Obscenity and Indecency

1. Evolution of the Law of Obscenity

As with the law of defamation, the law dealing with obscenity had its origins in English law. And as with defamation, spoken and written material considered obscene were dealt with differently. Obscene speech tended to be prosecuted as a disturbance of the peace or “public lewdness.” Written and pictorial materials thought to be obscene were prosecuted because of the belief, by legislatures and judges, that exposure to such materials tended to corrupt and debase the reader.¹ Accompanying that view was the recognition that some sort of standard or test must be developed for evaluating material, that could be easily applied in a number of different situations had to be developed.

A. The Hicklin Rule

One of the earliest tests was the Hicklin rule, derived from Regina v. Hicklin (1868), a case from England. This rule stated: “Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall (italics added).”

Th Hicklin rule had been interpreted by the courts to mean that a work could be obscene if an "isolated passage" could tend to corrupt the "most susceptible person." Thus, a single passage taken out of context could condemn a work if it could be shown that a person particularly susceptible to “immoral influences” would tend to be corrupted by that passage. Such a test, while clearly in line with Victorian prudery of the times, did not sit well in a country with a history of championing the rights of the free exercise of religion and political discourse. The rule was therefore selectively enforced, allowing the authorities to prosecute those persons whose economic or political positions were different from their own.

Although obscenity convictions had been appealed to the U.S. Supreme Court in the first half of the twentieth century, they were either routinely affirmed, or, if reversed, the reversal was based on a Constitutional principle broader than the question of obscenity itself.²

While the Court had made numerous announcements that presumed the validty of properly drafted laws against obscenity,³ the direct question of whether obscenity was protected speech under the First Amendment did not reach the Supreme Court until 1957.

B. The Roth Test

In Roth v. United States, 354 U.S. 476 (1957),⁴ Justice Brennan, writing for a majority of the Court, specifically held that obscenity is not within the area of constitutionally protected freedom of speech or press ) either under the First Amendment as to the Federal Government or under the Due Process Clause of the Fourteenth Amendment, as applied to the States.⁵

Because obscenity was considered to be outside the area of “constitutionally protected speech,” the Court ruled that the usual Constitutional requirement that the prosecution present evidence that the particular utterance presented a “clear and present danger”⁶ of antisocial conduct is not required.⁷ Such a conclusion, stated the Court was compelled by the overwhelming historical evidence that “obscenity” had always been regarded as speech undeserving of protection.

For example, the Court noted that all of the States ratifying the Constitution had, by 1792, made either blasphemy or profanity or both statutory crimes, and as early as 1712 the Massachusetts Bay Colony had made it criminal to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon” in imitation or mimicking of religious services. These examples indicated, however, that obscenity historically had been associated with “profanity,” that is, actions or words indicating an irreverance towards God or sacred or holy things, or blasphemy, and less to do with sex or sexual acts. It was only later that these same laws were used to prosecute materials of a purely sexual nature having nothing to do with religion or religious services other than the fact that most religions held that sexual activity outside of the sacrament of lawful marriage, was immoral. The Court, nevertheless found that there was sufficient historical evidence that neither the framers nor the States ratifying the Constitution and Bill of Rights considered that the right of freedom of speech and press would prevent the prosecution of obscenity as well as profanity.

The Social Value of Ideas

Apart from the historical basis for concluding that obscenity was not protected speech under the First Amendment, the Court then focused on the purpose of the rights of free speech and press, and what has come to be termed, “The Central Meaning” of the First Amendment:

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.⁸

In emphasizing obscenity's lack of social importance, it was clear that the Court was addressing the nature of ideas themselves, not the form or manner in which they were expressed. Thus, an idea may be expressed in a work of fiction or a play or even nonverbally in a painting or sculpture, rather than in a political tract, and still receive the protection afforded by the First Amendment. The question is whether the idea being expressed concerns an issue or subject of public or social importance rather than solely a matter of personal gratification. The Court cited to an earlier decision, Thornhill v. Alabama,⁹ where it had first articulated such a principle:

Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.¹⁰

Appeals to Prurient Interest.

Having ruled that obscenity was not protected speech under the First Amendment, the Court was still faced with proving a definition or standard for judging whether a work was or was not obscene. First, the Court made clear that, despite the historical relationship between obscenity and profanity, a work could be found to be obscene without being blasphemous. The focus of obscenity was upon a specific form of immorality dealing with depictions of sexual conduct that had, as their effect, the excitation of impure or lustful thoughts.¹¹

However, the Court acknowledged that not all material dealing with sex should be considered “obscene.” Obscene material, ruled the Court, is material which deals with sex in a manner appealing to prurient interest, that is, “material having a tendency to excite lustful thoughts.”¹² In attempting to provide a more amplified definition, the Court stated that it perceived no significant difference between the use of the term, “prurient” in prior State and federal case law dealing with obscenity, and the more formal definition offered by the American Law Institute (“ALI”) in the latest draft of the Model Penal Code:

“... A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . ."¹³

Rejection of Hicklin as a Standard for Evaluating Allegedly Obscene Works

The adoption of the ALI standard signaled a departure from the stricter Hicklin rule, which permitted a conviction if even a single passage met the prurient interest test. The Hicklin test, said the Court, judging obscenity by the effect of isolated passages upon the most susceptible person, “might well encompass material legitimately treating with sex,” and accordingly must be rejected as an overbroad restriction on the freedoms of speech and press. The Court therefore adopted a standard reflected in many recent State and federal court decisions, that required consideration of the work as a whole, and its effect upon the average, not the most susceptible person in the community:

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.¹⁴

The Court then concluded that the trial judges in both the Roth and accompanying Alberts cases had given adequate instructions to the jury on the standard to be applied in judging whether the works were obscene under the pertinent statute, and that such instructions adequately paraphrased the essential test articulated above.

The decision in Roth was not unanimous. Chief Justice Warren, while concurring in the judgment of the Court, wrote specially to point out the danger of overzealous prosecution under obscenity statutes. “The power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy.... The line dividing the salacious or pornographic from literature or science is not straight and unwavering.”

In similar vein, Justice Harlan, who dissented as to the holding in Roth, stated that making the question of whether or not a work was obscene a factual issue for the jury to decide was an avoidance of the responsibility of judges to make individual constitutional judgments.

[W]hether a particular work is [obscene] involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce's "Ulysses" or Bocaccio's "Decameron" was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are "utterly without redeeming social importance." In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based. I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.

Justice Douglas, with whom Justice Black joined, dissented from the holding on more general grounds that the decision upholding both obscenity convictions was inconsistent with the unambiguous language of the First Amendment that “Congress shall make no law ... abridging the freedom of speech or of the press.” Moreover, said the Justice, the use of a standard that directs the jury to apply “the common conscience of the community” or “contemporary community standards,” opens the door to the silencing of legitimate expression:

Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines are certain to win.¹⁵

C. Refinements of the Roth Test

The Court's decision in Roth ended up raising more questions than it answered. For one thing, the lack of a clear standard as to prurient appeal opened the door for the danger discussed by Justice Harlan, that no one could know in advance what might and might not be considered by a jury to be obscene. Even the Roth Court admitted that not all depictions of sex or sexual organs were to be deemed obscene. A work of classical art might deal directly with a sexual act, such as The Rape of xxx, yet clearly not be regarded as something that should be suppressed or the exhibitor punished.

Justice Harlan's examples, as well as other works of literature and art, as works which might be considered obscene under the Roth “prurient appeal” test, yet would not be regarded as obscene raised the issue of degree: should the prurient appeal test be applied as “either/or,” that is, a work either has it or it doesn't, or are there degrees of prurient appeal, so as to distinguish erotica in general from “hard core pornography”?

A related issue concerned the nature of the audience at which the work is directed. Although Roth eliminated the old Hicklin rule that the work be judged by its impact on the most susceptible members of society, did that mean that the states and federal government could take no steps to protect children from being exposed to pornographic, albeit non-obscene material?

Moreover, while a work may have no prurient appeal to the average person in the heterosexual community, it could have strong appeal, for example, to the homosexual community. Did this mean that the state could not prosecute purveyors of pornography that had the requisite prurient appeal for the gay community? Did the intent of the creator, exhibitor, publisher or distributor of such works have any bearing on how they were treated?

These and other issues were presented to the Supreme Court over the next fifteen years, and with which the Court struggled, but with little success.

1. The Element of “Offensiveness.”

In MANual Enterprises, Inc. v. Day,¹⁶ the Court reversed an administrative ruling by the Postmaster General that the petitioners' magazines violated the federal obscenity statute and were thus seized.¹⁷ The magazines consisted largely of photographs of nude, or nearly nude, male models and gave the name of each model and each photographer and the latter's address. They also contained a number of advertisements by independent photographers offering for sale photographs of nude men.

Justice Harlan, in an opinion joined by Justice Stewart, announced the judgment of the Court.¹⁸ He pointed out that there is a difference between “simple nudity” and “hard core pornography,” and that the statute, in order to be upheld under the First Amendment, must be construed to apply only to the latter. In an attempt to define further what is meant by “hard core pornography” Justice Harlan announced that Roth must be deemed to include the element of “offensiveness” in addition to prurient appeal:

{W]e find lacking in these magazines an element which, no less than "prurient interest," is essential to a valid determination of obscenity under 1461, and to which neither the Post Office Department nor the Court of Appeals addressed itself at all: These magazines cannot be deemed so offensive on their face as to affront current community standards of decency - a quality that we shall hereafter refer to as "patent offensiveness" or "indecency." Lacking that quality, the magazines cannot be deemed legally "obscene". . . .

* * * * *

Obscenity under the federal statute thus requires proof of two distinct elements: (1) patent offensiveness; and (2) "prurient interest" appeal. Both must conjoin before challenged material can be found "obscene" under 1461. In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite "prurient interest" appeal. It is only in the unusual instance where, as here, the "prurient interest" appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive.¹⁹

Other members of the Court who agreed that the Post Office determination should be reversed, argued that it was not necessary for the Court to address the substance of the determination at all, since they believed that Congress, in enacting Section 1461 had not authorized the Postmaster General to hold his own administrative proceeding.²⁰

2. The Meaning of Community Standards and “Social Value.”

In Jacobellis v. Ohio,²¹ the Court dealt with an appeal by the manager of a motion picture theater, who was convicted under an Ohio statute making it a crime to possess and exhibit an obscene statute. While the Ohio State Supreme Court had affirmed the conviction, the U.S. Supreme Court reversed, holding that the statute violated the First Amendment.

In a plurality opinion joined in only by Justice Goldberg, Justice Brennan announced the judgment of the Court.²² Despite the fact that Jacobellis was a plurality decision, it is important because it contains Justice Brennan's early thinking on the issues raised by the somewhat incomplete definition of Obscenity presented in Roth. Two important issues, the question of “community standards” and the meaning of “social value,” were addressed by Justice Brennan. The meaning of these two terms in the overall definition of obscenity, continued to plague the Court.

First, citing Burstyn v. Wilson,²³ Justice Brennan reiterated that motion pictures are entitled to First Amendment protection, although obscenity was not. As to whether the determination of obscenity was a one of fact, to be decided by the jury, or law, to be decided by a judge, Justice Harlan reluctantly concluded that the issue necessarily includes questions of Constitutional law, ultimately requiring a decision by the U.S. Supreme Court. Accordingly, as in other limited areas of Constitutional law, the Court has the power and the right to make an independent review of the facts ) and to reach a conclusion contrary to what a jury or other fact-finder in the courts below had found.

Second, Justice Brennan rejected the notion that the term, “community standards” in the Roth test, meant that trial courts and juries with to apply a local community standard. Not so, said Justice Brennan. The phrase, originally mentioned by Judge Learned Hand in a 1913 Federal District Court case, referred to “community” in the sense of “society at large,” “the public,” or “people in general.”²⁴ Thus, while “community standards” of what appealed to the prurient interest might change over time in a society, they did not vary from state to state or town to town.

The other issue concerned the meaning of “social value” or “social importance” of a work. After citing the Roth “prurient interest” test, as a starting point, Justice Harlan alluded to the language also contained in Roth, that suggested that a work may not be proscribed unless it is utterly without redeeming social importance. Such a test was essential in making a determination of obscenity because without it, there would be no way to distinguish between the portrayal of sexual matters that warranted Constitutional protected and those that did not. The portrayal of sex in, for example, in art, literature and scientific works, said the Justice, is not itself sufficient justification to deny such material Constitutional protection.

It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.²⁵

Justices Black and Douglas concurred in the result, reaffirming their belief in the literal meaning of the First Amendment, that “Congress shall make no law....” Justice White concurred in the result, but not in the opinion, and offered no opinion of his own. Justice Potter Stewart also concurred, and wrote a one-paragraph opinion stating that he believed that the only kind of “obscene speech” not protected by the First Amendment was “hard core pornography.” As to the meaning of that term, Justice Stewart stated:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Chief Justice Warren and Justice Clark dissented, saying that Justice Brennan's attempts to extend and expand the Roth test were unwise. The Chief Justice criticized Justice Brennan's “national community” standard, and Justice Stewart's “hard core pornography” limitation as essentially undefinable. If the Supreme Court cannot define these terms, they could hardly expect the state courts to do so. To avoid having the Supreme Court becoming the ultimate censor, being required to review the entire record of every case appealed to it, the Chief Justice argued that the standard for review should be limited to cases where the evidence supporting the conviction was not “sufficient” ) “requiring something more than merely any evidence but something less than ‛substantial evidence on the record ... as a whole.'”²⁶

3. Defining the “Average Person”

Throughout the 1960's the Court continued to struggle with the Roth definition of obscenity. Three cases, all decided in 1966 are instructive of the recurring issues in obscenity law. In Mishkin v. State of New York,²⁷ the Court upheld a conviction against a book publisher and seller of books depicting “deviant” sexual acts such as sado-masochism, fetishism, and homosexuality under a New York obscenity statute. The statute , in pertinent part made it a misdemeanor for a person to have in his possession with the intent to sell, lend or distribute, “any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book . . . or who . . . prints, utters, publishes, or in any manner manufactures, or prepares any such book . . . or who -- In any manner, hires, employs, uses or permits any person to do or assist in doing any act or thing mentioned in this section, or any of them.”²⁸

At issue was the question of whether the material contained in some of the books forming the basis for the prosecution which depicted various deviant sexual practices such as flagellation, fetishism, and lesbianism, satisfied the “prurient appeal” test contained in Roth. That is, instead of appealing to the prurient interest of the average person, “... they disgust and sicken.” The Court, in a majority opinion delivered by Justice Brennan, rejected this argument as being derived from an incorrect interpretation of Roth.

Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.²⁹

Justice Brennan, the author of Roth, explained that the use of the term, “average person” in the Roth definition was intended to distinguish the holding from the rule in Regina v. Hicklin, which judged the work by its impact on the most susceptible person.

We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptible-person facet of the Hicklin test.³⁰

Thus, the issue first presented, but not decided in the MANual Enterprises case concerning whether the “average person” aspect of Roth precluded a finding that a work appealed to the prurient interest of an average member of a deviant group. The majority of the Court concluded that Roth permitted a variable notion of prurience, which depended upon the intended audience.³¹

4. The Concept of “Pandering.”

In a companion case, Ginzburg v. United States,³² decided the same day as Mishkin, the Court upheld a conviction for violation of the federal obscenity statute³³ by sending obscene materials through the mails.

Evidence introduced at trial included the advertising brochures and the actions of the defendants in promoting the material. For example, the magazine, EROS, sought mailing privileges from postmasters of Intercourse, and Blue Ball, Pennsylvania, and Middlesex, New Jersey. The trial court found that these communities were selected solely because their names on the post mark would help promote the salacious nature of the magazine. Other promotional literature hyped the sexual nature of the materials, and included graphic sexual imagery.

In rejecting the petitioners claim that the lower court erred in finding the works obscene despite evidence proffered of the social importance of the works, the Court held that:

Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.³⁴

The notion of “pandering” derives from Homer's The Illiad, where one of the characters, with voyeuristic pleasure, urged the lovers Helen and Paris to engage in sexual activity. Shakespeare‛s tragedy, Troilus and Cressida, immortalized Pandar's role as a man who took his pleasure mostly from urging others to engage in various acts of depravity. In ruling that where the bookseller or distributor engages in acts of pandering, that is advertises the work in salacious terms, promising, in effect, that the purchaser's “prurient interest” will be aroused by the work, the Court felt justified in concluding that a work was not subject to Constitutional protection.

This kind of reasoning works only in one direction: if the purveyors were advertising the work as an artistic one fully of educational principles and edifying themes, the Court would hardly feel itself bound by such advertising to rule that the work was not obscene. Rather, the Ginzburg pandering rule is similar to one of exceptions to the hearsay rule in the law of evidence: a statement made out of court that is deemed to be a “declaration against interest” is considered to have greater reliability precisely because a speaker would not be expected to speak unfavorably of his or her own case, unless he or she believed that to be true. Self-promotion, on the other hand, has no such built-in assurance of reliability.

Nevertheless, not all of the Justices agreed with the concept that pandering constitutes a separate basis for a judicial determination that a work is obscene. The Ginzburg pandering rationale was criticized by Justice Douglas in a concurring opinion he wrote in another case ) Memoirs v. Massachusetts ) also decided the same day as Mishkin and Ginzburg.

The Attorney General of the Commonwealth of Massachusetts brought an in rem action against the book, entitled, Memoirs of a Woman of Pleasure, by John Cleland in 1750.³⁵ Lacking jurisdiction over the publisher and concerned that it could not prove that the distributor could be charged with knowledge that the work was obscene, the Attorney General attempted to obtain a court ruling against the work itself, thereby permitting its seizure and destruction. The publisher intervened, offering expert testimony on the political artistic value of the historical work.

The Massachusetts trial court decreed the book obscene and not entitled to the protection of the First and Fourteenth Amendments. The Massachusetts Supreme Judicial Court affirmed, holding that a patently offensive book which appeals to prurient interest need not be unqualifiedly worthless before it can be deemed obscene. On appeal the U.S. Supreme Court reversed, but without a majority opinion. Justice Brennan, in an opinion in which the Chief Justice, and Justice Abe Fortas concurred, stated that even if a work is found to appeal to the prurient interest and is patently offensive, it is nevertheless protected speech under the First Amendment if it had but a modicum of redeeming social value. Loss of Constitutional protection in such a situation could only occur if it were also found that the publisher and/or distributor had touted only the prurient aspects of the work in promoting its sale, i.e., pandering.³⁶

5. Varying Meanings of Obscenity .

Protecting Minors. In 1968 the Court revisited the issue presented in Mishkin v. New York,³⁷ that is, whether the State may define obscenity differently for different classes of persons. In Ginsberg v. New York,³⁸ Ginsberg, who operated a stationery store and luncheonette, was convicted of selling "girlie" magazines to a 16-year-old boy in violation of 484-h of the New York Penal Law. The statute made it unlawful "knowingly to sell . . . to a minor" under 17 "(a) any picture . . . which depicts nudity . . . and which is harmful to minors," and "(b) any . . . magazine . . . which contains [such pictures] and which, taken as a whole, is harmful to minors." His conviction was affirmed by the State appellate court, and he appealed to the U.S. Supreme Court.

It was stipulated at the trial that the magazines in question were not obscene for adults under the Roth test, and the issue was whether or not the State of New York to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sexually-oriented material they may read and see. A 6-man majority of the Supreme Court concluded that, given the special sensibilities of minors, and the valid interest of the State in protecting minors, the New York statute was constitutional.

Justice Brennan, again writing for the majority, held that The State has power to adjust the definition of obscenity as applied to minors, for even where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults."³⁹

Justice Douglas, predictably, dissented, pointing out that the issue is not whether or not the nation's youth should be protected, in some way, from immoral influences, but whether or not the State may constitutionally do so.

It is one thing for parents5 and the religious organizations to be active and involved. It is quite a different matter for the state to become implicated as a censor....

Censors are, of course, propelled by their own neuroses. That is why a universally accepted definition of obscenity is impossible. Any definition is indeed highly subjective, turning on the neurosis of the censor. Those who have a deep-seated, subconscious conflict may well become either great crusaders against a particular kind of literature or avid customers of it. That, of course, is the danger of letting any group of citizens be the judges of what other people, young or old, should read. Those would be issues to be canvassed and debated in case of a constitutional amendment creating a regime of censorship in the country. And if the people, in their wisdom, launched us on that course, it would be a considered choice.⁴⁰

Justice Fortas dissented on different grounds, criticizing the majority for failing to define what is obscenity for minors under 17 years of age, and what makes it different from obscenity for adults: “We must know the extent to which literature or pictures may be less offensive than Roth requires in order to be “obscene” for purposes of a statute confined to youth.”⁴¹

Obscenity and Privacy. In 1969, The Supreme Court ruled that the mere possession of admittedly obscene materials in the privacy of one's own home may not be punished by the State.. In Stanley v. Georgia,⁴² police officers, conducting a search of Stanley's home for evidence of alleged bookmaking activities pursuant to a valid warrant, found some films in his bedroom which were deemed to be obscene. He was thereafter indicted, tried and convicted under a Georgia statute that made it a crime to knowingly possess of obscene matter. The Georgia Supreme Court upheld the conviction saying that evidence of intent to sell or distribute such materials was not an element of the crime. The mere possession of the material was sufficient.

The Supreme Court voted 9-0 to reverse. Justice Thurgood Marshall, write a brief opinion which stated a majority of the members' view that, regardless of the legality or illegality of the search which uncovered the obscene films, the Constitution prohibited making the mere possession of obscene materials in one's own home, without evidence of an intento to sell or distribute, a crime. The Court rejected the notion that the materials were harmful in and of themselves, and could lead to anti-social behavior:

Given the present state of knowledge [as to the causes of antisocial behavior], the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.⁴³

Justice Stewart, joined by Justices Brennan and White, concurred in the reversal of the conviction, but on Fourth Amendment grounds, that is, that the screening and subsequent seizure of the films were not authorized by the warrant, and thus constituted an illegal search.⁴⁴ The justices contended that the cases could be disposed of on these grounds, rather than embarking on a much more novel theory of a First Amendment “Right to Receive” information or a fundamental right of privacy.

2. The Miller Reformulation.

On June 21, 1973, the Supreme Court announced a series of new decisions on the law of obscenity which are collectively referred to under the lead case of Miller v. California.⁴⁵ It was the first time, since 1957, where a majority of the Court could agree on a reformulation of Roth. Chief Justice Burger, building on Roth, and some, not all of the Supreme Court decisions that followed, stated the revised test for the prosecution of obscenity:

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.⁴⁶

A. The State's Interest in Controlling Obscenity

The starting point of the new test was the reaffirmation of Roth decided sixteen years earlier. However, the Court took the occasion also to reaffirm that the State ( be it the federal state government) has a legitimate, and constitutionally valid interest in controlling obscenity. In Paris Adult Theatre I v. Slaton,⁴⁷ one of the Miller companion cases, the Court concluded that the State has a right to make a “morally neutral judgment” that the public exhibition of obscene material, or the commercial distribution of such material has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the States' right to maintain a “decent society.”⁴⁸ In so-holding, the Court made reference to the Hill-Link Minority Report of the Commission on Obscenity and Pornography⁴⁹ which contended (in opposition to the Majority Report) that there is at least an arguable correlation between obscene material and crime.⁵⁰

B. The “Serious Value” Test.

The Miller majority voted to abolish the constitutional standard announced by the plurality opinion in Memoirs v. Massachusetts, which required that matter, in order to be judged obscene, must be proved to be “utterly without redeeming social value”⁵¹ ) a phrase having its origins in Roth, which the majority reaffirmed. In explaining away this apparent contradiction, Chief Justice Burger argued that the “utterly without” phrase in Roth was never intended to be a test, nor an element of proof in a criminal trial, as was asserted by Justice Brennan's plurality opinion in Memoirs. A burden on the prosecution to prove a negative, argued the Chief Justice, would be “virtually impossible to discharge under our criminal standards of proof.”⁵²

Instead of proof of “utterly without” social value, the Court instead adopted a “serious [public] value” test. Specifically, a work meeting the “prurient interest” and “patently offensive” tests might still be redeemed if it nevertheless has serious literary, artistic, political or scientific value. The substitution of “serious” for “utterly without” trades a quantitative standard for a qualitative one. Thus, under the next test, a work may have a modicum of value, but is nevertheless lacking any serious value ) a judgment as to quality of the work, or perhaps the motive or intent of the author.

For example, a work might not be intended to be serious, but rather a humourous or satiric treatment of a subject dealing with sexual matters. Analytically, the question arises whether such works may be proscribed simply because they are not serious, but intended for amusement. Further, as the Court held in Ginzburg v. United States, evidence of pandering in the commercial promotion of a work may lead to a conclusion, arrived at in total absence of the application of other Constitutional standards, that the work was obscene.

The limitation of what can redeem an otherwise obscene work to only four categories of expression also raised concern among critics of the Miller formulation. For example, it was asked, “how is the element of serious value is to be determined?” In Kaplan v. California,⁵³ one of the companion cases to Miller, the Court ruled that the State need not introduce expert testimony to prove obscenity; moreover, the “contemporary community standards” was not included as a qualifier to the L.A.P.S. test, indicating that varying standards of L.A.P.S. value from community to community was not what was contemplated. Could jurors, who might be trusted to decide for themselves whether (applying contemporary community standards) the work appeals to the prurient interest also be expected to have the requisite academic knowledge to make value judgments as to literary or artistic quality, or the scientific background to evaluate the work as a contribution to scientific knowledge? The Miller cases did not answer these questions.

C. The “Patently Offensive” Test.

Another change in the wording of the Roth/Memoirs formulation was the “patently offensive” test. The new formulation added both the elements of required specificity and a limitation on the type of material that the State may punish as patently offensive, that is, sexual conduct. In discussing this element the Court ruled that the depictions or descriptions of sexual conduct must be specifically defined by the applicable state law. Once again, the Court grappled with the concept of “hard core pornography” without using the term. In an attempt to provide some guidance, the Court listed two examples of what a State could define for regulation under the patently offensive test:

4. Post-Miller Litigation.

Despite Justice Brennan's dire prediction that the Court would continuously be besieged by appeals on the question of whether or not various materials were obscene, the development of the law took a different turn. After the decision in Jenkins v. Georgia state and local legislative bodies, recognizing that portrayals of nudity could not be banned outright as constituting obscenity, shifted to the theory that adult bookstores and movie houses could be controlled under zoning ordinances and public nuisance statutes. The Supreme Court had previously ruled, for example, that the First Amendment did not prevent the government from protecting its citizens from unwanted intrusions into their privacy by materials they found offensive. In Rowan v. Post Office Department,⁸⁶ the Court upheld a federal statute that gave the right to citizens to ask that the post office not deliver additional letters or other materials from a particular sender on the ground that the addressee finds the material offensive. The citizen's right to privacy outweighed the sender's right to free speech, according to the Court, because the mail intruded into one's private home, rather than in public. Similarly, in Lehman v. City of Shaker Heights,⁸⁷ the Court upheld a municipal policy that refused to make available to political advertisers advertising space on buses. The plurality concluded that the city transit system was not a traditional public forum such as were streets and parks, and members of the public who used the city bus system were a “captive audience” who should not have to forego public transportation to avoid being bombarded with political messages.⁸⁸

A. Channeling of Offensive, but Non-Obscene Expression.

Beginning in 1975, the Court's emphasis shifted from reviewing the content of allegedly obscene works to the statutory framework created by states and localities to restrict, or channel, rather than prohibit, the purveying and distribution of materials dealing with sexual conduct. In Erznoznik v. City of Jacksonville,⁸⁹ the appellant, manager of a drive-in theatre in Jacksonville, Florida, was convicted of exhibiting a motion picture, visible from public streets, in which “female buttocks and bare breasts were shown.”⁹⁰ The City readily admitted that the ordinance swept far beyond the permissible restraints on obscenity under the Miller test, but argued that any movie containing nudity that is visible in a public place may be suppressed as a nuisance. The government has a right to protect children and unconsenting adults, argued the City, who would be injured or offended by such material.⁹¹

A majority of the Court, this time composed of many of the dissenters in Miller and Hamling, held that, while the government has the right to place reasonable time, place and manner restrictions of the expression of all ideas in public places, when it acts as a censor, and undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. Here, the majority argued, the ordinance discriminated among movies solely on the basis of content: “Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justified as a means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes.⁹²

The majority also held that if the main purpose of the ordinance was to protect minors, it was still too broad, since not all nudity can be deemed obscene, even as to minors. The Court was equally nonplused by the City's argument that such displays could be distracting to motorists and lead to traffic congestion or accidents.⁹³ Other scenes, ranging from soap opera to violence could be equally distracting, said the Court, and the City offered no justification for the under inclusiveness of the ordinance with regard to subject matter.⁹⁴

Chief Justice Burger wrote a dissent in which Justice Rehnquist joined, arguing that the majority applied absolutes to a situation that required specific factual analysis. If it is true, said the Chief Justice, that the government has the right to prohibit nudity in public places (despite any communicative nature of that nudity), the Court needs to explain why, under a public nuisance theory, it cannot equally prohibit displays of nudity on film that are visible by the public. The fact that the film in question was not obscene was thus not an issue, and the majority's attempts to apply elements of the Miller test to the situation were thus misguided.⁹⁵

The Court next took up the question of zoning, and whether municipal ordinances restricting the location of “adult” theatres and book stores was an infringement of First Amendment rights.

In Young v. American Mini Theatres,⁹⁶ decided the year after Erznoznik, a five-man majority ruled that Detroit's “Anti-Skid Row” ordinances did not violate the First Amendment. The ordinances provided that an adult theater may not, without a special waiver, be located within 1,000 feet of any two other "regulated uses" or within 500 feet of a residential area.⁹⁷ If the theater was used to present "material distinguished or characterized by an emphasis on matter depicting `Specified Sexual Activities' or `Specified Anatomical Areas'" it was an "adult" establishment. The proprietor of an adult theatre, while not claiming that the “specified” activities or anatomical areas were not specific enough, challenged the ordinances as unconstitutionally vague because there was no guidance as to how much of such activity would be necessary before an enterprise could be “characterized” as an adult establishment.

The Court rejected the vagueness arguments,⁹⁸ saying that the ordinance was written with a good deal of precision, and were valid “time, place and manner” restrictions on commercial enterprises which would have no demonstrably significant effect on the exhibition of films protected by the First Amendment. Justice Powell wrote a concurring opinion, saying that the Detroit ordinances were valid examples of land use regulation designed to preserve the quality of life which the Court had previously sustained in a 1926 case,⁹⁹ and there was no evidence whatsoever, that the exhibition of adult films, and a citizen's right to view them had been infringed.

The dissenters, headed up by Justice Stewart, argued that the ordinances were a system of prior restraints enforcing content-based restrictions on the geographic location of motion picture theaters that exhibit non-obscene by sexually-explicit films. They contended that this case was indistinguishable from Erznoznik and like cases upholding the speaker's rights over the government's attempt to protect the sensibilities of unconsenting persons in public places. Unlike truly content-neutral time place and manner restrictions, these ordinances, said Justice Stewart, made categorical distinctions based solely on the content of the films or books. Justice Blackmun wrote a separate dissent, pointing out that the vagueness challenge to the ordinances was compounded by the fact that, not only must a theater owner determine whether his business must be deemed “adult,” but also whether his theater was in an area where there were two other such regulated uses ) which in turn required him to evaluate for himself whether any such other uses could be characterized as primarily “adult.”

Ten years later, similar zoning regulations adopted by the city of Renton, Washington, came before the Court. Unlike Detroit's Anti-Skid Row ordinances (designed to prevent clustering of adult theaters and bookstores in a small area) Renton had adopted an ordinance simply prohibiting any adult motion picture theater from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school. While the federal District Court upheld the ordinance as a vallid content-neutral time place and manner restriction, the Ninth Circuit U.S. Court of Appeals reversed saying that the ordinance constituted an impermissible intrusion into First Amendment rights.

A seven-man majority¹⁰⁰ of the Supreme Court reversed the Ninth Circuit, however, and upheld the validity of the regulations citing the Young case as authority. Both the Young case and the Renton case, said the Court, were attempts by the affected municipalities to address the deleterious effects such businesses had on neighborhoods, rather than intended to suppress expression:

1. Do you agree with former Chief Justice Burger (who authored Miller v. California that the reformulation of Roth as articulated in the majority decision would limit the definition of obscenity only to what traditionally has been regarded as “hard core pornography”? Do you agree with Justice Potter Stewart that although “hard core pornography” may be hard to define, one “knows it when he sees it”?

2. Do you agree with the Court that States have greater power to infringe on freedom of expression to protect children? Are children, in fact, “more susceptible” to the evils of obscenity and pornography? If so, what is it about children or about pornography that makes them more susceptible and what is it that they are more susceptible to? Does the Ginsberg decision and its progeny discussed in this chapter resurrect the Hicklin test, allowing the State to prohibit that which would have an adverse impact on the “most susceptible person”?

3. It cannot be disputed that during the last fifty years of motion pictures as well as television programming we have seen a steady expansion of the kind of material dealing with sexual conduct that could be shown without fear of prosecution. Network censors in the 1950's, for example, required bedroom scenes to have twin beds, and that a husband and wife could not be in the same bed in such scenes. The only nudity allowed was the posteriors of infants. Standards of what is offensive, if not obscene, have obviously changed. Does this mean that what constitutes “hard core pornography” has also changed over those fifty years, or does that “core” remain the same?

Exercise:

An employee in the photolab of a chain department store discovers photographs of nude children, estimated to be ages 3 through 5. The backdrops for these photos appear to be a bathroom as well as a bedroom. The children are not consciously posing for the camera but appear to be engrossed in playing with toys or reading books, etc. Your State has a “child pornography” law that prohibits the taking, sale or distribution or possession of photographs or other graphic depictions of minors that portrays or exposes the genitalia. Some of the nude pictures in the rule do show the children's genitals. Employees in the photolab have been instructed to advise their superiors if they develop any film that contains pictures of children in the nude. The employee does so, and his superior calls the police, who come and confiscate the photos. Based on the information supplied on the envelope by the party who left the film, the police are led to the home of Mrs. Dubfire, an elderly lady who babysits for a number of families in the neighborhood. She is arrested and charged with violation of the child pornography statute.

At trial, Mrs. Dubfire explains that she thought the children were very cute playing together and she wanted to take the pictures and give them to the parents of the children. No other evidence is offered by the prosecution on Mrs. Dubfire's culpability. Several witnesses for the defense testify as to the good character of Mrs. Dubfire. At the end of the case, a motion is made by the defense for a “directed verdict” in favor of the defendant (that is, asking that the judge direct the jury to return a verdict of not guilt because the prosecution has failed to prove its case). You are the member of the defense team selected to argue that motion. How do you support it?

Indecency and the Electronic Media

1. The Concept of Indecency.

We saw in Chapter 8 that both before and after the Supreme Court's majority decision in Miller v. California¹ efforts to constrain the sale, distribution, display and even possession of pornographic materials by State and local governments frequently exceeded what the Supreme Court had said was permissible as a restraint on free expression. Moreover, where a work took the form of “serious” literary, artistic, political or scientific expression, such as a major motion picture, political essay, or scientific study involving sexual conduct, the First Amendment was held to protect such material even though many might find it offensive.

Where the purpose of the legislation, ordinance or other restriction was designed to protect juveniles or non-consenting adults in certain contexts, such as in the privacy of their homes or in their neighborhoods, or on public conveyances, greater restrictions on such expression are justified, provided that the conduct is narrowly defined and the restrictions no greater than necessary to achieve the goal of protecting the minor or non-consenting adult.

General pronouncements by the Supreme Court that greater restrictions on expression are permitted, however, have done little to define exactly how the two standards differ. It is clear that even juveniles have some rights to receive information under the First Amendment, and the Court has frequently pointed out that non-consenting adults cannot effect a total ban on any and all materials that they find offensive: We give up our right to absolute privacy when we participate in society and benefit by what society gives us.

A. “Indecency” vs. “Obscenity.”

The terms, “obscenity” and “indecency” have come to mean different things under the law. A thing many be “indecent,” but not obscene. However, the reverse proposition is not true, at least with respect to the law's current treatment of the two concepts. A work that is obscene must, by necessity, include an element of indecency.

Indecency and Patent Offensiveness

In MANual Enterprises v. Day, 370 U.S. 478 (1962), a case involving the constitutionality of a ban against the mailing of allegedly obscene books and materials imposed by the Postmaster General under Section 1461 of the Federal Criminal Code,² Justice Brennan's plurality opinion discussed the history of the concepts of obscenity and indecency in federal law.

Initially, the words were used interchangeably to describe the offense now covered by obscenity. Justice Brennan noted that the first federal statute bearing on obscenity was the Tariff Act of 1842,³ which forbade the importation of “indecent and obscene” pictorial matter and authorized confiscation. Then, after the conclusion of the Civil War, Congress passed the first “Postal Act” which made it a crime to deposit an “obscene book . . . or other publication of a vulgar and indecent character” in the mails.⁴ Then, in the Comstock Act,⁵ Congress added the descriptive terms “lewd” and “lascivious” so that the proscription then included any “obscene, lewd, or lascivious book . . . or other publication of an indecent character.”

B. Development of “Indecency” as a Separate Offense.

Despite the earlier gloss placed upon Section 1461 and related federal statutes discussed above that the list of adjectives were all describing the same thing, and must be construed according to the Roth test, the concept of indecency, as a separate offense that could be prosecuted began to be developed, largely in an attempt to proscribe, in certain contexts, conduct or works that could not be found “obscene” under the Roth/Miller formulation. Although a number of States have followed suit, Congress and the Federal Communications Commission have provided the primary impetus for the development of the legal concept of indecency.

With the adoption of the Radio Act of 1927 Congress included a provision prohibiting the utterance of “obscene, indecent or profane language by means of radio communications.”⁹ The provision was later incorporated into the United States Criminal Code, which made such utterances punishable by fine of up to $10,000, up to two years imprisonment, or both.¹⁰

The “Uniqueness of Broadcasting.”

Prior to the Supreme Court's decision in Miller v. California, the Federal Communications Commission issued several rulings regarding program content that allegedly was in violation of the statute. In re Palmetto Broadcasting Co.¹¹ involved the language used by Charlie Walker, a popular local radio personality on several programs broadcast over WDKD (AM), in Kingstree, South Carolina. The FCC began an investigation and subsequent license renewal hearing following receipt of a number complaints about Walker's coarse language “suggestive” or double entendre stories and “barnyard humor.” The FCC found this material to be both obscene and indecent under title 18 U.S.C. §1464.

Attorneys for Edward G. Robinson, the Licensee of WDKD, demurred, arguing that the language complained of would not be in violation of the standard established in Roth v. United States,¹² and to hold that it was in violation of §1464 was unconstitutional. The Commission took the position that the Roth case was limited to prosecutions under 18 U.S.C. §1461¹³ and never intended by the Supreme Court to apply to all media across the board.¹⁴ In addition, the Commission alluded to other earlier Supreme Court cases such as Burstyn v. Wilson¹⁵ that had established the principle that each medium of mass communication is unique, and the application of First Amendment principles must take such uniqueness into account. Unlike “adult-oriented” books and other written material, which can be regulated at the point-of-sale so as to prevent such materials from falling into the hands of minors or unconsenting adults who are particularly offended by such material, radio and television are equally accessible “at the flick of a switch to young and old alike, to the sensitive and indifferent, to the sophisticated and the credulous.”¹⁶ Accordingly, the Commission concluded that it had a greater duty to protect both minors as well as adults with “highly developed sensibilities” from offensive broadcasts.¹⁷

The FCC also took the occasion to further distinguish Roth, by asserting that, given the nature of broadcasting, the requirement that the work be taken as a whole was not necessarily applicable to the broadcast medium. Even fleeting use of erotica or pornography in a broadcast could “seriously prejudice, if not destroy, the general utility of radio and television.”¹⁸

The Pre-Miller Pacifica Cases.

Following the Palmetto case, the Commission dealt with complaints against a chain of noncommercial stations owned by Pacifica Foundation. The stations had broadcast several programs dealing with homosexual themes and issues, including broadcast of the play, The Zoo Story by Edward Albee and readings by several homosexual poets and authors. These programs included content alleged to be “filthy.” Unlike its action in the Palmetto case, the Commission held that most of the material broadcast was a serious treatment of a social problem that was responsive to the needs and interests of persons making up the listening audiences of the stations.¹⁹ Moreover, the Commission noted that the two instances where the material was particularly offensive occurred in broadcasts after the hour of 10:00 p.m., when children were less likely to be in the audience. The Commission concluded that no action other than an admonition to Pacifica was appropriate given these facts.

These pre-Miller Pacifica also suggested that the FCC had backed away from its earlier position in Palmetto Broadcasting that it was required to protect the most sensitive of listeners, utilizing a Hicklin-like standard. Instead, the Commission stated that while some of Pacifica's programming undoubtedly was offensive to some listeners, this did not mean that such broadcasts could or should be censored. Despite its warning in Palmetto that even serious literary works such as James Joyce's Ulysses or D. H. Lawrence's Lady Chatterly's Lover, that would not be found obscene under the Roth standard, could, nevertheless, be banned from the airwaves, particularly if the more lurid details were included in any reading or dramatization.²⁰ The different treatment could also be explained by the fact that the Pacifica Foundation stations were noncommercial, supported by listener donations. Although quite liberal, both politically and culturally in orientation, the programs complained of were “serious” literary works rather than smirking innuendo of a broadcast announcer attempting to be clever. Although not precisely similar, the Palmetto case presaged the Supreme Court's holding in Ginzburg v. United States²¹ two years later, that pandering may constitute separate (and perhaps conclusive) evidence that a work is obscene.

The Episodic Nature of Broadcasting.

Two other decisions by the FCC prior to Miller further fleshed out the legal theory that indecent, though non-obscene material broadcast over the airwaves could be prosecuted under 18 U.S.C. §1464. In Eastern Education Radio (WUHY-FM),²² the Commission admonished a station for broadcasting an interview with Grateful Dead lead singer, Jerry Garcia, whose responses were liberally interspersed with four-letter expletives. The interview was part of a regular program called “Cycle II” which was regularly broadcast after 10:00 p.m. Cycle II dealt with avant-garde artistic expression, and had frequently included interviews where four-letter words were used.²³

The Garcia interview clearly could not be deemed to be obscene under Roth, since Garcia's use of expletives were in a context that, whether or not taken as a whole did not appeal to the prurient interest. Moreover, the interview did not focus or dwell on sexual matters.

In maintaining that the limitations of Roth did not apply to broadcasting, the Commission again distinguished broadcasting from other forms of media such as books, magazines and motion pictures. Unlike print media or motion pictures, said the FCC, broadcasting is episodic in nature. Listeners are constantly tuning in and out of a program, so that their exposure to a program may not ever be of an entire work. This was especially true in radio,²⁴ so that the Roth requirement that the work be “taken as whole” was not a workable concept in examining broadcast matter. Second, the Commission contended that language need not appeal to the prurient interest in order to be proscribed under the statute. It was enough, the Commission said, that the matter being broadcast was patently offensive. It held that Garcia's use of such language was completely gratuitous, and because it did not advance substantive ideas, the words had “no redeeming social value.” Further, despite the fact that the FCC received no complaints about the program, it held that the expletives were “patently offensive by contemporary community standards.”²⁵ The Commission concluded that WUHY-FM's broadcast of the interview constituted “indecency” and was a violation of 18 U.S.C. §1464.²⁶ From this case came the notion that there are some words that you simply may not say on radio or TV, a concept subsequently tested in the Supreme Court five years later.

Pandering and the Protection of Minors

The second pre-Miller decision dealt not with “dirty words,” but revisited the notions of appropriateness of material for the time of day broadcast and whether the intent of the speaker could make material that might otherwise be acceptable indecent. In Sonderling Broadcasting, Corporation,²⁷ initially decided before release of the Supreme Court's opinion in Miller v. California, the Commission issued a forfeiture order against Sonderling, licensee of WGLD-FM in Oak Park, Illinois for broadcasting a call-in type program, which came to be known in the industry as “topless radio.” The program targeted housewives during afternoons who were invited to call in and discuss problems they had experienced in their sexual relationships with husbands, boyfriends, and so on. The announcer, almost always male, would comment on the problems in what the Commission described as a “leering” fashion that amounted to pandering and indecency. This was not a “serious” treatment of sexual matters, said the Commission, because the intent of the announcer was to elicit responses from women callers that would titillate and appeal to the prurient interests of listeners and generate greater listener ship for the station in the Chicago area. Moreover, given the pandering nature of segments of the broadcasts and the prurient appeal, the Commission concluded that the broadcasts had no redeeming social value and were not only indecent, but obscene under the Roth test.

The Commission relied on earlier Supreme Court pronouncements that given the public nature of the broadcast medium, and that the number of frequencies were limited ) scarce ) greater restraints on the content of what is broadcast could be imposed by the government without running afoul of the First Amendment.²⁸ Additionally, the Commission reiterated its previous position that because of the unique nature of the broadcast medium ) that broadcasts could be received and sampled by millions with regard to age. background or degree of sophistication, and because listening behavior was episodic in nature, the government had a greater interest in protecting those listeners who were under age and who were offended by the use of such language and discussion of such subject matter.

While Sonderling did not appeal the minimal forfeiture ($2,000) imposed by the Commission several groups wishing to champion the cause of freedom of expression filed petitions asking the FCC to reconsider its ruling. After the Commission routinely denied reconsideration, the groups appealed to the U.S. Court of Appeals for the District of Columbia Circuit.²⁹

The D.C. Circuit upheld the FCC's ruling, agreeing with the commission that the program in question was presented in a titillating and pandering manner and thus obscene (or indecent) under the rationale of Ginzburg v. U.S. As to the argument made by the appellants that the ruling was inconsistent with the Supreme Court's recent decision in Miller v. California, the Court noted that the programs were broadcast between the hours of 10:00 A.M. and 3:00 P.M. ) hours during which children might be in the audience -- bringing the case under the umbrella of Ginsberg v. New York and its progeny.³⁰ The Court also agreed with the FCC that the episodic nature of broadcasting rendered the “taken as a whole” requirement contained in both Roth and Miller inapplicable to broadcast speech.³¹

2. The Pacifica Ruling.

A. Background

Another case involving the Pacifica Foundation and the FCC's policy on indecency reached the Supreme Court. In October, 1973, WBAI-FM, a Pacifica Foundation-owned station in New York broadcast a 12-minute monologue from a recording of a live performance by satiric humorist George Carlin entitled “Filthy Words.” Carlin began by referring to his thoughts about “the words you couldn't say on the public ... airwaves...” He proceeded to list seven “dirty words” and repeat them over and over again in a variety of colloquialisms. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the FCC. He stated that, although he could perhaps understand the record's being sold for private use, “I certainly cannot understand the broadcast of same over the air that, supposedly, you [the FCC] control.”

The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who like Mark Twain and Mort Sahl before him, examines the language of ordinary people. Carlin was not mouthing obscenities, said Pacifica, “[H]e is merely using words to satirize as harmless and essentially silly our attitudes towards those words.”³²

Sixteen months later, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.”³³

Justice Stewart also dissented, primarily on the point that there was no evidence whatsoever that Congress had specifically intended a different meaning to be ascribed to the term, “indecent” in 18 U.S.C. §1464 (“broadcast obscenity”) than it did in 18 U.S.C. §1461 (obscenity by mail). Because he would hold that the term, “indecent” in 18 U.S.C. §1464 prohibits nothing more than obscene speech, as the Court had only recently reiterated in Hamling v. United States,⁶⁰Justice Stewart would have affirmed the Circuit Court's holding reversing the FCC's decision.

III. Post-Pacifica Litigation.

A. The FCC's Initial Policy Following Pacifica.

In the aftermath of Pacific, many broadcasters were in a panic over what direction the Commission would now take with respect to regulating broadcast indecency. Despite Justice Stevens' dicta that the holding did not mean that henceforth stations would be prosecuted under 18 U.S.C. §1464 for broadcasting a production of Hamlet or an Edward Albee play, licensees asked for assurance from the FCC that a witch hunt would not take place. The Commission, for its part, insisted that actions taken would be consistent with the Court's ruling in Pacifica and limited to situations where patently offensive language or images are broadcast seemingly for their shock value. The Commission said it understood that live broadcasts of news events could, upon occasion, include a four-letter word that could not be edited out, and that no licensee need be concerned with the occasional epithet that might slip past the tape delay or other editorial review.

For practically a decade following Pacifica, prosecutions by the FCC under 18 U.S.C. §1464 were in fact limited to the deliberate, repeated use of Carlin's “seven dirty words.” Thus, any case not similar to the facts of Pacifica escaped the long arm of the FCC. This policy left open the question of whether the much broader application of the concept of indecency to include Jerry Garcia's gratuitous use of epithets in an interview, or the use of innuendo and pandering by talk show hosts of “Topless Radio” programs announced by the Commission before the Carlin case, were still prohibited under the statute.

In the vacuum of Commission regulation, a number of licensees began to take greater risks with program content. This did not go unnoticed by members of Congress who started receiving complaints of outrage from some of their constituents. Individual Senators and Representatives began to pressure the FCC to take some forthright action before the airwaves became “open sewers” of lewd and licentious behavior.

Action was finally taken with the release of a trio of FCC rulings on complaints filed against Pacifica's west coast station, KPFK,⁶¹ public radio station KCSB-FM, licensed to the Regents of the University of California,⁶² and against WYSP-FM, owned by Infinity Broadcasting Corporation of Pennsylvania.⁶³ All three cases were released the same day, and were also accompanied by a Policy Statement issued the same day by the Commission announcing that new standards for judging indecency complaints would thereafter be employed.⁶⁴

The KPFK case concerned complaints received about a program aired by the station called, “I am Are You?” dealing with themes of homosexuality, and the program included excerpts from the play, “The Jerker,” which contained explicit references to sexual and excretory activities. The program was broadcast after the hour of 10:00 local time and was preceded by an advisory that some listeners might find portions of the content objectionable. In response to the Commission's initial directive to the station to respond to the complaint, Pacifica argued that the explicit passages describing homosexual activity were part of a play about AIDS, which was an issue of significance public importance not only to the gay community, but to the general public as well.

The Commission imposed no direct sanctions against Pacifica for the broadcast, but said that the broadcast might be criminally obscene under the statute, and thus referred the case to the Justice Department, which took no action.⁶⁵ Having said that, the Commission went on to announce its new enforcement standards for 18 U.S.C. §1464 and to warn broadcasters that neither the “seven dirty words” test nor the broadcast of such material after the hour of 10:00 p.m. would constitute a safe harbor against prosecution.

The second case dealt with the airing of a song, “Makin' Bacon” by KCSB-FM, a noncommercial station owned by the Regents of the University of California. The song, while it contained no specific “dirty words” of the ilk used by Carlin, did contained sexual innuendo that the Commission said were “rendered explicit” by the surrounding context so as make it patently offensive for the broadcast medium.⁶⁶ Moreover, said the Commission, the available evidence indicates that there is a reasonable risk that children may still be in the listening audience after 10 p.m.⁶⁷ Accordingly, the previous standard permitted indecent but not obscene material to be broadcast after the hour of 10:00 p.m. would no longer be used, and it was up to the licensee to determine and establish, with convincing evidence what hours of the day in its own market there was a low likelihood of children being in the audience.⁶⁸

The third case involved the first of many forfeiture actions imposed against Infinity Broadcasting, the group owner of a number of stations which featured syndicated morning talk show morning talk show host and radio personality Howard Stern. Broadcasts of this program during the fall of 1986 were found to be replete with references to sexual and excretory matters,⁶⁹ the Commission found were made “in a pandering and titillating” fashion.⁷⁰ As with the song lyrics in the KCSB-FM case, many of Stern's remarks consisted of innuendo and double entendre. The Commission found, however, that the surrounding references rendered the material explicit, and thus patently offensive for the broadcast medium. Moreover, the FCC argued that the entire context of the program was intended to titillate and pander. It was also broadcast in the morning, a time of day where there was a reasonable risk that children were in the audience.⁷¹

Since the Commission was announcing a shift from its prior policy of bringing indecency actions against only those licensees that broadcast one or more of the seven dirty words, it imposed no monetary forfeiture against Infinity. However, the Commission made clear in the accompanying Public Notice⁷² that it was expanding its enforcement of 18 U.S.C. §1864 to include suggestive language amounting to patently offensive references to sexual or excretory activities or organs. Further, material broadcast after 10 p.m. would not automatically be insulated from FCC review or sanction. Each licensee was responsible for determining when there was not a reasonable risk that children would be in the audience.⁷³

Preparatory to what would be a series of legal battles between Congress and the Commission on the one hand, and licensee and public interest organizations on the other, a joint group of petitioners asked the Commission to reconsider its policy statement, contending that it imposed an impossible burden on licensees to second-guess the Commission, and thus chilled legitimate and meritorious speech.⁷⁴ The Commission refused to retreat from its initial position, but did act to clarify and expand upon what was stated in its policy statement.⁷⁵

Rejecting the petitioners' argument that the standards were impossibly vague, the Commission stated that because the context of each case was determinant, enforcement actions must by necessity be on a case-by-case basis. Since this was the same basis used by the Courts, it was not unconstitutionally vague.⁷⁶ However, the Commission stated that the “contemporary community standards” that would be used to judge indecency would a national one for the broadcast medium, and not a local one (as the Supreme Court announced in Miller). As to the hours of the day when indecent speech might safely be broadcast, the Commission relented somewhat and observed that the period of midnight to six o'clock A.M. could be presumed to be hours where such programming could be broadcast without a reasonable risk of exposure to children.⁷⁷

B. The “ACT” Cases.

“ACT I.”

Action for Children's Television (“ACT”), along with a number of other public interest groups, the networks, and NAB, petitioned for review of the Commission's Reconsideration Order in the U.S. Court of Appeals. Three bases for overturning the new Indecency Policy were cited. First, the petitioners and those intervenors siding with the petitioners challenged the FCC's decision to abandon its post-Pacifica policy of limiting enforcement of broadcast indecency to the seven dirty words in the Carlin monologue, and contended that the broader definition was facially invalid because it was unconstitutionally vague. Second, the generic definition of broadcast indecency announced by the Commission was unconstitutionally overboard, because the definition failed to exempt material which had serious literary, artistic, political or scientific (LAPS) value,⁷⁸ thereby bringing within its ambit material that was constitutionally protected in addition to material which could be deemed to be without such protection. Finally, the Commission was arbitrary and capricious, it was argued, in abandoning the 10 p.m. “safe harbor,” which had been employed by the Commission for over 12 years.

The D.C. Circuit rejected the facial validity challenges to the policy, and held that the Commission's new indecency policy was neither unconstitutionally vague nor overboard. However, it vacated the two cases which involved broadcasts occurring after 10 p.m., and remanded them back to the Commission on the ground that the Commission had not established a reasonable basis for moving the safe harbor time to 12:00 midnight from 10:00 p.m.⁷⁹

The case was then remanded back to the FCC with instructions to limit the ban on the broadcast of indecent programs to the period from 6:00 a.m. to 10:00 p.m. The Commission acted to modify its indecency policy to reflect the Court's admonition.¹⁰² No further legislative attempts too reduce the safe harbor period were successful, and it remains as 10:00 p.m. to 6:00 p.m.

C. The FCC's Revised Policy Statement: Industry Guidance

on Interpretation of FCC Decisions.

Prior to the issuance of the ACT III case, the Commission had issued a Notice of Violation and subsequent Notice of Apparent Liability to Evergreen Media Corporation of Chicago, Licensee of WLUP (AM), Chicago, Illinois, for broadcasting indecent matter.¹⁰³ Evergreen refused to pay the forfeiture, arguing that the finding that it had violated 18 U.S.C. §1464 was based upon impossibly vague and unpublished standards for what is and what is not indecent and was therefore unconstitutional as applied to Evergreen. The FCC referred the case to the U.S. Department of Justice for enforcement of the forfeiture order, which brought suit in Federal District Court.¹⁰⁴ Thereafter the parties ) Evergreen, the FCC and the Justice Department entered into a settlement agreement whereby Evergreen would pay into the U.S. Treasury $10,000 without an admission of liability and the FCC would not only expunge the violation orders, but agreed to publishing with nine months of the date of the settlement a policy statement providing the broadcast industry with guidance on what standards would be used by the agency to determine whether or not material was indecent for broadcast.¹⁰⁵

Although Evergreen kept its promise to pay $10,000 to the Treasury, the FCC did not get around to publishing any standards on Indecent Broadcasts or vacating the violation orders until more than six years later. Finally, under the chairmanship of Michael Powell, the Commission issued a Policy Statement entitled, Industry Guidance On the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency.¹⁰⁶

Basic Analytical Guidelines.

After reviewing the history of FCC enforcement of Section 1464 with regards to the broadcast of indecent matters, the Commission noted that its approach to an indecency complaint first involves an analytical determination of whether or not the broadcast in question came within the scope of the FCC's indecency definition, that is, does the material “describe or depict sexual or excretory organs or activities.”¹⁰⁷ If the material, either plainly or by innuendo, did not contain descriptions or depictions of the material, it fell outside of the statute, and could not be prosecuted.

Secondly, the Commission stated that such descriptions or depictions must be “patently offensive as measured by contemporary community standards for the broadcast medium.”¹⁰⁸ This standard is not a local one, nor did it encompass a specific geographical area. Rather, said the Commission, the “patently offensive” standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.¹⁰⁹

As to what is patently offensive, the Commission initially noted that full context in which the material appeared as critically important. Explicit terms or descriptions in the context of a bona fide newscast, for example, might not be patently offensive under the statute while sexual innuendo, even though not explicit, if it persists and is sufficiently clear to make the sexual meaning inescapable might be. However, the Commission said that an attempt to catalog in any comprehensive fashion all of the possible contextual factors would prove an insurmountable task. Instead, it said it hoped that by comparing cases superficially similar in facts but which resulted in differing determinations as to whether or not the rules had been violated, certain features could be deduced and articulated as guiding principles.

Guiding Principles.

The Commission listed three principal factors that have proved significant in its decisions to date: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.¹¹⁰

With respect to the first principle, the Commission then listed a number of previous cases where a licensee was found to have violated the statute by virtue of the degree of explicitness in the descriptions or depictions of sexual organs and activity. Less explicit material, however, that relies principally on innuendo to convey a sexual or excretory meaning, has also be cited by the Commission as actionable where the sexual or excretory meaning was unmistakable. Several cases were cited, including a station's broadcast of “The Candy Wrapper Song” the lyrics of which substituted the names of popular candy bars for sexual organs or activities, as be of such unmistakable meaning that the song could be deemed to be patently offensive under the statute.¹¹¹ On the other hand, where a fuller explanation of the context has been found to result in the conclusion that the sexual meaning was not inescapable.¹¹²

The second principle, Dwelling/Repetition versus Fleeting Reference, has been used by the Commission to distinguish between the situation where the explicit sexual or excretory activity or language becomes patently offensive by virtue of the material being repeated or dwelled upon at length. Whereas, a fleeting use of otherwise prohibited language, particularly where the broadcast was live and spontaneous will not be found by the Commission to be actionable. The two cases cited by the Commission to illustrate this aspect both seemed isolated and “accidental,” in the sense that the speaker in some way acknowledged the error or attempted to correct it. In contrast, where the fleeting reference is not accidental but intentional ) such as the telling of a joke with a brief but clearly explicit sexual or excretory reference ) will result in liability.¹¹³

The Commission then discussed the third principle, whether or not the material was presented in a Pandering or Titillating Manner or for Shock Value. As with the obscenity cases, pandering has become a separate means of finding indecency: if the announcer presents, or acts as if the material is patently offensive, the Commission will concur and make such a finding. Conversely, the Commission has also found material that is graphic and highly explicit not to be actionably indecent where the material was presented in a serious light without any intention to pander or titillate being evident.¹¹⁴ Similarly, the presentation of the award-winning film, Schindler's List over network television, although it contained scenes of full frontal nudity was held by the FCC not to be actionably indecent. The subject matter of the film, the manner of its presentation, and the warnings that accompanied the broadcast led the Commission to rule that there had been no violation of the statute by the Station that was the subject of the complaint.¹¹⁵

The FCC's Enforcement Process.

Finally, the Commission went on to describe its enforcement procedure, and what information was necessary to include in any complaint of broadcast indecency before the Commission would take further action.

In order for a complaint to be considered, the FCC stated that it must include: (1) a full or partial tape or transcript or significant excerpts of the program; (2) the date and time of the broadcast; and (3) the call sign of the station involved. If a complaint does not contain this supporting material, or if it indicates that a broadcast occurred during the "safe harbor" hours or the material cited does not fall within the subject matter scope of our indecency definition, it will generally be dismissed by a letter to the complainant advising of the deficiency. In many of these cases, the station may not be aware that a complaint has been filed.

If, however, the FCC staff determines that a documented complaint meets the subject matter requirements of the indecency definition and the material complained of was aired outside "safe harbor" hours, then the broadcast at issue is evaluated for patent offensiveness. Where the staff determines that the broadcast is not patently offensive, the complaint will be denied.

If, however, the staff determines that further enforcement action might be warranted, the Enforcement Bureau, in conjunction with other Commission offices, examines the material and decides upon an appropriate disposition, which might include any of the following: (1) denial of the complaint by staff letter based upon a finding that the material, in context, is not patently offensive and therefore not indecent; (2) issuance of a Letter of Inquiry to the licensee seeking further information concerning or an explanation of the circumstances surrounding the broadcast; (3) issuance of a Notice of Apparent Liability (NAL) for monetary forfeiture;¹¹⁶ and (4) formal referral of the case to the full Commission for its consideration and action. Generally, the last of these alternatives is taken in cases where issues beyond straightforward indecency violations may be involved or where the potential sanction for the indecent programming exceeds the Bureau's delegated authority.¹¹⁷

Where a letter inquiry is issued, the licensee's comments are generally sought concerning the allegedly indecent broadcast to assist in determining whether the material is actionable and whether a sanction is warranted. If it is determined that no further action is warranted, the licensee and the complainant will be so advised. Where a preliminary determination is made that the material was aired and was indecent, a Notice of Apparent Liability is issued. If the Commission previously determined that the broadcast of the same material was indecent, the subsequent broadcast constitutes egregious misconduct and a higher forfeiture amount is warranted.¹¹⁸

The licensee is afforded an opportunity to respond to the NAL, a step which is required by Section 503(b) of the Communications Act. Once the Commission or its staff has considered any response by the licensee, it may order payment of a monetary penalty by issuing a Forfeiture Order. Alternatively, if the preliminary finding of violation in the NAL is successfully rebutted by the licensee, the NAL may be rescinded. If a Forfeiture Order is issued, the monetary penalty assessed may either be the same as specified in the NAL or it may be a lesser amount if the licensee has demonstrated that mitigating factors warrant a reduction in forfeiture.

A Forfeiture Order may be appealed by the licensee through the administrative process under several different provisions of the Commission's rules. The licensee also has the legal right to refuse to pay the fine and litigate the matter in court. In such a case, the Commission may refer the matter to the U.S. Department of Justice, which can initiate a trial de novo in a U.S. District Court. The trial court may start anew to evaluate the allegations of indecency.

IV Regulation of Indecency in Other Media.

We have already alluded to the issue of indecency in other forms of media, and the government's attempts to regulate it. The Sable¹¹⁹ case dealt with whether the government could impose an outright ban on indecent but not obscene “dial-a-porn” telephone communications. In Sable as in the area of over-the-air broadcasting, the U.S. Supreme Court has upheld the government's right to protect children and non-consenting adults from being exposed to sexually explicit material that does not meet the Miller obscenity test. But is the concept of “indecency” as a separate punishable offense under federal or state criminal statutes applicable across the board in any media such as cable television or the internet? A number of rulings have clarified the extent to which indecent speech can be prosecuted when it is presented in media other than radio and television broadcasting.

A. Indecency and Cable Television.

We saw in Chapter 5 that the FCC sought to extend its regulatory hand to cable television programming on the grounds that it was ancillary to broadcasting. While the Supreme Court agreed, it reserved judgment on whether or not the regulation of cable could be coextensive with broadcasting.¹²⁰ This was addressed later in a series of cases.

Four years later the Court, in a close 5-4 vote upheld the FCC's promulgation of programming obligations on larger cable systems in U.S. v. Midwest Video Corp.¹²¹ Again, the majority of the Court agreed with the FCC that such regulations were justified under the concept of “ancillary jurisdiction” enunciated in Southwestern Cable. However, when the FCC attempted to require new cable systems with 20 or more channels to allocate four of their channels to public, educational, local government and leased access programming, the balance of votes on the Court shifted and the Court ruled that the FCC had exceeded its authority under Section 163(h) of the Communications Act.¹²² Although the rules had also been challenged on First Amendment grounds, the Court chose not to address that issue since the regulations were ultra vires.

In Cruz v. Ferre,¹²³ a U.S. Circuit Court upheld a decision by the lower federal district court that struck down a Miami ordinance banning indecent programming on cable. The district court noted a number of differences between cable television programming and over-the-air broadcast programming that justified a different result than in Pacifica. A cable subscriber must make the affirmative decision to bring the cable signals into his or her home; thus, cable “intrudes” into the home only at the express invitation of the homeowner. Second, parents may take advantage of the “lockbox” technology available from the cable supplier to lock out or screen children from offensive programming. Unconsenting adults may also avoid unpleasant programming by consulting the program guides provided by the cable company, or by asking the cable company to block the “adult” channels altogether. These means, said the Court are less restrictive of First Amendment rights than a flat ban on indecent programming such as that set forth in the ordinance. The Supreme Court declined to hear the case and the Cruz decision remains good law today.

In 1992 Congress passed over the veto of President Bush the Cable Television Consumer Protection and Competition Act.¹²⁴ Sections 10(a), 10(b), and 10(c) of the Act¹²⁵ permitted the cable operator to allow or prohibit programming that it “reasonably believes . . . depicts sexual . . . activities or organs in a patently offensive manner.” Under Section(s) 10(b), which applied only to leased access channels, operators were required to segregate “patently offensive” programming on a single channel, to block that channel from viewer access, and to unblock it (or later to reblock it) within 30 days of a subscriber's written request. Between 1984, when Congress authorized municipalities to require operators to create public access channels, and the Act's passage, federal law prohibited operators from exercising any editorial control over the content of programs broadcast over either type of access channel. These provisions, and the accompanying regulations promulgated by the FCC as directed by the Act finally made their way to the Supreme Court in 1996.

A coalition of organizations sought review of the FCC's regulations and the underlying statutory provisions, claiming that they violated the First Amendment. A panel of the District of Columbia Circuit agreed with the petitioners that the provisions violated the First Amendment.¹²⁶ The entire Court of Appeals, however, heard the case en banc and reached the opposite conclusion. It held all three statutory provisions (as implemented) were consistent with the First Amendment.¹²⁷ Four of the eleven judges dissented. Two of the dissenting judges concluded that all three provisions violated the First Amendment. Two others thought that either one, or two, but not all three of the provisions, violated the First Amendment. The Supreme Court granted certiorari to review the en banc Court's First Amendment determinations.

In a plurality decision, the Supreme Court partly affirmed the en banc Circuit Court’s ruling.¹²⁸ Justice Breyer announced the opinion of the Court that Section 10(b) violated the First Amendment. The requirement that cable operators “segregate and block” indecent program had obvious speech-restrictive elements, wrote Justice Breyer, and was not “narrowly tailored” to achieve its basic, legitimate objective of protecting children from patently offensive, but not obscene programs. Less restrictive means utilized by Congress elsewhere to protect children from such material on cable channels support the conclusion as to Section 10(b)’s overbreadth. The Telecommunications Act of 1996,¹²⁹ for example, uses blocking without written request, “V-chips,” which allow the view to lock out overly violent television programming as well as the “lockbox” requirement that has been in place since 1984.

With respect to Sections 10(a) and 10(c) of the 1992 Act dealing with private-leased and government access cable channels, a majority of the Court affirmed the D.C. Circuit’s decision sustaining their validity. Thus, a cable operator may enforce prospectively a written and published policy of prohibiting programming on government-reserved and private leased access channels that the operator “reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.” The Justices could not agree, however, on a consistent rationale for doing so.

Justice Breyer, joined by Justices Stevens, O’Connor and Souter said that the provisions permitting (but not requiring) the cable operator to exercise editorial discretion over leased and government channels was an acceptable balance between the interests of government in protecting children and the First Amendment rights of local governments and private parties leasing channels, and was similar, in principle to the kind of balance struck by the Court with respect to broadcasting in the Pacifica case.¹³⁰ Justice Thomas, on the other hand, perceived the issue to be one simply of a cable operator’s First Amendment rights being paramount as to what programming it would allow or disallow over its system.¹³¹ Justice Kennedy, however, agreed with the petitioners that eliminating the mandatory no-censorship rule on leased access channels would likely mean that the cable operator would act with a heavy hand in censoring any programming that dealt with sexual or excretory matters.

B. Indecency and the Internet.

In addition to the broad-sweeping changes made in the Communications Act by provisions of the Telecommunications Act of 1996, the Republican-controlled Congress also adopted the Communications Decency Act of 1996.¹³² The Act was designed to extend the concept of indecency as applied to broadcasting to the Internet. Section 223(a)(1) criminalized the “knowing” transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."¹³³

A number of plaintiffs including the American Civil Liberties Union filed suit challenging the constitutionality of §§223(a)(1) and 223(d). The federal district court, after making extensive findings, issued a preliminary injunction against Attorney General Janet Reno from enforcing the provisions of the law on the grounds that the CDA violated both the First Amendment because it was overboard and the due process clause of the Fifth Amendment because it was too vague.¹³⁴ The government appealed the injunction to the Supreme Court under the special review provisions of the Act.

In a 7-2 decision, the Supreme Court upheld the findings of the lower court and ruled that the provisions in question violated the First Amendment.¹³⁵

The Justice Department argued that the federal district court’s decision was not supported by prior Supreme Court decisions, notably Ginsberg v. New York, Pacifica, and Renton v. Playtime Theatres, Inc.¹³⁷ The Court disagreed, saying that the CDA different in at least four critical respects from the statute reviewed in the Ginsberg case: First, as noted in the Ginsberg case, the prohibition against sales to minors did not bar parents who so desired from purchasing the magazines for their children. Under the CDA, by contrast, neither the parents' consent--nor even their participation--in the communication would avoid the application of the statute. Second, the New York statute applied only to commercial transactions whereas the CDA contained no such limitation. Third, the New York statute combined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." The CDA failed to provide any definition of the term "indecent" as used in §223(a)(1) and omitted any requirement that the "patently offensive" material covered by §223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of 17, whereas the CDA, in applying to all those under 18 years, included an additional year of those nearest majority.¹³⁸

The Court also found the Pacifica case unavailing to the government’s case. As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when--rather than whether--it would be permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions, on the other hand, were not limited to particular times, nor were they dependent on any subsequent evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the FCC's declaratory order was not punitive; the Court expressly refused to decide whether the indecent broadcast would support a criminal prosecution. Finally, the FCC's order applied to a medium which as a matter of history had received the least amount of First Amendment protection – particularly because warnings could not adequately protect the listener from unexpected program content.

The Internet, however, has no comparable history of limited protection. Moreover, as noted by the lower court, the risk of encountering indecent material by accident is remote because of the series of affirmative steps is required to access specific material.

As we saw in the Renton case, the Court upheld a zoning ordinance that kept adult movie theatres out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the “secondary effects”– such as crime and deteriorating property values – that such theaters fostered. The Justice Department HAD argued that the CDA was conceptually similar to such zoning ordinances because it constitutes a sort of “cyberzoning” on the Internet. However, the Court found that the CDA applied broadly to the entire universe of cyberspace, and was intended to protect children from the primary effects of “indecent” and “patently offensive” speech, rather than any “secondary” effects of such speech, as was the case in Renton.¹³⁹

The Court continued with its own analysis of the line of previous cases dealing with protecting minors from indecent by nonobscene speech, and reiterated that no decision had ever upheld legislation that constituted an absolute ban on such speech, particularly where alternative means of protecting minors were available. It therefore affirmed the district court’s injunction and ruled that the pertinent provisions of the CDA were unconstitutional.

C. Regulation of Indecency in Public Libraries.

About the same time as the Reno case was being handed down by the Supreme Court, a similar issue concerning control of indecent material on the internet was being contested in the Eastern District of Virginia. In October of 1997 the Board of Trustees of Loudoun County Public Libraries adopted a policy on “Internet Sexual Harassment” which required that website-blocking software be installed on all computers made available to library patrons so as to: "(a) block child pornography and obscene material (hard core pornography)"; and "(b) block material deemed harmful to juveniles under applicable Virginia statutes and legal precedents (soft core pornography)." To implement the Policy, the Board chose “X-Stop,” a commercial software product intended to limit access to sites deemed to violate the Policy.

A group of citizens filed suit in federal district court against the Board¹⁴⁰ and its individual members, alleging that the implementation of the policy impermissibly blocked their access to protected speech such as “Quaker Home Page” the Zero Population Growth website, and the site for the American Association of University Women, Maryland Chapter. The Board defended on a number of procedural grounds, including that they had legislative immunity under Virginia law, as well as under the CDA,¹⁴¹ and that the plaintiffs lacked standing because they failed to allege any injury. The district court rejected all of these procedural defenses and addressed the main issue of whether or not the library policy violated the First Amendment.

Citing Board of Education v. Pico,¹⁴² a 1982 case in which the Supreme Court reviewed the decision of a local board of education to remove certain books from a high school library based on the board's belief that the books were “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy” as the closest case on point, the district court stated:

To the extent that Pico applies to this case, we conclude that it stands for the proposition that the First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection. Consistent with the mandate of the First Amendment, a public library, "like other enterprises operated by the State, may not be run in such a manner as to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."¹⁴³

The Court concluded that, absent a compelling state interest and means narrowly draw to achieve that end, the Library Board was precluded by the First Amendment from adopting and enforcing content-based restrictions on access to protected internet speech. Citing the recently-decided Reno case by the Supreme Court, the district court ruled that the Library Policy limited the internet speech available to adults to what is fit for juveniles, and accordingly it was fatally overboard.¹⁴⁴

D. Indecency and the Arts.

Since 1965 the federal government has provided grants for the encouragement and development of artistic expression. The National Foundation on the Arts and Humanities Act¹⁴⁵ created the National Endowment for Arts to administer public grants designed to "help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of . . . creative talent."¹⁴⁶ The enabling statute vests the NEA with substantial discretion in the awarding of grants, identifying only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to American creativity and cultural diversity," "professional excellence," and the encouragement of "public knowledge, education, understanding, and appreciation of the arts."¹⁴⁷ Applications for NEA funding are initially reviewed by advisory panels of experts in the relevant artistic field. The panels, in turn report to the National Council on the Arts, which advises the NEA Chairperson.

In 1989, controversial photographs that appeared in two NEA-funded exhibits¹⁴⁸ prompted public outcry over the agency's grant-making procedures. Congress reacted to the controversy by inserting an amendment into the authorization bill for NEA’s 1990 funding. The amendment directs the Chairperson to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public."¹⁴⁹ Congress also enacted an amendment providing that no NEA funds "may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value."¹⁵⁰ The NEA implemented Congress' mandate by instituting a requirement that all grantees certify in writing that they would not utilize federal funding to engage in projects inconsistent with the criteria in the 1990 appropriations bill. This certification requirement was subsequently invalidated as unconstitutionally vague by the central California federal district court in Bella Lewitzky Dance Foundation v. Frohnmayer¹⁵¹, and the NEA did not appeal the decision. The language of Section 954(d)(1) directing the Chairperson to use procedures in judging the artistic merit of grant applications to “take into consideration general standards of decency and respect for diverse beliefs and values of the American public” was not affected by the Frohnmayer decision.

In 1990 four individuals who had applied for grants and had received recommendations from the NEA advisory panels were subsequently told that the National Council for the Arts, which reviews the advisory panel recommendations, had voted to deny funding. They filed suit, alleging that the NEA had violated their First Amendment rights by rejecting their applications on political grounds, had failed to follow statutory procedures by basing the denial on criteria other than those set forth in the NEA's enabling statute, and had breached the confidentiality of their grant applications through the release of quotations to the press, in violation of the Privacy Act of 1974.¹⁵² When later that year Congress enacted §954(d)(1),THE plaintiffs amended their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based. First Amended Complaint. They were joined in the suit by the National Association of Artists' Organizations (NAAO).

The federal district court granted the plaintiffs’ motion for summary judgment on the grounds that the judging criteria contained in Section 954(d)(1) was invalid on its face and as applied. Reasoning that “the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national 'general standards of decency,'” the court concluded that §954(d)(1) could not be implemented in a manner consistent with the due process requirement of the Fifth Amendment. Drawing an analogy between arts funding and public universities, the district court further ruled that the First Amendment constrains the NEA's grant making process, and that because §954(d)(1) “clearly reaches a substantial amount of protected speech,” it was impermissibly overboard on its face.¹⁵³

The U.S. Circuit court of Appeals in a divided opinion upheld the lower court’s decision, saying that the “decency and respect” criteria contained in the 1990 amendment gave rise to the danger of arbitrary and discriminatory application of funding awards and was thus void for vagueness under the First and Fifth Amendments. Alternatively, the criteria violated the viewpoint-based restrictions provisions of the First Amendment and the government had not shown a compelling state interest in imposing such restrictions.¹⁵⁴

The U.S. Supreme Court granted certiorari and reversed the holdings of the district court and the Ninth Circuit.¹⁵⁵ The Court ruled that the “decency and respect” criteria simply added additional considerations to the grant-making process and did not impose mandatory criteria on either the NEA Chairperson or the advisory bodies established to review grant applications. Justice O’Connor, writing for the majority of the Court, stated that the additional criteria, although content-based and seemingly vague in their meaning nevertheless passed Constitutional muster because they were simply listed as factors to consider, rather than absolute standards that must be met to secure funding. Their vagueness is neither greater nor less than that of the primary criterion of “artistic excellence.” Thus the lower court’s determination that the amendment was invalid on its face must be reversed.

As to whether or not the criteria were unconstitutional as applied, the Court noted that no evidence had been offered by the plaintiffs that any particular funding decision had been made as a means of suppressing any particular form of expression or viewpoint. Thus, said the Court:

If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case. We have stated that, even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas,"... and if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate.... Unless and until §954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, however, we uphold the constitutionality of the provision.¹⁵⁶

Justice Scalia concurred in the judgment of the Court but not the rationale. For him it was a simple case: the government may discriminate all it wants to in making funding decisions, he said; in fact, the making of such “content-based” decisions to fund or not to fund certain programs are what senators and congressmen are elected to do. Government could not operate without the public’s reliance in the judgment of its elected representatives, and in Justice Scalia’s mind, no appropriation or funding decision rises to the level of a violation of the First Amendment. It is only when the government enacts laws that single out and prosecute persons with particular viewpoints that the First Amendment comes into consideration:

Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program . . . .” Rust v. Sullivan, 500 U.S. 173, 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government–an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment.¹⁵⁷

Justice Souter was the lone dissenter in the case, arguing that the decency and respect language mandated viewpoint based decisions in the disbursement of government subsidies. He disagreed both with the majority and with Justice Scalia, saying that the exercise of viewpoint discrimination in the exercise of government authority over expressive activity is patently a violation of the First Amendment, and is not saved by the supposition that a specific funding decision could be made without involving such discrimination.¹⁵⁸

It is clear from the legislative history and not disputed by the majority or Justice Scalia, said Justice Souter, that the “decency and respect” language was added by Congress as a response to the controversy over NEA’s prior funding of the Mapplethorpe and Serrano photography exhibits, sending the clear message to other individuals and groups seeking federal grants to steer clear of such offensive topics. That, said Justice Souter, is the quintessential meaning of “chilling effect.”

We have explained before that the prospect of a denial of government funding necessarily carries with it the potential to "chill . . . individual thought and expression." In the world of NEA funding, this is so because the makers or exhibitors of potentially controversial art will either trim their work to avoid anything likely to offend, or refrain from seeking NEA funding altogether. Either way, to whatever extent NEA eligibility defines a national mainstream, the proviso will tend to create a timid esthetic. And either way, the proviso's viewpoint discrimination will “chill the expressive activity of [persons] not before the court.”... Indeed, because NEA grants are often matched by funds from private donors, the constraining impact of §954(d)(1) is significantly magnified....¹⁵⁹

Conclusion.

We have explored in the last two chapters one of the most difficult and perplexing subjects of the law surrounding freedom of expression. What is “obscene” or “indecent” is a highly subjective matter and such concepts resist attempts by even the most rigorous legal and logical analysis to define or describe. We may agree on limiting the concept to matters involving sexual or excretory activities or organs, but what may be “serious” artistic expression for one person can be, and often is highly offensive and vulgar to another. Like the character Dr. Frankenstein in Mary Shelly’s famous novel by the same name, the late Justice Brennan, author of the Roth definition of obscenity may be correct in ultimately disowning his creation and admitting the Court’s failure to develop a legal doctrine that provides a clear standard of what and what may not be, criminally obscene. But as we have seen, even if the concept of obscenity were scrapped, the legal and moral issues involving how children might be protected from potentially harmful and destructive material of a sexual nature would remain.

Questions:

¹ Once again, the distrust and fear of the newer communication technology ) print ) despite widespread illiteracy in England at the time ) caused lawmakers to treat the potential harm that the print media could cause as far more serious and extensive than it really was.

² For example, in 1948, the Supreme Court reversed the misdemeanor conviction of a bookseller under a New York statute that permitted prosecution of any person who:

Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime....

The Court held that the statute, even as construed by the New York courts to apply to obscenity and indecency, was unconstitutionally vague. Winters v. New York, 333 U.S. 507, 510 (1948).

³ See, for example, Ex parte Jackson, 96 U.S. 727, 736-737; United States v. Chase, 135 U.S. 255, 261; Robertson v. Baldwin, 165 U.S. 275, 281; Public Clearing House v. Coyne, 194 U.S. 497, 508; Hoke v. United States, 227 U.S. 308, 322; Near v. Minnesota, 283 U.S. 697, 716; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572; Hannegan v. Esquire, Inc., 327 U.S. 146, 158; Winters v. New York, supra, 333 U.S. at 510; Beauharnais v. Illinois, 343 U.S. 250, 266.

⁴ Roth dealt with a conviction under a federal statute, 18 USC §1461, that made it a crime to mail any material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character. A companion case decided with Roth, Alberts v. California, dealt with a state statute which made it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent." (West's California Penal Code, 1955, §311).

⁵ 354 U.S. 476, 482-485 (1957).

⁶ See discussion of seditious speech in Chapter ____, page ___.

⁷ The Court cited to an earlier decision, Beauharnais v. Illinois, 343 U.S. 250 (19___**), where the Court had rejected the need to prove clear and present danger under a criminal libel statute:

"Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase `clear and present danger. Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class." 343 U.S. at 256 [emphasis supplied].

⁸ 354 U.S. at 485.

⁹ 310 U.S. 88 (19__**).

¹⁰ 310 U.S. at 102.

¹¹ The fact that such lustful thoughts did not result, or did not have any tendency to incite others to commit any antisocial acts was irrelevant, said the Court, because obscene speech had no social importance or value and was not protected. This circular nature of this argument apparently wert unacknowledged by the Court.

¹² 354 U.S. at 487 (Note 20).

¹³ Ibid., citing, A. L. I., Model Penal Code, §207.10 (2) (Tent. Draft No. 6, 1957).

¹⁴ 354 U.S. at 489. The Courted to number federal and state cases where a similar formulation had been used in instructions to the jury. (Note 26). Thus, the Roth case did not originate the “prurient interest” test for obscenity, but simply adopted the viewpoint expressed in most of the more recently-decided state and federal cases to date.

¹⁵ 354 U.S. 476, 512 (Opinion of Douglas, J.)

¹⁶ 370 U.S. 478 (1962).

¹⁷ The publishers sought an injunction against the Postmaster General in federal District Court, which denied the injunction. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court's denial. The Supreme Court granted certiorari to the petitioners in order to rule on this application of the federal statute (18 U.S.C. §1461).

¹⁸ Since fewer than five justices joined in the opinion, the holding of the case was limited to only the judgment, that is, the decision to reverse the Postmaster's determination, rather than the rationale offered in Justice Harlan's opinion or the other separate statements written by the concurring Justices who had voted to reverse.

¹⁹ The issue of whether or not the photos in the magazines had prurient appeal to the homosexual community, and if so, whether or not that was sufficient to meet the Roth requirement was not addressed, Justice Harland finding it unnecessary to do so. The issue of variable obscenity was revisited by the Court in four years later in Mishkin v. New York. See below.

²⁰ Justice Brennan made this point in a concurring opinion in which the Chief Justice and Justice Douglas concurred. Justice Black concurred in the result, but offered no opinion. Justices Frankfurter and White did not participate at all in the decision. Justice Clark was the lone dissenter, who argued that the determination could be upheld on the grounds that the magazines contained advertisements as to where obscene material could be found, and that the statute required that the Postmaster General make the kind of determination involved here.

²¹ 378 U.S. 184 (1964)

²² Once again, the six Justices who voted for reversal could not agree on a uniform rationale. Justice Harlan, who authored the Roth opinion, used the occasion to advance his own Constituional theory, but succeeded only in convincing Justice Goldberg, who was soon to leave the Court to become the United States Ambassador to the United Nations, to go along.

²³ 343 U.S. 495 (1943)??

²⁴ 378 U.S. at 193 (citing Webster's New International Dictionary, 2^nd ed. 1949, p. 542).

²⁵ 378 U.S. at 191.

²⁶ 378 U.S. at 203.

²⁷ 383 U.S. 502 (1966).

²⁸ The Court noted that the New York courts had interpreted obscenity in the statute to cover only “hard-core pornography” ) a definition more stringent than the definition contained in the Roth test. Thus, the appellant's attack on the facial validity of the statute as being too vague was rejected.

²⁹ 383 U.S. at 508.

³⁰ 383 U.S. at 509.

³¹ Although the Court upheld the conviction on the basis that the material would satisfy the “prurient interest” test of Roth by referring to the effect on the intended audience, there was no evidence offered in the lower court that the material had such an appeal. See, Dissenting Opinion of Justice Stewart (383 U.S. 502, 518-519).

³² 383 U.S. 463 (1966).

³³ 18 U.S.C. §1461.

³⁴ 383 U.S. at 470-471 .

³⁵ The work is better known by its heroine's name, “Fanny Hill.”

³⁶ Justices Black and Stewart concurred in the reversal, but not in the basis for Justice Brenan's opinion. Justice Douglas dissented on his familiar “no law” rationale, but took the occasion to amplify the record by referencing the expert opinions offered at trial and attaching a copy of an address by a Unitarian Minister supporting the moral teachings of Memoirs. Justices White, Harlan and Clark, dissented, each writing separatly.

³⁷ See Note , and accompanying discussion.

³⁸ 390 U.S. 629 (1968).

³⁹ 390 U.S. at 638-639 (citing Prince v. Massachusetts, 321 U.S. 158, 170 (19____).

⁴⁰ 390 U.S. at 655-56.

⁴¹ 390 U.S. at 673.

⁴² 394 U.S. 557 (1969).

⁴³ 394 U.S. at 567.

⁴⁴ Justice Stewart distinguished Stanley from the Fourth Amendment cases that permitted the seizure of illegal contraband or other criminal evidence where discovered in plain sight. In Stanley, the officers had to find a movie projector and screen the films before any determination could be made that they constituted “illegal” material.

⁴⁵ Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Kaplan v. California, 413 U.S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973).

⁴⁶ Miller v. California, 413 U.S. 15, 24 (1973).

⁴⁷ 413 U.S. 49 (1973).

⁴⁸ Id., 413 U.S. at 69.

⁴⁹ The Report of the Commission on Obscenity and Pornography, pp 456-505 (New York Times Edition, 1970) (“Obscenity Commission”). The Commission, appointed by President Richard Nixon was charged with studying the effect of obscenity and pornography on society. The Majority Report however concluded that there was no empirical evidence supporting a conclusion that exposure to explict sexual materials play a significant role in the causation of delinquent or criminal behavior among youth or adults. Id., at p. 32.

⁵⁰ Paris Adult Theatre I, supra, 413 U.S. at 58, (citing the Obscenity Commission Report at pp. 390-412). While the Court denied that it was overruling its 1969 decision in Stanley v. Georgia, 394 U.S. 557, its holding in Paris Adult Theatre I that the State may reasonably conclude a correlation between exposure to obscene materials and anti-social behavior, would apply equally to possession of such materials in public or in the privacy of one's home.

⁵¹ 383 U.S. 413, 418 (1966).

⁵² Miller v. California, 413 U.S. at 21-22.

⁵³ 413 U.S. 115 (1973).

⁵⁴ Miller v. California, 413 U.S. at 25.

⁵⁵ Oregon's statute, while specific in describing the conduct to be prohibited, was limited in its application only to minors.

⁵⁶ United States v. Kennerley, 209 F. 119 (S.D.N.Y. 1913).

⁵⁷ Ibid., 209 F. 119, 121. Justice Brennan had previously argued that Judge Hand was clearly referring to the community at large, the public, or people in general and not to some specific local community. Jacobellis v. Ohio, 378 U.S. 184, 193 (1964).

⁵⁸ Model Penal Code, §207.10 (2) (Tentative Draft No. 6, 1957).

⁵⁹ 413 U.S. 123, 130 (1973).

⁶⁰ United States v. One Reel of Film, 431 F.2d 206 (1973).

⁶¹ The film was the famous (or infamous) Deep Throat, starring Linda Lovelace. The district court found it obscene and subject to forfeit under the federal statute, Title 19 U.S.C. §1305(a).

⁶² Paris Adult Theatres, II v. Slayton, 413 U.S. 49, 73-74 (1973).

⁶³ Id., 413 U.S. at 84.

⁶⁴ Id., 413 U.S. at 92.

⁶⁵ Id., 413 U.S. at 114.

⁶⁶ The state Supreme Courts of both Indiana (Stroud v. State, 300 N.E. 2d 100 (1973)) and Louisiana (Louisiana v. Shreveport News Agency, Inc., 287 So. 2d 464 (1973) were quick to respond to the Miller case, and struck down their respective state's obscenity statutes as unconstitutionally vague and lacking in specificity as to the conduct proscribed.

⁶⁷ A federal district court, however, ruled that New Jersey's anti-obscenity statute was not susceptible of any saving construction in light of the prior legislative history. Hamar Theatres, Inc. v. Cryan, 365 F. Supp. 1312 (D. N.J. 1973).

⁶⁸ See, D. Hunsaker, “The 1973 Obscenity-Pornography Decisions: Analysis, Impact, and Legislative Alternatives,” 11 San Diego Law Review, 906, 936-938 (June, 1974).

⁶⁹ Amicus Brief for Directors Guild of America, p. 7, filed in Jenkins v. Georgia, 418 U.S. 153 (1974).

⁷⁰ United Artists Corp. v. Harris, 363 F. Supp. 857 (W.D. Okla. 1973).

⁷¹ Hamar Theatres, Inc. v. Cryan, 365 F. Supp. 1312 (D. N.J. 1973) (Monmouth County, N.J.)

⁷² State ex rel Keating v. A Motion Picture entitled “Vixen,” 35 Ohio St. 2d 215, 301 N.E. 2d 880 (1973) (Hamilton County, Ohio).

⁷³ Redlich v. Capri Cinema, Inc., 43 App. Div. 27, 3490 N.Y. S. 2d 697 (1974) (New York City).

⁷⁴ Jenkins v. State, 230 Ga. 726, 199 S.E. 2d 183 (1973), reversed, Jenkins v. Georgia, 418 U.S. 153 (1974).

⁷⁵ United States v. Hamling, 481 F.2d 307 (9^th Cir. 1973), aff'd., sub nom. Hamling v. United States, 418 U.S. 87 (1974).

⁷⁶ (Orem, Utah) Letter from publisher to the author.

⁷⁷ 418 U.S. 87 (1974)

⁷⁸ Title 18 U.S.C. §1461. The jury convicted the defendants for the mailing of the brochure advertising an “Illustrated” version of the Report of the Commission on Obscenity and Pornography but could not agree on whether the book itself was obscene. The federal court declared a mistrial as to that issue.

⁷⁹ 418 U.S. 87, at p. 106. Ironically, as the dissenters, led by Justice Brennan, pointed out, the trial court in Hamling refused to permit evidence offered by the defense of community standards in Southern California, generally, and San Diego County more specifically ) on the grounds that a national standard was required to be applied in federal cases. The U.S. Supreme Court, while disagreeing, said that trial court's ruling was harmless error, apparently on the theory that no local standard, including that of San Diego, could be more permissive than what a national standard would be. See Dissenting Opinion of Brennan, J., 418 U.S. 87, at 152.

⁸⁰ Mishkin v. New York, 383 U.S. 502, 508-509 (1966) [emphasis added].

⁸¹ (1868) L.R. 3 Q.B. 360. See Note *** and accompanying text above.

⁸² The pertinent portion of the Georgia statute defined obscenity as follows: "Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters." Ga. Code Ann. 26-2101 (b) (1972).

⁸³ 418 U.S. 153, at p. 161.

⁸⁴ As noted above, the “patently offensive” element of the Miller test does not depend upon the application of contemporary community standards, but rather specific acts of sexual (or excretory) conduct defined by applicable state law.

⁸⁵ Jenkins v. Georgia, concurring Opinion of Brennan, J., 418 U.S. at 164-65 (citations omitted).

⁸⁶ 397 U.S. 728 (1970).

⁸⁷ 418 U.S. 298 (1974).

⁸⁸ The 4-man plurality opinion written by Justice Blackmun also noted that the city could appear to be making endorsements of certain political candidates or political opinions by including their messages on city-owned busses. Justice Douglas, who wrote a concurring opinion, sided with the Blackmun plurality but argued that a political speaker has no constitutional right to force his message upon a captive audience.

⁸⁹ 422 U.S. 205 (1975).

⁹⁰ The ordinance read in part: “It shall be unlawful and it is hereby declared a public nuisance for any ticket seller, ticket taker, usher, motion picture projection machine operator, manager, owner, or any other person connected with or employed by any drive-in theater in the City to exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare public areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place. Violation of this section shall be punishable as a Class C offense."

⁹¹ The City argued that the ordinance was similar to situations where a party's right of privacy not to be spoken to took precedence over a speaker's right to engage in expression. Cf., Rowan v. Post Office Dept., 397 U.S. 728 (1970); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).

⁹² 422 U.S. at pp. 211-212. The Erznoznik decision echoed the Court's ruling in Cohen v. California, 403 U.S. 15 (1971), where a spectator in a court proceeding was arrested for disorderly conduct for wearing a jacket bearing the words, “Fuck the Draft.” The Court had ruled that when people are in a public place, they may have to endure a number of things that offends their esthetic, if not political and moral sensibilities, and that the burden is normally falls on the viewer to avert the eyes if he wishes to avoid further bombardment of his sensibilities. 403 U.S. at 21.

⁹³ This argument was first made on appeal, and the Court rejected it on timeliness grounds, but also noted that there was nothing in the record that established the causal connection being argued.

⁹⁴ The court was quick to state, however, that a more narrowly drawn ordinance that was clearly designed to protect the government's legitimate interest in the control and flow of traffic, would pass constitutional muster. 422 U.S. at 217-218.

⁹⁵ Justice White also dissented, but only on the grounds that the majority unnecessarily undertook to do a content analysis when the ordinance could have been struck down solely on the basis of being constitutionally overbroad.

⁹⁶ 427 U.S. 50 (1975).

⁹⁷ The term "regulated uses" applies to 10 different kinds of establishments in addition to adult theaters, including adult book stores, cabarets, bars, taxi dance halls, and hotels.

⁹⁸ The theatre owners did not claim that the definitions did not apply to their activities, but that the vagueness inherent in the wording of the ordinances might deter others from engaging in constitutionally protected expression. The Court reasoned that to the extent doubt might exist as to the degree or extent of activity necessary to trigger the ordinance's applicability, there was no evidence that these ordinances were not readily subject to the narrowing construction of the Michigan courts that could and would clarify such matters if future cases presented genuine doubts.

⁹⁹ Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

¹⁰⁰ Justice Rehnquist wrote the Opinion of the Court, in which Chief Justice Burger and Justices White, Powell, Stevens and O'Connor joined. Justice Blackmun concurred in result. Justice Brennan wrote a dissent in which Justice Marshall joined.

¹⁰¹

OBSCENITY AND INDECENCY