Adults can't be limited to material fit for children
Butler v. State of Michigan
352 U.S. 380 (1957)
In this case, the Court rejected the principle that adult material must be
restricted because it might harm minors. Striking down a Michigan statute
outlawing printed material that contained obscene language "tending to the
corruption of the morals of youth," Justice Felix Frankfurter noted that the sweep of
the restriction was far too broad: "The State insists that, by thus
quarantining the general reading public against books not too rugged for grown
men and women in order to shield juvenile innocence, it is exercising its power
to promote the general welfare. Surely, this is to burn the house to roast the
pig."
Justice Frankfurter held that the law violated the due process clause of the
14th Amendment because it "reduce[d] the adult population of Michigan to
reading only what is fit for children."
This decision repudiated the earlier, longstanding test for obscenity. Based on
British common law, the "Hicklin principle" declared obscene any material that
tended to "deprave or corrupt those whose minds are open to such immoral
influences, " including children.
Obscenity is not protected speech
Roth v. U. S.
354 U.S. 476 (1957)
With Roth v. United States, the Court began to build a new
constitutional test for obscenity. In this case, the Court upheld publisher
Samuel Roth's conviction for mailing material that appealed to the "prurient
interest." The ruling established the proposition that obscene expression was
not entitled to First Amendment protections. However, Justice William Brennan, writing
for the majority, noted that material that has even a modicum of redeeming
social value is protected speech:
All 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 guaranties, unless excludable because
they encroach upon the limited area of more important interests. But implicit
in the history of the First Amendment is the rejection of obscenity as utterly
without redeeming social importance.
Brennan noted that "sex and obscenity are not synonymous," and that obscene
material is that which "deals with sex in a manner appealing to the prurient
interest." He attempted to define material appealing to a "prurient interest"
in a footnote:
... material having a tendency to excite lustful thoughts. Webster's New
International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in
pertinent part, as follows: "... Itching; longing; uneasy with desire or
longing; of persons, having itching, morbid, or lascivious longings; of desire,
curiosity, or propensity, lewd." ... "a shameful or morbid interest in nudity,
sex, or excretion."
The Roth test, with minor refinements, was to remain the standard for
determining obscenity until the 1973 decision in Miller v. California.
However, the Roth decision ushered in an era of uncertainty and
confusion; for the next 16 years there was never a majority of Justices
who could agree on the proper standard for testing obscenity -- until
Miller.
National Community Standards
Jacobellis v. Ohio
378 US 184 (1964)
In Jacobellis, Justice Brennan elaborated on the Roth standard by
clarifying that the "community standards" applicable to an obscenity
determination were to be national, not local standards. Nico Jacobellis managed
a movie theater in Cleveland Heights, Ohio, that had shown a French film
called "The Lovers," which contained one explicit three minute sex scene.
Though the film had played in a number of other cities without incident, Jacobellis was arrested and convicted of violating the Ohio obscenity statute.
Writing for the plurality, Brennan struck down the conviction and ruled that an
obscenity determination should be made according to national community
standards, rather than the standards of the local community from which a case
arose:
We do not see how any "local" definition of the "community" could properly be
employed in delineating the area of expression that is protected by the Federal
Constitution. ... The Court has explicitly refused to tolerate a result whereby
"the constitutional limits of free expression in the Nation would vary
with state lines"; we see even less justification for allowing such limits to
vary with town or county lines. ... [T]he constitutional status of an allegedly
obscene work must be determined on the basis of a national standard. It is,
after all, a national Constitution we are expounding. "
He concluded that "The Lovers" was not obscene because it had been
"favorably reviewed in a number of national publications, although disparaged
in others, and was rated by at least two critics of national stature among the
best films of the year in which it was produced," and been shown in over 100
cities nationwide.
It was in this case that Justice Potter Stewart, in his concurring opinion, wrote the
oft-quoted summation: "... [C]riminal laws in this area are constitutionally
limited to hardcore pornography. I shall not today attempt further to define
the kinds of material I understand to be embraced within that shorthand
description; and perhaps I could never succeed in intelligibly doing so. But I
know it when I see it, and the motion picture involved in this case is not
that."
Fanny Hill: Utterly Without Redeeming Social Value
A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney
General of Com. of Mass.
383 U.S. 413 (1966)
In 1965, the Massachusetts Supreme Judicial Court affirmed a lower court
decision finding the erotic novel Fanny Hill, or Memoirs of a Woman of
Pleasure was obscene. The lower court had noted that the "social
importance" element of the Roth test did not require that a book "must
be unqualifiedly worthless before it can be deemed obscene."
The U.S. Supreme Court reversed this decision, emphasizing that under Roth, material could not be deemed obscene unless it was "utterly without redeeming social value":
it must be established that (a) the dominant theme of the material taken as a
whole appeals to a prurient interest in sex; (b) the material is patently
offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is
utterly without redeeming social value. ...
A book cannot be proscribed unless it is found to be utterly without redeeming
social value. This is so even though the book is found to possess the requisite
prurient appeal and to be patently offensive. Each of the three federal
criteria are to be applied independently; the social value of the book can
neither be weighed against nor canceled by its prurient appeal or patent
offensiveness. (Brennan and Fortas)
This emphasis on "utterly without redeeming social value" was an
expansion of the Roth standard, which presumed that obscenity was
"utterly without redeeming social importance." Henceforth, the standard
became known as the Roth-Memoirs test.
Advertising Matters
Ginzburg v. United States
383 U.S. 463 (1965)
Decided the same day as the Fanny Hill case, Ginzburg introduced
the principle that the intent of the seller, as evidenced in how he presented
or advertised his material, could be a deciding factor in determining whether
something was obscene.
Publisher Ralph Ginzburg was convicted under the federal obscenity statute for
mailing three sexually explicit publications: a hard-cover magazine called EROS that contained articles and photo-essays on love and sex; an issue of a biweekly newsletter whose "Letter from the Editors" announced its dedication to "keeping sex an art and preventing it from becoming a science" and contained digests of articles about sex previously published in professional journals;
and a short book called The Housewife's Handbook on Selective Promiscuity, the
"sexual autobiography" of a housewife that included the author's views on laws
regulating private consensual adult sexual practices and the equality of women
in sexual relationships.
At trial, the prosecutors had thought that the works, standing alone, may not
have passed the Roth obscenity test, since they might have been deemed
to have some social importance. They therefore claimed that the context in
which Ginzburg purveyed his wares was relevant to determining if they were
obscene, and presented evidence that Ginzburg had purposefully marketed the
materials as pornography. He sought to have them mailed with postmarks from
towns with salacious names (Intercourse and Blue Ball, Penn., and
Middlesex, N.J.). The advertising for the publications emphasized their
sexual imagery, and included a guarantee of a full refund "if the book fails to
reach you because of U.S. Post Office censorship interference."
The Supreme Court upheld Ginzburg's conviction. Writing for the majority,
Justice Brennan held that in a close case, evidence that a defendant
deliberately represented the materials in question as appealing to customers'
erotic interest could support a finding that the materials are obscene. He
wrote: "Where the purveyor's sole emphasis is on the sexually provocative
aspects of his publications, that fact may be decisive in the determination of
obscenity" even if the publications examined out of context might not be deemed
obscene.
Three Scattered Opinions
Redrup v. New York
386 U.S. 767 (1967)
Redrup consolidated three obscenity cases in which the defendants were
convicted under state obscenity statutes for buying pornographic books or
magazines. The Supreme Court overturned all the convictions, finding that all
the statutes involved violated the First and 14th Amendments. In its
analysis, however, the Court offered possible scenarios in which such statutes
may have been upheld:
In none of the cases was there a claim that the statute
in question reflected a specific and limited state concern for juveniles. In
none was there any suggestion of an assault upon individual privacy by
publication in a manner so obtrusive as to make it impossible for an unwilling
individual to avoid exposure to it. And in none was there evidence of the sort
of 'pandering' which the Court found significant in Ginzburg v. United
States.
The case is notable not for its rulings, however, but for its elaboration of
the confusion the Court had faced since 1957 in attempting to apply the
Roth standard. The justices were clearly divided:
Two members of the Court have consistently adhered to the view that a State is
utterly without power to suppress, control or punish the distribution of any
writings or pictures upon the ground of their "obscenity." A third has held to
the opinion that a State's power in this area is narrowly limited to a distinct
and clearly identifiable class of material. Others have subscribed to a not
dissimilar standard, holding that a State may not constitutionally inhibit the
distribution of literary material as obscene unless "(a) the dominant theme of
the material taken as a whole appeals to a prurient interest in sex; (b) the
material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters; and
(c) the material is utterly without redeeming social value," emphasizing that
the "'three elements must coalesce, "and that no such material can "be
proscribed unless it is found to be utterly without redeeming social value."
Another Justice has not viewed the "social value" element as an independent
factor in the judgment of obscenity.
Children Have No Right to Porn
Ginsberg v. State of N. Y.
390 U.S. 629 (1968)
Ginsberg established that a state can enact more stringent obscenity
standards for the sale of sexually explicit material to children than to
adults.
The case concerned New York's "Smut Peddling Law," which criminalized the sale
to children under 17 of material deemed by the state to be "harmful to minors." Sam Ginsberg, the owner of a luncheonette in Long Island, N.Y., had been convicted under
the law for selling two "girlie" magazines to a 16-year-old boy. Ginsberg
challenged the law on the grounds that it created a more restrictive standard
for children than for adults, thus violating minors' First Amendment right to
read.
The Court upheld the statute. They found that although the magazines would not
be considered obscene for adults, it was permissible for New York to prohibit
their sale to minors.
Can't Prohibit Possession of Porn
Stanley v. Georgia
394 U.S. 557 (1969)
In Stanley, the Court held that a state cannot prohibit citizens from
possessing obscene material for personal use.
In this case, sexually explicit films were discovered in defendant Eli
Stanley's house by police, in the course of an unrelated investigation into his
alleged bookmaking activities. He was convicted of "knowingly hav[ing]
possession of ... obscene matter," in violation of Georgia's obscenity law.
The Court overturned the conviction, holding that "the mere private possession
of obscene matter cannot constitutionally be made a crime."
Writing for the Court, Justice Thurgood Marshall emphasized the individual's right to
privacy in his own home:
... Mere categorization of these films as "obscene" is insufficient
justification for such a drastic invasion of personal liberties. ... 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. Our whole constitutional heritage rebels at the thought of giving
government the power to control men's minds.
And yet, in the face of these traditional notions of individual liberty,
Georgia asserts the right to protect the individual's mind from the effects of
obscenity. We 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. To some, this may be a noble purpose, but it is wholly
inconsistent with the philosophy of the First Amendment.
A Landmark Ruling
Miller v. California
413 U.S. 15 (1973)
In this landmark case, the Court reexamined and discarded the obscenity
standard set by Justice Brennan in the Roth case 16 years
previously, and established a new definition of obscenity, which remains the
current standard. This was the first time since the publication of the
Roth opinion that a majority of the Court agreed on an obscenity
standard.
The case involved California's Obscenity Law, which criminalized the mailing of
obscene material. Defendant Marvin Miller was convicted under the law after
conducting a mass mailing of sexually explicit advertisements for adult books
and films he had for sale. The Supreme Court vacated the appellate court's
ruling upholding the conviction and sent the case back for the appellate court
to reconsider in light of the new First Amendment standards set out in the
opinion.
Writing for the majority, Chief Justice Warren Burger laid out the new, three-part
test:
The basic guidelines for the trier of fact must be: (a) whether the average
person applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest; (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.
Burger explicitly rejected the Memoirs requirement that obscene material
be found to be "utterly without redeeming social value," replacing it with the
less stringent standard of lacking "serious literary, artistic, political, or
scientific value." The Memoirs requirement, he wrote, created for
prosecutors, "a burden virtually impossible to discharge under our criminal
standards of proof." Even Justice Brennan, the author of the Memoirs
opinion, abandoned the Memoirs as unworkable in his dissenting opinion
to Miller's companion case, Paris Adult Theatre I v. Slaton.
Burger also rejected Jacobellis' requirement that the "contemporary
community standards" used to evaluate whether something appeals to the
"prurient interest" and is "patently offensive" must be national standards.
Instead, the jury may use the standards of the local community. He wrote:
Nothing in the First Amendment requires that a jury must consider hypothetical
and unascertainable "national standards" when attempting to determine whether
certain materials are obscene as a matter of fact. ... It is neither realistic
nor constitutionally sound to read the First Amendment as requiring that the
people of Maine or Mississippi accept public depiction of conduct found
tolerable in Las Vegas, or New York City.
The third new element ushered in by the Miller decision was the
limitation of the definition of unprotected obscenity to that specifically laid out by state law. This provision, Burger believed, would eliminate the problem of giving fair notice to a dealer that material may subject him to prosecution. While emphasizing that it was not the role of the
Court to propose regulatory schemes for the states, Burger gave two examples of
what a state could define as regulated conduct:
(a) Patently offensive representations or descriptions of ultimate sexual acts,
normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals.
In a later case, however, the Court clarified that local community standards
cannot be dictated by such state laws. Juries retain discretion in determining
what appeals to the prurient interest and what is patently offensive; state
statutes can serve as "evidence of the mores of the community" for the jury to
consider. [Smith v. U. S. , 431 U.S. 291 (1977)]
Child Pornography Has No Free Speech Protection
New York v. Ferber
458 U.S. 747 (1982)
In Ferber, the Supreme Court held that child pornography was not
entitled to First Amendment protection.
The case involved New York's child pornography law, which criminalized the
production or sale of any visual depiction of children under 16 engaging in
sexual acts, whether or not the depiction would be deemed obscene. The Court
upheld the conviction of a man who sold two films of young boys masturbating to
undercover agents.
The Court ruled that states are entitled to greater leeway in regulating
pornographic depictions of children than images of adults, emphasizing the
state's compelling interest in protecting children who may be exploited or
abused in the production of child pornography. This interest is so compelling
that states may enact regulation of child pornography that might be found
unconstitutional under the Miller standard if applied to pornography
involving adults. In cases involving children, a jury "need not find that the
material appeals to the prurient interest of the average person; it is not
required that sexual conduct portrayed be done so in a patently offensive
manner; and the material at issue need not be considered as a whole." The Court
noted, however, that material that did not include live performance of sexual
acts by children was still entitled to First Amendment protection.
This ruling was extended in a later case to grant states the right to prohibit
the possession or viewing of child pornography, as well as its production and
distribution. [Osborne v. Ohio, 495 U.S. 103 (1990)]
Zoning for Adult Businesses
Renton v. Playtime Theatres
475 U.S. 41 (1986)
In Renton, the Court solidified its position that although
municipalities are barred by the First Amendment from banning adult theaters
altogether, they may use zoning restrictions to restrict them to remote areas.
Justice William Rehnquist delivered the opinion of the Court, which upheld a regulation
of the city of Renton, Wash., prohibiting adult theaters from locating
within 1,000 feet of any residential zone, single- or multiple-family dwelling,
church, park, or school. Such regulation is justified, ruled Rehnquist, because
it is not primarily designed to prohibit the free expression of the content of
the adult films, but on reducing the "secondary effects" of the adult theaters
on the surrounding communities, such as increased crime.
X-rated Cable Television
Denver Telecommunications v. FCC
518 U.S. 727 (1996)
In Denver Telecommunications the Court upheld one provision and overturned another in a 1992 federal law designed to protect children from exposure to "patently
offensive sex-related material" on certain cable television channels. It struck
down a provision permitting cable operators to ban indecent programming from
public-access cable channels, such as those made available to community groups,
but upheld a provision permitting operators to ban indecent programs from
channels leased to commercial programmers. It also struck down a provision
requiring cable operators who chose to allow indecent material to be broadcast
on leased channels to segregate that material to a single channel, and to block
that channel unless the cable subscriber requested to have it unblocked.
Internet Porn
Reno v. American Civil Liberties Union
521 U.S. 844 (1997)
In the first case to address the regulation of sexually explicit material on
the Internet, the Court struck down two provisions of the 1996 Communications
Decency Act (CDA) which attempted to protect minors from access to "patently
offensive" or "indecent" Internet material. The ACLU, leading a coalition of
organizations, challenged two provisions of the CDA that made it a crime to
knowingly transmit "indecent" messages over the Internet to anyone under 18 or
to knowingly send or display to a person under 18 a message that "in context"
depicts or describes "sexual or excretory activities or organs" in terms
"patently offensive as measured by contemporary community standards."
The U.S. District ruled that those provisions were unconstitutional:
The Internet may fairly be regarded as a never-ending worldwide conversation.
The Government may not, through the CDA, interrupt that conversation. As the
most participatory form of mass speech yet developed, the Internet deserves the
highest protection from governmental intrusion.
Justice Paul Stevens, writing for the Court, declared that "notwithstanding the
legitimacy and importance of the congressional goal of protecting children from
harmful materials, we agree with the three-judge District Court that the
statute abridges the 'freedom of speech' protected by the First Amendment."
The CDA's restrictions were ruled far too broad. Stevens characterized the
breadth of the coverage of the statute "wholly unprecedented," since the
restrictions applied to all interactions on the Internet, not simply commercial
ones, and because the general, undefined terms "indecent" or "patently
offensive" could apply to a large amount of nonpornographic material that may
have educational or other value, including "discussions about prison rape or
safe sexual practices, artistic images that include nude subjects, and arguably
the card catalogue of the Carnegie Library." He noted that if the statute was
allowed to stand, a parent who allowed a teenage child to access material that
she believed was appropriate on a family computer could face imprisonment.
Stevens also took issue with the application of Miller's "contemporary
community standards" test to the Internet:
The "community standards" criterion as applied to the Internet means that any
communication available to a nation-wide audience will be judged by the standards
of the community most likely to be offended by the message.
The breadth of the CDA imposed a burden on the government to show that a less
restrictive scheme would not provide adequate protection for children. Stevens
found that the government failed to show this, noting that there were other
possible alternatives, such as "tagging" sensitive material to make it easier
for parents to identify, making exceptions for material with artistic or
educational value, or regulating commercial areas more strictly than other
areas such as free chat rooms.
In striking down the CDA, Stevens concluded, "The interest in encouraging
freedom of expression in a democratic society outweighs any theoretical but
unproven benefit of censorship."
Congress responded to the ruling by passing a new version of the CDA -- the Child
Online Protection Act (COPA) -- in 1998. It attempted to address the concerns
raised by the Court by providing a more narrowly tailored law that was limited
in scope to commercial websites, and carving out an exception for material
that has "serious literary, artistic, political or scientific value for
minors." The ACLU again brought suit, raising similar issues, and persuaded a
federal judge in Pennsylvania to block enforcement.
The Supreme Court will decide this case in the spring or summer of 2002.
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