Obscenity: "I Know It When I See It"

Facts of the Case

A publisher in New York, Samuel Roth, distributed a magazine that contained erotic stories and explicit photographs. The owner of a mail-order business in California, David Alberts, distributed publications that contained images of nude women. Each of them was convicted under an obscenity law, Roth for violating a federal statute and Phillips for violating a state law. Their cases were consolidated on appeal before the Supreme Court.

Traditionally, obscenity had been banned under the common law theory that it could corrupt impressionable minds, essentially those of children. Many notable works of literature had been prohibited from public circulation based on "obscene" passages.

Question

Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

Opinions

Majority (6): Departing from the traditional common law rule, Brennan constructed a narrower definition of obscenity. He stated that contemporary community standards should be applied to determine whether the average person (rather than children) would find that the work's dominant theme (rather than individual passages) appealed to the prurient interest. Such material would need to be completely without redeeming social value to be classified as obscenity. This definition still did not protect the actions of the defendants under the First Amendment or mandate invalidating the laws as unconstitutional.

Although he agreed with the majority that the First Amendment does not shield obscenity, Warren felt that Brennan used overly vague language that could make the majority's holding apply too broadly.

Minority (3):  Harlan argued that only Alberts' conviction should be sustained, since he believed that state governments have much greater authority to outlaw obscenity than the federal government does.

These Justices felt that both convictions should be struck down, since obscenity should not be considered a categorical exception to First Amendment protections.

Case Commentary 

Unfortunately (or perhaps fortunately) for later courts trying to determine whether subject matter was obscene, this decision required a case-by-case analysis of the particular subject matter at issue. The results in this area have been unpredictable, with one Justice famously saying that he knew pornography when he saw it. Some clarity did emerge with the 1973 decision in Miller v. California, which replaced the Roth standard with a more concrete analysis. However, Brennan and other Justices involved in both decisions frequently acknowledged that the line between obscene and protected speech is challenging to draw.

Facts of the Case

A special provision of Massachusetts law allowed the Attorney General to initiate legal proceedings against an "obscene" book, Memoirs of a Woman of Pleasure. The book, also known as Fanny Hill, was written by John Cleland in about 1750. Massachusetts courts, despite the defenses put forward by the book's publisher and copyright holder, judged the work to be obscene.

Question

Did the actions of Massachusetts violate the First Amendment?

Opinions

Majority (6): The Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not "utterly without redeeming social value." The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were "patently offensive."

Minority (3)

Case Commentary

This decision highlighted the Court’s struggle to balance the protection of free speech with community standards for decency. Although the ruling did not create a clear, uniform standard for defining obscenity, it emphasized the need for judicial caution in restricting speech and reinforced the principle that even controversial material could be protected under the First Amendment if it holds some societal value. The case is significant for illustrating the ongoing tension between free expression and censorship in American law.

Facts of the Case

The owner of a California business that distributed pornographic books and films, Marvin Miller, mailed advertising materials that contained explicit sexual imagery from the books and films that he was promoting. When the owner of a restaurant in Newport Beach, California, and his mother opened an envelope containing five of the brochures, they alerted the police. Miller was arrested, charged, and convicted under a California law that banned selling, possessing, distributing, or publishing obscene materials. The law had been specifically crafted to comply with the Supreme Court's decision on obscenity and the First Amendment in Roth v. United States. A first conviction was defined as a misdemeanor.

During the trial, the judge had instructed the jury to use the community standards of California in determining whether the materials would be considered obscene. Miller then argued on appeal that these instructions had failed to comply with the Supreme Court's decision in Memoirs v. Massachusetts, which would require a national standard for obscenity because obscene works must be completely lacking in redeeming social value. In an unpublished decision, the appellate decision rejected this argument, and the state appellate court refused review.

Question

Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Opinions

Majority (5): 

Vacating and remanding the state court decision, Burger reiterated that the First Amendment does not protect obscene speech and especially hardcore pornography but created a more detailed standard for determining whether material is obscene. He noted that any statutes prohibiting obscenity must be narrowly constructed and devised three factors to help state legislatures in formulating them. These were: 

• 1) Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest;

• 2) Whether the work depicts or describes sexual conduct or excretory functions, as defined by state law, in an offensive way; and

• 3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value.

This standard is referred to as the Miller Test. Only if all three of these factors are satisfied can speech give rise to criminal liability as obscene matter. In developing this test, Burger refined the ruling in Memoirs that speech was only obscene if it had absolutely no redeeming value.

Minority (4)

Case Commentary

In addition to outlining the factors to consider in an obscenity determination, this decision moves responsibility for evaluating obscenity to the state and local courts. Miller made it easier for states to create laws that properly defined obscenity and provided a firmer basis for prosecution, and the Court soon began to decline review of obscenity cases, which flooded the dockets of state courts after this decision. However, the standard also has given rise to unanticipated complexities with the development of the Internet, which makes it harder to determine which community norms should be used.