What is the standard by which the courts will determine if material is obscene?

Butler v. State of Michigan
352 U.S. 380 (1957)

In this case, the Court rejected the principle that adult material must be restricted because it might harm minors. Striking down a Michigan statute outlawing printed material that contained obscene language "tending to the corruption of the morals of youth," Justice Felix Frankfurter noted that the sweep of the restriction was far too broad: "The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig."

Justice Frankfurter held that the law violated the due process clause of the 14th Amendment because it "reduce[d] the adult population of Michigan to reading only what is fit for children."

This decision repudiated the earlier, longstanding test for obscenity. Based on British common law, the "Hicklin principle" declared obscene any material that tended to "deprave or corrupt those whose minds are open to such immoral influences, " including children.

Roth v. U. S.
354 U.S. 476 (1957)

With Roth v. United States, the Court began to build a new constitutional test for obscenity. In this case, the Court upheld publisher Samuel Roth's conviction for mailing material that appealed to the "prurient interest." The ruling established the proposition that obscene expression was not entitled to First Amendment protections. However, Justice William Brennan, writing for the majority, noted that material that has even a modicum of redeeming social value is protected speech:

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, 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.

Brennan noted that "sex and obscenity are not synonymous," and that obscene material is that which "deals with sex in a manner appealing to the prurient interest." He attempted to define material appealing to a "prurient interest" in a footnote:

... material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines 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." ... "a shameful or morbid interest in nudity, sex, or excretion."

The Roth test, with minor refinements, was to remain the standard for determining obscenity until the 1973 decision in Miller v. California. However, the Roth decision ushered in an era of uncertainty and confusion; for the next 16 years there was never a majority of Justices who could agree on the proper standard for testing obscenity -- until Miller.

Jacobellis v. Ohio
378 US 184 (1964)

In Jacobellis, Justice Brennan elaborated on the Roth standard by clarifying that the "community standards" applicable to an obscenity determination were to be national, not local standards. Nico Jacobellis managed a movie theater in Cleveland Heights, Ohio, that had shown a French film called "The Lovers," which contained one explicit three minute sex scene. Though the film had played in a number of other cities without incident, Jacobellis was arrested and convicted of violating the Ohio obscenity statute.

Writing for the plurality, Brennan struck down the conviction and ruled that an obscenity determination should be made according to national community standards, rather than the standards of the local community from which a case arose:

We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution. ... The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation would vary with state lines"; we see even less justification for allowing such limits to vary with town or county lines. ... [T]he constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding. "

He concluded that "The Lovers" was not obscene because it had been "favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced," and been shown in over 100 cities nationwide.

It was in this case that Justice Potter Stewart, in his concurring opinion, wrote the oft-quoted summation: "... [C]riminal laws in this area are constitutionally limited to hardcore 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."

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass. 383 U.S. 413 (1966)

In 1965, the Massachusetts Supreme Judicial Court affirmed a lower court decision finding the erotic novel Fanny Hill, or Memoirs of a Woman of Pleasure was obscene. The lower court had noted that the "social importance" element of the Roth test did not require that a book "must be unqualifiedly worthless before it can be deemed obscene."

The U.S. Supreme Court reversed this decision, emphasizing that under Roth, material could not be deemed obscene unless it was "utterly without redeeming social value":

it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. ...

A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal criteria are to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. (Brennan and Fortas)

This emphasis on "utterly without redeeming social value" was an expansion of the Roth standard, which presumed that obscenity was "utterly without redeeming social importance." Henceforth, the standard became known as the Roth-Memoirs test.

Ginzburg v. United States
383 U.S. 463 (1965)

Decided the same day as the Fanny Hill case, Ginzburg introduced the principle that the intent of the seller, as evidenced in how he presented or advertised his material, could be a deciding factor in determining whether something was obscene.

Publisher Ralph Ginzburg was convicted under the federal obscenity statute for mailing three sexually explicit publications: a hard-cover magazine called EROS that contained articles and photo-essays on love and sex; an issue of a biweekly newsletter whose "Letter from the Editors" announced its dedication to "keeping sex an art and preventing it from becoming a science" and contained digests of articles about sex previously published in professional journals; and a short book called The Housewife's Handbook on Selective Promiscuity, the "sexual autobiography" of a housewife that included the author's views on laws regulating private consensual adult sexual practices and the equality of women in sexual relationships.

At trial, the prosecutors had thought that the works, standing alone, may not have passed the Roth obscenity test, since they might have been deemed to have some social importance. They therefore claimed that the context in which Ginzburg purveyed his wares was relevant to determining if they were obscene, and presented evidence that Ginzburg had purposefully marketed the materials as pornography. He sought to have them mailed with postmarks from towns with salacious names (Intercourse and Blue Ball, Penn., and Middlesex, N.J.). The advertising for the publications emphasized their sexual imagery, and included a guarantee of a full refund "if the book fails to reach you because of U.S. Post Office censorship interference."

The Supreme Court upheld Ginzburg's conviction. Writing for the majority, Justice Brennan held that in a close case, evidence that a defendant deliberately represented the materials in question as appealing to customers' erotic interest could support a finding that the materials are obscene. He wrote: "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity" even if the publications examined out of context might not be deemed obscene.

Redrup v. New York
386 U.S. 767 (1967)

Redrup consolidated three obscenity cases in which the defendants were convicted under state obscenity statutes for buying pornographic books or magazines. The Supreme Court overturned all the convictions, finding that all the statutes involved violated the First and 14th Amendments. In its analysis, however, the Court offered possible scenarios in which such statutes may have been upheld:

In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States.

The case is notable not for its rulings, however, but for its elaboration of the confusion the Court had faced since 1957 in attempting to apply the Roth standard. The justices were clearly divided:

Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their "obscenity." A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly identifiable class of material. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless "(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value," emphasizing that the "'three elements must coalesce, "and that no such material can "be proscribed unless it is found to be utterly without redeeming social value." Another Justice has not viewed the "social value" element as an independent factor in the judgment of obscenity.

Ginsberg v. State of N. Y.
390 U.S. 629 (1968)

Ginsberg established that a state can enact more stringent obscenity standards for the sale of sexually explicit material to children than to adults.

The case concerned New York's "Smut Peddling Law," which criminalized the sale to children under 17 of material deemed by the state to be "harmful to minors." Sam Ginsberg, the owner of a luncheonette in Long Island, N.Y., had been convicted under the law for selling two "girlie" magazines to a 16-year-old boy. Ginsberg challenged the law on the grounds that it created a more restrictive standard for children than for adults, thus violating minors' First Amendment right to read.

The Court upheld the statute. They found that although the magazines would not be considered obscene for adults, it was permissible for New York to prohibit their sale to minors.

Stanley v. Georgia
394 U.S. 557 (1969)

In Stanley, the Court held that a state cannot prohibit citizens from possessing obscene material for personal use.

In this case, sexually explicit films were discovered in defendant Eli Stanley's house by police, in the course of an unrelated investigation into his alleged bookmaking activities. He was convicted of "knowingly hav[ing] possession of ... obscene matter," in violation of Georgia's obscenity law. The Court overturned the conviction, holding that "the mere private possession of obscene matter cannot constitutionally be made a crime."

Writing for the Court, Justice Thurgood Marshall emphasized the individual's right to privacy in his own home:

... Mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties. ... 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.

And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.

Miller v. California
413 U.S. 15 (1973)

In this landmark case, the Court reexamined and discarded the obscenity standard set by Justice Brennan in the Roth case 16 years previously, and established a new definition of obscenity, which remains the current standard. This was the first time since the publication of the Roth opinion that a majority of the Court agreed on an obscenity standard.

The case involved California's Obscenity Law, which criminalized the mailing of obscene material. Defendant Marvin Miller was convicted under the law after conducting a mass mailing of sexually explicit advertisements for adult books and films he had for sale. The Supreme Court vacated the appellate court's ruling upholding the conviction and sent the case back for the appellate court to reconsider in light of the new First Amendment standards set out in the opinion.

Writing for the majority, Chief Justice Warren Burger laid out the new, three-part test:

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.

Burger explicitly rejected the Memoirs requirement that obscene material be found to be "utterly without redeeming social value," replacing it with the less stringent standard of lacking "serious literary, artistic, political, or scientific value." The Memoirs requirement, he wrote, created for prosecutors, "a burden virtually impossible to discharge under our criminal standards of proof." Even Justice Brennan, the author of the Memoirs opinion, abandoned the Memoirs as unworkable in his dissenting opinion to Miller's companion case, Paris Adult Theatre I v. Slaton.

Burger also rejected Jacobellis' requirement that the "contemporary community standards" used to evaluate whether something appeals to the "prurient interest" and is "patently offensive" must be national standards. Instead, the jury may use the standards of the local community. He wrote:

Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter of fact. ... 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.

The third new element ushered in by the Miller decision was the limitation of the definition of unprotected obscenity to that specifically laid out by state law. This provision, Burger believed, would eliminate the problem of giving fair notice to a dealer that material may subject him to prosecution. While emphasizing that it was not the role of the Court to propose regulatory schemes for the states, Burger gave two examples of what a state could define as regulated conduct:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

In a later case, however, the Court clarified that local community standards cannot be dictated by such state laws. Juries retain discretion in determining what appeals to the prurient interest and what is patently offensive; state statutes can serve as "evidence of the mores of the community" for the jury to consider. [Smith v. U. S. , 431 U.S. 291 (1977)]

New York v. Ferber
458 U.S. 747 (1982)

In Ferber, the Supreme Court held that child pornography was not entitled to First Amendment protection.

The case involved New York's child pornography law, which criminalized the production or sale of any visual depiction of children under 16 engaging in sexual acts, whether or not the depiction would be deemed obscene. The Court upheld the conviction of a man who sold two films of young boys masturbating to undercover agents.

The Court ruled that states are entitled to greater leeway in regulating pornographic depictions of children than images of adults, emphasizing the state's compelling interest in protecting children who may be exploited or abused in the production of child pornography. This interest is so compelling that states may enact regulation of child pornography that might be found unconstitutional under the Miller standard if applied to pornography involving adults. In cases involving children, a jury "need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole." The Court noted, however, that material that did not include live performance of sexual acts by children was still entitled to First Amendment protection.

This ruling was extended in a later case to grant states the right to prohibit the possession or viewing of child pornography, as well as its production and distribution. [Osborne v. Ohio, 495 U.S. 103 (1990)]

Renton v. Playtime Theatres
475 U.S. 41 (1986)

In Renton, the Court solidified its position that although municipalities are barred by the First Amendment from banning adult theaters altogether, they may use zoning restrictions to restrict them to remote areas. Justice William Rehnquist delivered the opinion of the Court, which upheld a regulation of the city of Renton, Wash., prohibiting adult theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Such regulation is justified, ruled Rehnquist, because it is not primarily designed to prohibit the free expression of the content of the adult films, but on reducing the "secondary effects" of the adult theaters on the surrounding communities, such as increased crime.

Denver Telecommunications v. FCC
518 U.S. 727 (1996)

In Denver Telecommunications the Court upheld one provision and overturned another in a 1992 federal law designed to protect children from exposure to "patently offensive sex-related material" on certain cable television channels. It struck down a provision permitting cable operators to ban indecent programming from public-access cable channels, such as those made available to community groups, but upheld a provision permitting operators to ban indecent programs from channels leased to commercial programmers. It also struck down a provision requiring cable operators who chose to allow indecent material to be broadcast on leased channels to segregate that material to a single channel, and to block that channel unless the cable subscriber requested to have it unblocked.

Reno v. American Civil Liberties Union
521 U.S. 844 (1997)

In the first case to address the regulation of sexually explicit material on the Internet, the Court struck down two provisions of the 1996 Communications Decency Act (CDA) which attempted to protect minors from access to "patently offensive" or "indecent" Internet material. The ACLU, leading a coalition of organizations, challenged two provisions of the CDA that made it a crime to knowingly transmit "indecent" messages over the Internet to anyone under 18 or to knowingly send or display to a person under 18 a message that "in context" depicts or describes "sexual or excretory activities or organs" in terms "patently offensive as measured by contemporary community standards."

The U.S. District ruled that those provisions were unconstitutional:

The Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

Justice Paul Stevens, writing for the Court, declared that "notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges the 'freedom of speech' protected by the First Amendment."

The CDA's restrictions were ruled far too broad. Stevens characterized the breadth of the coverage of the statute "wholly unprecedented," since the restrictions applied to all interactions on the Internet, not simply commercial ones, and because the general, undefined terms "indecent" or "patently offensive" could apply to a large amount of nonpornographic material that may have educational or other value, including "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library." He noted that if the statute was allowed to stand, a parent who allowed a teenage child to access material that she believed was appropriate on a family computer could face imprisonment.

Stevens also took issue with the application of Miller's "contemporary community standards" test to the Internet:

The "community standards" criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message.

The breadth of the CDA imposed a burden on the government to show that a less restrictive scheme would not provide adequate protection for children. Stevens found that the government failed to show this, noting that there were other possible alternatives, such as "tagging" sensitive material to make it easier for parents to identify, making exceptions for material with artistic or educational value, or regulating commercial areas more strictly than other areas such as free chat rooms.

In striking down the CDA, Stevens concluded, "The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

Congress responded to the ruling by passing a new version of the CDA -- the Child Online Protection Act (COPA) -- in 1998. It attempted to address the concerns raised by the Court by providing a more narrowly tailored law that was limited in scope to commercial websites, and carving out an exception for material that has "serious literary, artistic, political or scientific value for minors." The ACLU again brought suit, raising similar issues, and persuaded a federal judge in Pennsylvania to block enforcement.

The Supreme Court will decide this case in the spring or summer of 2002.

What is the standard for obscenity?

How does the court define obscenity?

What is the three part test used to determine if material is obscene?

What is the name of the test used to determine whether material is obscene?