Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader.
We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. 1 The right to impart and to receive
information and ideas, regardless of their social worth . . . is fundamental to our free society. 2 Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of
ideological obscenity. 3 However, this function is not the reason that obscenity is outside the protection of the First Amendment, although the Court has never really been clear about what that reason is.
Adjudication over the constitutional law of obscenity began in Roth v. United States, 4 in which the Court in an opinion by Justice Brennan settled in the negative the
whether obscenity is utterance within the area of protected speech and press. 5 The Court then undertook a brief historical survey to demonstrate that
the unconditional phrasing of the First Amendment was not intended to protect every utterance. All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. It was this history that had caused the Court in Beauharnais to conclude that
libelous utterances are not within the area of constitutionally protected speech, and this history was deemed to demonstrate that
obscenity, too, was outside the protection intended for speech and press. 6
The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 7 It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant. 8
However, Justice Brennan continued,
sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. 9 The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was
whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. 10 The Court defined material appealing to prurient interest as
material having a tendency to excite lustful thoughts, and defined prurient interest as
a shameful or morbid interest in nudity, sex, or excretion. 11
In the years after Roth, the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children, 12 unwilling adult recipients, 13and procedure, 14 these cases are best explicated chronologically.
Manual Enterprises v. Day 15 upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture. 16 Chief Justice Warren’s concurrence in Roth 17 was adopted by a majority in Ginzburg v. United States, 18 in which Justice Brennan for the Court held that in
close cases borderline materials could be determined to be obscene if the seller
pandered them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the
pandering test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed. 19 Unanimity was shattered, however, when on the same day the Court held that Fanny Hill, a novel at that point 277 years old, was not legally obscene. 20 The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value. 21
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York, 22 in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering, 23 the Court succinctly summarized the varying positions of the seven Justices in the majority and said:
[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . . 24 And so things went for several years. 25
Changing membership on the Court raised increasing speculation about the continuing vitality of Roth; it seemed unlikely the Court would long continue its Redrup approach. 26 The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.
At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected. 27 By a five-to-four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults. 28 Chief Justice Burger for the Court observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean
free will, that curbs governmental efforts to suppress pornography. 29
In Miller v. California, 30 the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that
depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. 31 The law
must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. 32 The standard that a work must be
utterly without redeeming social value before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits. 33 Prurient interest and patent offensiveness, the Court indicated,
are essentially questions of fact. 34 By contrast, the third or
value prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is
whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole. 35
The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only
hard core materials were to be deemed without the protection of the First Amendment, and the Court’s idea of the content of
hard core pornography was revealed in its examples:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 36 Subsequently, the Court held that a publication was not obscene if it
provoked only normal, healthy sexual desires. To be obscene it must appeal to
a shameful or morbid interest in nudity, sex, or excretion. 37 The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed. 38
First Amendment values, the Court stressed in Miller,
are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. 39 But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was
patently offensive. Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia, 40 the Court, while adhering to the Miller standards, stated that
juries [do not] have unbridled discretion in determining what is ‘patently offensive.’ Miller was intended to make clear that only
hard-core materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were
intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. The Court’s own viewing of the motion picture in question convinced it that
[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. 41 But, in a companion case, the Court found that a jury determination of obscenity
was supported by the evidence and consistent with the standards. 42
The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities, 43 but nonetheless have guided the Court since. In addition, the Court’s willingness to allow some regulation of non-obscene but sexually explicit or
indecent expression reduces the importance (outside the criminal area) of whether material is classified as obscene.
Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home, 44 unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant’s home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and
that right takes on an added dimension in the context of a prosecution for possession of something in one’s own home.
For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. 45 Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment, the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today’s decision, the Court insisted, 46 but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth. First, there is no governmental interest in protecting an individual’s mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults. 47
Stanley’s broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled. 48 The Court has consistently rejected Stanley’s theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults. 49 Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves. 50 Apparently for this reason, a state’s conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized. 51