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.  

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)?

Supreme Court of Utah, 571 P.2d 1299 (1977) 
Ellett, Chief Justice, wrote the opinion: 

   The appellant operates a film theatre and was charged with and convicted of the crime of exhibiting an obscene motion picture....The motion picture exhibited revealed an entirely naked man and woman in various acts of sodomy (fellatio,cunnilingus, buggery) and adultery -- all shown with close-up camera photography. 
    A more sickening, disgusting, depraved showing cannot be imagined. However, certain justices of the Supreme Court of the United States have said that before a matter can be held to be obscene, it must be ". .. when taken as a whole, lacks serious literary, artistic, political, or scientific value." 
   Some state judges, acting the part of sycophants, echo that doctrine. It would appear that such an argument ought only to be advanced by depraved, mentally deficient, mind- warped queers. Judges who seek to find technical excuses to permit such pictures to be shown under the pretense of finding some intrinsic value to it are reminiscent of a dog that returns to his vomit in search of some morsel in the filth which may have some redeeming value to his own taste. If those judges have not the good sense and decency to resign from their positions as judges, they should be removed either by impeachment or by the vote of the decent people of their constituency.... 
   The dissent is rather long, but aside from being outside constitutional bounds, it is also not convincing in its reasoning. For instance, a great amount of space is devoted to the fact that the prosecuting attorneys, or some of them, inquired of neighbors and religious leaders as to whether the juror attended church. This is a smart move and a practice of all good lawyers.... One can be sure that the defense attorney (if he was a good lawyer) would have made inquiry among the pimps, prostitutes, homosexuals, and other members of the pornographic community to see if any prospective jurors might be favorably inclined to protect one accused of showing pornographic films....

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