Parties: Paris Adult Theatre I v. Slaton
Date: 1973-06-21
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Paragraph: 31 - The other reason I could not bring myself to conclude that 'obscenity' was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding 'obscenity' from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the creation of the 'obscenity' exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment.
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Paragraph: 84 - This history caused us to conclude in Roth 'that the unconditional phrasing of the First Amendment (that 'Congress shall make no law .. . abridging the freedom of speech, or of the press . . .') was not intended to protect every utterance.' 354 U.S., at 483, 77 S.Ct., at 1308. It also caused us to hold, as numerous prior decisions of this Court had assumed, see id., at 481, 77 S.Ct., at 1306, that obscenity could be denied the protection of the First Amendment and hence suppressed because it is a form of expression 'utterly without redeeming social importance,' id., at 484, 77 S.Ct., at 1309, as 'mirrored in the universal judgment that (it) should be restrained . . ..'
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Paragraph: 104 - Whatever the extent of state power to regulate in those areas, it should be clear that the view I espouse today would introduce a large measure of clarity to this troubled area, would reduce the institutional pressure on this Court and the rest of the State and Federal Judiciary, and would guarantee fuller freedom of expression while leaving room for the protection of legitimate governmental interests. Since the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment and remand the case to that court for further proceedings not inconsistent with this opinion.
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Paragraph: 45 - N120* 'In (Reidel), the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution be limited to willing recipients who state that they are adults, and, further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material. . . . Those who choose to pass through the front door of the defendant's theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there. That case clearly establishes once and for all that the sale and delivery of obscene material to willing adults is not protected under the first amendment.'
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Paragraph: 31 - The other reason I could not bring myself to conclude that 'obscenity' was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding 'obscenity' from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the creation of the 'obscenity' exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment.
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Paragraph: 31 - The other reason I could not bring myself to conclude that 'obscenity' was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding 'obscenity' from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the creation of the 'obscenity' exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment.
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Paragraph: 47 - In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that N22* 'sex and obscenity are not synonymous,' id., at 487, 77 S.Ct., at 1310, and that matter which is sexually oriented but not obscene is fully protected by the Constitution.
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Paragraph: 71 - The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: N23* '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.' Miller v. California, 413 U.S., at 24, 93 S.Ct., at 2615. In apparent illustration of 'sexual conduct,' as that term is used in the test's second element, the Court identifies '(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' and '(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.'
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Paragraph: 73 - And today's restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation.
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Paragraph: 79 - Thus, the Court's new formulation will not relieve us of 'the awesome task of making case by case at once the criminal and the constitutional law.' And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms.
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Paragraph: 47 - In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that N80* 'sex and obscenity are not synonymous,' id., at 487, 77 S.Ct., at 1310, and that matter which is sexually oriented but not obscene is fully protected by the Constitution.
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Paragraph: 48 - The essence of our problem in the obscenity area is that we have been unable to provide 'sensitive tools' to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into the suppression of the latter.
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Paragraph: 53 - Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as 'prurient interest,' 'patent offensiveness,' 'serious literary value,' and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we 'know it when (we) see it,' Jacobellis v. Ohio, supra, 378 U.S., at 197, 84 S.Ct., at 1683 (Stewart, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.
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Paragraph: 63 - The problems of fair notice and chilling protected speech are very grave standing alone. But it does not detract from their importance to recognize that a vague statute in this area creates a third, although admittedly more subtle, set of problems. These problems concern the institutional stress that inevitably results where the line separating protected from unprotected speech is excessively vague. In Roth we conceded that N81* 'there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls . . ..' 354 U.S., at 491—492, 77 S.Ct., at 1313. Our subsequent experience demonstrates that almost every case is 'marginal.' And since the 'margin' marks the point of separation between protected and unprotected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty. N82* 'The suppression of a particular writing or other tangible form of expression is . .. an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards.'
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Paragraph: 82 - Our experience since Roth requires us not only to abandon the effort to pick out obscene material on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.
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Paragraph: 25 - But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, supra, 413 U.S., at 24, 34, 93 S.Ct., at 2615, 2620, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Roth v. United States, supra, 354 U.S., at 485—487, 77 S.Ct., at 1309—1310; Thornhill v. Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 743—744, 84 L.Ed. 1093 (1940); Finnis, 'Reason and Passion': The Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222, 229 230, 241—243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other 'areas or zones' of constitutionally protected privacy, the mere fact that, as a consequence, some human 'utterances' or 'thoughts' may be incidentally affected does not bar the State from acting to protect legitimate state interests.
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Paragraph: 27 - To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-Seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy.
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