Federal Precedents
Table of Contents
Roth v. United States
Roth v. United States points out that people have always thought that obscenity should be restrained. I also agree that obscenity should be restrained, to keep it from the unwilling. But Roth, citing this tradition, claims that obscenity is excluded from the first amentdment. To that I must disagree.
Roth mentions that the main reason for free speech is to facilitate the exchange of ideas, and that certain narrow classes have been considered unprotected, and that the interest in upholding order and morality outweighs the value to truth these categories offer society.
While I agree that to uphold order obscenity should be kept from the unwilling, I disagree that the imposition of the majority's version of "morality" remains a valid government objective in the aftermath of Lawrence v. Texas.
Roth dismisses concerns that constitutional rights are being violated by punishing obscene speech itself, for merely inciting certian thoughts and nothing more, by simply saying that these rights don't exist.
Roth speaks of how the trial judge instructed the jury to consider the impact based on "all those whom it is likely to reach". Roth dealt with public distribution, including advertising.
Roth offers us no reason to believe that considering the "average person" is appropriate anywhere other than in a case where the average person is indeed likely to encounter the obscene material, such as with unhindered public distribution.
Relevant Quotes
"In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance."
"All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained…"
"We hold that obscenity is not within the area of constitutionally protected speech or press."
"It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:
"The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.""
"The test in each case is the effect of the book, picture or publication considered as a whole not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community."
"…you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious – men, women and children."
"In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material…"
From the Dissent
"The standard of what offends "the common conscience of the community" conflicts, in my judgment, with the command of the First Amendment that "Congress shall make no law … abridging the freedom of speech, or of the press." Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned?"
"I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct."
"Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor."
"I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression the judgment of the Court that a particular form of that expression has "no redeeming social importance." The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position."
"I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field."
Stanley v. Georgia
Stanley v. Georgia approaches the issue from the other side, declaring that the mere possession of obscenity in the privacy of one's own home is protected, and that it is not constitutional to premise legislation on wanting to control someone's thoughts.
Although Roth rejected having a need to show any particular reason for banning obscenity, that case involved public distribution which may cause exposure to the unwilling, unlike the private possession in Stanley. In other words, Stanley is suggesting that the risk of unwilling exposure was itself the reason for the ban.
Following this logic, obscenity should be treated as "unprotected" if it disturbs the public, and "protected" if it does not.
Relevant Quotes
"…[Georgia] contends that, since "obscenity is not within the area of constitutionally protected speech or press" (Roth v. United States), the States are free, subject to the limits of other provisions of the Constitution, to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens."
"It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment."
"None of the statements cited by the Court in Roth for the proposition that "this Court has always assumed that obscenity is not protected by the freedoms of speech and press" were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination."
"Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far."
"This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case – a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home – that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."
"If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
"But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public. No such dangers are present in this case."
"We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home."
Reidel v. United States
Reidel v. United States stresses how Stanley claims not to have impaired the holding of Roth, which to Reidel means the rejection of obscenity as protected speech. But it could just as well have meant that the ability of the state to regulate public distribution, which risks unwilling exposure to obscenity, is not impaired.
Roth dealt with a case that certainly did implicate the rights of the public to not have obscenity imposed on them, whereas Stanley dealt with a case that certainly did not. Reidel sits between the two, involving distribution to people who at least claimed to be adults and wanted the material.
Neither Roth nor Stanley answers the question finally presented in Reidel about what to do when there is, at least some, access control.
The final conclusion turns entirely on whether you believe that the first amendment protects all speech where no action is involved, or whether you believe in historical exceptions like obscenity, profanity, and blasphemy.
I contend that reading Roth to place obscenity completely outside of free speech protections disrespects the right of the people not only to think their own thoughts, but also to communicate those thoughts to other like-minded people in a responsible manner, even if the thoughts in question might offend the average person. Reidel refuses to do this, and so gives its blessing to government programs of thought control directed not at an individual, but at a group of people whose views and attitudes are disfavored by the majority.
Relevant Quotes
"Relying on the statement in Stanley that "the Constitution protects the right to receive information and ideas … regardless of their social worth," the trial judge reasoned that "if a person has the right to receive and possess this material, then someone must have the right to deliver it to him." He concluded that ยง1461 could not be validly applied "where obscene material is not directed at children, or it is not directed at an unwilling public, where the material such as in this case is solicited by adults. …" The District Court gave Stanley too wide a sweep."
"But Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment, and they remain there today. Stanley did not overrule Roth, and we decline to do so now."
"It is urged that there is developing sentiment that adults should have complete freedom to produce, deal in, possess, and consume whatever communicative materials may appeal to them, and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age."
"This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments."
Lawrence v. Texas
Consider an act of private distribution of obscenity, or of an obscene performance, between two consenting intimate partners done only in the pravicy of their own home. Such an event bears a striking similarily to the question that Lawrence v. Texas dealt with of private homosexual conduct between two people.
The notion that the state has the authority to criminalize such a private event is inconsistent with the precedent set by Lawrence, which declares that the government may not use a tradition of "morality" as justification for the majority to criminalize actions they personally disagree with.
Such justifications were the reasons why obscenity, profanity, and blasphemy were considered unprotected speech, and therefore criminalized. I think it would also be fair to say that hate speech, if not for our modern understanding of the first amendment, would also have suffered the same fate.
Relevant Quotes
"Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
"The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."
"It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey"
"In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.".
JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.""
"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Conclusion
Roth, Stanley, and Reidel together brought us the view that "obscenity is unprotected speech". But these precedents fail to fully recognize the liberties of those who value obscene material in the same way that Bowers v. Hardwick, later overturned by Lawrence v. Texas, failed to recognize the liberties of homosexuals.
Our rights were lost at the point when the court in Reidel failed to believe they needed to perform any analysis regarding the facts of the access controls in use there. Instead, they just assumed that Roth granted broad control to consider obscenity unprotected, no matter what the facts on the ground.
The government's power to regulate obscenity ends at the point where there is no unwilling exposure, and that is when the right to be free in our thoughts, and to communicate those thoughs to others, begins. An acknowledgment of these rights would require the government to balance competing rights against each other, rather than automatically give the obscenity distributors the worst possible deal.
The constitutional attitude towards obscenity should be consistent with the attitudes towards profanity, blasphemy, and hate speech. Every pure speech category should be considered protected speech under the first amendment, as well as under similar guarantees in the many state constitutions.
The government already has the tools they need to address real problems in this area by targeting action, rather than speech. So-called "obscenity" is just a weapon used to oppress those who don't agree with the dominant religious perspective.
The supreme court's refusal to recognize our rights in Free Speech Coalition Inc. v. Paxton is a symptom of a much deeper problem. It is a continuation of a long-standing tradition of state-sponsored thought control which attempts to tell us how we should think about important aspects of our lives such as marriage, contraception, various forms of sexual activity, and even sexual arousal itself.