One of the
of all speech-related problems has been the issue of obscenity and what
to do about it. A wide variety of tests have been employed by
justices to determine what is constitutionally proscribable obscenity,
and for long periods of time, no single approach commanded the support
of a majority of the Court. The difficulty of defining obscenity
was memorably summarized by Justice Stewart in a concurring opinion
he said: "I know it when I see it." Two presidential commissions
have been formed to make recommendations on a national response to
The first commission, The 1970 Lockhart Commission, recommended
all criminal penalities for pornography except for pornographic
of minors, or sale of pornography to minors. Another commission
under President Reagan, the Meese Commission, came to a different
recommending continued enforcement of laws regulating hard-core
even when only adults were involved.
For the past three decades, the courts have been concerned almost exclusively with obscene visual images, not graphic verbal descriptions of sexual activity, but such was not always the case. The early and celebrated legal battles in this country sometimes involved what are now recognized as great works of fiction that included sexual themes: books such as James Joyce's Ulysses or D. H. Lawrence's Lady Chatterly's Lover. But it is important to remember that obscenity issues can still involve non-visual material, as demonstrated by a Florida prosecutor's decision to (unsuccessfully) try the rap group Two Live Crew for violating Florida's obscenity statute by singing rap songs with graphic sexual lyrics.
The first of our cases, Stanley v Georgia (1969), is remarkable for its unanimity. In Stanley, the Court concludes that Georgia cannot, consistent with the First Amendment, criminalize the private possession of pornography--even if the sale and distribution of that same material would not be constitutionally protected. The Court found that an individual has "a right to satisfy emotional needs in the privacy of his own house." (In 1990, however, the Court--in a 6 to 3 decision--found that constitutional protection for private possession of pornography does not extend to pornography involving children.)
Smith v California concerns what must be shown to convict a bookseller in an obscenity case. The Court concludes that the First Amendment requires the government to prove more than that the bookstore contains constitutionally proscribable obscenity. The government must also prove that the bookseller knew that he was selling obscene materials so as not to have a chilling effect on speech that might be protected.
Miller v California sets out the "modern" test for obscenity. After years in which no Supreme Court opinion could command majority support, five members of the Court in Miller set out a several-part test for judging obscenity statutes: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex. What is patently offensive is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review, as the Court's decision in Jenkins v Georgia makes clear.
Stanley v. Georgia (1969)
Smith v. California (1959)
Miller v. California (1973)
Jenkins v. Georgia (1974)
2. Is the Miller test sound? Because juries are free to apply community standards in determining what is obscene, speech that will be protected in say, California, may be punishable in Mississippi? Is that inconsistent with the notion that we all live under the same First Amendment?
3. Is effective regulation of obscenity even possible in the age of the Internet?
4. Should the government stop regulating sexual material depicting only consenting adults? Even if the material mixes violence and sex (say be depicting a rape)?