Lauren Cincotta
Edited By Gabrielle Gedeon (Senior Editor) and Memphis Bayley (Junior Editor)
Abstract:
This article discusses the case, Burstyn Inc. v. Wilson, 343 U.S. 498 (1952), in the context of the history of the application of the First Amendment. Movie censorship in American history was shaped by the recognition that popular culture has the power to shape ideas and attitudes. In 1952, the Supreme Court made a bold move in extending First Amendment protections to films, permanently altering the media landscape. In a time of reexamining American culture and identity in connection with the freedom of expression, this case serves as an important reminder that our constitutional freedoms and their application have evolved at various points in our history.
Introduction
The First Amendment of the United States Constitution was written in the context of British oppression in the preceding years of the American Revolution. Censorship issues led to the creation of the First Amendment and its broad, ambiguous protections for free speech. The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” However, during the second presidential administration, the country was faced with the controversial implementation of the Alien and Sedition Acts, which sought to punish spoken or written criticisms of the government, deemed untrue, in the wake of what was known as the XYZ Affair. In the late 1800’s, the Comstock Act was passed and targeted the sending of materials considered obscene through the mail.
Today, our society faces questions around internet censorship and the presence of misinformation. These questions demonstrate the seemingly endless nature of the debate surrounding the limits of the First Amendment’s protection and its consequences in context. In the mid-20th century, a court decision that would shape the future of the American culture of censorship was brought to the Supreme Court. The case Burstyn Inc. v. Wilson required the Supreme Court to examine the question of the extension of free speech protection to movies, which were commonly censored. The intersection with issues of religion in this case represents a long-running theme in First Amendment cases, the right to speak in a way that might offend a dominant group.
In 1951, the film “The Miracle” was part of a show at a New York movie theater entitled “Ways of Love,” which included other foreign films, shown together for a period of eight weeks. The film sparked intense backlash and protests for its perceived offensive religious imagery and plot. The movie tells the story of a peasant girl who is seduced by a man she is convinced is St. Joseph. She later gives birth to a child. This was seen to be a parody of the idea of immaculate conception from the Catholic tradition. The film was first shown at the Venice Film Festival in 1948. The movie was unpopular in Italy, although it did clear Vatican censorship. It is worth noting the film was not shown widely in the U.S, though the outcry from the New York City screening was massive.
Joseph Burstyn Inc. owned exclusive rights to distribute this film in the United States. In order to be shown commercially in the state of New York, Burstyn Inc. had to apply for a license through the New York Education Department under state law. The New York Board of Regents, in charge of the Education Department, had already granted the license for the film to be shown, but in the wake of the backlash, it appointed a committee to review the decision. This committee decided that the film was sacrilegious. With this distinction, they were able to ban the distribution of the film by rescinding Burstyn Inc.’s license, through a statute that prohibits the showing of films found to be sacrilegious. Burstyn then appealed the Board’s decision.
In 1952, the case was argued at the Supreme Court after previously being decided in favor of the Regents at the Court of Appeals. The central question of the case was whether a New York statute that allows movies to be banned for being “sacrilegious” violates the 1st and 14th Amendments. Burstyn Inc. argued that the statute under which the license was unconstitutional under the First Amendment’s protections against prior restraint and the free exercise clause. Additionally, it was argued to be unconstitutional under due process, because of the vague meaning of the term sacrilegious as used in the statute. These arguments centered this case squarely in the Court’s debate over First Amendment application in the 20th century.
Nearly 40 years earlier, in Mutual Film Corp v. Industrial Commission of Ohio (1915), the Court looked at the proposal of extending First Amendment protections to movies. In 1913, Ohio passed a censorship act for all films shown in the state. This act created a board of censors to oversee and approve films for distribution. This law was challenged by Mutual Film Corporation on the grounds that these fees interfered with interstate commerce and First Amendment protections. The Supreme Court ultimately upheld the Ohio law, 9-0, ruling that motion pictures could not be considered art and, for this reason, not entitled to First Amendment freedom of speech protections. In the majority opinion, Justice McKenna noted that movies “may be used for evil.” This characterization of what was at the time a new medium reflects the same moral panic of the late 19th and early 20th centuries in the Comstock Era. This opinion further articulates concern about danger to American culture, reflecting a consideration that while the Court might not have granted First Amendment protections, they were worried about the power of this new media to influence public conscience.
It was in this historical context that Burstyn Inc. v. Wilson reached the Supreme Court on appeal in 1951. A changing time in the Court’s history, the Vinson Court was led by Chief Justice Fred Vinson from 1946 until his death in 1953. This Court was transitional, situated before the better-known Warren Court, led by Earl Warren, who was nominated by then President Eisenhower in 1953 after Vinson’s death. Vinson Court heard several cases about fair criminal trials at the State Courts and was fairly well known for its jurisprudence on these issues.
The Majority opinion in Burstyn Inc v. Wilson was written by Justice Tom Clark, a previous Attorney General of the United States, who served on the court from 1949-1967. Clark was a Truman appointee and ally. He believed in judicial restraint as well as the role of expansive interpretation of the Constitution. He also notably participated in several Civil Rights and religious freedom cases during his later years on the Warren Court.
Clark wrote in his opinion that in Burstyn Inc. v. Wilson, the Court only needed to address the argument that the New York Statute is “an unconstitutional abridgement of free speech and a free press.” In this case, the Court found that it was, and extended broader First Amendment protections to movies that were previously denied to them under Mutual. Movies, in this ruling, were categorized as expression through art. This medium of communication was found to be important for the communication of ideas, playing a critical role in shaping opinions. The Court also acknowledged the important role that films have in both entertaining and informing the population. He compared them to other forms of protected media, such as books and newspapers, acknowledging that these could be sold for profit, similar to charging admission to a movie.
Clark did consider the limitations of such protections, noting that there could be potential restrictions based on context. The perceived danger of movies to the population, especially young people, an idea first articulated in Mutual, was still present in this opinion. He wrote, “It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.” In this case, the Court did not address the question of whether states can ban motion pictures under certain circumstances. The statute at issue in this case was too broad to justify the censorship the State of New York is trying to impose. Additionally, Clark highlighted the usage of the term sacrilegious in the language of the law, which the Court found made the law too vague to meet state regulation interests justifying prior restraint. In an attempt to perhaps narrow the application of the ruling, Clark clarified the holding of the Court, clearly stating, “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.’”
In addition, since the revocation of the license came in response to public outrage, Clark used part of the opinion to directly address the outcry from those who were offended by the film’s religious imagery and perceived mockery of the concept of immaculate conception. Clark wrote:
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.
In their joint concurrence, Justices Frankfurter, Jackson, and Burton explored more the international reception of the film and its critical reception in the U.S. This concurrence focused on the division within religious communities in response to the film. In the version of facts presented in the concurrence, there was not a monolithic religious response, which contrasts with the narrative in the majority opinion of an onslaught of religious protests against the film reaching the Regents. The authors of the concurrence also took issue with the vague nature of the word sacrilegious as used in the law. After listing various historical, popular, scholarly, and religious definitions of the term, they noted the absence of adhering to any particular definition of the word, writing, “The New York court did not confine ‘sacrilegious’ within such technical, Thomist limits, nor within any specific, or even approximately specified, limits.”
This concurrence also contains interesting constitutional philosophy and analysis, especially when taken in a 21st century context. These members of the Vinson Court showed the promise of future Warren Court progressivism when considering the broader context of free speech protections as applied in this case. The authors noted the following:
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.
In the immediate aftermath of the case, there was some backlash from more conservative legal scholars who viewed this decision as a betrayal of the American tradition of protecting and recognizing the Christian faith as the foundation of the American legal system. One such article noted that the justices should have understood the meaning of the word sacrilegious, as the laws in the United States have always been based on concepts of Christian morality. Other legal scholars applauded the decision and its potential for changes in the American landscape of censorship.
This case marked a substantial change in the trajectory of media censorship in the United States, as it had previously existed. After centuries of focusing on using the First Amendment to exclude speech from the public space, the interpretation of the First Amendment has meaningfully changed. It was now used to fortify protections for the expanded types of speech permitted in public space. The lack of movie censorship in the United States today may easily be taken for granted, but less than a century ago, censorship of movies was commonplace in American society. Even after the decision, several state boards did try to censor movies, as the majority opinion stopped short of taking away that power. This power was weakened by the Court’s decision, but similar cases would pop up in the following years. Ultimately, the late 20th century saw the expansion of First Amendment protections for movies as, over time, more content restrictions were challenged and eventually discarded.
Beyond just movies, this case helped to lay the groundwork for the mid to late 20th-century application of the First Amendment. The debate over protections of the First Amendment now extends to new aspects of life in the 21st century, such as misinformation and internet censorship. Perhaps the most interesting part of what became known as the Miracle decision is the expanded view of Constitutional protections for speech in context, as offered in the Frankfurter concurrence, is the view that protections should be considered and expanded with the times American society finds itself in.
Bibliography
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Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, et al. 343 U.S.
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Murray Dry, The Origins and Foundations of the First Amendment and the Alien and Sedition Acts, 25J. SUP. CT. HIST. 129 (2000).
Mutual Film Corporation v. Industrial Commission of Ohio. 236 U.S. (1915)
History of the court: The Vinson Court, 1946-1953, SUPREME COURT HISTORICAL SOCIETY (2022),https://supremecourthistory.org/history-of-the-courts/vinson-court-1946-1953/ (last visited Apr 5, 2024)
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(U. S Const.amend. I)
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