Happy Friday and welcome to the 19th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:
"Originally posted at Squarestate.net"
First Amendment Friday 1 - Abrams v US
First Amendment Friday 2 - Gitlow v New York
First Amendment Friday 3 - Whitney v California
First Amendment Friday 4 - Brandenbrug V Ohio
First Amendment Friday 5 - Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 - New York Times V Sullivan
First Amendment Friday 8 - Butts V Curtis
First Amendment Friday 9 - Gertz v Welch Inc.
First Amendment Friday 10 - Hustler V Falwell
First Amendment Friday 11 - Bartniki V Vopper
First Amendment Friday 12- Landmark V Virginia
First Amendment Friday 13 - Nebraska Press Assoc. V Stuart
First Amendment Friday 14 - New York Times V. US - The Pentagon Papers
First Amendment Friday 15 - Gooding V. Wilson
First Amendment Friday 16 - Lovell v City of Griffin
First Amendment Friday 17 – Near V Minnesota
First Amendment Friday 18 - Roth V US
This week we continue to look at the issue of obscenity and the High Courts attempts to define it. As with last week the Dog can not believe the can of worms the Court opened with "prurient interest". This week the Justices continue to tie themselves in knots at they try to avoid a blanket definition which would not be constitutional and still let the small minded moralists of the nation suppress sexually explicate publications and films.
The Case
Miller v California: Mr. Miller was convicted of a misdemeanor under California law for mailing advertisements for sexually explicate books and a film.
The Facts:
Mr. Miller sent out a mass mailing in which he advertised for sale four books and a film which were called adult material. The advertisement included explicate pictures of men and women in couples and groups having sex.
This advertisement was sent to and address which was a restaurant where the manager and his mother both opened it.
The Procedural History:
Mr. Miller was indicted on a misdemeanor and convicted.
He appealed to the Appellate Division of the Orange County Superior Court. This Court upheld the conviction without comment, though a new argument that the community standards the lower court jury relied upon should really be national standards which would make the conviction unconstitutional under the First and Fourteenth Amendments.
Mr. Miller appealed the United States Supreme Court.
The Legal Issues:
Did the new test under Memoirs v Massachusetts which changed the standard of obscenity to include "utterly without redeeming social value" extend the States burden of proof too far?
What is a workable definition of obscenity?
The Majority Opinion:
As the Dog has said before, the High Court has really gotten itself into a trick bag with this issue. Part of the problem is the times; part of the problem is the fact the United States had and has a very dysfunctional and fractious relationship with sex and part of it is the fact "obscene" material has been suppressed in the past, but the Constitution makes no distinction between types of press in the freedoms it protects. The Chief Justice and the Majority take yet another swing at defining obscenity, as they are hell bent on protecting their assertion that obscene speech (in the form of print or photographs or films) can not be considered protected.
Since the Roth case the Court has been struggling with what obscenity is. This should have given them a clue this was not an area for the Court to get involved, but since they opened the door with Roth they had been trying to make it work.
The Chief Justice writes:
While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 459 (Harlan, J., dissenting). (WHITE, J., dissenting); United States v. Groner, 579581 (CA5 1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York,. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, (Harlan, J., concurring and dissenting) This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.
The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, and no Member of the Court today supports the Memoirs formulation
.
Chief Justice Burger is setting up going back on a fairly new test the Court had put into place. This is not the first time since Roth the Court has done this and it is cause for concern, both for those in the pornography business and the States who want to be sure they are enforcing laws correctly.
The Chief Justice spends a lot of time arguing the concerns which the two dissenting opinions bring up, the main one being this idea of prurient interest judged by community standards seems to be an invitation for the majority to impose its will on the minority and not just in issues of sexually explicate material.
In the end the Majority and the Chief Justice try to split the baby once again and put this test in place:
In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, and Roth v. United States, supra, , not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, Vacated and remanded.
The Chief Justice makes it clear they are going to stick to community standards, or the average person standard, for the time being. The Court gets rid of the "utterly without redeeming social value" hurdle and thus sets the test solely on the prejudices of the Judges and Jury’s which will hear these cases going forward. What the Majority does not do is provide in any sense a definition of obscene that can be known in advance of breaking the law.
The Dissent:
There are two dissents in this case, but the Dog is going to focus on Justice Douglas’s as it is more to the point than the dissent from Justice Brennan who merely focuses on the over broadness of the "without social value" test.
Justice Douglas lets the whole Court have it right between the eyes over this issue. It is clear he wants to be done trying to put a definition for the law on something as inherently personal as what is obscene. He starts:
Today we leave open the way for California [n1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law.
The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, , it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming social importance." The presence of a "prurient interest" was to be determined by "contemporary community standards.. The presence of a "prurient interest" was to be determined by "contemporary community standards." That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, but "on the basis of a national standard." My Brother STEWART, in Jacobellis, commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable.".
He then continues with:
A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641, where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."
But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, . Some condemn it if its "dominant tendency might be to ‘deprave or corrupt' a reader." Others look not to the content of the book, but to whether it is advertised "‘to appeal to the erotic interests of customers.'" Some condemn only "hard-core pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it."
Today we would add a new three-pronged test:
(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.
Those are the standards we ourselves have written into the Constitution. Yet how under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?
The point the Justice is making is vague laws can not be fairly enforced and therefore have to be unconstitutional under the Fourteenth Amendment. He is asking how a Court charged with the protection of the people from vague laws can institute a vague test of their own. He elaborates the harm this might cause, writing:
If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, and my views on the issue have been stated over and over again. But at least a criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test.
No such protective procedure has been designed by California in this case. Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.
He then makes a point about the nature of the First Amendment which the Dog thinks can not be made too often, Justice Douglas writes:
The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U.S. 1, 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.
To the Dog this is the core of why the speech should almost never be abridged. The purpose of the First Amendment was to protect the voices which will say things that upset the majority. It is intended to keep the conversation about what should and should not happen in our nation alive at all times. By allowing the misanthropes and malcontents to have their say, regardless of topic, we put up a wall against State control of media which is best defense against any abuse by the government.
Justice Douglas finishes with the only solution which he believes will settle the issue of what is and what is not obscene:
If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.
We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires [p47] that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.
Summary:
Living as we do 36 years after this case it is pretty clear what will happen eventually. At the time the High Court was struggling with the changing mores of the nation as well as their sincere desire to provide answers to the conflicts between the protections the Framers had bequeathed us and the desire from some communities to prevent sexually explicate material from being distributed. To the Dog they erred, again, on the side of censorship. The fact the Court could not and would not provide a clear definition of obscene should have been the entire clue they needed to know they were going the wrong direction, but they were not ready to throw in the towel at that time.
So, there is the case, what is your thinking on this Citizens? Should a community be able to use something as vague as obscene (which is in the eye of the beholder) to criminally punish other citizens? Or should we just let it all hang out and those who don’t like sexually explicate books, photos and films have to take the responsibility to stay away from them?
The floor is yours.
Housekeeping:
As always thanks to the Cornell School of Law and the Legal Information Institute for the access to this case. You can find it at this link.