speaks to the Senate of the United States for over 24 hours. Smith's problem is a quintessentially twentieth-century one: speech is ineffective unless the speaker is given access to the channels of mass communication which elites control. The evil Capra's First Amendment con- fronts is not government censorship, but private power which is able to frus- trate democratic dialogue. Holmes' and Capra's versions of free speech are to some extent comple- mentary. Both speak to a very real evil which we ask the First Amendment to confront. Holmes speaks to the danger of government suppression of unor- thodox ideas; Capra tells of the danger of private control of the "public" chan- nels of communication. Capra's sensitivity to the dangers of manipulation of the mass media by monied elites in this sense complements Holmes' nineteenth- century libertarian concept of free speech. So too each "model" has its weak- nesses. Clearly, Holmes' celebration of political "truth" validated by its success in a "marketplace of ideas" loses its persuasive power as we increasingly under- stand the "market" to be rigged. On other hand, Capra's "populist" democracy mav well be vulnerable to exactly the type of intellectual intolerance which Holmes denounces.9 Still Capra's democratic vision is one which is seriously undervalued in contemporary constitutional materials which in the Rehnquist era increasingly reflect a view that government censorship of content is the only free speech evil, and even that often not so great an evil. in American democracy equal in value to that proposed by Holmes may at first glance strike the reader as outrageous. How can we equate a classic judicial opinion by America's most learned judge with an escapist product of mass culture? Yet, on reflection, the idea is not so outrageous at all. Both are "texts" which address the problem of maintaining a system of free speech in a democracy. If anything, a lot more time and effort went into the film than the legal opinion; Holmes was a notorious "quick study," proud of ability to turn out opinions over a weekend10 while Capra spent months working over his scripts. Nor can one favor Holmes' opinion because of its legal erudition. The opinion is almost completely void of traditional legal argumentation from text, history, structure, or precedent. As Judge Posner has pointed out, Holmes' famous dissents work more because of his gifted use of metaphor than because of adherence to orthodox legal methodology.11 If we evaluate the respective importance of the two versions, not from our unconscious bias against "popu- lar" genres, but on the basis of how they reflect our deepest insights about the proper role of speech in a democracy, Capra's vision makes an equal claim on our attention. The threat of private manipulation of democratic discourse, has, if anything, increased since the issue of Capra's film. Of course, we no longer see media moguls like Boss Taylor as the threat to democratic processes; they have been replaced by media consultants like Roger Ailes, who are able to orches- rate an entire presidential election campaign around racial fear (e.g. Willie Horton) and hysterical patriotism ( flag salutes). Holmes' version of free speech would congratulate Alles on his successful "marketing" techniques. To its credit, Capra's version would condemn the 1988 presidential campaign as a perversion of democratic process. viable alternative to Holmes' is the low esteem in which Capra's "political" films are now held by many contemporary critics. Phrases like "superficial" and "strikingly naive" convey the flavor of much of this criticism. I wish to attend to these criticisms, not only because they are relevant to my assessment of the value of Mr. Smith, but also because they illustrate what I believe are basic misunderstandings about how we should "read" films as resources to enrich our understanding of American Constitutional law. Frank Stricker uses the terms "superficial and even conservative" in describing Capra's later films. Stricker argues that "Capra's brand of 'individu- alism with love' was anti-organization, anti-government, and probably anti- democratic."12 I think that Striker is simply wrong if his charge is leveled at Mr. Smith,13 but his error is an interesting one in assessing the value of films for the study of Constitutional law. Mr. Smith clearly argues for the necessity of both organization and government in order that the Boss Taylors of the world might be defeated. It in no way implies that a childlike idealism is sufficient to make democnacy work. In fact, one of the main lessons which Capra has to teach is that the type of childlike innocence which Smith exemplifies at the beginning of the film is itself culpable.14 It is essential to the structure of Mr. Smith that the naive Smith be educated in the necessity of translating his ideals into effective public action. But this education must take place within the rules of the comic genre. In comedy, this "education" must be accomplished within the evolving relation- ship between the major male and female characters, Jeff and Clarissa. At first, Clarissa is appalled at the "boy ranger's" stupidity, and he in turn considers her little more than an additional stick of office furniture. His blindness is symbolized by his infatuation with Senator Paine's "glamorous" daughter, Susan. The plot progresses so as to allow the bumpkin Smith to be educated in the intricacies of organization by the savvy, but disillusioned, Clarissa Saun- ders. Saunders' cynicism in turn is redeemed by Smith's idealism. Capra uses mastery of the intricate Senate rules as a metaphor for Smith's coming of age as a political actor, a mastery he learns from Clarissa. Mr. Smith insists on the necessity of organization, but it does so in its own language, the traditional language of comedy. Legal scholars are going to have to learn that language to make full use of films as source materials. Another frequently voiced criticism of Capra's later films, like Mr. Smith, is that they don't work well as art because the happy endings are in- capable of persuasively resolving the unconsciously pessimistic premises which precede them.15 In other words, the "happy ending" of Mr. Smith is undercut by the audience's knowledge that in the "real world" Taylor would crush Smith. I don't feel this criticism is persuasive in relation to Mr. Smith. While Senator Paine's change of heart does strike the viewer as somewhat contrived, such "recognition" scenes have been a staple of comedy at least since Shakes- peare.16 The goal of comedy is not to represent the world as we know it, but as we wish it to be. However, the artistic merits of Mr. Smith are in a way beside the point in considering its value to Constitutional scholarship. It is not the credibility of the resolution which should concern us, but the credibility of the social conflicts which the ending tries to resolve. In this sense, even if Mr. Smith falls as a comedy because of the unpersuasiveness of its ending, it may have even greater value to Constitutional scholarship because it draws in such stark relief the conflict between the democratic ideal of equal voice and the institutional reality of manipulation of that ideal towards anti-democratic ends.17 A third common criticism of Capra is his excessive "sentimentality." It must be admitted that Capra's films, including Mr. Smith, are liberally laced with sentiment. In fact, Jeffrey Richards argues that "(s)entimentality is at the root of his [Capra's] vision."18 While Capra's sentimentality may be a limitation, it need not be a vice. Jeffrey Richards believes this is because Capra, like John Ford, is motivated by a "nostalgia for a vanished America." Of course the "vanished America" depic- ted by Capra and Ford never existed except in national myth. Yet it is exactly this preoccupation with myth which, as Norman Rosenberg shows,19 makes Ford's films such a valuable resource to students of the role of law in American society. Similarly, the fact that Capra makes us yearn for a democracy based on an uncorrupted dialogue between political equals which we know has never existed in America is a virtue of his films, not a vice. We now recognize that myths are important constituents of reality. Law itself may be no more than our social attempt to bring both our ideals and our institutional reality simul- taneously into focus. For this reason, Constitutional scholars may find the sentimental myth-makers, like Capra and Ford, a more valuable resource for legal scholarship than their more ironic colleagues. Yet the preoccupation of a film like Mr. Smith with ideals which it depicts in terms of the institutions of an earlier era does constitute a limitation on its value for Constitutional discourse. Mr. Smith provides little help in designing the contemporary mechanisms necessary to make those ideals effective in contemporary American life. American in the 1990s needs much more than "boys' camp" to redeem democratic promise; yet this is the only concrete reform which Jefferson Smith has to propose. While it is true that comedy has little to offer us in the way of a blue- print for social reform, even here Capra's sentimentality may have a contribu- tion to make. "Capra-Corn" reminds us of a basic fact which our sophistication tends to ignore: "a little looking out for the other guy" is the essential moral premise of American democracy.20 The Free Speech Cases," 36 Stan. L. Rev. 1349 (1984). 5. Grey, "Holmes and Legal Pragmatism," 42 Stan. L. Rev. 787, 858 (1989). 6. Id. at 858, n. 350. 7. Carney, American Vision: The Films of Frank Capra (1986). 8. See Andrew McKenna's contribution to this special issue. 9. This "dark" side to democracy is starkly drawn in Capra's next film, Meet John Doe, in which the audience starts to think that both fascist D.B. Norton (again played by Edward Arnold) and the common man Messiah John Doe (Gary Cooper) present serious threats to democratic institutions. 10. Novick, Honorable Justice 255-56 (1989) 11. See Posner, Law and Literature 281-889 (1988). 12. Stricker, "Repressing the Working Class: Individualism and the Masses in Frank Capra's Films," Labor History, 31:4, 454, at. 455 (Fall 1990). 13. One problem I face in considering criticism of Capra is the tendency of critics to lump together all Capra's later films, especially the "trilogy" Mr. Deeds Goes To Town, Mr. Smith Goes to Washington, and Meet John Doe. Mr. Smith is often treated as if it were only a prequel to the less successful Meet John Doe even though they were scripted by different screenwriters. 14. See Carney, 320-21. 15. See, for example, Mast, The Comic Mind 262-63 (1979 2d ed.) 16. See Denvir, "William Shakespeare and the Jurisprudence of Comedy," 39 Stan. L. Rev. 825 (1987); reprinted in edited form in Papke, ed., Narrative and The Legal Discourse 183-205 (1990). 17. This may be why perceptive legal critics have paid more attention to Capra's next film, Meet John Doe. I think it is clear that Doe is a less successful film on artistic merits, but presents a starker contrast between ideal and reality. See, e.g., Rosenberg, "Another History of Free Speech: The 1920s and the 1940s," 7 Law and Inequality 333, 345-48 (1989). 18. See Richards, "Frank Capra and the Cinema of Populism" in Nichols, ed., Movies and Methods (1976). 19. See Norman Rosenberg's contribution to this issue, p.215ff. 20. See Denvir, "Deep Dialogue: James Joyce's Contribution to American Constitutional Theory," 3 Card. Stud. in Law and Lit. 1 (1991). |
