Record #1196

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Mr Will H. Hays, President, MPPDA
Joseph I. Breen
Reel 12
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Production Code
EDITORIAL COMMENT: Draft letters to studios on scripts raising industry policy issues are in 1939 file at 12-2067 and 12-2068.

Hays asks Breen to separate the procedure of governing Code enforcement, which is enforceable, and advice on industry policy and possible trouble with "political censor boards," which is not. These matters should be dealt with in different letters, and non-Code matters should elicit advice and warnings, but not requests for deletions. Breen is upset and resists the change. Hays does not tell him that the whole thing was thought up by Harmon, but these letters indicate the level of disagreement between Breen and the New York office over the practical implementation of the Production Code in the light of concerns over issues to do with independent production, the Legion of Decency and the Department of Justice suit.


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16 March 1938 Hays to Breen re separating Code requirements from advice: "... As I suggested on the telephone, I am anxious that we preserve both the authority and potency of these separate functions, and believe that recognition of the distinction best promotes those ends. Some of the policy questions are such that in their discussion and determination they very well may be best separated entirely from the Opinions of the PCA on Code matters where the PCA operates with such authority and precision. The advisory nature of the PCA in policy matters of course is immeasurable. "There is a great interest in this subject matter by some members of the staff here who do not have any Code responsibilities, and it has all been a matter of a good deal of discussion at staff meetings. This interest has all been accentuated by two or three recent rather vital policy questions with which you are familiar. As I told you over the telephone, personally I think it would be good if we had the Code questions raised in one letter and the policy worry indicated in another letter. "I took a bound volume of recent Production Code Administration Opinions when I went to Washington last Sunday for the purpose of showing certain people just how much has been accomplished under the Code, and I had an opportunity to go over a great number of them again. This brought to mind once more that point which I have often felt relative to the possibility of eliminating the frequent reference to 'political censor boards' whose good opinion we appreciate but to which our accountability does not primarily run. I realize the value of getting to the producer our knowledge of the probable eliminations for censor boards even though they are not Code violations."Hays encloses a MEMORANDUM IN RE: ADVISORY FUNCTION OF Production Code Administration: "For the purpose of distinguishing between the function of the Production Code Administration in administering the Code and its advisory function in connection with policy, official censorship, and other questions, the following procedure is suggested: "1. Production Code. The value of the administration of the provisions of the Production Code to our whole structure of self-regulation is immeasurable, and nothing in this memorandum is designed in any way to weaken the enforcement of the Production Code by the Production Code Administration as now administered. "When the language of the Code, or the Association's special regulations re Crime in Motion Pictures and Opinions of the Production Code Administration establishing precedents thereunder, cover a situation, that fact should be stated as such. The authority of the Code, its soundness, and the recognition of its value are all such as to render unnecessary, in my opinion, any reference to political censorship reaction in those cases in which Code violations occur. This would make it unnecessary to add in such cases as a reason for the deletion of details of crime the phrase 'to avoid political censor cuts.' If, under the Code, it is objectionable, that is enough. "2. Censorship. When no Code violation is involved, but our experience indicates the certainty, probability, or possibility of deletions by censor boards, would it not be good so to advise the producer without recommending or requesting that the change be made? It occurs to me that careful adherence to this change in the phraseology would place the responsibility upon the censor boards rather than upon us in these cases where no Code violation is involved. "3. Policy Matters. Troublesome questions of industry policy arise in connection with story treatments and scripts. Unless a specific Code violation is involved, the Production Code Administration need not make specific requests, thereby committing the Association on matters of policy. It is perfectly proper and most important that the Production Code Administration should raise policy questions with the producer. "When a story treatment or a script or a finished picture contains both Code and policy questions, it will help to clarify our position if all matters under the Code are dealt with in one letter, and the advice on the policy matter put into a separate communication with two carbons sent immediately to the President of the Association (one for our files here and the other for prompt transmittal to the president of the company involved). It is suggested that the policy letter refer to the fact that Code matters are being dealt with separately but that the Code letter contain no reference to the letter on policy. "21 March 1938 Harmon [?] for Hays [?] to Breen, after Breen's initial response? "You are absolutely right in emphasizing the importance of preserving both the authority and potency of these separate functions. Certainly we must not do anything to destroy or weaken the effect of this vitally important phase of the Association's total program. If, however, we can further refine our procedures so as to maintain the full integrity of the Production Code Administration work and at the same time give our critics the least possible ammunition with which to attack us, I think your memorandum indicates that you would have no objection. Such were the purposes I had in mind in requesting your frank comments upon the first draft of the memorandum to you March 16. "POLICY MATTERS "The substantive distinction between Code matters and policy questions is clear to us both, as our respective memos indicate. The physical separation of the two sets of problems in different letters is simply a procedural recognition of this. I agree with you as to the desirability of using persuasion, and appeals to the industry's best interests, in all cases. In dealing with policy matters not covered by Code provisions, we must resort to persuasion because authority does not go that far. Much of our success has come from appealing to the spirit rather than to the letter of the law and one of your own most significant contributions to the entire enterprise would be lost if you should desist from raising important policy questions from day to day and vigorously outlining reasons why a suggested course should or should not be followed. ... CENSORSHIP MATTERS "The suggestion advanced in this connection relates to a change in phraseology rather than a change in function. The attached memo indicates that at the present time, in a majority of instances, the likelihood of censorship eliminations is set forth without a specific request on the part of the Production Code Administration that the item in question be deleted. Uniform adherence to this practice therefore should neither work a hardship in dictating the letters nor impair the value of this service. I agree with you that there are times when it is important to emphasize the probability of censor cuts. Even in these cases, however, I wonder whether we are well advised to use phraseology which our critics could quote for the purpose of exaggerating the importance of political censor boards. A few instances of this type are also listed in the attached memorandum to illustrate the point in question. "Now and then I see paragraphs in Production Code Administration letters where both the Code and the probability of censorship cuts are cited as grounds for changing a script. Now that the Production Code is generally accepted and its language better understood, I believe we should rely solely upon its provisions whenever possible. For example, if censor boards generally are likely to cut details of crime or words and phrases bordering on the vulgar, would it not be better practice to request appropriate deletions under the pertinent Code provisions in these borderline cases, than to use the 'danger' of censorship as the stated reason for suggesting the change? "... While at first glance, some of these suggestions doubtless appear trivial, the cumulative effect of even slight changes in phraseology or in emphasis is worth noting. A hostile critic might be able to take bound volumes of our Production Code Administration opinions and magnify either the censorship or the policy references out of all proportion to their relative importance. The administration of the Production Code constitutes such a splendid achievement and furnishes such a fine demonstration of self-regulation at its best, that I am naturally anxious, as you are, for us all to put our heads together occasionally to discover, if possible, ways and means for further refinements which are practicable. Perhaps tentative acceptance of these suggestions for a month or so might enable us to judge their practicability without unduly disturbing smoothness of operation or lessening the effectiveness of the work. "26 March 1938 Breen to Hays: "... It is almost certain that for us merely to state that lines, or action, in a script or picture, are likely to be deleted by political censor boards, 'without recommending or requesting that the change be made,' will result, we feel, in a great increase in the number of deletions made by political censor boards throughout the world. True, as suggested in your memorandum, the 'responsibility' for these eliminations will thus be placed upon political censor boards - where, incidentally, the responsibility now rests for censorship eliminations. The studio heads, hereabouts, however, won't care very much about where the responsibility rests, it the pictures are badly mutilated after they leave Hollywood. "The studios have come, in recent years, to look to us for sound guidance on matters of political censorship - we are looked upon as experts in such matters -- and our record in this regard, as I think you know, has not been unimpressive. If, in our letters to the studios, based upon our study of the script, we fail to emphasize the danger of censorship eliminations, the picture will suffer as a result. We fear that in many cases, it will not be sufficiently effective merely to state that such and such an action is likely to be deleted. When, and if, such action is deleted, and the picture has to be sent back to Hollywood for readjustment, the studios are bound to raise a howl. In such a case, I fear that the studio Executives will not be impressed by our reminding them that we informed the producer that there was danger that the material would be deleted. "In our dealings with the studios during the past four years, we have been trying to approach our problem in the spirit of helpfulness. We like to think that we are employed by the producers to render a service, rather than to arbitrarily dogmatize either about the Code, or political censorship. This formula, and this approach, seem to have worked out fairly well. ... The studio Executives, I am certain, will want no change whatever in the present procedure. They will want us to urge upon their producers, as vigorously as possible, the elimination of material, which is likely to be deleted pretty generally by censor boards, irrespective of how the letters, carrying these recommendations, may read to people not concerned with the problem of making motion pictures. "With regard to the 'troublesome questions of industry policy' which occasionally arise: Before proceeding to set up this arrangement, we again urge and recommend that you think well about it. Of course, if you still feel this procedure to be the right and proper procedure, well and good. In such a case, however, we should like to have from you definite and specific instructions as to the procedures to be followed after the policy letter has been written, and the question 'raised.' It is almost certain that, with the receipt of this letter, the head of the studio, or the producer, will want to discuss the policy question with us. I take it, however, that it is your thought that we should not enter into any such discussion, lest, possibly, in doing so, we might 'commit the Association in these matters.' "... You will have in mind that, under our present procedure, the Production Code Administration deals with minor questions of policy as these come up. Questions of policy, which are new questions, are referred to you. "The kind of policy matters which we classify as minor, and which we have been trying to deal with in our general examination of the script, are such questions as those which might characterize a member of the United States Senate as a 'heavy'; or questions in which police officials are shown to be dishonest; or those in which lawyers, or doctors, or bankers, are indicted as a class. Those so-called new questions, which it has been our practice to refer to you, are those which were suggested by such stories as Zola, The Road Back, Three Comrades, True Confession, Rothschild, etc. Also memo analyzing Production Code Administration activity March 1-10, 1938, and suggested letter referring to industry policy, drafted by Breen 7 July 1938.

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