Obscenity: sale and possession
Obscenity laws regarding sale and possession address the complex interplay between societal standards, individual rights, and legal regulations concerning materials deemed obscene. In the United States, the Supreme Court has established a framework that differentiates between the possession of obscene materials in private spaces and the distribution or sale of such materials. While individuals possess the right to privately own obscene materials, this right is not mirrored in the ability to sell or distribute them; such activities may be regulated by state and local governments based on prevailing community standards.
The Supreme Court's pivotal rulings, such as Roth v. United States and Miller v. California, outline specific criteria for defining obscenity, emphasizing factors like prurient interest, community standards, and the lack of redeeming social value. Notably, these rulings afford states greater leeway in regulating obscene materials directed towards minors, whereby stricter standards apply to protect younger audiences. In contrast, the Court's decision in Stanley v. Georgia reinforces the right to possess obscene materials, highlighting a tension between the right to receive information and the regulation of distribution. Overall, the legal landscape surrounding obscenity remains a nuanced area of law, reflecting broader societal values and the ongoing debate over free expression versus moral standards.
Subject Terms
Obscenity: sale and possession
DEFINITION: The marketing and ownership of materials that mainstream society regards as obscene
SIGNIFICANCE: The U.S. Supreme Court has protected the right to possess obscene materials in one’s home, while allowing some censorship of obscene materials by jurisdictions using contemporary local community standards
In Roth v. United States (1957), the Supreme Court developed a complex doctrine defining obscenity and establishing rules that governed who may possess obscene material and under which circumstances it may be sold or distributed. The Court’s doctrine on the sale and distribution of obscene materials appears to contradict other decisions concerning its private possession.
Distribution to Adults
In Roth, the Court followed long-standing precedent and ruled that obscene materials do not enjoy First Amendment protection, thus allowing the federal government to punish those who send such materials through the mail. State and local governments also may punish those individuals who sell, or who possess with the intent to sell, obscene materials. However, during the same year, the Court also maintained that Michigan could not punish individuals who made literature available to the adult population that would “manifestly tend to corrupt the morals of youth.” Through Butler v. Michigan (1957), the Court declared that such a law would have the effect of reducing the entire population of Michigan to reading only what was fit for children.
In three separate cases in 1966, the Court attempted to clarify when states could punish individuals who distributed obscene materials. In Memoirs v. Massachusetts (1966), the Court explained that before a state may restrict a work, it must meet three conditions. First, the work’s dominant theme, taken as a whole, must appeal to a prurient interest in sex. Second, the work must be patently offensive, violating contemporary community standards involving sexual matters. Third, the work must be utterly without any redeeming social value. In the companion case, Ginsberg v. State of New York (1968), the Court asserted that a state or locality may punish a distributor if the “commercial exploitation of erotica [is] solely for the sake of their prurient appeal,” even if the work might not be obscene in other circumstances. Finally, the Court contended through Mishkin v. New York (1968), that obscene works distributed to certain “deviant” groups need only to appeal to the prurient interests of that group and not to society as a whole before the works can be restricted.
In Miller v. California (1973), the Supreme Court rejected a national community standard on obscenity and thus allowed communities to restrict works they felt were obscene. The Miller case refined the Memoirs definition of obscenity, and reduced the constitutional barriers limiting state attempts to regulate obscenity. With the Miller case, states and communities could regulate materials that they defined as obscene using the Miller test, sometimes called the three-prong obscenity test. This test considers three dimensions of obscenity to determine if the situation in question is protected by the First Ammendment. Although the Court allowed states broader regulatory powers concerning obscene materials, the Court overturned a conviction in Jenkins v. Georgia (1974) by asserting that local juries applying contemporary community standards are not free from First Amendment boundaries.
Distribution to Minors
The Supreme Court did not, however, allow states broad regulatory powers when it came to minors. Three cases illustrate the progression of the obscenity distribution doctrine regarding minors. In Redrup v. New York (1967), the Court stated that it would only uphold as constitutional those antiobscenity laws prohibiting distribution to juveniles, along with those prohibiting obscene materials from being foisted upon an unwilling audience. In Ginsberg v. New York, the Court clarified its stand on the distribution of obscene materials to minors, and declared that a state could only regulate obscene materials with respect to minors if that material satisfied three requirements. Above all, the work or material could have no redeeming social importance for minors. Additionally, the work had to have a predominant appeal to the prurient interest of minors, and the material had to be patently offensive to the prevailing community standards of what was suitable materials for minors.
The Court further justified this more conservative position on distribution concerning minors in 1982 with the decision in New York v. Ferber. With this case, the Supreme Court declared that states are “entitled to greater leeway in the regulation of pornographic depictions of children.” Because the state “bears so heavily and pervasively on the welfare of children . . . it is permissible to consider these materials without first amendment protection.” Although the Court regarded minors as a separate category concerning distribution, it maintained, through its decision in Pinkus v. United States, that a community could not include children in the concept of the “local community.” Rather, when determining obscenity, communities could only punish the relevant forms of distribution.
Possession
When it came to the possession of obscene materials, the Supreme Court was not as conservative as it had been concerning the distribution of such materials. In Stanley v. Georgia (1969) the Court ruled that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” While the states still retained broad powers to censor the sale of obscenity, these powers simply did not extend into the privacy of the home. To justify this position, a unanimous Supreme Court cited First Amendment protection for an individual to receive information and ideas, regardless of their social worth, and a right of privacy to possess materials which satisfy one’s emotional and intellectual needs.
With the Stanley decision, the Court caught itself in a contradiction. If someone has the right to possess obscene materials in the privacy of the home, then logically someone else should have at least the limited right to sell or distribute that material to those with a right to privately possess it. After all, if according to the Court, one has the right to receive information or ideas regardless of their social worth, then prohibiting the distribution of such materials should be a violation of the right to receive the material.
Other lower courts saw this contradiction. The Supreme Court, however, refused to correct this contradiction, while reasserting through United States v. Films in 1972, that the right to privately possess obscene materials did not afford a “correlative right to acquire, sell, or import such material even for private use.” The Court also rejected an argument that prohibition of possession was necessary to enforce a prohibition on the sale or distribution of such items. The right to read or observe, the Court stated, is dominant, and “its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws.” However, the Court still maintains that while one has the right to possess obscene materials, one does not necessarily have the right to acquire them.
Bibliography
"Citizen's Guide to U.S. Federal Law on Obscenity." U.S. Department of Justice, 11 Aug. 2023, www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-obscenity. Accessed 20 Nov. 2024.
De Grazia, Edward. Censorship Landmarks. R.R. Bowker Company, 1969.
MacMillan, P. R. Censorship and the Public Morality. Gower, 1983.
Shaughnessy, Edward. A Standard for Miller: A Community Response to Pornography. UP of America, 1980.