3.2 The First Amendment, the Supreme Court, and the Regulation of Obscenity

Part: 
Two
Chapter: 
3

Although both speaking and printing are what the First Amendment is all about, closer examination reveals that the First Amendment cannot plausibly be taken to protect, or even to be relevant to, every act of speaking or writing. Government may plainly sanction the written acts of writing checks backed by insufficient funds, filing income tax returns that understate income or overstate deductions, and describing securities or consumer products in false or misleading terms. In none of these cases would First Amendment defenses even be taken seriously. The same can be said about sanctions against spoken acts such as lying while under oath, or committing most acts of criminal conspiracy. Although urging the public to rise up and overthrow the government is protected by the First Amendment, urging your brother to kill your father so that you can split the insurance money has never been considered the kind of spoken activity with which the First Amendment is concerned. Providing information to the public about the misdeeds of their political leaders is central to the First Amendment, but providing information to one's friends about the combination to the vault at the local bank is not a First Amendment matter at all.

The regulation of pornography in light of the constraints of the First Amendment must thus be considered against this background-that not every use of words, pictures, or a printing press automatically triggers protection by the First Amendment. Indeed, as the examples above demonstrate, many uses of words, pictures, or a printing press do not even raise First Amendment concerns. As Justice Holmes stated the matter in 1919, "the First Amendment ... cannot have been, and obviously was not, intended to give immunity for every possible use of language."[23] As described in Chapter 2, both the states and the federal government have long regulated the trade in sexually explicit materials under the label of "obscenity" regulation. And until 1957, obscenity regulation was treated as one of those forms of regulation that was totally unrelated to the concerns or the constraints of the First Amendment. If the aim of the state or federal regulation was the control of obscenity, then the First Amendment did not restrict government action, without regard to what particular materials might be deemed obscene and thus prohibited.[24] When, throughout the first half of this century, states would determine to be obscene such works as Theodore Dreiser's An American Tragedy,[25] or D.H. Lawrence's Lady Chatterley's Lover,[26] or Erskine Caldwell's God's Little Acre,[27] or Radclyffe Hall's The Well of Loneliness,[28] the First Amendment was not taken to constitute a significant barrier to such actions.

In 1957, however, in Roth v. United States,[29] the Supreme Court confronted squarely the tension between the regulation of what was alleged to be obscene and the constraints of the First Amendment. After Roth, it is not simply the form of regulation that immunizes a prosecution from the First Amendment. The Court made clear in Roth, and even clearer in subsequent cases,[30] that the simple designation of a prosecution as one for obscenity does not cause the First Amendment considerations to drop out. If the particular materials prosecuted are themselves protected by the First Amendment, the prosecution is impermissible. After Roth mere labels could not be used to justify restricting the protected, and mere labels could not justify circumventing the protections of the First Amendment.

But the Supreme Court also made clear in Roth that some materials were themselves outside of the coverage of the First Amendment, and that obscenity, carefully delineated, could be considered as "utterly without redeeming social importance." As a result, the Court concluded, obscene materials were not the kind of speech or press included within the First Amendment, and could thus be regulated without the kind of overwhelming evidence of harm that would be necessary if materials of this variety were included within the scope of the First Amendment. But to the Court in Roth, that scope was limited to material containing ideas. All ideas, even the unorthodox, even the controversial, and even the hateful, were within the scope of the First Amendment. But if there were no ideas with "even the slightest redeeming social importance," then such material could be taken to be not speech in the relevant sense at all, and therefore outside of the realm of the First Amendment.

The general Roth approach to obscenity regulation has been adhered to ever since 1957, and remains still today the foundation of the somewhat more complex but nevertheless fundamentally similar treatment of obscenity by the Supreme Court. This treatment involves two major principles. The first, reiterated repeatedly and explained most thoroughly in Paris Adult Theatre I v. Slaton,[31] is the principle that legal obscenity is treated as being either not speech at all, or at least not the kind of speech that is within the purview of any of the diverse aims and principles of the First Amendment. As a result, legal obscenity may be regulated by the states and by the federal government without having to meet the especially stringent standards of justification, often generalized as a "clear and present danger," and occasionally as a "compelling interest," that would be applicable to speech, including a great deal of sexually oriented or sexually explicit speech, that is within the aims and principles of the First Amendment. Instead, legal obscenity may constitutionally be regulated as long as there exists merely a "rational basis" for the regulation, a standard undoubtedly drastically less stringent than the standard of "clear and present danger" or "compelling interest."

That legal obscenity may be regulated by the states and the federal government pursuant to Roth and Paris does not, of course, mean that the states must regulate it, or even that they necessarily should regulate it. It is in the nature of our constitutional system that most of what the Constitution does is to establish structures and to set up outer boundaries of permissible regulation, without in any way addressing what ought to be done within those outer boundaries. There is no doubt, for example, that the speed limits on the highways could be significantly reduced without offending the Constitution, that states could eliminate all penalties for burglary without violating the Constitution, and that the highest marginal income tax rate could be increased from fifty percent to ninety percent without creating a valid constitutional challenge. None of these proposals seems a particularly good idea, and that is precisely the point-that the fact that an action is constitutional does not mean that it is wise. Thus, although the regulation of obscenity is, as a result of Roth, Paris, and many other cases, constitutionally permissible, this does not answer the question whether such regulation is desirable. Wisdom or desirability are not primarily constitutional questions.

Thus the first major principle is the constitutional permissibility of the regulation of obscenity. The second major principle is that the definition of what is obscene, as well as the determination of what in particular cases is obscene, is itself a matter of constitutional law. If the underpinnings of the exclusion of obscenity from the scope of the First Amendment are that obscenity is not what the First Amendment is all about, then special care must be taken to ensure that materials, including materials dealing with sex, that are within what the First Amendment is all about are not subject to restriction. Although what is on the unprotected side of the line between the legally obscene and constitutionally protected speech is not protected by the First Amendment, the location of the line itself is a constitutional matter. That obscenity may be regulated consistent with the First Amendment does not mean that anything that is perceived by people or by legislatures as obscene may be so regulated.

As a result, the definition of obscenity is largely a question of constitutional law, and the current constitutionally permissible definition is found in another 1973 case, Miller u California.[32] According to Miller, material is obscene if all three of the following conditions are met:

  1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [in sex]; and
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law; and
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

It is not our function in this Report to provide an exposition of the law of obscenity. In a later part of this Report we do provide a much more detailed treatment of the current state of the law that we hope will be useful to those with a need to consider some of the details of obscenity law. But we do not wish our avoidance of extensive description of the law here to imply that the law is simple. Virtually every word and phrase in the Miller test has been the subject of extensive litigation and substantial commentary in the legal literature. The result of this is that there is now a large body of explanation and clarification of concepts such as "taken as a whole," "prurient interest," "patently offensive," "serious value," and "contemporary community standards." Moreover, there are many constitutionally mandated aspects of obscenity law that are not derived directly from the definition of obscenity. For example, no person may be prosecuted for an obscenity offense unless it can be shown that the person had knowledge of the general contents, character, and nature of the materials involved, for if the law were otherwise booksellers and others would avoid stocking anything even slightly sexually oriented for fear of being prosecuted on account of materials the content of which they were unaware.[33] The procedures surrounding the initiation of a prosecution, including search and seizure, are also limited by constitutional considerations designed to prevent what would in effect be total suppression prior to a judicial determination of obscenity.[34] And the entire subject of child pornography, which we discuss in Chapters 4 and 11 is governed by different principles and substantially different legal standards.

The constitutionally-based definition of obscenity is enforced not only by requiring that that definition be used in obscenity trials, but also, and more importantly, by close judicial scrutiny of materials determined to be obscene. This scrutiny, at both trial and appellate levels, is designed to ensure that non-obscene material is not erroneously determined to be obscene. The leading case here is the 1974 unanimous Supreme Court decision in Jenkins v. Georgia,[35] which involved a conviction in Georgia of the Hollywood motion picture Carnal Knowledge. In reversing the conviction, the Supreme Court made clear that regardless of what the local community standards of that community may have been, the First Amendment prohibited any community, regardless of its standards, from finding that a motion picture such as this appealed to the prurient interest or was patently offensive.[36] Thus, although appeal to the prurient interest and patent offensiveness are to be determined in the first instance by reference to local standards, it is clear after Jenkins that the range of local variation that the Supreme Court will permit consistent with the First Amendment is in fact quite limited.

In the final analysis, the effect of Miller, Jenkins, and a large number of other Supreme Court and lower court cases is to limit obscenity prosecutions to "hard core"[37] material devoid of anything except the most explicit and offensive representations of sex. As we explained in our Introduction to this part, we believe that the late justice Stewart was more perceptive than he has been given credit for having been in saying of hard-core pornography that he knew it when he saw it.[38] Now that we have seen much of it, we are all confident that we too know it when we see it, but we also know that others have used this and other terms to encompass a range of materials wider than that which the Supreme Court permits to be restricted, and wider than that which

33. Smith v. California, 361 U.S. 147 (1959). The principle was reaffirmed in Hamling v. United States, 418 U.S. 87 (1974), which also made clear that the defendant need not be shown to have known that the materials were legally obscene most of us think ought to be restricted. But it should be plain both from the law, and from inspection of the kinds of material that the law has allowed to be prosecuted, that only the most thoroughly explicit materials, overwhelmingly devoted to patently offensive and explicit representations, and unmitigated by any significant amount of anything else, can be and are in fact determined to be legally obscene.

Notes

  1. Frohwerk v. United States, 249 U.S. 204 (1919).
  2. Dunlap v. United States, 165 U.S. 486 (1897).
  3. Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930).
  4. People v. Dial Press, 182 Misc. 416 (N.Y. Magis. Ct. 1929).
  5. Attorney General v. Book Named "God's Little Acre," 326 Mass. 281, 93 N.E.2d 819 (1950).
  6. People v. Seltzer, 122 Misc. 329, 203 N.Y.S. 809 (N.Y. Sup. Ct. 1924).
  7. 354 U.S. 476 (1957).
  8. E.g., Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959).
  9. 413 U.S. 49 (1973).
  10. 413 U.S. 15 (1973). Among the most significant aspects of Miller was the fact that it rejected as part of the definition of obscenity the requirement that before material could be deemed obscene it had to be shown to be "utterly without redeeming social value." This standard had its roots as part of the test for obscenity in Memoirs v. Massachusetts, 383 U.S. 413.
  11. Smith v. California, 361 U.S. 147 (1959). The principle was reaffirmed in Hamling v. United States, 418 U.S. 87 (1974), which also made clear that the defendant need not be shown to have known that the materials were legally obscene.
  12. See, Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973).
  13. 418 U.S. 153 (1974).
  14. The third facet of the Miller test, that the work lack "serious literary, artistic, political, or scientific value," is never in any event to be determined by reference to local standards. Here the frame of reference must in all cases be national. Smith v. United States, 431 U.S. 291 (1977).
  15. The Supreme Court in fact uses the term in Miller.
  16. "I have reached the conclusion ... that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core 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 intelligently doing so. But I know it when I see it, and the motion picture involved in this case is not that." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).