Subject: Justice Brennan + Obscenity (a brief history lesson) Summary: The Roth, Memoirs a
Subject: Justice Brennan & Obscenity (a brief history lesson)
Summary: The Roth, Memoirs and Miller standards and Justice Brennan's
change of heart on the issue (long)
In article <1201@unix386.Convergent.COM>, John Sully said:
> The current flap over the Mapplethorpe exhibit, and The 2 Live Crew
> shows that the current definition of obscenity and the "Miller test"
> is inadequate for the task of defining what falls in the realm of
> protected speech and what does not.
> When the definition of obscenity can be so easily bent so as to be
> used to suppress legitimate artistic expression it seems clear that
> there can be *no* definition of pornography which can draw a "bright
> line" between what is protected and what is not. Because of this,
> there can be *no* restriction on pornography.
Interestingly, the man who wrote the Roth standard (the father of the
Miller standard) wound up more or less agreeing with you. A brief
history lesson in the modern Supreme Court, Justice William J.
Brennan (appointed by Eisenhower in 1956) and obscenity:
The "Miller" test got its start in 1957 in the Supreme Court decision
in the combined cases of Roth V. U.S. and Alberts v. California. The
decision was written by Justice Brennan, and included the codification
of what became known as the Roth test:
...whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest.
This, by Supreme Court fiat, replaced in many locales the Hicklin
test, a left-over piece of British jurisprudence [Regina v. Hicklin,
1868] which judged obscenity by the effect of isolates passages
(rather than the material as a whole) upon the most susceptible
persons into whose hands the material might fall (rather than the
In his decision, Brennan also wrote:
Many decisions have recognized that these terms of obscenity
statutes are not precise. This Court, however, has consistently
held that lack of precision is not in itself offensive to the
requirements of due process... That there may be marginal cases in
which it is difficult to determine the side of the line on which a
particular fact situation falls is no [sic] sufficient reason to
hold the language too ambiguous to define a criminal offense."
Nine years later, in "A Book Named 'John Cleland's Memoirs of a Woman
of Pleasure' v. Attorney General of Massachusetts," 1966 (also known
as "Memoirs v. Massachusetts" or, as the book in question came to be
better known, "Fanny Hill v. Massachusetts"), the Court, in a
plurality judgement which expressed the opinion of the Court and was
supported by Justices Warren, Fortas and our old friend Brennan,
reiterated the applicable obscenity test standards as follows:
...Three elements must coalesce: it must be established that (a)
the dominant theme of the material taken as a whole appeals to a
prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to
the description or representation of sexual matters; and (c) the
material is utterly without redeeming social value.
Seven years after that, along came "Miller v. California," 1973, in
which the Court, in an opinion written by Chief Justice Burger
(appointed by Nixon in 1969), modified and further refined the Roth
The basic guidelines for the trier of fact [in obscenity cases]
must be (a) whether "the average person, applying contemporary
community standards" would find that the work, taken as a whole,
appeals to 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.
It should be noted that part (c) was actually a weakening of the
standard set by the Court in "Memoirs v. Massachusetts," in that the
material in question no longer had to be _utterly_ without redeeming
social importance in order to be vulnerable to being judged obscene --
it was now enough that it merely lack "serious" value. Burger's
Miller ruling also explicitly upheld the use of "community standards":
Under a national Constitution, fundamental First Amendment
limitations on the powers of the States do not vary from community
to community, but this does not mean that there are, or should or
can be, fixed, uniform national standards of precisely what
appeals to the "prurient interest" or is "patently offensive"...
to require a State to structure obscenity proceedings around
evidence of a _national_ "community standard" [emphasis Burger's]
would be an exercise in futility... Nothing in the First Amendment
requires that a jury consider hypothetical and unascertainable
"national standards" when attempting to determine whether certain
materials are obscene as a matter of fact... People in different
States vary in their tastes and attitudes, and this diversity is
not to be strangled by the absolutism of imposed uniformity.
Now we get to the fun part: later in that same 1973 term, the Court
also issued a decision in "Paris Adult Theater I v. Slaton." The case
itself is fairly important -- the Court, in another Burger opinion,
We categorically disapprove the theory... that obscene
pornographic films acquire constitutional immunity from state
regulation simply because they are exhibited for consenting adults
only... This Court has, on numerous occasions, refused to hold
that commercial ventures such as a motion-picture house are
"private" for the purposes of civil rights litigation and civil
rights statutes... The idea of a "privacy" right and a place of
public accommodation are, in this context, mutually exclusive.
In other words, it was okay for states to regulate, up to and
including the point of shutting down, adult movie houses even if the
operators took great care to ensure that the allegedly obscene
material was only being shown to people who (a) knew in advance what
sort of thing they were going to see and (b) still wanted to see it.
The justification for this state interference, put forth by the state
of Georgia and supported by Burger, was that the state had an interest
in regulating public morality and in protecting it from the alleged
harmful effects of pornography. Burger held that this was a good
enough reason even in cases, like the one at hand, wherein there
existed no real proof that pornography had a harmful effect -- it was
sufficient that the state _thought_ it did.
The other interesting thing about "Paris Adult Theater," and the point
of this whole article, is what Justice Brennan wrote in his dissenting
opinion -- and remember, it was Brennan who had written the Roth
decision in 1957:
I am convinced that the approach initiated 15 years ago in Roth v.
United States... and culminating in the Court's decision today,
cannot bring stability to this area of law without jeopardizing
fundamental First Amendment values, and I have concluded that the
time has come to make a significant departure from that approach.
After 15 years of experimentation and debate, I am reluctantly
forced to the conclusion that none of the available formulas,
including the one announced today, can reduce the vagueness to a
tolerable level while at the same time striking an acceptable
balance between the protections of the First and Fourteenth
Amendments, on the one hand, and on the other the asserted state
interest in regulating the dissemination of certain sexually
oriented materials. Any effort to draw a constitutionally
acceptable boundary on state power must resort to such indefinite
concepts as "prurient interest," "patent offensiveness," "serious
literary value," and the like. The meaning of these concepts
necessarily varies with the experience, outlook and even
idiosyncrasies of the person defining them. Although we have
assumed that obscenity does exist and that we "know it when [we]
see it," (Jacobelis v. Ohio, 1964, J. Stewart, concurring) we are
manifestly unable to describe it in advance except by reference to
concepts so elusive that they fail to distinguish clearly between
protected and unprotected speech....
Brennan then went on to say that this ambiguity caused two separate
sorts of problems: (1) the problems of fair notice (that is, the idea
that fundamental to a fair and due-process-oriented justice system
is the axiom that a citizen will be able to know in advance of the
fact whether a contemplated act is criminal) and of chilling the
exercise of constitutionally protected speech, and (2) the burden
placed on the judicial system:
In Roth we conceded that "there may be marginal cases in which it
is difficult to determine the side of the line on which a
particular fact situation falls"... Our subsequent experience
demonstrates that almost every case is "marginal." And since the
"margin" marks the point between protected and unprotected speech,
we are left with a system in which every obscenity case presents
a constitutional question of exceptional difficulty....
The number of obscenity cases on our docket gives ample testimony
to the burden that has been placed upon this Court.
Brennan then examineDds four possible approaches that could be taken:
(1) Draw new, explicit, definitions of "obscene" and stick with them.
In my view, clarity cannot be obtained pursuant to this approach
except by drawing a line that resolves all doubts in favor of
state power and against the guarantees of the First Amendment...
such a standard would be appallingly overbroad, permitting the
suppression of a vast range of literary, scientific, and artistic
masterpieces. Neither the First Amendment nor any free community
could possibly tolerate such a standard. Yet short of that
extreme, it is hard to see how any choice of words could reduce
the vagueness problem to tolerable proportions, so long as we
remain committed to the view that some class of materials is
subject to outright suppression by the State.
(2) Do what the Court has done in its opinion of the day: leave the
present set of definitions in place and keep trying to muddle through.
(3) Make the assumption that juries are better qualified than judges
in these matters and that therefore "jury verdicts in this area should
not be set aside except in cases of extreme departure from prevailing
Far from providing a clearer guide to permissible primary conduct,
the approach would inevitably lead to even greater uncertainty and
the consequent due process problems of fair notice... Plainly, the
institutional gain would be more than offset by the unprecedented
infringement of First Amendment rights.
(4) Take the approach urged by Justices Black and Douglas in their
1957 dissenting opinion in Roth and rule that the First Amendment
plainly and simply bars the suppression of any sexually oriented
That position would affect a sharp reduction, though perhaps not a
total elimination, of the uncertainty that surrounds our current
approach. Nevertheless, I am convinced it would achieve that
desirable goal only by stripping the States of power to an extent
that cannot be justified by the commands of the Constitution, at
least so long as there is available an alternative approach that
strikes a better balance between the guarantee of free expression
and the States' legitimate interests.
And at this point Brennan tackled the question of the legitimacy of
those interests and reached his conclusion:
...The effort to suppress obscenity is based on unprovable, though
strongly held, assumptions about human behavior, morality, sex and
religion. The existence of these assumptions cannot validate a
statute that substantially undermines the guarantees of the First
Amendment... Even a legitimate, sharply focused state concern for
the morality of the community cannot, in other words, justify an
assault on the protections of the First Amendment... Where the
state interest in the regulation of morality is vague and
ill-defined, interference with the guarantees of the First
Amendment is even more difficult to justify.
In short, while I cannot say that the interests of the State --
apart from the questions of juveniles and unconsenting adults --
are trivial or nonexistent, I am compelled to conclude that these
interests cannot justify the substantial damage to constitutional
rights and to this nation's judicial machinery that inevitbaly
results from state efforts to bar the distribution even of
unprotected material to consenting adults... I would hold,
therefore, that at least in the absence of distribution to
juveniles or obtrusive exposure to unconsenting adults, the First
and Fourteenth Amendments prohibit the state and federal
governments from attempting wholly to suppress sexually oriented
materials on the basis of their allegedly "obscene" contents.
Of course, this was a _dissenting_ opinion, carrying no legal weight
whatsoever. Nonetheless, it is a very interesting stance to be taken
by the same man who formulated the foundation of the nation's
obscenity standards in the first place.
William December Starr
E-Mail Fredric L. Rice / The Skeptic Tank