The Oyez Project: First Amendment Issues - Obscenity, State Decisions

A Quantity Of Books v. Kansas

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Alberts v. California

Did the California Penal Code's obscenity provisions, criminalizing the selling and distribution of obscene literature, violate the freedoms of speech and press as guaranteed by the First and Fourteenth Amendments?

The Court, speaking through Justice William J. Brennan, Jr. held 6 to 3 that obscenity was not "within the area of constitutionally protected speech or press" (Brennan would later reverse his position on this issue in Miller v. California (1973)). The majority noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Justice John Marshall Harlan II concurred in Alberts but dissented in Roth.

Alexander v. Virginia

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Bantam Books, Inc. v. Sullivan

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Barnes v. Glen Theatre Inc.

Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee?

No. The Court was fractured and there was no majority opinion. Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

Brockett v. Spokane Arcades, Inc.

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Butler v. Michigan

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California v. Larue

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City of Littleton v. Z.J. Gifts D-4, L.L.C.

Did Littleton's adult business licensing ordinance violate the First Amendment protection of Free Speech because it did not guarantee a prompt judicial decision when a business appeals the denial of a license?

No. In an opinion by Justice Stephen G. Breyer, the Court held that Colorado did not have to explicitly provide for a "prompt judicial determination" to make the law constitutional. As long as Colorado courts did not unnecessarily delay such claims, the normal judicial review process could be expected to provide a decision quickly enough to satisfy the constitutional demands. If the courts failed to make a prompt decision in a specific case, the business in that particular case could sue, but the absence of explicit "prompt judicial determination" language in the statute did not make it unconstitutional.

City of Los Angeles v. Alameda Books, Inc.

May a city rely on a study it conducted to demonstrate whether an ordinance serves a substantial government interest?

Yes. In a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that the city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of section 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime. Three other Justices joined in this holding. Concurring, Justice Anthony M. Kennedy concluded that Los Angeles may impose its regulation in the exercise of the zoning authority, and that the city is not, at least, to be foreclosed by summary judgment. Justice David H. Souter, with whom Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer joined, dissented. Justice Souter argued that the 1977 study, while pursuing a policy of dispersing adult establishments, evolved to a policy of breaking-up combined bookstores/video arcades, for which the study's evidence was insufficient.

Erznoznik v. City Of Jacksonville

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Flynt v. Ohio

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Fort Wayne Books, Inc. v. Indiana

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Ginsberg v. New York

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Grove Press, v. Maryland State Board Of Censors

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Heller v. New York

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Interstate Circuit v. Dallas

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Jacobellis v. Ohio

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Jenkins v. Georgia

Did the manager's conviction violate the First and Fourteenth Amendments?

A unanimous Court held that the Georgia Supreme Court misapplied the obscenity test announced in Miller v. California (1973). Justice Rehnquist argued that Miller did not give juries "unbridled discretion" to determine what is patently offensive. Only material that displays "hard core sexual conduct" is prohibited. Since "Carnal Knowledge" did not contain scenes of that nature it merited constitutional protection.

Kaplan v. California

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Kingsley Books, Inc. v. Brown

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Kingsley Pictures Corp. v. Regents

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Massachusetts v. Oakes

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Mckinney v. Alabama

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Memoirs v. Massachusetts

Did the actions of Massachusetts violate the First Amendment?

The Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not "utterly without redeeming social value." The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were "patently offensive."

Miller v. California

Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (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 the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

Mishkin v. New York

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New York State Liquor Authority v. Bellanca

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New York v. Ferber

Did the law violate the First and Fourteenth Amendments?

No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment.

New York v. P. J. Video, Inc.

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Osborne v. Ohio

Did Ohio's ban on the possession of child pornography violate the First Amendment?

The Court held that Ohio could constitutionally proscribe the possession of child pornography. The Court argued that the case at hand was distinct from Stanley v. Georgia, "because the interest underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley." Ohio did not rely on "a paternalistic interest in regulating Osborne's mind;" rather, Ohio merely attempted to protect the victims of child pornography. The Court argued that regulations on production and distribution of child pornography were insufficient and could not dry up the market for pornographic materials. The Court also found that an error in jury instructions in the lower courts mandated Osborne be given a new trial.

Paris Adult Theatre v. Slaton

Did the Georgia injunction against the films violate the First Amendment's guarantee of freedom of expression?

In a 5-to-4 decision, the Court held that obscene films did not acquire constitutional protection simply because they were exhibited for consenting adults only. Conduct involving consenting adults, the Court argued, was not always beyond the scope of governmental regulation. The Court found that there were "legitimate state interests at stake in stemming the tide of commercialized obscenity," including the community's quality of life and public safety. The Court also noted that conclusive proof of a connection between antisocial behavior and obscene materials was not necessary to justify the Georgia law.

Pope v. Illinois

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Rabe v. Washington

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Redrup v. State Of N. Y.

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Renton v. Playtime Theatres Inc.

Did the Renton ordinance violate either the First or Fourteenth Amendment?

In a 7-to-2 decision, the Court held that the zoning ordinance did not violate the First and Fourteenth Amendments. The Court held that the ordinance was a form of time, place, and manner regulation, not a ban on adult theaters altogether. The Court reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community." The Court found that the ordinance was designed to serve a substantial governmental interest in preserving the quality of life and allowed for "reasonable alternative avenues of communication."

Roaden v. Kentucky

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Schad v. Mount Ephraim

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Smith v. California

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Splawn v. California

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Stanley v. Georgia

Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?

The Court held that the First and Fourteenth Amendments prohibited making private possession of obscene materials a crime. In his majority opinion, Justice Marshall noted that the rights to receive information and to personal privacy were fundamental to a free society. Marshall then found that "[i]f 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." The Court distinguished between the mere private possession of obscene materials and the production and distribution of such materials. The latter, the Court held, could be regulated by the states.

Vance v. Universal Amusement Co.

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Ward v. Illinois

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Young v. American Mini Theatres

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