FRANKFURTER, J., concurring. 343 U.S. have continued in England-although in lessening numbers-into the present century, the existence there of an established church gives more definite contours to the crime in England than the term "sacrilegious" can possibly have in this country. Moreover, the scope of the English common-law crime of blasphemy has been considerably limited by the declaration that "if the decencies of controversy are observed, even the fundamentals of religion may be attacked," a limitation which the New York court has not put upon the Board of Regents' power to declare a motion picture "sacrilegious." In Cantwell v. Connecticut, 310 U. S. 296, 310, Mr. Justice Roberts, speaking for the whole Court, said: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor." Conduct and beliefs dear to one may seem the rankest "sacrilege" to another. A few examples suffice to show the difficulties facing a conscientious censor or motion picture producer or distributor in determining what the New York statute condemns as sacrilegious. A motion picture portraying Christ as divine-for example, a movie showing medieval Church art-would offend the religious opinions of the members of several Protestant denominations who do not believe in the Trinity, as well as those of a non-Christian faith. Conversely, one showing Christ as merely an ethical teacher could not but offend millions of Christians of many denominations. Which is "sacrilegious"? The doctrine of transubstantiation, and the veneration of relics or particular stone and wood embodiments of saints or divinity, both sacred to 53 See, e. g., Rex v. Boulter, 72 J. P. 188 (1908); Bowman v. Secular Society, Ltd., [1917] A. C. 406. 54 Reg. v. Ramsay, 15 Cox's C. C. 231, 238 (1883) (Lord Coleridge's charge to the jury); Bowman v. Secular Society, Ltd., [1917] A. C. 495 FRANKFURTER, J., concurring. Catholics, are offensive to a great many Protestants, and therefore for them sacrilegious in the view of the New York court. Is a picture treating either subject, whether sympathetically, unsympathetically, or neutrally, "sacrilegious"? It is not a sufficient answer to say that "sacrilegious" is definite, because all subjects that in any way might be interpreted as offending the religious beliefs of any one of the 300 sects of the United States 55 are banned in New York. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art for the films are derived largely from literature. History does not encourage reliance on the wisdom and moderation of the censor as a safeguard in the exercise of such drastic power over the minds of men. We not only do not know but cannot know what is condemnable by "sacrilegious." And if we cannot tell, how are those to be governed by the statute to tell? 56 It is this impossibility of knowing how far the form of words by which the New York Court of Appeals explained "sacrilegious" carries the proscription of religious subjects that makes the term unconstitutionally vague. To stop short of proscribing all subjects that might conceivably be interpreted to be religious, inevitably creates a situation whereby the censor bans only that against which 55 The latest available statistics of the Bureau of the Census give returns from 256 denominations; 57 other denominations, which did not report, are listed. Bureau of the Census, Religious Bodies: 1936, Vol. I, iii, 7. 56 It is not mere fantasy to suggest that the effect of a ban of the "sacrilegious" may be to ban all motion pictures dealing with any subject that might be deemed religious by any sect. The industry's self-censorship has already had a distorting influence on the portrayal of historical figures. "Pressure forced deletion of the clerical background of Cardinal Richelieu from The Three Musketeers. The [Motion Picture Production] code provision appealed to was the section providing that ministers should not be portrayed as villains." Note, 994084 O-52-38 343 U.S. FRANKFURTER, J., concurring. there is a substantial outcry from a religious group. And that is the fair inference to be drawn, as a matter of experience, from what has been happening under the New York censorship. Consequently the film industry, normally not guided by creative artists, and cautious in putting large capital to the hazards of courage, would be governed by its notions of the feelings likely to be aroused by diverse religious sects, certainly the powerful ones. The effect of such demands upon art and upon those whose function is to enhance the culture of a society need not be labored. To paraphrase Doctor Johnson, if nothing may be shown but what licensors may have previously approved, power, the yea-or-nay-saying by officials, becomes the standard of the permissible. Prohibition through words that fail to convey what is permitted and what is prohibited for want of appropriate objective standards, offends Due Process in two ways. First, it does not sufficiently apprise those bent on obedience of law of what may reasonably be foreseen to be found illicit by the law-enforcing authority, whether court or jury or administrative agency. Secondly, where licensing is rested, in the first instance, in an administrative agency, the available judicial review is in effect rendered inoperative. On the basis of such a portmanteau word as "sacrilegious," the judiciary has no standards with which to judge the validity of administrative action which necessarily involves, at least in large measure, subjective determinations. Thus, the administrative first step becomes the last step. "Motion Pictures and the First Amendment," 60 Yale L. J. 696, 716, n. 42. The press recently reported that plans are being made to film a "Life of Martin Luther." N. Y. Times, April 27, 1952, § 2, p. 5, col. 7. Could Luther be sympathetically portrayed and not appear "sacrilegious" to some; or unsympathetically, and not to others? 495 Appendix to Opinion of FRANKFURTER, J., concurring. From all that has been said one is compelled to conclude that the term "sacrilegious" has come down the stream of time encrusted with a specialized, strictly confined meaning, pertaining to things in space not things in the mind. The New York Court of Appeals did not give the term this calculable content. It applied it to things in the mind, and things in the mind so undefined, so at large, as to be more patently in disregard of the requirement for definiteness, as the basis of proscriptions and legal sanctions for their disobedience, than the measures that were condemned as violative of Due Process in United States v. Cohen Grocery Co., 255 U. S. 81; A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233; Connally v. General Construction Co., 269 U. S. 385; Winters v. New York, 333 U. S. 507; Kunz v. New York, 340 U. S. 290. This principle is especially to be observed when what is so vague seeks to fetter the mind and put within unascertainable bounds the varieties of religious experience. APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.* Cockeram, English Dictionarie (10th ed., London, 1651). Blasphemy: No entry. Sacrilege: "The robbing of a Church, the stealing of holy things, abusing of Sacraments or holy Mysteries." Sacrilegious: "Abominable, very wicked." Blount, Glossographia (3d ed., London, 1670). Blasphemy: No entry. Sacrilege: "the robbing a Church, or other holy consecrated place, the stealing holy things, or abusing Sacraments or holy Mysteries." Sacrilegious: "that robs the Church; wicked, extremely bad." *See Mathews, A Survey of English Dictionaries (1933). Appendix to Opinion of FRANKFURTER, J., concurring. 343 U. S. Blount, A Law-Dictionary (London, 1670). Blasphemy: No entry. Phillips, The New World of Words (3d ed., London, 1671). Blasphemy: “an uttering of reproachfull words, tend ing either to the dishonour of God, or to the hurt and disgrace of any mans name and credit." Sacrilegious: "committing Sacriledge, i. e. a robbing of Churches, or violating of holy things." Cowel, The Interpreter of Words and Terms (Manley ed., London, 1701). Blasphemy: No entry. Sacrilege: "an Alienation to Lay-Men, and to profane or common purposes, of what was given to Religious Persons, and to Pious Uses, etc." Rastell, Law Terms (London, 1708). Blasphemy: No entry. Sacrilege: "is, when one steals any Vessels, Ornaments, or Goods of Holy Church, which is felony, 3 Cro. 153, 154." Kersey, A General English Dictionary (3d ed., London, 1721). Blasphemy: "an uttering of reproachful Words, that tend to the Dishonour of God, &c." Sacrilege: "the stealing of Sacred Things, Church robbing." Cocker, English Dictionary (London, 1724). Blasphemy: No entry. Sacrilege: "robbing the Church, or what is dedicated thereto." Bailey, Universal Etymological English Dictionary (London, 1730). Blasphemy: "an uttering of reproachful words tending to the dishonour of God, &c. vile, base language." |