Selected U.S. Supreme Court Obscenity Decisions
- Dunlop v. U.S. , 165 U.S. 486 (1897) (Upholding conviction for mailing and delivery of a newspaper called the 'Chicago Dispatch,' containing obscene, lewd, lascivious, and indecent matter).
- Winters v. New York , 333 U.S. 507 (1948) (Collections of tales of war horrors, otherwise unexceptionable, might well be found to be 'massed' so as to become 'vehicles for inciting violent and depraved crimes.' Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained).
- U.S. v. Alpers , 338 U.S. 680 (1950) (Obscene phonograph records are within the prohibition of 245 of the Criminal Code, which forbids the interstate shipment of any obscene "book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character).
- Butler v. State of Michigan , 352 U.S. 380 (1957) (Michigan Penal Code section that made it a misdemeanor to sell or make available to the general reading public any book containing obscene language "tending to the corruption of the morals of youth" violated the Due Process Clause of the Fourteenth Amendment).
- Roth v. U. S. , 354 U.S. 476 (1957) (Obscenity is not within the area of constitutionally protected freedom of speech or press - either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest).
- Smith v. People of the State of California , 361 U.S. 147 (1959) (Appellant, proprietor of a bookstore, was convicted of violating a city ordinance which was construed by the state courts as making him absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene - even if he had no knowledge as to the contents of the book. As thus construed and applied, the ordinance violates the freedom of the press which is safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action).
- Mishkin v. State of N. Y. , 383 U.S. 502 (1966) (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).
- Ginzburg v. U. S. , 383 U.S. 463 (1966) (Evidence that the petitioners deliberately represented the accused publications as erotically arousing and commercially exploited them as erotica solely for the sake of prurient appeal amply supported the trial court's determination that the material was obscene under the standards of the Roth case, supra. The mere fact of profit from the sale of the publication is not considered; but in a close case a showing of exploitation of interests in titillation by pornography with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters supports a determination that the material is obscene).
- A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass. , 383 U.S. 413 (1966) (This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Massachusetts Supreme Judicial Court erroneously interpreted the federal constitutional standard).
- Ginsberg v. State of N. Y. , 390 U.S. 629 (1968) (It is not constitutionally impermissible for New York, under this statute, to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read and see).
- Stanley v. Georgia , 394 U.S. 557 (1969) (The First Amendment as made applicable to the States by the Fourteenth prohibits making mere private possession of obscene material a crime).
- Blount v. Rizzi , 400 U.S. 410 (1971) (Administrative censorship scheme permiting the Postmaster General to stamp as "Unlawful" and return to the sender letters addressed to any person and to prohibit the payment of postal money orders to that person if he finds, on "evidence satisfactory to [him]," that the person is obtaining or seeking money through the mails for "an obscene . . . matter" violates the First Amendment since it lacks adequate safeguards against undue inhibition of protected expression.)
- Kois v. Wisconsin , 408 U.S. 229 (1972) (Petitioner was convicted under an obscenity statute for publishing in his underground newspaper pictures of nudes and a sex poem. In the context in which they appeared, the photographs were rationally related to a news article, in conjunction with which they appeared, and were entitled to Fourteenth Amendment protection. In view of the poem's content and placement with other poems inside the newspaper, its dominant theme cannot be said to appeal to prurient interest).
- Papish v. Board of Curators of University of Missouri , 410 U.S. 667 (1973) (Expulsion of student for distributing on campus a publication assertedly containing "indecent speech" proscribed by a bylaw of a state university's Board of Curators held an impermissible violation of her First Amendment free speech rights since the mere dissemination of ideas on a state university campus cannot be proscribed in the name of "conventions of decency").
- Kaplan v. California , 413 U.S. 115 (1973) (Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature).
- Paris Adult Theatre I v. Slaton , 413 U.S. 49 (1973) (Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy).
- Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that "obscenity" was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply.... (Douglas, J., dissenting).
- I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U.S. 476 (1957), and culminating in the Court'sdecision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach. (Brennan, J., dissenting).
- Miller v. California , 413 U.S. 15 (1973) (The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard").
- Today we leave open the way for California to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law. The Court has worked hard to define obscenity and concededly has failed (Douglas, J., dissenting).
- Hamling v. U. S. ,418 U.S. 87 (1974) (Affirming conviction of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version of the Presidential Report of the Commission on Obscenity and Pornography, in violation of 18 U.S.C. 2, 371, and 1461).
- Jenkins v. Georgia , 418 U.S. 153 (1974) (The film, "Carnal Knowledge" is not obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards).
- Erznoznik v. City of Jacksonville , 422 U.S. 205 (1975) (Jacksonville, Florida ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, held facially invalid as an infringement of First Amendment rights).
- Smith v. U. S. , 431 U.S. 291 (1977) ( State law cannot define the contemporary community standards for appeal to the prurient interest and patent offensiveness that under Miller v. California, 413 U.S. 15, are applied in determining whether or not material is obscene, and the Iowa obscenity statute is therefore not conclusive as to those standards. In federal prosecutions, such as this for violation of 1461, those issues are fact questions for the jury, to be judged in light of its understanding of contemporary community standards).
- Ward v. Illinois , 431 U.S. 767 (1977) (Illinois statute is not unconstitutionally vague as failing to give appellant notice that materials dealing with the kind of sexual conduct involved here could not be legally sold in the State, where appellant had ample guidance from a previous decision of the Illinois Supreme Court making it clear that his conduct did not conform to Illinois law).
- Lo-Ji Sales, Inc. v. New York , 442 U.S. 319 (1979) (The Fourth Amendment does not permit the action taken here, where, except for the specification of copies of the two films previously purchased by the investigator, the warrant did not purport to particularly describe the things to be seized but, instead, left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not countenance open-ended warrants to be completed while a search is being conducted and items seized or after the seizure has been carried out).
- Walter v. U. S. , 447 U.S. 649 (1980) (Government's unauthorized screening of films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances).
- New York v. Ferber , 458 U.S. 747 (1982) (A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment).
- Brockett v. Spokane Arcades, Inc. , 472 U.S. 491 (1985) (Court of Appeals erred in facially invalidating statute in its entirety on the ground that the definition of "prurient" as including "lust" was unconstitutionally overbroad in that it reached constitutionally protected material that merely stimulated normal sexual responses) .
- Pope v. Illinois , 481 U.S. 497 (1987) (Only the first and second prongs of the Miller test - appeal to prurient interest and patent offensiveness - should be decided with reference to "contemporary community standards").
- Fort Wayne Books, Inc. v. Indiana , 489 U.S. 46 (1989) (The pretrial seizure of petitioner's bookstore and its contents was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for, and seizures of, First Amendment materials renders invalid the pretrial seizure here).
- Osborne v. Ohio , 495 U.S. 103 (1990) (Ohio may constitutionally proscribe the possession and viewing of child pornography).
- Barnes v. Glen Theatre, Inc. , 501 U.S. 560 (1991) (Enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression).
- U.S. v. X-Citement Video, Inc. , 513 U.S. 64 (1994) (Because the term "knowingly" in 18 U.S.C. 2252 (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A), the Act is properly read to include a scienter requirement for age of minority. This Court rejects the most natural grammatical reading, adopted by the Ninth Circuit, under which "knowingly" modifies only the relevant verbs in subsections (1) and (2), and does not extend to the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation).
- Legal Information Institute at Cornell Law School
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