11 Unprotected Categories: Obscenity

A Liberal Alternative to Roth

No one on the Court was particularly happy with the Roth regime after Redrup, not even its author, Justice Brennan, and it was clear that it would eventually have to be reworked. Prior to Roth’s replacement in 1973, however, the Court authored what would perhaps be its most libertarian opinion on obscenity doctrine in Stanley v. Georgia (1969). Typically, obscenity prosecutions focused on the creation or distribution of obscenity, but Stanley dealt with a state law that prohibited possession of obscene materials. On appeal from state courts, Stanley argued that the First Amendment should protect him from prosecution. The Supreme Court unanimously agreed, carving out a special zone of protection for the possession of even obscene pornography in one’s home (as discussed later, this does not apply to child pornography).

Stanley v. Georgia

394 US 557 (1969)

Facts: While searching for evidence of alleged bookmaking activities, police founds films deemed obscene under state law. Stanley was arrested and convicted for possession.

Georgia courts held that 1) obscenity is not protected material and 2) the state may protect an individual’s mind from harm just as it can protect their body. Stanley appealed.

Question: Does Georgia’s law prohibiting the possession of obscene materials violate the First Amendment?

Vote: Yes, 9-0

For the Court: Justice Marshall

Concurring in the judgment: Justice Stewart

JUSTICE MARSHALL delivered the opinion of the Court.

An investigation of appellant’s alleged bookmaking activities led to the issuance of a search warrant for appellant’s home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but, while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of Georgia law.

Appellant was tried before a jury and convicted. The Supreme Court of Georgia affirmed. We noted probable jurisdiction of an appeal…

Appellant raises several challenges to the validity of his conviction. We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime…

The State and appellant both agree that the question here before us is whether “a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter” is constitutional. In this context, Georgia concedes that the present case appears to be one of “first impression… on this exact point,” but contends that, since “obscenity is not within the area of constitutionally protected speech or press,” Roth v. United States (1957), the States are free, subject to the limits of other provisions of the Constitution to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?

It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment…. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute… None of the statements cited by the Court in Roth for the proposition that “this Court has always assumed that obscenity is not protected by the freedoms of speech and press” were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination…

In this context, we do not believe that this case can be decided simply by citing Roth… Roth and the cases following it discerned such an “important interest” in the regulation of commercial distribution of obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.

It is now well established that the Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth is fundamental to our free society. Moreover, in the context of this case — a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home — that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy…

These are the rights that appellant is asserting in the case before us. He is asserting 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 asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. 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…

Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.

Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. But, more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that, in the context of private consumption of ideas and information we should adhere to the view that “[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law…” Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.

It is true that, in Roth, this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public. No such dangers are present in this case.

Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual’s right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws.

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion…

JUSTICE BLACK, concurring

[omitted]

JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE WHITE join, concurring in the result.

Before the commencement of the trial in this case, the appellant filed a motion to suppress the films as evidence upon the ground that they had been seized in violation of the Fourth and Fourteenth Amendments. The motion was denied, and the films were admitted in evidence at the trial. In affirming the appellant’s conviction, the Georgia Supreme Court specifically determined that the films had been lawfully seized. The appellant correctly contends that this determination was clearly wrong under established principles of constitutional law. But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers…

The state and federal officers gained admission to the appellant’s house under the authority of a search warrant issued by a United States Commissioner. The warrant described “the place to be searched” with particularity. With like particularity, it described the “things to be seized” — equipment, records, and other material used in or derived from an illegal wagering business. And the warrant was issued only after the Commissioner had been apprised of more than adequate probable cause to issue it…

There can be no doubt, therefore, that the agents were lawfully present in the appellant’s house, lawfully authorized to search for any and all of the items specified in the warrant, and lawfully empowered to seize any such items they might find. It follows, therefore, that the agents were acting within the authority of the warrant when they proceeded to the appellant’s upstairs bedroom and pulled open the drawers of his desk. But when they found in one of those drawers not gambling material but moving picture films, the warrant gave them no authority to seize the films…

This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. And this is not a case that presents any questions as to the permissible scope of a search made incident to a lawful arrest…

Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant’s trial. Accordingly, the judgment of conviction must be reversed…

Stanley’s reasoning pointed towards one possible solution for the instability of the Roth regime: limiting obscenity prosecutions to situations involving minors or unwilling audiences, and preventing prosecutions on other grounds. A Court tired of policing obscenity prosecutions by watching films could instead essentially decriminalize obscenity, in constitutional terms. Justice Brennan, the author of Roth, had essentially moved to this position over the intervening years.