# MATTER OF JOSEPH BURSTYN, INC. v. Wilson

> New York Court of Appeals · October 18, 1951 · 303 N.Y. 242

URL: https://www.frixlaw.com/law-library/cases/9885547

## Case

- **Full name:** In the Matter of Joseph Burstyn, Inc., Appellant, Against Lewis A. Wilson, as Commissioner of Education of the State of New York, Et Al., Respondents
- **Court:** New York Court of Appeals
- **Decided:** October 18, 1951
- **Citations:** 303 N.Y. 242; 101 N.E.2d 665; 1951 N.Y. LEXIS 677
- **Precedential status:** Published
- **Opinion:** Concurrence by Desmond
- **Judges:** Loughran
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885547

## Opinion text

Desmond, J.
(concurring). I concur for affirmance for these reasons:
1. It is not too clear from the statutes that the Legislature, transferring (by L. 1926, ch. 544) motion picture licensing from an independent State Motion Picture Commission to a new Motion Picture Division in the State Department of Education intended, without so saying, that the Board of Eegents, as head of the Education Department, should have power to revoke a license granted by the division. However, there is general language in the statute (Education Law, § 132) empowering the Eegents to enforce the licensing law, including its prohibition against the licensing of “ obscene, indecent, immoral, inhuman, sacrilegious ” films (Education Law, § 122), and it would be an improbable legislative intent that would leave all this solely to a division of the department, with no corrective authority available elsewhere in the State Government. It would bo anomalous if the Eegents, charged by the statute with enforcing the law, could not correct the errors of their subordinate body.
2. As to whether this film can be considered sacrilegious, our own jurisdiction is limited by the Miller v. Kling ( 291 N. Y. 65 ) rule which requires us to uphold the administrative body’s decision if supported by substantial evidence. In other *263 words, if reasonable men could regard the picture as sacrilegious, then we cannot say that the Regents ’ ruling is wrong as matter of law. Reasonable, earnest and religious men in great numbers have said so, although other earnest religious voices express the other view. There ivas thus fair basis for the Regents’ holding.
3. “ Sacrilegious ”, like “ obscene ” (see Winters v. New York, 333 U. S. 507 ), is sufficiently definite in meaning to set an enforcible standard. That men differ as to what is “ sacrilegious ’ ’ is beside the point — there is nothing in the world which all men everywhere agree is “ obscene ”, yet obscenity laws are universally enforced. Of course, some of the meanings of ££ sacrilegious ” have no possible application to a motion picture, but, according to all the dictionaries and common English usage, the adjective has one applicable meaning, since it includes violating or profaning anything held sacred (see Oxford Dictionary, Vol. 8, pp. 18-19; Webster’s New International Dictionary [2d ed.], unabridged, p. 2195; Black’s Law Dictionary [deluxe ed.], p. 1574). We thus have a statutory term of broad but ascertainable meaning, and, by settled law, the administrative application thereof must be accepted by the courts “ if it has £ warrant in the record ’ and a reasonable basis in law ” (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108 ; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1, 9 ).
4. Motion pictures are, it would seem, not excluded from First Amendment coverage (United States v. Paramount Pictures, Inc., 334 U. S. 131, 166 ) but, since there was a reasonable ground for holding this film ££ sacrilegious ” (in the meaning which the Legislature must have intended for that term), the film was constitutionally ££ subject to control ” (Ex parte Jackson, 96 U. S. 727, 736 , cited in Winters v. New York, supra, p. 510 ). It fell within the £ £ well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (Chaplinsky v. New Hampshire, 315 U. S. 568 , 571-572 — italics mine). The Chaplinsky decision says that these narroAvly limited classes of constitutionally preventable utterances include £ ‘ the lewd and obscene, the profane, the libelous, and the insulting or £ fighting ’ words — those which by their very utterance inflict injury or *264 tend to incite an immediate breach of the peace.” That covers this case, and should dispose of any claim of violation of the First Amendment. If not, then any prior censorship at all of any motion picture is unconstitutional, and the floodgates are open.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885547. Public record. Not legal advice.