burstyn v wilson 1952
Footnote 40 U.S. 359, 368 On appeal to this Court, plaintiff in its brief abandoned this claim and contended merely that the statute in question violated the freedom of speech and publication guaranteed by the Constitution of Ohio. Footnote 11 2015-2020 © Civil Liberties in the United States. . Id., Jan. 10, 1951, p. 22, col. 6; Jan. 20, 1951, p. 10, cols. 215 F. 138, 141 (D.C. N. D. Ohio 1914). Footnote 3 340 (1936); De Jonge v. Oregon, v. NC Rate Bur. ." 269 Of the nature of sacrilege; as, sacrilegious deeds. . . 303 N. Y. Id., Dec. 29, 1950, p. 36, col. 3; Jan. 8, 1951, p. 1, col. 2; Jan. 9, 1951, p. 34, col. 7; Jan. 10, 1951, p. 22, col. 6; Jan. 15, 1951, p. 23, col. 3. ] Cf. The Paris Theatre on two different evenings was emptied on threat of bombing. [ See Inglis, Freedom of the Movies, 68. U.S. 444, 452 [ 53 The Court there recounted the history which indicates that a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication, although it was carefully pointed out that the liberty of the press is not limited to that protection. 278 App. ", [ ", Alton Cook, N. Y. World-Telegram, Dec. 13, 1950, p. 50, cols. 3-4. Times, Dec. 13, 1950, p. 50, cols. How to create a webinar that resonates with remote audiences; Dec. 30, 2020. Times, Dec. 31, 1950, p. 23, col. 4. England's experience with that treacherous word should give us pause, apart from our 242, 258, 101 N. E. 2d 665, 672. U.S. 495, 521] In the case of most countries and times where the concept of sacrilege has been of importance, there has existed an established church or a state religion. 163 (1939); In the Matter of "Polygamy," 60 N. Y. St. Dept. This film does not seem to me to be of a character that the First Amendment permits a state to exclude from public view. c Alienation to laymen, or to common purposes, of what has been appropriated or consecrated to religious persons or uses." [ To be irreverent to sacred persons or things." That statute makes it unlawful "to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel [with specified exceptions not relevant here], unless there is at the time in full force and effect a valid license or permit therefor of the education department . [ . (1948): It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression. We are asked to decide this case by choosing between two mutually exclusive alternatives: that motion pictures may be subjected to unrestricted censorship, or that they Noah Webster first published his American Dictionary in 1828. The 1952 decision of Joseph Burstyn, Inc. v. Wilson concerned a New York statute that allowed the state department of education to forbid the exhibition of any ‘‘film or a part thereof ?’’ that was ‘‘obscene, indecent, immoral, inhuman, sacrilegious, or . Id., at 258, 101 N. E. 2d at 672. ] Bailey, An Universal Etymological English Dictionary (London, 1742), "Sacrilege. It was further stated that "the protection even as to previous restraint is not absolutely unlimited. In February 1951, the regents determined that The Miracle was ‘‘sacrilegious,’’ and on that ground ordered the rescission of Burstyn’s license to exhibit the film. told that "already in Cicero's time it had grown to include in popular speech any insult or injury to [sacred things]." Footnote 44 [343 ] Reg. U.S. 495, 527] U.S. 147, 160 [ -572 (1942), Mr. Justice Murphy stated for a unanimous Court: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. ." Footnote 51 Com'r of Ins. -719 (1931); see also Lovell v. Griffin, Examination of successive editions of the Encyclopaedia Britannica over nearly two centuries up to the present day gives no more help than the dictionaries. 205 U.S. 230 To attack the mass was once blasphemous; to perform it became so. the picture has an unpleasant preoccupation with filth and squalor . Blog. ] See the following statement by Mr. Justice Roberts, speaking for a unanimous Court in Cantwell v. Connecticut, ] The motion picture division had previously issued a license for exhibition of "The Miracle" without English subtitles, but the film was never shown under that license. It is true that, at times in the past, English law has 10 A smaller number of counterpickets appeared on several days. 707. Times, April 27, 1952, 2, p. 5, col. 7. As was said in Winters v. New York, [343 ] "The Miracle" was passed by customs. 15 Wagnalls' definition uses "sacrilege" in its historically restricted meaning, which was not, and could hardly have been, the basis for condemning "The Miracle." (1925); Stromberg v. California, Bureau of the Census, Religious Bodies: 1936, Vol. And if we cannot tell, how are those to be governed by the statute to tell? media of communication of ideas. Arguments by the parties and in briefs amici invite us to pursue to their farthest reach the problems in which this case is involved. -452 (1938); Grosjean v. American Press Co., Altogether it leaves a very bad taste in one's mouth. 1. Gelling v. Texas, 343 U.S. 960 (1952) Gelling v. Texas. Footnote 4 ] See, e. g., Rex v. Boulter, 72 J. P. 188 (1908); Bowman v. Secular Society, Ltd., 1917. 336 The industry's self-censorship has already had a distorting influence on the portrayal of historical figures. Times, Feb. 11, 1951, 2, p. 4, col. 5. Footnote 55 This cannot be said of "sacrilegious." ] See United States v. Paramount Pictures, Inc., 236 Note, 507-508. . (1948): "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." (1938). Protestant clergymen, representing . It would startle Madison and Jefferson and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of "The Miracle" from windows facing St. Patrick's Cathedral in the forenoon of Easter Sunday, 39 Ephraim S. London argued the cause and filed a brief for appellant. Footnote 20 Footnote 50 ] See Lovell v. Griffin, PER CURIAM. 28-29: "pictorially the picture is a gem, with its sensitive evocation of a small Italian town and the surrounding countryside near Salerno . 1, Upon the failure of the License Commissioner's effort to cut off showings of "The Miracle," the controversy took a new turn. ", [ 43 Repeated in the 1913, 1922, 1924, 1928, 1933 printings, among others. Law (1) The larceny of consecrated things from a church; the breaking into a church with intent to commit a felony, or breaking out after a felony. Footnote 13 Thereafter, on January 19, 1951, the Regents directed appellant to show cause, at a hearing to be held on January 30, why its license to show "The Miracle" should not be rescinded on that ground. [343 [ See 23 Hen. 315 "Motion Pictures and the First Amendment," 60 Yale L. J. Footnote 41 Appellant brought the present action in the New York courts to review the determination of the Regents. 303 N.Y. 242, 101 N.E.2d 665, reversed. Div. Sacrilege against sacred things: to treat with irreverence, contempt, or obscenity the sacraments (particularly the Eucharist), Holy Scriptures, relies, sacred images, etc., to steal sacred things, or profane things from sacred places; to commit simony; or to steal, confiscate, or damage wilfully ecclesiastical property. . Prohibition through words that fail to convey what is permitted and what is prohibited for want of appropriate objective standards, offends Due Process in two ways. At no time up to the present has English law known "sacrilege" to be used in any wider sense than the physical injury to church property. U.S. 454, 462 U.S. 495, 531] IV, c. 29, X, which the marginal note summarized as "Sacrilege, when capital," read: "if any Person shall break and enter any Church or Chapel, and steal therein any Chattel . 2. . [ 522) Argued: April 24, 1952. See also Encyclopaedia of the Social Sciences, "Blasphemy"; Encyclopaedia of Religion and Ethics, "Blasphemy"; Nokes, A History of the Crime of Blasphemy (1928). 297 It is naturally much more general and accounted more dreadful in those primitive religions in Joseph Burstyn, Inc. v. Wilson (No. The New York Court of Appeals did not give the term this calculable content. The New York Appellate Division sustained revocation of a license for the showing of a motion picture under 122 of the New York Education Law on the ground that it was "sacrilegious." ", 3d ed., 1797: "Sacrilege" - "the crime of profaning sacred things, or things devoted to God; or of alienating to laymen, for common purposes, what was given to religious persons and pious uses.". [ 27 To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm'n, supra, is out of harmony with the views here set forth, we no longer adhere to it. The modern Codex Juris Canonici does not give any definition of "sacrilege," but merely says it "shall be punished by the Ordinary in proportion to the gravity of the fault, without prejudice to the penalties established by law . 590, 688, 19 U.S.C. U.S. 697, 716 [343 Footnote 34 U.S. 230 This principle is especially to be observed when what is so vague seeks to fetter the mind and put within unascertainable bounds the varieties of religious experience. Associate Justice Stanley Reed (1884-1980) who sat on the Supreme Court for the Miracle case and foresaw that the Court was setting itself up to decide case by case, and film by film, what standards were permissible in censoring decisions. . ] Id., Jan. 13, 1951, p. 10, col. 6; translation by Chworowsky, "The Cardinal: Critic and Censor," The Churchman, Feb. 1, 1951, p. 7, col. 2. 340 14 There doubtless were comments on "The Miracle" in other diocesan papers which circulate in various parts of the country, but which are not on file in the Library of Congress or the library of the Catholic University of America. -370 (1931). 12. The Miracle proved quite controversial, and hundreds of letters, telegrams, and post cards, both protesting and supporting the film persuaded the New York State Board of Regents to review the film. These invidious reflections upon religious susceptibilities were not covered under sacrilege as they might be under the Court of Appeals' opinion. Which is "sacrilegious"? 3-4 (reprinted from Motion Picture Herald, Jan. 6, 1951); The [Boston] Pilot, Jan. 6, 1951, p. 4. . First, it does not sufficiently apprise those bent on obedience of law of what may reasonably be foreseen to be found illicit by the law-enforcing authority, whether court or jury or administrative agency. . vastly compassionate comprehension of the suffering and the triumph of birth.". . Well-equipped law libraries are not niggardly in their reflection of "the sense and experience of men," but we must search elsewhere for any which gives to "sacrilege" its meaning. [343 [ It is hardly necessary to comment that the limits of this definition remain too uncertain to justify constraining the creative efforts of the imagination by fear of pains and penalties imposed by a necessarily subjective censorship. Provisions of the New York Education Law which forbid the commercial showing of any motion picture film without a license and authorize denial of a license on a censor's conclusion that a film is "sacrilegious," held void as a prior restraint on freedom of speech and of the press under the First Amendment, made applicable to the states by the Fourteenth Amendment. ] That such offensive exploitation of modern means of publicity is not a fanciful hypothesis, see N. Y. [ But we are [343 In affirming the decree of the District Court denying injunctive relief, this Court stated: It cannot be doubted that motion pictures are a significant medium for the communication of ideas. . behavior.’’ Burstyn continues to influence contemporary First Amendment jurisprudence. . (1931). . To paraphrase Doctor Johnson, if nothing may be shown but what licensors may have previously approved, power, the yea-or-nay-saying by officials, becomes the standard of the permissible. ] Joseph Burstyn, Inc. v. McCaffrey, 198 Misc. ] N. Y. In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no In this estimate some Catholic laymen concurred. Minnesota, 283 U.S. 697 , in the case of newspapers and by Burstyn v. Wilson, 343 U.S. 495 , in the case of motion pictures, is present here in flagrant form. Barclay's said it is "the crime of taking any thing dedicated to divine worship, or profaning any thing sacred," where "to profane" is defined "to apply any thing sacred to common uses. [ Footnote 10 ] E. g., Feiner v. New York, the existence there of an established church gives more definite contours to the crime in England than the term "sacrilegious" can possibly have in this country. . IV) 1462; and importation of any obscene "print" or "picture" is barred. 522 Argued: April 24, 1952 Decided: May 26, 1952 Anyone doubting the dangerous uncertainty of the New York definition, which makes "sacrilege" overlap these other "offenses against religion," need only read Blackstone's account of the broad and varying content given each of these offenses. On the basis of such a portmanteau word as "sacrilegious," the judiciary has no standards with which to judge the validity of administrative action which necessarily involves, at least in large measure, subjective determinations. [343 For completeness' sake, later incidents should be noted. Sacrilege against sacred places: to violate the immunity of churches and other sacred places "as far as this is still in force"; to commit a crime such as homicide, suicide, bloody attack there; to break by sexual act a vow of chastity there; to bury an infidel, heretic, or excommunicate in churches or cemeteries canonically established; or to put the sacred place to a profane use, as a secular courtroom, public market, banquet hall, stable, etc. (1936); Thomas v. Collins, Concurring Opinion of Justice Jackson June 9, 1952. ] Il Popolo, Nov. 3, 1948, p. 2, col. 9, translated by Camille M. Cianfarra, N. Y. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art - for the films are derived largely from literature. but the broader meaning is more indefinite, not less. [343 U.S. 495, 522] Laws, 1947, Education Law, 101; see also N. Y. 50 See Bailey, Universal Etymological English Dictionary (London, 1730), "Sacrilegious" - "of, pertaining to, or guilty of Sacrilege"; Funk & Wagnalls' New Standard Dictionary (1937), "Sacrilegious" - "Having committed or being ready to commit sacrilege. The statute was assailed in part as an unconstitutional abridgment of the freedom of the press guaranteed by the First and Fourteenth Amendments. ] L'Osservatore Romano, Aug. 25, 1948, p. 2, col. 1, translated in part in The Commonweal, Mar. . Joseph Burstyn, Inc. v. Wilson Argued: April 24, 1952. Id., Jan. 21, 1951, p. 1, cols. 303 Apostasy, heresy, offenses against the Established Church, blasphemy, profanation of the Lord's Day, etc., were distinct criminal offenses, characterized by Blackstone as "offences against God and religion." [343 And that is the fair inference to be drawn, as a matter of experience, from what has been happening under the New York censorship. It may fairly be said that court deemed "sacrilegious" a self-defining term, a word that carries a well-known, settled meaning in the common speech of men. Footnote 37 History teaches us the indefiniteness of the concept "sacrilegious" in another respect. Olson, U.S. 359, 369 . 488 (1935). "Sacrilegious" - "violating a thing made sacred. U.S. 444, 451 (1940); Stromberg v. California, 26 U.S. 233 The case is here on appeal. Footnote 19 590, 762 (1930). [343 Other parts of the world still have blasphemy laws [343 Footnote 4 . I, iii, 7. If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship such as we have here. With the consent of the committee, various interested persons and 884, 101 N. Y. S. 2d 892. . This teaching of Aquinas is, I believe, still substantially the basis of the official Catholic doctrine of sacrilege. 31 U.S. 495, 517] During the Middle Ages the Church considerably delimited the application of the term. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. are banned in New York. ] Encyclopaedia Britannica (11th ed., 1911), "Sacrilege.". ] Howard Barnes, N. Y. Herald Tribune, Dec. 13, 1950, p. 30, cols. Please try again. The issue here is the constitutionality, under the First and Fourteenth Amendments, of a New York statute which permits the banning of motion picture films on the ground that they are "sacrilegious." Footnote 48 [ 303 N. Y. Hollis Alpert, Sat. U.S. 77, 82 Rex v. Nixon, 7 Car. ] Encyclopaedia Britannica (1951), "Sacrilege. ] Since almost without exception "sacrilegious" is defined in terms of "sacrilege," our discussion will be directed to the latter term. Wilson (1952), the U.S. Supreme Court overruled a state supreme court decision and declared that governments had no business suppressing attacks on religious doctrines. In the 1915 case of Mutual Film Corp. v. Industrial Commission, the first Supreme Court controversy involving the motion picture industry, the justices ruled that ‘‘the exhibition of moving pictures is a business pure and simple, . [343 318 ] Thomas Blount, Glossographia (3d ed., London, 1670). organizations submitted to it briefs and exhibits bearing upon the merits of the picture and upon the constitutional and statutory questions involved. The 1952 decision of Joseph Burstyn, Inc. v. Wilson concerned a New York statute that allowed the state department of education to forbid the exhibition of any ‘‘film or a part thereof ?’’ that was ‘‘obscene, indecent, immoral, inhuman, sacrilegious, or . ] McKinney's N. Y. $0.99; $0.99; Publisher Description. The Court of Appeals of New York affirmed. We recommend using ] See Encyclopaedia of Religion and Ethics (Hastings ed., 1921), "Tabu. [343 [ Footnote 29 (1945). [ [ Footnote * U.S. 495, 532] The Larceny Act and the Malicious Injuries to Property Act, both of 1861, treated established church property substantially the same as all other property. ", [ See, for example, The [New York] Catholic News, Dec. 30, 1950, p. 10; Jan. 6, 1951, p. 10; Jan. 20, 1951, p. 10; Feb. 3, 1951, p. 10; Feb. 10, 1951, p. 12; and May 19, 1951, p. 12; Commonweal, Jan. 12, 1951, p. 351, col. 1; The [Brooklyn] Tablet, Jan. 20, 1951, p. 8, col. 4; id., Jan. 27, 1951, p. 10, col. 3; id., Feb. 3, 1951, p. 8, cols. Landmark cases such as Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation have cited Burstyn for the proposition that ‘‘differences in the characteristics of new media justify differences in the First Amendment standards applied to them.’’, See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), Civil Liberties and Civil Rights in the United States. 2178, 477-478, thus defines sacrilege: "Sacrilege consists in the unworthy use or treatment of sacred things and sacred persons. Order, cabled Cardinal Spellman protesting against boycott of "The Miracle": The New York Court of Appeals, with one judge concurring in a separate opinion and two others dissenting, : a R. C. Ch. New York's highest court says there is "nothing mysterious" about the statutory provision applied in this case: "It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule . Olson, Since the repeal less than a century ago of the English law punishing "sacrilege" against the property of the Established Church, religious property has received little special protection. ] Encyclopaedia Britannica (1951), "Sacrilege. Niemotko v. Maryland, And in "the Theodosian Code the various crimes which are accounted sacrilege include - apostasy, heresy, schism, Judaism, paganism, attempts against the immunity of churches and clergy or privileges of church courts, the desecration of sacraments, etc., and even Sunday. "Sacrilegious" - "Committing sacrilege; characterized by or involving sacrilege; polluted with sacrilege; as, sacrilegious robbers, depredations, or acts." ; A. U.S. 495, 523] If the New York Court of Appeals had given "sacrilegious" the meaning it has had in Catholic thought since St. Thomas Aquinas formulated its scope, and had sustained a finding by the Board of Regents that "The Miracle" came within that scope, this Court would have to meet some of the broader questions regarding the relation to the motion picture industry of the guarantees of the First Amendment so far as reflected in the Fourteenth. Footnote 8 See Bouscaren and Ellis, Canon Law (1946), 857. [ [343 Thornhill v. Alabama, 32 just as it would startle them to be told that any picture, whatever its theme and its expression, could be barred from being commercially exhibited. This definition remained unchanged through many printings of that dictionary. 28 U.S.C. ] Barelay, A Complete and Universal English Dictionary (London, 1782), "Sacrilege.". ", [ ", Bosley Crowther, N. Y. 17 22, 1951, p. 4, cols. ] Id., Dec. 24, 1950, p. 1, cols. Footnote 20 ] N. Y. In all editions throughout 125 years, these American dictionaries have defined "sacrilege" and "sacrilegious" to echo substantially the narrow, technical definitions from the earlier British dictionaries collected in the Appendix, post, p. 533. U.S. 296 . Id., at 245, 246. 297 The effect of such demands upon art and upon those whose function is to enhance the culture of a society need not be labored. See also, "Miracles Do Happen," The New Leader, Feb. 5, 1951, p. 30, col. 2. Much the same view was taken by Frank Getlein writing in The Catholic Messenger, Mar. Learn more about FindLaw’s newsletters, including our terms of use and privacy policy. 28-29. Seven years after Burstyn, the Supreme Court’s decision in Kingsley International Pictures Corp. v. Regents invalidated a ban on nonobscene portrayals of ‘‘sexual immorality [as] desirable, acceptable, or proper . On appeal to this Court under 28 U.S.C. ] Cf. While it is true that blasphemy prosecutions [ Laura Wittern-Keller and Raymond Haberski show how the Supreme Court's unanimous 1952 ruling in Burstyn's favor sparked a chain of litigation that eventually brought filmmaking under the protective umbrella of the First Amendment, overturning its long-outdated decision in Mutual v. Ohio (1915). ] Inglis, Freedom of the Movies, 120 et seq. 1305. IndustrialCommission,236U.S.230(1915), Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948). . In Mutual Film Corp. v. Industrial Comm'n, We not only do not know but cannot know what is condemnable by "sacrilegious." Footnote 14 Id., at 255, 101 N. E. 2d at 670. or the divinity of Christ, observed the Sabbath on Saturday, denied the possibility of witchcraft, repudiated child baptism or urged methods of baptism other than sprinkling, were charged as blasphemers, or their books were burned or banned as blasphemous. 19. 48 ] N. Y. The doctrine of transubstantiation, and the veneration of relics or particular stone and wood embodiments of saints or divinity, both sacred to 34 U.S. 353, 364 ; Connally v. General Construction Co., A motion picture portraying Christ as divine - for example, a movie showing medieval Church art - would offend the religious opinions of the members of several Protestant denominations who do not believe in the Trinity, as well as those of a non-Christian faith. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." must be allowed to be shown under any circumstances. . U.S. 495, 512] Footnote 28 [ burstyn v.wilson. In Chaplinsky v. New Hampshire, the question whether motion pictures are within the ambit of protection which the First Amendment, through the Fourteenth, secures to any form of ‘speech’ or ‘the press.’’’ The Court held ‘‘that motion pictures are a significant medium for the communication of ideas.’’ Writing for the Court, Justice Tom Clark recognized that the movies ‘‘may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.’’ The movies’ significance ‘‘as an organ of public opinion,’’ the Court observed, ‘‘is not lessened by the fact that they are designed to entertain as well as to inform.’’ Nor would the Court dilute constitutional protection for motion pictures on the ground that they ‘‘are published and sold for profit.’’ Like ‘‘books, newspapers, and magazines,’’ motion pictures won recognition as ‘‘a form of expression whose liberty is safeguarded by the First Amendment.’’ The Court thereupon included ‘‘expression by means of motion pictures .