Syllabus.

JOSEPH BURSTYN, INC. v. WILSON, COMMISSIONER OF EDUCATION OF NEW YORK, ET Al.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

No. 522. Argued April 24, 1952.-Decided May 26, 1952.

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. 497506.

1. Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. Pp. 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. 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. 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. 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. 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. 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

exception to the basic principles of freedom of expression previously announced by this Court with respect to other forms of expression. Pp. 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. 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. 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. 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. 506.

Ephraim S. London argued the cause and filed a brief for appellant.

Charles A. Brind, Jr. and Wendell P. Brown, Solicitor General of New York, argued the cause for appellees. With them on the brief were Nathaniel L. Goldstein, Attorney General of New York, and Ruth Kessler Toch, Assistant Attorney General.

Morris L. Ernst, Osmond K. Fraenkel, Arthur Garfield Hays, Herbert Monte Levy, Emanuel Redfield, Shad Polier, Will Maslow, Leo Pfeffer, Herman Seid and Eberhard P. Deutsch filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal.

Charles J. Tobin, Edmond B. Butler and Porter R. Chandler filed a brief for the New York State Catholic Welfare Committee, as amicus curiae, urging affirmance.

495

Opinion of the Court.

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. . . . "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." 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 depart

1 McKinney's N. Y. Laws, 1947, Education Law, § 129. 2 Id., § 122.

Opinion of the Court.

343 U.S.

ment, 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." 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.

5

During this period, the New York State Board of Regents, which by statute is made the head of the education department, received "hundreds of letters, telegrams, post cards, affidavits and other communications" both protesting against and defending the public exhibition of "The Miracle." 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

3 The motion picture division had previously issued a license for exhibition of "The Miracle" without English subtitles, but the film was never shown under that license.

4

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

5 Stipulation between appellant and appellee, R. 86.

495

Opinion of the Court.

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." 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

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.

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