Supreme Court of the United States
Marvin MILLER, Appellant,
v.
State of CALIFORNIA.
No. 70--73.
Argued Jan. 18--19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.
See 414 U.S. 881, 94 S.Ct. 26.
Defendant was convicted of mailing unsolicited
sexually explicit material in violation of a California statute and the
Appellate Department, Superior Court of California, County of Orange, affirmed
and defendant appealed. The Supreme
Court, Mr. Chief Justice Burger, held that a work may be subject to state
regulation where that work, taken as a whole, appeals to the prurient interest
in sex; portrays, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and, taken as a whole, does not have
serious literary, artistic, political or scientific value. The Court also
rejected the test of 'utterly without redeeming social value' as a
constitutional standard.
Vacated and remanded.
Mr. Justice Douglas filed a dissenting
opinion.
Mr. Justice Brennan filed a dissenting opinion
in which Mr. Justice Stewart and Mr. Justice Marshall joined.
West Headnotes
[1] Constitutional Law 
1490
(Formerly 92k90(3))
[1]
Constitutional Law 1680
(Formerly 92k90(3))
In the
area of freedom of speech and press, the courts must remain sensitive to any
infringement on genuinely serious literary, artistic, political or scientific
expression. U.S.C.A.Const.
Amend. 1.
[2]
Constitutional Law 2191
(Formerly 92k90.4(1), 92k90.1(1))
Obscene
material is unprotected by the First Amendment.
U.S.C.A.Const.
Amend. 1.
[3] Obscenity 2.1
(Formerly 281k2)
State
statutes designed to regulate obscene material must be carefully limited. U.S.C.A.Const.
Amend. 1.
[4] Constitutional Law 2180
(Formerly 92k90.4(2),
92k90.1(1))
[4] Obscenity 2.1
(Formerly 110k13.1(13))
Permissible scope of regulation of any
form of expression is confined to works which depict or describe sexual
conduct, and that conduct must be specifically defined by the applicable state
law, as written or authoritatively construed. U.S.C.A.Const.
Amend. 1.
[5] Constitutional Law 2184
(Formerly 92k90.4(2),
92k90.1(1))
[5] Obscenity 1.1
(Formerly 281k1, 281k5)
Regulation
of works which depict or describe sexual conduct must be limited to works
which, taken as a whole, appeal to the prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political or scientific value. U.S.C.A.Const.
Amend. 1.
[6] Obscenity 1.4
(Formerly 281k5)
Basic
guidelines for trier of fact in determining whether a work which depicts or
describes sexual conduct is obscene is whether the average person, applying
contemporary community standards would find that the work, taken as a whole,
appeals to the prurient interest, whether the work 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. U.S.C.A.Const.
Amend. 1.
[7] Constitutional Law 2190
(Formerly 92k90.4(2),
92k90.1(1))
The
"utterly without redeeming social value" test is not the
constitutional standard for determining whether a work which depicts or
describes sexual conduct is obscene, nor is the concept of "social
importance" the constitutional standard to be applied. U.S.C.A.Const.
Amend. 1.
[8] Constitutional Law 1174
(Formerly 92k274.1(3))
[8]
Constitutional Law 3851
(Formerly 92k274.1(3))
If a state
law that regulates obscene material is limited to works which the average
person, applying contemporary community standards, would find, taken as a
whole, appeals to the prurient interest and which depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable
state law, and which, taken as a whole, lacks serious, artistic, political, or
scientific value, the First Amendment values applicable to the states through
the Fourteenth Amendment are adequately protected by the ultimate power of
appellate courts to conduct an independent review of constitutional claims when
necessary. U.S.C.A.Const.
Amends. 1, 14.
[9] Courts 489(2)
It is not function of the United States
Supreme Court to propose regulatory schemes for the states with respect to
obscene material.
[10] Obscenity 2.1
(Formerly 281k2)
A state
statute may define for regulation 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. U.S.C.A.Const.
Amend. 1.
[11] Constitutional Law 2184
(Formerly 92k90.4(1),
92k90.1(1))
States
have greater power to regulate nonverbal, physical conduct than to suppress
depictions or descriptions of the same behavior. U.S.C.A.Const.
Amend. 1.
[12]
Constitutional Law 2190
(Formerly 92k90.4(1),
92k90.1(1))
At a
minimum, prurient, patently offensive depiction or description of sexual
conduct must have serious literary, artistic, political, or scientific value to
merit the First Amendment protection. U.S.C.A.Const.
Amend. 1.
[13] Constitutional Law 2190
(Formerly 92k90.4(1),
92k90.1(1))
The mere
fact juries may reach different conclusions on issues of prurient appeal and
patent offensiveness as to the same material does not mean that constitutional
rights are abridged. U.S.C.A.Const.
Amend. 1.
[14] Obscenity 1.1
(Formerly 281k1, 281k5)
No one is
subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe
patently offensive "hard core" sexual conduct specifically defined by
the regulating state law, as written or construed. U.S.C.A.Const.
Amends. 1, 14.
[15] Constitutional Law 2190
(Formerly 92k90.4(1),
92k90.1(1))
Fact that
fundamental First Amendment limitations on powers of the states do not vary
from community to community does not mean that there are, or should or can be,
fixed, uniform national standards of precisely what appeals to the
"prurient interest" or is "patently offensive." U.S.C.A.Const.
Amend. 1.
[16] Criminal Law 478(1)
Police
officer with many years of specialization in obscenity cases and who had
conducted an extensive statewide survey and given expert evidence on 26
occasions in the year prior to defendant's trial for mailing unsolicited
sexually explicit material in violation of California statute was qualified to
give evidence on California "community standards." West's
Ann.Cal.Pen.Code,
§ § 311, 311.2(a); U.S.C.A.Const.
Amends. 1, 14.
[17] Constitutional Law 2180
(Formerly 92k90.4(1),
92k90.1(1))
[17]
Obscenity 20
Neither
the state's alleged failure to offer evidence of "national
standards," nor the trial court's charge that the jury consider state
community standards, were constitutional errors in trial on charge of mailing
unsolicited sexually explicit material in violation of California statute. West's
Ann.Cal.Pen.Code, § § 311, 311.2(a); U.S.C.A.Const.
Amends. 1, 14.
[18] Commerce 82.55
(Formerly 83k82, 83k16)
Application
of domestic state police powers in regulation of sexually explicit materials
did not intrude on any congressional powers under the commerce clause in absence of any indication that the
unsolicited sexually explicit materials mailed by defendant were ever
distributed interstate. West's
Ann.Cal.Pen.Code, § § 311, 311.2(a); U.S.C.A.Const.
art. 1, § 8, cl. 3.
[19] Commerce 82.55
(Formerly 83k8(21))
Obscene
material may be validly regulated by a state in the exercise of its traditional
local power to protect the general welfare of its population despite some
possible incidental effect on the flow of such materials across state
lines. U.S.C.A.Const.
art. 1, § 8, cl. 3.
[20] Obscenity 1.4
(Formerly 281k5)
The
primary concern with requiring a jury in an obscenity case to apply the
standard of "the average person, applying contemporary community
standards" is to be certain that, so far as material is not aimed at a
deviant group, it will be judged by its impact on an average person, rather
than a particularly susceptible or sensitive
person, or a totally insensitive one. U.S.C.A.Const.
Amends. 1, 14.
[21] Constitutional Law 2190
(Formerly 92k90.4(1), 92k90.1(1))
[21]
Obscenity 1.4
(Formerly 281k5)
Requirement
that jury evaluate sexually explicit materials with reference to contemporary
state standards serves protective purpose that material will be judged by its
impact on an average person and is constitutionally adequate. U.S.C.A.Const.
Amends. 1, 14.
[22] Criminal Law 1134(3)
Contention
that defendant convicted of mailing unsolicited sexually explicit material in
violation of California statute was subjected to "double jeopardy" because a Los Angeles County trial judge
dismissed, before trial, a prior prosecution based on the same brochures and
that state was "collaterally estopped" from ever alleging the
material to be obscene was a matter best left to the California courts and, in
any event, was not a proper subject for appeal.
West's
Ann.Cal.Pen.Code, § § 311, 311.2(a).
**2610 Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader. See United
States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282,
287, 50 L.Ed. 499.
*15 Appellant was convicted of mailing
unsolicited sexually explicit material in violation of a California statute
that approximately incorporated the obscenity test formulated in Memoirs
v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (plurality opinion).
The trial court instructed the jury to evaluate the materials by the
contemporary community standards of California.
Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated
by the Memoirs plurality, it is held:
1.
Obscene material is not protected by the First Amendment. Roth
v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reaffirmed. A work may be subject to state regulation where that
work, taken as a whole, appeals to the prurient interest in sex; portrays, in a
patently offensive way, sexual conduct specifically defined by the applicable
state law; and, taken as a whole, does not have serious literary, artistic,
political, or scientific value. P. 2614.
2. 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, Roth
supra, at 489, 77 S.Ct. at 1311, (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. If a state obscenity law is thus
limited, First Amendment values are adequately protected by ultimate
independent appellate review of constitutional claims when necessary. P. 2615.
3. The
test of 'utterly without redeeming social value' articulated in Memoirs, supra, is rejected as a
constitutional standard. P. 2615.
4. The
jury may measure the essentially factual issues of prurient appeal and patent
offensiveness by the standard that prevails in the forum community, and need
not employ a 'national standard.' Pp.
2618--2620.
Vacated and remanded.
*16 Burton Marks, Beverly Hills, Cal.,
for appellant.
Michael R. Capizzi, Santa Ana, Cal., for
appellee.
Mr. Chief Justice BURGER delivered the opinion
of the Court.
This is one of a group of
'obscenity-pornography' cases being reviewed by the Court in a re-examination
of standards enunciated in earlier cases involving what Mr. Justice Harlan
called 'the intractable obscenity problem.' **2611Interstate
Circuit, Inc. v. Dallas, 390 U.S. 676,
704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968)
(concurring and dissenting).
Appellant conducted a mass mailing campaign to
advertise the sale of illustrated books, euphemistically called 'adult'
material. After a jury trial, he was convicted of violating California
Penal Code s 311.2(a), a misdemeanor, by
knowingly distributing obscene matter, [FN1] *17 and
the Appellate Department, Superior Court of California, County of Orange,
summarily affirmed the judgment without opinion. Appellant's conviction was specifically *18
based on his conduct in causing five unsolicited advertising brochures to be
sent through the mail in an envelope addressed to a restaurant in Newport
Beach, California. The envelope was
opened by the manager of the restaurant and his mother. They had not requested the brochures; they
complained to the police.
FN1. At the time of the commission of the alleged offense,
which was prior to June 25, 1969, ss
311.2(a) and 311
of the California Penal Code read in relevant
part:
's
311.2 Sending or bringing into state for sale or
distribution; printing, exhibiting, distributing or possessing within state
'(a) Every person who knowingly: sends or causes to be
sent, or brings or causes to be brought, into this state for sale or
distribution, or in this state prepares, publishes, prints, exhibits,
distributes, or offers to distribute, or has in his possession with intent to
distribute or to exhibit or offer to distribute, any obscene matter is guilty
of a misdemeanor. . . .'
's
311.
Definitions
'As used in this chapter:
'(a) 'Obscene' means that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken as a whole,
is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or
excretion, which goes substantially beyond customary limits of candor in
description or representation of such matters and is matter which is utterly without
redeeming social importance.
'(b) 'Matter' means any book, magazine, newspaper, or other
printed or written material or any picture, drawing, photograph, motion
picture, or other pictorial represention or any
statute or other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles, equipment, machines
or materials.
'(c) 'Person' means any individual, partnership, firm,
association, corporation, or other legal entity.
'(d) 'Distribute' means to transfer possession of, whether
with or without consideration.
'(e) 'Knowingly' means having knowledge that the matter is
obscene.'
Section
311(e) of the California Penal Code, supra, was
amended on June 25, 1969, to read as follows:
'(e) 'Knowingly' means being aware of the character of the
matter.'
Cal.Amended Stats.1969, c. 249, s 1, p. 598. Despite appellant's contentions to the
contrary, the record indicates that the new s
311(e) was not applied ex post facto to his case,
but only the old s
311(e) as construed by state decisions prior to
the commission of the alleged offense.
See People
v. Pinkus, 256 Cal.App.2d Supp. 941, 948--950, 63 Cal.Rptr. 680, 685--686 (App.Dept., Superior Ct., Los Angeles, 1967); People
v. Campise, 242 Cal.App.2d Supp. 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept.,
Superior Ct. San Diego, 1966). Cf. Bouie
v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Nor did s
311.2, supra, as applied, create any 'direct,
immediate burden on the performance of the
postal functions,' or infringe on congressional commerce powers under Art.
I, s 8, cl. 3.
Roth
v. United States, 354 U.S. 476, 494, 77 S.Ct. 1304, 1314, 1 L.Ed.2d 1498 (1957), quoting Railway
Mail Assn. v. Corsi, 326 U.S. 88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072 (1945). See also Mishkin
v. New York, 383 U.S. 502, 506, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966); Smith
v. California, 361 U.S. 147, 150--152, 80 S.Ct. 215, 217--218, 4 L.Ed.2d 205
(1959).
The brochures advertise four books entitled
'Intercourse,' 'Man-Woman,' 'Sex Orgies Illustrated,' and 'An Illustrated
History of Pornography,' and a film entitled 'Marital Intercourse.' While the brochures contain some descriptive
printed material, primarily they consist of pictures and drawings very
explicitly depicting men and women **2612 in groups of two or more
engaging in a variety of sexual activities, with genitals often prominently
displayed.
I
This case involves the application of a
State's criminal obscenity statute to a situation in which sexually explicit
materials have been thrust by aggressive sales action upon unwilling recipients
who had in no way indicated any desire to receive such materials. This Court has recognized that the States
have a legitimate interest in prohibiting dissemination or exhibition of
obscene material [FN2] *19 when the mode of dissemination carries with it
a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles. Stanley
v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969); Ginsberg
v. New York, 390 U.S. 629, 637-- 643, 88 S.Ct. 1274, 1279--1282, 20 L.Ed.2d 195
(1968); Interstate
Circuit, Inc. v. Dallas, supra, 390 U.S., at 690, 88 S.Ct., at 1306; Redrup
v. New York, 386 U.S. 767, 769, 87 S.Ct., 1414, 1415, 18
L.Ed.2d 515 (1967); Jacobellis
v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). See Rabe
v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J., concurring); United
States v. Reidel, 402 U.S. 351, 360--362, 91 S.Ct. 1410, 1414--1415, 28 L.Ed.2d
813 (1971) (opinion of Marshall, J.); Joseph
Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098
(1952); Breard
v. Alexandria, 341 U.S. 622, 644--645, 71 S.Ct. 920, 933--934, 95 L.Ed. 1233
(1951); Kovacs
v. Cooper, 336 U.S. 77, 88--89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Prince
v. Massachusetts, 321 U.S. 158, 169--170, 64 S.Ct. 438, 443--444, 88 L.Ed. 645
(1944).
Cf. Butler
v. Michigan, 352 U.S. 380, 382--383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957); Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 464-- 465, 72 S.Ct. 813, 821--822, 96
L.Ed. 1068 (1952). It is in this context that we are called *20
on to define the standards which must be used to identify obscene material that
a State may regulate without infringing on the First Amendment as applicable to
the States through the Fourteenth Amendment.
FN2. This Court has defined 'obscene material' as 'material
which deals with sex in a manner appealing to prurient interest,' Roth
v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310, but the Roth definition does not reflect the precise
meaning of 'obscene' as traditionally used in the English language. Derived from the Latin obscaenus, ob, to,
plus caenum, filth, 'obscene' is defined in the Webster's Third New
International Dictionary (Unabridged 1969) as '1a: disgusting to the senses . .
. b: grossly repugnant to the generally accepted notions of what is appropriate
. . . 2: offensive or revolting as countering or violating some ideal or
principle.' The Oxford English Dictionary (1933 ed.) gives a similar
definition, '(o)ffensive to the senses, or to taste or refinement, disgusting,
repulsive, filthy, foul, abominable, loathsome.'
The material we are discussing in this case is more
accurately defined as 'pornography' or 'pornographic material.' 'Pornography' derives from the Greek (porne,
harlot, and graphos, writing). The word
now means '1: a description of prostitutes or prostitution 2: a depiction (as
in writing or painting) of licentiousness or lewdness: a a portrayal of erotic
behavior designed to cause sexual excitement.'
Webster's Third New International Dictionary, supra. Pornographic
material which is obscene forms a subgroup of
all 'obscene' expression, but not the whole, at least as the word 'obscene' is
now used in our language. We note,
therefore, that the words 'obscene material,' as used in this case, have a
specific judicial meaning which derives from the Roth case, i.e., obscene
material 'which deals with sex.' Roth,
supra, at 487, 77 S.Ct., at 1310. See also ALI Model
Penal Code s 251.4(l) 'Obscene Defined.'
(Official Draft, 1962.)
The dissent of Mr. Justice BRENNAN reviews the
background of the obscenity problem, but since the Court now undertakes to
formulate standards more concrete than those in the past, it is useful for us
to focus on two of the landmark cases in the somewhat tortured **2613
history of the Court's obscenity decisions. In Roth
v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court sustained a conviction under a federal statute
punishing the mailing of 'obscene, lewd, lascivious or filthy . . .'
materials. The key to that holding was
the Court's rejection of the claim that obscene materials were protected by the
First Amendment. Five Justices joined in
the opinion stating:
'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 (First
Amendment) 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. . . . This is the same judgment expressed by this Court in Chaplinsky
v. New Hampshire, 315 U.S. 568, 571--572, 62 S.Ct. 766, 768--769, 86 L.Ed. 1031:
". . . There
are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene . . .. It has been well observed
that such utterances are no essential part of any exposition of ideas, and are
of such slight social *21 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. . . .' (Emphasis by Court in Roth opinion.)
'We hold that obscenity is not within the area of
constitutionally protected speech or press.' 354
U.S., at 484--485, 77 S.Ct., 1309 (footnotes
omitted).
Nine years later, in Memoirs
v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the Court veered sharply away from the Roth concept and,
with only three Justices in the plurality opinion, articulated a new test of
obscenity. The plurality held that under
the Roth definition
'as elaborated in subsequent cases, three elements must
coalesce: 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 if affronts contemporary community standards
relating to the description or
representation of sexual matters; and (c) the material is utterly without
redeeming social value.' Id.,
at 418, 86 S.Ct., at 977.
The sharpness of the break with Roth,
represented by the third element of the Memoirs test and emphasized by Mr.
Justice White's dissent, id.,
at 460-- 462, 86 S.Ct., at 999, was further
underscored when the Memoirs plurality went on to state:
'The Supreme Judicial Court erred in holding that a book
need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is
found to be utterly without redeeming social value.' Id.,
at 419, 86 S.Ct., at 978 (emphasis in original).
While Roth presumed 'obscenity' to be 'utterly
without redeeming social importance,' Memoirs required *22 that to prove
obscenity it must be affirmatively established that the material is 'utterly
without redeeming social value.' Thus,
even as they repeated the words of Roth, the Memoirs plurality produced a
drastically altered test that called on the prosecution to prove a negative,
i.e., that the material was 'utterly without redeeming social value'--a burden
virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan
to wonder if the 'utterly without redeeming social value' test had any meaning
at all. See Memoirs
v. Massachusetts, id., at 459, 86 S.Ct., at 998
(Harlan, J., dissenting). **2614
See also id.,
at 461, 86 S.Ct., at 999 (White, J., dissenting); United
States v. Groner, 479 F.2d 577, 579--581 (CA,5 1973).
[1] Apart from the initial formulation in the Roth case, no
majority of the Court has at any given time been able to agree on a standard to
determine what constitutes obscene, pornographic material subject to regulation
under the States' police power. See,
e.g., Redrup
v. New York, 386 U.S., at 770--771, 87 S.Ct., at 1415--1416. We have seen 'a
variety of views among the members of the Court unmatched in any other course
of constitutional adjudication.' Interstate
Circuit, Inc. v. Dallas, 390 U.S., at 704--705, 88
S.Ct., at 1314 (Harlan, J., concurring and
dissenting) (footnote omitted). [FN3] This is not
remarkable, for in the area *23 of freedom of speech and press the
courts must always remain sensitive to any infringement on genuinely serious
literary, artistic, political, or scientific expression. This is an area in which there are few
eternal verities.
FN3. In the absence
of a majority view, this Court was compelled to embark on the practice of
summarily reversing convictions for the dissemination of materials that at
least five members of the Court, applying their separate tests, found to be
protected by the First Amendment. Redrup
v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Thirty-one cases
have been decided in this manner. Beyond the necessity of circumstances,
however, no justification has ever been offered in
support of the Redrup 'policy.' See Walker
v. Ohio, 398 U.S. 434-- 435, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (dissenting opinions of Burger, C.J., and Harlan, J. The
Redrup procedure has cast us in the role of an unreviewable board of censorship
for the 50 States, subjectively judging each piece of material brought before
us.
The case we now review was tried on the theory
that the California
Penal Code s 311 approximately incorporates the
three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as
unworkable by its author, [FN4] and no Member
of the Court today supports the Memoirs formulation.
FN4. See the
dissenting opinion of Mr. Justice Brennan in Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446
(1973).
II
[2][3][4][5] This much has been categorically settled by the Court,
that obscene material is unprotected by the First Amendment. Kois
v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United
States v. Reidel, 402 U.S., at 354, 91 S.Ct., at 1411--1412; Roth
v. United States, supra, 354 U.S., at 485, 77 S.Ct., at 1309. [FN5] 'The First and
Fourteenth Amendments have never been
treated as absolutes (footnote omitted).'
Breard
v. Alexandria, 341 U.S., at 642, 71 S.Ct., at 932,
and cases cited. See Times
Film Corp. v. Chicago, 365 U.S. 43, 47--50, 81 S.Ct. 391, 393--395, 5 L.Ed.2d
403 (1961); Joseph
Burstyn, Inc. v. Wilson, 343 U.S., at 502, 72 S.Ct., at 780. We acknowledge,
however, the inherent dangers of undertaking to regulate any form of
expression. State statutes designed to
regulate obscene materials must be *24 carefully limited. See Interstate
Circuit, Inc. v. Dallas, supra, 390 U.S., at 682--685, 88 S.Ct., at 1302--1305. As a result, we now
confine the permissible scope of such regulation to works which depict or
describe **2615 sexual conduct. That conduct must be specifically
defined by the applicable state law, as written or authoritatively construed. [FN6] A state offense
must also be limited to works which, taken as a whole, appeal to the prurient
interest in sex, which portray sexual conduct in a patently offensive way, and
which, taken as a whole, do not have serious literary, artistic, political, or
scientific value.
FN5. As Mr. Chief
Justice Warren stated, dissenting in Jacobellis
v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964):
'For all the sound and fury that the Roth test has
generated, it has not been proved unsound, and I believe that we should try to
live with it--at least until a more satisfactory definition is evolved. No government--be it federal, state, or local--should be forced
to choose between repressing all material, including that within the realm of
decency, and allowing unrestrained license to publish any material, no matter
how vile. There must be a rule of reason
in this as in other areas of the law, and we hae attempted in the Roth case to
provide such a rule.'
FN6. See, e.g.,
Oregon Laws 1971, c. 743, Art. 29, ss 255--262, and Hawaii Penal
Code, Tit. 37, ss 1210--1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126--129, as examples of state laws
directed at depiction of defined physical conduct, as opposed to
expression. Other state formulations
could be equally valid in this respect.
In giving the Oregon and Hawaii statutes as examples, we do not wish to
be understood as approving of them in all other respects nor as establishing
their limits as the extent of state power.
We do not hold, as Mr. Justice BRENNAN intimates, that all
States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed
heretofore or hereafter, may well be adequate.
See United
States v. 12 200-ft. Reels of Super 8
mm. Film, 413 U.S. 123, at 130 n. 7, 93
S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d 500.
[6][7][8] 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, Kois
v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth
v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (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. We do not adopt as a constituional standard the
'utterly without redeeming social value' test of *25Memoirs
v. Massachusetts, 383 U.S., at 419, 86
S.Ct., at 977; that concept has never commanded
the adherence of more than three Justices at one time. [FN7] See supra, at
2613. If a state law that regulates
obscene material is thus limited, as written or construed, the First Amendment
values applicable to the States through the Fourteenth Amendment are adequately
protected by the ultimate power of appellante courts to conduct an independent
review of constitutional claims when necessary.
See Kois
v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs
v. Massachuetts, supra, 383 U.S., at 459--460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis
v. Ohio, 378 U.S., at 204, 84 S.Ct., at 1686
(Harlan, J., dissenting); New
York Times Co. v. Sullivan, 376 U.S. 254, 284--285, 84 S.Ct. 710, 728, 11
L.Ed.2d 686 (1964); Roth
v. United States, supra, 354 U.S., at 497--498, 77 S.Ct., at 1315--1316 (Harlan, J., concurring and
dissenting).
FN7. 'A quotation
from Voltaire in the flyleaf of a book will not constitutionally redeem an
otherwise obscene publication . . .' Kois
v. Wisconsin, 408 U.S., 229, 231, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972). See Memoirs
v. Massachusetts, 383 U.S. 413, 461, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966) (White, J., dissenting).
We also reject, as a constitutional standard, the ambiguous concept of
'social importance.' See id.,
at 462, 86 S.Ct., at 999 (White, J., dissenting).
[9][10] We emphasize that it is not our function to propose
regulatory schemes for the States. That
must await their concrete legislative efforts. It is possible, however, to give
a few plain examples of what a state statute could define for regulation under
part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or
descriptions of masturbation, excretory functions, and lewd exhibition of the
genitals.
[11][12][13] Sex and nudity may not be exploited without limit by films
or pictures **2616 exhibited or sold in places of public accommodation any more than live sex and nudity can *26
be exhibited or sold without limit in such public places. [FN8] At a minimum,
prurient, patently offensive depiction or description of sexual conduct must
have serious literary, artistic, political, or scientific value to merit First
Amendment protection. See Kois
v. Wisconsin, supra, 408 U.S., at 230--232, 92 S.Ct., at 2246-- 2247; Roth
v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill
v. Alabama, 310 U.S. 88, 101--102, 60 S.Ct. 736, 743--744, 84 L.Ed. 1093 (1940). For example,
medical books for the education of physicians and related personnel necessarily
use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive
questions of fact and law, we must continue to rely on the jury system,
accompanied by the safeguards that judges, rules of evidence, presumption of
innocence, and other protective features provide, as we do with rape, murder,
and a host of other offenses against society and its individual members. [FN9]
FN8. Although we are
not presented here with the problem of regulating lewd public conduct itself,
the States have greater power to regulate nonverbal, physical conduct than to
suppress depictions or descriptions of the same behavior. In United
States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672
(1968), a case not dealing with obscenity, the
Court held a State regulation of conduct which itself
embodied both speech and nonspeech elements to be 'sufficiently justified if .
. . it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and
if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.' See California
v. LaRue, 409 U.S. 109, 117--118, 93 S.Ct. 390, 396--397, 34 L.Ed.2d 342 (1972).
FN9. The mere fact
juries may reach different conclusions as to the same material does not mean
that constitutional rights are abridged.
As this Court observed in Roth
v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, 'it is common experience that different juries may reach
different results under any criminal statute.
That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States 486, 499-500.'
Mr. Justice BRENNAN, author of the opinions of
the Court, or the plurality opinions, in Roth v. United States, supra;
Jacobellis v. Ohio, supra; *27Ginzburg
v. United States, 383 U.S. 463, 86 S.Ct. 952, 16
L.Ed.2d 31 (1966); Mishkin
v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); and Memoiors v. Massachusetts, supra, has abandoned his former position and now maintains that no
formulation of this Court, the Congress, or the States can adequately
distinguish obscene material unprotected by the First Amendment from protected
expression, Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (Brennan, J., dissenting).
Paradoxically, Mr. Justice BRENNAN indicates that suppression of
unprotected obscene material is permissible to avoid exposure to unconsenting
adults, as in this case, and to juveniles, although he gives no indication of
how the division between protected and nonprotected materials may be drawn with
greater precision for these purposes than for regulation of commercial exposure
to consenting adults only. Nor does he
indicate where in the Constitution he fines the authority to distinguish between
a willing 'adult' one month past the state law age of majority and a weilling
'juvenile' one month younger.
[14] Under the holdings announced today, 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
specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites
will provide fair notice to a dealer in such materials that his public and
commercial activities **2617 may bring prosecution. See Roth
v. United States, supra, 354 U.S., at 491--492, 77 S.Ct., at 1312--1313. Cf. Ginsberg
v. New York, 390 U.S., at 643, 88 S.Ct., at 1282. [FN10] If *28 the
inability to define regulated materials with
ultimate, god-like precision altogether removes the power of the States or the
Congress to regulate, then 'hard core' pornography may be exposed without limit
to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr.
Justice Douglas contends. As to Mr.
Justice Douglas' position, see United
States v. Thirty-seven Photographs, 402 U.S. 363, 379--380, 91 S.Ct. 1400,
1409--1410, 28 L.Ed.2d 822 (1971) (Black, J.,
joined by Douglas, J., dissenting); Ginzburg
v. United States, supra, 383 U.S. at 476, 491-- 492, 86 S.Ct., at 950, 974 (Black, J., and Douglas, J., dissenting); Jacobellis
v. Ohio, supra, 378 U.S., at 196, 84 S.Ct., at 1682
(Black, J., joined by Douglas, J., concurring); Roth,
supra, 354 U.S., at 508--514, 77 S.Ct., at 1321--1324 (Douglas, J., dissenting).
In this belief, however, Mr. Justice DOUGLAS now stands alone.
FN10. As Mr. Justice
Brennan stated for the Court in Roth
v. United States, supra, 354 U.S., at 491--492, 77 S.Ct., at 1312--1313:
'Many decisions have recognized that these terms of
obscenity statutes are not precise. (Footnote omitted.) This Court, however,
has consistently held that lack of precision is not itself offensive to the
requirements of due process. '. . .
(T)he Constitution does not require impossible standards'; all that is required
is that the language 'conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices. . . .' United
States v. Petrillo, 332 U.S. 1, 7--8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words,
applied according to the proper standard for judging obscenity, already
discussed, give adequate warning of the conduct proscribed and mark '. . .
boundaries sufficiently distinct for judges and juries to fairly administer the
law . . .. That there may be marginal cases in which it is difficult to
determine the side of the line on which a particular fact situation falls is no
sufficient reason to hold the language too ambiguous to define a criminal
offense. . . .' Id.,
332 U.S. at page 7, 67 S.Ct., at page 1542. See also United
States v. Harriss, 347 U.S. 612, 624, n. 15, 14
S.Ct. 808, 815, 98
L.Ed. 989; Boyce
Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96
L.Ed. 367; United
States v. Ragen, 314 U.S. 513, 523--524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United
States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Hygrade
Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Fox.
v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash
v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232.
Mr. Justice Brennan also emphasizes
'institutional stress' in justification of his change of view. Nothing that '(t)he number of obscenity cases
on our docket gives ample testimony to the burden that has been placed upon
this Court,' he quite rightly remarks that
the examination of contested materials 'is hardly a source of edification to
the members of this Court.' *29Paris
Adult Theatre I v. Slaton, supra, 413
U.S., at 92, 93, 93 S.Ct., at 2652. He also notes, and we agree, that
'uncertainty of the standards creates a continuing source of tension between
state and federal courts . . ..' 'The problem is . . . that one cannot say with
certainty that material is obscene until at least five members of this Court,
applying inevitably obscure standards, have pronounced it so.' Id.,
at 93, 92, 93 S.Ct., at 2652.
It is certainly true that the absence, since
Roth, of a single majority view of this Court as to proper standards for
testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was
decided in 1957, a majority of this Court has agreed on concrete guidelines to
isolate 'hard core' pornography from expression protected by the First
Amendment. Now we may abandon the casual practice of Redrup
v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and attempt to provide positive **2618 guidance to
federal and state courts alike.
This may not be an easy road, free from
difficulty. But no amount of 'fatigue' should lead us to adopt a
convenient 'institutional' rationale--an absolutist, 'anything goes' view of
the First Amendment--because it will lighten our burdens. [FN11] 'Such an abnegation of judicial supervision
in this field would be inconsistent with our duty to uphold the constitutional guarantees.'
Jacobellis
v. Ohio, supra, 378 U.S., at 187--188, 84 S.Ct., at 1678 (opinion of Brennan, J.).
Nor should we remedy 'tension between state and federal courts' by
arbitrarily depriving the States of a power reserved to them under the
Constitution, a power which they have enjoyed and exercised continuously from
before the adoption of the First Amendment to this day. See Roth
v. United States, supra, 354 U.S., at 482--485, 77 S.Ct., at 1307-- 1309. 'Our duty admits of
no 'substitute for facing up *30 to the tough individual problems of
constitutional judgment involved in every obscenity case.' (Roth
v. United States, supra, at 498, 77 S.Ct., at 1316); see Manual
Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct., 1432, 1437, 8
L.Ed.2d 639 (opinion of Harlan, J.) (footnote
omitted).' Jacobellis
v. Ohio, supra, 378 U.S., at 188, 84 S.Ct., at 1678
(opinion of Brennan, J.).
FN11. We must note,
in addition, that any assumption concerning the relative burdens of the past
and the probable burden under the standards now adopted is pure speculation.
III
[15] Under a National Constitution, fundamental First Amendment
limitations on the powers of the States do not vary from community to
community, but this does not mean that there are, or should or can be, fixed,
uniform national standards of precisely what
appeals to the 'prurient interest' or is 'patently offensive.' These are essentially questions of fact, and
our Nation is simply too big and too diverse for this Court to reasonably expect
that such standards could be articulated for all 50 States in a single
formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide
whether 'the average person, applying contemporary community standards' would
consider certain materials 'prurient,' it would be unrealistic to require that
the answer be based on some abstract formulation. The adversary system, with lay jurors as the
usual ultimate factfinders in criminal prosecutions, has historically permitted
triers of fact to draw on the standards of their community, guided always by
limiting instructions on the law. To require a State to structure obscenity
proceedings around evidence of a national 'community standard' would be an
exercise in futility.
As noted before, this case was tried on the
theory that the California obscenity statute sought to incorporate the
tripartite test of Memoirs. This, a 'national' standard of First Amendment
protection enumerated by a plurality of this Court, was correctly regarded at
the time of trial as limiting state prosecution under the controlling case *31
law. The jury, however, was explicitly
instructed that, in determining whether the 'dominant theme of the material as
a whole . . . appeals to the prurient interest' and in determining whether the
material 'goes substantially beyond customary limits of candor and affronts contemporary community standards of
decency,' it was to apply 'contemporary community standards of the State of
California.'
[16] During the trial, both the prosecution and the defense
assumed that the relevant 'community standards' in making the factual
determination of obscenity were those of the State of California, not some
hypothetical standard of the entire United States of America. Defense counsel at trial never objected to
the testimony of the State's expert on **2619 community standards [FN12] or to the
instructions of the trial judge on 'statewide' standards. On appeal to the Appellate Department,
Superior Court of California, County of Orange, appellant for the first time
contended that application of state, rather than national, standards violated
the First and Fourteenth Amendments.
FN12. The record
simply does not support appellant's contention, belatedly raised on appeal,
that the State's expert was unqualified to give evidence on California
'community standards.' The expert, a
police officer with many years of specialization in obscenity offenses, had
conducted an extensive statewide survey and had given expert evidence on 26
occasions in the year prior to this trial. Allowing such expert testimony was
certainly not constitutional error. Cf. United
States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537
(1969).
[17] We conclude that
neither the State's alleged failure to offer evidence of 'national standards,'
nor the trial court's charge that the jury consider state community standards,
were constitutional errors. 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 *32 of fact. Mr. Chief Justice Warren pointedly commented
in his dissent in Jacobellis
v. Ohio, supra, at 200, 84 S.Ct., at 1685:
'It is my belief that when the Court said in Roth that
obscenity is to be defined by reference to 'community standards,' it meant community
standards-- not a national standard, as is sometimes argued. I believe that there is no provable 'national
standard' . . .. At all events, this Court has not been able to enunciate one,
and it would be unreasonable to expect local courts to divine one.'
[18][19][20][21][22] 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. [FN13] *33 See Hoyt
v. Minnesota, 399 U.S. 524--525, 90 S.Ct. 2241 (1970) (Blackmun, J., dissenting); **2620Walker
v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26
L.Ed.2d 385 (1970) (Burger, C.J., dissenting); id.,
at 434--435, 90 S.Ct., at 1884 (Harlan, J.,
dissenting); Cain
v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970) (Burger, C.J., dissenting); id.,
at 319--320, 90
S.Ct., at 1110 (Harlan, J., dissenting); United
States v. Groner, 479 F.2d 577, at 581-- 583.
O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v.
Ohio, 40 Notre Dame Law. 1, 6--7 (1964).
See also Memoirs
v. Massachusetts, 383 U.S., at 458, 86 S.Ct., at 997 (Harlan, J., dissenting); Jacobellis
v. Ohio, supra, 378 U.S., at 203--204, 84 S.Ct., at 1686 (Harlan, J., dissenting); Roth
v. United States, supra, 354 U.S., at 505--506, 77 S.Ct., at 1319--1320 (Harlan, J., concurring and dissenting). People in different States vary in their
tastes and attitudes, and this diversity is not to be strangled by the
absolutism of imposed uniformity. As the
Court made clear in Mishkin
v. New York, 383 U.S., at 508--509, 86 S.Ct., at 963, the primary concern with requiring a jury to apply the
standard of 'the average person, applying contemporary community standards' is
to be certain that, so far as material is not aimed at a deviant group, it will
be judged by its impact on an average person, rather than a particularly
susceptible or sensitive person--or indeed a totally insensitive one. See Roth
v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311. Cf. the now
discredited test in Regina v. Hicklin, (1868) L.R. 3 Q.B. 360. We hold that the requirement that the jury
evaluate the materials with reference to 'contemporary
*34 standards of the State of California' serves this protective purpose
and is constitutionally adequate. [FN14]
FN13. In Jacobellis
v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), two Justices argued that application of 'local' community
standards would run the risk of preventing dissemination of materials in some
places because sellers would be unwilling to risk criminal conviction by
testing variations in standards from place to place. Id.,
at 194--195, 84 S.Ct., at 1681--1682 (opinion of
Brennan, J., joined by Goldberg, J.).
The use of 'national' standards, however, necessarily implies that
materials found tolerable in some places, but not under the 'national'
criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression,
the potential for suppression seems at least as great in the application of a
single nation-wide standard as in allowing distribution in accordance with
local tastes, a point which Mr. Justice Harlan often emphasized. See Roth
v. United States, 354 U.S., at 506, 77 S.Ct., at 1320.
Appellant also argues that adherence to a 'national
standard' is necessary 'in order to avoid unconscionable burdens on the free
flow of interstate commerce.' As noted
supra, at 2611 n. 1, the application of domestic state police powers in this
case did not intrude on any congressional powers
under Art.
I, s 8, cl. 3, for there is no indication that
appellant's materials were ever distributed interstate. Appellant's argument would appear without
substance in any event. Obscene material
may be validly regulated by a State in the exercise of its traditional local
power to protect the general welfare of its population despite some possible
incidental effect on the flow of such materials across state lines. See, e.g., Head
v. New Mexcio Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Huron
Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852
(1960); Breard
v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); H.
P. Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Southern
Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Baldwin
v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Sligh
v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915).
FN14. Appellant's
jurisdictional statement contends that he was subjected to 'double jeopardy'
because a Los Angeles County trial judge dismissed, before trial, a prior
prosecution based on the same brochures, but apparently alleging exposures at a
different time in a different setting.
Appellant argues that once material has been found not to be obscene in
one proceeding, the State is 'collaterally estopped' from ever alleging it to be obscene in a different
proceeding. It is not clear from the
record that appellant properly raised this issue, better regarded as a question
of procedural due process than a 'double jeopardy' claim, in the state courts
below. Appellant failed to address any
portion of his brief on the merits to this issue, and appellee contends that
the question was waived under California law because it was improperly pleaded
at trial. Nor is it totally clear from the record before us what collateral
effect the pretrial dismissal might have under state law. The dismissal was based, a least in part, on
a failure of the prosecution to present affirmative evidence required by state
law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best
left to the California courts for further consideration on remand. The issue is not, in any event, a proper
subject for appeal. See Mishkin
v. New York, 383 U.S. 502, 512--514, 86 S.Ct. 958, 965--966, 16 L.Ed.2d 56
(1966).
IV
The dissenting Justices sound the alarm of
repression. But, in our view, 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. It is a 'misuse of the great guarantees of
free speech and free press . . ..' Breard
v. Alexandria, 341 U.S., at 645, 71 S.Ct., at 934. The First Amendment protects works which,
taken as a whole, have serious literary, artistic, political, or scientific
value, regardless of whether the government or a majority of the people approve
of the ideas these works represent. 'The
protection given speech and press was fashioned to assure unfettered
interchange of ideas for the bringing about of *35 political and social
changes desired by the people,' **2621Roth
v. United States, supra, 354 U.S., at 484, 77 S.Ct., at 1308
(emphasis added). See Kois
v. Wisconsin, 408 U.S., at 230--232, 92 S.Ct., at 2246--2247; Thornhill
v. Alabama, 310 U.S., at 101--102, 60 S.Ct., at 743--744. But the public
portrayal of hard-core sexual conduct for its own sake, and for the ensuing
commercial gain, is a different matter. [FN15]
FN15. In the apt
words of Mr. Chief Justice Warren, the appellant in this case was 'plainly
engaged in the commercial exploitation of the morbid and shameful craving for
materials with prurient effect. I
believe that the State and Federal Governments can constitutionally punish such
conduct. That is all that these cases
present to us, and that is all we need to decide.' Roth
v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (concurring opinion).
There is no evidence, empirical or historical,
that the stern 19th century American censorship of public distribution and
display of material relating to sex, see Roth
v. United States, supra, 354 U.S., at 482--485, 77 S.Ct., at 1307--1309, in any way limited or affected expression of serious
literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question
that the era following Thomas Jefferson to Theodore Roosevelt was an
'extraordinarily vigorous period,' not just in economics and politics, but in
belles lettres and in 'the outlying fields of social and political
philosophies.' [FN16] We do not see the harsh hand *36 of censorship
of ideas--good or bad, sound or unsound--and 'repression' of political liberty
lurking in every state regulation of commercial exploitation of human interest
in sex.
FN16. See 2 V.
Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century,
Parrington observed 'A new age had come and other dreams--the age and the
dreams of middle-class sovereignty . . .. From the crude and vast romanticisms
of that vigorous sovereignty emerged eventually a spirit of realistic
criticism, seeking to evaluate the worth of this new America, and discover if
possible other philosophies to take the place of those which had gone down in
the fierce battles of the Civil War.' Id., at 474. Cf. 2 Morison,
H. Commager & W. Leuchtenburg, The Growth of the American Republic 197--233
(6th ed. 1969); Paths of American Thought 123--166, 203--290 (A. Schlesinger
& M. White ed. 1963) (articles of Fleming, Lerner, Morton & Lucia
White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and
Thought in Modern America 337--386 (1952).
Mr. Justice Brennan finds 'it is hard to see
how state-ordered regimentation of our minds can ever be forestalled.' Paris
Adult Theatre I v. Slaton, 413 U.S., at 110, 93 S.Ct., at 2661 (Brennan, J., dissenting).
These doleful anticipations assume that courts cannot distinguish
commerce in ideas, protected by the First Amendment, from commercial
exploitation of obscene material. Moreover, state regulation of hard-core pornography
so as to make it unavailable to nonadults, a regulation which Mr. Justice
Brennan finds constitutionally permissible, has all the elements of
'censorship' for adults; indeed even more rigid enforcement techniques may be
called for with such dichotomy of regulation.
See Interstate
Circuit, Inc. v. Dallas, 390 U.S., at 690, 88 S.Ct., at 1306. [FN17] One can concede
that the 'sexual revolution' of recent years may have had useful byproducts in
striking layers of prudery from a subject long irrationally kept from needed
ventilation. But it does not follow that
no regulation of patently offensive 'hard core' materials is needed or
permissible; civilized people do not allow unregulated access to heroin because it is a derivative of
medicinal morphine.
FN17. '(W)e have
indicated . . . that because of its strong and abiding interest in youth, a
State may regulate the dissemination to juveniles of, and their access to,
material objectionable as to them, but which a State clearly could not regulate
as to adults. Ginsberg
v. New York, . . . (390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)).' Interstate
Circuit, Inc. v. Dallas, 390 U.S. 676, 690, 88 S.Ct. 1298, at 1306, 20 L.Ed.2d
225 (1968) (footnote omitted).
**2622 In sum, we (a) reaffirm the Roth
holding that obscene material is not protected by the First Amendment; (b) hold
that such material can be regulated by the States, subject to the specific
safeguards enunciated *37 above, without a showing that the material is
'utterly without redeeming social value'; and (c) hold that obscenity is to be
determined by applying 'contemporary community standards,' see Kois
v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, and Roth
v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311, not 'national standards.'
The judgment of the Appellate Department of the Superior Court, Orange
County, California, is vacated and the case remanded to that court for further
proceedings not inconsistent with the First Amendment standards established by
this opinion. See United
States v. 12 200-Foot Reels of Super 8mm.
Film, 413 U.S. 123, at 130 n. 7, 93 S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d
500.
Vacated and remanded.
Mr. Justice DOUGLAS, dissenting.
I
Today we levae open the way for California [FN1] to send a man
to prison for distributing brochures that advertise books and a movie under
freshly written standards defining obscenity which until today's decision were
never the part of any law.
FN1. California
defines 'obscene matter' as 'matter, taken as a whole, the predominant appeal
of which to the average person, applying contemporary standards, is to prurient
interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and
is matter which taken as a whole goes substantially beyond customary limits of
candor in description or representation of such matters; and is matter which
taken as a whole is utterly without redeeming social importance.' Calif.Penal
Code s 311(a).
The
Court has worked hard to define obscenity and concededly has failed. In Roth
v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, it ruled that '(o)bscene material is material which deals
with sex in a manner appealing to prurient interest.' Id.,
at 487, 77 S.Ct., at 1310. Obscenity, it was said, was rejected by the
First Amendment because it is 'utterly without redeeming *38 social
importance.' Id.,
at 484, 77 S.Ct., at 1308. The presence of a
'prurient interest' was to be determined by 'contemporary community standards.'
Id.,
at 489, 77 S.Ct., at 1311. That test, it has been
said, could not be determined by one standard here and another standard there, Jacobellis
v. Ohio, 378 U.S. 184, 194, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793, but 'on the basis of a national standard.' Id.,
at 195, 84 S.Ct., at 1682. My brother Stewart in
Jacobellis commented that the difficulty of the Court in giving content to
obscenity was that it was 'faced with the task of trying to define what may be
indefinable.' Id.,
at 197, 84 S.Ct., at 1683.
In Memoirs
v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, the Roth test was elaborated to read as follows: '(T)hree
elements must coalesce: 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.'
In Ginzburg
v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, a publisher was sent to prison, not for the kind of books
and periodicals he sold, but for the manner in which the publications were
advertised. The 'leer of the sensualist'
was said to permeate the advertisements. Id.,
at 468, 86 S.Ct., at 946. The Court said, 'Where the purveyor's sole
emphasis is on the sexually provocative aspects of his publications, that fact **2623
may be decisive in the determination of obscenity.' Id.,
at 470, 86 S.Ct., at 947. As Mr. Justice Black
said in dissent, '. . . Ginzburg . . .
is now finally and authoritatively condemned to serve five years in prison for
distributing printed matter about sex which neither Ginzburg nor anyone else
could possibly have known to be criminal.' Id.,
at 476, 86 S.Ct., at 950. That observation by Mr. Justice Black is
underlined by the fact that the Ginzburg decision was five to four.
*39 A further refinement was added by Ginsberg
v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195, where the Court held that 'it was not irrational for the
legislature to find that exposure to material condemned by the statute is
harmful to minors.'
But even those members of this Court who had
created the new and changing standards of 'obscenity' could not agree on their
application. And so we adopted a per curiam treatment of so-called
obscene publications that seemed to pass constitutional muster under the
several constitutional tests which had been formulated. See Redrup
v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. Some condemn it if its 'dominant tendency might be to
'deprave or corrupt' a reader.' [FN2] Others look not to the content of the book
but to whether it is advertised "to appeal to the erotic interests of
customers." [FN3] Some condemn only 'hardcore pornography'; but even then a
true definition is lacking. It has
indeed been said of that definition, 'I could never succeed in (defining it)
intelligibly,' but 'I know it when I see it.' [FN4]
FN2. Roth
v. United States, 354 U.S. 476, 502, 77 S.Ct. 1304, 1318, 1 L.Ed.2d 1498 (opinion of Harlan, J.).
FN3. Ginzburg
v. United States, 383 U.S. 463, 467, 86 S.Ct. 942, 945, 16 L.Ed.2d 31.
FN4. Jacobellis
v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (Stewart, J., concurring).
Today we would add a new three-pronged test:
'(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.'
Those are the standards we ourselves have
written into the Constitution. [FN5] Yet how under these vague tests can *40 we sustain
convictions for the sale of an article prior to the time when some court has
declared it to be obscene?
FN5. At the
conclusion of a two-year study, the U.S. Commission on Obscenity and
Pornography determined that the standards we have written interfere with
constitutionally protected materials:
'Society's attempts to legislate for adults in the area of
obscenity have not been successful.
Present laws prohibiting the consensual sale or distribution of explicit
sexual materials to adults are extremely unsatisfactory in their practical
application. The Constitution permits material to be deemed 'obscene' for
adults only if, as a whole, it appeals to the 'prurient' interest of the
average person, is 'patently offensive' in
light of 'community standards,' and lacks 'redeeming social value.' These vague
and highly subjective aesthetic, psychological and moral tests do not provide
meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and
sometimes erroneously applied and the distinction made by courts between prohibited
and permissible materials often appear indefensible. Errors in the application
of the law and uncertainty about its scope also cause interference with the
communication of constitutionally protected materials.' Report of the Commission on Obscenity and
Pornography 53 (1970).
Today the Court retreats from the earlier
formulations of the constitutional test and undertakes to make new
definitions. This effort, like the
earlier ones, is earnest and well intentioned.
The difficulty is that we do not deal with constitutional terms, since
'obscenity' is not mentioned in the Constitution or Bill **2624 of
Rights. And the First Amendment makes no
such exception from 'the press' which it undertakes to protect nor, as I have
said on other occasions, is an exception necessarily implied, for there was no
recognized exception to the free press at the time the Bill of Rights was
adopted which treated 'obscene' publications differently from other types of
papers, magazines, and books. So there
are no constitutional guidelines for deciding
what is and what is not 'obscene.' The
Court is at large because we deal with tastes and standards of literature. What shocks me may *41 be sustenance
for my neighbor. What causes one person
to boil up in rage over one pamphlet or movie may reflect only his neurosis,
not shared by others. We deal here with
a regime of censorship which, if adopted, should be done by constitutional
amendment after full debate by the people.
Obscenity cases usually generate tremendous
emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized
censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as,
if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when
he was on dangerous ground. Under the
present regime--whether the old standards or the new ones are used--the
criminal law becomes a trap. A brand new
test would put a publisher behind bars under a new law improvised by the courts
after the publication. That was done in
Ginzburg and has all the evils of an ex post facto law.
My contention is that until a civil proceeding
has placed a tract beyond the pale, no criminal prosecution should be
sustained. For no more vivid
illustration of vague and uncertain laws could be designed than those we have
fashioned. As Mr. Justice Harlan has
said:
'The upshot of all this divergence in viewpoint is that
anyone who undertakes to examine the Court's decisions since Roth which have
held particular material obscene or not obscene would find himself in utter
bewilderment.' Interstate
Circuit, Inc. v. Dallas, 390 U.S. 676, 707, 88 S.Ct. 1298, 1315, 20
L.Ed.2d 225.
In Bouie
v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, we upset a conviction for remaining on property after
being asked to leave, while the only unlawful act charged by the statute was
entering. We held that the defendants
had received no 'fair warning, at the time of their conduct' *42 while
on the property 'that the act for which they now stand convicted was rendered
criminal' by the state statute. Id.,
at 355, 84 S.Ct., at 1703. The same requirement of 'fair warning' is due
here, as much as in Bouie. The latter involved racial discrimination; the
present case involves rights earnestly urged as being protected by the First
Amendment. In any case--certainly when
constitutional rights are concerned--we should not allow men to go to prison or
be fined when they had no 'fair warning' that what they did was criminal
conduct.
II
If a specific book, play, paper, or motion
picture has in a civil proceeding been condemned as obscene and review of that
finding has been completed, and thereafter a
person publishers, shows, or displays that particular book or film, then a
vague law has been made specific. There
would remain the underlying question whether the First Amendment allows an
implied exception in the case of obscenity.
I do not think it does [FN6] **2625 and my views *43 on the issue have
been stated over and over again. [FN7] But at least a criminal prosecution brought
at that juncture would not violate the time-honored void-for-vagueness test. [FN8]
FN6. It is said that
'obscene' publications can be banned on authority of restraints on
communications incident to decrees restraining unlawful business monopolies or
unlawful restraints of trade, Sugar
Institute v. United States, 297 U.S. 553, 597, 56
S.Ct. 629, 641, 89 L.Ed. 859, or communications
respecting the sale of spurious or fraudulent securities. Hall
v. Geiger-Jones Co., 242 U.S. 539, 549, 37 S.Ct. 217, 220, 61 L.Ed. 480; Caldwell
v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567, 37 S.Ct. 224, 226, 61 L.Ed.
493; Merrick
v. Halsey & Co., 242 U.S. 568, 584, 37 S.Ct. 227, 230, 61 L.Ed. 498. The First Amendment
answer is that whenever speech and conduct are brigaded--as they are when one
shouts 'Fire' in a crowded theater--speech can be outlawed. Mr. Justice Black, writing for a unanimous
Court in Giboney
v. Empire Storage Co., 336
U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, stated that
labor unions court be restrained from picketing a firm in support of a
secondary boycott which a State had validly outlawed. Mr. Justice Black said: 'It rarely has been
suggested that the constitutional freedom for speech and press extends its
immunity to speech or writing used as an integral part of conduct in violation
of a valid criminal statute. We reject the contention now.' Id.,
at 498, 69 S.Ct., at 688.
FN7. See United
States v. 12 200-Foot Reels of Super 8mm.
Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United
States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kois
v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312; Byrne
v. Karalexis, 396 U.S. 976, 977, 90 S.Ct. 469, 470, 24 L.Ed.2d 447; Ginsberg
v. New York, 390 U.S. 629, 650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195; Jacobs
v. New York, 388 U.S. 431, 436, 87 S.Ct. 2098, 2101, 18 L.Ed.2d 1294; Ginzburg
v. United States, 383 U.S. 463, 482, 86 S.Ct. 942, 953, 16 L.Ed.2d 31; Memoirs
v. Massachusetts, 383 U.S. 413, 424, 86 S.Ct. 975, 980, 16 L.Ed.2d 1; Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 72, 83 S.Ct. 631, 640, 9 L.Ed.2d 584; Times
Film Corp. v. City of Chicago, 365 U.S. 43, 78, 81 S.Ct. 391, 410, 5 L.Ed.2d
403; Smith
v. California, 361 U.S. 147, 167, 80
S.Ct. 215, 226, 4 L.Ed.2d 205; Kingsley
Pictures Corp. v. Regents, 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d
1512; Roth
v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498; Kingsley
Books, Inc. v. Brown, 354 U.S. 436, 446, 77 S.Ct. 1325, 1330, 1 L.Ed.2d 1469; Superior
Films, Inc. v. Department of Education, 346 U.S. 587, 588, 74 S.Ct. 286, 98
L.Ed. 329; Gelling
v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359.
FN8. The Commission
on Obscenity and Pornography has advocated such a procedure:
'The Commission recommends the enactment, in all
jurisdictions which enact or retain provisions prohibiting the dissemination of
sexual materials to adults or young persons, of legislation authorizing
prosecutors to obtain declaratory judgments as to whether particular materials
fall within existing legal prohibitions . . ..
'A declaratory judgment procedure . . . would permit
prosecutors to proceed civilly, rather than through the criminal process, against
suspected violations of obscenity prohibition.
If such civil procedures are utilized, penalties would be imposed for
violation of the law only with respect to conduct occurring after a civil
declaration is obtained. The Commission believes this course of action to be
appropriate whenever there is any existing doubt regarding the legal status of
materials; where other alternatives are available, the criminal process should
not ordinarily be invoked against persons who might have reasonably believed,
in good faith, that the books or films they distributed were entitled to
constitutional protection, for the threat of criminal sanctions might otherwise
deter the free distribution of constitutionally protected material.' Report of the Commission on Obscenity and
Pornography 63 (1970).
No such protective procedure has been designed
by California in this case.
Obscenity--which even we cannot define with precision--is a hodge-podge. To send *44 men to jail for violating
standards they cannot understand, construe, and apply is a monstrous thing to
do in a Nation dedicated to fair trials and due process.
III
While the right to know is the corollary of
the right to speak or publish, no one can be forced by government to listen to
disclosure that he finds offensive. That
was the basis of my dissent in Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed.
1068, where I protested against making streetcar
passengers a 'captive' audience. There
is no 'captive audience' problem in these
obscenity cases. No one is being
compelled to look or to listen. Those who enter newsstands **2626 or
bookstalls may be offended by what they see.
But they are not compelled by the State to frequent those places; and it
is only state or governmental action against which the First Amendment,
applicable to the States by virtue of the Fourteenth, raises a ban.
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, 69 S.Ct. 894, 896, 93 L.Ed. 1131. 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 ever 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 *45 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. [FN9] 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.
FN9. Obscenity law
has had a capricious history:
'The white slave traffic was first exposed by W. T. Stead
in a magazine article, 'The Maiden Tribute.'
The English law did absolutely nothing to the profiteers in vice, but
put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of
criminality, a judge in deciding what is indecent or profane may consciously
disregard the sound test of present injury, and proceeding upon an entirely
different theory may condemn the defendant because his words express ideas
which are thought liable to cause bad future consequences. Thus musical
comedies enjoy almost unbridled license, while a problem play is often
forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has
been used against Shelley's Queen Mab and the decorous
promulgation of pantheistic ideas, on the ground that to attack religion is to
loosen the bonds of society and endanger the state. This is simply a roundabout modern method to
make heterodoxy in sex matters and even in religion a crime.' Z. Chafee, Free Speech in the United States
151 (1942).
The standard 'offensive' is unconstitutional
in yet another way. In Coates
v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, we had before us a municipal ordinance that made it a
crime for three or more persons to assemble on a street and conduct themselves
'in a manner annoying to persons *46 passing by.' We struck it down, saying: 'If three or more
people meet together on a sidewalk or street corner, they must conduct
themselves so as not to annoy any police officer or other person who should
happen to pass by. In our opinion this
ordinance is unconstitutionally vague because it subjects the exercise of the
right of assembly to an unascertainable standard, and unconstitutionally broad
because it authorizes the punishment of constitutionally protected conduct.
'Conduct that annoys some people does not
annoy others. Thus, the ordinance is
vague, not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.' Id.,
at 614, 91 S.Ct., at 1688.
**2627 How we can deny Ohio the
convenience of punishing people who 'annoy' others and allow California power
to punish people who publish materials 'offensive' to some people is difficult
to square with constitutional requirements.
If there are to be restraints on what is
obscene, then a constitutional amendment should be the way of achieving the
end. There are societies where religion and mathematics are the only free
segments. It would be a dark day for
America if that were our destiny. But
the people can make it such if they choose to write obscenity into the
Constitution and define it.
We deal with highly emotional, not rational,
questions. To many the Song of Solomon
is obscene. I do not think we, the
judges, were ever given the constitutional power to make definitions of
obscenity. If it is to be defined, let
the people debate and decide by a constitutional amendment what they want to
ban as obscene and what standards they want the legislatures and the courts to
apply. Perhaps the people will decide that the path towards a mature,
integrated society requires *47 that all ideas competing for acceptance
must have no censor. Perhaps they will
decide otherwise. Whatever the choice,
the courts will have some guidelines.
Now we have none except our own predilections.
Mr.
Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join,
dissenting.
In my dissent in Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d
446, decided this date, I noted that I had no
occasion to consider the extent of state power to regulate the distribution of
sexually oriented material to juveniles or the offensive exposure of such
material to unconsenting adults. In the
case before us, appellant was convicted of distributing obscene matter in
violation of California
Penal Code s 311.2, on the basis of evidence that
he had caused to be mailed unsolicited brochures advertising various books and
a movie. I need not now decide whether a
statute might be drawn to impose, within the requirements of the First
Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in
Paris Adult Theatre, I, the statute under which the prosecution was brought is
unconstitutionally overbroad, and therefore invalid on its face. [FN*] '(T)he transcendent
value to all society of constitutionally protected expression is deemed to
justify allowing 'attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite narrow specificity.'' Gooding
v. Wilson, 405 U.S. 518, 521, 92 S.Ct.
1103, 1105, 31 L.Ed.2d 408 (1972), quoting *48
from Dombrowski
v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). See also Baggett
v. Bullitt, 377 U.S. 360, 366, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377 (1964); Coates
v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214
(1971); id.,
at 619--620, 91 S.Ct., at 1690--1691 (White, J.,
dissenting); United
States v. Raines, 362 U.S. 17, 21--22, 80 S.Ct. 519, 522--523, 4 L.Ed.2d 524
(1960); NAACP
v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Since my view in
Paris Adult Theatre I represents a substantial departure from the course of our
prior decisions, and since the state courts have as yet had no opportunity to
consider whether a 'readily apparent construction suggests itself as a vehicle
for rehabilitating the (statute) in a single prosecution,' Dombrowski
v. Pfister, supra, 380 U.S., at 491, 85 S.Ct., at 1123, I **2628 would reverse the judgment of the
Appellate Department of the Superior Court and remand the case for proceedings
not inconsistent with this opinion. See Coates
v. City of Cincinnati, supra, 402 U.S., at 616, 91 S.Ct., at 1689.
FN* Cal.
Penal Code s 311.2(a) provides that 'Every person
who knowingly: sends or causes to be sent, or brings or causes to be brought,
into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or
offers to distribute, or has in his possession with intent to distribute or to
exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.'
For U.S. Supreme Court Briefs See:
1971
WL 126393 (Appellate Brief), Brief for
Petitioner, (May 13, 1971)
1971
WL 126394 (Appellate Brief), Brief for
Respondent, (June 14, 1971)
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, 1
Media L. Rep. 1441
END OF
DOCUMENT