An Article From Slate
volokh at mail.law.ucla.edu
Fri Jun 16 18:28:53 PDT 2000
An article in the always excellent Slate just alerted me to a
fascinating case that really illustrates, at least as well as
Debs, how broad a category of speech the Espionage Act worked
to restrict. The appellate case, which has a much sketchier
description, but which is consistent with the Slate piece, is
Goldstein v. United States, 258 F. 908 (9th Cir. 1919).
You can find this article online at
or check out our full contents at http://www.slate.com.
The Unluckiest Man in Movie History
Posted Tuesday, June 13, 2000, at 7:13 a.m. PT
The forthcoming release of Mel Gibson's Revolutionary War
movie The Patriot [http://www.thepatriot.com/] occasioned an
essay by Bill Kauffman in the June 9 Wall Street Journal
arguing that no one has ever made a decent movie about the
American Revolution. What most interested Chatterbox about
Kauffman's piece was its lengthy aside about one Robert
Goldstein, a filmmaker whose silent 1917 epic about the
American Revolution, The Spirit of '76, got him thrown in
jail for undermining the war effort against Germany because
it portrayed Britain, a U.S. ally in the Great War, in an
unfavorable light. Chatterbox had not previously heard of
Goldstein, or his troubles, and felt sure that Kauffman was
exaggerating. But a trip to the Academy of Motion Picture
Arts and Sciences' Margaret Herrick Library
[http://www3.oscars.org/cmps/mhl/] confirmed what Kauffman wrote.
The library, housed inside a peach-colored Spanish building on
the outskirts of Beverly Hills, is a poignant setting to read
up on Goldstein, because Goldstein spent the last years of
his life sending a stream of letters to the newly founded
Academy begging it to help rehabilitate him. Here is a sample
I am merely a lone man suffering a great wrong for no reason
whatever, can you refuse to help me obtain justice? I have
never done the slightest thing to warrant this persecution
and prejudice against me, which denies the very right to
exist. What, in the name of common sense, can be the reason
for such wanton injustice?
Goldstein's story, as best as Chatterbox was able to glean
sifting through various documents collected by film historian
Anthony Slide in a 1993 volume called Robert Goldstein and
the Spirit of '76, is as follows. Robert Goldstein ran a
costume shop in Los Angeles that supplied the nascent
Hollywood movie industry. Among his clients was D.W.
Griffith, who invited Goldstein to invest in The Birth of a
Nation. After that film turned out to be an enormous success
on its release in 1915, Goldstein decided to make a movie
that would do for the Revolutionary War what Griffith had
done for the Civil War. Griffith, by then busy at work on
Intolerance, considered taking some supervisory role in
Goldstein's project, and apparently visited the set a few
times. Eventually, though, he backed out, apparently because
he wanted to make a Revolutionary War epic himself. (In 1924,
Griffith did so; the film, America, is reputed not to be very good.)
Goldstein spent $200,000 making his movie, which he titled The
Spirit of '76. We can't know for sure what it was like,
because the film has been lost for many years. (Robertson
Davies's 1991 novel Murther & Walking Spirits
includes a scene in which the rediscovered film is shown to
piano accompaniment at a contemporary Toronto film festival,
but it's doubtful Davies ever saw it.) Probably it was a
dog--"based on extant still photographs, it would appear an
overly melodramatic production," is how Slide puts it in an
introductory essay to Robert Goldstein and the Spirit of
'76--though apparently it was well-reviewed in the Los
Angeles Times. (Some things never change!)
According to Slide,
The story concerned George II's mistress Catherine Montour and
her efforts to become "Queen of America." The character ...
was presumably based on the historical figure Hannah
Various historical tableaux depicted Paul Revere's Ride, the
signing of the Declaration of Independence, Valley Forge,
and, most conspicuously as far as later events were
concerned, the British atrocities committed against the
American settlers during the 1778 Cherry Valley Massacre.
These atrocity scenes showed Redcoats bayoneting a Yankee baby
and carrying an unwilling Yankee maiden into a bedchamber.
(Ironically, one also showed a Hessian, i.e., German
mercenary, stabbing a saintly Quaker.)
The Spirit of '76 premiered in Chicago in May 1917, just one
month after the United States declared war on Germany
head of Chicago's police censorship board, a man with the
unforgettable name of Metallus Lucullus Cicero Funkhouser,
immediately confiscated the film--apparently at the urging of
Woodrow Wilson's Justice department--on the grounds that it
would create hostility toward Britain, America's new ally
against the Kaiser. Goldstein trimmed the offending scenes,
got federal approval for the censored version, and resumed
the Chicago run. But when the film premiered in Los Angeles a
few months later, Goldstein snuck the British atrocities back
in. The film was seized once more, and, this time, Goldstein
himself was charged in federal court with violating the
Espionage Act, a wartime law that gave U.S. officials
ridiculously broad discretion to jail troublemakers.
Goldstein was convicted on charges that he'd attempted to
cause insubordination, disloyalty, and mutiny by U.S. troops
and prospective U.S. troops, and he was sentenced to 10 years
in prison. (The judgment was later upheld by an appellate
court.) At the sentencing, Judge Benjamin F. Bledsoe told
Goldstein he should count himself lucky he hadn't committed
treason in a country lacking America's right to trial by
jury. Goldstein entered the McNeil Island Penitentiary in
1918 and stayed there three years; after the war ended,
Wilson commuted his sentence and Goldstein started writing
his letters to the Academy of Motion Picture Arts and Sciences.
In retrospect, it seems amazing that Wilson, the same
president who famously praised Griffith's Birth of a Nation
("It's like writing history with lightning")--even though it
was arguably treasonous in its nauseating glorification of
the Confederacy--jailed Goldstein, whose movie was
unassailably patriotic. Why did the feds throw the book at
Goldstein? Obviously they wanted to make an example of him;
Goldstein's defiance of the censorship order seems to have
infuriated Judge Bledsoe:
He knew, just as well as he knows we are sitting here now,
that the private presentation of this film on last Tuesday
morning was for the purpose of seeing if there was anything
objectionable in it. To fit it for such private presentation
it was gone over by him with a fine tooth comb, no doubt; but
immediately thereafter a sedulous effort was indulged in by
him to insert those things which would tend to "excite" and
to create a prejudice against Great Britain. This demands an
inquiry into the ultimate motives and purposes of this man.
Also, Goldstein's lawyers were unable to argue that his First
Amendment rights were being violated, because the Supreme
Court had ruled in 1915 that movies lacked such protection.
(That has since changed, of course.) The biggest factor,
though, was probably anti-German hysteria. Goldstein's father
(who'd founded the costume business) was a German immigrant.
The film's investors apparently included several Germans. The
same Los Angeles Times that had previously praised
Goldstein's film subsequently hinted that Goldstein was
involved in a plot to blow up U.S. munitions ships.
Goldstein was also Jewish, and anti-Semitism was still the
norm among Southern California's (and Washington's) ruling
class. After he got out of jail, Goldstein tried to
re-establish himself as a filmmaker in the Netherlands,
Switzerland, Italy, and England, which refused him a visa.
Eventually he drifted to Germany. According to Slide, the
last known communication from Goldstein was a 1935 letter to
the Academy complaining that "because I can't pay $9 to have
my American passport renewed I have been fined 75 marks--and
as I consequently can't pay that either--two weeks in jail."
Goldstein almost certainly died in the Holocaust.
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