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The Return of Variable Obscenity Frederick F Hastings Law Journal Volume 28 | Issue 6 Article 1 1-1977 The Return of Variable Obscenity Frederick F. Schauer Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Frederick F. Schauer, The Return of Variable Obscenity, 28 Hastings L.J. 1275 (1977). Available at: https://repository.uchastings.edu/hastings_law_journal/vol28/iss6/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. The Return of Variable Obscenity? By FREDERICK F. SCHAUER* One of the more interesting developments in contemporary first amendment doctrine has been the Supreme Court's gradual elimination of the definitional approach to free speech cases. Under this approach, certain classes of utterances, by definition, are wholly outside of the meaning of the word "speech" as used in the first amendment, and may thus be regulated by the state without regard for the higher standards of justification normally imposed upon a state before it may regulate speech. By focusing the inquiry at the definitional point, the Court has, in these areas, avoided the necessity of evaluating the state's inter- est in regulating these utterances. Recent cases, however, have demonstrated the Court's dissatis- faction with this approach. The entire category of libel was, at one time, thought not to be speech at all, and therefore libelous utterances were completely without any first amendment protection.' First for public officials, 2 then for public figures generally,3 and finally to a limited extent for private individuals,4 the Court has recognized that even libelous statements may express ideas and thus are entitled to at least some first amendment protection.5 As a result, libel is no longer wholly excluded from the reach of the first amendment, and its charac- terization as "nonspeech"6 is no longer appropriate.' Similarly, com- mercial speech was once thought to be completely outside of the pro- * A.B., 1967, M.B.A., 1968 Dartmouth College; J.D., 1972, Harvard Law School. Associate Professor of Law, West Virginia University College of Law. 1. Beauharnais v. Illinois, 343 U.S. 250 (1952). 2. New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Garrison v. Louisiana, 379 U.S. 64 (1964). 3. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 4. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 5. Id. 6. This term comes from N. DORSEN, P. BENDER & B. NEUBORNE, I EMERSON, HABER & DORSEN'S POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES 52 (4th ed. 1976). 7. Id. at 657. [1275] THE HASTINGS LAW JOURNAL [Vol. 28 tection of the first amendment,' but it is now recognized as speech of some sort, requiring a much closer evaluation of the state's rationale for its regulation.9 Even "fighting words," which provided the first op- portunity for the Court to enunciate the "nonspeech" doctrine," ' are now entitled to some first amendment protection. 1' Until very recently, obscenity remained as the only area of strict application of a definitional approach, with the Court generally ad- hering to the basic principles of Roth v. United States12 in holding ob- scenity to be completely without first amendment protection. 13 Yet the decision in Young v. American Mini Theatres, Inc.,'14 upholding zoning restrictions on sexually explicit materials which were not definitionally obscene, may presage the demise of the definitional approach even for obscenity. An exploration of this possibility and its ramifications is the purpose of this article. Young, however, does not represent the Court's first foray away from the definitional approach in dealing with obscenity. In 1960, Dean Lockhart and Professor McClure of the University of Minnesota Law School advocated an approach known as "variable obscenity," under which the obscenity of the materials in question would be eval- uated by looking to the context of their distribution and the state's in- terest in this particular form of regulation.15 This approach re- 8. Valentine v. Chrestensen, 316 U.S. 52 (1942); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973). See generally Redish, The First Amendment in the Market Place: Commercial Speech and the Value of Free Expression, 39 GEo. WASH. L. REv. 429 (1971); Note, Commercial Speech-An End in Sight to Chrestensen, 23 DEPAUL L. REV. 1258 (1974). 9. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Bigelow v. Virginia, 421 U.S. 809 (1975). 10. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 11. Cohen v. California, 403 U.S. 15 (1971). The Court has not expressly re- pudiated the fighting words doctrine, and the line between Cohen and Chaplinsky re- mains unclear. See, e.g., Plummer v. City of Columbus, 414 U.S. 2 (1973); Lewis v. City of New Orleans, 408 U.S. 913 (1972); Brown v. Oklahoma, 408 U.S. 914 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972). See generally Shea, "Don't Bother to Smile When You Call Me That"-Fighting Words and the First Amendment, 63 Ky. L.J. 1 (1975). However, the recent cases have made it clear that words must incite or create a clear and present danger before they can be considered fighting words. Since this degree of provocation would justify sanctions even if the words were speech, there is thus no longer any doctrinal substance to the "nonspeech" approach. See Branden- burg v. Ohio, 395 U.S. 444, 447 (1969); Schenck v. United States, 249 U.S. 47, 52 (1919). 12. 354 U.S. 476 (1957). 13. Id. at 481-85. 14. 427 U.S. 50 (1976). 15. Lockhart and McClure did not actually create the concept of variable ob- July 1977] THE RETURN OF VARIABLE OBSCENITY? presented a marked departure from the constant obscenity 6 approach represented by Roth, and was very much in evidence in a number of obscenity decisions of the 1960's. But by the 1970's the variable ap- proach had become dormant, and it was not until Young that it reap- peared. While a variable approach to the concept of obscenity may be analytically sound, and while it may suggest possibilities for greater personal freedom and more breathing room for first amendment values, its actual application has in the past been just the opposite. Young suggests that its reincarnation may have similar dangers, and it may very well be that obscenity ought to remain as the last bastion of the definitional approach to free speech. The History of Variable Obscenity The Concept Explained 7 The basic principle of variable obscenity is that the determination of obscenity can only be made in the context of the material's distri- bution. This evaluation seems to involve three facets-the purpose of the distributor, the manner of distribution, and to whom the material is distributed. The concept of variable obscenity first seemed to develop in the context of the first facet, focusing on the motivation of the distributor of the material. Thus, in Roth v. United States,'" Chief Justice Warren expressed some dissatisfaction with the reasoning of the majority opinion, since the conduct of the accused was not a factor in making the determination of the degree of constitutional protection to be af- forded: scenity, but their 1960 article is the first clear explanation and theoretical justification for the principle. Lockhart & McClure, Censorship of Obscenity: The Developing Con- stitutional Standards, 45 MINN. L. REv. 5, 68-88 (1960) [hereinafter cited as Censorship of Obscenity]. See also Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 938-39 (1963); Gerber, A Suggested Solution to the Riddle of Obscen- ity, 112 U. PA. L. REv. 834 (1964); Lockhart & McClure, Obscenity Censorship: The Core Constitutional Issue-What is Obscene?, 7 UTAH L. REV. 289 (1961); Lockhart & McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN L. REv. 295 (1954). 16. Lockhart and McClure define the constant obscenity approach as one in which the "material categorized as obscene is always obscene at all times and places and in all circumstances . ." Censorship of Obscenity, supra note 15, at 68. In contrast, the variable approach characterizes obscenity as "a chameleonic quality of material that changes with time, place, and circumstance." Id. 17. The general description of the principles of variable obscenity contained here is a synthesis of the ideas expressed by Lockhart and McClure and the other commenta- tors whose works are cited in the previous footnote. 18. 354 U.S. 476 (1957). 1278 THE HASTINGS LAW JOURNAL [Vol. 28 It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.19 Thus, the concept of variable obscenity would recognize that the same material might be distributed for different purposes. If the distributor were attempting to convey an idea or create serious literature, then the material would not be considered obscene. But if the distributor were attempting solely to profit from human weakness for the sexually ex- plicit, then the material could be considered obscene and the distributor punished. As a result, the idea of pandering is a central theme in the variable obscenity principle.
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