Wednesday, January 11, 2012

Blogging My Homework: Obscenity and the First Amendment

This is my term paper for a class I took last semester on the First Amendment.  Were I to write it again I would include a more comprehensive case for moral paternalism in law, a topic I may write about in a future post.

Obscenity and the First Amendment

The state’s interest in protecting the public from obscenity can appear to conflict with the freedom of speech and of the press that is enshrined in the First Amendment to the United States Constitution.  However, throughout the history of obscenity jurisprudence, obscenity has not been considered to be protected speech although there is a tradition of judicial dissent on this point.  Even so, the potential for overbroad obscenity legislation and the specter of government “thought control” is problematic, and must be balanced against state interest in protecting public morals.  To analyze the relationship between obscenity and the First Amendment, the original purpose of the First Amendment and its contemporaneous interpretation must be considered.  In addition, the definition of obscenity and obscenity jurisprudence needs to be analyzed.  Finally, it should be determined what if any role the state has in the citizen’s choice of what to see in a magazine, movie, or on a website.

The First Amendment to the United States Constitution reads, “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  The text of the amendment would seem to be fairly straightforward; Justice Hugo Black certainly thought so.  In his concurring opinion in the obscenity case Smith v. California (1959), Justice Black declares, “That [First] Amendment provides, in simple words, that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ I read ‘no law . . . abridging’ to mean no law abridging” (361 U.S. 147, 157).  Justice Black and his colleague Justice Douglas were free speech absolutists who opposed anti-obscenity legislation on First Amendment grounds.  Although they claimed to defend the original meaning of the Constitution, free speech absolutism is not supported by an examination of judicial history.

For one thing, the First Amendment was not meant to protect private libel.  Libel laws were enacted and enforced in states whose constitutions protected freedom of speech and press.  For example, the Pennsylvania constitution of 1776 declares, “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained” (University of Chicago).  In the case of Respublica v. Oswald (1788), the Pennsylvania Supreme Court affirmed the freedoms enumerated in the state constitution but declared:
The true liberty of the press is amply secured by permitting every man to publish his opinions; but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government should afford protection and impunity (1 U.S. 319, 325).
Clearly, freedom of speech and press was not meant to be absolute.  For his part, Justice Black favored civil libel laws.  He attempted to reconcile this position with his free speech absolutism by holding that such speech was “private” and thus not protected by the First Amendment (Newman 491).  Justice Black is arguably the staunchest advocate for free speech that has ever sat on the Supreme Court, yet even he does not hold that the protections offered by the First Amendment are truly absolute.  Once it is established that not everything said, print, or broadcast is protected, it is simply a matter of determining what “speech” should or should not be protected.

The early history of American obscenity jurisprudence demonstrates that obscenity was not considered speech worth protecting.  After the revolution, American states adopted English common law as a legal substrate (Dennis, 26).  The English common law allows for the prosecution of obscene publications and performances either as “obscene libel” or “nuisances.”  Commonwealth v. Sharpless (1815) was a case brought before the Supreme Court of Pennsylvania.  The court upheld the conviction of six men for the crime of obscene libel, and offers a definition of obscenity: “In its nature and by its example, it tends to the corruption of morals” (Dennis 33).  This decision was made in a state with constitutional protections of speech and press, demonstrating that such freedoms were not understood at the time to protect obscenity.  As for nuisance prosecutions, in 1850 the U.S. Supreme Court decided in Phalen v. Virginia that, “The suppression of nuisances injurious to public health or morality is among the most important duties of government” (49 U.S. 163, 168).  The Hicklin standard, based on the British case Regina v. Hicklin was the most important obscenity standard of the 19th Century.  In this case, Lord Cockburn said, “I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall” (Feinberg 171).  Notably, the Hicklin test allowed for the suppression of works that were obscene in whole or in part.  Starting in 1868 and continuing until the Roth decision in 1957, American courts used the Hicklin standard to determine what material was obscene and thus unprotected by any guarantee of free speech or press (Feinberg 171).

Many legal commentators criticize the Hicklin test, and not without reason.  Labeling any work as obscene that contains a part that lifted from context, might corrupt and deprave is entirely too broad.  Many non-obscene works, including classics such as Chaucer and Shakespeare could be censored under such a test.  However, the test also has a great strength.  The standard makes a point of protecting children, “whose minds are open to such immoral influences.”  Children have not yet developed the full capacities of reason and the state has the right to, and a legitimate interest in, ensuring that children develop into moral, responsible adults.  It is also important to note that from Commonwealth v. Sharpless to the establishment of the Hicklin standard, no legal authorities held that obscenity constituted speech that ought to be protected.  This precedent continues to the present day.

The next great development in obscenity jurisprudence occurred in 1958, with Roth v. United States, a case that upheld the plaintiff’s conviction for selling obscene materials.  Writing for the majority, Justice William Brennan declared, “In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. . . . We hold that obscenity is not within the area of constitutionally protected speech or press” (345 U.S. 476, 483, 485).  This was not new.  What Roth changed was the way that criminal obscenity was defined.  The Roth test asks, “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest” (345 U.S. 476, 489).  This departs from the Hicklin standard in two important ways.  First, the test is narrowed to specifically address materials that appeal to a “prurient interest,” prurient being defined in footnote 20 as “material having a tendency to excite lustful thoughts” (354 U.S. 476, 494).  This is more precise than a prohibition of material with a tendency to corrupt and deprave.  In addition, unlike Roth, the “corrupt and deprave” standard had served as both a definition of obscenity and a justification for state intervention.  The state certainly has an interest in preventing the citizenry from becoming corrupt and depraved.  This interest is only implied by the “prurient interest” standard.

In his dissent, the free speech absolutist Douglas, with whom Black concurs, argues that “prurient interest” is entirely too broad of a test, because many things arouse people “every day in normal life in dozens of ways” (354 U.S. 476, 494).  Perhaps the two justices were distracted by the box of pornography that had been supplied them as examples of obscenity and failed to notice that Brennan’s test does not consider material to be obscene simply because it is arousing but because in the entirety of the work, the “dominant theme” and purpose is to arouse.  This is a narrowing of the Hicklin standard, and the argument of the dissent would make a good point if it were directed against Hicklin, but is useless as an assessment of Roth.  The Roth standard does not violate the First Amendment.

In 1966, the Roth test was succeeded by a new standard based on Memoirs v. Massachusetts.  In Memoirs, the Court reversed a lower court ruling that the erotic book Memoirs of a Woman of Pleasure better known as Fanny Hill was obscene.  Justice Brennan, writing for the majority, held that in addition to the prescriptions of the Roth standard, obscenity was to be defined as that which was “patently offensive” and “utterly without redeeming social value” (354 U.S. 476).  The Memoirs criterion, as it was known, severely restricted the legal definition of obscenity.  It was as if the Hicklin standard had been inverted, so now any “redeeming” segment of a generally obscene work would ensure the protection of that work.  The criterion was unnecessarily narrow and would prevent the state from prosecuting many obscene works.  

Something that Roth and Memoirs failed to do was recognize a separate standard for children such as that which existed under the Hicklin test.  This was corrected in Ginsberg v. New York (1968).  Ginsberg concerned a store owner who knowingly sold “girlie” magazines to a 16 year old boy.  The magazines contained photographs of nude women but were not considered obscene for adults, only for children.  Ginsberg argued that the dual standard violated his First Amendment rights.  Again writing for the majority, Justice Brennan affirmed Ginsberg’s conviction.  Brennan held that the state has an interest in aiding parents, whose duties include the protection of children from immoral influences.  Brennan asserts, “The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility” (390 U.S. 629, 639).  In addition, Brennan says “The State also has an independent interest in the well-being of its youth” (390 U.S. 629, 640).  Brennan quotes approvingly from the child labor case Prince v. Massachusetts (1944), “The State has an interest ‘to protect the welfare of children’ and to see that they are ‘safeguarded from abuses’ which might prevent their ‘growth into free and independent well-developed men and citizens” (390 U.S. 629, 640-641).  Here Brennan recognizes that lacking the full ability to reason, children are not yet “free” and thus both parents and the state have the special right and responsibility to protect them from influences deleterious to character development.

Memoirs made it impossible to censor pornography that could claim “social value” however slight and Stanley v. Georgia (1969) made it impossible to prosecute for the private possession of obscene materials with no social value.  Stanley overturned the conviction of a man who had been arrested for the possession of “stag films” in his home.  Writing for the majority, Justice Marshall held that legitimate censorship of obscenity becomes unconstitutional “thought control” when applied to materials inside the home.  He says, “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch” (394 U.S. 557, 565).  Marshall derives a right to privacy from the First and Fourteenth Amendments but such a right cannot be found in either except by wishful thinking.  The First Amendment does not apply to obscenity, which Marshal admits.  The Fourteenth protects the “fundamental liberties” of the citizenry, as Marshall calls them, but the fundamental liberties in question are those protected by the First Amendment which again, does not protect obscenity (394 U.S. 557, 572).  In a footnote, Marshall writes “What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime” (394 U.S. 557, 572).  The distinction between these items and obscene materials is arbitrary.  If the very sale of materials outside the home is legitimate grounds for prosecution, then their possession inside the home ought to be so as well, and this would include obscene materials.  Stanley overly restricts the state’s police power to protect public morals and its implications would prove disastrous with the advent of internet pornography.  Doubts about the state’s interest in prosecuting obscenity was previously limited to dissenting opinions, but the right to privacy that Marshall “discovered” in his majority opinion now called into question whether the state really has any interest in what books, films, or photographs someone may view.

Though Stanley was a setback, obscenity jurisprudence improved with Miller v. California (1973).  The obscenity test established in Miller remains the legal standard to this day.  Miller concerned a man who was arrested for mailing out unsolicited pornography.  As laid out in the majority opinion written by Chief Justice Burger, the Miller test for obscenity has three prongs: 
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (413 U.S. 15, 24-35).
The Miller test strikes a good balance between the state’s right to censor obscene materials and a concern for the rights of those whose non-obscene works might be censored under an overly broad obscenity standard.  Works with serious literary, artistic, or scientific value are protected from censorship, no matter how much nudity or sex they contain.  Justice Brennan did not feel that this was enough however.  In his dissent, Brennan declares “The statute under which the prosecution was brought is unconstitutionally overbroad” (413 U.S. 15, 47).  The same day, Paris Adult Theatre I v. Slaton was decided, upholding the conviction of two “adult” theater owners.  Brennan’s dissent in this case explains his philosophy on obscenity and his rejection of earlier opinions such as Roth that he himself had written:
While I cannot say that the interests of the State [in suppressing obscenity]—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults.  I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly "obscene" contents (413 U.S. 49, 112, 113).
Brennan’s concerns about the threat of overbroad obscenity legislation are not entirely without merit and are exemplary of the greatest challenge to those who would censor obscenity.  We must justify the state interest in obscenity censorship and weigh it against the danger of censoring non-obscene works outright by over-broad laws or by the chilling effect upon expression that obscenity legislation might create.  It must be determined if the state truly has, in the words of Justice Marshall, any “business telling a man . . . what books he may read or what films he may watch” (394 U.S. 557, 565).  

The state does indeed have an interest in protecting public morality from the scourge of obscenity.  In his Paris Adult Theatre dissent, Justice Brennan affirmed the compelling state interest in keeping obscenity away from children, just as he did in Ginsberg.  By itself, the protection of children could justify an outright ban on obscene materials.  There is no doubt that it is eminently possible for a child to gain possession of his father’s pornography or obscene material belonging to some other adult.   In addition, though Brennan does not find a compelling enough state interest in protecting consenting adults from the effects of obscenity, the case for protecting children can be extended to adults.  Children are especially vulnerable to the ill effects of obscenity because they are in the process of forming their character and lack complete freedom.  But people do not cease to develop their character when they reach the age of majority.  The way they view themselves and others can still be modified by external influences.  Robert George argues, “Pornography, precisely by arousing sexual desires unintegrated with the human goods to which sexuality is morally ordered, induces in its consumers states of emotion, imagination, and sentiment that dispose them to understand and regard themselves and their bodies, and others and their bodies, as, in essence. . . sex objects” (117).  Such a warped view of sexuality can only harm marriages and families.  The family is the basic unit of society and thus it is the right and the duty of the state to oppose obscenity.

Unfortunately, the power of the state to suppress obscenity has been curtailed by bad law and lack of will.  Since Stanley, law enforcement has lacked the authority to prosecute someone for possession of obscenity in their home.  Now that internet pornography is ubiquitous, anyone can acquire as much pornography as they could possibly want with absolutely no legal consequences.  Of course, if legislatures and law enforcement were serious about prosecuting obscenity, every “adult” bookstore in the nation would be out of business.  People are simply not interested enough to fight obscenity.  George writes, “Legal prohibition of anything works well only when supported by a widespread recognition of the evil of the thing prohibited” (121).  Wise jurisprudence can only help a society that will take advantage of it.  The state has a legitimate interest in suppressing obscenity, an interest that outweighs the dangers of overbreadth.  In order to serve that interest, Stanley ought to be overturned but more importantly, American culture must be reformed.

Works Cited

Dennis, Donna. Licentious Gotham: Erotic Publishing and its Prosecution in Nineteenth-Century New York. Cambridge: Harvard UP, 2009. Print.

Fineberg, Joel. Offense to Others. New York: Oxford UP, 1985. Print. The Moral Limits of the Criminal Law 2.

George, Robert P. The Clash of Orthodoxies: Law, Religion, and Politics. Wilmington: ISI, 2001. Print.

Ginsberg v. New York. 390 U.S. 629. Supreme Court of the US. 1968. FindLaw. Thompson Rueters, n.d. Web. 6 Dec. 2011.

Memoirs v. Massachusetts. 383 U.S. 413. Supreme Court of the US. 1966. FindLaw. Thompson Rueters, n.d. Web. 6 Dec. 2011.

Miller v. California. 413 U.S. 15. Supreme Court of the US. 1973. Google Scholar. Google, n.d. Web. 6 Dec. 2011.

Newman, Roger K. Hugo Black: A Biography. 2nd ed. New York: Fordham UP, 1997. Print.

Paris Adult Theatre I v. Slaton. 413 U.S. 49. Supreme Court of the US. 1973. Google Scholar. Google, n.d. Web. 6 Dec. 2011.

“Pennsylvania Constitution of 1776: Declaration of Rights.” The Founder’s Constitution. The University of Chicago, 1987. Web. 5 Dec. 2011. < founders/ documents/bill_of_rightss5.html>.

Phalen v. Virginia. 49 U.S. 163. Supreme Court of the US. 1850. FindLaw. Thompson Rueters, n.d. Web. 5 Dec. 2011.

Respublica v. Oswald. 1 U.S. 319. 1788. Google Scholar. Google, n.d. Web. 5 Dec. 2011.

Roth v. United States. 354 U.S. 476. Supreme Court of the US. 1958. FindLaw. Thompson Rueters, n.d. Web. 5 Dec. 2011.

Smith v. California. 361 U.S. 147. Supreme Court of the US. 1959. FindLaw. Thompson Rueters, n.d. Web. 4 Dec. 2011.

Stanley v. Georgia. 394 U.S. 557. Supreme Court of the US. 1969. Google Scholar. Google, n.d. Web. 6 Dec. 2011.


  1. The 1st Amendment part on abridging speech was aimed at protecting political speech, 1st & formost. I highly doubt any of our Founding Fathers would have labeled porn as that.