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FRANKFURTER, J., concurring.

hymn to the Virgin, in their brutal badgering of the tragic woman. The scathing indictment of their evil behavior, implicit in the film, was seemingly overlooked by its critics." 21

William P. Clancy, a teacher at the University of Notre Dame, wrote in The Commonweal, the well-known Catholic weekly, that "the film is not obviously blasphemous or obscene, either in its intention or execution." 22 The Commonweal itself questioned the wisdom of transforming Church dogma which Catholics may obey as "a free act" into state-enforced censorship for all.23 Allen Tate, the well-known Catholic poet and critic, wrote: "The picture seems to me to be superior in acting and photography but inferior dramatically. . . . In the long run what Cardinal Spellman will have succeeded in doing is insulting the intelligence and faith of American Catholics with the assumption that a second-rate motion picture could in any way undermine their morals or shake their faith."

11 24

At the time "The Miracle" was filmed, all the persons having significant positions in the production-producer, director, and cast-were Catholics. Roberto Rossellini, who had Vatican approval in 1949 for filming a life of St. Francis, using in the cast members of the Franciscan

21 Spaeth, "Fogged Screen," Magazine of Art, Feb., 1951, p. 44; N. Y. Herald Tribune, Jan. 30, 1951, p. 18, col. 4.

22 Clancy, "The Catholic as Philistine," The Commonweal, Mar. 16, 1951, pp. 567-569.

23 The Commonweal, Mar. 2, 1951, pp. 507-508. Much the same view was taken by Frank Getlein writing in The Catholic Messenger, Mar. 22, 1951, p. 4, cols. 1-8, in an article bearing the headline: "Film Critic Gives Some Aspects of 'The Miracle' Story: Raises Questions Concerning Tactics of Organized Catholic Resistance Groups in New York." See also, "Miracles Do Happen," The New Leader, Feb. 5, 1951, p. 30, col. 2.

24 N. Y. Times, Feb. 1, 1951, p. 24, col. 7.

994084 0-52-37

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Order, cabled Cardinal Spellman protesting against boycott of "The Miracle":

"In The Miracle men are still without pity because they still have not come back to God, but God is already present in the faith, however confused, of that poor, persecuted woman; and since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the poor, demented woman regains sanity in her maternal love." 25

In view of the controversy thus aroused by the picture, the Chairman of the Board of Regents appointed a committee of three Board members to review the action of the Motion Picture Division in granting the two licenses. After viewing the picture on Jan. 15, 1951, the committee declared it "sacrilegious." The Board four days later issued an order to the licensees to show cause why the licenses should not be cancelled in that the picture was "sacrilegious." The Board of Regents rescinded the licenses on Feb. 16, 1951, saying that the "mockery or profaning of these beliefs that are sacred to any portion of our citizenship is abhorrent to the laws of this great State." On review the Appellate Division upheld the Board of Regents, holding that the banning of any motion picture "that may fairly be deemed sacrilegious to the adherents of any religious group . . . is directly related to public peace and order" and is not a denial of religious freedom, and that there was "substantial evidence upon which the Regents could act." 278 App. Div. 253, 257, 258, 260, 104 N. Y. S. 2d 740, 743, 744–745, 747. The New York Court of Appeals, with one judge concurring in a separate opinion and two others dissenting,

Id., Jan. 13, 1951, p. 10, col. 6; translation by Chworowsky,
Cardinal: Critic and Censor," The Churchman, Feb. 1, 1951, p.


FRANKFURTER, J., concurring.

affirmed the order of the Appellate Division. 303 N. Y. 242, 101 N. E. 2d 665. After concluding that the Board of Regents acted within its authority and that its determination was not "one that no reasonable mind could reach," id., at 250-255, 256-257, 101 N. E. 2d 665, 667671, the majority held, first, that "sacrilegious" was an adequately definite standard, quoting a definition from Funk & Wagnalls' Dictionary and referring to opinions in this Court that in passing used the term "profane," which the New York court said was a synonym of "sacrilegious"; second, that the State's assurance "that no religion . . . shall be treated with contempt, mockery, scorn and ridicule . . by those engaged in selling entertainment by way of motion pictures" does not violate the religious guarantee of the First Amendment; and third, that motion pictures are not entitled to the immunities from regulation enjoyed by the press, in view of the decision in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 230. Id., at 255-256, 258-260, 260-262, 101 N. E. 2d 670–674. The two dissenting judges, after dealing with a matter of local law not reviewable here, found that the standard "sacrilegious" is unconstitutionally vague, and, finally, that the constitutional guarantee of freedom of speech applied equally to motion pictures and prevented this censorship. 303 N. Y. 242, 264, 101 N. E. 2d 665, 675. Both State courts, as did this Court, viewed "The Miracle."

Arguments by the parties and in briefs amici invite us to pursue to their farthest reach the problems in which this case is involved. Positions are advanced so absolute and abstract that in any event they could not properly determine this controversy. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341, 346-348. We are asked to decide this case by choosing between two mutually exclusive alternatives: that motion pictures may be subjected to unrestricted censorship, or that they

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343 U.S.

must be allowed to be shown under any circumstances. But only the tyranny of absolutes would rely on such alternatives to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities. It would startle Madison and Jefferson and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of "The Miracle" from windows facing St. Patrick's Cathedral in the forenoon of Easter Sunday,26 just as it would startle them to be told that any picture, whatever its theme and its expression, could be barred from being commercially exhibited. 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.

If the New York Court of Appeals had given “sacrilegious" the meaning it has had in Catholic thought since St. Thomas Aquinas formulated its scope, and had sustained a finding by the Board of Regents that "The Miracle" came within that scope, this Court would have to meet some of the broader questions regarding the relation to the motion picture industry of the guarantees of the First Amendment so far as reflected in the Fourteenth. But the New York court did not confine "sacrilegious" within such technical, Thomist limits, nor within any specific, or even approximately specified, limits. It may fairly be said that that court deemed "sacrilegious" a selfdefining term, a word that carries a well-known, settled meaning in the common speech of men.

26 That such offensive exploitation of modern means of publicity is not a fanciful hypothesis, see N. Y. Times, April 14, 1952, p. 1,

col. 4.


FRANKFURTER, J., concurring.

So far as the Court of Appeals sought to support its notion that "sacrilegious" has the necessary precision of meaning which the Due Process Clause enjoins for statutes regulating men's activities, it relied on this definition from Funk & Wagnalls' Dictionary: "The act of violating or profaning anything sacred." But this merely defines by turning an adjective into a noun and bringing in two new words equally undefined. It leaves wide open the question as to what persons, doctrines or things are "sacred." It sheds no light on what representations on the motion picture screen will constitute "profaning" those things which the State censors find to be "sacred."

To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects.

Even in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 230, it was deemed necessary to find that the terms "educational, moral, amusing or harmless" do not leave "decision to arbitrary judgment." Such general words were found to "get precision from the sense and experience of men." Id., at 245, 246. This cannot be said of "sacrilegious." If there is one thing that the history of religious conflicts shows, it is that the term "sacrilegious"-if by that is implied offense to the deep convictions of members of different sects, which is what the Court of Appeals seems to mean so far as it means anything precisely-does not gain "precision from the sense and experience of men."

The vast apparatus of indices and digests, which mirrors our law, affords no clue to a judicial definition of sacrilege. Not one case, barring the present, has been uncovered which considers the meaning of the term in any context. Nor has the practice under the New York law contributed light. The Motion Picture Division of the Education Department does not support with ex

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