Some Troublesome Issues
One fledgling prayer leader in the home is worth a dozen parrot-
ers in the schoolhouse.
THE 1960s BECAME A DECADE OF UNREST for the country. Complex, diverse issues came to the forefront: crime, the civil rights movement, and the Vietnam War, to name a few. But for the Supreme Court, two areas of the law were especially contentious and controversial: censorship of allegedly obscene materials, and the separation of church and state as that principle applies to prayer in schools. Tom Clark’s participation in these types of cases reveals a great deal about his personal values and philosophy and his independence as a justice.
A flood of cases involving obscenity and pornography began in the fifties and continued throughout the sixties and into the seventies. My father wrote the opinion for one of the earliest and most highly publicized cases, Burstyn v. Wilson (1952), known as “The Miracle.” The Miracle was a sho rt film directed by Roberto Rossellini and starring Anna Magnani. The Catholic Church’s censorship board labeled the film “sacrilegious” and initiated a lawsuit in New York to prevent it from being shown. The NewYork Court of Appeals banned the film, and the case was appealed to the Supreme Court. A unanimous Court reversed the lower court’s decision, overturning a 1915 precedent that held movies to be “a business pure and simple” and therefore not worthy of First Amendment protection.1 Tom Clark’s opinion reversing that ruling gave the following rationale: “The basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles, as they have frequently been enunciated by this court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule.”2