Grappling With Obscenity
California Lawyer

Grappling With Obscenity

December 2009

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Hard-Core Advocates December 2009

The U.S. Supreme Court did not wade into the thicket of defining obscenity until 1957, when it decided the Roth and Alberts cases. For the next 16 years, the Court struggled to articulate an appropriate test that would apply nationwide. Eventually, in Miller v. California, the Court settled on the concept of "contemporary community standards," which vary from town to town. Along the way, the justices struggled to determine what forms of expression were protected and what could be banned.

In the beginning . . .
Roth v. United States and Alberts v. California (354 U.S. 476 (1957)) were decided together. The cases involved books, periodicals, and photographs that local authorities deemed obscene. The question was whether the First Amendment protected the materials. Justice William Brennan wrote for the Court: "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 guaranties. ... But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. ... We hold that obscenity is not within the area of constitutionally pro-tected speech or press." (354 U.S. 476, 484?485.)

According to Justice Brennan, the proper test is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (354 U.S. at 489.) But the opinion was not unanimous; nor did Brennan define exactly what constitutes a "community." Justices William O. Douglas and Hugo Black dissented, writing: "The test of obscenity the Court endorses today gives the censor free range over a vast domain. ... [T]he test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless." (354 U.S. at 514.)

The Court Meanders
Two years after Roth and Alberts, in a case involving a movie version of Lady Chatterley's Lover, Justice Black?a First Amendment "absolutist" if ever there was one?declared: "If despite the Constitution ... this Nation is to embark on the dangerous road of censorship ... this Court is about the most inappropriate Supreme Board of Censors that could be found." (Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 690 (1959)(Black, J., concurring).)

The next significant high court obscenity ruling came in 1964 in Jacobellis v. Ohio (378 U.S. 184), which involved the showing of a French film titled Les Amants. This time around, Justice Brennan pushed for a national standard, but his view did not command a majority. Jacobellis is best remembered, though, for Justice Potter Stewart's famous observation:
"[U]nder the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." (378 U.S. at 197.)

In Stanley v. Georgia (394 U.S. 557 (1969)), the Court dealt with the private possession of an allegedly obscene film, which was discovered in the defendant's home during an unrelated warrant search. Justice Thurgood Marshall delivered the judgment of the court: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." (394 U.S. at 565?566.)

Then Came Miller
Miller v. California (413 U.S. 15 (1973)) involved the mailing of unsolicited brochures that contained sexually explicit images. A majority of the high court finally abandoned efforts to formulate a national standard in favor of a three-pronged test that's still in use today. Chief Justice Warren E. Burger wrote the majority opinion: "The basic guidelines for the trier of fact must be: (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. at 2425.)

Once again, Justice Douglas spoke his mind: "The Court has worked hard to define obscenity and concededly has failed. ... Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts." (413 U.S. at 41 (Douglas, J., dissenting).)

But That Wasn't the End
Five years later, the U.S. Supreme Court wrestled with the obscenity issue again in FCC v. Pacifica Foundation (438 U.S. 726 (1978)). The justices did not alter the obscenity standard established in Miller, but in ruling that the Federal Communications Commission could ban broadcasts of George Carlin's "Seven Filthy Words" the Court forever enshrined the comedian's monologue by appending a verbatim transcript of it. (See 438 U.S. at 751?755.) The vote was 5?4. Justice John Paul Stevens delivered the opinion of the Court: "Words that are commonplace in one setting are shocking in another. ... [O]ne occasion's lyric is another's vulgarity. ... To say that one may avoid further offense by turning off the radio ... is like saying that the remedy for an assault is to run away after the first blow. ... [B]roadcasting is uniquely accessible to children, even those too young to read. [This] broadcast could have enlarged a child's vocabulary in an instant." (438 U.S. 726 (1978) at 751?755.)

In California
The history of obscenity jurisprudence also includes some memorable rulings from the Golden State. Writing for a unanimous California Supreme Court in Zeitlin v. Arnebergh (59 Cal. 2d 901 (1963)), Justice Mathew O. Tobriner reversed a judgment declaring Henry Miller's Tropic of Cancer to be obscene: "The creations which yesterday were the detested and the obscene become the classics of today. The quicksilver of creativity will not be solidified by legal pronouncement; it will necessarily flow into new and sometimes frightening fields. If, indeed, courts try to forbid new and exotic expression they will surely and fortunately fail." (59 Cal. 2d at 922?23.)

By contrast, in In Re Price (4 Cal. App. 3d 941 (1970)), an appellate court found that a juvenile violated an obscenity statute by yelling choice epithets at police officers. But the ruling did not come without this memorable dissent from Justice Robert S. Thompson: "The term "f-g pigs" in the context in which it was used referred not to copulation of porcine animals but was rather a highly insulting epithet directed to the police officers. The term "f-g law" referred not to the law of sexual intercourse but a derogatory reference to the law in general. ... Appellant's use of the vulgarism describing the filial partner in an Oedipal relationship is fairly to be viewed as an epithet rather than as a phrase appealing to a shameful or morbid interest in intra-family sex. ... [T]he words uttered by appellant do not meet the California statutory definition of that which is obscene." (4 Cal. App. 3d at 947?948.)

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