Obscenity: A New Direction in Regulation, 4 J. Marshall J. of Prac. & Proc. 268 (1971)
The John MarshallJournal of Practiceand Procedure [Vol.
Obscenity: A New Direction in Regulation, 4 J. Marshall J. of Prac. & Proc. 268 (1971)
Leonard L. Lundy
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Article 6
A NEW
DIRECTION IN
In 1957 the Supreme Court announced that "obscenity is not
within the area of protected speech or press.",
While the Court
refused to extend constitutional protection to obscenity, it failed
to :provide a necessary standard which would separate protected
from unprotected speech.
The litigation which ensued created a
virtual arena of dilemma for the lower courts which were forced
to apply incomprehensible definitions of obscenity and rigid
procedural requirements mandated by the Supreme Court. In an
era of increasing social awareness, with a clamoring for the
preservation of individual freedom, Stanley v. Georgia,
re-examined for the first time the constitutional prohibition and extended
First Amendment protection to obscene materials in the privacy
of an individual's home.
This comment examines the development of obscenity
regulation in the United States in light of the First Amendment and
the Stanley doctrine.3
In addition this comment reviews recent
decisions in order to propose a multi-step method of judicial
decision-making which would avoid the pitfalls of today's
inadequate system of censorship.
FIRST AMENDMENT PROTECTION
That "Congress shall make no law.., abridging the freedom
of speech or of the press" is established by the First
Amendment.4
Although this choice of words gives every appearance
that the framers of this mandate sought to protect the
expression of all the beliefs, thoughts, and ideas of the American
citizenry, 5 the majority of the Supreme Court in Roth v. United
1 Roth v. United States, 354 U.S. 476, 485 (1957).
2 394 U.S. 557 (
1969
).
3 See text accompanying notes 178 through 238 infra.
4 U.S. CONST. amend. I.
5 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,
dissenting). James Madison, in exploring the sweep of the First
Amendment's limitation on the Federal Government, when he offered the Bill of
Rights to Congress in 1789, is reported as having said, "It]he right of
freedom of speech is secured; the liberty of the press is expressly declared
to be beyond the reach of this Government. . . ." (Emphasis added.) 1
Annals of Cong. 738. For reports of other discussions by Mr. Madison
see pp. 424-49, 660, 704-56. Eleven years later he wrote: "[w]ithout tracing
farther the evidence on this subject, it would seem scarcely possible to doubt
that no power whatever over the press was supposed to be delegated by the
Constitution, as it originally stood, and that the amendment was intended
as a positive and absolute reservation of it." 6 J. MADISON, WRITINrs 341,
391 (Hunt ed. 1906), and see generally 385-93, 399.
Thomas Jefferson's views of the breadth of the First Amendment's
prohibition against abridgment of speech and press by the Federal
Government are illustrated by the following statement he made in 1798:
[The First Amendment] thereby guard[s] in the same sentence, and
under the same words, the freedom of religion, of speech, and of the
press: insomuch, that whatever violates either, throws down the
sanctuary which covers the others, and that libels, falsehood, and defamation,
States,6 held obscenity not to be speech entitled to this
constitutional protection. The majority, per Justice Brennan, found that
although this phraseology is unconditional, the First Amendment
was not intended to protect every utterance.7
Although it is
settled constitutional doctrine that the dissemination of protected
"speech" may ordinarily be prohibited only where there is a
"clear and present danger" of resulting anti-social behavior,8 the
majority in Roth did not find it necessary to apply this standard.
They, instead, found that there was sufficient contemporary
evidence to show that obscenity, at the time of the enactment of the
First Amendment, was outside the protection intended for speech
and press,9 since it is utterly without redeeming social
importance. 10
This the Court noted, was "reflected in the international
agreement of over 50 nations, in the obscenity laws of all the 48
States, and in the 20 obscenity laws enacted by Congress from
The Justices of the Supreme Court, in addition to legal
scholars, have repeatedly remained divided as to the breadth of the
First Amendment.
Rarely has a majority of the Court agreed
in the reasoning used to arrive at a decision. 12 Instead they have
expressed their own views in separate concurring or dissenting
opinions.18
Two Justices, Douglas and Black, have consistently adhered
to the view that the First Amendment is absolute; that any
expression of ideas, even if not in accord with contemporary
comequally with heresy and false religion, are withheld from the cognizance
of federal tribunals.
8 T. JEFFERSON, WRITINGS 464-65 (Ford ed. 190 (...truncated)