495 FRANKFURTER, J., concurring. 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." 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," "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. 533.47 45 Id., "Blasphemy." 46 Thomas Blount, Glossographia (3d ed., London, 1670). 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, FRANKFURTER, J., concurring. 343 U.S. 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." In light of that history it would seem that the Funk & 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. 48 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 495 FRANKFURTER, J., concurring. 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." 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 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." 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. FRANKFURTER, J., concurring. 343 U.S. 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." 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 50 Encyclopaedia Britannica (11th ed., 1911), "Sacrilege." 495 FRANKFURTER, J., concurring. 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.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.52 While it is true that blasphemy prosecutions 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). 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." |