the men who wrote this document lived in an agricultural society. it is a measure of their wisdom that their plan of government still provides us with a workable framework for decision. yet, the transition from an agricultural to an industrial nation has subjected the constitution to countless stresses and problems of interpretation. this film dealt with one of those many problems. [captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] ♪ ♪ narrator: this is the story of american constitutional law. in part, it has to do with the

motion picture made in italy directed by roberto rossellini. a film that brought harsh controversy to new york. ♪ our story also has to do with a quiet street in connecticut, where a young man, a minister for jehovah witnesses, went from door to door with a photograph record, which he played for anyone who cared to listen. ♪ that phonograph record too caused controversy. two disputes, each of which went to the united states supreme

court. there these cases of the film and the phonograph record became a chapter in the history of the united states constitution. each an interpretation affecting many people. a crucial decision. ♪

in 1921, new york state adopted a system of film censorship. henceforth, before a film could be shown in the state, at any place of amusement charging admission, it would have to have the state's approval. during the next 30 years, the state's reviewers examined almost 50,000 films. most were promptly approved. in some cases, the board asked for cuts. a few films were banned outright. for such cases, the law provided an appeal procedure to the state board of regents. if a film was not obscene, indecent, immoral, inhuman, sacrilegious, or intending to corrupt morals or incite crime, the law directed that it be given a license. on november 30, 1950, the board reviewed a film entitled "the

miracle." submitted as part of a trilogy called "ways of love." ♪ so a license was issued, signed by the director of the motion picture vision of the state education department, dr. hugh flick. 12 days later, "ways of love" opened at the paris theater. reaction was good. "cue" magazine said "a memorable

event in motion pictures." ♪ the trilogy offered three stories of love. "the miracle" won special praise from "the new york times," which called it brilliant overpowering. , the story told of a simple minded peasant girl. expecting a child, she somehow sought its father was st. joseph. a few critics found the story objectionable, but the theater was quite unprepared for what happened on the 10th day of the run. there was a phone call from a new york city official. an assistant manager took the call. the official said the theater would immediately lose its operating license if "the miracle" was not withdrawn. he said he considered the film blasphemous. at first, the threats seemed unbelievable, but later in the

day, a letter brought confirmation. within a few days, the matter was brought to court. new york supreme court justice greenberg in his chambers issued a temporary order. >> to what you have had on the rights of individuals, i just can't subscribe to this kind of action. it appears to me that this film was publicly exhibited and not condemned. it was licensed by the motion picture division of the state of new york department of education. i think i shall grant this stay. narrator: the city was enjoying enjoined for the time being, from interfering with "the ways of love." the first result of all this was more business at the box office. now for each showing, a long line was waiting. ♪

but presently there was also a line of pickets. the national legion of decency had condemned the film as sacrilegious. the public was urged not to see it. ♪ before long, the pickets were joined by others, picketing the pickets. ♪ meanwhile in albany, 150 miles away, the tension was felt. the state board of regents besieged with messages, decided , to study the matter. it viewed the film and made a decision. the license for "the miracle" was revoked. ♪

but the struggle was not over. the distributors of "ways of love" were determined to fight the issue through the courts. so the spotlight shifted to the office of ephram london, attorney. >> we will have to work on a number of issues. to my mind, the most helpfu hopl and promising issue is the broadest of them all and that is the one that the entire system of state censorship is a restraint on the freedom of communication guaranteed by the constitution. struggles, licensing over these matters are not new . in the days of henry viii, england established a licensing system for printed matter. ♪ later, strict procedures were adopted. before anything could be published, it had to have

official approval. for any stage performance too, a license was required. all this was not without protest. john milton made a strong attack on press licensing. he wrote, "though all the winds of doctrine were let loose a play upon the earth, so truth be in the field. we do injuriously by licensing and prohibiting to missed out misdoubt her strength. let truth and falsehood grapple. whoever knew truth but to the worst in a free and open encounter?" milton published his words without the seal of approval. 50 years later, england finally abandoned licensing, not for the theater, but for the press. freedom of the press became an english tradition. an american tradition, too. in our bill of rights, the first

first clause guarantee o included a guarantee of press freedom. similar guarantees were written into most state constitutions. ♪ freedom of the press. what did the words mean to our early leaders? most of them were lawyers. the one book all young law students read in those days was blackstone, "blackstone's commentaries." here was the oracle on law. blackstone said this -- "liberty of the press is indeed essential to a free state, but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published. every free man has an undoubted right to lay what sentiments he pleases before the public, to subject the press to the restrictive power of a licensor as was formally done is to make

him the arbitrary and infallible judge of all controverted points in learning, religion, and government." so wrote blackstone. and all this became an axiom for the american press. except in some matters relating to war, no american congress, no legislature would now dare to require advance approval before publication of printed matter. our freedom of the press against begins with freedom from licensing. but that has to do with the press. what about film? in the closing years of the 19th century came this strange new medium. the peep show swept the penny arcades. within a dozen years, it became the basis of a new industry. many cities acquired hundreds of small theaters, first called

nickelodeons. admission, five cents. what went on there? ♪ sometimes there was glorious action. ♪ sometimes sports events. ♪ sometimes glimpses of the wide world. ♪ sometimes wonderful nonsense. ♪ now and then, there were items in the tradition of bedroom farce. this caused concern. some said the nickelodeons were undermining the morals of the young. some demanded government action. ♪

in 1907, action began. various cities set up censors. then state action began. in pennsylvania adopted 1911, censorship. every film before exhibition must have state approval. in 1913, ohio passed a similar law. then kansas, maryland, virginia, massachusetts, new york. ♪

but all of this not without protest. in 1914, the mutual film company began a lawsuit. it asked an injunction against the ohio sensor board. in its detroit film exchange, said mutual, it had 2500 reels of film. it wished to show these in ohio but was now subjected to unconstitutional restraints by the ohio board of censors. the case went to the united states supreme court. in february 1915 came the decision, a unanimous decision read by justice mckenna. he said, "the exhibition of moving pictures is a business, pure and simple. like other spectacles, not to be regarded, we think, as part of the press of the country, or an organ of public opinion."

♪ all this, said the court, was not protected by the first amendment. 36 years later, that decision still stood. film was still, in the eyes of the law, a mere spectacle, not an organ of opinion.

and that was one of the problems that faced mr. london. on the other hand, there were indications that a change of attitude might be changing taking place. one indication -- the u.s. against paramount. narrator: the united states versus paramount and others. ♪ this was not a censorship case, but an antitrust suit. in this legal action, the government sought to compel the major film producers to divest themselves of ownership of thousands of theaters. control over theaters, said the government, gave producers excessive power. the case went to the supreme court. in 1948 came the decision, a 7-1 decision upholding the government's contentions. it was read by justice douglas. and it he said almost as a digression, "we have no doubt

that moving pictures, like newspapers and radio, are included in the press, whose freedom is guaranteed by the first amendment." a casual victim not affecting the 1915 ruling, yet it suggested the court might repudiate the old doctrine. mr. london would so urge and meanwhile press another argument. >> the one that the state, in the "miracle" case, was making a decision about a religious matter. and interfering in a religious question. the state was violating our traditional separation of church and state. the separation guaranteed by another provision of the first amendment. now, we have a number of other decisions that should be of help to us.

cantwell against connecticut. narrator: cantwell versus connecticut, a case far removed from the crowds of broadway, but like "the miracle," involved a religious issue and a licensing requirement. also, tense feelings. ♪ in 1938, russell cantwell, an ordained minister for the group known as jehovah's witnesses, went door-to-door in various towns, including new haven. >> what can i do for you? >> i am mr. cantwell. i represent the watchtower society and i am calling to play a recorded bible lecture for you. it will take about four minutes. >> oh, i don't know. >> it is of interest to all religious people and it is free, i am sure you will enjoy it. >> well, i guess so. narrator: the recording used by mr. cantwell presented excerpts

from a book. the book "enemies" was an attack on various religious doctrines and on organized religion in general. >> [recording playing] the publishers exhibit to the people the book entitled "enemies." the purpose is to enable all persons who love peace and righteousness to find out how and may find protection safety. to learn how one may gain peace and joy is important. the perfect word of god is the authority upon the book is

based, and it has found the greatest proof that the enemy of man is satan. his purpose is to entrap man and a host of wicked angels operate with them and he is the selfish and ambitious men who accomplish his wicked purposes. he has seen and overreached rulers, made them unjust and cruel and for centuries, there , has been much suffering and distress. the most seductive and subtle instrument of deceit is religion because religion has the appearance of doing good whereas it brings the people evil. different religions are all deceptive. >> please turn it off. >> very well. >> for a contribution of only $.25, i am sure you will find it has a good message. >> i don't want to.

no. please go. >> thank you for your kindness. in having me in. leave with youl a copy of our religious journal to let you further know what our work is about. >> ok, but please go. >> goodbye. >> goodbye. ♪ >> i am mr. cantwell. i represent the watchtower bible

society. i have a recorded message i would like to play for you. it will only take a few minutes. [sirens] ♪ narrator: cantwell was arrested. he was told later it was because he did not have a permit. under connecticut law, to solicit for a religious cause, one had to have a special certificate from the secretary of the state welfare council. in the court of common pleas, in new haven cantwell was , convicted. he appealed the conviction and carried his appeal to the united states supreme court. in 1940 came the decision, a unanimous decision read by justice roberts. he said, "the act requires an application to the secretary of the public welfare council of the state.

he is empowered to determine whether the cause is a religious one. if he finds the cause is not that of religion, to solicit for it becomes a crime. such a censorship is the denial of the liberty protected by the first amendment and the 14th amendment. it is a previous restraint on a guaranteed freedom. in the realm of religious faith, the tenets of one may seem the nkest error to his neighbor, but the people of this nation have ordained, in the light of history, that in spite of the probability of excesses and abuses, these liberties are, in the long view, essential." >> the connecticut licensing statute was held unconstitutional. why shouldn't that apply to the new york licensing laws? narrator: the case of burstyn versus wilson, education commissioner for new york state,

reached the supreme court in united states supreme court in 1952. on came the oral argument and april 24 then a month of silence. finally, on may 26, 1952, came the court's decision, a unanimous decision read by justice clark. he said, "it cannot be doubted that expression by means of motion pictures is included in the free speech and free press guarantee of the first and 14th amendments. it does not follow that the constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. each method of expression tends to present its own peculiar problems. the statute involved here requires that permission to communicate ideas be obtained in

advance from state officials. a major purpose of the first amendment guarantee of a free press was to prevent prior restraint. the state has a heavy burden to demonstrate that the limitation challenged here provides an presents an exceptional case. in seeking to apply the broad definition of sacrilegious, given by the new york court, the sensor is set adrift upon a boundless sea, amid a myriad of conflicting currents of religious views. it is not the business of government in our nation to submit real or imagined attacks upon a particular religious doctrine, whether in publications, speeches, or motion pictures. we hold that under the first and 14th amendments, a state may not ban a film on the basis it is it is sacrilegious." the court had reversed the regents, but it is well to look clearly at what the court did and did not decide.

ban a film as sacrilegious was unconstitutional. what about obscene, indecent, immoral, inhuman and so on? the court did not say. according to its custom, it decided only what had to be decided to settle the case at hand. thus the new york board continued its work, but on a slightly more restricted basis. henceforth, any challenged action would be judged by the supreme court not as the policing of a spectacle, but in the light of the first amendment. what would this mean to the future of censorship? for one opinion, here is mr. london. "miracle"ision in the case was the first essential step. it undid a serious error made many years ago when motion pictures were in their infancy. the next step is inevitable. sooner or later, licensing of motion pictures will be held and

thought to be just as outrageous in the case of films as it would be considered now if it were attempted to license books or magazines. the fight that milton fought in his time against licensing must be fought again and be won again. with respect to motion pictures. narrator: for another opinion, dr. hugh flick. >> the exercise of prior restraint by duly constituted authority is as old as society itself. it is part of a general system of self-preservation. each medium of communication has its own unique emotional impact and each medium of communication , must have its own code of rules and regulations for guidance. it is my belief that here in new york state, the people desire the type of protection which we

give them through our system of regulation, especially when that applies to the young people and the youth of the state which constitute our principal investment in the future. ♪ narrator: the men who wrote this document lived in an agricultural society. it is a measure of their wisdom that their plan of government still provides us with a workable framework for decision. yet the transition from an agricultural to an industrial nation has subjected the constitution to countless stresses and problems of interpretation. this film dealt with one of those many problems. ♪