by Laura Wittern-Keller and Raymond Haberski Jr. Lawrence, KS: University Press of Kansas, 2008. 256pp. Cloth. $35.00. ISBN: 9780700616183. Paper. $16.95. ISBN: 9780700616190.
Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University. Email: SBLichtman [at] ship.edu.
One of the most enjoyable features of the University Press of Kansas’ “Landmark Law Cases and American Society” series is the breadth of cases that it covers. There are volumes devoted to great cases such as MARBURY v. MADISON and BROWN v. BOARD OF EDUCATION, and there are also volumes that cover infamous cases such as DRED SCOTT v. SANDFORD and LOCHNER v. NEW YORK. Yet the series’ primary virtue (among many) is that it does not limit its definition of “landmark” to those cases which, for better or for worse, occupy space in the pantheon of American law. The series also features monographs on cases which perhaps were once regarded as important – and which perhaps still should be so regarded – but which today seem to have slipped through the cracks.
Such is the case with BURSTYN v. WILSON, the US Supreme Court’s 1952 decision which marked the first time that movies were recognized as qualifying for the protections of the First Amendment. A half-century after its issuance, BURSTYN has been progressively deemphasized by casebook editors and constitutional law teachers. Not only do the leading undergraduate constitutional law textbooks fail to excerpt BURSTYN, these texts do not even mention it as a related case or list it in their indexes. This milestone case in free speech law, it seems, no longer merits even a footnote in contemporary narratives of the First Amendment.
But now, courtesy of Laura Wittern-Keller and Raymond Haberski Jr., BURSTYN v. WILSON has been given a decidedly comprehensive treatment. THE MIRACLE CASE is an outstanding reminder that perhaps teachers and students of American constitutional law should revisit BURSTYN, if not for the quality of the opinion itself, then at least for its place in the historical development of freedom of speech.
In BURSTYN v. WILSON, the Supreme Court considered the constitutionality of New York State’s attempt to suppress Roberto Rossellini’s film “The Miracle,” which centers on a homeless Italian woman who is impregnated by a man she believes to be St. Joseph. Rossellini’s intended message was to show how motherhood can transform an ordinary woman into something holy, but the Catholic Church regarded the movie as blasphemous. Although “The Miracle” had been approved in advance by New York State’s film censorship board, the Church – via its satellite group, the Legion of Decency – exerted its customary sway over key New York [*96] City officials. Soon after “The Miracle” opened at the Paris Theater, New York City’s Commissioner of Licenses informed the theater that its operating license would be suspended if it continued to show the movie. Film distributor Joseph Burstyn, who had shepherded “The Miracle” into the United States, successfully pursued an injunction against the License Commissioner, only for the state’s censor board to rescind its earlier approval of “The Miracle” on the grounds that, upon further review, the film was sacrilegious after all. Burstyn challenged that ruling, and despite the existence of a 1915 precedent, MUTUAL FILM CORPORATION v. INDUSTRIAL COMMISSION OF OHIO, which declared movies to be nothing more than a regulable business transaction, he ultimately secured a unanimous Supreme Court decision in his favor (and the overruling of MUTUAL FILM).
THE MIRACLE CASE is a lively account of not only the lonely journey of Joseph Burstyn’s lawsuit, but also the scattershot development of American movie censorship regimes. Wittern-Keller and Haberski masterfully illustrate the parallel tracks of film regulation: on one path, localized censor boards and the ever-present threat of coordinated federal action in the field; on a separate path, a movie industry eager to reassure the public that its products were wholesome entertainment worthy of their discretionary dollars – and equally eager to forestall the imposition of governmental regulations. The result was a back-channel alliance of prudish officials and skittish film companies, an arrangement which persisted for decades. The Motion Picture Association of America refused to stand against censorship in the BURSTYN case, and pointedly withheld its support for his legal challenge. Wittern-Keller and Haberski carefully depict the MPAA’s pusillanimity as representative of an industry fearful of ruffling governmental feathers at the height of the McCarthy period. This story is one of many examples of how their overall narrative delineates the various interlocking pressures endured both by Hollywood and the distributors of foreign films through the 1950s and 1960s.
The book also shines as a history of “what happened next.” Burstyn’s triumph ushered in a new era of challenges to censorship schemes, culminating in the eventual invalidation of the various state and local movie censorship boards, and the wholesale revision of the movie industry’s ratings standards. While the coverage of the various post-BURSTYN dynamics is entertaining and informative, there are places in this section of the book where a bit more depth would have been welcome. For example, BURSTYN set in motion a series of events which brought about the decline of Hollywood’s antiquated Production Code, yet that story is understressed, and there is no mention of autocratic Code czar Geoffrey Shurlock.
A related quibble is that the authors’ portrayal of influential New York Times critic Bosley Crowther seems one-sided. While Crowther is rightly lionized as an ardent foe of censorship, he was also an increasingly reactionary detractor of the new cinema values that emerged in the 1960s. However, this dimension of his career is mentioned only briefly. In [*97] effect, THE MIRACLE CASE is the inverse of Mark Harris’ splendid 2008 book, PICTURES AT A REVOLUTION (a chronicle of the nominees for Best Picture of 1967 as a microcosm of the change sweeping Hollywood), which strafes Crowther for his cultural intransigence while underplaying his central role in the anti-censorship fights of the 1950s and 1960s. Indeed, these two otherwise superior works can serve as excellent companion pieces, both for general readers as well as for course offerings in Film and Politics.
Importantly, THE MIRACLE CASE is not merely a history of mid-century American film. The Supreme Court’s declaration in BURSTYN v. WILSON that movies did “count” under the First Amendment was a first step towards an eventual overhaul of its entire philosophy of freedom of speech in general, and obscenity in particular. As Wittern-Keller and Haberski demonstrate, BURSTYN placed the Court on a collision course with still-potent sociopolitical imperatives to provide the moviegoing public with some guidance as to what it was paying to see, as well as with lingering governmental desires to protect the public from unsavory images.
BURSTYN is all the more momentous because at the time it was issued it ran counter to prevailing free speech wisdom. One year earlier, in DENNIS v. UNITED STATES, the Supreme Court, in a 6-2 plurality, had suggested that the First Amendment’s protections could be circumvented in a time of national emergency, such as the perceived international Communist conspiracy. While DENNIS was an important modification of the shopworn clear-and-present-danger test, civil libertarians hardly saw it as a change for the better. If anything, DENNIS increased the risk of the kind of capricious governmental restrictions on speech with which Joseph Burstyn had to contend.
Furthermore, even contemporary free speech advocates were unprepared to admit films into the sacrosanct world of the First Amendment. Alexander Meiklejohn, whose 1948 book, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT, was one of the first systematic treatments of the meaning of free expression, drew a distinction between “public” and “private” speech. To Meiklejohn, private speech was excluded from constitutional shelter, and he saw artistic speech as unquestionably private. While some critics challenged Meiklejohn’s public/private distinction precisely because it left artistic speech unprotected, this did not mean that they considered movies to be worth the First Amendment’s time. Meiklejohn’s biographer, Adam Nelson, details the tensions between Meiklejohn and Zechariah Chafee, who charged that Meiklejohn’s theory devalued literature’s First Amendment worthiness. At the same time, though, as Wittern-Keller and Haberski ably point out, Chafee “saw a clear distinction between political speech and entertainment or commercial speech – the one protected and the other not” (p.38).
Although THE MIRACLE CASE admirably documents BURSTYN v. WILSON’s place in the evolution of free speech philosophy, there is one important area in which Wittern-Keller and Haberski come up a little short. The [*98] book is rather light on actual law. Only a handful of pages are devoted to the opinions in BURSTYN (and despite access to conference notes, there is even less material on the internal debates and the opinion-drafting process). In fairness, neither Tom Clark’s main opinion nor Felix Frankfurter’s trenchant concurrence stand as momentous incarnations of the form. Nevertheless, Clark’s palpable hostility for both governmental censorship and official enforcement of religious orthodoxy is at least a small harbinger of major First Amendment developments in the early 1960s, such as NEW YORK TIMES v. SULLIVAN and ENGEL v. VITALE, and more attention to BURSTYN’s place on this jurisprudential continuum would have been welcome.
The treatment of MUTUAL FILM, the 1915 decision that was overruled by BURSTYN, is similarly brief but comparatively more satisfying. MUTUAL FILM was characteristic of the Court’s inattention to the First Amendment prior to World War I, and the authors adroitly site that case both in what David Rabban calls the “Forgotten Years” of free speech, and in the Progressive Era’s embrace of paternalistic governmental expertise, which surely extended to keeping the public safe from coarse motion pictures.
Ultimately, THE MIRACLE CASE is a book with some minor flaws that do not significantly detract from its overall quality. Wittern-Keller and Haberski have produced an entertaining and readable work that will appeal to students studying the history of freedom of speech, and also to faculty who wish to enliven their constitutional law pedagogy with a case which has been obscured by time but which nevertheless deserves a second look.
Harris, Mark. 2008. PICTURES AT A REVOLUTION: FIVE MOVIES AND THE BIRTH OF THE NEW HOLLYWOOD. New York: Penguin.
Meiklejohn, Alexander. 1948. FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT. New York: Harper.
Nelson, Adam R. 2001. EDUCATION AND DEMOCRACY. Madison: University of Wisconsin Press.
Rabban, David M. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS. Cambridge (UK): Cambridge University Press.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
BURSTYN v. WILSON, 343 U.S. 295 (1952).
DENNIS v. UNITED STATES, 341 U.S. 494 (1951).
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).
ENGEL v. VITALE, 370 U.S. 421 (1962).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MARBURY v. MADISON, 5 U.S. 137 (1803). [*99]
MUTUAL FILM CORPORATION v. INDUSTRIAL COMMISSION OF OHIO, 236 U.S. 230 (1915).
NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).
© Copyright 2009 by the author, Steven B. Lichtman.