U.S. Supreme Court Supports Local Obscenity Laws

By allowing local communities to set standards of obscenity, two U.S. Supreme Court decisions expanded the definition of materials that could be judged “obscene” and thus vulnerable to state repression and control. The decision impacts lesbians and gays because “community standards,” and thus public morality, are often antigay and antilesbian and likely to define any material addressing homosexuality or bisexuality as “obscene.”

Date June 21, 1973

Also known as:Miller v. California; Paris Adult Theatre I v. Slaton

Locale Washington, D.C.

Summary of Event

In the landmark case of Roth v. United States (1957), the U.S. Supreme Court held that the First Amendment did not protect obscene materials. Thereafter, the problem became how to define “obscene,” so that these materials could be regulated while protected materials, even pornographic ones, remained free. For a time, the explicit test was whether the publication was “utterly without redeeming social value,” part of the 1966 definition in the “Fanny Hill” case, Memoirs v. Massachusetts. Because almost everything can be construed to have at least some social value, the Memoirs test was a liberal standard that allowed regulation of only the hardest-core obscenity.

With the addition of new, more conservative justices, the Court on June 21, 1973, enunciated a more restrictive standard in Miller v. California. This case arose when a dealer mailed an unsolicited advertisement for adult materials to a California citizen. In place of the Memoirs test, Miller announced a new test to define “obscene”: The trier of fact must ask

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the 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 this work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The third prong of the definition decreases the opportunity for a pornographic piece to be “saved” because of its contribution to society. Whereas under Memoirs the item would be protected if it had any social value at all, after Miller it must have “serious” value of a limited type. Although the second prong requires the forbidden acts to be described with specificity, in practice this standard has been very low, to the point that some judges find the state laws to be impermissibly vague.

It is upon the first prong, however, that debate continues to dwell. It establishes “community standards” as the test to find material obscene, narrowing the earlier practice. Jacobellis v. Ohio (1964) said that the standards of the Roth test were national, not state or local. (Jacobellis is also the case that contains Justice Potter Stewart’s famous comment about obscenity, “I know it when I see it.”) Miller expressly rejects this interpretation, allowing the jury to consider the standards of California instead.

Announced at the same time as Miller was another obscenity case, Paris Adult Theatre I v. Slaton. In Paris, an adult movie theater in Atlanta was prohibited from showing films the owner conceded were obscene. The defendant argued that because these films were shown only to consenting adults, their screening was protected. The argument highlights a significant legal difference between Miller and Paris: While Miller addressed the case of unwilling viewers of obscene materials, in Paris, everyone in the theater had paid to view the films in full knowledge of their content.

The Supreme Court had earlier, in Stanley v. Georgia (1969), held unconstitutional a Georgia law that prohibited the private possession of obscene materials to be viewed in the privacy of one’s home. In Paris, however, the Court rejected any extension of Stanley to support a claim that “obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.” Because the state has an interest in “the quality of life and the total community environment,” it could restrict commerce in activities that were reasonably believed to have unsavory secondary effects.

The more general significance of Paris perhaps rests in the dissent by Justice William J. Brennan. The original author of the Roth opinion, he had come to the reluctant conclusion that any attempt to define “obscenity” would be unconstitutionally vague. Because obscenity that could be regulated could not be reliably separated from “other sexually oriented but constitutionally protected speech,” the entire effort should be abandoned. “Booksellers, theatre owners, and the reading and viewing public” are provided no notice beforehand about what is criminally obscene and thus cannot act to avoid that material until it has been identified by a majority of the justices of the Supreme Court.

Significance

Reliance upon local community standards provided a new tool to antipornography crusaders. Once personal jurisdiction over a national distributor has been obtained through advertising or mail order, it becomes subject to the most restrictive local standards in the country. This has led to what has been called “the lowest common denominator” standard for sexually explicit materials, including materials showing same-gender sexuality.

The use of local community standards is not unlimited. While it has been judged appropriate to label an item “obscene,” national standards continue to apply when determining whether a work lacks serious value (see Pope v. Illinois, 1987). Another limiting factor is the Court’s practice of de novo review for material to determine if it is obscene, which undercuts the application of local community standards. The Court often avoids the direct conflict of substituting its own judgment in place of the findings of a local trier by focusing on the third, or national standard, prong.

The advancing edge of obscenity law will continue to be the issue of the community standard. If videos and other materials can be downloaded directly from the Internet, it is an unresolved question as to which “local community” standards should be applied to find the material obscene, perhaps undermining the settled definitions of Miller. Further, if these materials are distributed solely electronically, it is unlikely that the community secondary impacts that allowed regulation of obscene materials in Paris still apply.

Bibliography

Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996.

Marcuse, Ludwig. Obscene: The History of an Indignation. Translated by Karen Gershon. London: MacGibbon & Kee, 1965.

Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: New York University Press, 2000.