LIBERTY - DEFINING THE OBSCENE

An item relating to the 21^st June 1973 has attracted my attention and caused me to ponder.

The things we write usually reflect the things we think and say. Our ability to think and say what we like is one of our most fundamental freedoms. Indeed, so much so that the very first amendment of the United States Constitution specifies the right to think, say and report whatever we like and to call upon the State to protect that right.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These rights and freedoms are not exclusive to the United States, and the constitution is not the first document to attempt to enshrine them in law. These rights are accepted by all civilised societies as having the force of law; however, they are under constant challenge. In particular the right of free speech and all that entails, e.g. the publication of the ‘speech’.

In the course of this ponder, I came across one William Lloyd Garrison who stated:

Garrison

"He who opposes the public liberty overthrows his own." Garrison was a prominent American abolitionist, journalist, and social reformer. He is best known as the editor of the abolitionist newspaper The Liberator, and was one of the founders of the American Anti-Slavery Society, he promoted "immediate emancipation" of slaves in the United States. Garrison was also a prominent voice for the women’s suffrage movement. In the first issue of The Liberator, Garrison stated:

I am aware that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or to speak, or write, with moderation. No! No! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; – but urge me not to use moderation in a cause like the present. I am in earnest – I will not equivocate – I will not excuse – I will not retreat a single inch – AND I WILL BE HEARD. The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead.

There are things to shout about!

A short while ago I commented:  it is unfortunate that in order to preserve the liberties we have, one must at times side with what may be reprehensible; but, the reprehensible usually has a way of exposing itself in the long run. It is certainly better and healthier to defend the principles of freedom and justice for all individuals, than for the state to imprison, crush or kill the innocent. And so we come to the vexed question of obscenity and censorship.

On the 21^st June 1973, in handing down the decision in Miller v. California 413 US 15, the Supreme Court of the United States establishes the Miller Test for obscenity in U.S. law. The following material is, I believe, worth a read.

The appellant, Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in pornography, had conducted a mass mailing campaign to advertise the sale of illustrated books, labelled "adult" material. Miller was convicted by the Superior Court of Orange County, California (the state trial court) of having violated California Penal Code 311.2 by mailing unsolicited sexually explicit material in violation of a California statute that fulfilled the criteria of the obscenity test formulated in the previous similar case of Memoirs v. Massachusetts. The jury was instructed to analyse California’s community standards of obscurity. The appellant’s case was affirmed on appeal. The content that was mailed was confirmed to be sexually explicit. It was found that the work, as a whole, did not have any serious literary, artistic, political, or scientific value and therefore did not obtain the protection of the first amendment (freedom of speech). This was considered a misdemeanour, by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice Warren Burger's majority opinion, the

Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures and complained to the police.

According to the Court's decision, the materials in question primarily... consist[ed] of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the Comstock laws that prevailed before Roth, articulated most famously in the 1868 English case Regina v. Hicklin, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce, and D. H. Lawrence were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material now meeting this test could be banned as "obscene."

Hugo Black and William O. Douglas, who were First Amendment literalists, chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the showing of a French film called Les Amants (French for The Lovers), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.

Pornography and sexually oriented publications proliferated as a result of the Court's holdings. The Sexual Revolution of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint strict constructionists to the Supreme Court.

Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote.

The question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of Freedom of Speech. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", specially that of hardcore pornography, thereby reaffirming part of Roth.

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited."

The Court, in an attempt to set such limits, devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:

1. whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

2. whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

3. "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."

The Miller decision vacated the Superior Court of California Appeals Court decision and remanded the case to that Court for further proceedings consistent with the First Amendment standards established by the opinion.

Miller provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged forum shopping to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts might not be considered "obscene" in Utah, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.

The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child pornography is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.

In American Booksellers Foundation for Free Expression v. Strickland, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants appealed the decision to the Sixth Circuit.

To be utterly without redeeming social importance is pretty damning stuff.