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An Unhurried Look at Obscenity The Catholic Lawyer Volume 13 Number 4 Volume 13, Autumn 1967, Number 4 Article 4 An Unhurried Look at Obscenity John M. Regan, C.M. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Constitutional Law Commons, First Amendment Commons, and the Supreme Court of the United States Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. AN UNHURRIED LOOK AT OBSCENITY JOHN J. REGAN, C.M. * A DECADE HAS PASSED since the Supreme Court handed down its first major decision on obscenity. Scarcely a year has gone by in that period without at least one significant decision, and each has caused in varying degrees outbursts of criticism of the Court. The decisions have appeared against the background of the so-called "sexual revolution" in the country. They are likewise part of an era of expanding individual liberties guaranteed by the Court. This article will attempt to summarize the evolution in the Su- preme Court's handling of obscenity over the past decade and its significance as seen by some of the major commentators. I. The Roth-Alberts Cases For all practical purposes the decade began on June 24, 1957, with the decision in the Roth-Alberts cases.' Earlier in 1957 the Court had held that a Michigan obscenity statute violated the first and fourteenth amendments to the Constitution because it prohibited the sale to an adult of a book unsuitable for minors2 but the Court left for the Roth decision a full exposition of the constitutional as- pects of obscenity legislation. The Roth decision contains in embryo practically all of the major issues which would emerge in subsequent cases through the decade, and therefore a somewhat detailed exposition of the decision is desirable. * B.A., Mary Immaculate College; M.A., St. John's University; LL.B., Colum- bia University; Member of the New York Bar. Roth v. United States, 354 U.S. 476 (1957). 2Butler v. Michigan, 352 U.S. 380 (1957). 13 CATHOLIC LAWYER, AUTUMN 1967 Samuel Roth had been convicted in a Mr. Justice Brennan, in the majority jury trial for violating the federal crimi- opinion, took up the constitutional issue nal obscenity statute3 on charges of mail- first.' He stated that the dispositive ing obscene circulars and advertising, and question was whether obscenity was ut- an obscene book. David Alberts had been terance within the area of protected convicted under a complaint that he speech and press. He marshalled an im- lewdly kept for sale obscene and indecent pressive list of cases to support his con- books, and for writing, composing and tention that the Court had always as- publishing an obscene advertisement of sumed that obscenity was not protected them, in violation of the California Penal by the freedoms of speech and press. He 4 Code. found that the guarantees of freedom of expression in most of the states which by " Act of March 4,1909, ch. 321, §211, 35 1792 had ratified the Constitution gave Stat. 1129. Every obscene, lewd, or lascivious, and no absolute protection for every utter- every filthy book, pamphlet, picture, paper, ance. A number of these states made letter, writing, print, or other publication of certain types of speech statutory crimes. ... an indecent character, and The distinguishing mark of protected Every written or printed card, letter, cir- cular, book, pamphlet, advertisement, or no- speech was its social importance: tice of any kind giving information directly All ideas having even the slightest re- or indirectly, where, or how, or from whom, deeming social importance-unorthodox or by what means any of the hereinbefore ideas, controversial ideas, even ideas mentioned matters, articles, or things may be obtained or made, . whether sealed or hateful to the prevailing climate of opin- unsealed; . is declared to be nonmailable ion-have the full protection of the matter and shall not be conveyed in the guaranties, unless excludable because they mails or delivered from any post-office or by encroach upon the limited area of more any letter carrier. important interests. But implicit in the Whoever shall knowingly deposit, or cause history of the First Amendment is the re- to be deposited for mailing or delivery, any- jection of obscenity as utterly without thing declared by this section to be non- redeeming social importance.6 mailable, or shall knowingly take, or cause the same to be taken, from the mails for Justice Brennan concluded by holding the purpose of circulating or disposing that obscenity was not within the area thereof, or of aiding in the circulation or of constitutionally protected speech or disposition thereof, shall be fined not more than five thousand dollars, or imprisoned press.' not more than five years, or both. The Court noted that the 1955 revision of this obscene or indecent figure; or, statute, 69 Stat. 183, was not applicable to 4. Writes, composes, or publishes any notice the case. or advertisement of any such writing, paper, 4 CAL. PEN. CODE § 311. book, picture, print or figure; . Every person who wilfully and lewdly, either: 6. is guilty of a misdemeanor. 3. Writes, composes, stereotypes, prints, pub- Roth v. United States, 354 U.S. 476, 481 lishes, sells, distributes, keeps for sale, or (1957). Justice Brennan was joined by Justices exhibits any obscene or indecent writing, Frankfurter, Burton, Clark, and Whittaker. paper, or book; or designs, copies, draws, 6Roth v. United States, 354 U.S. 476, 484 engraves, paints, or otherwise prepares any (1957) (citations omitted). obscene or indecent picture or print; or TRoth v. United States, 354 U.S. 476, 485 molds, cuts, casts, or otherwise makes any (1957). A LOOK AT OBSCENITY The majority then disposed of poten- This test implied a rejection of the tial constitutional objections to its hold- English standard known as the Hicklin ing. It rejected contentions that obscene test, which allowed material to be judged speech should be judged by the clear and merely by the effect of an isolated ex- present danger test of Schenck" or its cerpt upon particularly susceptible per- variation in Dennis9 by declaring the test sons. 1 2 The latter test might well encom- irrelevant in view of the holding that ob- pass material legitimately treating sex, scenity was not protected speech. and therefore was unconstitutionally re- The Court then took up the standards strictive of the freedoms of speech and for judging obscenity. It noted that sex press. and obscenity were not synonymous, but Having disposed of the main issues, rather that obscenity was material which Justice Brennan turned to some of the dealt with sex in a manner appealing to other arguments put forth by the defend- prurient interest. It defined prurient in- ants. He found that the federal ob- terest as material having a tendency to scenity statute and the California statute excite lustful thoughts. It perceived no gave adequate notice in their language significant difference between the meaning of what was prohibited, even though dif- of obscenity developed in the case law ferent juries might reach different con- and the definition of the American Law clusions about the same material, and Institute's Model Penal Code, viz.: therefore did not offend due process re- A thing is obscene if, considered as a quirements. He also rejected Roth's whole, its predominant appeal is to pru- contention that the first amendment re- rient interest, i.e., a shameful or morbid moves obscenity from the range of Con- interest in nudity, sex, or excretion, and gressional power when it states that if it goes substantially beyond customary "Congress shall make no law . abridg- limits of candor in description or repre- sentation of such matters.10 ing the freedom of speech, or of the press S. ." and that as a result jurisdiction over The Court found that the following test obscenity is reserved by the ninth and had evolved in the American courts: tenth amendments to the states and to [W]hether to the average person, apply- the people. This argument fell in the ing contemporary community standards, light of the Court's previous holding that the dominant theme of the material taken obscenity was not expression protected as a whole appeals to prurient interest.1 by the first amendment, and, instead, Jus- tice Brennan held that the postal power delegated to Congress by Article I of the Constitution gave Congress the right to 8 Schenck v. United States, 249 U.S. 47 (1919). 9Dennis v. United States, 341 U.S. 494 regulate the use of the mails. He then (1951). rejected Alberts' attempt to turn the last 10 MODEL PENAL CODE § 207.10(2) (Tent. Draft No. 6, 1957). -Roth v. United States, 354 U.S. 476, 489 12The Queen v. Hicklin, [1868] 3 Q.B. 360, (1957). 371. 13 CATHOLIC LAWYER, AUTUMN 1967 the argument to Alberts' own favor by al- He saw three basic difficulties in he was apprehen- leging that Congress had pre-empted the majority opinion. First, con- regulatory field by enacting the federal sive that the Court's framing of the obscenity statute. The federal statute dealt stitutional issue in abstract terms and its only with actual mailing; it did not elim- holding that obscenity was not protected inate state power to punish keeping for because it was utterly without redeem- make the sale or advertising obscene material. ing social importance might question of whether a particular book Chief Justice Warren, in his concur- was obscene merely a matter of fact to be ring opinion,1 3 took an entirely different entrusted to a fact-finder whose judgment approach to the Roth-Alberts cases.
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