Regulation of Obscenity
The issues: How far does the First Amendment allow government to go
 in restricting expression that it deems obscene?  Can the government punish the mere possession of obscenity/

One of the most perplexing 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 individual 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 when he said: "I know it when I see it."  Two presidential commissions have been formed to make recommendations on a national response to pornography.  The first commission, The 1970 Lockhart Commission, recommended eliminating all criminal penalities for pornography except for pornographic depictions of minors, or sale of pornography to minors. Another commission appointed under President Reagan, the Meese Commission, came to a different conclusion, recommending continued enforcement of laws regulating hard-core pornography, even when only adults were involved.

The most frequently quoted Supreme Court opinion on obscenity:
MR. JUSTICE STEWART, concurring in Jacobellis v. Ohio, 378 US 184 (1964).


 It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

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. 

In Jenkins v Georgia, the U. S. Supreme Court unanimously reversed a Georgia Supreme Court decision upholding an obscenity conviction
for showing the film Carnal Knowledge, starring Jack Nicholson, Ann Margret, Art Garfunkel, and Candice Bergen.

In recent years, prosecutors have focused their attention mostly on child pornography (out of a concern for its effects on the minors involved) and violent pornography (such as pornography depicting rape).  The proliferation of sexually explicit films and images on cable television and the Internet means, as a practical matter, the cows have left the barn with respect to the possibility of effectively regulating pornography depicting the sexual  activity of consenting adults.  By one estimate, there are now over 5 million websites containing sexually explicit images.


Stanley v. Georgia (1969)*
Smith v. California (1959)

Miller v. California (1973)*

Jenkins v. Georgia (1974)


The "Miller Test": Try it!


1. Is it better to think of Stanley as a First Amendment decision or as a Fourth Amendment decision, or as both?
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)?


An Excerpt from The Brethren, by Bob Woodward and Scott Armstrong
 (Simon & Schuster, 1979)(p. 198)

At Trader Vic's, [Justice] Marshall had just launched into another story when he suddenly stopped.  He stared at his watch for a moment.  It was about 1:50.

"My God, I almost forgot," he said in a stricken tone.  "It's movie day, we have to get back."

Movie day was the humorous highpoint of most terms.  Year after year, several of the Justices and most of the clerks went either into a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.

Douglas, and Black during his years on the Court, never went.  In their view, nothing could be banned.  "If I want to go to see that film, I should pay my money," Black once said, and he wondered aloud why nine men, many in their seventies, should make judgments about sexuality.  The Court was acting as a "Supreme Court of Censors," he said.

Burger too preferred not to go.

But the others sat in folding chairs with their clerks, watching such films as I Am Curious (Yellow) projected onto a white wall.  During his later years, Harlan watched the films from the first row, a few feet from the screen, able to make out the general outlines.  His clerk or another Justice would describe the action.  "By Jove," Harlan would exclaim.  "Extraordinary."

Clerks frequently mocked Stewart's approach to obscenity, calling out in the darkened room, "That's it, that's it.  I know it when I see it."

Marshall's quips were the best.  The previous term, a pornographic movie had used the familiar ruse of posing as an educational film [to establish "redeeming social value"].  The actor playing the psychologist had concluded by saying, "And so our nymphomaniac subject was never cured."  Marshall retorted, "Yeah, but I am."
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