U.S. Supreme Court Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495 (1952) Joseph Burstyn, Inc. v.
Wilson No. 522 Argued April 24, 1952 Decided May 26, 1952 343
U.S. 495 APPEAL FROM THE COURT OF APPEALS OF
NEW YORK Syllabus 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. Pp. 343 U. S.
497 -506.

															1. Expression by means of motion pictures is included within the
free speech and free press guaranty of the First and Fourteenth
Amendments. Pp. 343 U. S.
499 -502.

															(a) It cannot be doubted that motion pictures are a significant
medium for the communication of ideas. Their importance as an organ
of public opinion is not lessened by the fact that they are
designed to entertain as well as to inform. P. 343 U. S.
501 .

															(b) That the production, distribution and exhibition of motion
pictures is a large-scale business conducted for private profit
does not prevent motion pictures from being a form of expression
whose liberty is safeguarded by the First Amendment. Pp. 343 U. S.
501 -502.

															(c) Even if it be assumed that motion pictures possess a greater
capacity for evil, particularly among the youth of a community,
than other modes of expression, it does not follow that they are
not entitled to the protection of the First Amendment or may be
subjected to substantially unbridled censorship. P. 343 U. S.
502 .

															(d) To the extent that language in the opinion in Mutual
Film Corp. v. Industrial Comm'n, 236 U.
S. 230 , is out of harmony with the views here set forth,
it is no longer adhered to. P. 343 U. S.
502 .

															2. Under the First and Fourteenth Amendments, a state may not
place a prior restraint on the showing of a motion picture film on
the basis of a censor's conclusion that it is "sacrilegious." Pp. 343 U. S.
502 -506.

															(a) Though the Constitution does not require absolute freedom to
exhibit every motion picture of every kind at all times and all
places, there is no justification in this case for making an Page 343 U. S. 496 exception to the basic principles of freedom of expression
previously announced by this Court with respect to other forms of
expression. Pp. 343 U. S.
502 -503.

															(b) Such a prior restraint as that involved here is a form of
infringement upon freedom of expression to be especially condemned. Near v. Minnesota, 283 U. S. 697 . Pp. 343 U. S.
503 -504.

															(c) New York cannot vest in a censor such unlimited restraining
control over motion pictures as that involved in the broad
requirement that they not be "sacrilegious." Pp. 343 U. S.
504 -505.

															(d) From the standpoint of freedom of speech and the press, a
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. P. 343 U. S.
505 . 303 N.Y.
242 , 101 N.E.2d 665, reversed.

															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." 278
App.Div. 253, 104 N.Y.S.2d 740. The Court of Appeals of New York
affirmed. 303 N.Y.
242 , 101 N.E.2d 665. On appeal to this Court under 28 U.S.C. §
1257(2), reversed, p. 343 U. S.
506 . Page 343 U. S. 497 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. . . . [ Footnote 1 ]"

															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. [ Footnote
2 ]"

															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, Page 343 U. S. 498 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."
[ Footnote 3 ] 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, [ Footnote 4 ] received "hundreds of
letters, telegrams, post cards, affidavits and other
communications" both protesting against and defending the public
exhibition of "The Miracle." [ Footnote 5 ] 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 Page 343 U. S. 499 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. [ Footnote 6 ] 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 Page 343 U. S. 500 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. [ Footnote 7 ]"

															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. [ Footnote 8 ] That
principle has been Page 343 U. S. 501 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." [ Footnote
9 ]

															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. [ Footnote 10 ] 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 , 333 U. S. 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. [ Footnote 11 ] Page 343 U. S. 502 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. [ Footnote 12 ]

															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 Page 343 U. S. 503 media of communication of ideas. [ Footnote 13 ] 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. [ Footnote
14 ] It was further stated that "the protection even as to
previous restraint is not absolutely unlimited. But the limitation
has been recognized only Page 343 U. S. 504 in exceptional cases." Id. at 283 U. S. 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. . . . [ Footnote 15 ]"

															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. [ Footnote 16 ] 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 Page 343 U. S. 505 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). [ Footnote 17 ] 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. [ Footnote 18 ] 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. [ Footnote 19 ]

															Since the term "sacrilegious" is the sole standard under attack
here, it is not necessary for us to decide, for example, Page 343 U. S. 506 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. [ Footnote 20 ] 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." Reversed. [ Footnote 1 ]

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

															[ Footnote 2 ] Id., § 122

															[ Footnote 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.

															[ Footnote 4 ]

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

															[ Footnote 5 ]

															Stipulation between appellant and appellee, R. 86.

															[ Footnote 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.

															[ Footnote 7 ]

															236 U.S. at 236 U. S.
244 .

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

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

															[ Footnote 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.

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

															[ Footnote 12 ] See United States v. Paramount Pictures, Inc., 334 U. S. 131 , 334 U. S. 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.

															[ Footnote 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).

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

															[ Footnote 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.

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

															[ Footnote 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).

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

															[ Footnote 19 ] See the following statement by Mr. Justice Roberts,
speaking for a unanimous Court in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 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."

															[ Footnote 20 ]

															In the Near case, this Court stated that "the primary
requirements of decency may be enforced against obscene
publications." 283 U. S. 697 , 283 U. S. 716 .
In Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S.
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 , 336 U. S. 82 (1949):

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

															MR. JUSTICE REED, concurring in the judgment of the Court.

															Assuming that a state may establish a system for the licensing
of motion pictures, an issue not foreclosed by the Court's opinion,
our duty requires us to examine the facts of the refusal of a
license in each case to determine Page 343 U. S. 507 whether the principles of the First Amendment have been honored.
This film does not seem to me to be of a character that the First
Amendment permits a state to exclude from public view.

															MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins,
concurring in the judgment of the Court; MR. JUSTICE BURTON, having
concurred in the opinion of the Court, also joins this opinion.

															A practised hand has thus summarized the story of "The Miracle":
[ Footnote 2/1 ]

															"A poor, simple-minded girl is tending a herd of goats on a
mountainside one day when a bearded stranger passes. Suddenly it
strikes her fancy that he is St. Joseph, her favorite saint, and
that he has come to take her to heaven, where she will be happy and
free. While she pleads with him to transport her, the stranger
gently plies the girl with wine, and when she is in a state of
tumult, he apparently ravishes her. (This incident in the story is
only briefly and discreetly implied.)"

															"The girl awakens later, finds the stranger gone, and climbs
down from the mountain not knowing whether he was real or a dream.
She meets an old priest who tells her that it is quite possible
that she did see a saint, but a younger priest scoffs at the
notion. 'Materialist,' the old priest says."

															"There follows now a brief sequence -- intended to be symbolic,
obviously -- in which the girl is reverently sitting with other
villagers in church. Moved by a whim of appetite, she snitches an
apple from the basket of a woman next to her. When she leaves the
church, a cackling beggar tries to make her share Page 343 U. S. 508 the apple with him, but she chases him away, as by habit, and
munches the fruit contentedly."

															"Then, one day, while tending the village youngsters as their
mothers work at the vines, the girl faints and the women discover
that she is going to have a child. Frightened and bewildered, she
suddenly murmurs, 'It is the grace of God,' and she runs to the
church in great excitement, looks for the statue of St. Joseph, and
then prostrates herself on the floor."

															"Thereafter she meekly refuses to do any menial work, and the
housewives humor her gently, but the young people are not so kind.
In a scene of brutal torment, they first flatter and laughingly
mock her, then they cruelly shove and hit her and clamp a basin as
a halo on her head. Even abused by the beggars, the poor girl
gathers together her pitiful rags and sadly departs from the
village to live alone in a cave."

															"When she feels her time coming upon her, she starts back
towards the village. But then she sees the crowds in the streets;
dark memories haunt her; so she turns towards a church on a high
hill and instinctively struggles towards it, crying desperately to
God. A goat is her sole companion. She drinks water dripping from a
rock. And when she comes to the church and finds the door locked,
the goat attracts her to a small side door. Inside the church, the
poor girl braces herself for her labor pains. There is a dissolve,
and when we next see her sad face, in close-up, it is full of a
tender light. There is the cry of an unseen baby. The girl reaches
towards it and murmurs, 'My son, My love, My flesh!'"

															"The Miracle" -- a film lasting forty minutes -- was produced in
Italy by Roberto Rossellini. Anna Magnani played the lead as the
demented goat-tender. It was first shown at the Venice Film
Festival in August, 1948, Page 343 U. S. 509 combined with another moving picture, "L'Umano Voce," into a
diptych called "Amore." According to an affidavit from the Director
of that Festival, if the motion picture had been "blasphemous," it
would have been barred by the Festival Committee. In a review of
the film in L'Osservatore Romano, the organ of the Vatican, its
film critic, Piero Regnoli, wrote:

															"Opinions may vary, and questions may arise -- even serious ones
-- of a religious nature (not to be diminished by the fact that the
woman portrayed is mad [because] the author who attributed madness
to her is not mad). . . . [ Footnote
2/2 ]"

															While acknowledging that there were "passages of undoubted
cinematic distinction," Regnoli criticized the film as being "on
such a pretentiously cerebral plane that it reminds one of the
early d'Annunzio." The Vatican newspaper's critic concluded: "we
continue to believe in Rossellini's art, and we look forward to his
next achievement." [ Footnote 2/3 ]
In October, 1948, a month after the Rome premiere of "The Miracle,"
the Vatican's censorship agency, the Catholic Cinematographic
Centre, declared that the picture "constitutes in effect an
abominable profanation from religious and moral viewpoints."
[ Footnote 2/4 ] By the Lateran
agreements and the Italian Constitution, the Italian Government is
bound to bar whatever may offend the Catholic religion. However,
the Catholic Cinematographic Centre did not invoke any governmental
sanction thereby afforded. The Italian Government's censorship
agency gave "The Miracle" the regular nulla osta clearance. The film was freely shown throughout Italy, but was not
a great success. [ Footnote 2/5 ]
Italian movie critics divided in opinion. The critic for II Popolo,
speaking for the Christian Democratic Party, the Catholic Page 343 U. S. 510 party, profusely praised the picture as a "beautiful thing,
humanly felt, alive, true and without religious profanation as
someone has said, because, in our opinion, the meaning of the
characters is clear, and there is no possibility of
misunderstanding." [ Footnote 2/6 ]
Regnoli again reviewed "The Miracle" for L'Osservatore Romano.
[ Footnote 2/7 ] After criticising
the film for technical faults, he found "the most courageous and
interesting passage of Rossellini's work" in contrasting portrayals
in the film; he added: "Unfortunately, concerning morals, it is
necessary to note some slight defects." He objected to its
"carnality" and to the representation of illegitimate motherhood.
But he did not suggest that the picture was "sacrilegious." The
tone of Regnoli's critique was one of respect for Rossellini, "the
illustrious Italian producer." [ Footnote 2/8 ]

															On March 2, 1949, "The Miracle" was licensed in New York State
for showing without English subtitles. [ Footnote 2/9 ] However, it was never exhibited until
after a second license was issued on November 30, 1950, for the
trilogy, "Ways of Love," combining "The Miracle" with two French
films, Jean Renoir's "A Day in the Country" and Marcel Pagnol's
"Jofroi." [ Footnote 2/10 ] All had
English subtitles. Both licenses Page 343 U. S. 511 were issued in the usual course after viewings of the picture by
the Motion Picture Division of the New York State Education
Department. The Division is directed by statute to "issue a
license"

															"unless [the] 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."

															N.Y. Education Law, § 122. The trilogy opened on December 12,
1950, at the Paris Theatre on 58th Street in Manhattan. It was
promptly attacked as "a sacrilegious and blasphemous mockery of
Christian religious truth" [ Footnote
2/11 ] by the National Legion of Decency, a private Catholic
organization for film censorship, whose objectives have
intermittently been approved by various non-Catholic church and
social groups since its formation in 1933. [ Footnote 2/12 ] However, the National Board of Review (a
non-industry lay organization devoted to raising the level of
motion pictures by mobilizing public opinion, under the slogan
"Selection Not Censorship") [ Footnote
2/13 ] recommended the picture as "especially worth seeing." New
York critics on the whole praised "The Miracle"; those who
dispraised did not suggest sacrilege. [ Footnote 2/14 ] On December 27, the critics selected the
"Ways of Love" as the best foreign language Page 343 U. S. 512 film in 1950. [ Footnote 2/15 ]
Meanwhile, on December 23, Edward T. McCaffrey, Commissioner of
Licenses for New York City, declared the film "officially and
personally blasphemous" and ordered it withdrawn at the risk of
suspension of the license to operate the Paris Theatre. [ Footnote 2/16 ] A week later, the program
was restored at the theatre upon the decision by the New York
Supreme Court that the City Page 343 U. S. 513 License Commissioner had exceeded his authority in that he was
without powers of movie censorship. [ Footnote 2/17 ]

															Upon the failure of the License Commissioner's effort to cut off
showings of "The Miracle," the controversy took a new turn. On
Sunday, January 7, 1951, a statement of His Eminence, Francis
Cardinal Spellman, condemning the picture and calling on "all
right-thinking citizens" to unite to tighten censorship laws, was
read at all masses in St. Patrick's Cathedral. [ Footnote 2/18 ]

															The views of Cardinal Spellman aroused dissent among other
devout Christians. Protestant clergymen, representing Page 343 U. S. 514 various denominations, after seeing the picture, found in it
nothing "sacrilegious or immoral to the views held by Christian men
and women," and, with a few exceptions, agreed that the film was
"unquestionably one of unusual artistic merit." [ Footnote 2/19 ]

															In this estimate, some Catholic laymen concurred. [ Footnote 2/20 ] Their opinion is
represented by the comment by Otto L. Spaeth, Director of the
American Federation of Arts and prominent in Catholic lay
activities:

															"At the outbreak of the controversy, I immediately arranged for
a private showing of the film. I invited a group of Catholics,
competent and respected for their writings on both religious and
cultural subjects. The essential approval of the film was
unanimous."

															"There was indeed 'blasphemy' in the picture -- but it was the
blasphemy of the villagers, who stopped at nothing, not even the
mock singing of a Page 343 U. S. 515 hymn to the Virgin, in their brutal badgering of the tragic
woman. The scathing indictment of their evil behavior, implicit in
the film, was seemingly overlooked by its critics. [ Footnote 2/21 ]"

															William P. Clancy, a teacher at the University of Notre Dame,
wrote in The Commonweal, the well known Catholic weekly, that "the
film is not obviously blasphemous or obscene, either in its
intention or execution." [ Footnote
2/22 ] The Commonweal itself questioned the wisdom of
transforming Church dogma which Catholics may obey as "a free act"
into state-enforced censorship for all. [ Footnote 2/23 ] Allen Tate, the well known Catholic poet
and critic, wrote:

															"The picture seems to me to be superior in acting and
photography but inferior dramatically. . . . In the long run, what
Cardinal Spellman will have succeeded in doing is insulting the
intelligence and faith of American Catholics with the assumption
that a second-rate motion picture could in any way undermine their
morals or shake their faith. [ Footnote 2/24 ]"

															At the time "The Miracle" was filmed, all the persons having
significant positions in the production -- producer, director, and
cast -- were Catholics. Roberto Rossellini, who had Vatican
approval in 1949 for filming a life of St. Francis, using in the
cast members of the Franciscan Page 343 U. S. 516 Order, cabled Cardinal Spellman protesting against boycott of
"The Miracle":

															"In The Miracle men, are still without pity because
they still have not come back to God, but God is already present in
the faith, however confused, of that poor, persecuted woman, and
since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the
poor, demented woman regains sanity in her maternal love. [ Footnote 2/25 ]"

															In view of the controversy thus aroused by the picture, the
Chairman of the Board of Regents appointed a committee of three
Board members to review the action of the Motion Picture Division
in granting the two licenses. After viewing the picture on Jan. 15,
1951, the committee declared it "sacrilegious." The Board four days
later issued an order to the licensees to show cause why the
licenses should not be cancelled in that the picture was
"sacrilegious." The Board of Regents rescinded the licenses on Feb.
16, 1951, saying that the "mockery or profaning of these beliefs
that are sacred to any portion of our citizenship is abhorrent to
the laws of this great State." On review the Appellate Division
upheld the Board of Regents, holding that the banning of any motion
picture "that may fairly be deemed sacrilegious to the adherents of
any religious group . . . is directly related to public peace and
order," and is not a denial of religious freedom, and that there
was "substantial evidence upon which the Regents could act." 278
App.Div. 253, 257, 258, 260, 104 N.Y.S.2d 740, 743, 744-745,
747.

															The New York Court of Appeals, with one judge concurring in a
separate opinion and two others dissenting, Page 343 U. S. 517 affirmed the order of the Appellate Division. 303 N.Y.
242 , 101 N.E.2d 665. After concluding that the Board of Regents
acted within its authority and that is determination was not "one
that no reasonable mind could reach," id. at 250-255,
256-257, 101 N.E.2d 665, 667-671, the majority held, first, that
"sacrilegious" was an adequately definite standard, quoting a
definition from Funk & Wagnalls' Dictionary and referring to
opinions in this Court that, in passing used the term "profane,"
which the New York court said was a synonym of "sacrilegious";
second, that the State's assurance

															"that no religion . . . shall be treated with contempt, mockery,
scorn and ridicule . . . by those engaged in selling entertainment
by way of motion pictures"

															does not violate the religious guarantee of the First Amendment,
and third, that motion pictures are not entitled to the immunities
from regulation enjoyed by the press, in view of the decision in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U.
S. 230 . Id. at 255-256 [argument of counsel --
omitted], 236 U. S.
258 -260, 260 U. S.
260 -262, 101 N.E.2d 670-674. The two dissenting judges,
after dealing with a matter of local law not reviewable here, found
that the standard "sacrilegious" is unconstitutionally vague, and,
finally, that the constitutional guarantee of freedom of speech
applied equally to motion pictures, and prevented this censorship. 303 N.Y.
242 , 264, 101 N.E.2d 665, 675. Both State courts, as did this
Court, viewed "The Miracle."

															Arguments by the parties and in briefs amici invite us
to pursue to their farthest reach the problems in which this case
is involved. Positions are advanced so absolute and abstract that,
in any event, they could not properly determine this controversy. See Ashwander v. Tennessee Valley Authority, 297 U.
S. 288 , 297 U. S. 341 , 297 U. S.
346 -348. 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 Page 343 U. S. 518 must be allowed to be shown under any circumstances. But only
the tyranny of absolutes would rely on such alternatives to meet
the problems generated by the need to accommodate the diverse
interests affected by the motion pictures in compact modern
communities. 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, [ Footnote 2/26 ] 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. The
general principle of free speech, expressed in the First Amendment
as to encroachments by Congress, and included as it is in the
Fourteenth Amendment, binding on the States, must be placed in its
historical and legal contexts. The Constitution, we cannot recall
too often, is an organism, not merely a literary composition.

															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. But the New York
court did not confine "sacrilegious" within such technical, Thomist
limits, nor within any specific, or even approximately specified,
limits. It may fairly be said that that court deemed "sacrilegious"
a self-defining term, a word that carries a well known, settled
meaning in the common speech of men. Page 343 U. S. 519 So far as the Court of Appeals sought to support its notion that
"sacrilegious" has the necessary precision of meaning which the Due
Process Clause enjoins for statutes regulating men's activities, it
relied on this definition from Funk & Wagnalls' Dictionary:
"The act of violating or profaning anything sacred." But this
merely defines by turning an adjective into a noun and bringing in
two new words equally undefined. It leaves wide open the question
as to what persons, doctrines or things are "sacred." It sheds no
light on what representations on the motion picture screen will
constitute "profaning" those things which the State censors find to
be "sacred."

															To criticize or assail religious doctrine may wound to the quick
those who are attached to the doctrine and profoundly cherish it.
But to bar such pictorial discussion is to subject non-conformists
to the rule of sects.

															Even in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 230 , it
was deemed necessary to find that the terms "educational, moral,
amusing or harmless" do not leave "decision to arbitrary judgment."
Such general words were found to "get precision from the sense and
experience of men." Id. at 236 U. S. 245 , 236 U. S. 246 .
This cannot be said of "sacrilegious." If there is one thing that
the history of religious conflicts shows, it is that the term
"sacrilegious" -- if by that is implied offense to the deep
convictions of members of different sects, which is what the Court
of Appeals seems to mean so far as it means anything precisely --
does not gain "precision from the sense and experience of men."

															The vast apparatus of indices and digests, which mirrors our
law, affords no clue to a judicial definition of sacrilege. Not one
case, barring the present, has been uncovered which considers the
meaning of the term in any context. Nor has the practice under the
New York law contributed light. The Motion Picture Division of the
Education Department does not support with explanatory Page 343 U. S. 520 statements its action on any specific motion picture, which we
are advised is itself not made public. Of the fifty-odd reported
appeals to the Board of Regents from denials of licenses by the
Division, only three concern the category "sacrilegious." [ Footnote 2/27 ] In these cases, as in
others under the Act, the Board's reported opinion confines itself
to a bare finding that the film was or was not "sacrilegious,"
without so much as a description of the allegedly offensive matter,
or even of the film as a whole to enlighten the inquirer. 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.

															Sacrilege, [ Footnote 2/28 ] as
a restricted ecclesiastical concept, has a long history. Naturally
enough, religions have sought to protect their priests and anointed
symbols from physical injury. [ Footnote 2/29 ] But history demonstrates that the term
is hopelessly vague when it goes beyond such ecclesiastical
definiteness and is used at large as the basis for punishing
deviation from doctrine.

															Etymologically, "sacrilege" is limited to church-robbing: sacer, sacred, and legere, to steal or pick out.
But we are Page 343 U. S. 521 told that "already in Cicero's time it had grown to include in
popular speech any insult or injury to [sacred things]." [ Footnote 2/30 ] "In primitive religions
[sacrilege is] inclusive of almost every serious offence even in
fields now regarded as merely social or political. . . ." [ Footnote 2/31 ] The concept of "tabu" in
primitive society is thus close to that of "sacrilege." [ Footnote 2/32 ] 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. Along with these crimes against religion went treason to
the emperor, offences against the laws, especially counterfeiting,
defraudation in taxes, seizure of confiscated property, evil
conduct of imperial officers, etc. [ Footnote 2/33 ]"

															During the Middle Ages the Church considerably delimited the
application of the term. St. Thomas Aquinas classified the objects
of "sacrilege" as persons places, and thing. [ Footnote 2/34 ] The injuries which would
constitute Page 343 U. S. 522 "sacrilege" received specific and detailed illustration.
[ Footnote 2/35 ] This teaching of
Aquinas is, I believe, still substantially the basis of the
official Catholic doctrine of sacrilege. Thus, for the Roman
Catholic Church, the term came to have a fairly definite meaning,
but one, in general, limited to protecting things physical against
injurious acts. [ Footnote 2/36 ]
Apostasy, heresy, and blasphemy coexisted as religious crimes
alongside sacrilege; they were peculiarly in the realm of religious
dogma and doctrine, as "sacrilege" was not. It is true that
Spelman, writing "The History and Fate of Sacrilege" in 1632,
included in "sacrilege" acts whereby

															"the very Deity is invaded, profaned, or robbed of its glory. .
. . In this high sin are blasphemers, Page 343 U. S. 523 sorcerers, witches, and enchanters. [ Footnote 2/37 ]"

															But his main theme was the "spoil of church lands done by Henry
VIII" and the misfortunes that subsequently befell the families of
the recipients of former ecclesiastical property as divine
punishment.

															To the extent that English law took jurisdiction to punish
"sacrilege," the term meant the stealing from a church, or
otherwise doing damage to church property. [ Footnote 2/38 ] This special protection against
"sacrilege," that is, property damage, was granted only to the
Established Church. [ Footnote
2/39 ] 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.
The property of all sects has had substantially the same protection
as is accorded non-religious property. [ Footnote 2/40 ] 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. It is true that, at times in
the past, English law has Page 343 U. S. 524 taken jurisdiction to punish departures from accepted dogma or
religious practice or the expression of particular religious
opinions, but never have these "offenses" been denominated
"sacrilege." 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." [ Footnote 2/41 ] These invidious reflections upon
religious susceptibilities were not covered under sacrilege as they
might be under the Court of Appeals' opinion. 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.

															A student of English lexicography would despair of finding the
meaning attributed to "sacrilege" by the New York court. [ Footnote 2/42 ] Most dictionaries define
the concept in the limited sense of the physical abuse of physical
objects. The definitions given for "sacrilege" by two dictionaries
published in 1742 and 1782 are typical. Bailey's defined it as

															"the stealing of Sacred Things, Church Robbing; an Alienation to
Laymen, and to profane and common Purposes, of what was given to
religious Persons, and to pious Uses. [ Footnote 2/43 ]"

															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. To be
irreverent to sacred persons or things." [ Footnote 2/44 ] The Page 343 U. S. 525 same dictionaries defined "blasphemy," a peculiarly verbal
offense, in much broader terms than "sacrilege," indeed in terms
which the New York court finds encompassed by "sacrilegious." For
example, Barclay said "blasphemy" is "an offering some indignity to
God, any person of the Trinity, any messengers from God, his holy
writ, or the doctrines of revelation." [ Footnote 2/45 ] 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.
It is true that some earlier dictionaries assigned to "sacrilege"
the broader meaning of "abusing Sacraments or holy Mysteries,"
[ Footnote 2/46 ] but the broader
meaning is more indefinite, not less. Noah Webster first published
his American Dictionary in 1828. Both it and the later dictionaries
published by the Merriam Company, Webster's International
Dictionary and Webster's New International Dictionary, have gone
through dozens of editions and printings, revisions and expansions.
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. 343 U. S. 533 .
[ Footnote 2/47 ] Page 343 U. S. 526 The New York Court of Appeals' statement that the dictionary
"furnishes a clear definition," justifying the vague scope it gave
to "sacrilegious," surely was made without regard to the
lexicographic history of the term. As a matter of fact, the
definition from Funk & Wagnalls' used by the Court of Appeals
is taken straight from 18th Century dictionaries, particularly
Doctor Johnson's. [ Footnote 2/48 ]
In light of that history, it would seem that the Funk & Page 343 U. S. 527 Wagnalls' definition uses "sacrilege" in its historically
restricted meaning, which was not, and could hardly have been, the
basis for condemning "The Miracle." If the New York court reads the
Funk & Wagnalls' definition in a broader sense, in a sense for
which history and experience provide no gloss, it inevitably left
the censor free to judge by whatever dogma he deems "sacred" and to
ban whatever motion pictures he may assume would "profane"
religious doctrine widely enough held to arouse protest.

															Examination of successive editions of the Encyclopaedia
Britannica over nearly two centuries up to the present day gives no
more help than the dictionaries. From 1768 to the eleventh edition
in 1911, merely a brief dictionary-type definition was given for
"sacrilege." [ Footnote 2/49 ] The
eleventh edition, which first published a longer article, was
introduced as follows:

															"the violation or profanation of sacred things, a crime of
varying scope in different religions. It is naturally much more
general and accounted more dreadful in those primitive religions
in Page 343 U. S. 528 which cultural objects play so great a part, than in more highly
spiritualized religions where they tend to disappear. But wherever
the idea of sacred exists, sacrilege is possible. [ Footnote 2/50 ]"

															The article on "sacrilege" in the current edition of the
Encyclopaedia Britannica is substantially the same as that, in the
1911 edition.

															History teaches us the indefiniteness of the concept
"sacrilegious" in another respect. 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. That
which was "sacred," and so was protected against "profaning," was
designated in each case by ecclesiastical authority. What might
have been definite when a controlling church imposed a detailed
scheme of observances becomes impossibly confused and uncertain
when hundreds of sects, with widely disparate and often directly
conflicting ideas of sacredness, enjoy, without discrimination and
in equal measure, constitutionally guaranteed religious freedom. In
the Rome of the late emperors, the England of James I, or the
Geneva of Calvin, and today in Roman Catholic Spain, Mohammedan
Saudi Arabia, or any other country with a monolithic religion, the
category of things sacred might have clearly definable limits. But
in America, the multiplicity of the ideas of "sacredness" held with
equal but conflicting fervor by the great number of religious
groups makes the term "sacrilegious" too indefinite to satisfy
constitutional demands based on reason and fairness.

															If "sacrilegious" bans more than the physical abuse of sacred
persons, places, or things, if it permits censorship of religious
opinions, which is the effect of the holding below, the term will
include what may be found to be "blasphemous." England's experience
with that treacherous word should give us pause, apart from our Page 343 U. S. 529 requirements for the separation of Church and State. The crime
of blasphemy in Seventeenth Century England was the crime of
dissenting from whatever was the current religious dogma. [ Footnote 2/51 ] King James I's "Book of
Sports" was first required reading in the churches; later all
copies were consigned to the flames. To attack the mass was once
blasphemous; to perform it became so. At different times during
that century, with the shifts in the attitude of government towards
particular religious views, persons who doubted the doctrine of the
Trinity ( e.g., Unitarians, Universalists, etc.) 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.
Blasphemy was the chameleon phrase which meant the criticism of
whatever the ruling authority of the moment established as orthodox
religious doctrine. [ Footnote
2/52 ] While it is true that blasphemy prosecutions Page 343 U. S. 530 have continued in England -- although in lessening numbers --
into the present century, [ Footnote
2/53 ] 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. Moreover, the
scope of the English common law crime of blasphemy has been
considerably limited by the declaration that "if the decencies of
controversy are observed, even the fundamentals of religion may be
attacked," [ Footnote 2/54 ] a
limitation which the New York court has not put upon the Board of
Regents' power to declare a motion picture "sacrilegious."

															In Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 310 ,
Mr. Justice Roberts, speaking for the whole Court, said:

															"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."

															Conduct and beliefs dear to one may seem the rankest "sacrilege"
to another. A few examples suffice to show the difficulties facing
a conscientious censor or motion picture producer or distributor in
determining what the New York statute condemns as sacrilegious. 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.
Conversely, one showing Christ as merely an ethical teacher could
not but offend millions of Christians of many denominations. Which
is "sacrilegious"? The doctrine of transubstantiation, and the
veneration of relics or particular stone and wood embodiments of
saints or divinity, both sacred to Page 343 U. S. 531 Catholics, are offensive to a great many Protestants, and
therefore, for them, sacrilegious in the view of the New York
court. Is a picture treating either subject, whether
sympathetically, unsympathetically, or neutrally, "sacrilegious"?
It is not a sufficient answer to say that "sacrilegious" is
definite, because all subjects that in any way might be interpreted
as offending the religious beliefs of any one of the 300 sects of
the United States [ Footnote 2/55 ]
are banned in New York. 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. History does not
encourage reliance on the wisdom and moderation of the censor as a
safeguard in the exercise of such drastic power over the minds of
men. We not only do not know, but cannot know, what is condemnable
by "sacrilegious." And if we cannot tell, how are those to be
governed by the statute to tell?

															It is this impossibility of knowing how far the form of words by
which the New York Court of Appeals explained "sacrilegious"
carries the proscription of religious subjects that makes the term
unconstitutionally vague. [ Footnote
2/56 ] To stop short of proscribing all subjects that might
conceivably be interpreted to be religious, inevitably creates a
situation whereby the censor bans only that against which Page 343 U. S. 532 there is a substantial outcry from a religious group. And that
is the fair inference to be drawn, as a matter of experience, from
what has been happening under the New York censorship. Consequently
the film industry, normally not guided by creative artists, and
cautious in putting large capital to the hazards of courage, would
be governed by its notions of the feelings likely to be aroused by
diverse religious sects, certainly the powerful ones. The effect of
such demands upon art and upon those whose function is to enhance
the culture of a society need not be labored.

															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. 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. 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.
Secondly, where licensing is rested, in the first instance, in an
administrative agency, the available judicial review is in effect
rendered inoperative. 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. Thus, the
administrative first step becomes the last step. Page 343 U. S. 533 From all that has been said, one is compelled to conclude that
the term "sacrilegious" has come down the stream of time encrusted
with a specialized, strictly confined meaning, pertaining to things
in space, not things in the mind. The New York Court of Appeals did
not give the term this calculable content. It applied it to things
in the mind, and things in the mind so undefined, so at large, as
to be more patently in disregard of the requirement for
definiteness, as the basis of proscriptions and legal sanctions for
their disobedience, than the measures that were condemned as
violative of Due Process in United States v. Cohen Grocery
Co., 255 U. S. 81 ; A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233 ; Connally v. General Construction Co., 269 U.
S. 385 ; Winters v. New York, 333 U.
S. 507 ; Kunz v. New York, 340 U.
S. 290 . 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.

															| 343
U.S. 495 app| APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER 343
U.S. 495 app|>* Cockeram, English Dictionarie (10th ed., London, 1651).

															Blasphemy: No entry.

															Sacrilege: "The robbing of a Church, the stealing of holy
things, abusing of Sacraments or holy Mysteries."

															Sacrilegious: "Abominable, very wicked."

															Blount, Glossographia (3d ed., London, 1670).

															Blasphemy: No entry.

															Sacrilege: "the robbing a Church, or other holy consecrated
place, the stealing holy things, or abusing Sacraments or holy
Mysteries."

															Sacrilegious: "that robs the Church; wicked, extremely bad." Page 343 U. S. 534 Blount, A Law-Dictionary (London, 1670).

															Blasphemy: No entry.

															Sacrilege: No entry.

															Phillips, The New World of Words (3d ed., London, 1671).

															Blasphemy: "an uttering of reproachfull words, tending either to
the dishonour of God, or to the hurt and disgrace of any man's name
and credit."

															Sacrilegious: "committing Sacriledge, i.e. a robbing of
Churches, or violating of holy things."

															Cowel, The Interpreter of Words and Terms (Manley ed., London,
1701).

															Blasphemy: No entry.

															Sacrilege: "an Alienation to Lay-Men, and to profane or common
purposes, of what was given to Religious Persons, and to Pious
Uses, etc."

															Rastell, Law Terms (London, 1708).

															Blasphemy: No entry.

															Sacrilege: "is, when one steals any Vessels, Ornaments, or Goods
of Holy Church, which is felony, 3 Cro. 153, 154."

															Kersey, A General English Dictionary (3d ed., London, 1721).

															Blasphemy: "an uttering of reproachful Words, that tend to the
Dishonour of God, &c."

															Sacrilege: "the stealing of Sacred Things, Church robbing."

															Cocker, English Dictionary (London, 1724).

															Blasphemy: No entry.

															Sacrilege: "robbing the Church, or what is dedicated
thereto."

															Bailey, Universal Etymological English Dictionary (London,
1730).

															Blasphemy: "an uttering of reproachful words tending to the
dishonour of God, &c. vile, base language." Page 343 U. S. 535 Sacrilege: "the stealing of sacred Things, Church-Robbing; the
Crime of profaning sacred Things, or alienating to Laymen, or
common Uses, what was given to pious Uses and religious
Persons."

															Coles, An English Dictionary (London, 1732).

															Blasphemy: "reproach."

															Sacrilege: "the robbing of God, the church, &c."

															Bullokar, The English Expositor (14th ed., London, 1731).

															Blasphemy: No entry.

															Sacrilege: "The Robbing of a Church; the Stealing of holy
things, or Abusing of Sacraments or holy Mysteries."

															Defoe, A Compleat English Dictionary (Westminster, 1735).

															Blasphemy: "vile or opprobrious Language, tending to the
Dishonour of God."

															Sacrilege: "the stealing of sacred Things, Church robbing."

															Bailey, An Universal Etymological English Dictionary (London,
1742).

															Blasphemy: "Cursing and Swearing, vile reproachful Language,
tending to the Dishonour of God."

															Sacrilege: "the stealing of Sacred Things, Church Robbing; an
Alienation to Laymen, and to profane and common Purposes, of what
was given to religious Persons, and to pious Uses."

															Martin, A New Universal English Dictionary (London, 1754).

															Blasphemy: "cursing, vile language tending to the dishonour of
God or religion."

															Sacrilege: "the stealing things out of a holy place, or the
profaning things devoted to God." Page 343 U. S. 536 Johnson, A Dictionary of the English Language (2d ed., London,
1755).

															Blasphemy: "strictly and properly, is an offering of some
indignity, or injury, unto God himself, either by words or
writing."

															Sacrilege: "The crime of appropriating to himself what is
devoted to religion; the crime of robbing heaven; the crime of
violating or profaning things sacred."

															Rider, A New Universal English Dictionary (London, 1759).

															Blasphemy: "an offering some indignity to God, any person of the
Trinity, any messengers from God; his holy writ, or the doctrines
of revelation, either by speaking or writing any thing ill of them,
or ascribing any thing ill to them inconsistent with their natures
and the reverence we owe them."

															Sacrilege: "the crime of taking any thing dedicated to divine
worship. The crime of profaning any thing sacred."

															Profane: "to apply any thing sacred to common use. To be
irreverent to sacred persons or things. To put to a wrong use."

															Gordon and Marchant, A New Complete English Dictionary (London,
1760).

															Blasphemy: "is an offering some indignity to God himself."

															Sacrilege: "is the crime of appropriating to himself what is
devoted to religion; the crime of robbing Heaven."

															Buchanan, A New English Dictionary (London, 1769).

															Blasphemy: "Language tending to the dishonour of God."

															Sacrilege: "The stealing things out of a holy place." Page 343 U. S. 537 Cunningham, A New and Complete Law-Dictionary (London,
1771).

															Blasphemy: A long definition reading in part: "Is an injury
offered to God, by denying that which is due and belonging to him,
or attributing to him what is not agreeable to his nature."

															Sacrilege: "Is church robbery, or a taking of things out of a
holy place; as where a person steals any vessels, ornaments, or
goods of the church. And it is said to be a robbery of God, at
least of what is dedicated to his service." 2 Cro. 153, 154.

															" . . . an alienation to lay-men, and to profane or common
purposes, of what was given to religious persons, and to pious
uses."

															Kenrick, A New Dictionary of the English Language (London,
1773).

															Blasphemy: "Treating the name and attributes of the Supreme
Being with insult and indignity."

															Sacrilege: "The crime of appropriating to himself what is
devoted to religion; the crime of robbing heaven, says Johnson; the
crime of violating or profaning things sacred."

															Profane: "To violate; to pollute. -- To put to wrong use."

															Ash, The New and Complete Dictionary of the English Language
(London, 1775).

															Blasphemy: "The act of speaking or writing reproachfully of the
Divine Being, the act of attributing to the creature that which
belongs to the Creator."

															Sacrilege: "The act of appropriating to one's self what is
devoted to religion, the crime of violating sacred things." Page 343 U. S. 538 Dyche, A New General English Dictionary (London, 1777).

															Blasphemy: "the reproaching or dlshonouring God, religion, and
holy things."

															Sacrilege: "the stealing or taking away those things that were
appropriated to religious uses or designs."

															Sacrilegious: "of a profane, thievish nature, sort, or
disposition."

															Barclay, A Complete and Universal English Dictionary (London,
1782).

															Blasphemy: "an offering some indignity to God, any person of the
Trinity, any messengers from God, his holy writ, or the doctrines
of revelation."

															Sacrilege: "the crime of taking any thing dedicated to divine
worship, or profaning any thing sacred."

															Profane: "to apply any thing sacred to common use. To be
irreverent to sacred persons or things."

															Lemon, English Etymology (London, 1783).

															Blaspheme: "to speak evil of any one; to injure his fame, or
reputation."

															Sacrilege: No entry.

															Entick, New Spelling Dictionary (London, 1786).

															Blasphemy: "indignity offered to God."

															Blasphemer: "one who abuses God."

															Sacrilege: "the robbery of a church or chapel."

															Sacrilegious: "violating a thing made sacred."

															Burn, A New Law Dictionary (Dublin, 1792).

															Blasphemy: "See Prophaneness."

															Profaneness: A long definition, not reproduced here.

															Sacrilege: "robbing of the church, or stealing things out of a
sacred place."

															Sheridan, A Complete Dictionary of the English Language (6th
ed., Phila., 1796).

															Blasphemy: "Offering of some indignity to God."

															Sacrilege: "The crime of robbing a church." Page 343 U. S. 539 Scott, Dictionary of the English Language (Edinburgh, 1797).

															Blasphemy: "indignity offered to God."

															Sacrilege: "the robbery of a church, &c."

															Richardson, A New Dictionary of the English Language (London,
1839).

															Blasphemy: "To attack, assail, insult, (the name, the
attributes, the ordinances, the revelations, the will or government
of God.)"

															Sacrilege: "to take away, to steal any thing sacred, or
consecrated, or dedicated to holy or religious uses."

															Bell, A Dictionary and Digest of the Law of Scotland (Edinburgh,
1861).

															Blasphemy: "is the denying or vilifying of the Deity, by speech
or writing."

															Sacrilege: "is any violation of things dedicated to the offices
of religion."

															Staunton, An Ecclesiastical Dictionary (N.Y. 1861).

															Blasphemy: A long entry.

															Sacrilege: "The act of violating or subjecting sacred things to
profanation; or the desecration of objects consecrated to God.
Thus, the robbing of churches or of graves, the abuse of sacred
vessels and altars by employing them for unhallowed purposes, the
plundering and misappropriation of alms and donations, are acts of
sacrilege, which in the ancient Church were punished with great
severity."

															Bouvier, A Law Dictionary (11th ed., Phila., 1866).

															Blasphemy: "To attribute to God that which is contrary to his
nature, and does not belong to him, and to deny what does; or it is
a false reflection uttered with a malicious design of reviling
God." Page 343 U. S. 540 Sacrilege: "The act of stealing from the temples or churches
dedicated to the worship of God, articles consecrated to divine
uses."

															Shipley, A Glossary of Ecclesiastical Terms (London, 1872).

															Blasphemy: "Denying the existence or providence of God;
contumelous reproaches of Jesus Christ; profane scoffing at the
holy Scriptures, or exposing any part thereof to contempt or
ridicule."

															Sacrilege: "The profanation or robbery of persons or things
which have been solemnly dedicated to the service of God. v. 24
& 25 Vict. c. 96, s. 50."

															Brown, A Law Dictionary (Sprague ed., Albany, 1875).

															Blasphemy: "To revile at or to deny the truth of Christianity as
by law established, is a blasphemy, and as such is punishable by
the common law. . . ."

															Sacrilege: "A desecration of any thing that is holy. The
alienation of lands which were given to religious purposes to
laymen, or to profane and common purposes, was also termed
sacrilege."

															| 343
U.S. 495 app|

															* See Mathews, A Surrey of English Dictionaries
(1933).

															[ Footnote 2/1 ]

															Crowther, "The Strange Case of The Miracle,'" Atlantic
Monthly, April, 1951, pp. 35, 36-37. [ Footnote 2/2 ]

															L'Osservatore Romano, Aug. 25, 1948, p. 2, col. 1, translated in
part in The Commonweal, Mar. 23, 1951, p 592, col. 2.

															[ Footnote 2/3 ] Ibid. [ Footnote 2/4 ]

															N.Y. Times, Feb. 11, 1951, § 2, p. 4, cols. 4-5.

															[ Footnote 2/5 ]

															Time, Feb.19, 1951, pp. 60-61.

															[ Footnote 2/6 ]

															II Popolo, Nov. 3, 1948, p. 2, col. 9, translated by Camille M.
Cianfarra, N.Y. Times, Feb. 11, 1951, § 2, p. 4, col. 5.

															[ Footnote 2/7 ]

															L'Osservatore Romano, Nov. 12, 1948, p. 2, cols. 3-4.

															[ Footnote 2/8 ] Ibid. [ Footnote 2/9 ]

															"The Miracle" was passed by customs. To import "Any obscene
lewd, lascivious, or filthy . . . motion-picture film" is a
criminal offense, 35 Stat. 1088, 1138, 18 U.S.C. (Supp. IV) § 1462,
and importation of any obscene "print" or "picture" is barred. 46
Stat. 590, 688, 19 U.S.C. § 1305. Compare the provision,
"all photographic-films imported . . . shall be subject to such
censorship as may be imposed by the Secretary of the Treasury." 38
Stat. 114 151 (1913), 42 Stat. 858, 920 (1922), repealed 46 Stat.
590, 762 (1930). See Inglis, Freedom of the Movies,
68.

															[ Footnote 2/10 ]

															Life, Jan. 15, 1951, p. 63; Sat.Rev. of Lit., Jan. 27, 1951, pp.
28-29.

															[ Footnote 2/11 ]

															N.Y. Times, Dec. 31, 1950, p. 23, col. 4.

															[ Footnote 2/12 ]

															Inglis, Freedom of the Movies, 120 et seq. [ Footnote 2/13 ] Id. at 74-82.

															[ Footnote 2/14 ]

															Howard Barnes, N.Y. Herald Tribune, Dec. 13, 1950, p. 30, cols.
1-3: "it would be wise to time a visit to the Paris in order to
skip [ The Miracle']. . . . Altogether it leaves a very bad
taste in one's mouth." Bosley Crowther, N.Y. Times, Dec. 13, 1950, p. 50, cols.
2-3:

															"each one of the [three] items . . . stacks up with the major
achievements of the respective directors. . . . ['The Miracle'] is
by far the most overpowering and provocative of the lot."

															N.Y. Times, Dec. 17, 1950, § 2, p. 3, cols. 7-8:

															"a picture of mounting intensity that wrings the last pang of
emotion as it hits its dramatic peak . . . vastly compassionate
comprehension of the suffering and the triumph of birth."

															Wanda Hale, N.Y. Daily News, Dec. 13, 1950, p. 82, cols. 1-3:
"Rossellini's best piece of direction since his greatest, "Open
City." . . . artistic and beautifully done by both the star and the
director."

															Archer Winsten, N.Y. Post, Dec. 13, 1950, p. 80, cols. 1-3:

															"Magnani's performance is a major one and profoundly impressive.
This reviewer's personal opinion marked down the film as
disturbingly unpleasant and slow."

															Seymour Peck, N.Y. Daily Compass, Dec. 13, 1950, 3, cols. 3-5:
" The Miracle' is really all Magnani. . . . one of the most
exciting solo performances the screen has known." Alton Cook, N.Y. World-Telegram, Dec. 13, 1950, p. 50, cols.
1-2:

															"['The Miracle' is] charged with the same overwrought hysteria
that ran through his 'Stromboli.' . . . the picture has an
unpleasant preoccupation with filth and squalor . . . exceedingly
trying experience."

															Time, Jan. 8, 1951, p. 72, cols. 2-3: "[ The Miracle'] is
second-rate Rossellini despite a virtuoso performance by Anna
Magnani." Newsweek, Dec. 18, 1950, pp. 93-94, col. 3:

															"strong medicine for most American audiences. However, it shows
what an artist of Rossellini's character can do in the still
scarcely explored medium of the film short story."

															Hollis Alpert, Sat.Rev. of Lit., Jan. 27, 1951, pp. 28-29:

															"Pictorially the picture is a gem, with its sensitive evocation
of a small Italian town and the surrounding countryside near
Salerno. . . . Anna Magnani again demonstrates her magnificent
qualities of acting. The role is difficult. . . ."

															"But my quarrel would be with Mr. Rossellini, whose method of
improvisation from scene to scene . . . can also result in
extraneous detail that adds little, or even harms, the over-all
effect."

															[ Footnote 2/15 ]

															N.Y. Times, Dec. 28, 1950, p. 22, col. 1.

															[ Footnote 2/16 ] Id., Dec. 24, 1950, p. 1, cols. 2-3.

															[ Footnote 2/17 ] Joseph Burstyn, Inc. v. McCaffrey, 198 Misc. 884, 101
N.Y.S.2d 892.

															[ Footnote 2/18 ]

															N.Y. Times, Jan. 8, 1951, p. 1, col. 2. The Cardinal termed "The
Miracle" "a vile and harmful picture," "a despicable affront to
every Christian" ("We believe in miracles. This picture ridicules
that belief"), and finally "a vicious insult to Italian womanhood."
As a consequence, he declared:

															"we, as the guardians of the moral law, must summon you and all
people with a sense of decency to refrain from seeing it and
supporting the venal purveyors of such pictures. . . ." Id. at p. 14, cols. 2-3.

															For completeness' sake, later incidents should be noted.
Picketers from the Catholic War Veterans, the Holy Name Society,
and other Catholic organizations -- about 1,000 person in all
during one Sunday -- paraded before the Paris Theatre. 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. A smaller number of counterpickets appeared on
several days. Id., Jan. 10, 1951, p. 22, col. 6; Jan. 20,
1951, p. 10, cols. 4-5. See also id. Jan. 23, 1951, p. 21,
col. 8; Jan. 25, 1951, p. 27, col. 7.

															The Paris Theatre on two different evenings was emptied on
threat of bombing. Id., Jan. 21, 1951, p. 1, cols. 2-3;
Jan. 28, 1951, p. 1, cols. 2-3. Coincidentally with the proceedings
before the New York Board of Regents which started this case on the
way to this Court, the Paris Theatre also was having difficulties
with the New York City Fire Department. The curious may follow the
development of those incidents, not relevant here, in the N.Y.
Times, Jan. 21, 1951, p. 53, cols. 4-5; Jan. 27, 1951, p. 11, col.
3; Feb. 6, 1951, p. 29, col. 8; Feb. 10, 1951, p. 15, col. 8; Feb.
15, 1951, p. 33, col. 2.

															[ Footnote 2/19 ]

															Excerpts from letters and statements by a great many clergymen
are reproduced in the Record before this Court, pages 95-140. The
representative quotations in the text are from letters written by
the Rev. H. C. DeWindt, Minister of the West Park Presbyterian
Church, New York City, R. 97, and the Rev. W. J. Beeners of
Princeton, New Jersey, R. 98, respectively.

															[ Footnote 2/20 ]

															Catholic opinion generally, as expressed in the press, supported
the view of the Legion of Decency and of Cardinal Spellman. 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. 3-4; Martin Quigley,
Jr., " The Miracle' -- An Outrage"; The [San Francisco] Monitor,
Jan. 12, 1951, p. 7, cols. 3-4 (reprinted from Motion Picture
Herald, Jan. 6, 1951); The [Boston] Pilot, Jan. 6, 1951, p. 4.
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. [ Footnote 2/21 ]

															Spaeth, "Fogged Screen," Magazine of Art, Feb., 1951, p. 44;
N.Y. Herald Tribune, Jan. 30, 1951, p. 18, col. 4.

															[ Footnote 2/22 ]

															Clancy, "The Catholic as Philistine," The Commonweal, Mar. 16,
1951, pp. 567-569.

															[ Footnote 2/23 ]

															The Commonweal, Mar. 2, 1951, pp. 507-508. Much the same view
was taken by Frank Getlein writing in The Catholic Messenger, Mar.
22, 1951, p. 4, cols. 1-8, in an article bearing the headline:
"Film Critic Gives Some Aspects of The Miracle' Story: Raises
Questions Concerning Tactics of Organized Catholic Resistance
Groups in view York." See also "Miracles Do Happen," The
New Leader, Feb. 5, 1951, p. 30, col. 2. [ Footnote 2/24 ]

															N.Y. Times, Feb. 1, 1951, p. 24, col. 7.

															[ Footnote 2/25 ] 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.

															[ Footnote 2/26 ]

															That such offensive exploitation of modern means of publicity is
not a fanciful hypothesis, see N.Y. Times, April 14, 1952,
p. 1, col. 4.

															[ Footnote 2/27 ] In the Matter of "The Puritan," 60 N.Y.St.Dept. 163
(1939); In the Matter of "Polygamy," 60 N.Y.St.Dept. 217
(1939); In the Matter of "Monja y Casada -- Virgen y
Martir" ("Nun and Married -- Virgin and Martyr"), 52
N.Y.St.Dept. 488 (1935).

															[ Footnote 2/28 ]

															Since almost without exception "sacrilegious" is defined in
terms of "sacrilege," our discussion will be directed to the latter
term. 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. Of the nature of sacrilege; as, sacrilegious
deeds."

															[ Footnote 2/29 ]

															For general discussions of "sacrilege," see Encyclopaedia of Religion and Ethics (Hastings ed., 1921),
"Sacrilege" and "Tabu"; Rev. Thomas Slater, A Manual of Moral
Theology (1908), 226-230; The Catholic Encyclopedia (1912),
"Sacrilege", and Encyclopaedia Britannica, "Sacrilege."

															[ Footnote 2/30 ]

															Encyclopaedia Britannica (1951), "Sacrilege."

															[ Footnote 2/31 ] Ibid. [ Footnote 2/32 ] See Encyclopaedia of Religion and Ethics (Hastings ed.,
191), "Tabu."

															[ Footnote 2/33 ]

															Encyclopaedia Britannica (1951), "Sacrilege."

															[ Footnote 2/34 ]

															St. Thomas Aquinas, Summa Theologica, part II-II, question 99.
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. . . ." See Bouscaren and
Ellis, Canon Law (1946), 857. 2 Woywod, A Practical Commentary on
the Code of Canon Law (1929), par. 2178, 477 478, thus defines
sacrilege:

															"Sacrilege consists in the unworthy use or treatment of sacred
things and sacred persons. Certain things are of their nature
sacred ( e.g., the Sacraments); others become so by
blessing or consecration legitimately bestowed on things or places
by authority of the Church. Persons are rendered sacred by
ordination or consecration or by other forms of dedication to the
divine service by authority of the Church ( e.g., by first
tonsure, by religious profession)."

															[ Footnote 2/35 ]

															After his method of raising objections and then refuting them,
St. Thomas Aquinas defends including within the proscription of
"sacrilege," anyone "who disagree[s] about the sovereign's
decision, and doubt[s] whether the person chosen by the sovereign
be worthy of honor" and "any man [who] shall allow the Jews to hold
public offices." Summa Theologica, part II-II, question 99, art.
1.

															[ Footnote 2/36 ]

															Rev. Thomas Slater, S. J., A Manual of Moral Theology (1908), c.
VI, classifies and illustrates the modern theological view of
"sacrilege":

															Sacrilege against sacred persons: to use physical violence
against a member of the clergy; to violate "the privilege of
immunity of the clergy from civil jurisdiction, as far as this is
still in force"; to violate a vow of chastity.

															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.

															Sacrilege against sacred things: to treat with irreverence,
contempt, or obscenity the sacraments (particularly the Eucharist),
Holy Scriptures, relics, sacred images, etc., to steal sacred
things, or profane things from sacred places; to commit simony; or
to steal, confiscate, or damage willfully ecclesiastical property. See also The Catholic Encyclopedia, "Sacrilege."

															[ Footnote 2/37 ]

															Sir Henry Spelman, The History and Fate of Sacrilege (2d ed.,
1853), 121-122. Two priests of the Anglican Church prepared a long
prefatory essay to bring Spelman's data up to the date of
publication of the 1853 edition. Their essay shows their
understanding also of "sacrilege" in the limited sense. Id. at 1-120.

															[ Footnote 2/38 ]

															2 Russell, Crime (10th ed., 1950), 975-976; Stephen, A Digest of
the Criminal Law (9th ed., 1950), 348-349. See 23 Hen.
VIII, c. 1, § III; 1 Edw. VI, c. 12, § X; 1 Mary, c. 3, §§
IV-VI.

															[ Footnote 2/39 ]

															7 & 8 Geo. IV, e. 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
. . . [he] shall suffer Death as a Felon." This statute was
interpreted to apply only to buildings of the established church. Rex v. Nixon, 7 Car. & P. 442 (1836).

															[ Footnote 2/40 ]

															7 & 8 Geo. IV, c. 29, § X, was repealed by 24 & 25
Vict., c. 95. The Larceny Act and the Malicious Injuries to
Property Act, both of 1861, treated established church property
substantially the same as all other property. 24 & 25 Vict., c.
96, § 50; e. 97, §§ 1, 11, 39, superseded by Larceny Act, 1916, 6
& 7 Geo. V, c. 50, § 24.

															[ Footnote 2/41 ]

															Blackstone, bk. IV, c. 4, 41-64.

															[ Footnote 2/42 ] Compare the definitions Of "sacrilege" and "blasphemy"
in the dictionaries, starting with Cockeram's 1651 edition, which
are collected in the Appendix, post, p. 343 U. S.
533 .

															[ Footnote 2/43 ]

															Bailey An Universal Etymological English Dictionary (London,
1742), "Sacrilege."

															[ Footnote 2/44 ]

															Barclay, A Complete and Universal English Dictionary (London,
1782), "Sacrilege."

															[ Footnote 2/45 ] Id., "Blasphemy."

															[ Footnote 2/46 ]

															Thomas Blount, Glossographia (3d ed., London, 1670).

															[ Footnote 2/47 ]

															Webster's Compendious Dictionary of the English Language (1806):
"Sacrilege" -- "the robbery of a church or chapel." "Sacrilegious"
-- "violating a thing made sacred."

															Webster's American Dictionary (1828): "Sacrilege" -- "The crime
of violating or profaning sacred things; or the alienating to
laymen or to common purposes what has been appropriated or
consecrated to religious persons or uses." " Sacrilegious" --
"Violating sacred things; polluted with the crime of
sacrilege."

															Webster's International Dictionary (G. & C. Merriam &
Co., 1890): "Sacrilege" -- "The sin or crime of violating or
profaning sacred things; the alienating to laymen, or to common
purposes, what has been appropriated or consecrated to religious
persons or uses." "Sacrilegious" -- "violating sacred things;
polluted with sacrilege; involving sacrilege; profane;
impious."

															Webster's New International Dictionary (G. & C. Merriam Co.,
1st ed., 1909): "Sacrilege" -- "The sin or crime of violating or
profaning sacred things; specif., the alienating to laymen, or to
common purposes, what has been appropriated or consecrated to
religious persons or uses." "Sacrilegious" -- "Violating sacred
things; polluted with, or involving, sacrilege; impious." Repeated
in the 1913, 1922, 1924, 1928, 1933 printings, among others.

															Webster's New International Dictionary (G. & C. Merriam
Co.,2d ed., 1934): "Sacrilege" -- "The crime of stealing, misusing,
violating, or desecrating that which is sacred, or holy, or
dedicated to sacred uses. Specif.: a R. C. Ch. The sin of
violating the conditions for a worthy reception of a sacrament. b
Robbery from a church; also, that which is stolen. c Alienation to
laymen, or to common purposes, of what has been appropriated or
consecrated to religious persons or uses." "Sacrilegious" --
"Committing sacrilege; characterized by or involving sacrilege;
polluted with sacrilege; as, sacrilegious robbers, depredations, or
acts." Repeated in the 1939, 1942, 1944, 1949 printings, among
others.

															[ Footnote 2/48 ]

															1 Funk & Wagnalls' Standard Dictionary of the English
Language, which was first copyrighted in 1890, defined sacrilege as
follows in the 1895 printing: "1. The act of violating or profaning
anything sacred. 2. Eng.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. (2) Formerly, the
selling to a layman of property given to pious uses." This
definition remained unchanged through many printings of that
dictionary. The current printing of Funk & Wagnalls' New
Standard Dictionary of the English Language, first copyrighted in
1913, carries exactly the same definition of "sacrilege" except
that the first definition has been expanded to read: "The act of
violating or profaning anything sacred, including sacramental vows
."

															Funk & Wagnalls' Standard Dictionary (1895) defined "to
profane" as "1. To treat with irreverence or abuse; make common or
unholy; desecrate; pollute. 2. Hence, to put to a wrong or
degrading use; debase." The New Standard Dictionary adds a third
meaning: "3. To vulgarize; give over to the crowd."

															[ Footnote 2/49 ]

															Encyclopaedia Britannica,2d ed., 1782: "Sacrilege" -- "the crime
of profaning sacred things, or those devoted to the service of
God."

															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."

															8th ed., 1859: "Sacrilege" -- same as 3d ed., 1797.

															9th ed., 1886: "Sacrilege" -- A relatively short article the
author of which quite apparently had a restricted definition for
"sacrilege": "robbery of churches," "breaking or defacing of an
altar, crucifix, or cross," etc.

															[ Footnote 2/50 ]

															Encyclopaedia Britannica (11th ed., 1911), "Sacrilege."

															[ Footnote 2/51 ]

															Schroeder, Constitutional Free Speech (1919), 178-373, makes a
lengthy review of "Prosecutions for Crimes Against Religion." The
examples in the text are from Schroeder. See also Encyclopaedia of the Social Sciences, "Blasphemy"; Encyclopaedia of
Religion and Ethics, "Blasphemy"; Nokes, A History of the Crime of
Blasphemy (1928).

															[ Footnote 2/52 ]

															1 Yorke, The Life of Lord Chancellor Hardwicke (1913), 80,
writes thus of the prosecution of Thomas Woolston for
blasphemy:

															"The offence, in the first place, consisted in the publication
in 1725 of a tract entitled A Moderator between an Infidel and
an Apostate, in which the author questioned the historical
accuracy of the Resurrection and the Virgin Birth. Such
speculations, however much they might offend the religious feeling
of the nation, would not now arouse apprehensions in the civil
government, or incur legal penalties; but at the time of which we
are writing, when the authority of government was far less stable
and secure and rested on far narrower foundations than at present,
such audacious opinions were considered, not without some reason,
as a menace, not only to religion but to the state."

															[ Footnote 2/53 ] See, e.g., Rex v. Boulter, 72 J.P. 188 (1908); Bowman v. Secular Society, Ltd., [1917] A.C. 406.

															[ Footnote 2/54 ] Reg. v. Ramsay, 15 Cox's C.C. 231, 238 (1883) (Lord
Coleridge's charge to the jury); Bowman v. Secular Society,
Ltd., [1917] A.C. 406.

															[ Footnote 2/55 ]

															The latest available statistics of the Bureau of the Census give
returns from 256 denominations; 57 other denominations, which did
not report, are listed. Bureau of the Census, Religious Bodies:
1936, Vol. I, iii, 7.

															[ Footnote 2/56 ]

															It is not mere fantasy to suggest that the effect of a ban of
the "sacrilegious" may be to ban all motion pictures dealing with
any subject that might be deemed religious by any sect. The
industry's self-censorship has already had a distorting influence
on the portrayal of historical figures.

															"Pressure forced deletion of the clerical background of Cardinal
Richelieu from The Three Musketeers. The [Motion Picture
Production] code provision appealed to was the section providing
that ministers should not be portrayed as villains."

															Note, "Motion Pictures and the First Amendment," 60 Yale L.J.
696, 716, n. 42.

															The press recently reported that plans are being made to film a
"Life of Martin Luther." N.Y. Times, April 27, 1952, § 2, p. 5,
col. 7. Could Luther be sympathetically portrayed and not appear
"sacrilegious" to some; or unsympathetically, and not to
others?

Summary: In Joseph Burstyn, Inc. v. Wilson, the Supreme Court ruled that expression through motion pictures falls under the protection of the First Amendment, which guarantees freedom of speech and freedom of the press. The Court struck down a New York law that allowed censors to deny licenses to films deemed "sacrilegious," holding that such prior restraint on speech was unconstitutional. The Court recognized the significance of motion pictures as a medium for ideas and expression, regardless of their entertainment value or profit motive. While acknowledging concerns about potential negative influences on youth, the Court emphasized that motion pictures are entitled to First Amendment protection like other forms of expression. This case set an important precedent for safeguarding free speech in the film industry and limiting government censorship.