MATTER OF JOSEPH BURSTYN, INC. v. Wilson

101 N.E.2d 665, 303 N.Y. 242, 1951 N.Y. LEXIS 677

Opinions

Froessel, J.

A license for the exhibition of a motion picture film entitled “ The Miracle ” together with two other films, described in their combination as a trilogy and called “ Ways of Love ”, was issued to petitioner on November 30, 1950, by the Motion Picture Division of the Department of Education of the State of New York, under the governing statute (Education Law, art. 3, part II). “ The Miracle ” was produced in Italy as “ II Miracolo ’ ’, and English subtitles were later added. A prior license had been issued to the original owner of the distribution rights for exhibition, with Italian subtitles alone, but the film was never shown under that license.

The first public exhibition of “ The Miracle ” as part of the trilogy, “ Ways of Love ”, was shown in New York City on December 12, 1950. It provoked an immediate and substantial public controversy, and the Education Department was fairly flooded with protests against its exhibition. Others expressed a contrary view. In consequence thereof, the Board of Regents of the University of the State of New York (hereinafter called the Regents) proceeded promptly to review the action of its motion picture division. It appointed a subcommittee, and directed a hearing requiring petitioner to show cause why the licenses should not be rescinded and cancelled.

After viewing the film and giving petitioner an opportunity to be heard, its subcommittee reported that there was basis for the claim that the picture is sacrilegious, and recommended that the Regents view the film. Petitioner declined to participate in the hearing other than to appear specially before the subcommittee for the purpose of challenging the jurisdiction of the Regents to cancel the licenses, but its sole stockholder, Joseph Burstyn, appeared as an individual and filed a brief.

Thereupon and on February 16, 1951, after reviewing the picture and the entire record, the Regents unanimously adopted a resolution rescinding and canceling the licenses upon their determination that “ The Miracle ” is sacrilegious, and not entitled to a license under the law.

Footnotes

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* Thereafter petitioner instituted the present article 78 proceeding to review that determination, and now urges that (1) the Regents were powerless to review the action of its motion picture division or to revoke the licenses; (2) the word “ sacrilegious ” does not provide a sufficiently definite standard for action; (3) the Regents exceeded their authority; (4) the statute is unconstitutional as in violation of the First and Fourteenth Amendments of the Constitution of the United States in that denial or revocation of a license on account of sacrilege interferes with religious liberty and breaches the wall between Church and State; and (5) the statute is unconstitutional in toto as a prior restraint on the right of free speech guaranteed by the First and Fourteenth Amendments of the Federal Constitution. The Appellate Division unanimously confirmed the determination of the Regents.

First: The principal argument advanced by petitioner is directed toward the claim that the Regents have no power under the statute to rescind a license once issued by the motion picture division, unless upon a charge of fraud in the procurement thereof or subsequent misconduct by the licensee. Any other construction of the statute, it is said, would be inequitable ‘to petitioner, which has spent money relying upon the license as issued. The Regents, on the other hand, contend that they were empowered under the Education Law and our State Constitution to make the determination here challenged.

This issue, then, is one primarily of statutory construction, turning upon the intention of the Legislature as found in the language of the statutes. It is resolved by the answer to the question: Did the Legislature intend that the granting of a license by a subordinate official of the State Education Department should be a determination final and irrevocable, binding on the head of his department, the courts and the public for all time? As we said in Matter of Equitable Trust Co. v. Hamilton (226 N. Y. 241, 245) “ That is in every case a question dependent for its answer upon the scheme of the statute by which power is conferred. ’ ’

In considering the statute pattern conferring the power, we should note the framework of fact and circumstance in which the statutes are to be examined, and particularly the nature of the problem with which we are dealing. Motion pictures, by their very nature, present a unique problem. They are primarily entertainment, rather than the expression of ideas, and are engaged in for profit (Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U. S. 230; Mutual Film Co. v. Industrial Comm. of Ohio, 236 U. S. 247; Mutual Film Corp. v. Hodges, 236 U. S. 248). They have universal appeal to literate and illiterate, young and old, of all classes. They may exercise influence for good, but their potentiality for evil, especially among the young, is boundless. As was said in Pathe Exch., Inc., v. Cobb (202 App. Div. 450, 457, affd. 236 N. Y. 539), where we sustained the original statute (L. 1921, ch. 715) creating the “motion picture commission ” in respect to current events films: “many would cast discretion and self-control to the winds, without restraint, social or moral. There are those who would give unrestrained rein to passion. * * * They appreciate the business advantage of depicting the evil and voluptuous thing with the poisonous charm.” A public showing of an obscene, indecent, immoral or sacrilegious film may do incalculable harm, and the State, in making provision against the threat of such harm (Education Law, § 122), may afford protection as broad as the danger presented.

We are thus concerned with a valid exercise of the police power (Mutual Film cases, supra; Note 64 A. L. R. 505, and cases therein cited; Pathe Exch., Inc., v. Cobb, supra) and with rights acquired by licensees thereunder. Such rights are not contractual in the constitutional sense (People ex rel. Lodes v. Department of Health, 189 N. Y. 187; 12 Am. Jur., Constitutional Law, § 405; 33 Am. Jur., Licenses, §§ 21, 65). This is the general rule notwithstanding the expenditure of money by a licensee in reliance upon the license, although there is authority to the contrary in the case of building permits (33 Am. Jur., Licenses, § 21; People ex rel. Lodes v. Department of Health, supra, distinguishing at p. 196, City of Buffalo v. Chadeayne, 134 N. Y. 163). Moreover, rights gained under the statute are accepted with whatever conditions or reservations the statute may attach to them. With these precepts in mind, and in the light of the problem with which the Legislature dealt, we may properly turn to a consideration of the statutory scheme.

The original body for the licensing of motion pictures for exhibition in this State was an independent commission created by chapter 715 of the Laws of 1921, its members appointed by the Governor, by and with the advice and consent of the Senate. While the provisions for licensing were similar to those now in the Education Law, there was an essential difference in the scheme embodied therein due to the independent nature of the former commission, which was then expressly given all of the powers now granted to the Begents. In 1926, the functions of the motion picture commission were transferred to the Department of Education and the old commission was abolished (L. 1926, ch. 544; State Departments Law, § 312). In 1927, the present form of the statute was incorporated into the Education Law as article 43 thereof (L. 1927, ch. 153, §§ 28, 29). These changes were significant, as will presently more fully appear.

The Begents are a constitutional body, existing since 1784 (N. Y. Const., art. XI, § 2). They are named as head of the Education Department in the same paragraph as are the three chief elective officers of the State, the Governor, Comptroller and Attorney-General (art. V, § 4). The latter provision of our Constitution empowers the Begents to “appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department.” The mere placing of the motion picture commission in the Department of Education indicates an intention that the Begents should henceforth exercise complete authority over that agency.

Moreover, by explicit language, the Legislature gave to the Regents as head of the Education Department all of the broad powers of control and supervision formerly possessed by the independent commission, leaving to the motion picture division only “ the administrative work ” of licensing (Education Law, §§ 101, 103, 132). Thus, by section 101 of the Education Law, the Education Department “is charged ” with “ the exercise of all the functions ’ ’ of the department, and with 6 ‘ the- perform-once of all” the “ powers and duties ” transferred from the former independent motion picture commission, “ whether in terms vested in such department ” or in any “ division ” thereof (emphasis supplied), and such performance is authorized ‘‘ by or through ’ ’ the appropriate officer or division; by the same section the Regents are continued as “ the head of the department ’ ’, as prescribed in the Constitution. The Regents appoint the director, officers and employees of the motion picture division, fix their compensation, assign duties to the division, establish local offices, and “ prescribe the powers and duties ” (Education Law, §§ 120, 121). The “ form, manner and substance ” of license applications are prescribed by the Education Department, and not by the motion picture division (Education Law, § 127).

The Regents must review the denial of a license before an unsuccessful applicant, who is given a “ right of review by the regents ”, can avail himself of an article 78 proceeding (Education Law, § 124). A corresponding right of review where a license was issued must be deemed implicit in the broad powers of the board, rendering needless any additional language by way of express grant; when the Legislature intends to withhold the power of review from the head of a department with respect to the finding of an agency of the department, it does so by express language (Labor Law [labor relations], § 702, subd. 9; Workmen’s Compensation Law, § 142, subd. 4). Finally, the Regents “ have authority to enforce the provisions and purposes ” of the statute and to make rules and regulations in “ carrying out and enforcing [its] purposes ” (Education Law, § 132; emphasis supplied). This latter provision is taken directly from the original statute (§ 15), and, although not embraced in the 1926 enactment transferring the functions of the independent motion picture commission, this precise authority was expressly given to the Regents by the 1927 amendment (Education Law, former § 1092). The power to enforce embraces the power to correct the action of a subordinate, and one of the specific provisions and purposes of the act is that no sacrilegious films be licensed.

From all of this it is clear that the motion picture division is subject and subordinate to the Education Department and the Regents, and is not independent thereof (cf. Butterworth v. United States ex rel. Hoe, 112 U. S. 50, in which an altogether different statute pattern was involved, and where an appeal was expressly authorized from the commissioner to the court, either directly or by means of an original suit in equity). Even such functions as may now be exercised by the director of the division under the statute may be exercised by other officials upon authorization by the Regents (Education Law, §§ 120, 122). Without question, then, the statute constitutes the Regents the mainspring of the entire system therein set up. To deny them the power to correct the action of a subordinate, when the ultimate responsibility rests upon them, would be to set at naught the whole elaborate plan established by the Legislature. Such power is “ essential to the exercise ” of the powers expressly granted (Lawrence Constr. Corp v. State of New York, 293 N. Y. 634, 639).

If" petitioner’s interpretation of the Education Law were to be adopted, no review either of an administrative or supervisory nature, or through the civil or criminal courts (see Penal Law, § 1141, as amd. by L. 1950, ch. 624; Hughes Tool Co. v. Fielding, 188 Misc. 947, affd. 272 App. Div. 1048, affd. 297 N. Y. 1024), of the action of a subordinate granting a license in the first instance is provided by the Legislature. Thus the most indecent, obscene, immoral, sacrilegious or depraved presentation might be made through the medium of motion picture film, provided only there was some slip, inadvertence or mistake on the part of the reviewer, leaving his superiors, the courts, and the public generally powerless to correct the situation. It would simply mean that this statutory plan to protect the public from films forbidden to be licensed for general exhibition under section 122 rests entirely upon the judgment of one or two persons in the motion picture division, whose favorable determination in the first instance is irrevocably binding on the People of the State of New York. Such intention on the part of the Legislature would seem to be so utterly unreasonable and out of harmony with basic public policy in these matters as to be unthinkable (People v. Ahearn, 196 N. Y. 221, 227).

On the other hand, the only reasonable view to be taken is that the Legislature deemed the Constitution and the Education Law vested in the Regents as an independent constitutional body such supervisory powers as sufficiently to protect the public interest against improper action by subordinates, and that the authority thereby granted is therefore sufficiently complete in itself to accomplish the salutary purposes envisioned therein. Once the Legislature placed the power to license in the Department of Education, the Constitution (art. V, § 4) mandated the Board of Regents as its head to exercise it, and there is no legislation even purporting to restrict them from doing so. They are authorized to employ subordinates and to function “ by or through ” them, but are not thereby divested of their own ultimate responsibility. The action of the motion picture division must thus be regarded as reviewable by the Regents in any case — where the license is refused, on demand of the applicant; where the license is granted, on the Regents’ own motion.

Accordingly, we are of the opinion that the Regents have power to review the action of its motion picture division in granting a license to exhibit motion pictures, and rightfully exercised its jurisdiction in this case.

Second: To the claim that the statute delegates legislative power without adequate standards, a short answer may be made. Section 122 of the Education Law provides that a license shall be issued for the exhibition of a submitted film, “ unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such character that its exhibition would tend to corrupt morals or incite to crime ”. Only the word “ sacrilegious ” is attacked for indefiniteness. The dictionary, however, furnishes a clear definition thereof, were it necessary to seek one, as, e.g., “ the act of violating or profaning anything sacred” (Funk & Wagnall’s New Standard Dictionary [1937 ed.]). There is no difficulty in recognizing the limits of the criterion thus established, and the courts have had no problem either with the word “ sacrilegious ” or with its synonym, “ profane ”.

In Mutual Film Corp. v. Hodges (236 U. S. 248, supra), the contention that there was an invalid delegation of legislative power was rejected where the statute provided that the censor should approve such films as were found to be “ moral and proper and disapprove such as are sacrilegious, obscene, indecent or immoral, or such as tend to corrupt the morals ” (p. 257, emphasis supplied). In Winters v. New York (333 U. S. 507, 510) it is stated that publications are “ subject to control if they are lewd, indecent, obscene or profane ” (emphasis supplied). In Chaplinsky v. New Hampshire (315 U. S. 568, 571-572) Mr. Justice Murphy declared for a unanimous court : “ There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane ” (emphasis supplied). Indeed, Congress itself has found in the word “ profane ” a useful standard for both administrative and criminal sanctions against those uttering profane language or meaning by means of radio (Dumont Laboratories v. Carroll, 184 F. 2d 153, 156, certiorari denied 340 U. S. 929; U. S. Code, tit. 47, § 303, subd. [m], par. [1], cl. [D]; U. S. Code, tit. 18, § 1464; see, also, Penal Law, § 2072).

Accordingly, the claim that the word “ sacrilegious ” does not provide a sufficiently definite standard may be passed without further consideration, since it is without substance.

Third: We turn now to the contention that the Regents exceeded their powers.

Petitioner urges that, even if the board had the power, there was no justification for revocation. Of course, as the Appellate Division below, in its opinion, said (278 App. Div. 253, 260): “ Under the familiar rule, applicable to all administrative proceedings, we may not interfere unless the determination made was one that no reasonable mind could reach.” This rule applies to the courts and not to administrative agencies, as the Regents. (Matter of Foy Productions, Ltd., v. Graves, 253 App. Div. 475, affd. 278 N. Y. 498.)

We have all viewed the film in question. The so-called exhibits, which are simply unsworn communications expressing personal opinions, are of little help to us. The principal basis for the charge of sacrilege is found in the picture itself, the personalities involved, the use of scriptural passages as a background for the portrayal of the characters, and their actions, together with other portions of the script and the title of the film itself. It is featured as a “ way of love At the very outset, we are given this definition: il ardent affection, passionate attachment, men’s adoration of God, sexual passion, gratification, devotion ”.

While the film in question is called ‘ ‘ The Miracle ’ no miracle is shown; on the contrary, we have the picture of a demented peasant girl meeting a complete stranger whom she addresses as “ Saint. Joseph At the very beginning of the script, reference is made to “ Jesus, Joseph, Mary “ Saint Joseph ” first causes her to become intoxicated. Scriptural passages referring to the Holy Sacrament (Luke 22:19), and to the nativity of Christ (Matthew 1:20), are freely employed immediately after she states she is not well. A blackout in the film, in its association with the story, compels the inference that sexual intercourse and conception ensue. “ Saint Joseph ” abandons her immediately following the seduction, she is later found pregnant, and a mock religious procession is staged in her honor; she is “ crowned ” with an old washbasin, is thrown out by her former lover, and the picture concludes with a realistic portrayal of her labor pains and the birth in a church courtyard of her child, whom she addresses as “ my blessed son ”, “ My holy son ”.

Christ is the heart and core of the Christian faith. Two personalities most closely related to Him in life were His mother, Mary, and Joseph. They are deeply revered by all Christians. Countless millions over the centuries have regarded their relationship as sacred, and so do millions living today. “ The Miracle ’ ’ not only encroaches upon this sacred relationship and the Biblical presentation thereof in respect to the birth of Christ, but utterly destroys it, associating it, as the Regents found, “ with drunkenness, seduction, mockery and lewdness ”, and, in the language of the script itself, with “ passionate attachment * * * sexual passion ” and “ gratification ”, as a way of love.

In the light of the foregoing, we conclude, as did the Appellate Division, (1) that we cannot say that the determination complained of “ was one that no reasonable mind could reach and (2) that the board did not act arbitrarily or capriciously.

Fourth: It is further urged that a license may not be denied or revoked on the ground of sacrilege, because that would require a religious judgment on the part of the censoring authority and thus constitute an interference in religious matters by the State. In this connection, it is also urged that freedom of religion is thereby denied, since one man’s sacrilege is another man’s dogma, and one may thus be prevented from propagating his own religious views by means of motion pictures. The latter argument is specious when applied to motion pictures offered to the public for general exhibition as a form of entertainment, as we shall hereafter point out. Religious presentations, as ordinarily understood, as well as other educational and scientific films, are exempt (Education Law, § 123). Thus freedom of religion is not impaired in the slightest, as anyone may express any religious or antireligious sentiment he chooses through a proper use of the films.

Nor is it true that the Regents must form religious judgments in order to find that a film is sacrilegious. As hereinbefore indicated, there is nothing mysterious about the standard to be applied. It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule to the extent that it has been here, by those engaged in selling entertainment by way of motion pictures. As the court below said of the statute in question, 1 ‘ All it purports to do is to bar a visual caricature of religious beliefs held sacred by one sect or another, and such a bar, in our opinion, is not a denial of religious freedom.” (278 App. Div. 253, 258.)

Although it is claimed that the law benefits all religions and thus breaches the wall of separation between Church and State, the fact that some benefit may incidentally accrue to religion is immaterial from the constitutional point of view if the statute has for its purpose a legitimate objective within the scope of the police power of the State (Everson v. Board of Educ., 330 U. S. 1; Cochran v. Louisiana State Bd. of Educ., 281 U. S. 370; Bradfield v. Roberts, 175 U. S. 291; People v. Friedman, 302 N. Y. 75, appeal dismissed for want of substantial Federal question 341 U. S. 907). Cases such as Illinois ex rel. McCollum v. Board of Educ. (333 U. S. 203) and Cantwell v. Connecticut (310 U. S. 296) are not to the contrary. The former case dealt with the use of State property for religious purposes (Matter of Zorach v. Clauson, 303 N. Y. 161), while the latter held (p. 305) that “ a censorship of religion as the means of determining its right to survival is a denial of liberty protected by the ” First and Fourteenth Amendments. Yet even in those cases it was recognized that the States may validly regulate the manner of expressing religious views if the regulation bears reasonable relation to the public welfare. Freedom to believe — or not to believe — is absolute; freedom to act is not. “ Conduct remains subject to regulation for the protection of society ” (Cantwell v. Connecticut, supra, p. 304; American Communications Assn. v. Douds, 339 U. S. 382, 393).

The statute now before us is clearly directed to the promotion of the public welfare, morals, public peace and order. These are the traditionally recognized objects of the exercise of police power. For this reason, any incidental benefit conferred upon religion is not sufficient to render this statute unconstitutional. There is here no regulation of religion, nor restriction thereof or other interference with religious beliefs except insofar as the picture itself does so, nor is there any establishment of religion or preference of religion or use of State property or funds in aid of religion. There is nothing more than a denial of the claimed right to hurl insults at the deepest and sincerest religious beliefs of others through the medium of a commercial entertainment spectacle.

We are essentially a religious nation (Church of Holy Trinity v. United States, 143 U. S. 457, 465), of which it is well to be reminded now and then, and in the McCollum case (supra) the Supreme Court paused to note that a manifestation of governmental hostility to religion or religious teachings “ would be at war with our national tradition ” (p. 211). The preamble to our State Constitution expresses our gratitude as a people to Almighty God for our freedom. To say that government may not intervene to protect religious beliefs from purely private or commercial attacks or persecution, whatever the underlying motive, and however skillfully accomplished, as distinguished from the assertion of conflicting beliefs, is to deny not only its power to keep the peace, but also the very right to “ the free exercise ” of religion, guaranteed by the First Amendment. The offering of public gratuitous insult to recognized religions beliefs by means of commercial motion pictures is not only offensive to decency and morals, but constitutes in itself an infringement of the freedom of others to worship and believe as they choose. Insult, mockery, contempt and ridicule can be a deadly form of persecution — often far more so than more direct forms of action. The prohibition of such conduct comes within the legitimate sphere of State action, and this State has recognized this principle, not only in the Education Law but in other respects as well (see, e.g., Penal Law, art. 186; Civil Rights Law, art. 4). We are not aware that this power has ever been even impliedly denied to the States.

This nation is a land of religious freedom; it would be strange indeed if our Constitution, intended to protect that freedom, were construed as an instrument to uphold those who publicly and sacrilegiously ridicule and lampoon the most sacred beliefs of any religious denomination to provide amusement and for commercial gain.

For the foregoing reasons, we conclude that the challenged portion of the statute in no way violates the provisions of the First Amendment of the Federal Constitution relating to religious freedom.

Fifth: Petitioner finally argues that the statute is unconstitutional in toto; that motion pictures are to be treated as the press generally, and may not be subjected to censorship or prior restraint. While it may not be heard in this respect, inasmuch as it has sought and obtained benefits under the statute, and even now seeks to retain the licenses granted (Fahey v. Mallonee, 332 U. S. 245, 255; Shepherd v. Mount Vernon Trust Co., 269 N. Y. 234, 244-247), we shall dispose of this argument upon the merits.

The contention urged is made in the face of direct holdings to the contrary (Mutual Film cases, supra; RD-DR Corp. v. Smith, 183 F. 2d 562 [1950], certiorari denied 340 U. S. 853; Pathe Exch., Inc., v. Cobb, 202 App. Div. 450, affd. 236 N. Y. 539, supra; 64 A. L. R. 505).

The rationale of these decisions is that motion pictures are primarily a form of entertainment, a spectacle or show, and not such vehicles of thought as to bring them within the press of the country. On this basis, petitioner’s contention that the Mutual Film cases (supra) lack authority today, because it was not the Federal Constitution against which the statute was there tested, is unsound, for the Ohio Constitution guarantees free speech and a free press as does the Federal Constitution. Essentially, what petitioner would have us do is to predict that the Supreme Court will overrule the Mutual Film cases and so disregard them here, as well as our own holding in the Pathe Exchange case (supra). But such was the position squarely taken in the RD-DR Corp. case (supra), where the same arguments were presented as are here urged, and they were unequivocally rejected.

On the same footing is the contention that technical developments have made a difference in the essential nature of motion pictures since the Mutual Film decisions. Such development was foreseen in the Mutual Film cases (see p. 242), and was realized at the time of the RD-DR Corp. case (p. 565), decided a year ago. We have already pointed out that scientific and educational films, among others of kindred nature, are not within the general licensing statute, and are thus not concerned with any problem that might be raised by an attempt to impose general censorship upon such films.

Some comfort is found by petitioner in a statement in United States v. Paramount Pictures, Inc. (334 U. S. 131, 166) to the effect that “ moving pictures, like newspapers and radio, are included in the press ”. That was an antitrust case, freedom of the press was not involved, and the statement was pure dictum. Moreover, it may be observed that when certiorari was sought in the RD-DR Corp. case (supra), it was denied by the same court; the only Justice voting to grant was the one who wrote that dictum. Were we to rely upon dictum, the concurring remarks of Mr. Justice Frankfurter in a subsequently decided free speech case (Kovacs v. Cooper, 336 U. S. 77, 96), would be appropriate: ‘ ‘ Movies have created problems not presented by the circulation of books, pamphlets, or newspapers, and so the movies have been constitutionally regulated.” (Citing the Mutual Film cases, supra.) However, dictum is a fragile bark in which to sail the constitutional seas.

The fact is that motion pictures do create problems not presented by other media of communication, visual or otherwise, as already indicated. It should be emphasized, however, that technical developments which increase the force of impact of motion pictures simply render the problem more acute. It does not avail to argue that there is now greater ability of transmission, when it is precisely that ability which multiplies the dangers already inherent in the particular form of expression.

Whether motion pictures are sui generis or a very special classification of the press becomes a question for the academicians, once it is recognized that there is a danger presented and met by legislation appropriate to protect the public safety, yet narrow enough as not otherwise to limit freedom of expression. If there is any one proposition for which the free speech cases may be cited, from Schenck v. United States (249 U. S. 47) to Dennis v. United States (341 U. S. 494) and Breard v. Alexandria (341 U. S. 622), it is that freedom of speech is not absolute, but may be limited when the appropriate occasion arises. We are satisfied that the dangers present and foreseen at the time of the Mutual Film cases (supra) are just as real today.

The order of the Appellate Division should be affirmed, with costs.

Education Law, § 122.