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A Quick and Dirty Guide to the Evolution/Devolution of Obscenity Law

The Anglo-American legal tradition, while holding free speech as a core component of the

democratic process, has also acknowledged the free speech is not completely free. Restriction of obscene print/speech is rooted in the heritage of English Common Law, and based on this heritage, there exists both state and federal statutory regulation of the sale or distribution of materials deemed obscene.

However, this state or federal restriction/regulation of materials deemed obscene, by its very nature carries the real risk if infringing the First and Fourteenth Amendments. The second half of the 20th century, fueled by post World War II social changes, was witness to a series of challenges to the state’s power to regulate obscene materials. These challenges led not just to a narrowing of what restrictions were considered constitutional, but also to the Court attempting to define exactly what constituted obscene.

An early challenge to an obscenity statute came shortly after the war with Winters v New York, 333 US 507 (1948). In Winters a New York bookseller was found guilty of violating a New York obscenity statute. The defendant contended that the New York statute, (while being verbose), was vague to the point of violating his First Amendment rights. The statute read in part:

“A…person who Prints, utters, publishes, sells, lends, gives away, distributes

or shows, or has in his possession with intent to sell, lend, give away, distribute or

show, or otherwise offers for sale, loan, gift, or distribution; any book, pamphlet,

magazine, or newspaper devoted to the publication and principally made up of

criminal news, police reports, or accounts of criminal deeds or pictures, or stories

of deeds of bloodshed, lust, or crime; is guilty of a misdemeanor…”

333 US 507, 509. While certainly not lacking in volume, the defendant argued that the statute was lacking in content—that the terms of the statute were open to uncertain interpretation, and thus too vague to be valid—that an individual must be able to have a precise idea of what is illegal, based on the language of the law, before he can be convicted.

The Court in Winters agreed, and went on to emphasize the importance of free speech and precision of statutory construction: “The present case as to a vague statute abridging free speech involves the circulation only of vulgar magazines. The next may call for decision as to the free expression of political views in light of a statute intended to punish subversive activities.” 333 US 507, 509.

Several years later in Butler v. Michigan 352 US 380 (1957), another First and Fourteenth Amendment challenge was presented to an obscenity statute. In Butler, the appellant had been convicted of violating a Michigan law rendering it a crime to make available to the general reading public works that could have a potentially negative influence on youth (minors). The appellant suffered a $100.00 fine for his conviction. The Court in Butler found that the law, if carried out to the letter, would be in gross violation of the First and Fourteenth Amendments, as it would restrict any bookseller, and thus any reader, to having legally available only choices of materials that were of a juvenile level. The Court did not let the overreaching nature of the statute go without comment, noting “Surely this is to burn down the house to roast the pig” 352 US 380, 383. The court in Butler still affirmed the regulation of obscenity as valid concept in the abstract, but declined to create any sort of definition, as the Butler appeal did not warrant it.

Hot on the heels of Butler (4 months later) the Court sought to provide a workable definition of what constitutes obscenity. The appellants in Roth v. United States 354 US 476 (1957). were convicted of violation state and federal statutes prohibiting the mailing of obscene materials . The Court engaged in an extensive discourse on the policy, intent, and history of free speech, as well as the validity of limiting speech, and specifically, previous definitions of what should be considered obscene.

The Court, in affirming the appellants’ convictions again emphasized the importance of free speech, and noted that the content was not necessarily the dispositive factor in determining obscenity, commenting “However, sex and obscenity are not synonymous.” 354 US 476, 487. Ultimately, what emerged from Roth became known as the Roth test—whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.

However, the definition in Roth itself required further definition and interpretation.

Some of this needed clarification of Roth emerged from the oft quoted Jacobellis v. Ohio 378 US 184 (1964). In Jacobellis, the appellant managed a theater in Ohio, and in that capacity showed the French film Les Amants (the Lovers), a film subsequently deemed obscene under Ohio law. Jacobellis was convicted of 2 counts of possessing and exhibiting an obscene film, and was subjected to $500 and $2000 fines.

The Court in Jacobellis affirmed not only that film as a medium is protected under the First and Fourteenth Amendments, but also that indeed, obscenity does not warrant those protections.

In reversing Jacobellis’ convictions, the Court found the Roth test requirement of “community standards” to require further interpretation. After lengthy discussion, the court determined that the “community standards” referred to in Roth applied to the nation as a whole, not local communities.

Justice Stewart, in his concurrence, expressed the ongoing difficulty in reaching a concrete definition of obscenity—referring to hardcore pornography, Justice Stewart wrote “I shall not today attempt to further define the kinds of material I understand to be embraced within that description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and this motion picture is not that.”

The Roth test was again subject to interpretation with 1966’s A Book Named John Cleland’s Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts 383 US 413 (1966). In Memoirs, the Roth standard was further refined, adding that to be deemed obscene, the material must possess “not a modicum of social value”, thus making obscenity almost impossible to achieve—or alternately, making the legal definition of obscene reflect a truer definition, that which is completely offensive to social mores.

The Roth standard was also subjected to varied, and often spurious interpretations and applications by lower courts. Roth, and its subsequent revisions, was finally superseded in 1972 with Miller v. California 413 US 15. In Miller, the appellant had conducted an unsolicited (mass) mailing of advertising materials to sell “adult” books. He was convicted of violating a California obscenity statute.

The Court in Miller reflected the growing pressure weighing on the Roth test. Much like Copernican theory, which required ever increasing complications and add on interpretations to remain valid, the Roth test had grown so unwieldy as to become problematic.

In Miller a new, looser definition was set forth, which has remained since. The Miller test requires 3 criteria for a statute regulating materials to be valid:

  • that the average person, applying contemporary community (LOCAL) standards, must find that the work, taken as a whole, appeals to the prurient interest

  • that the work depicts or describes, in a patently offensive way, sexual content specifically defined by applicable state law; and

  • the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Miller test addresses the issue of statutory vagueness (defined by applicable state law), but also (arguably) takes steps backwards, in reducing the community standard to local, and more significantly, reducing the threshold of value from “not a modicum of social value” to the much more easily met “lacks serious…value.”

Miller remains the standard in a period of much greater obscenity law enforcement, but is beginning to come under fire from lower courts again, following a 2005 decision by a district court judge ruling that laws prohibiting the distribution of obscene materials are unconstitutional. This ruling was overturned, but may signal a growing discontent.



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