*1 Y. Doran, per 246 N. (People 409, 428, be is insufficient.” will as to the speculate J., We concurring.) Andrews, rights indulge defendant’s of the error impact of prejudice arising to the amount nice calculations States, supra, v. United (Glasser therefrom. trial and a new ordered. be reversed, conviction should Dye Lewis, J.; Fuld, JJ., concur Froessel,
Conway, J., which Ch. Desmond, opinion dissents Loughran, J., concur. J., affirmed.
Judgment Joseph against Inc., Appellant, In the Matter of Burstyn, the State of Education of A. Commissioner Wilson, Lewis al., Respondents. et 1, 1951; decided October 1951. Argued June *3 n Lee, Simpso Leonard P. H. Clendon London, S. Ephraim I. have no M. Regents Burg for appellant. Seymour motion picture review the film license to revoke Towner, (Cannon v. 188 a license. in granting action division’s 289 Regents, Board 148; N. Y. Cherry v. 955; Matter Misc. of of if II. Even there were 680.) 338 S.U. Alpers, States v. United for legal justification was no there authority, statutory (United Artists ”. Miracle the licenses of revocation 146; Matter Corp., 188 Misc. Amusement Amity v. Corp. of Authority, & Tunnel App. 276 Bridge Triborough v. Reynolds Matter Div. 431; 256 App. v. Byrne, Mayer Matter 388; Div. of
245 Corp. Realty D & D Matter Coster, Div. App. 668; v. 277 of of System Employees’ Board New Retirement York State v. of Supervisors, 496; Y. Misc. 251 Div. 278 N. App. 157 Matter Hall Matter Bohrer Coster, v. 195 Misc. 274; v. Translux Walsh, Matter 221 Div. App. 756; Misc. 448, 137 Corp., Brooklyn Theaters 19, 1934, p. 2473, N. L. Dec. J., Y. Hoe, ex rel. Butterworth United States 112 50; U. col. S. 12; v. Regents, Board Matter L’Hommedieu Div. App. 276 v. the Regents law as construed censorship III. The 494.) and the constitutional guarantees liberty violates the (Illinois ex rel. McCollum v. separation of Church State. Educ., v. Board Educ., Board Everson 330 333 U. S. 203; Virginia Barnette, 319 U. Bd. Educ. v. West State S. S. 1; U. Connecticut, Cantwell under IV. The law 296.) v. 310 U. 624; S. which acted unconstitutional restraint Regents imposes jean (Gr os v. on and communication. expression freedom of Jonge Oregon, Co., American Press De v. 299 233; 297 S. U. City Lowry, 301 Lovell v. Herndon U. S. 353; 242; S. v. U. Pictures, Inc., Paramount States v. Griffin, United 303 444; U. S. York, Kovacs New Saia v. v. 334 S. 558; 334 U. U. 131; S. Cooper, Maryland, 4 McCulloch v. 336 U. Wheat. 77; [U. S.] S. Corp. Ohio, 236 Industrial Mutual Comm. S. v. U. 316; v. Minnesota ex rel. York, New Near Gitlow v. 230; 652; Hannegan Collins, Olson, Thomas 516; U. 697; S. Esquire, Winters v. Inc., 146; Carroll, Laboratories Perkins Dumont 2d F. Corp., Endicott Johnson 2d 128 F. *4 Jr., Fraenkel, K. Herbert Monte Alford,
Newell G. Osmond Levy Markewich and Robert for New York Civil Liberties City curiæ, amici support appellant’s and another, Committee Board of has no Regents express The I. position. motion granted the license divi to revoke implied of the First the ends Amendment, II. To serve sion. Even if protection. receive its movies were mere must
pictures protected would still be the First Amend entertainment, they (Mutual Film not now mere entertainment. But they ment. Hannegan Corp. Ohio, 236 Industrial Comm. 230; v. U. S. v. Esquire, York, v. New Winters Inc., 333 U. 146; 507.) 327 U. S. S. 246 Only Corp.
III. after the Mutual case was it held that the protects speech First Amendment, via the from Fourteenth, (Bridges 252.) State action. v. 314 California, U. The S. IV. censorship previous New York State law establishes admin inevitably istrative the form of restraint which restraint, completely press. (Leach most violates freedom the v. gent Carlile, 258 Lar 138; U. v. 318 Ameri Texas, 418; S. U. S. 382.) can Assn. 339 Douds, Communications v. U. V. Revoca S. finding tion or denial of a for a film a license on that it is sacri legious ais of the First and Fourteenth violation Amendments sacrilege to the The United Constitution. standard of States vagueness. (Connally void for General 269 Co., v. Constr. U. S. Grocery Co., v. 255 U. S. v. 385; 81; United States Cohen Jordan George, York, New 340 223; 290; De 341 S. Kunz v. U. Corp. Waugh Corp., v. Chemical & Metals Standard Chemicals sacrilege statutory 51.) ban A on is void as 231 N. Y. VI. religion. (Everson Educ., v. Board 330 S. U. establishment Regina Regina Ramsay v. Brad 231; & 15 Cox C. C. Foote, v. 1; laugh, Kneeland, v. 37 Mass. 217; Commonwealth 15 Cox C. C. Ruggles, People v. Harr. Chandler, State 290; Johns. 206; City, Lynch Oney 2d 861; 120 F. [Del.] 553; v. Oklahoma Chicago, Supp. Muskogee, City Terminiello 589; 47 F. Virginia Barnette, Educ. v. Bd. State U. S. West 1; 624.) Religious Metropolitan Lib for Committee Seid for
Herman appellant’s position. support I. The erty, curiæ, amicus expression limited freedom of covers Amendment First prin- printed speech The constitutional word. II. vocal by separation has been violated ciple and State of Church picture for the motion Regents’ the license cancellation “ Sacrilege under the has no status Consti- III. ”. Miracle group to bar a film on the entitled IV. No tution. sacrilege. ground of Equity Chapter, Artists York New
Emanuel Redfield appellant’s position. support of curiæ, amicus Association, ground the film was sacri- license on revocation I. (Winters S. legious unconstitutional. Ryan, Refining Schechter v.Co. Panama II. revoke To Corp. States, 295 U. Poultry v. United
247 process. the license on a of new construction is a denial due (Lanzetta Jersey, 451.) pic v. New 306 III. The motion U. S. provisions licensing ture of are unconstitutional as an invasion expression Corp. (Mutual the free of ideas. v. Industrial Ohio, 652; Comm. 236 U. 268U. 230; S. Gitlow v. New S. Hannegan Near v. Olson, Minnesota ex rel. 283 v. 697; S.U. Esquire, Inc., Alabama, 327 Thornhill v. 310 146; U. S. S.U. parte 727.) 88; Ex Jackson, 96 U. S. Joseph Philip Maslow, Pfeffer,
Will Leo B. Robison and Baum Congress, support for American curiæ, Jewish amicus appellant’s position. I. The rationale and effect of section 122 of the Education Law is aid and in an assist establishment religion contrary to the mandate of the First Fourteenth (Davis Bury Chappel, Gardiner, v. 4 Amendments. Coke v. 16b; Ireland, 1 Gouldsb. v. & 135; Smith, 12; Br. Gold. v. Palmer Thorpe, Specot’s Lyne, 4 5 28; Case, Coke 57b; Coke Nicholson v. Hopkins, Cro. Eliz. v. Eliz. 94; Halwood Cro. II. Section requiring pass upon 1 22 of the Law Education the State to reli gious penalize sacrilegious views and those found involves religious liberty State affairs and restricts (Davis contravention First Fourteenth Amendments. Reynolds v. Beason, v. 133U. 333; States, S. United 98 U. 145; S. Ballard, 78; Jones, United v. 322 v. States Watson 80 S. Virginia Barnette, Bd. v.
679; West State Educ. Hampshire, Chaplinsky 315 624; 568; v. New Panama Refin ing Ryan, Flag 388; Co., Co. v. 293 U. United v. Dettra States Supp. 84.) 86 F. Brind, Jr., Charles P. Jehu, A. John Elizabeth M. Eastman George Farrington respondents. B. I. The Miracle sacrilegious per legally se; it not be exhibited in the Regents only duty have the
State;
but
is their
(Hughes
Fielding,
to revoke the license.
Tool
v.
188 Misc.
Co.
App.
Realty
Div.
947,
Corp.
1024;
272
N. Y.
Matter D & D
297
of
Equitable
App.
v. Coster,
668;
277
Div.
Matter
Trust
Hamilton,
Co. v.
226 N. Y.
Matter
v. Board
241;
Walker
Regents,
McInerney
418;
Valentine,
269 N. Y.
Matter
181
App.
Misc.
Matter Katz
1062;
Goldwater,
Div.
Municipal
Comm.,
N. Y.
Matter
Civil Service
Stanton
Ryan,
App.
189 Misc.
Matter
Lanza
Div.
*6
App.
Delaney,
581;
N. Y.
255
Div. 385,
v.
Matter
O’Brien
of
People
Finnegan McBride, 226 N. Y.
Patrick J. C. George Timone New York Catholic A. State R. Chandler support respondents’ curiæ, in of Committee, amicus Welfare Appellate correctly position. that there Division held I. The Regents that The decision basis for the of was reasonable sacrilegious. Appellate correctly II. The Division Miracle arbitrary Regents action of held that unless (Matter power findings. capricious, their it had no to override App. Foy 253 Div. Ltd., Graves, v. 278 Productions, Corp. Lord, v. 224 Pictures 498; Matter Public N. Y. Welfare Stoddard, Distinguished App. Films 271 Matter v. 311; Div. App. 842.) Appellate Division App. Div. III. 272 Div. 715, Regents to cancel a correctly have the license held (Pathe contrary their to law own subordinates. granted 249 People App. v. Div. 236 N. Inc., Cobb, 539; Y. Exch., Regents, Board v. 196 N. Y. Matter Walker v. Ahearn, 221; Delaney, App. Matter Div. 269 N. Y. O’Brien 418; Municipal 280 Y. Matter Stanton v. Civil Service 697; N. McInerney v. Valentine, Matter 189 Misc. Comm., 782; Ottinger 49.) Voorhis, 241 N. Y. Matter Misc. licensing the claim that the no substance to There is IV. speech. pictures restraint on free is an unconstitutional Corp. (Mutual Industrial Ohio, Comm. Inc., Lehman, There Productions, V.
Eureka
the claim that the denial of a license
no
likewise
substance
an unconstitutional
interference with
Miracle
to The
*7
religion.
(State Mockus,
25Ó petitioner opportunity viewing giving
After the film and reported to be that there heard, subcommittee was basis picture sacrilegious, claim that the and recommended that Regents participate view the film. Petitioner declined to hearing appear specially than other before the subcom- purpose challenging jurisdiction mittee for the Regents Joseph cancel the but its sole licenses, stockholder, appeared Burstyn, as an individual and filed brief.
Thereupon February reviewing and on after 16, 1951, Regents adopted unanimously and the entire record, rescinding canceling a resolution their licenses sacrilegious, determination that The Miracle and not petitioner entitled to a license under the law.* Thereafter insti present proceeding tuted the article 78 to review that determina Regents powerless urges (1) tion, and now were review action of its motion division or to revoke the (2) sacrilegious provide word licenses; does not sufficiently (3) Regents definite for action; standard exceeded authority; (4) their the statute is unconstitutional inas viola tion the First and Fourteenth Amendments of the Consti tution of the States that denial or revocation of United sacrilege religious liberty license on account of interferes (5) wall between and breaches the Church and State; prior is unconstitutional toto as a on statute restraint right speech guaranteed by *8 of free the First Fourteenth Appellate Amendments of the Federal Constitution. unanimously confirmed Division the determination of the Regents. principal argument petitioner by
First: advanced Regents power directed toward the claim that have no by under the statute rescind license once issued the motion upon charge procure- division, unless of fraud in the subsequent by Any ment thereof or misconduct the licensee. inequi- other construction of the it is would said, be statute, petitioner, spent money relying upon which table ‘to has Regents, on license as issued. The the other hand, contend empowered they were under the Education Law and our challenged. State Constitution make determination here Law, § 122. * Education primarily statutory This issue, construction, is one then, turning upon Legislature the intention as found in the language by of the statutes. It is resolved answer to the question: Legislature granting Did the intend Depart- license a subordinate officialof the State Education binding ment should abe determination final and irrevocable, department, public on the head of his all courts and for Equitable time? As we in Matter said Hamilton Trust Co. v. (226 245) dependent every question N. Y. That case a for its answer the scheme of the statute which ’’ is conferred. pattern considering conferring power,
In the statute we should note the framework fact and circumstance in which particularly are to examined, statutes the nature problem dealing. pictures, by with which we are Motion very present problem. unique primar They their nature, ily expression entertainment, rather than the of ideas, and are engaged profit (Mutual Corp. in for Film v. Industrial Comm. Film Ohio, Mutual v.Co. Industrial Comm. Corp. Hodges, 248). Ohio, U. S. Mutual 236 S. appeal They young have universal literate illiterate, They may good, all old, of exercise influence classes. but potentiality especially among young, their for evil, is bound (202 App. Exch., Inc., As less. was said Pathe v. Cobb Div. original Y. 457, affd. 236 where we N. sustained the (L. 715) creating statute ch. the “motion com respect “many mission current events films: would cast discretion self-control to winds, restraint, without give social or moral. those There are who would unrestrained * * * passion. appreciate They rein to the business advantage depicting voluptuous thing the evil and with the poisonous public showing charm.” A of an indecent, obscene, sacrilegious immoral film do incalculable harm, and the provision making against State, the threat of such harm (Education 122), may protection § afford as broad Law, danger presented. police awith valid are thus concerned exercise of the
We *9 supra; (Mutual 64 cases, Note A. L. R. 505, and supra) Exch., Inc., Pathe cited; Cobb, cases therein by acquired rights thereunder. rights licensees Such are 252 (People
contractual the constitutional sense ex rel. Lodes Department Health, 189 N. Y. 12 Am. 187; Con- Jur., of stitutional 65). § 405; Am. Law, Jur., Licenses, §§ 21, general This is the notwithstanding expenditure rule the of money by a licensee in although reliance the license, there authority contrary the building permits (33 in the case of Am. People Jur., Department Licenses, § ex Lodes rel. of supra, Health, distinguishing p. City at 196, Buffalo Chadeayne, 163). rights gained N. Y. Moreover, under the accepted statute are with whatever conditions or reservations the statute precepts attach to them. With these in mind, light problem the Legislature with which the dealt, may properly we statutory turn to a consideration the scheme. pictures original body licensing
The for the of motion independent an exhibition in this was State commission created chapter appointed by of the Laws of 1921, its members advice and the and with the consent the Governor, Senate. licensing provisions for were similar to those now in the While there was an essential difference the the Education Law, independent nature of the due the therein scheme embodied expressly given all the then which was commission, former Begents. the functions of granted In powers now Department to the transferred were commission motion (L. 1926, was abolished commission old Education present 312). In Departments Law, § ch. State Law incorporated Education into the statute form changes 29). These 153, §§ (L. ch. thereof article appear. fully more presently as will significant, were existing body, since a constitutional Begents are The head They 2). named are §XI, (N. Const., art. Y. three paragraph as same in the Department Education Comptroller Governor, State, officers elective chief provision of latter 4). (art. § V, Attorney-General at “appoint and Begents to empowers the Constitution our chief education commissioner remove pleasure placing mere department.” officer administrative Educa Department of commission henceforth Begents should intention indicates tion agency. authority over complete exercise *10 explicit by Moreover, language, Legislature gave the to the Regents as head of Department the Education all of the broad powers supervision of control possessed and formerly by the independent leaving picture commission, to the motion division “ ” only (Education the licensing administrative work Law, 132). by §§ 101, 103, Thus, section 101 of the Education Law, “ ” Department the charged Education “is with the exercise of ’’ 6‘ all department, the functions perform- of the and with the- “ ” powers once of all” the and duties from transferred the “ independent picture commission, former motion whether in ” “ ” department terms in vested such inor division thereof (emphasis supplied), performance and such authorized ‘‘ ’’ by through appropriate by the officer or division; the “ Regents same the section are continued as the head of the ’ department prescribed Regents ’, the Constitution. The appoint employees picture director, the and of the officers motion compensation, assign fix their duties to the division, division, “ ” prescribe powers the and duties local and offices, establish “ (Education 121). form, manner and sub Law, The §§ ” by prescribed applications Education the of license stance (Education picture Department, by division the motion and not 127). Law, § Regents an license before the denial must review “ right given applicant, of review who is
unsuccessful (Educa- proceeding regents an article 78 can avail himself ”, right where corresponding of review 124). A § tion Law, powers implicit the broad be deemed must issued was license language any additional rendering needless board, withhold to Legislature intends grant; express when way of respect department head of power from review department, so it does agency finding an relations], § 702, [labor (Labor language Law by express 4). Law, subd. Compensation § Workmen’s subd. provisions authority enforce Regents Finally, have regulations and rules make and to purposes the statute (Education purposes enforcing [its] carrying out and provision is supplied). latter emphasis This Law, § although (§ and, original directly statute from the taken transferring functions enactment in the 1926 not embraced precise commission, independent motion authority expressly given Regents by was the 1927 (Education 1092). power amendment Law, § former enforce embraces the to correct the action of a subor- specific provisions purposes dinate, one of the sacrilegious act is that no films licensed.
From all of this it is clear division subject Department and subordinate to the Education Regents, independent (cf. thereof Butterworth altogether Hoe, United States ex rel. which pattern appeal involved, different statute was and where an *11 expressly the authorized from commissioner to the either court, directly by original equity). or an means of suit in Even such may by now be the functions as exercised director of the division upon by under other the statute be exercised officials author Regents (Education by 122). the Law, ization §§ 120, Without question, Regents then, the statute constitutes the main the system spring up. deny entire of the therein set To them the power the action of a to correct when the ultimate subordinate, upon responsibility naught would at the them, rests be to set plan Legislature. power by the Such whole established elaborate powers expressly granted the to exercise the is essential Corp (Lawrence 634, 293 Y. State N. Constr. 639). interpretation petitioner’s to the Education Law were
If"
super
adopted,
or
either of
administrative
no
be
review
(see
through
Penal
courts
visory
the
or criminal
or
civil
nature,
Hughes
v.Co.
by
Tool
ch.
L.
as amd.
Law, §
App.
Y.N.
Div.
affd. 297
Fielding,
affd. 272
188 Misc.
granting
in the
a license
a subordinate
action of
the
Legislature.
by
most
provided
Thus the
the
first instance
presenta
depraved
sacrilegious or
immoral,
obscene,
indecent,
picture film,
through
motion
might
medium of
the
made
tion
be
slip,
on
or mistake
provided only
inadvertence
was some
there
superiors,
leaving
courts,
the
part
his
reviewer,
would
powerless
It
the situation.
public generally
to correct
public
protect
from
plan
statutory
simply
mean
sec
general
under
exhibition
licensed
forbidden
films
persons
two
judgment
of one
entirely
tion 122 rests
determination
favorable
whose
division,
in the
People of the
binding on the
irrevocably
first instance is
part
State New York. Such intention on
Legisla-
utterly
ture would seem to be so
unreasonable and out of
harmony
public policy
with basic
in these matters as to be
(People
unthinkable
227).
Ahearn,
Accordingly, opinion Regents we are of the that the have *12 power to review the action of motion division granting pictures, rightfully a license to exhibit and jurisdiction exercised its in this case. delegates legislative
Second: To the claim that the statute power adequate may without a short answer be made. standards, provides Section 122 the Education Law that license shall “ be issued such for the unless film, exhibition of a submitted part film inhuman, or a immoral, thereof indecent, is obscene, sacrilegious, or is that its exhibition would of such character corrupt Only tend to incite to crime ”. the word morals or “ ” sacrilegious dictionary, is attacked for indefiniteness. necessary were it however, thereof, furnishes clear definition “ anything profaning e.g., violating to seek one, as, or the act of Dictionary [1937 (Funk Wagnall’s sacred” & New Standard ed.]). recognizing cri- difficulty the limits of There is no problem terion no either thus have had established, the courts “ “ ” profane synonym, ”. sacrilegious with the word with its Corp. Hodges (236 supra), 248, In Mutual U. S. delegation legislative contention that there was invalid rejected provided was where statute that censor “ approve should such films as were found to moral and be proper disapprove sacrilegious, are inde- obscene, such as ” corrupt (p. 257, cent or or such as to morals immoral, tend emphasis supplied). (333 507, In v. New York U. Winters S. “ publications subject 510) it if is stated control ” sup- profane (emphasis they are obscene or lewd, indecent, Hampshire (315 plied). Chaplinsky v. New 568, In 571-572) “ : Murphy declared for a unanimous court Justice Mr. narrowly limited classes of
There are certain well-defined punishment speech, prevention of which never have problem. thought These include been to raise Constitutional ” supplied). (emphasis profane the lewd and obscene, profane Congress word itself has found Indeed, and criminal sanctions administrative standard for both useful meaning by language uttering profane against means those 156, (Dumont Carroll, 184 F. 2d Laboratories v. of radio 47, § U. tit. subd. Code, S. certiorari denied par. see, also, tit. § 1464; [1], [D]; Code, cl. [m], 2072). Law, § Penal sacrilegious Accordingly, claim that the word does may passed sufficiently provide definite standard with- without since it is substance. consideration, further out Regents contention that now turn Third: We powers. their exceeded power, urges had the if the board there even that,
Petitioner Appellate justification course, as the Of no for revocation. was App. (278 260): opinion, Div. said in its below, Division “ pro applicable all administrative rule, familiar Under the determination made unless ceedings, not interfere we reach.” This rule mind could reasonable no one agencies, administrative not to applies courts Productions, Ltd., Graves, Foy (Matter Regents. *13 Y. 278 N. App. affd. Div. question. The so-called film all viewed have We expressing simply unsworn communications are which
exhibits, principal help basis us. opinions, little are of personal picture sacrilege itself, in the found charge is for personalities passages scriptural as a involved, use of back ground portrayal of the and their characters, actions, portions script together other and of the with the title “ very way At the It featured as love film itself. is pas given affection, ardent are this definition: outset, we il passion, God, sexual men’s adoration of sionate attachment, gratification, devotion ”. ’ ‘‘ question no miracle The Miracle film in is called While the contrary, of a demented we have the shown; on peasant girl complete stranger meeting whom addresses she script, Joseph beginning very refer- of the as At the “ Saint. “ ” Joseph Joseph, Mary first ence is made to Saint Jesus, “ Scriptural passages referring causes her to become intoxicated. (Luke 22:19), Holy nativity and to Sacrament of Christ (Matthew freely employed 1:20), immediately are after she states she not well. A blackout in the film, its association story, compels with that the inference sexual intercourse ” conception Joseph ensue. Saint abandons her imme- “ diately following pregnant, later seduction, she is found religious procession staged and a mock in her honor; she is “ crowned with an old washbasin, is thrown her former out portrayal lover, and the concludes with a realistic pains her courtyard labor and the birth a church her child, “ “ my holy whom My she addresses blessed ”, son son ”. per- Christ is the heart and core of the Two Christian faith. closely sonalities most related to Him in life were His mother, Joseph. Mary, They deeply revered all Christians. regarded Countless millions over the centuries have their rela- “ tionship living today. sacred, and so do millions ’’ only relationship Miracle not encroaches sacred presentation respect the Biblical thereof in to the birth of destroys utterly associating Regents Christ, it, but it, as the “ mockery found, drunkenness, seduction, and lewdness ”, language script passionate and, of the itself, with “ * * * passion gratification attachment sexual ”, way as a of love. foregoing, light Appellate
In the we conclude, as did the (1) say that we cannot Division, plained determination com- was one that no reasonable mind could reach (2) arbitrarily not act capriciously. board did *14 urged may be denied that a license not Fourth: It is further require ground sacrilege, because that would revoked on of authority censoring religious judgment part and of on the a religious by the matters State. interference thus constitute religion urged is it is that of connection, In also freedom sacrilege thereby man’s one man’s another denied, since is prevented propagating dogma, his one thus be from and by pictures. religious The latter views means of motion own applied specious pictures argument offered when to motion is public general exhibition as a form of entertainment, to the point Religious presentations, out. we as shall hereafter ordinarily as well as other educational understood, and scientific exempt 123). (Education Law, § Thus freedom of films, are slightest, express religion impaired anyone may in the is antireligious through religious sentiment he a chooses proper of the films. use Regents religious judgments true that the must form
Nor it is sacrilegious. a film find that As indi in order to hereinbefore nothing mysterious there is about the standard cated, applied. simply religion, that no It is this: as that word is person, by ordinary, reasonable shall be treated understood contempt, mockery, to the scorn ridicule extent that engaged by selling by those it has been entertainment here, pictures. way the court below of of motion As said the statute 1‘ purports question, All it to do is to a bar visual caricature religious held sacred one sect or beliefs such another, opinion, religious is not denial of in our freedom.” bar, App. (278 Div. religions
Although it is that the law all claimed benefits separation the wall between Church State, thus breaches may incidentally religion benefit accrue to the fact that some point view if the statute immaterial from the constitutional scope purpose legitimate objective within has for its (Everson police Educ., Board v. State Educ., 370; Louisiana State Bd. v. U. S. Cochran People Friedman, 302 Roberts, Bradfield N. ques appeal for want of substantial Federal dismissed Y. 75, 907). rel. McCollum v. such as Illinois ex Cases tion 341 U. S. 203) (333 and Cantwell Connecticut Educ. Board of contrary. 296) The former case dealt not to the (310 religious purposes (Matter property for with the use State Zorach Y. while latter Clauson, N. held censorship religion (p. 305) as the means of deter- liberty protected mining right a denial of to survival First Fourteenth Amendments. Yet even recognized may validly the States those cases regulate expressing if the manner views *15 public regulation relation welfare. bears reasonable to to absolute; Freedom to not to believe—is freedom believe—or “ subject regulation act is to for the not. Conduct remains supra, protection (Cantwell p. society Connecticut, of 393). Douds, American Communications Assn. promotion clearly The now statute before us is directed to the peace public public of the and order. These welfare, morals, recognized traditionally objects police are the of the of exercise power. any For this reason, incidental benefit conferred religion is not sufficient to render this statute unconstitutional. regulation religion, There is here no nor restriction thereof religious except or other interference beliefs insofar as any itself nor is so, does there establishment religion preference religion property or or use State or religion. nothing funds in aid of There is more than denial right deepest of the hurl claimed to at insults and sincerest religious through beliefs of others the medium of a commercial spectacle. entertainment essentially religious (Church Holy We are nation
Trinity States, United of which it well (supra) now then, to be reminded the McCollum case Supreme paused gov- Court to note that a manifestation of hostility religion religious teachings ernmental to would ” (p. 211). pre- be at war with our national tradition expresses gratitude amble to our State our Constitution as a people Almighty say govern- to for our God freedom. To that protect religious purely to ment private not intervene from beliefs persecution, or commercial attacks whatever the underlying skillfully accomplished, motive, and however as dis- tinguished conflicting deny from the assertion of beliefs, is to only power keep peace, very right not to also but to religion, guaranteed by the free exercise the First Amend- offering public gratuitous recognized ment. The insult to pictures not religions commercial means of beliefs decency in itself only but constitutes morals, to offensive worship infringement and believe to of the freedom others contempt mockery, can be they and ridicule Insult, choose. — deadly persecution than more far more often so form prohibition comes conduct of such of action. direct forms sphere legitimate has and this action, of State within the State principle, only recognized in the Education Law but this Rights e.g., respects (see, art. Civil Law, as well Penal other 4). has been not aware that ever art. We are Law, impliedly even denied the States. strange religious would freedom; nation is land
This protect freedom, if intended Constitution, indeed our uphold publicly who construed as an instrument those were lampoon sacrilegiously ridicule and the most beliefs sacred provide amusement and denomination gain. commercial challenged foregoing we reasons, conclude
For provisions portion way of the statute no violates the *16 relating to of the Federal First Amendment Constitution religious freedom. argues finally unconsti that the statute is Petitioner Fifth: pictures the in to be treated as
tutional that are toto; press censorship prior generally, may subjected not be to or respect, may in inasmuch restraint. While it not be heard this sought as has and obtained benefits under the statute, it granted (Fahey to Mallonee, even now seeks retain the licenses v. Shepherd Co., v. Mount Trust 245, 332 U. S. Vernon dispose 244-247), argument upon N. we shall this Y. 234, the merits. urged holdings made
The contention in the face direct (Mutual supra; Corp. contrary RD-DR cases, Film 2d certiorari denied 340 Smith, [1950], F. U. S. App. Y. Exch., Inc., Cobb, Div. affd. 236 N. Pathe 505). supra; L. R. 64 A. pictures The rationale these decisions is that motion spectacle primarily not show, form of entertainment, press thought bring them within the vehicles of as such petitioner’s country. On contention basis, authority today, (supra) lack because it was Film cases Mutual against which the statute was there not Federal Constitution guarantees tested, is for the free unsound, Ohio Constitution speech press and a free Federal Constitution. Essen does predict petitioner tially, what would have us do is to that the Supreme Film will Mutual cases so dis Court overrule regard holding them well our own in the Pathe here, as Exchange position (supra). squarely case But such was the Corp. (supra), argu in taken case where the RD-DR same presented urged, they unequivo as are here ments were were rejected. cally footing develop
On the same is the contention that technical have made in ments a difference the essential nature motion pictures development since the Mutual Film Such decisions. p. 242), (see
foreseen cases and was Mutual realized Corp. 565), (p. year ago. at the time of the RD-DR case decided a pointed already We have out that scientific and films, educational among general of kindred are not within nature, others licensing problem statute, and are not thus concerned with might by attempt impose general be raised censor ship upon such films. petitioner by
Some comfort is found in a statement United (334 166) Pictures, States Paramount Inc. to the pictures, moving newspapers effect that like and radio, are press included ”. case, That was an antitrust freedom press pure was not involved, and the statement was dictum. Moreover, be observed that when certiorari was sought Corp. (supra), in the RD-DR case it was denied only voting grant same court; Justice was the one who rely upon concurring wrote that dictum. we to dictum, Were subsequently remarks of Mr. Justice decided Frankfurter speech Cooper, (Kovacs free case would ‘‘ appropriate: problems presented have created Movies pamphlets, newspapers, books, the circulation of and so the *17 regulated.” constitutionally (Citing movies have been the supra.) fragile Film cases, Mutual dictum However, is a bark in which the to sail constitutional seas. pictures problems pre- fact that motion is do create not by media of communication,
sented other visual or otherwise, emphasized, already It as indicated. should be however, that developments impact technical which increase the force of pictures simply problem motion render the more acute. It does ability argue greater of trans-
not avail to that there now is multiplies ability precisely which mission, when it is that expression. particular dangers already form inherent special pictures generis very are Whether motion sui press question academi for the classification of becomes presented recognized danger once that cians, it is there yet legislation protect public safety, by appropriate met to expression. enough not limit freedom narrow otherwise to speech proposition If which free cases there is one for 47) may (249 be from States cited, Schenck United (341 494) and Breard v. Alexandria Dennis United States (341 622), speech but absolute, it is freedom of appropriate are when arises. We be limited occasion present dangers at the time of satisfied that the foreseen just today. (supra) real the Mutual cases Appellate with affirmed, The order of the Division should be costs. (concurring). I concur for affirmance these J.
Desmond, reasons: Legislature,
1. It is not too clear from the statutes 544) picture licensing transferring (by L. ch. independent to a new Picture from an Motion Commission State Department of Education Picture Division Motion State Eegents, saying, as head intended, without so that the Board Department, revoke have of the Education should general granted by However, there is license the division. 132) empowering (Education language Law, § in the statute prohibition including Eegents licensing law, to enforce the against licensing inhuman, immoral, obscene, indecent, sacrilegious (Education and it would § Law, films solely improbable legislative leave all this intent that would authority department, with corrective no a division would bo It in the State Government. available elsewhere enforcing Eegents, by charged if the statute anomalous body. the errors of their subordinate could not correct law, sacrilegious, our film can be considered 2. As to whether this Kling (291 jurisdiction Miller limited own uphold 65) requires which administrative rule us Y. N. supported In evidence. other body’s if substantial decision *18 sacrilegious, regard if men could reasonable words, ’ wrong say Regents ruling as matter of that the is then we cannot religious great men in Reasonable, earnest and numbers law. express although have other earnest voices so, said Regents’ other There ivas thus fair for the view. basis holding. “ “ ” Sacrilegious (see 3. like obscene Winters ”, sufficiently meaning 333 U. definite in York, to set S. “ an enforcible standard. That men differ toas what is sacri ’’ — legious point nothing is beside the there is in the world agree everywhere yet obscenity all men ”, which obscene universally meanings laws are enforced. Of some course, ££ ” sacrilegious possible application have no to a motion picture, according to all the but, dictionaries and common English adjective usage, applicable meaning, has one since profaning violating anything (see or includes held sacred Dictionary, pp. Oxford 18-19; Vol. Webster’s New Interna p. unabridged, [2d Dictionary tional ed.], 2195; Black’s Law Dic tionary p. 1574). [deluxe statutory We have ed.], thus term meaning, of broad and, but ascertainable settled law, application accepted by administrative thereof must be £ ’ if it courts has warrant the record and a reasonable basis ” (Matter Mounting Finishing in law & v.Co. McGoldrick, Storage Department 294 Y. Red 104, 108; N. Hook Cold v.Co. 9). Labor, 295N. Y. pictures
4. Motion it would seem, not are, excluded from First coverage (United Amendment States v. Paramount Pictures, 131, 166) ground Inc., but, 334 S.U. since there a reasonable ££ holding sacrilegious (in meaning this film which Legislature term), film must have intended for that was con ££ subject stitutionally (Ex parte to control Jackson, 96 U. supra, p. 510). 736, cited in Winters v. New It fell £ £ narrowly speech, within the well-defined limited classes of punishment prevention thought of which have never been any problem” (Chaplinsky to raise Constitutional v. New — Hampshire, mine). Chap 571-572 italics linsky says narroAvly decision these limited classes of £‘ preventable constitutionally utterances include the lewd £ ’ profane, insulting fighting obscene, the the libelous, and the — very injury words those which their utterance inflict peace.” That covers
tend incite an immediate breach dispose any violation of claim of case, should censorship any prior all of at If then First Amendment. not, floodgates unconstitutional, and the *19 open. perspective (dissenting). that to recall J. It lend Fuld, picture passed that with a motion has
we are here concerned rigid array scrutiny a of critics of undenied numerous religiousness. suggestion no that The is, There course, product story written Miracle heathen hands. The picture produced, by a Boman directed and and Catholic solely by Italy, acted Boman It was filmed Catholics. religious censorship first where exists. exhibited in Borne, Newspaper, Romano, the Vatican L’Osservatore There, story weighed artistry reviewing to the it, alluded production moving picture condemning the or even without impropriety intimating being in its there was viewed that p. 592.) by (See Commonweal, The March 23, 1951, Catholics. passed And the film the United Customs thereafter States against objection registered it. no again in directors of the motion
In successive Department picture Education of the State licensed division approval film won exhibition. It for state-wide general Motion It Board of Beview of Pictures. drew National designated, part trilogy, press of a from the and was as acclaim foreign language film of York the best major metropolitan critics of the an association of Critics, important publica newspapers. Finally, Boman one Catholic ‘1 deploring highly arbitrary these after invocations tion, * * * ultimately censorship police [that] must result religion great well cause of as noted art,” harm to the as that ‘1 blasphemous obviously film or obscene, either in ” (Clancy, Philistine, Catholic as or execution intention pp. 16, 1951, 567-568; March also, March Commonweal, pp. 590-592), pp. and all March 23, 1951, Protestant 507-508, — publicly expressed they themselves clergymen con who — representing large various number sects found stituted irreligious. irreverent or nothing either the film opinion Judge contrary However, us, as reminds Froessel reaching strong eventually voice, also found ears regents. viewing body film, board After that revoked and — initially years rescinded the license some two after it had been — granted invoking authority therefor 122of the Edu- section picture provides cation divi- Law. That statute that the moving sion shall each submitted to it unless license sacrilegious, it is obscene, inhuman, immoral, indecent, corrupt is of such would character its exhibition tend to regents morals or incite to crime ”. decided that The board “ sacrilegious,” the film is and its decision was confirmed Appellate Division. Laying question to one side for the moment the to the constitutionality banning of a statute which sanctions the ‘‘ moving ground sacrilegious,” on the that it is I am opinion regents’ legislative action was without *20 warrant. controlling significant statute, the Education Law, is both says
for what it and for what it leaves unsaid. In section 124, by regents legislature gave entitled expressly Review ”, the regents power pic to review a determination of the motion — denying ture division a license but it conferred no similar power granting to By review the division’s of a license. settled rules of by legis construction, that deliberate omission clearly lature authority indicates that no such was intended. (See, e.g., Statutory 2 [3d Sutherland, Construction ed., 1943], 4915-4917.) §§ And the more one searches the statute, clearly appear. example, more that does For the statute expressly regents permit authorizes to revoke a issued (§ for the film 125) exhibition of a scientific educational picture and to revoke a motion if license it was obtained on a application tampered false if film the licensee with the or if by there a conviction for a crime committed [film’s] possession (§ 128). exhibition or unlawful But nowhere any general grant power statute is there to be found to the regents previously to revoke a issued license. This omission explicit to grant also be contrasted with the further and power by such a of revocation the same Education Law as regards many types other of licenses issued the Education Department, e.g., (See, [as 6514 § [as to doctors]; § 6613 to
266 phar- [as to 6804 [as veterinarians]; § to 6712
dentists]; § engineers]; [as optometrists]; macists] [as § 7210 ; § 7108 public account- [as [as to certified architects]; § § legis- Clearly, reporters].) [as ants] § to shorthand ; power when of revocation knew how to lature bestow purpose. was its design legislature’s is at more recent evidence of
Even pro legislature Law to Penal amended the hand. In 1950, obscenity, prosecution, ground licensed of a film hibit on the Law, amdg. (L. Penal ch. under Law the Education Hughes inspired by 1141). Tool Co. That enactment was § affg. App. (297 affg. Fielding Div. N. Y. prosecu 947). a criminal that such It there been held Misc. had pro permissible neither Law the Education tion because regents any or the review, direct for nor allowed vided issuing division of a of the motion courts, decision interpretation disagreed legislature with that If had license. Special (188 clearly Term at Law— indicated of the Education p. undoubtedly 952) the Edu have amended —it would Misc., at depriving By the state of the not the Penal Law. Law, cation moving prosecute it once exhibition of clearly legislature could, it affirmed, receives license, implacable finality granting is an act of such license that the prosecu collaterally challenged in a criminal not be proceeding. directly in a civil than more tion expressed, clearly legislative the board scheme so rely upon regents may of the Educa as head neither its status Department which of a decisions subordinate to reverse tion irregularity (see, illegality, fraud or vital are not the result *21 People e.g., ex rel. Hoe, 50, 112 cf. 56, 64; Butterworth v. People Finnegan ex v. rel. Chase McBride, 252, 257; 226 N. Y. Corp. Realty Wemple, Matter D & D 144 N. Y. 478, 482; of 1 App. 668) from section 132 of the draw Coster, Div. nor — gives manner the board in over-all which Education Law “ purposes part provisions authority of two enforce the to 1. they merely correcting regents’ claim that were the There is no substance to “ ” ” “ sacrilegious licensing picture division illegal action of the motion the obviously reasonable doubt as to whether the there was at least Since picture. “ picture could be sacrilegious,” the decision of the motion division not film was “ illegal.” as condemned — assumption authority “review” to this article” picture grant hy the motion revoke the of a license designed and all do, to that division. All that 132 was section general To construe its it is authorize enforcement. does, to language authorizing granting a license to review of the language beyond permissible render and to all limits stretch superfluous explicit language meaningless very section the permitting only has been denied. where a license such review given written A effect as must read and statute be Legislature, think would the the it should not as court prob envisaged Legislature the all have been written if the had complications might course of lems and arise in the which granted by power expressly statute is A not administration. implied only the of some where it is to exercise so essential power plainly appear expressly to have been conferred to power implied legislature. within the intention of the must merely necessary, intention of not the convenient, legislature City (Peo. Olean must be free from ex rel. doubt.’ 529.) (Lawrence v. W. N. Y. Co., & P. N. Y. Constr. T. Corp. 639.) State New 293 Y. N. power they regents’ So, here, have must contention against guard to review error and revoke in to order persuasive. granting not licenses, division twenty-five years during The fact is the motion which that, Department Education, division has been regents grant of a license have never before reviewed suggested power. even Limited as we existence of such legislature are to a done, determination of has what argument, weight alleged necessity no in the face has long-continued practical For now this court to construction. provision body read into not which that chose statute write into sphere into it would an uncalled-for intrusion constitute legislature. “Freedom construe is freedom Co., (Sexauer to amend.” & 228 N. v. Burke Sons & Lemke Y. Tremaine, 285 N. Y. Matter see, also, O'Brien does Even if I statute confer however, were assume, still conclude for reversal. would I revoke, review my portion In here involved must fall of the statute view, that *22 268 guarantee of there freedom be
before the constitutional speech press. of decision course consistent persuades years Supreme in recent Court of United States Corp. early Industrial Mutual me that decision of establishing 230) urged (236 Comm. U. S. Ohio — of — coverage pictures beyond Amendment’s are the First motion authority longer it. claimed for no has the force censorship in baldest case We are confronted — permission licensing system requiring advance form a pic- right ideas via to disseminate the exercise of the committing to decide a broad discretion to the licensor tures, may right Insofar as statute whether that permits be exercised. “ moving labelled sacri- to censor a state legious,” against Amend- and Fourteenth the First it offends prior imposes a it since Constitution, Federal ments — prior and undefined of broad at restraint that, restraint and, — religious And, matters. of discussion limits on freedom attempt beyond may an that it constitutes well be that, contrary legislate orthodoxy belief, in matters of “ respecting against prohibition laws the constitutional (Cf. Educ., religion Everson v. Board ”. establishment Educ., v. Board 330 Illinois ex rel. McCollum 1, 15; U. S. 210.) 333 203, U. S. appreciate, are I not, Amendment freedoms the First qualified, qualification they but are
absolutes, insofar as accommodating springs necessity them some from the public equally pressing limited measure of Thus, need. some justified may expression where be restraint freedom square, public public where the or ” the forum is the street captive and where breaches one, audience rather peace may use, the result be imminent as (Cf. States, fighting Dennis v. United words. abuse, seq.; U. S. Feiner v. New 503 et 341 U. S. Maryland, Terminiello 268; 340 U. S. Niemotko v. Hampshire, Chaplinsky Chicago, v. New 296, 308; Connecticut, Cantwell v. 571-572; there is no Here, State, Schneider do wish to captive only who see audience; those price willing pay admis- they only if and, then, so, subject matter furnishes if Moreover, to the theatre. sion *23 subject of no I know restraint, of for the exercise criterion censorship by proper the one here the state than less involved. licensing consistently Supreme condemned has Court to systems official discretion in an administrative which vest permit unrelated to grant criteria broad or withhold places.” (Kunz public proper regulation York, 340 v. New of supra, Maryland, 340 v. U. S. Niemotko 290, 294; see, also, U. S. Connecticut, 334 Cantwell v. York, 558; New U. S. Saia v. 268; supra, Hague v. 307 U. Lovell v. C.I.O., 496; 310 S. 296; " 444.) City cannot of course 303 U. The State Griffin, S. of religious argument merely public proselyting because or forbid speaker’s disapprove public It must act in views. officials public peace, patent good faith maintain to assure to purposes pas primary availability for their of the streets indispensable equally senger or for ends and vehicular traffic, Maryland, supra, community (See Niemotko v. life.” modern concurring.) per Frankfurter, 268, 282, J., 340 U. S. expression right in find must, free short,
Invasion of public overriding justification and the restrict interest, in some narrowly evil which the ing drawn to meet an statute must be correcting. (See v. in Feiner interest state has substantial Maryland, supra, Niemotko v. 315, 319; 340 U. S. York, supra, York, 507, 509; 333 v. New U. 340 S. Winters S. U. supra, Thornhill Connecticut, 296,307-308; 310 U. S. v. Cantwell 105.) us 97-98, statute before 310 S. Alahama, U. preserv narrowly a need that of drawn to meet such as not one public places. regulating peace public the con ing On pervasive imposes general trary, restraint on freedom it moving pictures, religious in which can themes of discussion justified substantial interest of the the basis not be on supra, (Cf. Dennis v. New Kunz state. 508-509.) supra, States, United Supreme ago, century declared that Court Ths aOver support heresy, no committed to the and is no law knows [U. ] (Watson Just dogma S. Jones, Wall. ”. competency government beyond clearly, religious That follows prescribe conduct and belief. norms of principles of Amend- inevitably the First to the adherence from political “In in that of ment. the realm of faith, supra, (Cantwell Connecticut, it has been belief,” said “ sharp fields the In both differences arise. neighbor. man error to his tenets of one seem the rankest point pleader, persuade we view, To others to his own exaggeration, of men at to vilification know, times, resorts prominent and even been, state, who have church or are, people But nation have ordained false statement. spite light history, probability that, excesses long essential are, view, these liberties abuses, opinion right part enlightened conduct on of the citizens ’’ democracy.
of a present indefinability, in of the term context, The inherent apparent upon sacrilege inquiry. At what the merest *24 point, may a search for asked, it does the eternal verities, particular religious dogma, aspect questioning of take on the “ point expression sacrilege portrayal At what of does or ”? “ religious sacrilegious tenet become ”? of a doubt of some Not religion or in the will even authorities students field of have certainly and answer, definitive not the same answer. There religious fifty two hundred are more than and different sects varying dogmas country, religious with beliefs, and principles. (See ex Illinois rel. McCollum v. Board Educ., of great supra, contrariety With this aptly religious it has been observed that one man’s views, “ orthodoxy, sacrilege,” heresy one’s is another’s another’s How and where draw belief. the between consecrated line “ disputation theological sacrilege permissible ”? What sacrilegious? orthodoxy, what to whom orthodox, Whose is “ things, very sacrilegious? nature what the is sacri In ” necessity philosophy, legious differ with will of the background particular training, and the education film the determination whether a is moment; censor ” “ necessarily sacrilegious rest the undiscover must not, or mind. the official’s recesses able vague essentially possible the term is is
Any doubt that by defini- the variant and inconsistent dispelled a reference to regents by Appellate by the board to it ascribed tions ’ Judge Froessel. Division regents, frowning dictionary definition Thus, “ “ everyone technical us that as nevertheless assure knows ”,2 ’’ by way by demonstrating what is meant this term and, proceed describing to define the word as a film which fact, large segment population”; “affronts offends the ‘ by ridiculing burlesquing anything1 sensibilities held sacred “ particular by religious the adherents ”; is offensive faith religious any society.” (Italics to the element of sensibilities supplied.) any general meaning semblance of either Indeed, specific suggest, regents content I abandoned is, them “ they anything only since that, selves when assert sacri legious persons concept to those who hold the sacred ”, “ opinions By reasoning, of nonbelievers worthless.” such particular dogma only judges of a adherents become the dogma to whether that been offended! has if that is And, so, impossible governmental any agency fathom how such regents, composed laymen the board of as it of different possibly discharge determining faiths, could function of “ particular sacrilegious.” whether a film is Appellate Judge Division state that Froessel “ ” proscription against statutory sacrilegious is intended “ religious visual caricature bar beliefs held sacred ” (opinion p. one sect or another of Froessel, J., 258, italics ” Judge supplied). Though sacrilegious also defines Froessel attacking “insulting terms of beliefs or ” — treating contempt, mockery, them scorn and ridicule *25 — ephemeral all and indefinite words of content the basic cri appears religious to be whether the film terion treats a theme religious any group offend a manner as to such beliefs of “ persons. film If the does have that and it effect, offered apparently it entertainment,” a form of falls within the regardless good statutory sincerity ban of the faith of the temperate producer matter how no film, the treatment of public unlikely and no matter how theme, disturbance or peace. of the breach “ ” typical sacrilege is that found in
2. A definition Webster’s New Inter- Dictionary 1948): “ (2d ed., stealing, crime of misusing, violating national desecrating sacred, holy, which is or that or dedicated (See, or to sacred uses.” also, Dictionary ed., Catholic 1929].) the New [Vatican highlighted by nature the fact drastic of such a ban is question
that the film in attack makes no direct or criticism on, any religious dogma principle, it claimed of, or is not to be intemperate any there or abusive. Nor is obscene, scurrilous, purpose part any evidence of malicious or intention on the producers of the film revile or even attack doc to Catholic dogma, suggestion any or and no trine reasonable likelihood peace resulting exhibition.3 of a breach from film’s “ ” suggested sacrilege is the criterion of broad, indeed, So temperate might applied any fair treatment of psychological, or theme with moral social ethical, group might or other find which some offensive overtones “ religious beliefs.” “ problem either the courts have had no It is claimed ‘ ’ ” ‘ ’ sacrilegious synonym, profane with its the word or p. 255). supra, (opinion which The cases to J., Froessel, £‘ ’’ profane neither involved however, reference is made, £‘ ’’ simple sacrilegious, religion and the fact is that nor the pass upon Supreme had either the has never occasion Court <£pro in which the The context word term or the other. one ” supra, (Winters appears in the cases cited fane Hampshire, supra, Chaplinsky v. New U. S. the authorities there relied as well as U. S. supra, (Cantwell Connecticut, Chafee, 296, 309-310; pp. 149-150), Speech make it [1941], in the United States Free £1 synonym for sacri not as that the term used, evident ££ epithets personal legious,” or abuse ”, aas substitute but ‘ ’ ‘‘ fighting insulting the other or and for words for swear “ injury very tend inflict their utterance which words ”, ££ peace no essen an immediate breach incite (Chaplinsky exposition part v. New ideas ”. tial supra, Hampshire, Cantwell 572; see, also, p. op. supra, cit., 296, 310; Chafee, 310 U. Connecticut, nothing with the whatsoever to do have cited the cases short, In Dame, (Clancy, University of Notre noted with the writer, associated 3. One that, critics 16, 1951, 567) while some Commonweal, p. March op. cit., The in his validity others, the director’s taste its dramatic questioned have * * 3**6 questioned critic has responsible theme, No serious choice making film, an intention intention *26 honesty the director’s sincerity or * * abundantly moral 273 “ ” profane judges religion, in them were in and the who sat thought upon slightest give consideration to or not called subject with which are concerned. we now rigid epithets ambiguous shortcomings boundaries as political temporal expression great enough for free supra, (cf., e.g., 333 York, 507; v. New matters Winters supra, v. De 494; Jordan Dennis 341 U. States, v. United S. they George, but Utah, 333 U. S. 223; 341 U. Musser S. greater epithets trench areas are all the when the supra, religious (See, e.g., S. York, New U. belief. Kunz v. supra, Cantwell York, Saia v. New U. S. Supreme supra, Court Indeed, 310 U. Connecticut, guarantee gone Amendment’s has so far as to hold that the First “ prior public that even ridi restraint forbids discussion ” (See any form belief. cules or denounces particularly, supra, 340 York, v. New see, Kunz concurring opinion reported in S.,U. J., Frankfurter, u pp. 285-286.) society at In a free all and factions, sects price preach their views, of their own freedom must suffer supra, (Kunz that freedom S., others.” p. per dissenting; at Murdock see, also, J., Jackson, Pennsylvania, 105, 116.) dealing speeches, we with with
Were news handbills, papers or with there could be no doubt as to the books, uncon stitutionality portion of that of the statute here under considera guarantee expression, tion. The constitutional of freedom of however, is neither limited to the oral word uttered in the public phrase hall street or nor restricted the written printed newspaper protects or book. It the transmission of popular ideas and whether whether beliefs, orthodox not, not. A belief does not its character a belief, lose an idea being not of an idea, because, does become less instead expressed by printed the air-borne voice, word or the ’ ‘‘ ’ ‘‘ ’ ’ put picture, moving picture. it is forward still Amendment not whether First does ask the medium is visual, yet readily acoustic, electronic or some unheard-of device. It has products genius, itself to other accommodated inventive technology, advances such as the radio and other television. (l If The Constitution deals with substance, shadows if”, thing, (Cum- was levelled at Its inhibition not the name *27 mings 325), [U. S.] v. State 4 Missouri, then, Wall. 277, surely, meaning vitality its not are to be conditioned may course, mechanism involved. Of it differ well be that give problems in ences media will rise to different accom conflicting Cooper, (See modation of v. 336 interests. Kovacs per concurring.) any U. S. 77, But such 96, J., Frankfurter, necessarily light accommodation must made in the funda safeguards.4 mental constitutional denying expression pictures,
One reason for free to motion newspapers, we are that told, is movies are commercial. But magazines commercially are books likewise motivated, protection that has never obstacle to their full under been Grosjean (See, e.g., the First Amendment. Press American 233.) Again, moving Co., 297 U. it said, S. is fact that the picture conveys thought message episodes or dramatic story entertaining, means of a form that makes magazines difference. But neither are novels, nor comic books designed they made censorable because for entertainment (See, supra, e.g., or amusement. 333 Winters v. New Hannegan Esquire, 153.) U. S. 510; Inc., U. S. Supreme plain case, Court made that in the Winters when appellee’s suggestion it declared: do accede We not protection press applies only to the constitutional for a free exposition informing of ideas. The and the line between the right. entertaining protection is too elusive for the basic Everyone through propaganda is familiar with instances of fiction. one What man’s doc teaches another’s amusement, Though possible nothing trine. we can see value to society magazines, they in these much to the are as entitled speech protection (333 of free as the S., literature.” best of p. 510.) at may thirty-six ago years
Whatever have been true when (236 230), Mutual case there is decided, casting today picture beyond no reason for expression. protected thoughtful barriers Learned and instance, Whether, (Education 4. statute be sus 122) Law, § as a censorship tained as valid even measure insofar as its criterion “ obscenity,” is one of (Cf. narrow before us and need not be considered. Chaplinsky Hampshire, supra, 315 U. S. Minnesota 568, 572; Near v. 697; Olson, parte rel. 283 U. S. Ex ex Jackson, opine Speech (see Free writers so the United States Chafee, pp. seq.; p. 544 et The First [1941], Ernst, Freedom, Kupferman Censorship, O Picture Motion ’Brien, Cornell L. Q. J. 49 Yale L. 696; Note, Yale L. J. 273; Note, Supreme recently (See and the has so declared. Court itself Inc., United 334 U. Pictures, States v. Paramount Cooper, supra, see, 77, 102, Kovacs also, per put p. 545), dissenting.) (op. cit., J., As Chafee Black, * ’ age “In an when commerce the Constitution has been airplanes electromagnetic waves, construed to include ‘ ‘ ’ ’ speech liberty in freedom of in the Amendment and First *28 similarly applied the Fourteenth should to new media for be speech and Freedom communication ideas facts. pen, not should be limited to the air-borne and the voice, printing press, any more than commerce interstate is limited to stagecoaches sailing Supreme and wrote the vessels.” And, (United supra, Inc., Court Paramount Pictures, States v. 166), moving pictures, U. newspapers We no doubt that S. have like press
and radio, are included whose freedom guaranteed by the First Amendment.” Every points consideration that conclusion. The Mutual relegated place upon history case should be to its day guarantees shelf. Rendered in a before the of the Bill of' Rights apply pictures moving were held to to the and when states, infancy, obviously product were in their the decision was pictures express convey view did or opinions Today, or ideas. far so have and times the films protection changed, deny opposite some would for the reason, presentation that films are too in their effective of ideas and points unsupportable of view. notion The latter is as as antiquated moving other and that the view; is most spreading effective mass medium for is, ideas of course, no refusing protection. only expression reason for it If ineffectual speech is shielded free Constitution, becomes a fanciful dispute myth. anomaly pro- Few would of a doctrine that expression purvey freedom tects as comic books that stories pictures (see and bloodshed and lust Winters v. New supra, 510), light racy magazine York, reading U. and S. 153) Hannegan Esquire, supra, (see Inc., 146. supra, Saia S. loudspeaker harangues (see to the moving picture. protection that same denies yet faith good may, people unquestioned Sincere their sensi offensive case, find moving which empowers licens statute justify but that cannot bilities, ideas or beliefs free expression to censor the ing officials ‘£ fixed star in our constitu If there is any the field of religion. Vir (West has said Supreme Court constellation,” tional “ Barnette, 319 U. Educ. State Bd. 624, 642), ginia what be prescribe can shall official, high petty, no other matters of nationalism, religion, orthodox politics, opinion”. should reversed Division Appellate order of the annulled. regents of the board determination concur with JJ., J., Ch. Conway, Lewis
Loughran, in separate opinion; J., J., concurs J.; Fuld, Desmond, Froessel, concurs. J., in which Dye, in opinion dissents Y. 304 N. 718.] affirmed. [See Order Joseph Individu al., et
Harry Appellant, Curran Martin, America, Union of National Maritime Officers ally al., et Union, Board Said Editorial Constituting *29 Respondents. 18, 1951. October May 24, 1951; decided
Argued