The Boundaries of Free Expression:
Obscenity
The Bill of Rights Institute
Tribune Tower
Chicago, IL, November 7, 2005
Artemus Ward
Department of Political Science
Northern Illinois University
Regina v. Hicklin (1868)
In this British case, the Court asked, “whether the tendency of
the matter charged as obscenity is to deprave and corrupt those
whose minds are open to such immoral influences and into
whose hands a publication of this sort might fall.”
There were three important parts to the Hicklin case:
1.
required the material to meet a stringent level of
acceptability—whether the material could be seen by a child;
2.
it did not require that the publication be considered as a
whole, instead an entire work could be declared obscene
based on one of its parts;
3.
courts did not have to consider the social value of the works
in question.
As a result, the Hicklin standard left a wide range of expression
unprotected.
Applying Hicklin
The U.S. Supreme Court not only adopted the Hicklin
standard but strengthened it.
In Ex parte Jackson (1878) the Court upheld the Comstock
Act, which made it a crime to send obscene materials,
including information on abortion and birth control, through
the U.S. mail.
But by the 1930s and 1940s lower courts were handing down
conflicting rulings and by the 1950s the pornography industry
was flourishing.
Finally, the Court spoke in Butler v. Michigan (1957) by
striking down a state law that made it a crime to distribute
material “found to have a potentially deleterious influence on
youth.”
But if Hicklin’s child standard was no longer valid, what was
the standard for judging obscenity?
Roth v. United States (1957)
The U.S. indicted Samuel Roth for violating federal
obscenity law, specifically for sending “obscene,
indecent, and filthy matter” through the mail.
Among those materials was an advertisement for
Photo and Body, Good Times, and American
Aphrodite Number Thirteen.
At Roth’s trial, the judge instructed the jury with
this definition of obscenity: the material “must be
calculated to debauch the minds and morals of
those into whose hands it may fall and that the
test in each case is the effect of the book, picture
or publication considered as a whole, not upon any
particular class, but upon all those whom it is likely
to reach. In other words, you determine its impact
upon the average person in the community.”
The jury found Roth guilty and the judge
sentenced him to the maximum punishment of five
years in prison and a $5,000 fine.
Roth v. United States (1957)
Justice Brennan wrote for a 6-3 majority:
13 of the 14 original states provided for
the prosecution of libel, and all of those
states made either blasphemy or
profanity, or both, statutory crimes. This
makes it clear that the First Amendment
did not protect every utterance. “Implicit
in the history of the First Amendment is
the rejection of obscenity as utterly
without redeeming social importance.”
The 1st Amendment was designed to
protect the unfettered interchange of
ideas for the bringing about of political
and social changes desired by the people.
There are now obscenity laws in all states,
Congress has passed numerous obscenity
laws, and over 50 nations have agreed.
Roth v. United States (1957)
“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. Sex, a great and mysterious
motive force in human life, has
indisputably been a subject of absorbing
interest to mankind through the ages; it
is one of the vital problems of human
interest and public concern. . .”
The constitutional test is “whether the
average person, applying contemporary
community standards, the dominant
theme of the material taken as a whole
appeals to prurient interest.”
pru·ri·ent (adj.)
Inordinately interested in matters
of sex; lascivious.
--American Heritage Dictionary
Roth v. United States (1957)
Justice John Marshall Harlan II concurring
and dissenting in part:
“[This problem] cannot be solved in a
generalized fashion. Every communication
has an individuality and ‘value’ of its own.
The suppression of a particular writing or
other tangible form of expression is,
therefore, an individual matter, and in the
nature of things every such suppression
raises an individual constitutional problem,
in which a reviewing court must determine
for itself whether the attacked expression is
suppressible within constitutional standards.
Since those standards do not readily lend
themselves to generalized definitions, the
constitutional problem in the last analysis
becomes one of particularized judgments
which appellate courts must make for
themselves.”
Roth v. United States (1957)
Justices Douglas & Black dissenting:
“When we sustain these convictions, we make the
legality of a publication turn on the purity of
thought which a book or tract instills in the mind of
the reader. I do not think we can approve that
standard and be faithful to the command of the
First Amendment. . .”
“I reject the implication that problems of freedom
of speech and of the press are to be resolved by
weighing against the values of free expression, the
judgment of the Court that a particular form of that
expression has ‘no redeeming social importance.’
The First Amendment, its prohibition in terms
absolute, was designed to preclude courts as well
as legislatures from weighing the values of speech
against silence. The First Amendment puts free
speech in the preferred position. . .”
“I would give the broad sweep of the First
Amendment full support. I have the same
confidence in the ability of our people to reject
noxious literature as I have in their capacity to sort
out the true from the false in theology, economics,
politics, or any other field.”
Jacobellis v. Ohio (1964)
The Court viewed the film Les Amants
“The Lovers” and said the
contemporary standards mentioned in
Roth were national standards.
In dissent, Chief Justice Earl Warren
said it should be local community
standards.
Justice Potter Stewart was so
disgruntled with this area of the law
that he said “I shall not today attempt
to further define hard-core
pornography . . . But I know it when I
see it.”
The justices regularly had movie days
where they decided whether certain
films were obscene.
Memoirs v. Massachusetts (1966), The Fanny Hill case
The Court ruled on whether John Cleland’s 1749
erotic novel that traces the escapades of a London
prostitute was obscene.
Justice Brennan said that as long as a work had “a
modicum of social value” it could not be judged
obscene. The work had to be “utterly without
redeeming social value” for it to be judged obscene.
But only two other justices joined Brennan’s
opinion. It was unclear whether hard-core
pornography (that had some artistic or social merit)
could be banned.
By the end of the 1960s, the Court could not agree
on a standard of review, but they did agree on
speech protectiveness in this area so that virtually
every obscenity conviction that came before them
was summarily overturned. The country was
approaching the “end of obscenity.”
Richard Nixon was elected in 1968. He criticized
the liberal Warren Court and remade the bench with
four appointments.
Miller v. California (1973)
Marvin Miller, a vendor of so-called adult material,
conducted a mass-mail campaign to drum up sales
for his books. The pamphlets were fairly explicit,
containing pictures of men and women engaging in
various sexual activities, often with their genitals
prominently displayed. Had Miller sent the
brochures to interested individuals only, he might
not have been caught. But because he did a mass
mailing, some pamphlets ended up in the hands of
people who did not want them. Miller was arrested
when the manager of a restaurant and his mother
opened of the envelopes and complained to the
police.
Miller v. California (1973)
“The basic guidelines for a trier of fact must be
(a) whether “the average person, applying
contemporary community standards” would find
that the work, taken as whole, appeals to the
prurient interest;
(b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. We do
not adopt the “utterly without redeeming social
value” test of the Fanny Hill case.
Miller v. California (1973)
The state can regulate:
 “(a) patently offensive representations or
descriptions of ultimate sexual acts, normal or
perverted, actual or simulated;
(b) patently offensive representation or descriptions
of masturbation, excretory functions, and lewd
exhibition of the genitals. Sex and nudity may not
be exploited without limit by films or pictures
exhibited or sold in places of public accommodation
any more than live sex and nudity can be exhibited
or sold without limit in such public places.”
Miller v. California (1973)
“Under a National Constitution, fundamental First Amendment
limitations on the powers of the States do not vary from
community to community, but this does not mean that there are,
or should or can be, fixed, uniform national standards of precisely
what appeals to the ‘prurient interest’ or is ‘patently offensive.’
These are essentially questions of fact, and our Nation is simply
too big and too diverse for this Court to reasonably expect that
such standards could be articulated for all 50 States in a single
formulation, even assuming the prerequisite consensus exists.”
One can’t expect jurors, drawn from local communities to divine
some kind of national standard. States can’t try to structure their
laws around national standards. “It would be an exercise in futility.”
“It is neither realistic or constitutionally sound to read the First
Amendment as requiring that the people of Maine or Mississippi
accept public depiction of conduct found tolerable in Las Vegas or
New York City. People in different States vary in their tastes and
attitudes.”
Obscenity under the Miller test
Miller marked an important change in
obscenity jurisprudence. Between 1957
and 1969—the heyday of the Roth
test—the justices supported First
Amendment claims in 88% of their
obscenity decisions; that number
dropped to 32% after Miller (19701988).