11 Unprotected Categories: Obscenity

The Supreme Court’s First Obscenity Test

The Ulysses case provides a good example of how the lower courts increasingly liberalized obscenity law without any involvement by the Supreme Court. By increasingly rejecting the prosecution of work that was not pornography “as a whole,” the practice of banning famous books and creating prior restraints on cinema began to fade.

One central problem remained, however; one that would bedevil the Court for decades: what would replace Hicklin’s obscenity test? Where would the Court now draw the line between protected speech that may contain sexual themes or material, and unprotected obscenity?

Though the Supreme Court took almost no action on obscenity cases in the first half of the 20^th century, permitting lower courts to set the agenda, it entered the arena in 1957. The Court first moved to strike down a Michigan obscenity statute in Butler v. Michigan that had relied heavily on Hicklin’s standard regarding selling material that might fall into the hands of impressionable youth. Writing for a unanimous Court, Justice Frankfurter wrote that Michigan had unconstitutionally limited “the adult population of Michigan to reading only what is fit for children.”

Now that the Court had rejected the Hicklin understanding of what constituted obscenity, however, the question remained as to what test would take its place. In the same term, the Court heard and decided the case of Roth v. United States (together with a companion case involving state law, Alberts v. New York). Roth had been convicted of mailing obscene advertisements for his bookstore through federal mails. On appeal, Roth argued not only that the works in question were not obscene, but that obscenity should no longer be considered an unprotected category.

In this decision, the Supreme Court upheld Roth’s conviction and retained obscenity as an unprotected category, but proffered a new, more limited definition of obscenity that the Court felt would be more protective of free speech.

Roth v. United States

354 U.S. 476 (1957)

Facts: Roth was convicted of mailing obscene advertisements for his store, as well as mailing an obscene book, through the federal mails. Roth challenged the federal obscenity statute as violating the freedom of speech. Roth not only argued that the works in question were not obscene, but that obscenity should no longer be an unprotected category, making all such works protected speech.

Question: Did a federal obscenity regulation violate Roth’s First Amendment rights?

Vote: No (6-3)

For the Court: Justice Brennan

Concurring in the judgment: Justice Warren

Dissenting opinion: Justice Harlan

Dissenting opinion: Justice Douglas

JUSTICE BRENNAN delivered the opinion of the Court.

The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute violates the … First Amendment … In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code the freedoms of speech and press as they may be incorporated in the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment…

Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. We granted certiorari…

The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press.

The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon” in imitation or mimicking of religious services. Thus, profanity and obscenity were related offenses…

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people…

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. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire…

We hold that obscenity is not within the area of constitutionally protected speech or press.

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern…

The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin. Some American courts adopted this standard, but later decisions have rejected it and substituted this test: “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.

Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity…

It is argued that the statutes do not provide reasonably ascertainable standards of guilt, and therefore violates the constitutional requirements of due process. The federal obscenity statute makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.” The California statute makes punishable, inter alia, the keeping for sale or advertising material that is “obscene or indecent.” The thrust of the argument is that these words are not sufficiently precise, because they do not mean the same thing to all people, all the time, everywhere.

Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. “… [T]he Constitution does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices…” These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed, and mark:

… boundaries sufficiently distinct for judges and juries fairly to administer the law… That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense…

In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited…

CHIEF JUSTICE WARREN, concurring in the result.

I agree with the result reached by the Court in these cases, but, because we are operating in a field of expression and because broad language used here may eventually be applied to the arts and sciences and freedom of communication generally, I would limit our decision to the facts before us and to the validity of the statutes in question as applied…

That there is a social problem presented by obscenity is attested by the expression of the legislatures of the forty-eight States, as well as the Congress. To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.

The line dividing the salacious or pornographic from literature or science is not straight and unwavering. Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.

The personal element in these cases is seen most strongly in the requirement of scienter. Under the California law, the prohibited activity must be done “willfully and lewdly.” The federal statute limits the crime to acts done “knowingly.” In his charge to the jury, the district judge stated that the matter must be “calculated” to corrupt or debauch. The defendants in both these cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide…

JUSTICE HARLAN, concurring in Alberts and dissenting in Roth.

… In final analysis, the problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their nature or supposed deleterious effect upon human conduct. Proceeding from the premise that “no issue is presented in either case, concerning the obscenity of the material involved,” the Court finds the “dispositive question” to be “whether obscenity is utterance within the area of protected speech and press,” and then holds that “obscenity” is not so protected, because it is “utterly without redeeming social importance.” This sweeping formula appears to me to beg the very question before us. The Court seems to assume that “obscenity” is a peculiar genus of “speech and press,” which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis, the constitutional question before us simply becomes, as the Court says, whether “obscenity,” as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of “fact,” to be entrusted to a factfinder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and “value” of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem, in the last analysis, becomes one of particularized judgments which appellate courts must make for themselves.

I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as “obscene,” for, if “obscenity” is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact, but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce’s “Ulysses” or Bocaccio’s “Decameron” was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are “utterly without redeeming social importance.” In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based…

I concur in Alberts v. California.

… In judging the constitutionality of this conviction, we should remember that our function in reviewing state judgments under the Fourteenth Amendment is a narrow one. We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only 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…

What, then, is the purpose of this California statute?… There is a large school of thought, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California to accept as truth the most advanced and sophisticated psychiatric opinion. It seems to me clear that it is not irrational, in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the moral fabric of society. In fact, the very division of opinion on the subject counsels us to respect the choice made by the State…

The State can reasonably draw the inference that, over a long period of time, the indiscriminate dissemination of materials the essential character of which is to degrade sex will have an eroding effect on moral standards. And the State has a legitimate interest in protecting the privacy of the home against invasion of unsolicited obscenity.

Above all stands the realization that we deal here with an area where knowledge is small, data are insufficient, and experts are divided. Since the domain of sexual morality is preeminently a matter of state concern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible command of the Due Process Clause forbids California to prosecute one who sells books whose dominant tendency might be to “deprave or corrupt” a reader. I agree with the Court, of course, that the books must be judged as a whole, and in relation to the normal adult reader…

And so, in the final analysis, I concur in the judgment because, upon an independent perusal of the material involved, and in light of the considerations discussed above, I cannot say that its suppression would so interfere with the communication of “ideas” in any proper sense of that term that it would offend the Due Process Clause. I therefore agree with the Court that appellant’s conviction must be affirmed…

I dissent in Roth v. United States.

We are faced here with the question whether the federal obscenity statute, as construed and applied in this case, violates the First Amendment to the Constitution. To me, this question is of quite a different order than one where we are dealing with state legislation under the Fourteenth Amendment. I do not think it follows that state and federal powers in this area are the same, and that, just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same…

… in dealing with obscenity … the interests which obscenity statutes purportedly protect are primarily entrusted to the care not of the Federal Government, but of the States. Congress has no substantive power over sexual morality. Such powers as the Federal Government has in this field are but incidental to its other powers, here, the postal power, and are not of the same nature as those possessed by the States, which bear direct responsibility for the protection of the local moral fabric.

Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories…

Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be classed as obscene in another. And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States so long as there is no uniform nationwide suppression of the book, and so long as other States are free to experiment with the same or bolder books.

Quite a different situation is presented, however, where the Federal Government imposes the ban… the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. The prerogative of the States to differ on their ideas of morality will be destroyed, the ability of States to experiment will be stunted…

I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nationwide federal censorship… I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is “utterly without redeeming social importance.” Not only did this charge fail to measure up to the standards which I understand the Court to approve, but, as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute… The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of “thoughts.”

It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as “hard-core” pornography. Nor do I think the statute can fairly be read as directed only at persons who are engaged in the business of catering to the prurient minded, even though their wares fall short of hard-core pornography…

JUSTICE DOUGLAS, with whom JUSTICE BLACK concurs, dissenting.

When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which, by its terms, is a restraint on Congress and which by the Fourteenth is a restraint on the States…

By these standards, punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment. Even the ill-starred Dennis case conceded that speech, to be punishable, must have some relation to action which could be penalized by government. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity? …

The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts, but that is not shown to be a part of unlawful action, is drastically to curtail the First Amendment…

If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards…

The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society’s interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control.

As noted, the trial judge in the Roth case charged the jury in the alternative that the federal obscenity statute outlaws literature dealing with sex which offends “the common conscience of the community.” That standard is, in my view, more inimical still to freedom of expression.

The standard of what offends “the common conscience of the community” conflicts, in my judgment, with the command of the First Amendment that “Congress shall make no law … abridging the freedom of speech, or of the press.” Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned?

… No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.

I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and defend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with anti-social conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor…

The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.

Freedom 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… As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.

I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field…

Though Roth was intended to bring clarity to obscenity doctrine, it instead began a period of uncertainty and divided verdicts. The 1960s saw a massive surge in the availability of and appetite for pornographic films. This led to more prosecutions and more court cases (a dynamic somewhat encouraged by the Court’s own decisions) in which courts had to assess whether a particular film, book, or magazine met the legal standard for obscenity.

To the requirements in Roth—that “whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests”—the Court would later add an additional requirement in Memoirs v. Massachusetts (1966), that obscene material must have “no redeeming social [or political, scientific, literary] value.” This requirement—aimed at clarifying obscenity doctrine and protecting substantive works of art or literature from censorship—further destabilized obscenity jurisprudence. Pornographic content creators cynically added narrow slices of “value”, such as a quick discussion of the merits of capitalism and communism, to films that were otherwise a series of sexual encounters. This led to a mirror-image of the Hicklin test, in which an isolated portion of “value” within an otherwise pornographic work could insulate it from prosecution.

Soon after Memoirs, the Court made clear in Redrup v. New York that text-only materials could not be held criminalized unless they were sold to minors or foisted on unwilling audiences. While the Court was largely in agreement with the outcome (with a 7-2 vote), there was no agreement on the reasoning applied. With no consensus on the proper approach to obscenity cases, the Court was forced to watch pornographic films in order to assess whether they were legally obscene (a practice that attorneys informally referred to as “Redrupping.” While Justice Potter’s famous definition of obscene pornography—“I know it when I see it,” Jacobellis v. Ohio (1964)—accurately reflected the difficulty the Court faced in creating an objective standard, requiring the Supreme Court to actually “see it” on a regular basis was not a sustainable practice.