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The younger Justice Harlan once said that obscenity cases have “produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication,” and that any effort to examine the Court’s cases in this area would result in “utter bewilderment.” Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704-705, 707 (1968) (Harlan, J., dissenting). He was right – and the reason for it was simple – during his tenure, the Supreme Court became the battleground for the anti-pornography movement’s last defiant stand against the overwhelming tide of the sexual revolution of the 1960s. But bewildering as the body of obscenity jurisprudence may be, these cases were the vehicle for one of the great philosophical debates in American legal history. What Chief Justice Burger called a “somewhat tortured history” in Miller v. California, 430 U.S. 15, 20 (1973), appears that way because it represents the tension between the intertwined nature of Anglo-American law and religion, and the broad, if not absolutist, phrasing of the First Amendment.

Recently, it has been suggested that mid-nineteenth century obscenity laws can be used to restrict access to abortion care medications. From time to time, federal and state criminal obscenity laws come to the forefront of American life – most often as reactions to sexual revolutions, which tend to come in waves. Most recently, during the second Bush Administration, most likely as a reaction to the proliferation of pornography which was co-incident to the rapid expansion of the internet during the years immediately preceding that period, the federal government prosecuted a number of obscenity cases. Included in those prosecutions there was at least one federal criminal conviction for purely fiction, purely textual content which (though offensive and disturbing) had not been the subject of unwanted exposure by anyone. Today, the obscenity statute has once again become the subject of public discussion, and so, a survey of its background and history is once again relevant.

Obscenity laws in America date back to the mid-1800s. They were a reaction to a series of movements that had started somewhat earlier. These movements can be collectively viewed as a gradual rejection of certain aspects of Victorian-era moralism. There were the utopian socialist communities that were starting to appear in the 1830s, the most famous of which was the Oneida Community which was founded by John Humphrey Noyes. Noyes was an early advocate in the free love movement which urged the abandonment of “simple” monogamous relationships in favor of more “complex” marriages. The central idea for these communities was that all of the women and men were collectively “married” to each other and that sexual relations between all was permissible as long as there was mutual agreement, and so long as the men did what they could to preclude haphazard pregnancies, given that bearing children was a decision for the entire community – a decision that was based in large part on selective breeding. Naturally, given the state of the criminal law in early America – these practices led to arrests (including that of Noyes himself) for adultery.

The free love movements coincided with a temperance reform movement and a women’s suffrage movement that were also underway in the second half of the nineteenth century. These movements represented a challenge to the Victorian ideals of male strength, female purity, and restrained sexual desire. Strangely, however, under Victorian norms, while non-marital and non-reproductive sex was publicly condemned, somehow, society was prepared to turn a blind eye to prostitution that catered to male clientele. In any event, Victorian era modesty was being eroded from various quarters. For example, one important figure during that period of the women’s suffrage movement was the prolific writer and publisher, Victoria Woodhull, who ran unsuccessfully against Ulysses S. Grant as a presidential candidate in 1872 for the Equal Rights Party. Woodhull was both a subscriber to the idea of free love, and a staunch advocate for women’s rights and personal freedom. In a speech in 1871, she told a large crowd of people in New York what free love really meant by concisely stating: “I have an inalienable, constitutional and natural right to love whom I may, to love as long or as short a period as I can; to change that love every day if I please, and with that right neither you nor any law you can frame have any right to interfere.” Woodhull and Noyes and others like them represented a shifting away from Victorian moralism, a shift that would result in a backlash which would quickly lead to the formation of counter-movements such as the New York Society for the Suppression of Vice in 1873, and to the passage of the still-applicable federal criminal obscenity law.

Obscenity and the Common Law

English law treated offenses against Christianity as offenses against the law of the land – or, as Blackstone put it, Christianity was part of the law. With the arrival of the printing press, the Tudors and early Stuarts immediately undertook strict supervision of the new industry because an unregulated press was viewed as a danger to both religion and the state. By the beginning of the sixteenth century, the common law courts began depriving the ecclesiastical courts of their jurisdiction in defamation cases, and it was at that time that they started their own development of a body of law concerning defamation as a tort. During that period, the supervision of the press had been committed to the Court of Star Chamber, and because any infringement of its rules was considered a crime, a body of law began to develop in the Star Chamber concerning defamation as a crime. Two broad varieties of criminal defamation had been then recognized – either addressing private or public persons; and included in the latter variety were the defamatory crimes of publishing statements against government, of which, publishing or speaking obscene words was a distinct category. When the Star Chamber was abolished, the common law judges after the Restoration took this body of law – including the crime of “obscene libel” – and continued its development along similar lines.

In 1708, a common law court sat in judgment of an allegedly obscene text printed by James Read – that is, a collection of mildly erotic poetry, entitled The Fifteen Plagues of a Maidenhead, about a woman who was frustrated in her efforts to lose her virginity. Dismissing the indictment, Chief Justice Holt held that writing an obscene book is not indictable, but punishable only in an ecclesiastical court. Less than 20 years later, however, that view was rejected in Curl’s Case in 1727, and the ‘obscene libel’ became established in the criminal law from that point on. See United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 137 (1973) (Douglas, J., dissenting). While this doctrine was in development, erotic and sexual poetry and literature had started to appear in the eighteenth century. Over the next two hundred years, with lower costs of printing and the invention of newer media of expression and depiction, material dealing with sexual content would flourish.

Early American Cases

In America, through the first half of the 19th century, there were very few laws addressing the subject of obscenity. That would change during 1870s when federal and state governments began to pass laws designed to suppress materials dealing with sex. By the turn of the twentieth century, over thirty states had some sort of ban concerning obscene materials; and by the 1950s, every state had some sort of provision addressing the subject; meanwhile, the federal government frequently amended and expanded its various prohibitions. See Paris Adult Theatre I v. Slaton, 413 US 49, 104-105 (1973) (Brennan, J. dissenting).

But before Congress, or any state legislature, ever concerned itself with obscenity, at least two reported American cases sustained prosecutions for the criminal offense of ‘obscene libel’ – and, they did so without the existence of any applicable statute prohibiting the charged conduct. In 1815, the Supreme Court of Pennsylvania sustained the convictions of Jesse Sharpless and others for their commercial exhibition of an oil painting that depicted a man and a woman engaged in a sexual act. Commonwealth v. Sharpless, 2 Serg. & Rawle 91 (Pa. 1815). The offense was characterized as such: the “exhibiting and shewing to sundry persons, for money, a lewd, scandalous, and obscene painting. A picture tends to excite lust as strongly as a writing; and the shewing of a picture, is as much a publication, as the selling of a book.” The Pennsylvania Supreme Court explained that, where in England, certain acts of immorality, such as adultery, were only punishable in the ecclesiastical courts; in America, where there were no ecclesiastical courts, and no act of any legislature punishing the offence charged, the case must be decided by the principles of the common law. The court added that actions of public indecency were always indictable because they tended to corrupt the public morals.

Six years later, Peter Holmes was tried and convicted in 1821 under the doctrine of obscene libel in Massachusetts for publishing John Cleland’s 1748 novel, Memoirs of a Woman’s Pleasure, commonly known as Fanny Hill. Commonwealth v. Holmes, 17 Mass. 336, 337-340 (Mass. 1821). As was the case in Pennsylvania, there was no anti-obscenity statute in operation in Massachusetts in 1821; a defect that formed the principal basis of Peter Holmes’s complaint on appeal. The Massachusetts Supreme Court simply held that the trial court in this case was empowered to hear and determine any matters relative to the conservation of the peace, and to determine the punishment of such offences. Of course, under modern conceptions of due process, such an approach to a criminal prosecution would be unimaginable. There are a few other scattered examples of early common law prosecutions for obscene libel cases ranging from Abner Kneeland’s conviction and 60-day prison sentence for blasphemy under the colonial charter of Massachusetts (Commonwealth v. Kneeland, 37 Mass. 206, 20 Pick. 206 (Mass. 1838), to a Missouri conviction for using words that were “too vulgar to be inserted in this opinion,” despite the fact that Missouri also had no statute punishing a person for the use of vulgar, indecent, or obscene words in public. State v. Appling, 25 Mo. 315, 316 (Mo. 1857).

Obscenity Legislation in America

Congress first addressed obscene matters through the forfeiture provisions of Section 28 of the Tariff Act of August 30, 1842. The 1842 Act prohibited the importation of “all indecent and obscene prints, paintings, lithographs, engravings, and transparencies,” and subjected such items to forfeiture and destruction. However, the first criminal prohibition was found in Section 16 of the Postal Act of March 3, 1865, which established that any person who knowingly deposits any obscene, vulgar, or indecent books, pamphlets, pictures, prints or publication for mailing can be fined up to $500 and imprisoned for up to one year. Prior to the 1842 Act, Congress had never seriously considered the issue of suppressing material from passing through the mails with the exception of its consideration, and rejection, in 1836, of President Andrew Jackson’s request for legislation to suppress mail distribution of “incendiary” abolitionist literature. The 1865 Senate debates on that provision of the Postal Act made reference to President Jackson’s request as asking for the delegation of the kind of power which should be withheld. Notwithstanding those senators’ view, prior to 1865, the Post Office still occasionally seized allegedly treasonous newspapers despite its lack of statutory authority to do so.

In 1872, the law was amended to add a proscription against the mailing of “any letter upon the envelope of which, or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraved . . .” The following year, another amendment came, this time with a firm push from the first American anti-pornography crusade led by Anthony Comstock and his organization, the newly founded New York Society for the Suppression of Vice.

At around the same time that Victoria Woodhull was challenging Ulysses S. Grant for the presidency and publicly proclaiming her constitutional and natural right to free love, a countermovement was brewing. In the immediate aftermath of the Civil War, Anthony Comstock, a puritanical and devout Christian from rural Connecticut, moved to New York to find work as a salesman. On his arrival, he was horrified to find the city so infested with pornography and prostitution. What would eventually mature into his crusade against obscenity in every form and fashion began with him providing information to the police to aid them in their raids on various types of sex trade merchants and purveyors. During that period, having found himself equally appalled by the explicit nature of advertisements for birth control devices, Comstock became convinced that the widespread availability contraceptives served to encourage lust and indecency. Within a few years, backed by his supporters in the Young Men’s Christian Association (the YMCA), between 1872 and 1873, Comstock founded his New York Society for the Suppression of Vice as an organization dedicated to supervising the morality of the public, and he set off for Washington with his anti-obscenity bill, which he had drafted himself.

As an interesting aside, when an October 1872 issue of Woodhull’s weekly publication contained a detailed account of the adulterous affair of the pastor of Brooklyn’s Plymouth Church (with one of his congregants who happened to be the wife of his friend), Comstock tried unsuccessfully to convince the district attorney to prosecute Woodhull. Undeterred in his failure, using a fake name, Comstock requested that an issue be sent to him in the mail, and upon its receipt, he had federal marshals arrest Woodhull pursuant to the criminal obscenity provisions of the Postal Act of 1865. The ideological clash between Woodhull and Comstock was emblematic of the brewing conflict that would unfold over the next century. From the passage of the Comstock Act in 1873, until the time that the Supreme Court settled into what it believed might be a workable standard for sifting criminal obscenity from constitutionally protected speech, in Miller v. California, 413 U.S. 15 (1973), a turbulent century – judicially speaking – would pass.

The Comstock Law was enacted on March 3, 1873, and was entitled, An act for the suppression of trade in, and circulation of, obscene literature and articles of immoral use. The law established considerably harsher criminal penalties, and for a broader subset of offenses. As to areas within the exclusive jurisdiction of the United States, the 1873 Act made it a crime to exhibit, offer, advertise, lend, give away, publish, or possess anything deemed obscene, or any item of an immoral nature, or any drug, medicine, or other item designed to prevent conception or cause an abortion – or to give information about where any such information or materials may be found. A conviction exposed an offender to hard labor at the penitentiary for a term not less than 6 months and not more than five years. As to the use of the postal system, if any of these categories of items – in addition to any “postal card upon which indecent or scurrilous epithets may be written” – were deposited to be carried in the mail, the offender would be exposed to not less than one year and not more than ten years in prison. Further, as to attempted importation, customs officers were empowered to identify and detain such items at points of entry and, subject to the issuance of a judicial warrant, they were to then seize and destroy the items. Incidentally, when Comstock’s bill first came to the floor of the Senate, California Senator Eugene Casserly objected to the provision allowing customs officers to simply seize and destroy whatever they deemed to be prohibited items: “I do not know whether it can be left to officers of the custom-house to determine with safety what kind of literature or what sort of matter is to be admitted.” The bill was then changed to authorize customs officers simply to detain the items, and then to proceed in federal court to attempt to convince a judge to condemn them. Shortly after its passage, no less than two dozen states followed suit and enacted laws suppressing obscene materials within the state. Perhaps because it was ground zero for Comstock’s crusade, New England residents found themselves subjected to the most restrictive obscenity laws in the country.

Nineteenth Century Obscenity Cases

From the very beginning. The difficulty of fashioning an intelligent standard for sifting unprotected speech from protected speech became glaringly apparent. And, these difficulties would, at least at times, put the prejudices and bigotries of the deciding judges on stage. An example of that came in April of 1875, it a case was filed under the new obscenity statute – United States v. Pratt, 27 F. Cas. 611 (E.D. Mich. 1875) – and Judge Brown sustained the indictment because he concluded that it was fair for a jury to infer “from the postal card in question in this case, that the writer intended to impute to the woman whose name is mentioned an illicit connection with [an African American] man, and hence that it contains an indecent epithet within the meaning of the statute.” A few years later, however, F.A. Smith was charged with mailing a postal card to his attorney, calling him a “scoundrel and rascal” – there, Judge Bar quashed the information and held that the statutory term “indecent” under which the charge was brought, “taken with the history of the legislation upon the subject, leads [the court] to the conclusion that it means immodest, impure, and that language which is coarse or unbecoming, or even profane, is not within the inhibition of this act.” United States v. Smith, 11 F. 663, 664-65 (C.C.D.Ky. 1882).

In 1878, the Supreme Court had its first occasion, in Ex parte Jackson, 96 U.S. (6 Otto) 727 (1878), to discuss the purpose of the new federal obscenity law as well as some of its constitutional limitations. Orlando Jackson was indicted in the Circuit Court for the Southern District of New York for mailing a circular concerning a lottery offering prizes. He was subsequently tried, convicted, and sentenced to pay a fine of $100, with the costs of the prosecution, and ordered to be committed to the county jail until the fine and costs were paid. Although though the conviction was affirmed – writing for the Court, Justice Field noted that “[t]he difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter, between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.” Here, Justice Field aptly distinguished the need to differentiate between materials and information that might become the subject of unwanted exposure to the unsuspecting public and those that would not. This distinction, which seems like a sensible balance to strike between free speech concerns and the rights of others to avoid unwanted exposure to materials or information they might find disturbing, has never become a determinative factor in obscenity jurisprudence.

Indeed, soon after that, the Fiftieth Congress further amended the law through the Postal Crimes Act of September 26, 1888, to include every “letter . . . whether sealed as first-class matter or not . . .” However, in April of 1890, the Supreme Court decided United States v. Chase, 135 U.S. 255 (1890), which interpreted the prior (1876) version of the prohibition, and quoted its opinion in Jackson to the effect that the Court could not “concede that the policy of the statute was so sweeping as [to presume to] to purge the mails of obscene and indecent matter…with [no regard to] the rights reserved to the people, and with[out] a due regard to the security of private correspondence from examination.” While the Chase Court did not comment directly on any limitation on the power of the Congress to enact the 1888 amendments, it did appear to foreclose that possibility in Ex parte Jackson when it noted that “[n]o law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.”

The Hicklin Test and the Harmon Community Standard

The first standard used to gauge obscenity came from an 1868 English case which had been brought pursuant to a provision of an English statute known as Obscene Publications Act of 1857. Shortly after the Supreme Court’s decision in Chase, in United States v. Harmon, 45 F. 414, 417 (D. Kan. 1891), a district judge in Kansas formulated a modification of the English standard for obscenity determinations derived by Chief Justice Cockburn in his opinion in Regina v. Hicklin, which had held that “[t]he test of obscenity is this: [w]here the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall . . . [and] would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character.” That was the Hicklin test, into which, the Harmon court injected the sensibility of the community by suggesting, “[r]ather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls – the family, which is the common nursery of mankind, the foundation rock upon which the state reposes?” Clearly, both the Hicklin test and the Harmon standard are little more than a mishmash of hazy concepts that would easily evade anything even remotely resembling uniform application. Yet, this sort of formulation would remain the benchmark for determining obscenity until the Supreme Court’s formulation of a new standard in a line of cases beginning with Roth v. United States, 354 U.S. 476, 479-494 (1957).

Nineteenth century jurists simplified the Hicklin approach to defining obscenity as, “something which is offensive to chastity, something that is foul and filthy, and for that reason is offensive to a pure-minded person,” and the problem of uniform application quickly became evident when, in 1892, in United States v. Martin, 50 F. 918 (W.D. Va. 1892), Judge Paul applied that standard to a handful of letters “from a married man to an unmarried woman, proposing a clandestine trip to the city of Lynchburg,” and concluded that it was “difficult to conceive what can be more shocking to the modesty of a chaste and pure-minded woman than the proposition…[of] a clandestine trip to the city of Lynchburg for a grossly immoral purpose.” Two years later, E.L. Barber was jailed by a court commissioner on a finding of probable cause that he had mailed a letter, the envelope of which contained “libelous, scurrilous, and defamatory words” – in particular, the words in question were, “Mercantile Protection and Collection Bureau” –  however, before a trial could be had in the case, a petition for writ of habeas corpus was granted by a district judge which held that “the words were printed in such connection as to place it beyond doubt that they are not obnoxious to the statute.”

A year later, in Grimm v. United States, 156 U.S. 604, 604-609, 611 (1895), a postal inspector acting in an undercover capacity requested and received a number of letters from William Grimm telling the inspector the prices and the terms for sale of 200 “fancy” photographs of actresses. Grimm objected to the indictment on the grounds that it was not sufficient to simply allege that the pictures existed but that the pictures should either have been incorporated into the indictment or given a full description so that the district court could, from the face of the pleading, measure the obscenity. Writing for the Court, Justice Brewer explained that “it is unnecessary to spread the obscene matter in all its filthiness upon the record”; and that it would be sufficient to simply allege its character. It is unclear whether this holding would have required the trial courts of that day to determine demurrers based on an indictment’s allegations as to the character of the material in question, or whether a demurrer would be determined based on an in camera review of the evidence. It is also unclear if defendants of that day would have had adequate notice as to the details of the prosecution stemming from indictments that simply alleged the character of the material charged as obscene. It was also unclear whether permitting a generalized allegation, rather than a specific one, would dilute the right to indictment by grand jury.

Indeed, the following year, the Court faced all of these questions when it decided Rosen v. United States, 161 U.S. 29, 31, 34-35, 40-43 (1896). Lew Rosen had been charged with mailing a copy of his publication, Tenderloin Number, Broadway, in the mail. The indictment described the publication in broad terms. At trial, a copy was introduced in evidence by both parties; among other things, it contained pictures of women “in different attitudes of indecency.” Rosen did not object to the sufficiency of the indictment before trial, but after trial, he moved in arrest of judgment, complaining that the indictment was fatally defective, because it failed to disclose in detail the contents of the twelve pages that were charged to be obscene, lewd, and lascivious. Writing for the Court, Justice John Marshal Harlan explained that the refusal of the court to arrest the judgment was not error because the defendant knew from the indictment itself that the prosecution would insist that the pictures of women were obscene, lewd, and lascivious, which sufficiently informed him of the nature and cause of the accusation against him. Justice White, joined by Justice Shiras, dissented, finding more weight in Rosen’s argument that the indictment was void because it failed to give an identifying reference to the precise portion of the 12-page publication that the grand jury found to be obscene, Justice White noted that if Rosen is correct, it goes to the jurisdiction of the court ratione materiae, and demands consideration despite the fact that it was not presented to the court below. Rosen argued that this lack of specificity rendered it impossible to determine on what basis the grand jury based its presentment – and Justices White and Shiras agreed that the indictment’s return violated the 5th Amendment’s guarantee of immunity from prosecution except on presentment by a grand jury.

That same year, among other issues, the hopeless unworkability of the Hicklin test was on full display in Swearingen v. United States, 161 U.S. 446, 446-448, 450-451 (1896). There, a more deeply divided Court found itself in disagreement with a lower court’s obscenity determination. In September of 1894, Dan Swearingen, the editor and publisher of the newspaper, The Burlington Courier, was indicted for having mailed several copies of his publication, containing a certain article charged to be obscene, lewd, and lascivious. The article, in the nature of a very spirited editorial, did nothing more than to call a local politician: “a black hearted coward”; and “a liar, perjurer, and slanderer, who would sell a mother’s honor with less hesitancy and for much less silver than Judas betrayed the Savior, and who would pimp and fatten on a sister’s shame with as much unction as a buzzard gluts in carrion.”

The three-count federal indictment in that case charged the mailing of a copy of a newspaper containing the article alleged to be “an obscene, lewd and lascivious article.” The trial court in that case instructed the jury that the newspaper article was obscene and unmailable matter, and that the only question for them was whether the defendant knowingly deposited it in the post office at Burlington, Kansas. The Supreme Court disagreed with that approach, explaining that even assuming that it was the province of the judge to determine obscenity, lewdness, or lasciviousness, that “we do not agree with the court below in thinking that the language and tenor of this newspaper article brought it within such meaning.” The Court explained that the words “obscene,” “lewd” and “lascivious,” refer to immorality related to sexual impurity; and that the words have the same meaning as understood at common law in prosecutions for obscene libel. Although the Court found the editorial to be coarse and vulgar, it was unable to “perceive in it anything of a lewd, lascivious and obscene tendency, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall.” Accordingly, the Court reversed the judgment below and remanded the case for a new trial. Justices Harlan, Gray, Brown, and White dissented without a written opinion – presumably on grounds that they considered the article to be obscene, lewd, or lascivious.

Sometimes, judicial modesty kept the record purged from any semblance of a description of the matter at the heart of the case – meaning, that now, more than a century later, we cannot know what was then obscene and what didn’t qualify. The Court’s decision in Price v. United States, 165 U.S. 311, 311-315 (1897), presented one of many such examples. There, Warren Price had been tried and convicted of two counts of depositing obscene matter in the mail; on appeal, he complained that it was never alleged that the book or pamphlets, or either of them, was in fact obscene, lewd, lascivious, or otherwise indecent. The Court held that the plain meaning of the indictment made clear that the defendant mailed a book which he knew to be obscene, and that in truth it was obscene, so much so that it would have been improper and offensive to put it on the public record of the court. The Court noted that there are degrees of obscenity, and when a book is stated to be so obscene that it would be impolite to describe it in an indictment, that such an allegation imports a sufficient degree of obscenity to render the production non-mailable and obscene under the statute.

Other times, the matter seems in retrospect to have been relatively benign. While it is true that prostitution is still a crime – it seems unlikely that the advertisements involved in Dunlop v. United States, 165 U.S. 486, 501 (1897), would satisfy the modern standard for gauging obscenity (even if applied in 1897). There, a man was indicted for mass-distribution of a publication containing prostitution advertisements – the Supreme Court sustained the trial judge’s jury charge, reasoning that “[t]he alleged obscene and indecent matter consisted of advertisements by women, soliciting or offering inducements for the visits of men, usually ‘refined gentlemen,’ to their rooms, sometimes under the disguise of “Baths” and “Massage,” and oftener for the mere purpose of acquaintance…[and] in this connection [] the court charged the jury that, if the publications were such as were calculated to deprave the morals, they were within the statute.”

Regulating Obscenity in the Twentieth Century

In 1909, the Sixtieth Congress again amended the federal obscenity prohibition by the Act of March 4, 1909, creating two separate crimes out of the former proscription — Chapter Eight of the Act enumerated certain “Offenses Against the Postal Service”; while Chapter Nine enumerated certain “Offenses Against Foreign and Interstate Commerce.” The new set of offenses against interstate and foreign commerce consisted of a ban on the importation or transportation with any express company or other common carrier any obscene material, and any items or information relating to contraception, abortion, or other indecent or immoral articles. It also provided for the insertion of the word “filthy” alongside the preexisting categories of prohibited characteristics (to provide that “every obscene, lewd, or lascivious, and every filthy, book … letter.”).

A few years later, in 1913, the Supreme Court decided Bartell v. United States, 227 U.S. 427, 430-432, 433-434 (1913). Lester P. Bartell had been tried and convicted of depositing a sealed letter alleged to be obscene in a post office. The indictment charged that he unlawfully deposited a letter enclosed in an envelope, which was filthy, obscene, lewd, lascivious and of an indecent character, too filthy to be set forth in the indictment. The envelope containing this letter was addressed to Miss Zella Delleree. In the lower court, Bartell demurred to the indictment, as well as arguing that it failed to notify him of the nature and cause of the accusation. The lower court overruled the demurrer, which became the subject of the appeal. Citing its decision in Rosen, the Court reiterated that no right is infringed by omitting the substance of the indecent and obscene matter from the indictment, so long as it is described such as to reasonably inform the accused of the nature of the charge. The Court explained that in such cases, the accused may apply for a bill of particulars, asking what parts of the paper would be relied on by the prosecution as being obscene. Lester Bartell had made no such request. Of course, what remains unclear is why judicial modesty required that an indictment must be spared of the sort of detail that could be found in a bill of particulars.

Meanwhile, in January of 1913, Mitchell Kennerly, a 22-year-old New York publisher, printed an edition of Hagar Revelly, a novel by Daniel Carson Goodman about the low wages paid in local department stores and their effect on the morality of the young women they employed. He was promptly arrested on a warrant sworn out by Anthony Comstock himself (who had become a Postal Inspector) and accused of sending a copy of the book in the mail; on arresting Kennerly, Comstock also seized all copies of the publication. Kennerly was charged in federal court for the Southern District of New York, and filed a demurrer to the indictment; in denying the demurrer, Judge Learned Hand explained that the determination as to obscenity is the province of the jury under instructions from the court and that “[t]he court’s only power is to decide whether the book is so clearly innocent that the jury should not pass upon it at all.” United States v. Kennerley, 209 F. 119, 120 (D.N.Y. 1913). Judge Hand then noted that the Hicklin test (“Whether the tendency of the matter…is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”) had by that time been so widely accepted in the lower federal courts that he no longer felt comfortable disregarding it. He then noted that while he felt compelled to overrule the demurrer, he also felt compelled to comment on the Hicklin test, noting that “however consonant it may be with mid-Victorian morals, [it] does not seem to me to answer to the understanding and morality of the present time…[and] I question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas, and whether they will not believe that truth and beauty are too precious to society at large to be mutilated in the interests of those most likely to pervert them to base uses. Indeed, it seems hardly likely that we are even to-day so lukewarm in our interest in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child’s library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.” Not surprisingly, Mitchell Kennerly was acquitted at trial – likely, in no small part due to Judge Hand’s jury instructions.

In 1926, once again, the unworkability of the Hicklin approach was on display when the Court decided Dysart v. United States, 272 U.S. 655, 656, 657-658 (1926), where it reviewed a federal conviction for mailing letters that had the audacity to advertise a home for the care of pregnant but unmarried women – it was contended that the letters were “obscene, lewd or lascivious,” especially when mailed, without excuse, to “refined” women who were not pregnant and unmarried. The Fifth Circuit Court of Appeals held that something is obscene, lewd, or lascivious “if it is offensive to the common sense of decency and modesty of the community and tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard.” Affirming the conviction, the Fifth Circuit explained that “the letters extolling the commendation of existing facilities (to house unmarried pregnant women) for avoiding possible unpleasant social consequences of conduct in pursuance of illicit sexual desires may be the means of covertly suggesting such desires to those whose actions are largely the result of social influences and restraints . . . even though the use of indecent or obscene language is avoided.”

Writing for the Supreme Court, Justice McReynolds explained that there were eleven counts, identical in all respects except that each named a different addressee, generally an unmarried woman. The letters and cards that were mailed were intended “to advertise the Queen Ann Private Home for unmarried women during pregnancy and confinement, who prefer to be away from home during such time in order to preserve individual character or family reputation.” The letter stated that the home was a private place for the care and protection of unfortunate women “until the time when they may return to their homes and friends, free from the burden of their mistake, to become useful members of society.” In the Supreme Court, Solicitor General Mitchell confessed error and noted that “[i]t is not so easy to believe that circulars of this kind could to any substantial degree undermine morals or induce delinquency. To some such a result would seem altogether fanciful.” Using the approach cited in Swearingen v. United States, 161 U.S. at 450, the Dysart Court agreed and noted that, “[n]otwithstanding the inexcusable action of petitioner in sending these advertisements to refined women, it is not possible for us to conclude that the indictment charges an offense within the meaning of the statute as construed by the opinion just cited.” (emphasis supplied). The conviction was reversed. Of course, there was no demarcation, in Dysart, as to the line that distinguishes the “refined” from the “unrefined.”

A few years later, in 1932, the Court decided United States v. Limehouse, 285 U.S. 424, 425-427 (1932), and reversed a district court’s quashing of an indictment on the defendant’s demurrer from which the government had taken an appeal under the Criminal Appeals Act. The indictment contained thirty counts, each charging the unlawful mailing of “a certain filthy letter.” The letters contained profane language and charged the addressees or persons associated with them with sexual immorality; and in some cases, the letters accused the addressees of “interbreeding” with people of different racial backgrounds. The district court found that the letters were coarse, vulgar, disgusting, indecent and filthy, but not obscene, lewd or lascivious within the meaning given to those terms in Swearingen v. United States, 161 U.S. 446. The Limehouse Court noted that the Swearingen Court was of the opinion that those words (obscene, lewd, and lascivious) should be given the meaning attributed to them at common law in prosecutions for obscene libels; and because the language used in Swearingen was not “calculated to corrupt and debauch the mind and morals of those into whose hands it might fall” and to induce sexual immorality, no crime had been committed. In Limehouse, however, the Court noted that the indictment contained no reference to “obscene, lewd, or lascivious”; instead, the charge was of depositing “a certain filthy letter.” The Court maintained that the error of the lower court was to give to “filthy” the meaning attributed in the Swearingen case to the words “obscene, lewd, or lascivious.” Noting that “[t]he letters here in question plainly relate to sexual matters,” thus, defining “filthy” as that which relates to sexual matters, the lower court’s dismissal of the indictment was reversed. Justice McReynolds disagreed and dissented from the Court’s judgment without a written opinion. Limehouse appears to be an outlier of a case in that it is the only Supreme Court opinion that ventures to give the word “filthy” its own definition.

Given the advances in communication technology that were seen in the first half of the twentieth century, as well as the more modern interpretation of the Constitution’s Commerce Clause through which federal power was drastically expanded, through the Act of June 25, 1948, Congress codified four categories of federal obscenity offenses which appeared under Title 18 as: Section 1461 (mailing obscene or crime inciting matters); Section 1462 (importation or transportation of obscene matters); Section 1463 (mailing indecent matters on wrappers or envelopes); and, Section 1464 (broadcasting obscene language). Also, over the years, with the advent of new media for expression and communication, Congress had been careful (mostly) to not leave behind any loopholes in the federal obscenity scheme; as such, through the Act of June 5, 1920, the Sixty-Sixth Congress amended the ban on transportation and mailing of obscene materials to include application to motion picture films. However, while the 1920 amendment added motion picture films, Congress had forgotten to include phonograph records in the ban.

The Era of the Next Comstock – Obscenity Cases from 1950 to 1973

In 1950, the Court opened a 23-year period marked by deep disagreements in obscenity cases by deciding United States v. Alpers, 338 U.S. 680, 680-685 (1950). The perfect storm that inundated the Supreme Court’s docket with obscenity cases during this period represented the confluence and combination of a number of factors: (1) new forms of broadcast media and transportation means that had rendered the latter half of the twentieth century world more interconnected than it had been in prior centuries; (2) a new wave of the sexual revolution that would greatly eclipse the size and scope of the previous ones; and, of course, (3) a resultant reaction, a counter-revolutionary crusade brought by various persons and organizations that were dedicated, as was the case with Comstock’s New York Society for the Suppression of Vice, to supervising the morality of the public. If each era has its own Comstock, the one belonging to this era was Charles Humphrey Keating Jr., a Cincinnati lawyer who founded an organization called Citizens for Decent Literature (although the organization would be renamed several times, the most well-known of which was Citizens for Decency through Law). While Keating is better remembered for his role in the savings and loan scandal of the 1980s – because of which he eventually pleaded guilty to three counts of wire fraud and one count of bankruptcy fraud in 1999 at the age of 75 – from the mid-1950s onward, Keating was America’s leading anti-pornography crusader. He was the Comstock of the second half of the twentieth century.

In any event, Alpers was a review of the Ninth Circuit’s reversal of a conviction under 18 U.S.C. § 1462 for knowingly depositing for carriage in interstate commerce packages containing obscene and indecent phonograph records. The Ninth Circuit reversed the conviction because, under the 1920 amendments, phonograph recordings had not been included. The Ninth Circuit was of the opinion that because “Congress did not include sound writing in the 1920 amendment . . . it was thinking solely in terms of visual representation.” In the Supreme Court it was conceded that the phonograph records were obscene and indecent, and the only question was whether they came within the prohibition of the statute which had listed certain visual materials but had omitted any mention of audio materials. Given the majority’s view that the purpose of the law was to prevent the channels of interstate commerce from being used to disseminate any matter that communicates obscene, lewd, lascivious or filthy ideas, the Court was not persuaded that Congress, by adding motion-picture film to the specific provisions of the statute in 1920, evidenced an intent that media not specifically added was outside the scope of the statute, thus, the conviction was reinstated.

Justice Douglas took no part in the consideration or decision of the case, however, Justice Black, joined by Justices Frankfurter and Jackson filed a dissenting opinion. The dissenters complained that the Court had sustained the conviction by reasoning that a phonograph record is “matter” within the meaning of the statute’s catch-all phrase. However, because it is axiomaitc, Justice Black wrote, that criminal statutes must be sufficiently clear to apprise people of the precise conduct that is prohibited, and because the word “matter” encompasses all things tangible, and many intangibles, that “[h]istory is not lacking in proof that statutes like this may readily be converted into instruments for dangerous abridgments of freedom of expression.” He would express this sentiment many times over the next two decades. Immediately after Alpers was decided, Congress rushed to rectify its error and brought any “thing capable of producing sound” within the scope of the federal obscenity ban through the Act of May 27, 1950.

In 1952 the Court issued its decision, alongside four separate dissenting opinions, in Beauharnais v. Illinois, 343 U.S. 250, 252-258, 287 (1952). While it was not an obscenity case – it involved another category of criminal libel – it would be cited frequently in the tide of obscenity cases to come, and it set the tone for the years of upcoming discussions on the obscene libel. The Court undertook a review of a conviction under an Illinois statute that ventured to punish any utterance that had the tendency to promote friction among racial and religious groups. Joseph Beauharnais had been charged with exhibiting a leaflet that called on the government of Chicago to halt any further “encroachment” by African Americans into white neighborhoods, as well as calling for white Chicagoans to unite in opposition. The leaflets, together with other literature, had been given to volunteers for distribution in downtown Chicago on January 6, 1950. At trial, the judge instructed the jury that if it found that Joseph Beauharnais produced or distributed the leaflets then it would have to find him guilty. The judge refused to instruct the jury, as the defense had urged, to the effect that in order to convict, they must find that the leaflet was likely to produce a clear and present danger of a serious substantive evil that rose far above public inconvenience, annoyance or even unrest.

The Court viewed the Illinois statute as punishing collective libels, noting that if due process permitted criminal sanctions against individual libels, it would not be proper to deny to a state the power to punish the same utterance directed at a defined group; and that such power could only be denied if it was a purposeless restriction. The majority then concluded with some tangential discussion regarding obscenity: “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem . . . [such as] . . . the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Justice Black, joined by Justice Douglas, dissented. Unpalatable as it was, Justice Black noted that it was undisputed that Beauharnais and his group were making a genuine effort to petition their elected representatives to pass laws for segregation of white and non-white people in Chicago. He wrote that the First Amendment could not be construed in a manner that allows either the state or nation to punish him for petitioning the government for the passage of even the most distasteful of laws. He blamed the recently formed “reasonableness” test, which permits state laws abridging First Amendment freedoms so long as those laws are found to have a “rational basis.” This formulation, in his view, left the rights of assembly, petition, speech and press at the mercy of state agencies, whose decisions may still be invalidated if a majority of the Court would conclude that a particular infringement is “without reason,” or is “a willful and purposeless restriction unrelated to the peace and well being of the State.” Contending that no legislature either has the duty or the power to decide what public issues Americans can discuss, he also noted that the majority had given libel a more expansive scope and higher status than it was ever even accorded in the Star Chamber; and that under the Court’s ruling, it can be punishable to give publicity in the state of Illinois to any matter which a judge may find unduly offensive to any race, color, creed or religion. He concluded by adding that “[i]f there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark: ‘Another such victory and I am undone.’”

Justice Reed, also joined by Justice Douglas, filed a separate dissenting opinion, in which he wrote to express his concerns with the vagueness of the operative terms in the Chicago statute: “virtue,” “derision” and “obloquy.” No case was cited which defined or limited the meaning of these words. He added that if words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction. Justice Douglas filed his own dissenting opinion and related that Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. Conceding that such conduct directed at a race or group in this country could be made an indictable offense because it would be more than the simple exercise of free speech – like picketing, it would be free speech plus, he noted that if ever there are other public interests that are to override the plain command of the First Amendment, “the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.” Justice Douglas insisted that the Framers of the Constitution knew human nature as well, and when they weighed the compulsions for restrained speech, they chose liberty instead. Justice Jackson filed a separate dissenting opinion and noted that the Illinois statute, as applied in this case, appeared to him to have dispensed with accepted procedural safeguards for the accused in libel cases in that neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these.

Roth – The Search for a Workable Standard

In 1957, the Court issued its landmark opinion in the consolidated case of Roth v. United States, 354 U.S. 476, 479-494 (1957). After a century of wildly inconsistent decisions based on the Hicklin test, the Court formulated a new standard for gauging obscenity, an approach which would prove no less unworkable. These consolidated cases considered First Amendment challenges to 18 U.S.C. § 1461 (prohibition on use of the mails) in No. 582, Roth v. United States, and to Cal. Penal Code Ann. § 311 (1955), in No. 61, Alberts v. California; additionally, the Court considered “whether these statutes violate due process, because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter [at the state level] (raised in Alberts).” The preemption argument in Alberts and the state sovereignty challenge in Roth were an interesting and potentially conflicting pair of claims that were unlikely to be decided in the same case absent consolidation.

Samuel Roth – a New York publisher and seller of books, photographs and magazines – was convicted by a jury in the District Court for the Southern District of New York on 4 counts of mailing obscene circulars and advertising, and an obscene book; and the conviction had been affirmed by the Second Circuit Court of Appeals. David Alberts conducted a mail-order business in Los Angeles and was convicted in the Municipal Court of Beverly Hills under a misdemeanor complaint for “lewdly keeping for sale obscene and indecent books,” and with “writing, composing and publishing an obscene advertisement of them”; the conviction was affirmed by the Appellate Department of the Superior Court of Los Angeles County.

Delivering the opinion of the Court, Justice Brennan first gave consideration to whether “the unconditional phrasing of the First Amendment” was meant to give protection to “every utterance.” He contended that it had never been considered to protect libelous or obscene utterances. At this point, however, it should be noted that common law obscenity (an offense against the state and/or religion) and libel (a tort giving rise to a private cause of action) are differently situated form one another for First Amendment purposes and it is unclear why the Court would group them together here and treat them similarly. In any event, Justice Brennan did note, however, that “ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests . . . [but, that in any event] . . . obscenity is not within the area of constitutionally protected speech or press.”

The Court noted that the principal argument in these cases was that the obscenity statutes were unconstitutional because they punished the mere incitation to impure sexual thoughts and have not been shown to be related to any antisocial conduct. In Roth, the trial judge had instructed the jury that the words “‘obscene, lewd and lascivious’ . . . signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts” – and in Alberts, the trial judge defined such material as having “a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.” It was argued that under these standards convictions may be had without proof that it will perceptibly create a clear and present danger of antisocial conduct, or that it would even probably induce such conduct. The Court rejected those contentions with a simple statement: obscenity is not protected speech.

However, the Court did note that sex and obscenity are not synonymous, defining obscene material as that “which deals with sex in a manner appealing to prurient interest.” Noting that the early leading standard of obscenity determinations, the Hicklin test, allowed material to be judged by the effect of any isolated excerpt on the most vulnerable of persons, the Court expressly rejected that standard and instead directed an inquiry as to “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” However, the Court found that both trial courts sufficiently followed the proper standard and had provided an acceptable definition of obscenity. While it was argued that the words “obscene, lewd, lascivious, or filthy” do not mean the same thing to all people, all the time, everywhere, the Court responded that the words, measured by common understanding and in accordance with the proper standard for judging obscenity (which, of course, was being newly reformulated and announced that day), give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law.

Samuel Roth had argued that the federal obscenity statute unconstitutionally encroached upon the powers reserved by the Ninth and Tenth Amendments to the states to punish offensive speech and press. This argument was, again, denied with the simple statement that obscenity is not protected by the First Amendment. David Alberts had argued that Congress had preempted the regulatory field of obscenity legislation by enacting the federal scheme, which he maintained was encroached upon by California when it enacted its own obscenity statute. The Court disagreed and noted that federal statute deals only with mailing and transportation and did not eliminate the power of the state to punish “keeping for sale” or “advertising” obscene material.

Chief Justice Warren concurred in the results but urged that the Court’s decision should be limited to the facts at hand, fearing that the Court’s “broad language [] may eventually be applied to the arts and sciences and freedom of communication generally.” He added that “[t]he conduct of the defendant is the central issue, not the obscenity of a book or picture[;] [a] wholly different result might be reached in a different setting.” The facts at hand, which the Chief Justice found somewhat determinative, were that Alberts and Roth were “plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect…[and that] the State and Federal Governments can constitutionally punish such conduct.”

Justice Harlan concurred in the result in Alberts, but dissented in Roth. 354 U.S. at 496-508. He characterized his disagreement with the Court as three-fold: first, he took issue with breadth of the language used by the Court which he feared “may result in a loosening of the tight reins which state and federal courts should hold upon the enforcement of obscenity statutes”; second, he took issue with the majority’s failure to discriminate between the different factors which he submitted should have been involved in the adjudication of state versus federal obscenity cases; and, third, he was troubled that what he saw as the relevant distinctions between the two obscenity statutes here involved, and the Court’s own definition of obscenity, had been ignored. He observed that because both parties had conceded that the matter at the heart of both cases was in fact obscene, the Court’s opinion appeared to assume that “obscenity” was a distinct category of speech and press. On which basis the constitutional question before the Court somehow became, whether obscenity, as an abstraction, is protected by the First and Fourteenth Amendments, and the question of whether a particular book may be suppressed became a mere matter of classification, a matter of “fact,” committed to the fact-finder and insulated from independent constitutional judgment.

Justice Harlan saw an appreciable difference in the respective powers of a state (against the restrictions of the Fourteenth Amendment) and the powers of the federal government (against the limitations of the First Amendment). He concurred with the Court’s judgment in Alberts because he believed that the Court’s “function in reviewing state judgments under the Fourteenth Amendment is a narrow one . . . inquir[ing] only as to whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power.” He believed that “the historical evidence does not bear out the claim that the Fourteenth Amendment ‘incorporates’ the First in any literal sense.” However, he dissented in Roth because “the federal interest in protecting the Nation against pornography is attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do.” In Alberts, the California jury was instructed that the book must have a “tendency to deprave or corrupt its readers,” where in Roth the federal jury was instructed that the book must tend “to stir sexual impulses and lead to sexually impure thoughts.” Justice Harlan noted that as confusing as the two statutes were, the Court had compounded the confusion by superimposing a third requirement, drawn from the American Law Institute’s Model Penal Code (Tentative Draft No. 6) to the effect that material is obscene “if, considered as a whole, its predominant appeal is to prurient interest.” He concluded by mentioning that in his view, “the Court merely assimilates the various tests into one indiscriminate potpourri.”

Justice Douglas, joined by Justice Black, dissented in both cases. He wrote that under the standards announced by the majority, punishment is inflicted for simply provoking thoughts, as opposed to imposing punishment for overt acts or antisocial conduct. The arousal of sexual thoughts and desires, he added, happens every day in normal life; and that “[a]ny test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment . . . [because] juries can censor, suppress, and punish what they don’t like . . . creat[ing] a regime where in the battle between the literati and the Philistines, the Philistines are certain to win.” He concluded by adding that “unlike the law of libel, wrongfully relied on in Beauharnais, there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.” He added that because the First Amendment speaks in absolute terms and was designed to foreclose governments from weighing the value of speech against silence, “[f]reedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.”

Kingsley Books – The Book on Trial

The same day that Roth was decided, the Court also issued its decision in Kingsley Books v. Brown, 354 U.S. 436, 437, 438-445 (1957). Given that this was not a criminal obscenity case, given that this was case that arose under a New York law that authorized the “limited injunctive remedy,” against the sale and distribution of written and printed matter found after a trial to be obscene, and then to obtain an order for their seizure, this case presented entirely different scope of constitutional issues since it was the work itself – rather than the conduct of any individual in conjunction with the character of the work – that was to be judged. Under this law, a complaint had been filed by counsel for the City of New York, charging several adult bookstores in Times Square with displaying for sale certain obscene booklets – namely, an erotic comic strip, entitled Nights of Horror, which contained drawings that depicted a variety of sexual acts, as well as acts of bondage and torture. The complaint asked that further distribution of the booklets be prohibited by injunction, and that all copies be surrendered for destruction. The same day, one of the bookstores that had responded to the complaint, Kingsley Books, was ordered to show cause within four days why they should not be enjoined from distributing Nights of Horror. After trial, which consisted of the judge sitting in equity, the court found that the booklets were clearly obscene – “dirt for dirt’s sake” – and he enjoined their further distribution and ordered their seizure and destruction. Without challenging the finding of obscenity, Kingsley Books took an unsuccessful direct appeal to the New York Court of Appeals, challenging the constitutionality of the statute.

In the Supreme Court, Kingsley Books claimed that it was unconstitutional for New York to secure injunctions, as part of its censorship scheme, arguing that it amounted to effective censorship of literary work prior to a judicial determination of obscenity. The Court responded, however, that the states should not be handicapped “in resorting to various weapons in the armory of the law.” The Court also noted that it saw no problem with New York’s denial of jury trials under its scheme since its method for rendering obscenity determinations was similar to procedures for punishing misdemeanors, adding that due process does not necessitate trial by jury in misdemeanor prosecutions.

Chief Justice Warren dissented. He began by noting that this was not a criminal obscenity case, or a case ordering the destruction of materials disseminated by a person who has been convicted of an offense for doing so; instead, New York police located books which, in their opinion, were unfit. They obtained a court order for condemnation and destruction. Given that the New York law placed the book itself on trial, he focused on the lack of any standard in the statute for judging the book in any particular context. He had already expressed the view that the same book may have a different impact in a different setting. He then added that it is the manner of use that should determine obscenity. In his view, it would be the conduct of the individual, rather than the quality of the art or literature, that would be judged. Any contrary view, he argued, “savors too much of book burning.”

Justice Douglas, joined by Justices Black and Brennan, also dissented. He maintained that the New York provision for an injunction gave the state the paralyzing power of a censor, and that its provisions constituted a prior restraint on speech and censorship at its worst. He complained that the New York statute makes one criminal conviction conclusive and authorizes a statewide decree that subjects the distributor to the contempt power. He wrote that every publication is a separate offense which entitles an accused to a separate trial, and that juries or judges may differ in their opinions, community by community, case by case. Justice Brennan wrote separately to express yet another ground of dissent. He was troubled by the absence of a right to jury trial, believing that to sanction such a procedure was to undermine the test established in Roth. The jury, he argued, represents a cross-section of the community and has a special aptitude for reflecting the view of the average person; thus, he argued that jury trials provide a peculiarly competent application of the Roth standard, which calls for an average person’s application of contemporary community standards. Any statute that would not afford, as a matter of right, a jury determination of obscenity would in his opinion fall short of giving proper effect to the Roth standard.

Beauharnais Revisited

Two years later, the Court decided Kingsley International Pictures v. Regents of the University of New York, 360 U.S. 684, 684-689 (1959), reviewing a university board’s refusal to license L’Amant de Lady Chatterley, the 1955 French film version of the D.H. Lawrence novel, because of an immoral theme that appeared to condone adultery. In reversing the judgment of the New York Court of Appeals, which had upheld the board’s refusal to license the film, six separate opinions were filed in the Supreme Court. The New York law in question was rather thorough and made it illegal to exhibit, sell, lease or lend for exhibition, any motion picture without a valid license. Licenses would issue for films that were not found to be obscene, indecent, immoral, inhuman, sacrilegious, or such that would tend to corrupt morals or incite to crime, or which portrayed acts of sexual immorality, perversion, lewdness, or which presented such acts as desirable or acceptable behavior. The film’s distributor submitted it for a license; however, finding three “immoral” scenes in the film, the Board refused to license it unless the scenes were removed. The distributor petitioned the Regents of the University of the State of New York for a review of that ruling. The Regents upheld the Board’s refusal to issue a license, but on the broader ground that the entirety of the film’s theme was immoral because it presented adultery as acceptable. Judicial review was then sought in New York courts and the Appellate Division unanimously annulled the action of the Regents and directed that a license be issued; following that, a deeply divided Court of Appeals reversed the Appellate Division and concluded that the film “alluringly portrays adultery as proper behavior.” To recapitulate this dizzying chain of events: the Board asked that three immoral scenes be removed; the Regents wanted the entire theme removed; the Appellate Division was happy with the film as it was; and, a divided Court of Appeals agreed with the Regents that the film’s entire theme should be removed.

In the Supreme Court, it was argued that the action was justified because the motion picture attractively portrayed a notion that was contrary to the moral, religious, and legal code of New York’s citizenry. In rejecting this contention, the Court noted that the First Amendment’s guarantee is not confined to the expression of conventional ideas, it also protects advocacy of unpopular opinions. Reversing the Court of Appeals by noting that advocacy of conduct proscribed by law – such as adultery – could not serve as a justification for denying free speech where the advocacy falls short of incitement to action and where there is no indication that the advocacy would be acted on. Of course, and likely to the great frustration of certain justices who had dissented in that case, this precise line of reasoning would have justified the opposite holding in Beauharnais.

To recapitulate, first, the Court’s main opinion, holding that the film could be shown because advocacy of unpopular opinions – such as adultery – categorically cannot serve as a justification for denying free speech where the advocacy falls short of incitement to action and where there is no indication that the advocacy would be acted on, clearly conflicted with its approach in Beauharnais. Second, Justice Frankfurter concurred because he personally viewed the film and did not find it to be “genuine pornography.” Third, Justice Clark concurred and took exception with New York law’s reliance on individual impressions as the yardstick (giving every censor unbridled authority). Fourth, Justice Black concurred and took exception with the several concurring opinions that relied on individual justices’ own appraisals of the film in order to hold that New York cannot constitutionally ban it. Fifth, Justice Douglas, joined by Black, concurred and stated that the First Amendment’s absolute phrasing leaves no room for any censorship whatsoever. Sixth, Justices Harlan, Frankfurter and Whittaker, concurred and took the view that this law was not constitutionally infirm on its face, it was just misapplied by the Court of Appeals to the facts of this case in light of the fact that these three justices had viewed the film and not found anything in it that could “could properly be termed obscene or corruptive of the public morals by inciting the commission of adultery.” The upshot of all of this is, of course, highly illustrative of the unworkability and subjectivity attending obscenity determinations – that is, the fact that six judicial views appear – in one case – all of which concur as to the outcome that L’Amant de Lady Chatterley should have been shown, but which were so divergent in their reasoning from one another as to boggle the mind.

Los Angeles Tries Strict Liability

A few months later, the Court decided Smith v. California, 361 U.S. 147, 148-154 (1959), where, again, all justices agreed that Eleazor Smith’s criminal conviction was due to be reversed, but each of the five opinions filed reflected a different reason for reversal. Eleazor Smith was a 75-year old book store owner in Los Angeles in the 1950s. He was charged under a city ordinance which prohibited the simple possession of any obscene or indecent material in any place of business where books are sold. He was convicted in municipal court and his conviction was affirmed on appeal. The conviction rested solely on his possession, amidst the vast collections of books in his bookstore, of a single book that was later judicially found to be obscene. The book was about sexual relationships between women and was entitled Sweeter Than Life.  The law included no requisite element of knowledge by potential violators as to the contents of the obscene material, in that the city ordinance imposed strict liability.

In the Supreme Court, Smith claimed: that to construe the ordinance as imposing strict liability would render it unconstitutional; that important evidence was not permitted to be introduced; that a constitutionally impermissible standard of obscenity was applied; and that the book in question was in fact not obscene. Ultimately, since the Court would determine that a strict liability law under the circumstances presented by this case was constitutionally impermissible, there was no need for it to decide the other questions. By the omission of knowledge as an element of such a statute, the Court found that booksellers would be placed under an obligation to make themselves aware of the contents of every book in their shops and that such a burden would then effectively be transferred to the public. Under that regime, the Court imagined that the contents of bookshops and periodical stands would be quickly depleted. Given the limitations as to the amount of material one can read in any given day, as well as the anxiety of facing strict criminal liability, the Court reasoned that such a law would invariably result in the curtailment of the public’s access to all books. Los Angeles had gone too far.

Justice Black wrote separately to express his view that all prison sentences for possession of obscene books will seriously burden freedom of the press, with or without knowledge of their obscenity. Justice Douglas wrote separately to reiterate his view that neither the author nor the seller of this book can be punished for publishing or distributing it, stating that, “[n]either we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence.” Justice Frankfurter wrote separately to express, among other points, that the Court should have given some indication of the scope and quality of scienter that it would have otherwise required, and added that the error of not permitting Smith to introduce evidence regarding community standards should not have been overlooked. Justice Harlan dissented in part to express his view that state power in the obscenity field has a wider scope than federal power, while concurring in part to add that the conviction was due to be reversed simply because the trial judge did not permit the defense to introduce evidence relating to community standards.

Don Juan in Chicago

Two years later, the Court decided Times Film Corp. v. Chicago, 365 U.S. 43, 44-49 (1961), where it reviewed a challenge to a Chicago ordinance which required submission of all motion pictures for examination prior to their exhibition. The film’s producers applied for a permit to exhibit the 1956 film Don Juan (based on the Mozart opera Don Giovanni) and even paid the licensing fee but because they adamantly refused to submit the film for examination, their application was denied, and the denial was made final on appeal to the mayor. The producers filed suit in federal court seeking injunctive relief and challenging the ordinance on its face as a prior restraint on the freedom of expression. The district court dismissed the complaint finding no federal question or even a justiciable controversy, and the court of appeals affirmed.

Delivering the opinion of the Court, Justice Clark wrote that the Court found both a federal question and a broad justiciable issue. He phrased the issue presented as asking whether “the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture.” If this was to be answered in the affirmative, he thought that the state’s sole remedy would be the invocation of its criminal process; however, he wrote that “this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment – a claim without sanction in our cases.” The Court concluded that the Chicago censorship scheme was acceptable because the medium being restricted – motion picture films – had a greater capacity for “evil” than other forms of expression, and that this increased capacity may be relevant in determining the permissible scope of community control of a medium of expression.

Chief Justice Warren, joined by Justices Black, Douglas, and Brennan, filed a dissenting opinion which first took issue with the Court’s characterization of the issue at the heart of the case, noting that the question was not whether film theaters have complete and absolute freedom to exhibit any film at least once, but rather the question should have been whether government may require all films to be submitted for licensing and censorship prior to exhibition. He noted that as early as 1644, John Milton had “declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform its duties.” Justice Douglas, joined by Chief Justice Warren and Justice Black, filed a separate dissenting opinion to express the view that because the very purpose of the First Amendment was “to unlock all ideas for argument, debate, and dissemination,” he believed that censorship was “a weapon that no minority or majority group, acting through government, should be allowed to wield over any of us.”

A General Warrant Issues in Missouri

A few months later, the Court decided Marcus v. Search Warrant of Property, 367 U.S. 717, 718-737 (1961), where it considered the legality of procedures under Missouri law that authorized the search, seizure and eventual destruction of allegedly obscene publications, if found by a court to be obscene. In October of 1957, the Kansas City Police Department Vice Squad was investigating the distribution of allegedly obscene magazines. Police visited a magazine distributor and showed the manager a list of publications which the employee admitted to having sold. The next day, police visited five newsstands and purchased one of the magazines on the list at each location. One officer then signed and filed six sworn complaints (naming each of the five newsstands and the distributor) in state court, alleging in each complaint that each respondent kept obscene publications for sale. The judge issued six search warrants with which the police then seized nearly 1,000,000 nudist magazines and various books about sex. After a hearing on the question of obscenity, the judge found that 100 of the seized publications were obscene. A judgment issued directing that those items, and all copies thereof, be retained by the Sheriff as evidence for any criminal prosecution, or in the alternative ordering the Sheriff to publicly destroy them. The judgment condemning the 100 publications was upheld by the state supreme court.

In the Supreme Court, the principal question was framed as asking whether Missouri’s search and seizure procedure, as it was being used to suppress obscene publications, involved a serious curtailment of protected expression. The Court’s primary concern was to determine whether the Missouri procedures contained adequate safeguards to avoid inadvertent and unnecessary suppression of constitutionally protected publications. Clearly, given that nearly a million publications were legally seized but only 100 were found to be obscene, the Court found that Missouri’s procedure lacked the necessary safeguards. The Court found it disturbing: that the warrants had issued on nothing more than a few general assertions by a single police officer; that they were issued without any scrutiny by the judge of any of the publications that the police officer considered obscene; and, that only the individual discretion of the police officers guided them in picking and choosing whatever offended their own sensibilities. Of course, by finding fault in a regime where individual Missouri officers were guided only by their own sensibilities, in Marcus, the Court found itself taking issue with the exact approach that was taken by the majority of the justices when they decided in favor of the film, L’Amant de Lady Chatterley, in Kingsley International Pictures v. Regents of the University of New York, a decision which, itself, was in conflict with the way the Court had decided Beauharnais). Justice Black, joined by Justice Douglas, wrote separately to add that because the warrant used to search the six premises in this case made no attempt to specifically to describe the “things to be seized,” it was a general warrant in violation of the Fourth Amendment.

The Notion of Patent Offensiveness

The following term, the Court decided Manual Enterprises, Inc. v. Day, 370 U.S. 478, 479-495 (1962), where Justice Harlan, joined by Justice Stewart, delivered the plurality opinion. Justice Brennan filed a concurring opinion, joined by Chief Justice Warren and Justice Douglas. Justice Black concurred in the result without joining either the plurality opinion or Justice Brennan’s concurring opinion, and Justices Frankfurter and White did not participate in the decision. In March of 1960, about 400 copies of the three magazines – entitled MANual, Trim, and Grecian Guild Pictorial – were detained by a postmaster, pending a ruling as to whether they were “nonmailable”; and, after an evidentiary hearing they were determined to be obscene and barred from the mails, a ruling that was upheld in district court and by a federal appeals court. The publications consisted of photographs of nude male models, giving the name of each model and the name and address of the photographer, as well as a number of advertisements offering nudist photographs for sale.

The Court noted that the case came to it with a number of administrative findings: that the magazines were “composed primarily, if not exclusively, for homosexuals . . . [and] . . . would appeal to the ‘prurient interest’ of such sexual deviates, but would not have any interest for sexually normal individuals . . .” There is, perhaps, some irony to be found in the fact that the Court’s characterization here is itself offensive to modern sensibilities. Based on this assumption, the lower courts had decided the obscenity question as depending on a determination as to the relevant “audience” in terms of which their “prurient interest” appeal should be measured. On that basis, the appeals court had held that the administrative finding respecting their impact on the “average homosexual” sufficed to establish their obscenity. The Court did not reach that question “because the magazines could not be deemed so offensive on their face as to affront current community standards of decency – a quality that we shall hereafter refer to as ‘patent offensiveness’ or ‘indecency.’” Noting that under Roth, obscenity determinations require proof of patent offensiveness and prurient interest appeal; but that the Court’s “independent examination of the magazines leads us to conclude that the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry…[but when] [d]ivorced from their “prurient interest” appeal to the unfortunate persons whose patronage they were aimed at capturing (a separate issue), these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” The Court concluded by adding that “nothing in this opinion of course remotely implies approval of the type of magazines published by these petitioners, still less of the sordid motives which prompted their publication.”

Not feeling the need to wade into the waters treaded by the majority in this case, Justice Brennan, joined by Chief Justice Warren and Justice Douglas, wrote separately to simply note that “it is enough to dispose of this case that Congress has not, in § 1461, authorized the Postmaster General to employ any process of his own to close the mails to matter which, in his view, falls within the ban of that section.” Justice Clark filed the lone dissenting opinion to express the view that, under § 1461, the Postmaster General was not only authorized, but required to reject obscene matter, and that he would have affirmed the judgment on the sole ground that the magazines contained information as to where obscene material could be obtained. Justice Clark then added that the publishers had freely admitted that the magazines were intended to appeal to male homosexuals and to stimulate their erotic interests – which he noted in support of his view, speculative as it may have otherwise seemed – on the requisite degree of knowledge that the publisher would need to have as to the materials that might be found in possession of their advertisers.

Rhode Island’s Thinly Veiled Threats

The following year, in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59-72 (1963) the Court reviewed a case that arose under a Rhode Island law that had created a “Commission to Encourage Morality in Youth.” The purpose of this agency was “to educate the public” concerning any matter containing obscene, indecent or impure language, or that tended to corrupt the youth, and to investigate and recommend the prosecution of all violations. The Commission’s favored practice was to notify book distributors that certain designated books or magazines had been declared objectionable for sale, distribution or display to youths under 18 years of age. Among the books listed as objectionable were Peyton Place by Grace Metalious and The Bramble Bush by Charles Mergendahl. Typical notices sent to distributors either solicited or thanked them for their cooperation and then reminded them of the Commission’s duty to recommend prosecutions for obscenity. The Commission would then circulate its lists of objectionable publications to local police departments. The case was a petition for a declaratory judgment (seeking a declaration that the law creating the Commission was unconstitutional, and to enjoin its acts and practices) filed by Bantam Books, Dell Publishing Company, and The New American Library of World Literature. The Supreme Court of Rhode Island declined to find the law unconstitutional and reversed the Rhode Island trial court’s grant of injunctive relief.

Writing for the majority, Justice Brennan noted that the effect of the Commission’s notices were the intimidation, by threat of prosecution, of book dealers who in turn refused to take new orders for the condemned publications; and, that this regime effectively suppressed the circulation of the books the Commission had placed on its list. At oral argument in the Supreme Court, the state conceded that some of the books listed were not “strictly” obscene under the Court’s formulation of the term. The Court explained, as it had done two terms earlier (in Marcus, 367 U.S. at 731), that a State is not free to adopt whatever procedures it pleases for dealing with obscenity without due regard for constitutionally protected expression. Despite the notion that the distributors were technically ‘free’ to ignore the Commission’s notices, the Court could not overlook the obvious difficulties in disregarding the thinly veiled threats to prosecute, or that its “notices” were followed by police visits.  Thus, the Court refused to “credit the State’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.” The Court explained that such prior restraints have only been tolerated when operated under judicial superintendence, and this scheme had no such features. There were no provisions for judicial superintendence, there was no provision for notice and a hearing before publications were blacklisted, the Commission’s statutory mandate was vague, and publications were listed as “objectionable” without any explanation. Rhode Island had gone too far.

Justice Black concurred in the result without joining the majority opinion; Justice Douglas joined the Court’s opinion but also wrote separately to reiterate his view as to the narrowness of the scope of governmental authority to suppress publications on the grounds of obscenity, as well as to add that the problems with Rhode Island’s system were apparent regardless of one’s view of as to the scope of the government’s authority in this area. Justice Clark wrote separately to state the view that the Court “owes Rhode Island the duty of articulating the standards which must be met . . . as to the appropriate disposition on remand,” believing that, rather than to strike down the entire regulatory scheme, the Court could simply direct the Commission to “abandon its delusions of grandeur and leave the issuance of ‘orders’ to enforcement officials and “the State’s criminal regulation of obscenity” to the prosecutors, who can substitute prosecution for ‘thinly veiled threats’ in appropriate cases.” He believed this would leave the Commission free to publicize its findings as to obscene character; to solicit the support of the public in preventing obscene publications from reaching juveniles; to furnish its findings to publishers, distributors, retailers and to law enforcement officials; and, finally, to seek prosecutions where appropriate. Justice Harlan filed the only dissenting opinion because believed the Court had not given due consideration to the accommodation that he thought must be made to allow Rhode Island to address its concern with the problem of juvenile delinquency. While he agreed with the Court that the tenor of some of the Commission’s letters and reports might be subject to serious criticism, he believed that striking down the entire scheme was excessive, and that this was something “which could surely be cured by a word to the wise.”

Les Amants

The next year, the Court decided Jacobellis v. Ohio, 378 U.S. 184, 185-196 (1964). In 1959, Nico Jacobellis, the manager of the Heights Art Theater in Cleveland, Ohio, was convicted of two violations of Ohio’s obscenity law for possessing and exhibiting the 1958 Louis Malle film, Les Amants (“The Lovers”), notwithstanding the fact that the previous year, the film had won the Grand Jury Prize at the Venice Film Festival. The film was controversial at the time because it concerned a female protagonist, played by Jeanne Moreau, who left her husband and child to be with a lover; and further, the film ventured to depict a scene in which a woman experienced sexual climax. For possessing and exhibiting such a film, Nico Jacobellis was fined $2,500 and sentenced to the workhouse if the fines were not paid; the conviction was affirmed by the Supreme Court of Ohio.

Delivering the judgment of the Court, Justice Brennan phrased the central question as whether the Ohio courts were correct that Les Amants was obscene. By this point, members of the court were growing weary of the burdensome task of watching films together and reading books in one after another obscenity case – there had been suggestions that the Court should do something to lessen its increasing burden in this area. It had been suggested that obscenity could be treated as a conclusive and purely factual judgment on a jury’s verdict; or that it could be left essentially to the state courts and lower federal courts, with the Supreme Court limiting its review to sufficiency of evidence. The Court, however, decided against the idea of avoiding this “difficult, recurring, and unpleasant task,” cautioning that “an abrogation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.” With that, the Court adhered to the position that the obscenity determination is not a question of fact but rather an issue of constitutional law. Recognizing that the test for obscenity formulated in Roth was imperfect, and noting that any substitute test would raise equally difficult problems, Justice Brennan cautioned that the recognition in Roth that obscenity is excluded from constitutional protection is only because obscenity is by definition “utterly” without redeeming social importance; thus, if the material has any literary or scientific or artistic value, or any other form of social importance, it may not be branded as obscenity and denied the constitutional protection. He wrote that Roth has been misread in two aspects: first, it is improper to weigh social importance against prurient appeal; second, the “contemporary community standards” aspect of the Roth test implies a determination using national, not local, standards because “[i]t is, after all, a national Constitution we are expounding.” Applying these standards to Les Amants, he noted that the film received good reviews and was rated by at least two critics of national stature among the best films of the year; also, it was shown in approximately 100 of the larger cities in the United States. In light of this, and after having viewed the film, Justices Brennan and Golberg concluded that it was not obscene.

Justice White concurred in the judgment but did not join any opinion. Justice Black, joined by Justice Douglas, filed a concurring opinion to again express concern with the Court acting as “Supreme Board of Censors.” Justice Stewart filed his now-famous concurring opinion to say that Roth was poorly written and that it lent itself to a variety of interpretations. He announced that he had arrived at the conclusion that “under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography [which] I shall not today attempt further to define . . . [b]ut I know it when I see it, and the motion picture involved in this case is not that.” Justice Goldberg, having joined Justice Brennan’s plurality opinion, also wrote separately to add that “by any arguable standard the exhibitors of this motion picture may not be criminally prosecuted unless the exaggerated character of the advertising rather than the obscenity of the film is to be the constitutional criterion.”

Three justices dissented, for two different reasons. Chief Justice Warren, joined by Justice Clark, filed a dissenting opinion to express the view that the “community standards” referred to in Roth referred to a local, and not national, community standard – and that it is of no import that a book may be banned in one city and not in another. The Chief Justice and Justice Clark then urged their colleagues to adopt the view that the Supreme Court should commit the enforcement of the Roth standard to state courts and lower federal courts, and that the Court should confine itself to sufficiency of the evidence review, notwithstanding the fact that the meaning of Roth still constituted a subject of disagreement in the Supreme Court. In light of which, they believed that the Ohio courts had sufficient evidence to support the determination that Les Amants was obscene. Justice Harlan dissented to reiterate his belief that the states have greater latitude in determining what can be banned as obscenity than the Federal Government, and he maintained that “having viewed the motion picture in question, I think the State acted within permissible limits in condemning the film and would affirm the judgment of the Ohio Supreme Court.”

Kansas’s Nightstand Books

That same day, the Court also decided A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 206-213 (1964). That case arose under a Kansas statute authorizing seizure of books declared to be obscene before any adversary determination, and after such a determination, the law authorized their destruction. Authorities in Kansas obtained a first court order directing the seizure of 59 novels, and after an adversarial hearing, they obtained a second order directing the destruction of 1,715 copies of 31 of the 59 novels. The Kansas statute required only the filing of a verified information stating that the affiant believed there was an obscene book located within the county; however, in light of the recently issued decision in Marcus, the Kansas attorney general went further and identified 59 novels by title, including several copies with his application. After a 45-minute ex parte hearing, the judge concluded that the books appeared to be obscene and somehow also concluded that any other book from this series must also be obscene; accordingly, he issued a warrant for the seizure of the books he had reviewed, as well as any other books appearing to be part of that series. Police then seized 31 titles that appeared to be part of the same series from a newsstand. At a second hearing held 10 days later, the newsstand owner moved to quash the information and the warrant, complaining that the procedure leading up to the seizure was deficient in that it failed to first to afford a hearing on the question of whether the books were in fact obscene, arguing that this procedure constituted a prior restraint. The motions were denied, and after the third and final hearing held seven weeks later, the Kansas court held that all 31 novels were obscene and ordered the sheriff to prepare to destroy all copies. The Kansas Supreme Court affirmed.

Delivering the opinion of the Court, Justice Brennan wrote that since Kansas law authorized the seizure of all copies of the specified titles as well as others within the series, and since the newsstand owner was not first afforded a hearing on the question of obscenity before the warrant issued, the procedure was constitutionally deficient in light of Marcus and Kingsley Books, both of which cases had cautioned that states may not impose extensive restraints on the distribution of publications prior to an adversary proceeding on the issue of obscenity. The Court declared the Kansas statute unconstitutional and noted that the seizure of all copies of named titles is even more repressive than an injunction preventing further sale. Like Rhode Island and Missouri, Kansas had gone too far.

Justice Black, joined by Justice Douglas, concurred but wrote separately to note that the Kansas judgment under review ordered the destruction of 1,715 copies of 31 novels because they were calculated to incite sexual desires, he added that the Kansas courts were not wrong to rely on the Court’s decision in Roth to justify the burning of books. He added that because of his “belief that both Roth and Beauharnais draw blueprints showing how to avoid the First Amendment’s guarantee of freedoms of speech and press, I would overrule both those cases as well as reverse the judgment here.” Justice Stewart, having recently formed his own “I know it when I see it” standard, wrote separately to express the notion that if this case had involved hard-core pornography, the procedures followed would have been valid, at least with respect to the material that the trial judge actually reviewed. However, his review of the books convinced him that they did not constitute hard-core pornography, and therefore, he concluded that “Kansas could not by any procedure constitutionally suppress them, any more than Kansas could constitutionally make their sale or distribution a criminal act.” Justice Harlan, joined by Justice Clark, dissented and argued that these “Nightstand” books had been found in state judicial proceedings to treat sex in a fundamentally offensive manner and that the Kansas criteria for judging obscenity were rational. Conceding that the Kansas statute did not require an independent judicial examination of the materials before seizure, Justices Harlan and Clark were nevertheless satisfied that Kansas officials at least tried to conform their procedures to what they believed to be the requirements of Marcus. More surprisingly, the dissenters took the view that, while only seven novels were delivered to the district judge before the 45-minute ex parte hearing, because of the nature of the seven books examined, the judge could fairly conclude that the remaining, though unexamined, books were likewise obscene.

Revenge at Daybreak

The following year, the Court reviewed the constitutionality of Maryland’s film censorship statute and decided Freedman v. Maryland, 380 U.S. 51, 52-60 (1965). That case arose in the context of a theatre owner who was convicted for showing Revenge at Daybreak (La Jeune Folle) without having first obtained a permit from the Maryland Board of Censors. This French-language film was based on Catherine Beauchamp’s 1937 novel – set during the 1922 Irish uprising, it tells the story of a young orphan employed as a domestic worker who set out to find her brother whom she heard calling for her help in a dream. Delivering the opinion of the Court, Justice Brennan noted that, unlike the petitioner in Times Film Corp. v. Chicago, this petitioner had argued that the state law at issue was an unconstitutional invalid prior restraint because it presented a palpable danger of unduly suppressing protected expression, namely through the procedure for an initial decision by the censorship board, which, without any judicial participation, effectively banned exhibition of any disapproved film, unless the exhibitor takes a time-consuming appeal to the Maryland courts and succeeds in having the Board’s decision reversed. Further, while the exhibitor was required to submit the film to the Board for examination, no time limit was imposed for Board action. Noting the absence of any statutory provision for judicial participation in Maryland’s process for banning a film, or at least some indication of prompt judicial review, the Court wrote that in the only reported case under that statute, the initial determination had taken four months, and final vindication of the film on appellate review had taken six months. A noncriminal process which requires the prior submission of a film to a censor must take place, if at all, under procedural safeguards designed to minimize the dangers of a censorship system. This would include a feature placing the burden of proving obscenity with the censor. The Court added that any such procedure must assure prompt judicial decision, otherwise it may prove too burdensome to seek judicial review. The Maryland scheme did not satisfy these criteria in that once the censor disapproved the film, the exhibitor had to assume the burden of instituting judicial proceedings while shouldering the burden of persuading the Maryland courts that the film is protected expression; also, once the Board had acted against a film, its exhibition was prohibited pending judicial review. As was the case with California, Rhode Island, Kansas, and Missouri, Maryland also had gone too far.

Justice Douglas, joined by Justice Black, concurred but wrote to urge that on more than one occasion he had indicated his view that films are entitled to the same degree of protection as other forms of expression. In light of this, no “form of censorship – no matter how speedy or prolonged it may be – is permissible.” However, in light of the Court’s holding, Justices Douglas and Black believed that a system of movie censorship must contain at least three procedural safeguards: (1) that the censor must have the burden of instituting judicial proceedings; (2) that any restraint prior to judicial review can be imposed only briefly in order to preserve the status quo; and, (3) that a prompt judicial determination of obscenity must be assured.

Fanny Hill Reappears

The following year, on March 21, 1966, the Court expended a great deal of ink in issuing judgments in three cases that culminated in the filing of no less than 14 separate opinions. The first of these cases represented a second attempt in 150 years by the state of Massachusetts to ban the book commonly known as Fanny Hill, the erotic novel written by John Cleland in 1748. The case was styled, A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 414-420 (1966), and it involved the Court’s review of an in rem obscenity case that started as a civil equity suit brought pursuant to state law to have Fanny Hill declared obscene. Massachusetts law provided that a petition instituting such a suit be directed against the book by name, which would trigger an order to show cause why it should not be adjudicated obscene, the law also provided that the order would be published in a daily newspaper and sent to all persons of interest. Once proceedings were instituted, the publisher intervened, and after a hearing, the court received the book in evidence, heard the testimony of experts, as well as other evidence such as book reviews. On the close of the evidence, the state judge decreed Fanny Hill to be obscene, and the Massachusetts Supreme Judicial Court affirmed.

Delivering the plurality opinion, Justice Brennan, joined only by the Chief Justice and Justice Fortas, noted that the sole question before the state courts was whether Fanny Hill is in fact obscene under the standard established in Roth. He immediately noted that the Massachusetts courts misinterpreted the social value criterion of the Roth standard when they held that a work need not be “unqualifiedly worthless before it can be deemed obscene” – instead, he instructed that the correct view was that a book could not be banned as obscene unless it was found to be utterly without redeeming social value, regardless of the degree of prurient appeal and patent offensiveness. Thus, “even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.” Justices Black and Stewart concurred in the reversal, but for the reasons stated in their respective dissenting opinions in Ginzburg v. United States, and Mishkin v. New York, which were also decided that day.

Justice Douglas also concurred in the reversal but wrote separately to reiterate his now familiar view that “the First Amendment leaves no power in government over expression of ideas.” He wrote that this erotic novel told the story of a young girl who becomes a prostitute in London, a life she abandoned to marry her first lover, and that it had endured for over 200 years, despite periodic efforts to ban it. He also related that the book had been reprinted in 1963, resulting in large number of orders being placed by universities and libraries, and that the Library of Congress itself had requested the right to translate the book into Braille. In light of all this, he was at a loss as to how Massachusetts had arrived at its decision to institute its obscenity suit “so that the citizens of Massachusetts might be spared the necessity of determining for themselves whether or not to read it.” He added that in this very case, four of the seven Justices of the Massachusetts Supreme Judicial Court definitively concluded that Fanny Hill was obscene, where four of the seven judges of the New York Court of Appeals had concluded that it was not. He argued, “[w]e are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except in our capacity as private citizens.”

Three justices dissented, each writing separately. Justice Clark believed the book was obscene. Having reached his limit, he wrote that “the book involved here, is typical [of what] I have ‘stomached’ [in] past cases for almost 10 years without much outcry. Though I am not known to be a purist – or a shrinking violet – this book is too much even for me.” Reflecting continuing disagreement among the members of the Court as to what the Roth standard was exactly, he suggested that Roth had been hijacked, taking issue with any notion that it ever included any “utterly without redeeming social value” component. He recounted that the first reference to such an element was made by Justice Brennan in the plurality opinion in Jacobellis v. Ohio seven years after Roth and in an opinion joined only by Justice Goldberg. He believed that while evidence of social importance is relevant to an obscenity determination, it did not and should not constitute a separate and distinct constitutional test and must instead be considered together with evidence relating to prurient interest and patent offensiveness.

Justice Harlan dissented separately to note again his view that the First Amendment does not bind the states and the federal government to the same degree. He agreed with Justice Stewart’s “hard-core pornography” formulation, but only as to federal regulation; and, in that vein, he noted that Fanny Hill does not fall within that class and could not be barred from the mail. However, under state laws governing obscenity, he believed that the Fourteenth Amendment only required a state to apply criteria that are “rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards . . . [and] it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value, and the like.” Thus, because of his belief that the states were owed latitude “against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions,” he would have allowed Massachusetts to burn Fanny Hill.

Justice White dissented separately to express a different concern with the Roth test, noting that if social importance is to serve as the gauge, then “obscene material, however far beyond customary limits of candor, is immune if it has any literary style, if it contains any historical references or language characteristic of a bygone day, or even if it is printed or bound in an interesting way.” He also did not understand Roth to set “social importance” as an independent test of obscenity; however, he wrote separately to express the view that social or artistic value should be considered as relevant only to determining the predominant prurient interest of the material – which would reduce the obscenity determination to a two-part test: offensiveness and prurient sexual appeal, the latter part being influenced by considerations of social or artistic value.

The Housewife’s Handbook on Selective Promiscuity

The second of the three cases decided that day, Ginzburg v. United States, 383 U.S. 463, 464-476 (1966), involved the review of a federal conviction for mailing obscene books as well as advertisements instructing where more obscene material may be obtained. The convictions were preceded by a bench trial in the District Court for the Eastern District of Pennsylvania. Ralph Ginzburg and three of his companies were convicted on 28 counts, and the Third Circuit Court of Appeals affirmed the convictions. Delivering the opinion of the Court, Justice Brennan noted that while the Court has, since Roth, focused on the sufficiency of the materials themselves for making obscenity determinations, this was a case where the prosecution charged the offense in the context of production, sale, and publicity – while assuming that, standing alone, the publications themselves may not have been obscene. He wrote that “the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity . . .” The three publications at issue were: Eros, a hard-cover magazine; Liaison, a bi-weekly newsletter; and The Housewife’s Handbook on Selective Promiscuity, a short book. Eros contained 15 illustrated articles on love, sex, and sexual activity; Liaison contained digests of two articles concerning sex and sexual relations which had earlier appeared in professional journals as well as a report of an interview with a psychotherapist advocating broad license in sexual relationships; and The Housewife’s Handbook was in the nature of a sexual autobiography detailing the author’s sexual experiences.

At trial, in addition to testimony as to the merit of the material, testimony was adduced to show that each of the publications was originated or sold by a business that openly advertised the appeal to erotic interests; evidence was also presented that several million advertising circulars soliciting subscriptions and over 5,500 copies of The Housewife’s Handbook were mailed out indiscriminately. The Court then noted the brazenness of some of the advertisements, one claimed: “Eros is a child of its times…the result of recent court decisions that have realistically interpreted America’s obscenity laws and that have given to this country a new breadth of freedom of expression . . . Eros takes full advantage of this new freedom of expression. It is T-H-E magazine of sexual candor.” Justice Brennan related that such evidence is relevant in close cases, and that advertising one’s materials as erotically arousing can somehow stimulate the reader to accept them as prurient. The Court’s focus in this case turned to the notion that Ralph Ginzburg sought to achieve “titillation,” and noted that the “brazenness of such an appeal heightens the offensiveness” while the indiscriminate dissemination was relevant to any social importance that had been claimed. The Court then noted that because the advertising emphasis was on the sexually provocative aspects of the publications, that by itself may be decisive in the determination of obscenity.

Justice Black dissented, this time with a measure of frustration in his tone; he wrote that Ralph Ginzburg “is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal,” only because of some murky combination of surrounding circumstances which the Court, that day, found to be determinative. He also noted his agreement with Justice Harlan’s dissent to the effect that the Court had in effect rewritten the federal obscenity statute and imposed standards and criteria that Congress had never contemplated; consequently, Ralph Ginzburg’s conviction and sentence were affirmed on the basis of a statute that was effectively amended by the Court after the trial and conviction, which is to say, for an offense that had never been charged. He added that the guidelines pronounced by the majority regarding “titillation” in advertising were “so vague and meaningless that they practically leave the fate of a person charged with violating censorship statutes to the unbridled discretion, whim and caprice of the judge or jury which tries him.”

He then addressed his own criticism of Roth. As to the requirement that the dominant theme of the material appeal to the prurient interest in sex, he wrote that “human beings, serving either as judges or jurors, could not be expected to give any sort of decision on this element which would even remotely promise any kind of uniformity in the enforcement of this law.” As to the requirement that material be patently offense and an affront to contemporary community standards, he wrote that the Court’s jurisprudence contains no definition of “community” or any indication as to who is capable of assessing community standards on such a subject. As to the requirement that obscene matter be utterly without redeeming social value, he wrote that this element (adopted by three justices) is also “a question upon which no uniform agreement could possibly be reached among politicians, statesmen, professors, philosophers, scientists, religious groups or any other type of group.” Driving home his view that obscenity statutes do not put anyone on notice as to the dividing line between legal and illegal, he added that even “after the fourteen separate opinions handed down in these three cases today no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of obscenity as that term is confused by the Court today.”

Justice Douglas also filed a dissent, which he made applicable to the companion case of Mishkin v. New York as well. He wrote that the Court’s condemnation of the use of sex symbols to sell literature was illogical. He was troubled by the Court’s premise that Ralph Ginzburg’s criminal conviction can rest on his representations that the publications would be sexually arousing. After all, the Court had recognized in Roth that sex and obscenity are not synonymous and that obscenity requires a treatment of sex that appeals to the prurient, shameful or morbid interest in sex. Relating that a medical doctor and a pastor had testified at trial that one of the publications (supporting a count of conviction) had clinical value in the area of marriage counseling, Justice Douglas wondered that if such testimony does not negate a finding that something is utterly without social value, then it would appear that “experts are to be weighed in the censor’s scales, in which event one Anthony Comstock would too often prove more weighty than a dozen more detached scholars, or unless we, the ultimate Board of Censors, are to lay down standards for review that give the censor the benefit of the ‘any evidence’ rule or the ‘substantial evidence’ rule as in the administrative law field . . . [o]r perhaps we mean to let the courts sift and choose among conflicting versions of the ‘redeeming social importance’ of a particular book . . .” He then asked a series of difficult rhetorical questions: “Does the term ‘social value’ necessarily mean that something is valuable to the majority? How can something be said to be utterly without redeeming social importance if there is even one person to whom it is important? How can we know enough to probe the mysteries of the collective subconscious of our people and say that this is good for them and that is not?”

Justice Harlan also filed a dissenting opinion. Noting that the federal statute’s background indicates that it is focused only on the character of the material in question, he reiterated his belief that the federal government is constitutionally restricted to banning from the mails only “hardcore pornography” and that the material in this case was not within that class. He also disagreed that, where in the past, in cases under the federal mailing ban, evidence of a defendant’s conduct was admissible only to show relevant intent, but now conduct, attitude and motive have suddenly become admissible on the primary question of whether the material itself is obscene. He was unable to see how these surrounding circumstances would be logically related to the obscenity of the work.

Justice Stewart also dissented and began by noting the absurdity of the fact that Ralph Ginzburg would serve five years in prison for mailing copies of a magazine, a pamphlet, and a book. Although there was testimony at trial that they possessed artistic and social merit, Justice Stewart disagreed and found them “vulgar and unedifying”; but he nevertheless wrote that “if the First Amendment means anything, it means that a man cannot be sent to prison merely for distributing publications which offend a judge’s esthetic sensibilities, mine or any other’s.” He wrote that censorship “reflects a society’s lack of confidence in itself” and “is a hallmark of an authoritarian regime”; thus, “those who wrote our First Amendment . . . put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand . . . protect[ing] coarse expression as well as refined, and vulgarity no less than elegance.” Shedding some light on what he had referred to in the past as “hardcore pornography”; he ventured to describe it as materials “having no pretense of artistic value, and graphically depicting acts of sexual intercourse, sodomy, sadism, or scenes of an orgy-like character.” He also agreed that it was wrong for the Court to sustain Ralph Ginzburg’s conviction for mailing “obscene” materials that the Court conceded were not obscene, on grounds that he was guilty of “pandering” or “titillation” – two activities that had neither been charged in the case, nor even prohibited by any federal law.

Mishkin’s Sado-Masochistic Books

The same day that Ralph Ginzburg’s federal “titillation” conviction and sentence was cemented as final and Fanny Hill narrowly escaped the flaming inferno of Massachusetts’ furnaces, the Court also decided Mishkin v. New York, 383 U.S. 502, 503-512 (1966). Edward Mishkin had been convicted under a New York law for hiring others to prepare obscene books, for publishing obscene books, and for possessing obscene books with the intent to sell them. He had been sentenced to serve three years in prison and to pay $12,000 in fines. Delivering the opinion of the Court, Justice Brennan wrote that Edward Mishkin had not been prosecuted for anything he said or believed, but for what he did, for producing and selling obscene books portraying sexuality in many guises: “[s]ome [of which] depict relatively normal heterosexual relations, but more depict such deviations as sado-masochism, fetishism, and homosexuality.”

Mishkin had challenged the New York law on its face, contending that it exceeded First Amendment limitations by expressly prohibiting sadistic or masochistic materials, he also argued that those terms, as well as the term “obscene,” were impermissibly vague. The New York courts having held that the terms “sadistic” and “masochistic,” were synonymous with “obscene,” Justice Brennan wrote that the contention that “obscene” was impermissibly vague failed under Roth, and particularly so in light of the fact that the definition of “obscene” adopted by the New York courts concerned a narrower class of material – defining it as: “sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification, it is to be differentiated from the bawdy and the ribald, depicting dirt for dirt’s sake, the vile rather than the coarse, a blow to the senses not merely to sensibility, and is applicable only to material which may properly be termed hard-core pornography.”

Mishkin also challenged the New York law as applied to his case, arguing that some of his books, those depicting sexual practices such as flagellation, fetishism, and lesbianism, did not satisfy the prurient-appeal requirement as to the “average person”; he had argued that rather than stimulate their erotic interests, those materials tend to disgust and sicken the average person. The Court rejected the argument as “an unrealistic interpretation of the prurient appeal requirement . . . [because for] material [that] is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.” (Emphasis supplied). Justice Brennan then wrote that in this regard, the Court herewith “adjust[ed] the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group . . .” And, so, Edward Mishkin’s convictions were affirmed under the Roth, a “standard” which appeared to be continuously taking shape and evolving.

As mentioned, Justice Douglas incorporated Mishkin into his dissenting opinion in Ginzburg. Justice Harlan wrote separately to note that he concurred in the Court’s judgment, but only because of the reasoning expressed in his dissenting opinion in Memiors. Justice Black dissented and noted that, on the same grounds as expressed in his dissenting opinion in Ginzburg, he disagreed with any judgment affirming Mishkin’s convictions, adding that he had not read the publications in this case or in Ginzburg because of his belief that the Court has no power to censor speech or press no matter what subject is being discussed; thus, he wrote “once more to express [] objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight . . . what pornography (whatever that means) is too hard core for people to see or read.” Justice Stewart also dissented to note that he believed that Mishkin’s convictions for publishing “tawdry” materials that did not constitute “hard-core pornography.” He also wrote that the New York courts’ interpretation of its obscenity law as covering only what it called “hard-core pornography,” made it clear that in New York, the phrase had not been limited to “the clearly identifiable and distinct” sorts of material he described in his dissenting opinion Ginzburg.

Shame Agent

The following term, the Court decided three consolidated cases styled collectively as, Redrup v. New York. 386 U.S. 767, 768-771 (1967). The three cases were: Redrup v. New York, where Robert Redrup, a newsstand clerk in Times Square, was convicted for selling copies of Lust Pool and Shame Agent, two allegedly obscene paperback books, to a policeman; Austin v. Kennedy, where an owner of a retail bookstore and newsstand in Paducah, Kentucky, was convicted for selling copies of High Heels and Spree, two allegedly obscene magazines; and Gent v. Arkansas, where the Arkansas Supreme Court had affirmed the entry of judgment in a civil proceeding declaring certain issues of various magazines to be obscene – the magazines in question were entitled Gent, Swank, Bachelor, Modern Man, Cavalcade, Gentleman, Ace, and Sir.

In a per curiam opinion, the Court reversed all three judgments. It was noted, as was done in Justice Stewart’s dissent in Ginzburg, that none of these cases involved a statute reflecting any concern for exposure to juveniles; nor were any of the cases concerned with any unwilling individuals unable to avoid exposure; nor was there any evidence of “pandering” or “titillation” such as was found by the three-judge plurality to be so significant in Ginzburg. The Court concluded that all of the materials in each of these three cases were protected by the First and Fourteenth Amendments from governmental suppression, “whether criminal or civil, in personam or in rem.” Stating that because Justices Black and Douglas have adhered to the view that government is utterly without power to suppress, control, or punish the distribution through any medium of expression on the ground of obscenity; and since Justice Stewart was of the opinion that a state’s power is limited banning “hard-core pornography”; and since other justices have subscribed to the Roth standard, as it was couched in Jackobellis – the per curiam opinion noted that “[w]hichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.”

Justice Harlan, joined by Justice Clark, dissented, noting that two of these cases, Redrup v. New York, and Austin v. Kentucky, were accepted by the Court to consider the standards governing the application of the scienter requirement announced in Smith v. California; but that neither in briefing nor at oral argument was the obscenity of these publications explored. Perhaps reflecting the Court’s growing fatigue with these cases, Justice Harlan pointed out that the Court disposed of these cases on an issue that was deliberately excluded from review, while refusing to decide the question that brought the cases to it. Thus, the dissenting justices cast their votes for dismissal of the writs in Redrup and Austin as improvidently granted and, for the dismissal of Gent for lack of a substantial federal question.

In the face of this dizzying divergence of opinion, as well as owing to the ever increasing number of obscenity cases landing on the Court’s doorstep in the late 1960s, the Court began issuing per curiam reversals of judgments in obscenity cases if at least five members of the Court, applying their own separate tests and standards, decided that the materials involved were not obscene. Between 1967 and 1971, the Court disposed of no fewer than 31 cases in this manner. Of course, not all cases that came to the Court between 1967 and 1971 fell into that category.

An Undercover Book Buy

The following year, the Court issued its decision in Ginsberg v. New York, 390 U.S. 629, 631-645 (1968), a single case which culminated in five separate opinions. Sam Ginsberg and his wife operated a store in Bellmore, Long Island; and in October of 1965, he sold two nudist magazines to a 16-year-old boy in violation of a state law prohibiting the selling of any material to anyone under the age of 17 which “depicts nudity . . . and which is harmful to minors.” The boy had been enlisted by his mother to go and purchase the magazines, and thereafter, she reported the purchases to the authorities. Sam Ginsberg was then convicted after a bench trial, and the conviction was affirmed on appeal. Justice Brennan delivered the opinion of the Court and noted that Ginsberg’s claim was focused on the New York legislature’s power – or lack thereof as Ginsberg argued – to employ an age-variable conception of obscenity. Ginsberg argued that the scope of the First Amendment’s freedom to read or see material concerned with sex cannot be made dependent on adulthood; and that the denial to minors under 17 of access to material not obscene for persons 17 years of age or older constitutes an unconstitutional deprivation of protected liberty. The Court disagreed. Justice Brennan wrote that “we have recognized that, even where there is an invasion of protected freedoms, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” The only limit was reasonableness, and in order “[t]o sustain state power to exclude material defined as obscenity . . . [reasonableness] requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors . . . [which] . . . cannot be said by us of minors’ reading and seeing sex material.”

Justice Stewart concurred and wrote that a “doctrinaire, knee-jerk application of the First Amendment would, of course dictate the nullification of this New York statute” but that such a result is not required if as long as “we bear in mind what it is that the First Amendment protects.” He noted that the First Amendment secures the people’s freedom to write and publish what they want as much as it secures their right to decide what they will read. The result is a “society of free choice” but that “presupposes the capacity of its members to choose.” Accordingly, he believed that New York was within its rights to decide that persons under the age of 17 are “not possessed of that full capacity for individual choice that is the presupposition of First Amendment guarantees.” Justice Harlan filed a separate opinion concurring in Ginsberg, but dissenting in Interstate Circuit, Inc. v. City of Dallas, which was decided the same day.

Justice Douglas, joined by Justice Black, dissented and wrote that the scope of the First Amendment addresses any law abridging the freedom of speech or of the press. He added that the “juvenile delinquents” he has known are mostly over 50 years of age; and “[i]f rationality is the measure of the validity of this law, then I can see how modern Anthony Comstocks could make out a case for “protecting” many groups in our society, not merely children.” He wrote that while he found the literature and movies which come before the Court in this context to be dull, he understood how some think that something should be done about pornography. However, he remained unflinching in his view that the First Amendment was “designed to keep the state and the hands of all state officials off the printing presses of America and off the distribution systems for all printed literature. Anthony Comstock wanted it the other way; he indeed put the police and prosecutor in the middle of this publishing business.” He concluded by sniping at his colleagues: “[t]oday, this Court sits as the Nation’s board of censors. With all respect, I do not know of any group in the country less qualified, first, to know what obscenity is when they see it, and second, to have any considered judgment as to what the deleterious or beneficial impact of a particular publication may be on minds either young or old.”

Justice Fortas also dissented to note that this was a criminal case and took exception to the fact that the Court had avoided the problem posed by the notion that the magazines involved were “obscene” when viewed by a 16-year-old boy, but not “obscene” when viewed by someone who is 17 years old. He wrote that if the statute was focused on punishing “pushers or panderers of vulgar literature, I would not be so concerned by the Court’s failure to circumscribe state power by defining its limits in terms of the meaning of ‘[variable] obscenity’ in this field.” But he pointed out that Sam Ginsberg was “prosecuted for the sale of magazines which he had a right under the decisions of this Court to offer for sale, and he . . . [was] prosecuted without proof of “fault” – without even a claim that he deliberately, calculatedly sought to induce children to buy ‘obscene’ material. Bookselling should not be a hazardous profession.”

Viva Maria!

Decided that same day, Interstate Circuit v. City of Dallas, 390 U.S. 676, 678-691 (1968), presented the Court with an opportunity to watch another Louis Malle film together, this time it was the 1965 comedy-adventure film Viva Maria. The same year that Viva Maria was released, a city ordinance had been adopted in Dallas that established a Motion Picture Classification Board which was responsible for classifying films as either suitable or unsuitable for children under 16. Showing films that had been deemed unsuitable required a special license. The ordinance also required films to be submitted prior to exhibition; and it was enforced under misdemeanor penalty as part of the state criminal code. The unsuitable classification was defined as consisting of portrayals of violence that the Board thought likely to encourage crime or delinquency; it also included portrayals or descriptions of nudity “beyond the customary limits of candor” that the Board thought likely to encourage “delinquency or sexual promiscuity.” Viva Maria had been classified as “not suitable for young persons,” a county court had upheld that determination and had enjoined the exhibition of the film unless the distributor and exhibitor met the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed the county court’s decision, and the Supreme Court accepted the case to review a claim that the Dallas ordinance was unconstitutionally vague.

Justice Marshall delivered the opinion of the Court and wrote, “[t]he vice of vagueness is particularly pronounced where expression is sought to be subjected to licensing . . . [and] [t]he First Amendment interests here are, therefore, broader than merely those of the film maker, distributor, and exhibitor, and certainly broader than those of youths under 16.” He noted how the dangers of vagueness were “strikingly illustrated” by the fact that only five members of the Board viewed Viva Maria, but that somehow eight members voted to classify it as “not suitable for young persons,” while giving no reasons for their determination. As to the ensuing proceedings in the county court, the trial judge, after viewing the film and hearing argument, stated that it appeared to him to be unsuitable for young people, so he enjoined its exhibition. On appeal, the Texas Court of Civil Appeals held, alternatively, that federal obscenity jurisprudence was not applicable because this legislation involved classification rather than suppression, and, in any event, that if obscenity standards were applicable, then Viva Maria was obscene.

The Supreme Court found that the ordinance left too many key terms such as “sexual promiscuity” undefined. Also, because the ordinance had committed to the judgment of the Board any determination that something may create an impression that certain conduct is “profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted”; the Court concluded that the ordinance had the effect of granting the Board unlimited discretion. Conceding that while states can regulate the dissemination of objectionable materials to juveniles, the Court concluded that such regulations must still comport with due process, and the Dallas city ordinance was unconstitutional because it failed to provide narrowly drawn and definite standards for city officials to follow.

Justice Douglas, joined by Justice Black, concurred, but on the grounds expressed in his dissenting opinion in Ginsberg v. New York. Justice Harlan filed his own opinion, concurring in Ginsberg v. New York, and dissenting in Interstate Circuit. Given his uniquely-held view that the states should be given wider constitutional latitude in the treatment and handling of the First Amendment – Justice Harlan cast his vote to affirm Sam Ginsberg’s conviction for selling a nudist magazine to a 16-year-old boy, as well as for affirming the judgment of the Texas Court of Civil Appeals in sustaining the Dallas city ordinance that resulted in an injunction against showing Viva Maria. He also took issue with the Court’s vagueness analysis, noting that the Court struck down the Dallas city ordinance because it fails to define “sexual promiscuity” with any precision, and also because the ordinance gave the Board unfettered discretion; meanwhile, he aptly pointed out that the Court’s own definition of “obscenity” left no shortage of room for reasonable people to disagree as to whether or not any given thing that had come before the Court in recent times was, in fact, obscene. He noted that the “truth is that the Court has demanded greater precision of language from the City of Dallas than the Court can itself give . . . ” He concluded by mentioning that the Court had avoided passing judgment on the substance of the “girlie” magazines involved in Ginsberg and of Viva Maria, adding that he “would hold that in condemning these materials New York and the City of Dallas have acted within constitutional limits.”

A Bridge Too Far

The following term, the Court decided Stanley v. Georgia. 394 U.S. 557, 558-568 (1969). Not unlike Roth, the Court would spend the next few years continuously explaining and limiting its decision in Stanley. With a federal search warrant in hand for the seizure of “wagering paraphernalia,” federal and state police officers entered and searched Robert Stanley’s home on Springside Drive in Atlanta, but they did not find any evidence of gambling – instead, while searching a desk drawer in a bedroom, police found three reels of 8mm film. Using a projector found elsewhere in the home, they made themselves comfortable and viewed the films. Nearly one hour later, when one of the state officers finally decided that the films were obscene, he seized the film reels and arrested Robert Stanley for violating Georgia’s 1963 law making it a felony to possess obscene material. Stanley was indicted and convicted in the Superior Court of Fulton County, and the conviction was affirmed by the Georgia Supreme Court. In the U.S. Supreme Court, he presented several arguments against the validity of the conviction, but because the Court agreed with him, it was only necessary to address one of his claims – namely, that Georgia’s obscenity statute, punishing mere private possession of obscene materials, violated the First and Fourteenth Amendments.

Conceding that its statute presented the Court a question of first impression, Georgia boldly argued that it had the right to criminalize private possession of obscene material by the same token that it can prohibit the possession of other things that are thought to be detrimental to the welfare of its citizens. Delivering the opinion of the Court, Justice Marshall drew the proverbial line in the sand, and it was drawn to place the private confines of the home outside the permissible realm of regulation as to what may be read or watched. He noted that since the Constitution protects the right to receive information and ideas, and that “a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home” implicates not just the rights guaranteed by the First Amendment, but also a right to be free “from unwanted governmental intrusions into one’s privacy.” He then quoted Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), to the effect that “‘[t]he makers of our Constitution . . . conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized man.’” He added that it is nothing more than this right that Robert Stanley asserts – the right to “read or observe what he pleases – the right to satisfy his intellectual and emotional needs in the privacy of his own home . . . he is [in essence] asserting the right to be free from state inquiry into the contents of his library.” Where Georgia had asserted its collective right to “protect” the minds of its citizens from the effects of obscenity – Justice Marshall wrote: “[w]e are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts.”

Justice Black filed a concurring opinion to make it clear that possession of reading matter or films cannot be made criminal anywhere, for the reasons set out in his many prior opinions such as Smith v. California, and Ginsburg v. United States. Justice Stewart, joined by Justices Brennan and White, also filed a concurring opinion to express the view that they were unable to “overlook the serious inroads upon the Fourth Amendment guarantees countenanced in this case by the Georgia courts.” Justice Stewart noted that Robert Stanley had complained before trial that the 8mm film reels had been viewed and seized in violation of the Fourth Amendment, a claim that was denied and the denial upheld in the Georgia Supreme Court. Justice Stewart found that the protection against unrestrained searches and generalized seizures – secured by the Fourth Amendment’s warrant clause – “was frustrated in the present case, I think, in a manner made the more pernicious by its very subtlety.” While state and federal agents were lawfully in Robert Stanley’s bedroom – under authority of a warrant to search for gambling materials – they exceeded the scope of that authority when they seized (and then viewed) the reels of 8mm film. Distinguishing it from ordinary contraband that might have been encountered in ‘plain view’ – he added that it was only after the congregation of police and federal agents spent nearly 1 hour viewing the films, using Stanley’s projection equipment at that, when they concluded that the material was illegal. Accordingly, he noted that the films should not have come in as evidence at trial and that the conviction was due to be reversed on that ground.

Thirty-Seven Pictures and a Book

In 1971, the Court issued its decisions in United States v. Thirty-Seven Photographs, 402 U.S. 363, 365-377 (1971), and United States v. Reidel, 402 U.S. 351-357 (1971); Justice White delivered the opinion of the Court in both cases. In Reidel, the Court considered whether 18 U.S.C. § 1461 (prohibiting the mailing of obscene materials) was constitutional as applied to the advertisement and commercial distribution, through the mail, of obscene materials to willing recipients who are adults. In 1970, Norman Reidel was engaged in the business of advertising and selling copies of his book, The True Facts about Imported Pornography, to adult customers. After a federal agent responded to his newspaper advertisement, Reidel sent him a copy, following which, a search of his business yielded two more copies that appeared to have been mailed and returned as undeliverable. He was indicted in the District Court for the Central District of California and charged with three counts of mailing obscene materials. Prior to trial, he moved to dismiss the indictment on grounds that the statute was unconstitutional, which the district judge granted upon finding that since Reidel had engaged in a constitutionally protected delivery to a consenting adult the statute was unconstitutional if applied to him. The government then took a direct appeal from the dismissal of its indictment to the Supreme Court under a version of the Criminal Appeals Act that was in effect at that time.

The court noted that Norman Reidel “has no complaints about governmental violations of his private thoughts or fantasies, but stands squarely on a claimed First Amendment right to do business in obscenity and [to] use the mails in the process.” Citing Roth, the Court held that the First Amendment poses no obstacle to the government refusing to allow the mails to be used to “do business in obscenity.” Justice White wrote that “[t]he District Court gave Stanley too wide a sweep . . . [and] . . . extrapolate[d] from Stanley‘s right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him [which] would effectively scuttle Roth, the precise result that the Stanley opinion abjured.”

Justice Harlan filed a concurring opinion in Reidel, 402 U.S. at 357-361. He wrote that he joined in the Court’s opinion to the extent that it stood for the proposition that the federal government can prevent the use of the mails for commercial distribution of materials “properly classifiable” as obscene – which, in his view, would be limited to hard-core pornography. He also thought it important to clarify that that the right “recognized in Stanley is not a right to the existence of modes of distribution of obscenity which the State could destroy without serious risk of infringing on the privacy of a man’s thoughts; rather, it is a right to a protective zone ensuring the freedom of a man’s inner life, be it rich or sordid.”

In United States v. Thirty-Seven Photographs, on his return journey to Los Angeles from a trip to Europe, Milton Luros brought home 37 photographs depicting scenes of sexual intercourse in his baggage that customs agents seized under the ban on importing obscene matter pursuant to the Tariff Act of 1930, 19 U.S.C. §1305(a). The government instituted forfeiture proceedings in federal court, seeking the destruction of the pictures, and Milton Luros responded, as a claimant, denying that they were obscene. Luros claimed that he (an illustrator at the time) intended to use them to help him illustrate an edition of The Kama Sutra of Vatsyayana, he also challenged the constitutionality of the importation ban on its face and as applied to his case. The district court agreed with Luros, declared the importation ban unconstitutional, and enjoined the government from enforcing it against those 37 photographs. The three-judge district court, constituted to determine the constitutionality of the statute – was of the view that the forfeiture procedures under the federal importation ban of obscene materials failed to comply with the procedural requirements set forth in Freedman v. Maryland, and also that under the Court’s decision in Stanley v. Georgia, the photographs were beyond the application of the importation ban.

A plurality opinion delivered by Justice White consisted of two parts, the first of which was joined by the Chief Justice and Justices Harlan, Brennan, Stewart, and Blackmun; the second part was joined only by the Chief Justice and Justices Brennan and Blackmun. In the first part, the Court agreed with Luros’s point that Freedman v. Maryland requires a prompt judicial determination as to obscenity in order to permit the imposition of a valid and final restraint on materials perceived as obscene. The Court also agreed that the federal provision, like the state forfeiture law that was struck down in Freedman, did not have any feature to guarantee prompt judicial determination as to seized materials believed by an officer to be obscene. However, the Court opted to save the federal statute by interpreting into it what was missing – the Court wrote: “[w]e accordingly see no reason for declining to specify the time limits . . . [and] . . . we construe § 1305(a) to require intervals of no more than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture, and no longer than 60 days from the filing of the action to final decision in the district court.” As it happened, the interval between the seizure of the 37 photographs and the instituting of judicial forfeiture proceedings was 13 days – which meant that not only would § 1305(a) survive, but that its application in this case was just prompt enough.

The second part of Justice White’s plurality opinion addressed the matter of the district court having agreed with Luros that because § 1305(a) banned the importation of obscene materials for private use related to the intended future commercial distribution of a derivative work, the statute was overly broad and unconstitutional. The plurality disagreed with this reading of Stanley and noted that it did not immunize importation of obscene materials. The Court concluded by adding that where Reidel holds that the government may prevent the mail from being used for distributing pornography, that simply because “the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce.”

As to the second part of Justice White’s plurality opinion, Justices Harlan and Stewart wrote separately. Justice Harlan was of the opinion that because Luros had stipulated that he imported the 37 photographs for commercial purposes, that he could not challenge the overbreadth of a statute by arguing that it also applied to importation for private use. Justice Stewart wrote to express his concern that “[t]he terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it. If the Government can constitutionally take the book away from him as he passes through customs, then I do not understand the meaning of Stanley v. Georgia.” In light of this, in retrospect, perhaps it wasn’t the best idea for Luros to offer evidence, or stipulate if that was the case, that he intended to use these photographs as an aid in illustrating a future edition of the Kama Sutra for sale.

Justice Marshall filed a separate opinion, dissenting in Thirty-Seven Photographs but concurring in Reidel. He wrote that while governments may take action to protect children and unwilling adults from unwanted exposure to materials deemed obscene, that “it is disingenuous to contend that [Robert] Stanley’s conviction was reversed because his home, rather than his person or luggage, was the locus of a search.” On this basis, he would have extended the holding of Stanley to all instances of private possession of purportedly obscene materials. As to Norman Reidel’s case, Justice Marshall’s primary concern was the safeguards that mail order distributors would have in place to prevent the danger that any obscene material might be sent to children. He noted that the only safeguard that Reidel’s operation employed was to ask customers to declare their age.

Justice Black, joined by Justice Douglas, dissented in both Thirty-Seven Photographs and Reidel. He wrote that “[i]n view of the difficulties with the Roth approach, it is not surprising that many recent decisions have at least implicitly suggested that it should be abandoned.” He lamented that the Court had needlessly tasked itself with “sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex,” adding that such an “absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment.” He also did not let it go without mention that he saw the Court’s action in Thirty-Seven Photographs as doubly problematic, writing that “statutes should be construed to uphold their constitutionality when this can be done without misusing the legislative history and substituting a new statute for the one that Congress has passed. But this rule of construction does not justify the plurality’s acting like a legislature or one of its committees and redrafting the statute in a manner not supported by the deliberations of Congress or by our previous decisions in censorship cases.” Perhaps he was foreshadowing the holding in a case that would be decided two years later when he noted that the Court’s failure to identify any meaningful difference between private possession of obscenity at home from importation by a private citizen in private luggage; he envisioned Stanley being “recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room.”

Quoting his own dissenting opinion in Dennis v. United States, 341 U.S. 494, 571 (1951), on what would be the last such occasion, Justice Black then urged the present and future members of the Court to see the First Amendment as he saw it – he wrote: “[i]n any society, there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, ‘that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.’” A few months later, after 34 years of judicial service, the steadfast proponent of free speech would be laid to rest in Arlington National Cemetery beneath a simple headstone and a marble bench inscribed with but five words, “Here Lies a Good Man.”

Miller Time

If Justices Black and Douglas wanted the Court to revisit “the Roth approach” they got more than they bargained for when two years later the Court issued its decision in the landmark case of Miller v. California, and through which the Roth test was in fact reformulated, but the effect of the reformulation would be not so much to circumscribe but rather to broaden the definition of obscenity. Approaching its record of March 21, 1966, when 14 separate opinions were filed in the three obscenity cases, on June 21, 1973, the Court issued its decisions five obscenity cases, producing 15 separate opinions. The cases were Miller v. California, 413 U.S. 15, 16-37 (1973), Paris Adult Theatre I v. Slaton, 413 U.S. 49, 50-70 (1973), Kaplan v. California, 413 U.S. 115, 116-122 (1973), United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 124-130 (1973), and United States v. Orito, 413 U.S. 139, 140-145 (1973). Chief Justice Burger delivered the opinion of the Court in every case.

In Miller, the Court began by relating that these obscenity cases were being reviewed “in a reexamination of standards enunciated in earlier cases . . .” In 1971, right around the time that the Court was discussing willing as opposed to unwilling exposure to obscene materials in Reidel and Thirty-Seven Photographs, Marvin Miller, who operated an adult bookstore in Orange County, California, decided it would be a good idea to indiscriminately mail out a brochure that advertised four books and a film – the brochure graphically depicted sexual activity. The books advertised in Miller’s brochure were entitled Intercourse, Man-Woman, Sex Orgies Illustrated, and The Illustrated History of Pornography; and the film was entitled Marital Intercourse. No fewer than five copies of the brochures were received by a nearby restaurant whose management complained to police. Miller was promptly arrested and charged with violating a California anti-obscenity law which had been specifically written based on the teachings of Memoirs v. Massachusetts and Roth v. United States. He was tried and convicted and the conviction was affirmed by the California courts.

Chief Justice Berger began by noting that this was a case “in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients”; and that criminal penalties can be used to preserve a state’s legitimate interest in abating such a nuisance “when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” As to the reexamination of the Roth standard, the Court noted that it could overlook most of “the somewhat tortured history of the Court’s obscenity decisions” and focus mainly on Roth and Memoirs. While Roth had maintained that “obscenity is not within the area of constitutionally protected speech or press,” it had also proclaimed that “[a]ll ideas having even the slightest redeeming social importance” were entitled to First Amendment protection. The Chief Justice then wrote that in Memoirs – through a plurality opinion with only three justices – the Court modified the Roth test by adding an element to the effect that to qualify as obscene, the challenged material must be shown to be utterly without socially redeeming value. In other words, the Chief Justice complained that dictum was taken from Roth and made into a separate constitutional test involving a different and difficult-to-meet burden of proof through a plurality opinion in Memoirs. He wrote that “[w]hile Roth presumed “obscenity” to be “utterly without redeeming social importance,” Memoirs required that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” He wrote that this modification of the Roth test had required prosecutors to prove a negative, “a burden virtually impossible to discharge under our criminal standards of proof.”

Noting the dangers of permitting the regulation of any form of expression, the Court announced the new, and still-applicable, rule: “we now confine the permissible scope of such regulation to works which depict or describe sexual conduct . . . [that is] . . . specifically defined by the applicable state law . . . [and] . . . limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Of course, the Court did not venture to describe how one might uniformly, fairly, and objectively distinguish serious value from unserious value. In any event, going forward, prosecutors in criminal cases would now only have to convince jurors that a work lacked serious value – whatever that meant. The Chief Justice added that “today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment.” The Court vacated the order of the Appellate Department of the Orange County Superior Court which had affirmed Miller’s conviction, remanding the case for “further proceedings not inconsistent with the First Amendment standards established by this opinion.” Justice Brennan, joined by Justices Stewart and Marshall, filed a dissenting opinion and wrote that it was unnecessary to pass on the permissibility of states regulating the type of indiscriminate mass-mailing that was caused by Marvin Miller because California’s definition of obscenity was so overly broad as to be facially invalid.

Justice Douglas also dissented to note that, “[t]oday we leave open the way for California to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today’s decision were never part of any law.” After recounting the various evolutions of the numerous tests that the Court had fashioned to gauge obscenity in Roth, Jacobellis, Memoirs, Ginzburg, and Ginsberg, as well as the latest modification in Miller, Justice Douglas asked: “Yet how under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?” He added: “[i]f a constitutional amendment authorized censorship . . . [t]hen criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature . . . Under that regime, a publisher would know when he was on dangerous ground. Under the present regime – whether the old standards or the new ones are used – the criminal law becomes a trap.” Returning to the philosophy of the First Amendment, he wrote that its purpose was to cause dispute and dissatisfaction with the way things are, to cause unrest, even anger; and that it left no room for government to punish ideas that are found offensive to the judge or jury sitting in judgment. When the First Amendment is viewed in this light, Justice Douglas noted, “[n]o greater leveler of speech or literature has ever been designed.”

Paris Adult Theatres

The saga of Paris Adult Theatre I v. Slaton, 413 U.S. at 50-70, began a few months before Marvin Miller unleashed his ill-conceived advertising campaign. On December 28, 1970, two Fulton County criminal investigators walked into the Paris Adult Theatres on Peachtree Street in Atlanta, and having purchased tickets, they viewed each of two films that were playing. Following this, Georgia authorities filed civil complaints alleging that the theaters were showing obscene films that were “hard core pornography” – the civil action sought a declaration that the films were obscene and asked the court to enjoin their further exhibition. At the jury-waived trial there was no indication that minors had ever entered the theaters, it was also established that there was a sign saying: “Adult Theatre – You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.” On this basis, the Fulton County trial court found that public exhibition of these films, arguably obscene films, but under circumstances attended with measures to prevent exposure by unwilling adults or minors was “constitutionally permissible.” On appeal, the Georgia Supreme Court reversed that decision and held that “the commercial distribution of pornography” was not a protected activity and that an injunction should have issued because the films were in fact obscene.

Delivering the opinion of the Court, the Chief Justice wrote: “Today, in Miller v. California [] we have sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller.” The Court then “categorically” repudiated any view that “pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.” Noting the “legitimate state interests” that sometimes override an individual’s right to free speech – such as: “the interest of the public in the quality of life and the total community environment,” “the tone of commerce in the great city centers,” and “possibly the public safety itself” – the Court vacated the Georgia Supreme Court’s judgment (that the films in question were obscene) and remanded the case so that the state courts could re-render their determinations under the just-formulated Miller standard.

Justice Brennan, joined by Justices Stewart and Marshall, dissented. Justice Brennan – and seemingly Justice Stewart as well – took to the adoption of a new view and stated that “the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment . . .” After recounting a history of the Court’s obscenity jurisprudence, Justice Brennan noted that the vagueness of each and every one of the Court’s definitions of obscenity has not only failed to give fair notice to the public, while also chilling the right to express protected speech, but that this level of disharmony in the law has also caused institutional stress to the courts. This stress, he added, was the “result of our failure to define standards with predictable application to any given piece of material, [and that] there is no probability of regularity in obscenity decisions by state and lower federal courts.” He argued that the Miller test not only fails to resolve the issues that compelled the Court’s abandonment of the Roth test, but that it contributes “substantial difficulties of its own.” Then, addressing the Court’s reformulation, he wrote that the test established in Miller “necessarily assumes that some works will be deemed obscene – even though they clearly have some social value – because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently “serious” to warrant constitutional protection” which he viewed as “an invitation to widespread suppression of sexually oriented speech.”

Justice Douglas also dissented and began by commending Justices Brennan and Stewart “for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application.” He noted, as he had done steadfastly since 1957, that “I never supposed that government was permitted to sit in judgment on one’s tastes or belief … our society – unlike most in the world – presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas … That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world.”

The Peek-A-Boo Bookstore

The third case decided that day, Kaplan v. California, 413 U.S. at 116-122, concerned Murray Kaplan’s Los Angeles based business, the Peek-A-Boo Bookstore – one of approximately 250 adult bookstores existing in the city at that time. In 1969, an undercover police officer purchased a book entitled Suite 69; and, on that basis, Murray Kaplan was charged with a misdemeanor for violating California’s ban on the sale or distribution of obscene material. The California statute defined obscenity according to the Roth and Memoirs formulation and required a finding that the material be “utterly” lacking in value. Notwithstanding Justice Berger’s concern (expressed that day in Miller) that the Roth-Memoirs test’s “utterly without redeeming social value” modification required prosecutors to prove a negative, “a burden virtually impossible to discharge under our criminal standards of proof” – Murray Kaplan was nevertheless convicted following a jury trial where the book itself, as well as prosecution and defense testimony about the book, were admitted into evidence. The prosecution had not offered – other than presenting the book itself – any qualified witness to testify that the book was “utterly” without socially redeeming value. In affirming the conviction, the California appeals court held that an obscenity conviction does not require that the government always present an expert witness to proclaim something is “utterly” without social merit, and that the nature of the book and circumstances of its sale provided an ample basis to support the conviction.

Delivering the Court’s opinion, the Chief Justice wrote that Suite 69 “is made up entirely of repetitive descriptions of physical, sexual conduct, ‘clinically’ explicit and offensive to the point of being nauseous . . . every conceivable variety of sexual contact, homosexual and heterosexual, is described.” He then related that not only had Suite 69 been received in evidence, but that it had been read to the jury in its entirety (which means that it was either a very short book, or a rather long trial). While agreeing with the California courts that the book was legally obscene, the Court first rendered a holding which has become synonymous with the case name Kaplan v. California: that words alone can be legally obscene. The Kaplan Court then reaffirmed the notion that states may regulate the “commercial exposure and sale” of obscene materials even between consenting adults, while also holding that “contemporary community standards” refers to local and not national standards – which was an effective repudiation of Justice Brennan’s plurality holding in Jacobellis which had explained that the Roth test, as was then applied to the Louis Malle film Les Amants, implied a determination using national, not local, community standards because “[i]t is, after all, a national Constitution we are expounding.” In its place, Chief Justice Berger’s opinion in Kaplan resurrected the dissenting opinion of Chief Justice Warren, which had been joined by Justice Clark, in Jacobellis, to the effect that the relevant “community should refer to a local, and not national, community standard – and that it is of no import that a book may be banned in one city and not in another.” The Court also held in Kaplan that prosecutors do not need to retain expert witnesses or offer any other evidence of obscenity once the material itself is placed in evidence. The Court then vacated Murray Kaplan’s conviction and remanded the case for further proceedings consistent with the Miller standard – which, as Justice Douglas noted in his dissent in Miller was a standard that did not exist at the time that Murray Kaplan sold the book in question.

Justice Douglas filed a dissenting opinion, noting that he would have vacated the conviction and remanded the case for dismissal of the criminal complaint on grounds that “obscenity” as defined by the Supreme Court and the California courts is too vague to satisfy the requirements of due process. Justice Brennan, again joined by Justices Stewart and Marshall, dissented based on the views expressed in his dissenting opinion in Paris Adult Theatre I (namely, that obscenity laws are invalid if their application is not limited to avoiding exposure by minors or unwilling adults).

Twelve Reels of Film

The fourth case decided that day answered questions that were left unanswered by Stanley v. Georgia and Thirty-Seven Photographs. That is, if Stanley stood for the proposition that the people have an unqualified privacy right to possess obscene materials in their homes, and Thirty-Seven Photographs stood for the proposition that the federal government can ban people from bringing obscene materials into the country for “commercial use” – it was an open question as to how the federal importation ban would have been interpreted if Milton Luros’s 37 photographs had been in his luggage for his personal enjoyment at home rather than to aid his future illustration of a forthcoming book which would be offered for sale. The case styled as United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 124-130 (1973), arose when on April 2, 1970, customs officers at the Los Angeles Airport seized 12 movie reels, a number of photographs and slides, and other printed material from Ariel Paladini shortly after he arrived on a return flight from Mexico. The government once again sought to subject the seized items to civil forfeiture proceedings and filed a complaint in federal court in Los Angeles. However, since Thirty-Seven Photographs had originated in the same district (and had not yet been reversed by the Supreme Court), relying on that decision, the district court dismissed the government’s complaint, from which an appeal was taken.

Delivering the opinion of the Court, the Chief Justice began by noting that the narrow issue presented was whether the federal government could ban the importation of obscene material if it is imported solely for the importer’s private possession. As a claimant, Ariel Paladini had argued that if Stanley v. Georgia gave him the right to possess and view obscene material at home, then surely, he had a correlative right to secure such materials abroad and to transport them to his home. The Court disagreed and noted that there are no rights that are correlative to those described in Stanley. The line, that for the sake of privacy was drawn around private homes, creating a safe harbor for obscene materials possessed there for private use, would not be extended one inch. The Court vacated the district court’s dismissal of the government’s forfeiture complaint and remanded the case for further proceedings under the standards established in the cases decided that day. Justice Brennan, joined again by Justices Stewart and Marshall, filed a dissenting opinion to note that he would affirm the judgment of the district court for the reasons stated in his dissenting opinion in Paris Adult Theatre I – namely, because of his view that the statute was overly broad when construed to bar allegedly obscene materials beyond distribution to minors or to prevent exposure by unwilling adults.

Justice Douglas dissented to again express the view, as he had done since joining Justice Black’s dissenting opinion in Beauharnais more than 20 years earlier in1952, that it was not possible to constitutionally make books, pictures, films or any other such material into contraband because of their contents. He saw irony in the fact that “many pages must be written and many hours spent to explain why a person who can read whatever he desires [at home] [] may not without violating a law carry that literature in his briefcase or bring it home from abroad.” He rhetorically asked by what right can five justices impose their own values on people’s literary tastes. He concluded by warning that “[t]here is danger in that course, the danger of bending the popular mind to new norms of conformity”; but he added that there is “also danger in tolerance, for tolerance often leads to robust or even ribald productions. Yet that is part of the risk of the First Amendment.”

What Happens in San Francisco Stays in San Francisco

The fifth obscenity case decided that day was United States v. Orito, 413 U.S. 140-145 (1973). In 1970, George Orito was charged with violating the federal ban on transporting obscene material “in interstate commerce” by taking 83 reels of film home on a TWA flight from San Francisco to Milwaukee. Before trial, he filed a motion to dismiss the indictment on grounds that it violated his First and Ninth Amendment rights. The district court agreed and dismissed the indictment on the rationale that if one had a right under Stanley to possess obscene material at home in Milwaukee, then one had a right to transport them home from San Francisco by way of “nonpublic transportation which the statute at bar proscribes.” In light of this, the federal ban on transporting obscene matters was declared unconstitutionally broad because of its failure to distinguish between public and non-public transportation of “obscene” or “filthy” material. Delivering the Court’s opinion, the Chief Justice wrote that the Court repudiates any notion that Stanley’s announcement of a privacy right to legally possess obscene materials at home gives rise to any ancillary right to receive, transport, or distribute such materials. The Court vacated the district court’s order dismissing the government’s indictment and remanded the case for further proceedings with a reminder that “[t]oday . . . we have arrived at standards accepted by a majority of this Court for distinguishing obscene material, unprotected by the First Amendment, from protected speech.”

Justice Brennan, again joined by Justices Stewart and Marshall, dissented based on the views expressed that day in his dissent in Paris Adult Theatre I v. Slaton. Justice Douglas filed his customary dissenting opinion and wrote that Stanley was premised on two notions: that whatever justifications exist for obscenity laws, they do not reach into private homes; and, that (quoting from Stanley): “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” Adding that if under Stanley’s holding, government has no business telling people what books they may read – regardless of whether they are read at home, or on an airline, bus, or train – Justice Douglas wrote, “[t]he conclusion is too obvious for argument.”

It was over, at least for the moment. After more than two decades of back and forth, a majority of the Court agreed on a single “standard” (if it can be called that) to define obscenity, and the doctrine of obscene libel had survived the 1960s battered and bruised, but intact. Although strident disagreement on this subject continued among the members of the Court, the number of obscenity cases would decline, and society’s appetite for the enforcement of obscenity laws would wane. The fact that the obscene libel persists to this day in American law serves as a monument to the continuing struggle to reconcile the First Amendment with the undeniable fact that Christianity has always been – as Blackstone said – part of the law. However, that is not a fact fixed in stone. Two years before Miller, in 1971, Congress was persuaded that contraception no longer constituted an evil comparable to abortion, gambling lotteries, and obscene literature, and through the Act of January 8, 1971, Congress amended 18 U.S.C. §§ 1461 and 1462 to repeal the federal prohibition as to transportation or mailing of materials relating to the prevention of conception. In that same vein, given that blasphemy, heresy, apostasy, adultery, and certain lotteries are not so uniformly viewed through that lens anymore, perhaps one day the obscene libel too may fall by the wayside.

Of course, the doctrine of obscene libel hasn’t faded away just yet. As sexually oriented material continues to proliferate, and as newer waves of the sexual revolution ripple through the fabric of society, new Anthony Comstocks and Charles Keatings will pop up and, like their predecessors, they will anoint themselves as supervisors of the morality of the public. In Miller, the Supreme Court refined its conception of the government’s power to regulate obscenity as limited: “to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” However, as recently as May 8, 2025, Senator Mike Lee of Utah and Representative Mary Miller of Illinois introduced a bill entitled: Interstate Obscenity Definition Act. Through this bill, Senator Lee and Representative Miller seek to legislatively rewrite the Miller obscenity test as applicable to any work: (1) that appeals to the prurient interest in not only sex, but also nudity and excretion; (2) which depicts, describes, or represents sex or “lewd exhibition of the genitals, with the objective intent to arouse, titillate, or gratify the sexual desires of a person”; and, which taken as a whole, lacks serious literary, artistic, political, or scientific value.

Their bill seeks to change the Miller formulation in two significant ways. The first prong of the three-part text would now no longer be limited to gauging the prurient interest in sex but would be expanded to also include mere nudity. The second prong would replace Miller’s patent offensiveness approach with any representation of sex or “lewd” exhibition of the genitals undertaken with the objective intent to arouse, titillate, or gratify the sexual desires of a person (without specifying if the person intended to be gratified would be the viewer, the one depicted, or the one who caused the depiction to be viewed). These modifications clearly seek to realign the Miller test more closely with the 1860s standard derived from Chief Justice Cockburn’s opinion in Regina v. Hicklin, which defined obscene material as such that would have the tendency to deprave and corrupt those whose minds are open to such immoral influences, and to suggest to them, “thoughts of the most impure and libidinous character.”