6. First Amendment Considerations

Part: 
Four
Chapter: 
6

The First Amendment to the United States Constitution mandates that,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1375]

Sharp differences exist among legal scholars as to the meaning and scope of the First Amendment. The opinions of Supreme Court Justice William O. Douglas forcefully developed the view that the First Amendment makes the right to free speech absolute. Douglas and other like-minded theorists take the words "Congress shall make no law" at their literal meaning.

In his dissenting opinion in Roth v. United States,[1378] Douglas wrote,

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.[1377]

Thus, in Douglas' view, the courts and legislatures were prohibited from abridging any form of expression, including the most sexually explicit material. In Roth, he quoted prominent First Amendment theorists and wrote,

The danger of influencing change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sexual thoughts or desires apart from objective conduct, can never justify the losses to society that result from interferences with literary freedom.[1378]

Justice Douglas concluded that,

... 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.[1379]

In Miller v. California,[1380] Douglas expounded on his theory of broad First Amendment protection. He wrote,

The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U.S. 1, 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment (and solely because of it) speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.[1381]

The view that the First Amendment provides absolute protection to sexually explicit materials continues to be espoused by strong and vocal advocates. They contend that unfettered freedom of expression will enable the best and most truthful points of view to prevail in society.[1382] The First Amendment's protection of speech reaches beyond well reasoned discourse. It includes appeals to the human spirit and feelings. One proponent has said "sexually explicit material is usually communication that the activity depicted is pleasurable and appropriate. Frankly, it asserts that it is good and healthy for persons in many places and many positions. Obviously this is a doctrine over which there ought to be profound moral debate."[1383]

Sexually explicit materials depicting children should also be protected speech in the view of many First Amendment absolutists. While they condemn child abuse, some proponents of absolutist First Amendment theory argue that prohibiting expression in the form of child pornography as the Supreme Court did in New York v Ferber[1384] also does nothing to stop the underlying crimes committed against the children.[1385] Some First Amendment absolutists have adhered so rigorously to this principle that they would oppose restrictions on sexually explicit materials even if proof was available to show that the materials promoted sexual violence.[1386] Robert H. Bork, now a judge of the United States Court of Columbia Circuit, has criticized what he calls "the insistence of many very intelligent people that the First Amendment is an absolute."[1387] He writes that,

devotees of this position insist, with a literal respect they do not accord other parts of the Constitution, that the Framers commanded complete freedom of expression without governmental regulation of any kind. The first amendment states: "Congress shall make no law . . . . abridging the freedom of speech ......" Those who take that as an absolute must be reading "speech" to mean total absence of governmental restraint.

Any such reading is, of course, impossible. Since it purports to be an absolute position we are entitled to test it with extreme hypotheticals. Is Congress forbidden to prohibit incitement to mutiny aboard a naval vessel engaged in action against an enemy, to prohibit shouted harangues from the visitors' gallery during its own deliberations or to provide any rules for decorum in federal courtrooms? Are the states forbidden, by the incorporation of the first amendment in the fourteenth, to punish the shouting of obscenities in the streets?

No one, not the most obsessed absolutist, takes any such position, but if one does not, the absolute position is abandoned, revealed as a play on words.[1388]

Other constitutional law scholars have offered non-absolutist arguments which would Support First Amendment protection for adult pornography.

C. Edwin Baker has proposed what he calls the "Liberty Model" of First Amendment protection.[1389] According to Baker, this model equates First Amendment protection with the entire realm of individual liberty excluding only coercive or violent action.[1390] Baker rejects as too narrow the notion that sexual protection should be afforded only to speech that aids in the discovery of truth.[1391] Speech is an important component of self-fulfillment.[1392] Speech that serves to entertain or amuse the speaker or listener has value as a means of self-fulfillment even though it may not communicate significant ideas or advance the search for truth.[1393] Baker finds this value sufficient to merit First Amendment protection.

Vincent Blasi has argued in favor of broad First Amendment protection as a means of ensuring individual autonomy for members of society.[1394] Blasi points to justice Brandeis statement in Whitney v. California[1395] that "those who won our independence believed that the final end of the State was to make men free to develop their faculties ... they valued liberty both as an end and as a means. They believed liberty to be the secret of happiness."[1396]

According to Blasi,

The basic idea here is not that speech leads to truth or a stable society or some other social value, but rather that certain speech activities are valuable because they are integral to the process by which persons consciously choose from among alternatives, a process which is regarded as valuable in and of itself because it figures prominently in our vague notions of what it means to be human.[1397]

Blasi asserts that individuals retain a basic minimum of choice making capability, they cease to be individuals any more.[1398] Thus First Amendment protection extends not just to political speech but to speech that appeals to human spirit and feelings.[1399]

Another justification for broad First Amendment protection advanced by Blasi is diversity. If expression is unregulated, individuals may freely receive stimulation from diverse reading and listening fare.[1400] This is essential to human happiness, apart from any search for truth.[1401] Blasi writes,

Even the venerable metaphor of the marketplace of ideas may have continuing force if a market is thought of not so much as a site where prices are determined and purchases made, but rather as a place where people gather to browse, to taste, and to commingle aimlessly.[1402]

Blasi find the social consequences of unregulated expression as likely better than the consequences of regulation.

Geoffrey Stone advances an argument similar to Baker's regarding "self-fulfillment." Stone contends that,

the very fact ... that there is a vast market in our society for sexually explicit expression suggests that for many people, this type of speech serves what they believe to be, it may be amusement, it may be containment, it may be sexual stimulation, it may be fantasy, whatever it is, many of us believe that this expression is to our own lives, in some way, valuable. That value should not be overlooked.[1403]

Stone contends that though certain types of speech may seem offensive or immoral to some, the "marketplace" referred to by Blasi is the forum for confronting them as opposed to eliminating them as a matter of law. Stone says,

What is not appropriate, in our free and democratic society, is for government to prohibit expression because that expression may lead individuals into holding views or morals or attitudes that the majority dislikes. The way to combat that in our society was not to suppress the speech because we don't like the moral standards they may promote. It is rather, to try to convince our citizens, in the marketplace of ideas, that there are better moral standards and there are better modes of moral behavior. That is the tradition of this country and the tradition of the First Amendment. It seems to me any regulation of obscenity on the ground it may be immoral is simply incompatible with our constitutional and non-constitutional positions of free expression.[1404]

Despite the fervent efforts of its advocates, the theory that the First Amendment affords protection to all forms of expression has over the years found favor with only a small minority on the United States Supreme Court. The Court has consistently held that certain types of speech either fall outside the protection of the First Amendment or are protected but subject to regulation. For example, so-called "fighting words" which by their very utterance inflict injury or tend to incite an immediate breach of the peace may be prohibited in the interest of public order.[1405] Defamatory material about public figures is unprotected by the First Amendment if the publisher has either a knowledge of its falsity or a reckless disregard for the truth.[1406]

In addition, commercial speech or advertising may be regulated in order to prevent commercial fraud or deception.[1407] Advocacy of the use of force or violation of the law may be proscribed only where it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[1408] The Supreme Court has emphasized the requirement of imminent lawless action before the speech can be curtailed.[1409]

The question of whether obscenity is protected speech under the First Amendment first reached the Supreme Court in 1957 with the landmark case of Roth v United States.[1410] In his opinion for the majority, justice William Brennan said "this Court has always assumed that obscenity is not protected by the freedom of speech and press."[1411] Brennan wrote that,

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 guarantees, 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.[1412]

The principle that obscenity is excluded from First Amendment protection was restated by the Court in Miller v. California[1413] in 1973. In Miller, Chief Justice Warren Burger wrote, "This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment."[1414] (emphasis added)

The Supreme Court's rationale in Miller was consistent with earlier precedent regarding the First Amendment value of obscenity. Chief Justice Burger said in Miller that "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom."[1415]

In Paris Adult Theater I v. Slaton,[1416] decided the same day as Miller, the Court expounded further on the exclusion of obscenity from constitutional protection. The Court found the right to privacy protects the personal intimacies of the home, family, marriage, motherhood, procreation and child bearing.[1417] It does not encompass the right of an individual to watch obscene movies in a place of public accommodation.[1418] The Court also distinguished the prevention of unlimited distribution of obscenity from exertion of control by the state over reason and the intellect. Chief Justice Burger wrote,

Where communication of ideas, protected by the First Amendment, is not involved, the mere fact that, as a consequence, some human "utterances" or "thoughts" may be incidentally affected does not bar the state from acting to protect legitimate state interests.[1419]

The Court cited legitimate state interests at stake in stemming the tide of commercialized obscenity.[1420] These include,

The interest of the public in the equality of life and the total community environment, the tone of commerce in the great city centers, and possibly the public safety itself.[1421]

The Court also quoted former Chief Justice Earl Warren's opinion in Jacobellis v Ohio,[1422] where he declared there is a "right of the nation and of the states to maintain a decent society ..."[1423]

As early as 1942, the Supreme Court held that lewd and obscene speech "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[1424] And in Roth, the Court found that historically, "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."[1425]

Thus the Supreme Court has found that what Chief Justice Burger called "the public portrayal of hard-core sexual conduct for its own sake and for the ensuing commercial gain,"[1426] is far removed from the free and beneficial exchange of ideas that the First Amendment was designed to protect. In Young v. American Mini-Theaters,[1427] Justice John Paul Stevens drew the same distinction and said,

Moreover, even though we recognized that

 

the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every school child can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice.[1428]

 

Obscene materials lack cognitive content and are more closely akin to sexual conduct as opposed to the communicative process. The sole purpose of the material is to provide sexual gratification to the reader or viewer.

Other commentators have gone one step further, and they have contended that constitutional protection should be accorded only to speech that is explicitly political.[1429] One scholar calls the "heart and soul" of the First Amendment the preservation of "our process of self-government from legislative encroachment by guaranteeing to each citizen freedom of political speech and by guaranteeing to the press freedom to publish essentially what it will about the government."[1430] The United States Supreme Court has yet to adopt this interpretation.[1431] To be obscene and without First Amendment protection, material must meet the three-part test enunciated in Miller v. California.[1432] The Miller standard involves the determination by the fact finder of whether,

The average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest ... depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ... whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[1433]

In Miller, the court also gave examples of the types of sexual conduct state statutes could define for regulation under the second prong of the test.[1434] They include:

patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and

patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.[1415]

When the issue of child pornography reached the Supreme Court in 1982,[1436] the justices unanimously upheld the constitutionality of a New York statute which prohibited sexual performances by children that were not obscene under Miller.[1437] The Court carefully enunciated the greater leeway it accorded the states in regulating child pornography[1438] and found the value of expression that depicts children engaged in sex acts as "de minimus" and far outweighed by the evils of child abuse and exploitation.[1439] The Court reaffirmed the Miller formulation for obscenity,[1440] but found it inapplicable to child pornography because its standards do not serve to protect minors depicted in pornographic materials.[1441]

Child pornography joined the category of speech that lacks any protection under the First Amendment, and once again the Supreme Court found "speech" whose value was outweighed by other considerations.

The Miller test for obscenity has been in existence for thirteen years, giving the Supreme Court, along with federal and state courts, ample opportunity to interpret its component parts.

The Supreme Court has said that "average person" as used in the Miller standard "means what it usually means" and is no less clear than "reasonable person" used for generations in other contexts.[1442]

Material must be judged by its impact on the average person, "rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one"[1443] and rather than "the most prudish or the most tolerant"[1444] person. Children are not included within the concept of the "average person" unless they are the intended recipients of the material in question.[1445] The Supreme Court has reasoned that a jury trying to define the "average person" by whose standards obscenity is determined "would reach a much lower 'average' when children are a part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults."[1446]

The Supreme Court found in Miller that while First Amendment limitations on the powers of the states do not vary from community to community, there should be no fixed national standards as to what appeals to the prurient interest or what is patently offensive.[1447] The Court said an attempt to ascertain a national community standard would be an "exercise in futility"[1448] and resolved that, "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."[1449] In Miller, the Court upheld the trial Court's instruction that the jury evaluate the material in question with reference to the contemporary standards of the state of California.[1450] While a statewide community standard was approved in Miller, it was not mandated.[1451] In ascertaining the community standards, children again are not to be included in the community.[1452] Moreover, the fact that a state law fails to regulate distribution of obscene material to adults is not a conclusive determination of community standards for that jurisdiction.[1453] The "local community standards" formulation of Miller is applicable to all federal prosecutions for obscenity.[1454]

The prosecution is not normally required to offer evidence of the contemporary standards of the community in their jurisdiction at trial.[1455] The materials, if "hard-core," may speak for themselves.[1456] However, prosecutors have encountered some problems in bench trials when they offered no evidence of the relevant community standards.[1457] The trial judge may rely on his own experience to decide what the community standards are and whether the material in question violates them. If the judge possesses little or no knowledge of the community's views, he may turn to the government's evidence and if none has been offered, he or she may be relegated to a finding that the prosecution has failed to sustain its burden.[1458]

Contemporary community standards may be proven by expert testimony based upon properly conducted public opinion polls taken in the relevant areas.[1459] Evidence of the availability or lack of availability of comparable materials may also be used to show that the material in question enjoys a reasonable degree of community acceptance or that it does not.[1460] One state court has admitted lay opinion testimony as to community standards, where the witness was properly qualified based on knowledge of and experience with community attitudes.[1461]

The federal appeals courts have upheld geographic definitions of "community" to include the state,[1462] federal judicial district[1463] or county.[1464] When the issue of which community's standard applies in a given case arises, the federal appeals courts have applied the standards of the situs of the trial[1465] and the site from which the material in question was mailed.[1466] The fact that distributors of obscene materials may be subjected to different community standards in the various federal judicial districts does not render any of the federal obscenity statutes unconstitutional.[1467]

Finally, state courts have upheld geographic definitions of "community" to include the state,[1468] county,[1469] city,[1470] or "local community."[1471]

While the application of local community standards is an important component of the Miller standard, juries do not have "unbridled discretion" in determining questions of "prurient interest" or "patent offensiveness"[1472] The Supreme Court has stated emphatically that,

It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.[1473]

In Jenkins v. Georgia,[1474]the Court reversed an obscenity conviction based upon the motion picture "Carnal Knowledge." The Court found that, despite the jury determination, the movie did not depict sexual conduct in a patently offensive way.[1475] The Court restated the principle enunciated in Miller, that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive, 'hard-core' sexual conduct ... ."[1476]

The "prurient interest" prong of the Miller test has caused considerable confusion. In Roth v. United States, 1477 the Supreme Court held that "obscene material is material which deals with sex in a manner appealing to prurient interest."[1478] In the lengthy footnote which followed, the Court cited the following definitions of "prurient interest":

i.e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d e., 1949) defined 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. . . ."

Pruriency is defined, in pertinent part, as follows:

". . . Quality of being prurient; lascivious desire or thought. . . ."

See also, Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 242, where this Court said as to motion pictures: " . . . They take their attraction from the general interest, eager and wholesome as it may be, in their subjects, but a prurient interest may be excited and appealed to. . . ." (emphasis added)

We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, ©207.10(2) (Tent. Draft No. 6, 1957), viz.:

". . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . ." See Comment, Id., at 10, and the discussion at page 29 et seq.[1479]

In Miller, the Court reaffirmed the prurient interest requirement without further elaboration or definition.[1480]

The Supreme Court has also ruled that when materials are intended for a clearly defined deviant sexual group prurient interest may be measured by the appeal of the material to that particular group.[1481]

The federal appeals courts have not strayed far from the definitions cited in the Roth footnote.[1482] State court interpretations have also used very similar language to define "prurient interest.[1483] The Supreme Court's most recent pronouncement on the prurient interest standard was in Brockett v. Spokane Arcades, Inc.,[1484] in June of 1985. A Washington state statute[1485] regarding "moral nuisance" defined "lewd matter" in a manner synonymous with "obscene matter."[1486] The statute's definition of "obscene matter" tracked the Miller standard,[1487] but included a definition of "prurient" as "that which incites lasciviousness or Just."[1488] The United States Court of Appeals for the Ninth Circuit found the entire statute unconsitutiona1.[1489] The Appeals Court ruled that a definition of the word "lust" necessarily encompassed "healthy, wholesome, human reaction common to millions of well adjusted persons in our society, not shameful or morbid desire."[1490] The Court therefore found the statute prohibited material protected by the First Amendment.[1491] The United States Supreme Court reversed and remanded. The Court reaffirmed the definition of "prurient interest" contained in Roth.[1492] In his opinion for the Court Justice Byron White stated,

The Court of Appeals was aware that Roth had indicated in footnote 20 that material appealing to the prurient interest was "material having a tendency to excite lustful thoughts" but did not believe that Roth had intended to characterize as obscene material that which provoked only normal, healthy sexual desires. We do not differ with that view.[1493]

Justice White went on to conclude that the Court was "quite sure that by using the words 'lustful thoughts' in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal."[1494]

While the Supreme Court agreed with the Appeals Court's construction of the prurient interest standard, the Court found that the Court of Appeals erred in declaring the Washington statute facially invalId.[1495] The Supreme Court found partial rather than facial invalidation to be the proper course and held that the statute should have been invalidated only insofar as the word "lust" be understood as reaching protected materials.[1496] The extent to which Brockett v. Spokane Arcades, clarified the meaning of "prurient interest" may be debated. The Court seems to have excluded normal, healthy sexual desires-whatever they are-from the definition of "prurient interest:"

Material must also lack serious literary, artistic, political or scientific value in order to be obscene.[1497] In Kois v. Wisconsin,[1498] the Supreme Court reversed the obscenity conviction of a publisher of an underground newspaper. The newspaper contained an account of the arrest of a photographer for possession of obscene material, and criticized law enforcement officials for their handling of the case.[1499] Included in the article were two pictures described as similar to those seized from the photographer. The picture depicted "a nude man and nude woman embracing in a sitting position."[1500]

The requirement of serious value necessitates the court review the material as a whole. If the material, as a whole, conveys a literary, artistic, political, or scientific idea or message, it possesses the requisite value.[1501] If it appears that the publisher of the material has tried to redeem or "dress up" otherwise obscene matter, sold and distributed for its obscene contents rather than for its ideas or message, then the value is not serious.[1502] As the Supreme Court reasoned in Kois "a quotation from Voltaire on the flyleaf of a book will not constitutionally redeem an otherwise obscene publication"[1503] In Kois, the Court found the publication was not a "mere vehicle for the publication of the pictures," and that the pictures were rationally related to the article about the photographer.[1504]

The courts have distinguished cases involving "sham" publications which include some form of literature in an attempt to save the rest of the material in them from being declared obscene.[1505] The determination is not difficult to make in cases of hard-core pornography.[1506] On two occasions, federal courts have found that Penthouse magazine lacks serious value.[1507] The same result was reached in a case involving the movie "Deep Throat."[1508] Federal courts have found serious value contained in Playboy Magazine[1509] and in the movie "Last Tango in Paris."[1510]

The determination of serious literary, artistic, political, or scientific value is not made with reference to local community standards.[1511] This prong of the Miller test embodies the First Amendment protection of unpopular or distasteful opinions or ideas, and is thus "particularly amenable to appellate review."[1512] This is in contrast to the determination of "appeal to the prurient interest" and "patent offensiveness." In Miller, the Supreme Court found that there can be no "fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive.'"[1513] The Court clearly found these elements of the Miller standard subject to local community standards, leaving the question of serious literary, artistic, political, or scientific value to be determined by a national standard.[1514]

California retains a standard that requires a court to find material "utterly without redeeming social value" in order to be obscene.[1515] Under the formulation the material need only possess a modicum of social value to be protected speech.[1516]

Under either Memoirs or the Miller standard, expert testimony may be used to demonstrate the value of a given publication or film.[1517]

In the thirteen years since the Miller standard was announced by the Supreme Court, federal and state courts have consistently followed the mandate expressed in Miller that

no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard-core' sexual conduct.[1518]

In Ward v. Illinois, 1519 the Court upheld obscenity convictions based on two publications depicting sadomasochistic sexual acts. The defendant had contended that these types of acts were not enumerated in Miller as possible patently offensive depictions of specifically defined sexual conduct.[1520] The Court ruled in Ward that the sexual acts mentioned in Miller were merely examples and not intended as an exhaustive compilation of the sexual acts whose depiction, if patently offensive, is subject to regulations.[1521]

While the overwhelming majority of cases finding material to be obscene have dealt with depictions of patently offensive "hard-core" sexual conduct, descriptions of the same conduct by words alone may also be legally obscene. In Kaplan v. California,[1522] the Supreme Court upheld an obscenity conviction based on a book called Suite 69 which had a plain cover and contained no pictures.[1523] The Court described the book as consisting,

entirely of repetitive descriptions of physical, sexual conduct, "clinically" explicit and offensive to the point of being nauseous.[1524]

The content of the book was "unvarying" and included "almost every conceivable variety of sexual contact, homosexual and heterosexual..."[1525] Chief Justice Burger wrote in Kaplan:

When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression.[1526]

The Court concluded that "obscenity can, of course, manifest itself in ... the written and oral description of conduct."[1527]

Materials found not to be obscene under Miller frequently depict nudity without explicit sexual activity or merely contain some sexually explicit language.[1528] In Jenkins v. Georgia,[1529] the Supreme Court reversed an obscenity conviction involving the motion picture "Carnal Knowledge." The Court noted that the film appeared on many "Ten Best" lists for 1971 and received generally favorable reviews from critics.[1530] One of the actresses in it received an Academy Award nomination.[1531] The Court quoted one review of the film which described the plot as the story "of two young college males, roommates and lifelong friends, forever preoccupied with their sex lives."[1532] The Court cautioned that under Miller, juries do not have "unbridled discretion" in determining what is patently offensive or appeals to the prurient interest, and restated the proposition that obscenity under Miller only encompasses materials that "depict or describe patently offensive 'hard-core' sexual conduct...."[1533] The Court went on to describe "Carnal Knowledge," finding that,

While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.[1534]

The Court held that "Carnal Knowledge" was "simply not the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain'" which Miller proscribes.[1535] As a matter of constitutional law, the film did not depict sexual conduct in a patently offensive way.[1536]

In Erzoznik v City of Jacksonville,[1537] the Supreme Court found unconstitutional a Jacksonville, Florida, ordinance prohibiting the showing of films containing nudity by a drive-in movie theater where the screen is visible from a public street or place. The ordinance specifically proscribed any motion picture depicting "the human male and female bare buttocks, human female bare breasts, or human bare pubic areas.... "[1538] In Erzoznik, the Court concluded that,

The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited.

Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors.[1539](emphasis added)

However, the Miller standard may be adjusted to prohibit materials on the basis of their appeal to minors even if they are not obscene to adults.[1540] In Ginzberg v. New York,[1541] the Supreme Court considered whether it was constitutionally impermissible for the state of New York to accord to minors under age seventeen a more restricted right than that assured adults to determine for themselves what sexual material they may read or see.[1542] The defendant was convicted of selling two "girlie" magazines to a sixteen-year-old boy.[1543]

The Court found that these magazine were not obscene for adults.[1544] The Court upheld the constitutionality of New York statute recognizing both the authority of parents to direct the upbringing of their children and the state's interests in the well-being of its youth.[1545] As of 1970, forty-one states had enacted some type of special prohibition regarding the distribution of sexual materials to minors. Eighteen of these statutes were either identical or similar to the New York law upheld in Ginsberg.[1546]

Pandering is the "business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of [its] customers."[1547] in Ginzburg v. United States, the Supreme Court held that "where the purveyor's sole emphasis is on may be decisive in the determination of obscenity."[1548]

Pandering is neither a separate crime nor an element of the offense of obscenity. It need not be included in the indictment for obscenity.[1549] It is, however, relevant evidence to considered.[1550] In Ginzburg, the defendant sought mailing privileges in Intercourse and Blue Ball, Pennsylvania, on the basis of the salacious appeal of these names.[1551] The Court noted that "advertisements for the publication in question openly boasted that the publishers would take full advantage of what they regarded [as] an unrestricted license allowed by law in the expression of sex and sexual matters."[1552] The Court found that this evidence reinforced the government's claim that the magazine was obscene.[1553] The courts generally have found various types of evidence to constitute pandering including sensational advertising,[1554] the name of the theater showing the movie in question,[1555] motion picture previews,[1556] the use of indiscriminate mailing lists,'[1557] the types of books available in the store where the publication in question was purchased,[1558] and the use of a peep show booth to show a motion picture.[1559] Courts have also found some evidence does not constitute pandering, including mere advertising,[1560] a lewd or enticing cover on a publication,[1561] references to other books by the same publishers,[1562] a high price[1563] and warnings concerning the sexually explicit nature of the material.[1564] Evidence of pandering is relevant to the "literary, artistic, political or scientific" value prong of the Miller standard.[1565] In Ginzburg, the Supreme Court found that "The circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality-whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes."[1566] The circumstances of sale, distribution and commercial exploitation of a work for prurient appeal may thus be considered in determining whether a work has serious value.[1567]

Aside from consideration of the Miller standard, there are several other important facets of obscenity law.

Obscenity statutes must contain a requirement of scienter or guilty knowledge on the part of the violator.[1568] The defendant need not possess actual knowledge that the material is legally obscene.[1569] nor must he be of the opinion that it is obscene.[1570] It is only necessary that the individual have knowledge of the general nature or character of the material.[1571] Scienter may be proved by circumstantial evidence[1572] and it may be sufficient that the accused had reason to know of the contents of the material or that the circumstances were such that would put him on inquiry.[1573]

The Supreme Court has recognized that,

Eyewitness testimony of a bookseller's personal knowledge of a book hardly need be a necessary element in proving his awareness of its contents. The circumstance may warrant the inference that he was aware of what a book contained, despite his denial.[1574]

In Mishkin v. New York,[1575] the Court found the following circumstantial evidence of scienter to be sufficient:

... appellant's instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the massive number of obscene books appellant published, hired others to prepare, and possessed for sale; the repetitive quality of the sequences and formats of the books; and the exorbitant prices marked on the books[1576] "amply show(s), that appellant was 'aware of the character of the material' and that his activity was not innocent but [a] calculative purveyance of filth."[1577]

Two recent state court decisions provide further insight into the type of evidence that is sufficient to prove scienter. In Beier v. State,[1578] the Court upheld the conviction of an "adults only" pornographic outlet manager where the evidence showed that he removed money from the cash register, that the store was stocked with large quantities of sexually explicit films and magazines, and that he had in his possession a memorandum instructing store clerks to or not to cooperate with vice officers.[1579] And, in Commonwealth v. Croll,[1580] the court found that the jury could reasonably infer that the defendant was aware of the character of the material sold to police officers where he was seen instructing another individual on the use of the cash register, acted in a supervisory capacity during sales transactions, and was able to answer specific questions about the availability of various items in the stores.[1581] The evidence also showed that placards posted on the doors to the peep show booths gave notice of the nature of the films shown inside.[1582]

Use of fictitious names or destruction of records also may be evidence of scienter.[1583] Moreover, if the defendant is a corporation, scienter may be established by proof of knowledge on the part of officers or directors.[1584] Proof of scienter may be difficult where "sham" corporations are used and corporate records contain names of individuals who actually possess no knowledge of the business or its operations. Similar problems also may be encountered in prosecutions brought against absentee owners or other individuals not observed on the business premises.

Obscenity statutes must be carefully drafted to avoid encompassing protected speech. A statute which prohibits both protected and unprotected speech will be struck down for being overbroad.[1585] In Butler v. Michigan,[1586] the Supreme Court reversed a conviction under a Michigan statute prohibiting the distribution of materials "tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth."[1587] These materials were unlawful even if sold to an adult. The Supreme Court found the statute to be overbroad because it prohibited the dissemination of materials to adults that may be harmful to minors but not to adults.[1588]

A New York statute governing the licensing of motion pictures was struck down as overbroad by the Supreme Court in Kingsley International Pictures Corp. v. Regents.[1589] The statute prohibited the licensing of any motion picture "which portrays acts of sexual immorality, perversion or lewdness or which expressly or impliedly presents such acts as desirable, acceptable, or proper patterns of behavior."[1590] A motion picture version of Lady Chatterly's Lover was denied a license on the grounds that it presented adultery as appropriate behavior.[1591] The Supreme Court found that the statute prohibited the advocacy of constitutional protected ideas-in this case, the idea that adultery may sometimes be proper-and was thus unconstitutionally overbroad in its reach.[1592]

Closely akin to overbreadth is the concept of vagueness. A statute that does not give adequate notice of what it prohibits is void for vagueness.[1593] This concept is especially important in the area of obscenity where the distinction between protected and unprotected speech may be incomplete or unclear absent a court determination.[1594] A vague statute may also permit law enforcement authorities to exercise too much power to prosecute individuals based on their individual interpretations of the law.[1595] Therefore, the Supreme Court has found obscenity statutes unconstitutional when they lack "ascertainable standards or guilt" or are uncertain "in regard to persons within the scope of the act" or uncertain "in regard to the applicable tests to ascertain guilt."[1596]

The Supreme Court has rejected challenges based on vagueness made against both the language of 18 U.S.C. S1461 and the California state statute containing the words "obscene or indecent."[1597] In Roth v. United States, the Court noted that the terms of obscenity statutes are not always precise.[1598] A statute must convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices."[1599] The Court concluded that the existence of "marginal cases in which it is difficult to determine the side of the law on which a particular fact situation falls is not a sufficient reason to hold the language too ambiguous to define a criminal offense."[1600]

The law governing search and seizure of materials presumptively protected by the First Amendment was the subject of a recent decision by the United States Supreme Court in New York v. P.S. Video, Inc.[1601] The Court reaffirmed the proposition that any such seizure must be made pursuant to a warrant and that there must be an opportunity for a prompt postseizure judicial determination of obscenity.[1602] The Court noted that there is no requirement that the magistrate personally view the allegedly obscene material before issuing a warrant.[1603] However, the search warrant must be supported by affidavits containing specific facts so that the magistrate may "focus searching on the question of obscenity." [1604] The Court found that the New York Court of Appeals erred in upholding the suppression of five video tape cassette movies seized by police from a video store pursuant to a warrant in the case at bar because,

The New York Court of Appeals construed our prior decisions in this area as standing for the additional proposition that are application for a warrant authorizing the seizure of books or films must be evaluated under a "higher" standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a "higher" standard is required by the First Amendment.[1605]

The Court held that,

An application for a warrant authorizing the seizure of material presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.[1606]

The use of municipal zoning ordinances to restrict the location of "adult" theaters was upheld by the Supreme Court in Young v. American Mini Theaters.[1607] The Detroit ordinance challenged in Young prohibited "adult" theaters from being located within 1000 feet of any two other "regulated uses" or within 500 feet of any residential area.[1608] A theater was classified as "adult" if it presented "material distinguished or characterized by an emphasis on matter depicting, describing, or relating to 'specified sexual activities' or 'specified anatomical areas' as defined elsewhere in the ordinance."[1609] The Court found that Detroit enacted the zoning ordinance based on the opinions of urban planners and real estate experts who believed that,

the location of several such business in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and business to move elsewhere.[1610]

In a plurality opinion, the Court rejected challenges to the ordinance based on vagueness and prior restraint.[1611] The Court found that the only vagueness question related to the quantum of sexually explicit activity that must be portrayed in order for the material to be "characterized by an emphasis" on such matter.[1612] The Court reasoned that for most films the question was "readily answerable" and in doubtful cases, the ordinance was "readily subject to a narrow construction by the state courts."[1613] The ordinance did not amount to a prior restraint of speech since the theaters were not prevented from showing the movies and viewers were not prevented from seeing them.[1614] The Court stated that,

The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.[1615]

The separate zoning classification for adult theaters was also not violative of the equal protection clause of the Fourteenth Amendment to the Constitution.[1616] The classification established by the Detroit ordinance was adequately supported by the city's interest in the present and future character of its neighborhoods.[1617]

The Supreme Court recently affirmed the validity of zoning ordinances that restrict the location of adult theaters in Renton v. Playtime Theaters.[1618] Relying on Young v. American Mini-Theaters, a seven-member majority of the Court upheld an ordinance enacted by the city of Renton, Washington, that prohibited adult movie theaters from locating within 1000 feet of any residential zone, single- or multiple family dwelling, church, park, or school.[1619] The definition of adult theaters was almost identical to that in Young but also included showings of video tape cassettes, cable television, and any other such visual media.[1620] The Court analyzed the Renton ordinance as a "content neutral" time, place, and manner regulation of speech, since it was not aimed at the content of the speech but it was directed at the secondary effects of the theaters on the surrounding community.[1621] The ordinance was designed to,

 

prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life . . . .[1622]

 

The Court went on to analyze whether the ordinance was designed to serve a substantial governmental interest and whether it allowed for reasonable alternative avenues of communication. The city of Renton had relied heavily on the experience of and studies produced by the neighboring city of Seattle.[1623]

The Court ruled that,

The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.[1624]

Reasonable alternative avenues of communication were found to be available in that 520 acres or more than five percent of the land area of Renton was left open for use as adult theater locations.[1625]

Justice William Rehnquist wrote for the majority,

That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.[1626]

He added that the First Amendment does not compel the government to "ensure that adult theaters or any other kinds of speech-related businesses ... will be able to obtain sites at bargain prices."[1627]

These two decisions make it very clear that the Supreme Court will uphold what Justice Rehnquist called "the essence of zoning" and enable local jurisdictions to preserve the quality of life in their communities by restricting the locations of adult movie theaters.[1628]

The law of obscenity encompasses a myriad of legal issues. As Chief Justice Burger wrote in Miller v. California,[1629] consideration of these issues does not present "an easy road, free from difficulty."[1830] The Chief justice resolutely declared that "no amount of 'fatigue' should lead us to adopt a convenient 'institutional' rationale-an absolutist, 'everything goes' view of the First Amendment-because it will lighten our burden."[1631]

Notes

  1. U.S. Const. amend. I.
  2. 345 U.S., (1957), p. 476.
  3. Id., p. 514.
  4. Id. pp. 509-10, citing Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn. L. Rev., (1954), pp. 295, 387.
  5. Id., p. 513.
  6. 413 U.S., (1973), p. 15.
  7. Id., pp. 44-5.
  8. Washington, D.C., Hearing, Vol. II, Barry Lynn, p. 146.
  9. Id., p. 153.
  10. 458 U.S., (1982), p. 747.
  11. Washington, D.C., Hearing Vol. II, Barry Lynn, pp. 185-87.
  12. Chicago Hearing, Vol. I, Jane Whicher, pp. 222-23.
  13. R.H. Bork, Neutral Principals and Some First Amendment Problems, 47 Ind. L. Rev. 1, (1971), p. 21.
  14. Id.
  15. C. Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, (1978), p. 990.
  16. Id., p. 960.
  17. Id., p. 990.
  18. Id., p. 992-93.
  19. Id.
  20. Blasi, The Checking Value in First Amendment Theory, 1977 American Bar Foundation Research journal, (1977), pp. 521, 544.
  21. 274 U.S., (1927), p. 357.
  22. Id., p. 375.
  23. V. Blasi, supra, p. 544.
  24. Id., p. 547.
  25. Id., p. 545.
  26. Id., p. 550.
  27. Id.
  28. Id.
  29. Chicago Hearing, Vol. I, Geoffrey Stone, pp. 163-64.
  30. Id., pp. 167-68.
  31. Chaplinsky v. New Hampshire, 315 U.S., (1942), p. 568; But see, Cohen v. California, 403 U.S., (1971), p. 15; (holding that speech which is merely offensive, i.e. jacket with printed words "Fuck the Draft," is entitled to full First Amendment protection).
  32. New York Times v. Sullivan 376 U.S., (1964), p. 254.
  33. 1407 See, Bigelow v. Virginia, 421 U.S., (1975), p. 809.
  34. Brandenburg v. Ohio, 395 U.S., (1969), pp. 444, 447.
  35. See, Hess v. Indiana, 414 U.S., (1973), pp. 105, 109
  36. 354 U.S., (1957), p. 476.
  37. Id., p. 481.
  38. Id., pp. 484-85.
  39. 413 U.S., (1973), p. 15.
  40. Id., p. 23.
  41. Id., p. 34.
  42. 413 U.S., (1973), p. 49.
  43. Id., p. 66.
  44. Id.
  45. Id., p.67.
  46. Id., p.57.
  47. Id., p.58.
  48. 378 U.S., (1964), p. 184.
  49. Id., p.199.
  50. Chaplinsky v. New Hampshire, 315 U.S.,(1942), pp.568, 571-72.
  51. 354 U.S.,p.484.
  52. 413 U.S.,p.35.
  53. U.S.,(1976),p. 50.
  54. Id.,p. 70.
  55. R. H. Bork. supra note 1258, p. 20; Washington, D.C., Hearing, Vol. II, Lillian BeVier. pp. 213-14.
  56. Washington, D.C., Hearing, Vol. II, Lillian BeVier, p.214.
  57. See, Roth v. United States, 354 U.S.,(1957), pp.476. 487-88.
  58. 413 U.S., (1973). p.15.
  59. Id., p. 24.
  60. Id., p. 25.
  61. Id.
  62. New York v. Ferber, 458 U.S., (1982). p. 747.
  63. Id., pp. 750-51.
  64. Id., pp. 756-62.
  65. Id., p. 762.
  66. Id., p. 755.
  67. Id., p. 761.
  68. Pinkus v. Unitod States. 436 U.S.,(1978), pp. 293, 300.
  69. Miller v. California. 413 U.S., (1973), pp. 15, 33.
  70. Smith v. United States. 431 U.S., (1977), pp. 291, 304.
  71. 436 U.S. pp. 297-98; See also. Ginzberg v. New York, 390 U.S., (1968), p. 629.
  72. Id., p. 298.
  73. 410 U.S., p. 30.
  74. Id.
  75. Id., p. 32.
  76. Id., pp. 33-34.
  77. See, Handing v. United States, 418 U.S., (1974), p. 87; Jenkins v. Georgia, 418 U.S., (1974), p. 153.
  78. See, Pinkus v. United States, 436 U.S., (1978), p. 293; United States v. Bush, 582 F.2d, (5th Cir. 1978), p. 1016.
  79. Smith v. United States, 431 U.S., (1977), p. 291.
  80. Hamling v. United States, 418 U.S., (1974), p. 87.
  81. Id.
  82. See, Paris Adult Theatre I v. Slaton, 413 U.S., (1973), pp. 49, 56.
  83. See, United States v. Obscene Film, Cards, &Magazine, 541 F.2d, (9th Cir. 1976), p. 810; United States v. 2200 Paperback Books, 565 F.2d, (9th Cir. 1977), p. 566; United States v. Various Articles, 709 F. 2d, (2d Cir. 1983), p. 132 ; and United States v. Various Articles, 750 F.2d, (7th Cir. 1984), p. 596.
  84. United States v. Various Articles, 709 F.2d, (2d Cir. 1983), pp. 132, 136.
  85. See, United States v. Various Articles, 750 F.2d, (7th Cir. 1984), p. 596; Carlock v. Texas, 609 S.W.2d, (Tex. Crim. App. 1980), p. 787; Commonwealth v. Trainor, 374 N.E.2d, (Mass. 1978), p. 1216. People v. Thomas, 346 N.E.2d, (Ill. 1976), p. 190; People v. Nelson, 41o N.E.2d, (III. 1980), p. 476; See generally, Zippo v. Rogers, 216 F. Supp., (S.D.N.Y. 1963), p. 670; Randy's Studebaker v. Nissan, 533 F.2d, (loth Cir. 1976), p. 510.
  86. United States v. Manerite, 448 F.2d, (2d Cir. 1971), p. 583; United States v. Various Articles, 750 F.2d, (7th Cir. 1984), p. 596; United States v. Battista, 646 Fed, (6th Cir. 1981), p. 237; United States v. Petrov, 747 F.2d, (2d Cir. 1984), p. 824.
  87. Louisiana v. Short, 368 S. 2d, (La. 1979), p. 1078.
  88. United States v. Donley, 523 F.2d, (9th Cir. 1975), p. 369.
  89. United States v. Dachsteinter, 518 F.2d, (9th Cr. 1975), p. 20
  90. United States v. Bagnell, 679 F.2d, (11th Cir. 1982), p. 826 cent. denied 103 S. Ct. 1449.
  91. United States v. Sandy, 605 F.2d, (6th Cir. 1979), p. 210.
  92. United States v. Thomas, 613 F.2d, (10th Cir. 1980), p. 787; United States v. Langford, 688 F.2d, (7th Cir. 1982), p. 1088.
  93. Hamling v. United States, 418 U.S., (1974), p. 87; United States v. Bagnell, 679 F2d, (11th Cir. 1982), p. 826.
  94. Pierce v. State, 296 Se. 2d, (Ala. 1974), p. 218; People v. Better, 337 N.E.2d, (III. 1975), p. 272; Commonwealth v. 767 Main Corp., 357 N.E.2d, (Mass. 1976), p. 753; People v. Colgud, Inc., 402 N.E.2d, (N.Y. 1980), p. 1140 (held error to instruct on county standards); LaRue v. State, 611 S.W.2d, (Tex. Cr. App. 1980), p. 63; Siaton v. Paris Adult Theater I, 201 S.E.2d, (Ga. 1973) p. 456; State v. Motion Picture, 547 P.2d Cal. App. 2d 789, 73 Cal. Rptr., (1968), p. 587.
  95. State v. DePiano, 375 A.2d, (N.J. 1977), p. 1169; Davison v. State, 288 So. 2d, (Fla. 1973), p. 483; Brozelton v. State, 282 So., (Ala. Cr. App. 1973), p. 342; Sedelbaner v. Indiana, 428 N.E.2d, (Ind. 1981), p. 206, cent. denied 455 U.S. 1035.
  96. People v. Ridens, 321 N.E.2d, (III. 1974), p. 264 cert. denied 421 U.S. 993; City of Belleville v. Morgan, 376 N.E.2d, (III. 1974), p. 704.
  97. Price v. Commonwealth, 201 S.E.2d, (Va. 1974), p. 798 cert. denied 419 U.S. 902.
  98. Jenkins v. Georgia, 418 U.S., (1974), pp. 153, 160.
  99. Id., p. 161.
  100. . 418 U.S., (1974), p. 153.
  101. Id., p. 161.
  102. Id., p. 160, citing 413 U.S., (1973), p. 15, 27.
  103. 354 U.S., (1957), p. 476.
  104. Id., p. 487.
  105. Id., p. n.20.
  106. 413 U.S., (1973), pp. 15, 24.
  107. Mishkin v New York, 383 U.S., (1965), p. 502; See also, Hamling v. United States, 418 U.S., (1983); p. 87 Jenkins v. Georgia, 418 U.S., (1973), p. 153; United States v. Petrov, 747 F.2d, (2d Cir. 1984), p. 824; Sedelbauer v. State, 455 N.E. 2d, (1983), p. 1159.
  108. See, Flying Eagle Publications v. United States, 273 F.2d, (1st Cir. 1960), p. 799 (unwholesome or unhealthy interest in sex, it is material which portrays sex with a looselipped sensuous leer.); United States v. 35 MM Motion Picture Film, 432 F.2d, (2d Cir. 1970), p. 705 (characterized by the "leer of the sensualist," debasing, shameful or morbid quality in expression or depiction of human sexuality); United States v Keller, 259 F.2d, (3d Cir. 1958), p. 54 (itching, longing, uneasy with desire for longing, lascivious thoughts, lustful desires.); Penthouse International Ltd. v. McAuliffe, 610 F.2d, (5th Cir. 1980), p. 1353 (shameful or morbid interest in nudity, sex or excretion.); United States v. Langford, 688 F.2d, (7th Cir. 1982), p. 1088 (appeal to a morbid interest as distinguished from a candid interest.); Eastman Kodak Co. v. Hendricks, 262 F.2d, (9th Cir. 1958), p. 393 and Childs v. State of Oregon, 431 F.2d, (9th Cir. 1970), p. 272 (inciting lascivious thoughts, arousing lustful thoughts.).
  109. See, State v. LeWitt, 22 A.2d, (Ct. App. Conn. 1966), p. 579; City of Chicago v. Universal Publishing and Dist. Corp., 34III. 2d 250, 215 N.E.2d, (1966), p. 251; Attorney General v Book Named John Cleland's Memoirs of a Woman of Pleasure, 349 Mass. 69, 206 N.E.2d, (1965), p. 403, rev'd on other grounds, 383 U.S., (1966), p. 413; People v. Speer, 52 III. App. 203, 367 N.E.2d, (1977), p. 372 (shameful, morbid interest in nudity, sex, or excretion); City of Phoenix v. Fine, 4 Ariz. App, 303, 420 P.2d, (1966), p. 26 and Andrews v State, 639 S.W. 2d, (Tex. App. 1982), p. 4 (morbid or shameful interest in nudity, sex or lewdness going substantially beyond customary limits of candor in description or representation of such matters)I State v. Little AA Corp., 191 Neb. 448, 215 N.W.2d, (1974), p. 853 and People v. Ciampa, 394 N.Y.S.2d, (1977), p. 727 (tending to arouse sexual desires); State v. Great American Theater Co., 327 Kan 633, 608 P.2d, (1980), p. 951 (an unhealthy, unwholesome, morbid, degrading and shameful interest in sex.); Spry v. State, 156 Ga. App. 74, 274 S.E.2d, (1983), p. 2 (material which appeals to prurient interest is material which has tendency to excite lustful thoughts.); State v. Barrett, 292 S.E.2d, (S.C. 1982), p. 590 (shameful or morbid interest in nudity, sex or excretion and is reflective of an arousal of lewd and lascivious desires.)
  110. 105 S. Ct., (1985), p. 2794.
  111. Wash. Rev. Code S7.48A 010 et seq.
  112. Id., p. S7.48A 020(2) (a).
  113. Id.
  114. Id., p. 7.48A.010(8).
  115. J. R. Distributors, Inc. v. Eikenberry, 725 F.2d, (9th Cir. 1984), p. 482. 1490. Id., p. 492.
  116. Id.
  117. 105 S.Ct pp. 2798-99.
  118. Id., p. 2799.
  119. Id.
  120. Id., p. 2801.
  121. Id., p. 2802.
  122. U.S. p.. 25.
  123. 408 U.S., (1972), p. 229.
  124. Id., pp. 229-30.
  125. Id., p. 230.
  126. 413 U.S. p. 24.
  127. 408 U.S. p. 231.
  128. Id.
  129. Id., pp. 230-31.
  130. See, United States v. Merrill, 746 F.2d, (9th Cir. 1984), p. 458; United States v. Various Artlicles, 536 F. Supp., (S.D.N.Y. 1981), p. 50.
  131. See e.g., State v. J-R Distributors, 512 P. 2d, (Wash. 1973), p. 1049 (Bedplay and E-Jac Magazines).
  132. Penthouse International v. McAuliffe, 610 F.2d, (5th Cir. 1980), p. 1353 (January, 1978 issue); Penthouse International v. Webb, 594 F. Supp., (N.D. Ga. 1984), p. 1186 (September, 1984 issue). But see, State v. Walden Book Co., 386 So.2d, (La. 1980), p. 342 (finding the June, 1980 issue of Penthouse had serious value).
  133. United States v. One Reel of Film, 481 F.2d, (1st Cir. 1973), p. 206.
  134. Penthouse International v. McAuliffe, 610 F.2d, (5th Cir. 1980), p. 1353 (January 1978 issue).
  135. United States v. Gladwell, 373 F.Supp., (N.D. Ohio 1974), p. 247.
  136. Smith v. United States, 431 U.S., (1977), pp. 291, 301.
  137. Id., p. 305.
  138. Miller v. California, 413 U.S., (1973), pp. 15, 30.
  139. 4331 U.S., p. 301, citing F. Schauer, The Law of Obscenity, (1976), pp. 123-24.
  140. See, People v. Enskat, 109 Cal. Rptr. 433, 33 Cal. 3d, (1973), p. 900, U.S. cent. denied 418 U.S., p. 937. The Governor of California has signed Senate Bill 139 which amends the state obscenity statute as of January 1987. The new law contains a requirement of "significant literary, artistic, political, educational, or scientific value."
  141. See, Memoirs v. Massachusetts, 383 U.S., (1966), p. 413.
  142. See, United Artists v. Gladwell, 373 F.Supp., (N.D. Ohio 1974), p. 247; Commonwealth v. 707 Main Corp., 357 N.E. 2d, (Mass. 1976), p. 753.
  143. U.S. p. 27; See, Hamling v. United States, 418 U.S., (1974), p. 87 (advertising brochure containing full page of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of sexual acts); United States v. Gower, 503 F.2d, (D.C. Cir. 1974), p. 189 (photos and films which showed nude males and females engaged in explicit sexual intercourse, fellatio, cunnilingus and masturbation); United States v. Alexander, 498 F.2d, (2d Cir. 1974), p. 934 (photos with no text that depicted fellatio, cunnilingus and sodomy); McKenzie v. Butler, 398 F.Supp., (W.D. Tex. 1975), p. 1319 (movie "Deep Throat"); United States'v. Various Articles, 460 F.Sup., (S.D. N.Y. 1978), p. 826 (film of two naked teenage boys engaging together in oral and anal intercourse and masturbation, which had no plot, point or message and displayed no acting or directoral skills.); Penthouse v McAuliffe, 610 F.2d, (5th Cir. 1980), p. 1353 (January, 1978, "Penthouse" including "2 photos in which the naked woman has her finger inserted in the lips of her genitals so that it contacts her clitoris . . . [an] expression consistent with masturbation. . ." also letters with descriptions of "hard-core" sexual acts.); United States v. Friedman, 506 F.2d, (8th Cir. 1974), p. 511 (magazine with photos depicting men and women in heterosexual and homosexual acts including intercourse with penetration, oral intercourse, fellatio, cunnilingus, and masturbation); Miller v. United States, 507 F.2d, (9th Cir. 1974), p. 1100, cert. denied. 95 S.Ct., (1975), p. 2620 (magazine "The Name is Bonnie" with 45 nude photos depicting and emphasizing female sex organs); United States v. Miller, 455 F.2d, pp. 899, 505 F.2d, (9th Cir. 1972, 1974), p. 1247 (photos of male genitals and close-ups of female genitals, descriptions of bestiality, lesbian activities, incest and sodomy between man and woman); United States v. Pryba, 502 F.2d, (D.C. Cir. 1974), p. 391 cent. denied. 95 S.Ct., (1975), p. 815, (film of nude men and women engaged in homosexual and heterosexual acts); United States v. Womack, 509 F.2d (D.C. Cir. 1974), cent. denied. 95 S. Ct., (1975), p. 2644 (magazines containing photographs showing young boys posed in a manner which highlights and emphasizes their exposed genitalia in full or partial erection ... in many instances the position of the boys indicates that oral or anal sodomy is imminent); Weissbaum v. Hannon, 439 F.Supp., (N.D. Ill. 1977), p. 873 (S & M photos of naked people whipped and bound; women in chastity belts with invitations for sex; ads for cock rings and humiliation collar, detailed articles about 15-year-old boy initiating 12-year-old girl to sex and bondage); United States v. American Theater Corp. 526 F.2d, (8th Cir. 1975), p. 48 (movie depicting men and women engaging in heterosexual and homosexual intercourse, cunnilingus, masturbation and depicting semen spread on women's bodies) Penthouse Int. Ltd. v. Webb, 594 F.Supp., (N.D. Ga. 1984), p. 1186 (Sept. & Oct. 1984 "Penthouse," including photos of women in varying degrees of nudity, photos of lesbian sexual activity and masturbation, columns "Penthouse Forum;" "Women's Forum" and "Call Me Madam" detailing various sexual acts.); Pierce v. State, 244 S.E. 2d, (Ga 1978), p. 589 (magazine pictures of persons exhibiting genitalia and engaging in various forms of sexual activities both homosexual and heterosexual.); State v. American Theater Corp. 230 N.W. 2d, (Neb. 1975), p. 209 "Deep Throat." heterosexual intercourse, group sex, explicit penetration, fellatio, cunnilingus, female masturbation and sodomy, seminal ejaculation, sex scenes with only minor interruption.); Slaton v. Paris Adult Theater I, 201 S.E. 2d, (Ga. 1973), p. 456 (movies depicting simulated intercourse and fellatio.); Dyke v. State, 209 S.E.2d, (Ga. 1974), p. 166 (movie "Devil in Miss Jones." Individual and group acts of intercourse, fellatio, cunnilingus with camera focusing on genitals.); New York v. Buckley, 307 N.E.2d, (N.Y. 1973), p. 805 "Screw" magazine. (Photos of heterosexual and homosexual sex with genitals prominently and lewdly displayed, movie review with worth being determined by degree of male erection is it likely to induce, ads for sex paraphernalia and personal ads.); Harlow v. City of Birmingham, 296 S.2d, (Ala. Ct. Cr. App. 1974), p. 202 (magazines with every page depicting nude males and females in intercourse, fellatio, cunnilingus, sodomy, including group sex. Lurid stories including "I was Raped by a Black and Now Refuse Abortion," "I Carried My Father's Child;' "Smoking Pot Changed My Sex Life."); Herman v. Arkansas, 512 S.W.2d, (Ark. 1974), p. 928 (magazine photos of nude female involved in heterosexual and homosexual oral breast manipulation with others. Photos of sex acts with no less than three nor more than eight persons depicted in each photo.); Kaplan v. United States, 311 A.2d, (D.C. App. 1973), p. 506 (Peep show depicting naked female shamelessly displaying genitals and breasts and close-up shots with use of banana to simulate sex and oral sex.); Trans-Lux Corp. v. State ex. rel. Sweeton, 366 So. 2d, (Ala. 1979), p. 710 (film "The Opening of Misty Beethoven." Numerous scenes of explicit sexual conduct between members of the same sex and members of the opposite sex including cunnilingus, intercourse, masturbation and fellatio in repetitive displays.); McKinney v. City of Birmingham, 296 So.2d, (Ala. 1973), p. 197 (films graphically depicting nude men and women with their genitals fully exposed in poses and activities involving actual sexual intercourse, fellatio and cunnilingus between both males and females and other sexual activities); Illinois v. Ridens, 282 N.E. 2d, (Ill. 1972), p. 691, cert. denied. 95 S.Ct., (1975), p. 2000 (magazines showing nude men and women in seductive embraces, posed with their legs spread so as to focus on their genitals); North Carolina v. Horn, 203 S.E.2d, (N.C. 1974), p. 36, cent. denied. 95 S. Ct. 238 (films showing actual acts of sexual intercourse, fellatio and cunnilingus performed by and between human male and human females); Washington v. J-R Distributors Inc., 512 P. 2d, (Wash. 1973), p. 1049, cent. denied. 418 U.S., (1974), p. 949 (magazines "Bed-play" and "E-Jac" containing photos graphically depicting unclothed males and females engaged in acts of masturbation, sexual intercourse, fellatio and cunnilingus.); Garcia v State, 633 S.W2d, (Tex. App. 1982), p. 611 (magazine entitled "Best of Cum." Front and back covers displaying full page photographs of male ejaculating onto nude females and containing 100 pages of photographs depicting nude males ejaculating onto females.).
  144. 431 U.S., (1977), p. 767.
  145. Id., p. 773.
  146. Id.
  147. 413 U.S., (1973), p. 115.
  148. Id., p. 116.
  149. Id., pp. 116-17.
  150. Id., p. 117.
  151. Id., p. 119.
  152. Id.
  153. 418 U.S., (1974), p. 153.
  154. Id., p. 158.
  155. Id., p, n.5.
  156. Id., p. 158.
  157. Id., p. 160, quoting 413 U.S., (1973), pp. 15, 27.
  158. Id., p. 161.
  159. Id.
  160. Id.
  161. 422 U.S., (1975), p. 205.
  162. Id., p. 207.
  163. Id., p. 213.
  164. Ginzburg v. New York, 390 U.S., (1968), p. 629.
  165. Id.
  166. Id., pp. 636-37.
  167. Id., p. 631.
  168. Id., p. 634.
  169. Id., pp. 639-40.
  170. 2 Technical Report of the Commission on Obscenity and Pornography, (1970), pp. 45-52.
  171. Ginzburg v. United States, 383 U.S., (1966), pp. 463, 467, quoting Roth v. United States, 354 U.S., (1957), pp. 476, 495-96 (Warren, C.J., concurring).
  172. 383 U.S., (1966), pp. 463, 470.
  173. United States v. Palladino, 475 F.2d, (1st Cir. 1973), p. 65; United States v. Ratner, 502 F.2d, (5th Cir. 1974), p. 1300.
  174. Handing v. United States, 418 U.S., (1974), p. 87; Pinkus v. United States, 436 U.S., (1978), p. 293.
  175. 383 U.S., p. 467.
  176. Id., p. 468.
  177. Id., p. 471.
  178. United States v. Ratner, 502 F.2d, (5th Cir. 1974), p. 1300; United States v. Dost, 575 F.2d, (10th Cir. 1978), p. 1303; United States v. Gundlach, 345 F. Supp., (W.D. Pa. 1972), p. 709.
  179. People v. Sarnblad, 26 Cal. App. 3d 801, 103 Cal. Reptr., (1972), p. 211 (movie shown at the "Por-No" Theater).
  180. State v Boyd, 300 N.E. 2d, (Ohio App. 1972), p. 752; New Riviera Arts Theater v. State, 412 S.W.2d, (Tenn. 1967), p. 890.
  181. Miller v. U.S., 431 F.2d, (9th Cir. 1970), p. 655.
  182. Orito v. State, 191 N.W. 2d, (Wisc. 1972), p. 763.
  183. Sanza v. State Bd. of Censors, 226 A.2d, (Md. 1967), p. 317; Hewitt, v. State Bd. of Censors, 254 A.2d, (Md. 1969), p. 203.
  184. People v. Bloss, 201 N.W. 3d, (Mich. 1972), p. 806; People v. Mature Enterprises, Inc., 343 N.Y.S.2d, (1973), p. 911; Luros v. United States, 389 F.2d., (8th Cir. 1968), p. 200 (nudist magazines not advertised as erotica); United States v. Pelligrino, 467 F.2d, (9th Cir. 1972), p. 41 (book "Woman: Her Sexual Variations and Functions" with explicit color photos of female genitalia advertised as containing knowledge of female sexual response for benefit of adults).
  185. Books Inc. v. United States, 388 U.S., (1967), p. 449 reversing 358 F.2d, (1st Cir. 1969), p. 935; United States v. Baranov, 418 F.2d, (9th Cir. 1969), p. 1051; Childs v. Oregon, 401 U.S., (1971), p. 1006 reversing per curium 431 F.2d (9th Cir. 1970); Redrup v. New York, 386 U.S., (1967), p. 767 (covers "Lust" and "Shame Agent").
  186. Aday v. United States, 388 U.S., (1967), p. 447 reversing 357 F.2d, (6th Cir. 1966), p. 855.
  187. Potomac News Co. v. United States, 389 U.S., (1967), p. 47 reversing 373 F.2d, (4th Cir. 1967), p. 635.
  188. United States v. Stewart, 377 F.Supp., (E.D. Pa. 1971), p. 299; City of Rochester v. Carlson, 202 N. W.2d, (Minn. 1972), p. 632; State v. Lebovitz, 202 NW.2d, (Minn. 1972), p. 648.
  189. Splawn v. California, 431 U.S., (1977), p. 595.
  190. 383 U.S., p. 470.
  191. Splawn v. California, 431 U.S. U.S., (1977), p. 595.
  192. Smith v. California, 361 U.S., (1959), p. 147.
  193. See, Henley v. Wise, 303 F.Supp.,(N.D. Ind. 1969), p. 62; People v. Tannahill, 38 III. App. 3d 767, 348 N.E.2d, (1976), p. 847; People v. Finkelstein, 9 N.Y.2d 342, 174 N.E.2d, (1961), p. 470.
  194. See, Hamling v United States, 418 U.S., (1974), p. 87; See also, United States v. Marks, 364 F.Supp., (E.D. KY. 1073), p. 1022, aff'd 520 F.2d, (6th Cir. 1975), p. 913, rev'd on other grounds, 403 U.S., (1977), p. 188.
  195. Rosen v. United States, 161 U.S., (1969), p. 29.
  196. Hamling v. United States, 418 U.S., (1973). p. 87; Mishkin v New York, 383 U.S., (1966), p. 502; People v. Finkelstein, 9 N.Y.2d 342, 174 N.E.2d, (1961), p. 470; State v. Burgun, 384 N.E.2d, (Ohio 1978), p. 255 (knowledge of character or nature of obscene material is constitutionally adequate indication of scienter and precise knowledge is not required).
  197. Smith v. California, 361 U.S., (1954), p. 147; People v. Rode, 57 III. App. 3d 649, 373 N.E.2d, (1968), p. 605; Peters v State, 449 N.E.2d, (Ind. App. 1983), p. 311.
  198. Smith v. California, 361 U.S., (1959), pp. 147, 154.
  199. 383 U.S., (1966), p.502.
  200. Id., pp. 511-12. 1577. Id.
  201. 681 S.W.2d, (Tex. Cr. App. 1984), p. 124.
  202. Id., pp. 126 and 128.
  203. 480 A.2d, (Pa. 1984), p. 266.
  204. Id., p. 271.
  205. Id.
  206. United States v. Battista, 464 F. 2d, (6th Cir. 1981), p. 237.
  207. States v. American Theater Corp., 244 N.W.2d, (Neb. 1976), p. 56.
  208. See, Ginzburg v. New York, 390 U.S., (1968), p. 629; United States v. Thevis, 484 F.2d, (5th Cir. 1973), p. 1149; Volkland v. State, 510 S.W.2d, (Tex. App. 1974), p. 585; State v. Hull, 86 Wash. 2d 527, 546 P.2d, (1976), p. 912; (statute's definition of scienter including a situation where person has information or circumstances that would lead prudent person to form belief as to subject matter and if followed by inquiry would disclose its character, meets the constitutional requirement of scienter).
  209. 352 U.S., (1957), p. 380.
  210. Id., p. 381.
  211. Id., pp. 382-3.
  212. 360 U.S., (1959), p. 684.
  213. Id., p. 685, quoting N.Y. Education Law S122-1 (McKinney 1958).
  214. Id., p. 685.
  215. Id., pp. 688-89.
  216. F. Schauer, The Law of Obscenity, (1976), p. 159.
  217. Id.
  218. See, Joseph Burstyn, Inc. v. Wilson, 343 U.S., (1952), pp. 495, 504-05.
  219. See, Winter v. New York, 333 U.S., (1949), pp. 507, 515-16 (holding statute prohibiting "massing stories to incite crime" unconstitutionally vague); See also, Gelling v. Texas, 343 U.S., (1952), p. 960 (holding statute prohibiting licensure of motion picture "of such character as to be prejudicial to the best interest of the people of the city;" to be void for vagueness).
  220. Roth v. United States, 354 U.S., (1957), pp. 476, 491-92.
  221. Id., p. 491.
  222. Id. citing U.S. v. Petrillo, 332 U.S., pp. 1,7,8.
  223. Id., pp. 491-2.
  224. 54 U.S.L.W., (April 22, 1986), p. 4396.
  225. Id., p. 4398, citing Heller v. New York, 413 U.S., (1973), p. 483.
  226. Id., p. n.5.
  227. Id., citing Marcus v. Search Warrant, 367 U.S., (1961), pp. 717, 732 and Lee Art Theater, Inc. v. Virginia, 392 U.S., (1968), p. 636.
  228. Id.
  229. Id.
  230. 427 U.S., (1976), p. 50.
  231. Id., p. 52.
  232. Id., p. 53.
  233. Id., p. 55.
  234. Id., p. 61.
  235. Id., p. 61.
  236. Id.
  237. Id., p. 62.
  238. Id.
  239. Id., pp. 70-71.
  240. Id. p. 72.
  241. Slip. op. No. 84-1360 (Feb. 25, 1986).
  242. Id., p. 1.
  243. Id., p. 2.
  244. Id., pp. 4-5.
  245. Id., p. 6.
  246. Id., p. 8.
  247. Id., pp. 9-10.
  248. Id., p. 11.
  249. Id., p. 12.
  250. Id.
  251. Id.
  252. 413 U.S., (1973), p. 15.
  253. Id., p. 29.
  254. Id.