Obscenity: A New Direction in Regulation, 4 J. Marshall J. of Prac. & Proc. 268 (1971)

The John Marshall Law Review, Dec 1971

By Leonard L. Lundy, Published on 01/01/71

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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 Follow this and additional works at: http://repository.jmls.edu/lawreview Part of the Law Commons - 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)


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Leonard L. Lundy. Obscenity: A New Direction in Regulation, 4 J. Marshall J. of Prac. & Proc. 268 (1971), The John Marshall Law Review, 1971, Volume 4, Issue 2,