Joseph Burstyn, Inc. v. Wilson


No. 522 Argued: April 24, 1952 --- Decided: May 26, 1952
MR. JUSTICE CLARK delivered the opinion of the Court.

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." 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. . . . [n1]

The statute further provides:

The director of the [motion picture] division [of the education department] or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto. [n2]

Appellant is a corporation engaged in the business of distributing motion pictures. It owns the exclusive rights to distribute throughout the United States a film produced in Italy entitled "The Miracle." On November 30, 1950, after having examined the picture, the motion picture division of the New York education department, [p498] acting under the statute quoted above, issued to appellant a license authorizing exhibition of "The Miracle," with English subtitles, as one part of a trilogy called "Ways of Love." [n3] Thereafter, for a period of approximately eight weeks, "Ways of Love" was exhibited publicly in a motion picture theater in New York City under an agreement between appellant and the owner of the theater whereby appellant received a stated percentage of the admission price.

During this period, the New York State Board of Regents, which by statute is made the head of the education department, [n4] received "hundreds of letters, telegrams, post cards, affidavits and other communications" both protesting against and defending the public exhibition of "The Miracle." [n5] The Chancellor of the Board of Regents requested three members of the Board to view the picture and to make a report to the entire Board. After viewing the film, this committee reported to the Board that, in its opinion, there was basis for the claim that the picture was "sacrilegious." 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. Appellant appeared at this hearing, which was conducted by the same three-member committee of the Regents which had previously viewed the picture, and challenged the jurisdiction of the committee and of the Regents to proceed with the case. With the consent of the committee, various interested persons and [p499] organizations submitted to it briefs and exhibits bearing upon the merits of the picture and upon the constitutional and statutory questions involved. On February 16, 1951, the Regents, after viewing "The Miracle," determined that it was "sacrilegious," and for that reason ordered the Commissioner of Education to rescind appellant's license to exhibit the picture. The Commissioner did so.

Appellant brought the present action in the New York courts to review the determination of the Regents. [n6] Among the claims advanced by appellant were (1) that the statute violates the Fourteenth Amendment as a prior restraint upon freedom of speech and of the press; (2) that it is invalid under the same Amendment as a violation of the guaranty of separate church and state and as a prohibition of the free exercise of religion; and, (3) that the term "sacrilegious" is so vague and indefinite as to offend due process. The Appellate Division rejected all of appellant's contentions and upheld the Regents' determination. 278 App.Div. 253, 104 N.Y.S.2d 740. On appeal the New York Court of Appeals, two judges dissenting, affirmed the order of the Appellate Division. 303 N.Y. 242, 101 N.E.2d 665. The case is here on appeal. 28 U.S.C. § 1257(2).

As we view the case, we need consider only appellant's contention that the New York statute is an unconstitutional abridgment of free speech and a free press. In Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230 (1915), a distributor of motion pictures sought to enjoin the enforcement of an Ohio statute which required the prior approval of a board of censors before any motion [p500] picture could be publicly exhibited in the state, and which directed the board to approve only such films as it adjudged to be "of a moral, educational or amusing and harmless character." The statute was assailed in part as an unconstitutional abridgment of the freedom of the press guaranteed by the First and Fourteenth Amendments. The District Court rejected this contention, stating that the first eight Amendments were not a restriction on state action. 215 F. 138, 141 (D.C.N.D. Ohio 1914). 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. In affirming the decree of the District Court denying injunctive relief, this Court stated:

It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion. [n7]

In a series of decisions beginning with Gitlow v. New York, 268 U.S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. [n8] That principle has been [p501] followed and reaffirmed to the present day. Since this series of decisions came after the Mutual decision, the present case is the first to present squarely to us 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." [n9]

It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They 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. [n10] The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. As was said in Winters v. New York, 333 U.S. 507, 510 (1948):

The line between the informing and the entertaining is too elusive for the protection of that basic right [a free press]. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.

It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. [n11] [p502] We fail to see why operation for profit should have any different effect in the case of motion pictures.

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. Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection. 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.

For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. 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. [n12]

To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other [p503] media of communication of ideas. [n13] Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule.

The statute involved here does not seek to punish, as a past offense, speech or writing falling within the permissible scope of subsequent punishment. On the contrary, New York requires that permission to communicate ideas be obtained in advance from state officials who judge the content of the words and pictures sought to be communicated. This Court recognized many years ago that such a previous restraint is a form of infringement upon freedom of expression to be especially condemned. Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). 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. [n14] It was further stated that "the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only [p504] in exceptional cases." Id. at 716. In the light of the First Amendment's history and of the Near decision, the State has a heavy burden to demonstrate that the limitation challenged here presents such an exceptional case.

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. . . . [n15]

This is far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society. [n16] 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 [p505] charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor. Cf. Kunz v. New York, 340 U.S. 290 (1951). [n17] Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the "sacrilegious" test, in these or other respects, might raise substantial questions under the First Amendment's guaranty of separate church and state with freedom of worship for all. [n18] However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures. [n19]

Since the term "sacrilegious" is the sole standard under attack here, it is not necessary for us to decide, for example, [p506] whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us. [n20] We hold only that, under the First and Fourteenth Amendments, a state may not ban a film on the basis of a censor's conclusion that it is "sacrilegious."


1. McKinney's N.Y. Laws, 1947, Education Law, § 129.

2. Id., § 122

3. 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.

4. McKinney's N.Y.Laws, 1947, Education Law, § 101; see also N.Y.Const., Art. V, § 4.

5. Stipulation between appellant and appellee, R. 86.

6. The action was brought under Article 78 of the New York Civil Practice Act, Gilbert-Bliss N.Y.Civ.Prac., Vol. 6B, 1944, 1949 Supp., § 1283 et seq. See also McKinney's N.Y.Laws, 1947, Education Law, § 124.

7. 236 U.S. at 244.

8. Gitlow v. New York, 268 U.S. 652, 666 (1925); Stromberg v. California, 283 U.S. 359, 368 (1931); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936); De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Lovell v. Griffin, 303 U.S. 444, 450 (1938); Schneider v . State, 308 U.S. 147, 160 (1939).

9. See Lovell v. Griffin, 303 U.S. 444, 452 (1938).

10. See Inglis, Freedom of the Movies (1947), 20-24; Klapper, The Effects of Mass Media (1950), passim; Note, Motion Pictures and the First Amendment, 60 Yale L.J. 696, 70708 (1951), and sources cited therein.

11. See Grosjean v. American Press Co., 297 U.S. 233 (1936); Thomas v. Collins, 323 U.S. 516, 531 (1945).

12. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948):

We have no doubt that moving pictures, like newspapers and radio, arc included in the press whose freedom is guaranteed by the First Amendment.

It is not without significance that talking pictures were first produced in 1926, eleven years after the Mutual decision. Hampton, A History of the Movies (1931), 382-383.

13. E.g., Feiner v. New York, 340 U.S. 315 (1951); Kovacs v. Cooper, 336 U.S. 77 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cox v. New Hampshire, 312 U.S. 569 (1941).

14. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-719 (1931); see also Lovell v. Griffin, 303 U.S. 444, 451-452 (1938); Grosjean v. American Press Co., 297 U.S. 233, 245-250 (1936); Patterson v. Colorado, 205 U.S. 454, 462 (1907).

15. 303 N.Y. 242, 258, 101 N.E.2d 665, 672. At another point, the Court of Appeals gave "sacrilegious" the following definition: "the act of violating or profaning anything sacred." Id. at 255, 101 N.E.2d at 670. The Court of Appeals also approved the Appellate Division's interpretation:

As the court below said of the statute in question, "All it purports to do is to bar a visual caricature of religious beliefs held sacred by one sect or another. . . ."

Id. at 258, 101 N.E.2d at 672. Judge Fuld, dissenting, concluded from all the statements in the majority opinion that

the basic criterion appears to be whether the film treats a religious theme in such a manner as to offend the religious beliefs of any group of persons. If the film does have that effect, and it is "offered as a form of entertainment," it apparently falls within the statutory ban regardless of the sincerity and good faith of the producer of the film, no matter how temperate the treatment of the theme, and no matter how unlikely a public disturbance or breach of the peace. The drastic nature of such a ban is highlighted by the fact that the film in question makes no direct attack on, or criticism of, any religious dogma or principle, and it is not claimed to be obscene, scurrilous, intemperate or abusive.

Id. at 271-272, 101 N.E.2d at 680.

16. Cf. Thornhill v. Alabama, 310 U.S. 88, 97 (1940); Stromberg v. California, 283 U.S. 359, 369-370 (1931).

17. Cf. Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948); Largent v. Texas, 318 U.S. 418 (1943); Lovell v. Griffin, 303 U.S. 444 (1938).

18. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

19. See the following statement by Mr. Justice Roberts, speaking for a unanimous Court in Cantwell v. Connecticut, 310 U.S. 296, 310 (1940):

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

The essential characteristic of these liberties is, that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds.

20. In the Near case, this Court stated that "the primary requirements of decency may be enforced against obscene publications." 283 U.S. 697, 716. In Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (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. 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.

But see Kovacs v. Cooper, 336 U.S. 77, 82 (1949):

When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement.