In 1964, Justice Potter Stewart attempted to define "hard-core" pornography, which the Court had deemed obscene, saying: "I shall not today attempt further to define the kinds of material I understand to be embraced. But I know it when I see it."
Over the years, the Supreme Court has recognized several types of speech or expression that do not qualify for protection under the First Amendment. One such category is obscenity - but the Court has had a hard time defining what exactly that means.
“Congress shall make no law…abridging the freedom of speech…"
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader. As the Supreme Court wrote in Winters v. New York:
"We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right."1
The right to impart and to receive information and ideas, regardless of their social worth is fundamental to our free society.2 Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, as the Court has rejected any concept of ideological obscenity.3 However, this function is not the reason that obscenity is outside the protection of the First Amendment, although the Court has never really been clear about what that reason is.
Adjudication over the constitutional law of obscenity began in Roth v. United States,4 in which the Court in an opinion by Justice Brennan settled in the negative the dispositive question whether obscenity is utterance within the area of protected speech and press.5 The Court then undertook a brief historical survey to demonstrate that the unconditional phrasing of the First Amendment was not intended to protect every utterance. All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes and provided for prosecutions of libels as well. It was this history that had caused the Court in Beauharnais v. Illinois to conclude that libelous utterances are not within the area of constitutionally protected speech, and this history was deemed to demonstrate that obscenity, too, was outside the protection intended for speech and press.6 The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.7 It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But because obscenity was not protected at all, such tests as clear and present danger were irrelevant.8
However, Justice Brennan continued, sex and obscenity are not synonymous. Obscene material is material that deals with sex in a manner appealing to “prurient interest." The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material that does not treat sex in a manner appealing to prurient interest.9 The standard that the Court thereupon adopted for the designation of material as unprotected obscenity was whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.10 The Court defined material appealing to prurient interest as material having a tendency to excite lustful thoughts, and defined prurient interest as a shameful or morbid interest in nudity, sex, or excretion.11
In the years after Roth, the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,12 unwilling adult recipients,13 and procedure,14 these cases are best explicated chronologically.
Manual Enterprises v. Day15 upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio, which reversed a conviction for exhibiting a motion picture.16 Chief Justice Warren's concurrence in Roth17 was adopted by a majority in Ginzburg v. United States,18 in which Justice Brennan for the Court held that in close cases borderline materials could be determined to be obscene if the seller pandered them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the pandering test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.19 Unanimity was shattered, however, when on the same day the Court held that Fanny Hill, a novel at that point 277 years old, was not legally obscene.20 The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value.21
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York,22 in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,23 the Court succinctly summarized the varying positions of the seven Justices in the majority and said: whichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.24 And so things went for several years.25
Changing membership on the Court raised increasing speculation about the continuing vitality of Roth; it seemed unlikely the Court would long continue its Redrup approach.26 The change, when it occurred, strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.
At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected.27 By a five-to-four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults.28 Chief Justice Burger for the Court observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It does not matter that the states may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean free will, that curbs governmental efforts to suppress pornography.29
In Miller v. California,30 the Court prescribed standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined to materials that depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed.31 The law 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.32 The standard that a work must be utterly without redeeming social value before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits.33 Prurient interest and patent offensiveness, the Court indicated, are essentially questions of fact.34 By contrast, the third or value prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.35
The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only hard core materials were to be deemed without the protection of the First Amendment, and the Court's idea of the content of hard core pornography was revealed in its examples: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.36 Subsequently, the Court held that a publication was not obscene if it provoked only normal, healthy sexual desires. To be obscene it must appeal to a shameful or morbid interest in nudity, sex, or excretion.37 The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.38
First Amendment values, the Court stressed in Miller, are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.39 But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was patently offensive. Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia,40 the Court, while adhering to the Miller standards, stated that juries [do not] have unbridled discretion in determining what is 'patently offensive.' Miller was intended to make clear that only hard-core materials could be suppressed and this concept and the Court's descriptive itemization of some types of hardcore materials were intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. The Court's own viewing of the motion picture in question convinced it that nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the 'patently offensive' element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.41 But, in a companion case, the Court found that a jury determination of obscenity was supported by the evidence and consistent with the standards.42
The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities,43 but nonetheless have guided the Court since. In addition, the Court's willingness to allow some regulation of non-obscene but sexually explicit or indecent expression reduces the importance (outside the criminal area) of whether material is classified as obscene.
Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home,44 unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant's home by police officers armed with a search warrant for other items which were not found. The Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and that right takes on an added dimension in the context of a prosecution for possession of something in one's own home. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.45 Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment, the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials. Roth and the cases following that decision are not impaired by today's decision, the Court insisted,46 but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth. First, there is no governmental interest in protecting an individual's mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults.47
Stanley's broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled.48 The Court has consistently rejected Stanley's theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults.49 Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.50 Apparently for this reason, a state's conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized.51
The government may also take notice of objective conditions attributable to the commercialization of sexually explicit but non-obscene materials. Thus, the Court recognized a municipality's authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that adult theaters showing motion pictures that depicted specified sexual activities or specified anatomical areas could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.52 Similarly, an adult bookstore was subject to closure as a public nuisance where it was being used as a place for prostitution and illegal sexual activities, because the closure was directed at unlawful conduct having nothing to do with books or other expressive activity.53 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity where the screen is visible from a public street or place.54 Also, the FCC was unable to justify a ban on transmission of indecent but not obscene telephone messages.55
There is expression, consisting of words or pictures, that some find offensive but that does not constitute obscenity and is protected by the First Amendment. Nudity portrayed in films or stills cannot be presumed obscene;56 nor can offensive language ordinarily be punished simply because it offends someone.57 Nonetheless, government may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court's view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government's interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.58
The Court has held, however, that live productions containing nudity may be regulated to a greater extent than may films or publications. Whether this represents a distinction between live performances and other entertainment media, or whether it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,59 the Court upheld application of Indiana's public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear pasties and a G-string rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of societal order and morality,60 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,61 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.62 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,63 but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in adult theaters,64 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.65 But broad implications for First Amendment doctrine are probably unwarranted.66 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing.
In Erie v. Pap's A.M.,67 the Supreme Court again upheld the application of a statute prohibiting public nudity to an adult entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter's position in Barnes, that the statute satisfied the O'Brien test because it was intended to combat harmful secondary effects, such as prostitution and other criminal activity.68 Justice Souter, however, although joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe that the city has made a sufficient evidentiary showing to sustain its regulation, and therefore would have remanded the case for further proceedings.69 He acknowledged his mistake in Barnes in failing to make the same demand for evidence.70
The plurality opinion found that Erie's public nudity ban regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis, because Erie allowed dancers to perform wearing only pasties and G-strings.71 It may follow that requiring dancers to wear pasties and G-strings may not greatly reduce secondary effects, but O'Brien requires only that the regulation further the interest of combating such effects, not that it further it to a particular extent.72 The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.
Regardless of the government's interests in regulating indecent expression, it may not restrict such expression in a viewpoint discriminatory way, as the Supreme Court reaffirmed in Iancu v. Brunetti.73 Ianc involved a provision of the Lanham Act, the federal law governing trademarks, that prohibited the registration of immoral or scandalous marks.74 Drawing on dictionary definitions of those terms, the Court concluded that the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation, thus discriminating on the basis of viewpoint.75 In holding this provision unconstitutional, the Court declined to construe the statute, as the government urged, as prohibiting certain ways of expressing ideas such as vulgarity or profanity rather than barring expression of the ideas themselves.76 The Court reasoned that the law by its own terms reached content beyond sexually explicit and profane speech.77
Balancing Privacy Rights with Freedom of Speech and the Free Press
First Amendment Limits: Child Pornography
Freedom of Expression
1. Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that [m]usic, as a form of expression and communication, is protected under the First Amendment. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991).
3. Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the banning of the movie Lady Chatterley's Lover on the ground that it dealt too sympathetically with adultery. It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing. Id. at 688–89.
4. 354 U.S. 476 (1957). Heard at the same time and decided in the same opinion was Alberts v. California, involving, of course, a state obscenity law. The Court's first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), considered infra. Earlier the Court had divided four-to-four and thus affirmed a state court judgment that Edmund Wilson's Memoirs of Hecate County was obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
5. Roth v. United States, 354 U.S. 476, 481 (1957). Justice Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to the protection of children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
6. 354 U.S. at 482–83. The reference is to Beauharnais v. Illinois, 343 U.S. 250 (1952).
7. 354 U.S. at 484. There then followed the well-known passage from Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).
8. 354 U.S. at 486, also quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).
9. 354 U.S. at 487, 488.
10. 354 U.S. at 489.
11. 354 U.S. at 487 n.20. A statute defining prurient as that which incites lasciviousness or lust covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985); obscenity consists in appeal to a shameful or morbid interest in sex, not in appeal to normal, healthy sexual desires. Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between normal, healthy sexual desires and shameful or morbid sexual desires.
12. In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute reduced the adult population of Michigan to reading only what is fit for children, the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). Protection of children in this context is concurred in even by those Justices who would proscribe obscenity regulation for adults. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978); Pinkus v. United States, 436 U.S. 293, 296–98 (1978).
13. Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. It is up to offended individuals to turn away. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975). But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both 'sensitive' and 'insensitive' persons in the community, but may not focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials).
14. The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has been suffused with First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); see also Walter v. United States, 447 U.S. 649 (1980). Scienter—that is, knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959), but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974). See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Kennedy, dissenting in Alexander, objected to the forfeiture of expressive material that had not been adjudged to be obscene. Id. at 578.
15. 370 U.S. 478 (1962).
16. 378 U.S. 184 (1964). Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller's Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is best known for Justice Stewart's concurrence, contending that criminal prohibitions should be limited to hard-core pornography. The category may be indefinable, he added, but I know it when I see it, and the motion picture involved in this case is not that. Id. at 197. The difficulty with this visceral test is that other members of the Court did not always see it the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named John Cleland's Memoirs of a Woman of Pleasure v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene).
18. 383 U.S. 463 (1966). Pandering remains relevant in pornography cases. Splawn v. California, 431 U.S. 595 (1977); Pinkus v. United States, 436 U.S. 293, 303–04 (1978).
19. Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977).
21. 383 U.S. at 418. On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977).
22. 386 U.S. 767 (1967).
23. 386 U.S. at 771.
24. 386 U.S. at 770–71. The majority was thus composed of Chief Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas.
25. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and listing 31 cases decided on the basis of it).
26. See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Bd. of Censors, 401 U.S. 480 (1971), a state court determination that the motion picture I Am Curious (Yellow) was obscene was affirmed by an equally divided Court, Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560–64, 568 (1969), had insisted that Roth remained the governing standard.
27. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Alexander v. Virginia, 408 U.S. 921 (1972).
28. 413 U.S. 49 (1973).
29. 413 U.S. at 57, 60–62, 63–64, 65–68. Delivering the principal dissent, Justice Brennan argued that the Court's Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73. I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents. Id. at 113. Justices Stewart and Marshall joined this opinion; Justice Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70.
30. 413 U.S. 15 (1973).
31. Miller v. California, 413 U.S. 15, 27 (1973). The Court stands ready to read into federal statutes the standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are obscene, lewd, lascivious, filthy, indecent, and immoral as limited to the types of hardcore pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court's insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977).
32. Miller v. California, 413 U.S. at 24.
33. It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
34. 413 U.S. at 30–34. A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law. Hamling v. United States, 418 U.S. 87, 104 (1974). The holding does not compel any particular circumscribed area to be used as a community. In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106. Indeed, the jurors may be instructed to apply community standards without any definition being given of the community. Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution for use of the mails to transmit pornography, the fact that the legislature of the state within which the transaction takes place has abolished pornography regulation except for dealings with children does not preclude permitting the jurors in the federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature's decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977).
36. Miller v. California, 413 U.S. 15, 25 (1973). Quoting Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974), the Court reiterated that it was only hard-core material that was unprotected. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is 'patently offensive' within the meaning of the obscenity test set forth in the Miller cases. Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court upheld a state court's power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language.
39. 413 U.S. at 25.
40. 418 U.S. 153 (1974).
41. 418 U.S. at 161. The film at issue was Carnal Knowledge.
42. Hamling v. United States, 418 U.S. 87 (1974). In Smith v. United States, 431 U.S. 291, 305–06 (1977), the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members' own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller, (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller was particularly amenable to judicial review. The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987), but instead by a reasonable person standard. An erroneous instruction on this score, however, may be harmless error. Id. at 503.
43. For other five-to-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291 (1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois, 431 U.S. 767 (1977).
45. 394 U.S. at 564.
46. 394 U.S. at 560–64, 568.
47. 394 U.S. at 565–68.
48. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973). Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
49. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–70 (1973) (commercial showing of obscene films to consenting adults); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (regulation of non-obscene, nude dancing restricted to adults).
51. 495 U.S. at 109–10.
52. Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of the five majority Justices thought the speech involved deserved less First Amendment protection than other expression, id. at 63–71, while Justice Powell, concurring, thought the ordinance was sustainable as a measure that served valid governmental interests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance prohibiting location of adult theaters within 1,000 feet of residential areas, churches, or parks, and within one mile of any school. Rejecting the claim that the ordinance regulated content of speech, the Court indicated that such time, place and manner regulations are valid if designed to serve a substantial governmental interest and if allow[ing] for reasonable alternative avenues of communication. Id. at 50. The city had a substantial interest in regulating the undesirable secondary effects of such businesses. And, although the suitability for adult theaters of the remaining 520 acres within the city was disputed, the Court held that the theaters must fend for themselves in the real estate market, and are entitled only to a reasonable opportunity to open and operate. Id. at 54. The Supreme Court also upheld zoning of sexually oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
57. E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules apply to broadcast speech, which, because of its pervasive presence in the home and its accessibility to children, is accorded the most limited First Amendment protection of all media; non-obscene but indecent language and nudity may be curtailed, with the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978). However, efforts by Congress and the FCC to extend the indecency ban to 24 hours a day were rebuffed by an appeals court. Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. No. 100-459, § 608), cert. denied, 503 U.S. 913 (1992). Earlier, the same court had invalidated an FCC restriction on indecent, non-obscene broadcasts from 6 a.m. to midnight, finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children's Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). In 1992, however, Congress imposed a 6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight exception for public radio and television stations that go off the air at or before midnight. Pub. L. No. 102-356, § 16 (1992), 47 U.S.C. § 303 note. This time, after a three-judge panel found the statute unconstitutional, the en banc court of appeals upheld it, except for its 10 p.m.-to-midnight ban on indecent material on non-public stations. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). See also Broadcast Radio and Television, supra.
58. Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989), suggested that there should be a sliding scale taking into account the definition of obscenity: The more narrow the understanding of what is 'obscene,' and hence the more pornographic what is embraced within the residual category of 'indecency,' the more reasonable it becomes to insist upon greater assurance of insulation from minors. Barnes v. Glen Theatre, 501 U.S. 560 (1991), upholding regulation of nude dancing even in the absence of a threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.
59. 501 U.S. 560 (1991).
60. 501 U.S. at 568 (Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy).
61. 501 U.S. at 581 (Justice Souter).
62. 501 U.S. at 572 (Justice Scalia). The Justice thus favored application of the same approach applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990).
63. Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557–58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981). Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social ballroom dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes, 501 U.S. 560, 587 (1991), recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128–29 (7th Cir. 1990) (Easterbrook, J.).
64. Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between live and film performances even while acknowledging the harmful secondary effects associated with both.
65. The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical Hair, in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality's public-morality rationale would apply equally to the adult stage and to the operatic theater, while Justice Souter's secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between adult and theatrical productions. 501 U.S. at 564 n.1 (Chief Justice Rehnquist); id. at 574 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at the communicative aspect of the erotic dance. Id. at 591.
66. The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court was signaling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner's concurring opinion in the lower court's disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).
67. 529 U.S. 277 (2000).
68. 529 U.S. at 292, 291.
69. 529 U.S. at 310–311.
70. 529 U.S. at 316.
71. 529 U.S. at 301. The plurality said that, though nude dancing is expressive conduct, we think that it falls only within the outer ambit of the First Amendment's protection. Id. at 289. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000), however, the Court wrote that it cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech ['signal bleed' of sexually oriented cable programming] is not very important.
72. 529 U.S. at 301.
73. 588 U.S. ___, No. 18-302, slip op. (2019) .
74. Id. at 2 (quoting 15 U.S.C. § 1052(a)).
75. Id. at 6, 8. The Court illustrated how the statute favors and disfavors certain viewpoints with the following examples: 'Love rules'? 'Always be good'? Registration follows. 'Hate rules'? 'Always be cruel'? Not according to the Lanham Act's 'immoral or scandalous' bar. Id. at 6.
76. Id. at 8–9.
77. Id. Accordingly, the Court declined to reach the question of whether a statute limited to lewd, sexually explicit, and profane marks would comport with the First Amendment. Id. at 10 n.*.