JOSEPH BURSTYN, INC VS. WILSON (1952)
Provisions of the New York Education Law which forbid the commercial showing of any motion picture film without a license and authorize denial of a license on a censor’s conclusion that a film is “sacrilegious,” held void as a prior restraint on freedom of speech and of the press under the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 497-506 . 1. Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. Pp. 499-502 . (a) It cannot be doubted that motion pictures are a significant medium for the communication of ideas. Their importance as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. P. 501 . (b) That the production, distribution and exhibition of motion pictures is a large-scale business conducted for private profit does not prevent motion pictures from being a form of expression whose liberty is safeguarded by the First Amendment. Pp. 501-502 . (c) Even if it be assumed that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression, it does not follow that they are not entitled to the protection of the First Amendment or may be subjected to substantially unbridled censorship. P. 502 . (d) To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230, is out of harmony with the views here set forth, it is no longer adhered to. P. 502 . 2. Under the First and Fourteenth Amendments, a state may not place a prior restraint on the showing of a motion picture film on the basis of a censor’s conclusion that it is “sacrilegious.” Pp. 502-506 . (a) Though the Constitution does not require absolute freedom to exhibit every motion picture of every kind at all times and all places, there is no justification in this case for making an [p*496] exception to the basic principles of freedom of expression previously announced by this Court with respect to other forms of expression. Pp. 502-503 . (b) Such a prior restraint as that involved here is a form of infringement upon freedom of expression to be especially condemned. Near v. Minnesota, 283 U.S. 697 . Pp. 503-504 . (c) New York cannot vest in a censor such unlimited restraining control over motion pictures as that involved in the broad requirement that they not be “sacrilegious.” Pp. 504-505 . (d) From the standpoint of freedom of speech and the press, a state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. P. 505 . 303 N.Y. 242, 101 N.E.2d 665, reversed.
Central Hudson Gas & Elec. Corp. v. Public Service Comm’n (1980)
Held: A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments. Pp. 561-572 . (a) Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Pp. 561-566 . (b) In this case, it is not claimed that the expression at issue is either inaccurate or relates to unlawful activity. Nor is appellant electrical utility‘s promotional advertising unprotected commercial speech merely because appellant holds a monopoly over the sale of electricity in its service area. Since monopoly over the supply of a product provides no protection from competition with substitutes for that product, advertising by utilities is just as valuable to consumers as advertising by unregulated firms, and there is no indication that appellant’s decision to advertise was not based on the belief that consumers were interested in the advertising. Pp. 566-568 . (c) The State’s interest in energy conservation is clearly substantial, and is directly advanced by appellee’s regulations. The State’s further interest in preventing inequities in appellant’s rates — based on the assertion that successful promotion of consumption in “off-peak” periods would create extra costs that would, because of appellant’s rate structure, be borne by all consumers through higher overall rates — is also substantial. The latter interest does not, however, provide a constitutionally adequate reason for restricting protected speech because the link between the advertising prohibition and appellant’s rate structure is, at most, tenuous. Pp. 568-569 . [p*558] (d) Appellee‘s regulation, which reaches all promotional advertising, regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the State’s interest in energy conservation which, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State’s interests. Pp. 569-571 . 47 N.Y.2d 94, 390 N.E.2d 749, reversed. Opinions POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 572 . BLACKMUN, J., post, p. 573 , and STEVENS, J., post, p. 579 , filed opinions concurring in the judgment, in which BRENNAN, J., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 583 .
“First Amendment Supreme Court Cases.” Anarchy TV. Web. 12 Sept. 2010. <http://www.anarchytv.com/speech/central.htm>.
A Book Named John Cleland’s Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts (1966)
Appellee, the Attorney General of Massachusetts, brought this civil equity action for an adjudication of obscenity of Cleland’s Memoirs of a Woman of Pleasure (Fanny Hill), and appellant publisher intervened. Following a hearing, including expert testimony and other evidence, assessing the book’s character but not the mode of distribution, the trial court decreed the book obscene and not entitled to the protection of the First and Fourteenth Amendments. The Massachusetts Supreme Judicial Court affirmed, holding that a patently offensive book which appeals to prurient interest need not be unqualifiedly worthless before it can be deemed obscene. Held: The judgment is reversed. Pp. 415-433 . 349 Mass. 69, 206 N.E.2d 403, reversed. Opinions MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE FORTAS, concluded that: 1. Under the test in Roth v. United States, 354 U.S. 476 , as elaborated in subsequent cases, each of three elements must independently be satisfied before a book can be held obscene: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value. P. 418 . 2. Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Supreme Judicial Court erroneously interpreted the federal constitutional standard. Pp. 419-420 . 3. On the premise, not assessed here, that it has the requisite prurient appeal, is patently offensive, and has only a modicum of social importance, evidence of commercial exploitation of the book for the sake of prurient appeal to the exclusion of all other values [p*414] might in different proceeding justify the conclusion that the publication and distribution of Memoirs was not constitutionally protected. Ginzburg v. United States, post, p. 463. Pp. 420-421 . MR. JUSTICE BLACK and MR. JUSTICE STEWART concur in the reversal for the reasons given in their respective dissenting opinions in Ginzburg v. United States, post, p. 476 and p. 497 and Mishkin v. New York, post, p. 515 and p. 518. P. 421 . MR JUSTICE DOUGLAS concluded that: 1. Since the First Amendment forbids censorship of expression of ideas not linked with illegal action, Fanny Hill cannot be proscribed. Pp. 426 ; 427-433 . 2. Even under the prevailing view of the Roth test the book cannot be held to be obscene in view of substantial evidence showing that it has literary, historical, and social importance. P. 426 . 3. Since there is no power under the First Amendment to control mere expression, the manner in which a book that concededly has social worth is advertised and sold is irrelevant. P. 427 . 4. There is no basis in history for the view expressed in Roth that “obscene” speech is “outside” the protection of the First Amendment. Pp. 428-431 . 5. No interest of society justifies overriding the guarantees of free speech and press and establishing a regime of censorship. Pp. 431-433 .
“First Amendment Supreme Court Cases.” Anarchy TV. Web. 12 Sept. 2010. <http://www.anarchytv.com/speech/cleland.htm>.
Cohen v. California (1971)
Appellant was convicted of violating that part of Cal.Penal Code § 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct,” for wearing a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse. The Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 22-26. 1 Cal.App.3d 94, 81 Cal.Rptr. 503, reversed. Opinions HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 27.
Hague v. Committee for Industrial Organization (1939)
In a suit to enjoin municipal officers from enforcing ordinances forbidding the distribution of printed matter, and the holding without permits of public meetings, in streets and other public places, Held: 1. The case is within the jurisdiction of the District Court. Pp. 512-513 , 525 . 2. The ordinances and their enforcement violate the rights under the Constitution of the individual plaintiffs, citizens of the United States; but a complaining corporation cannot claim such rights. P. 514 . 3. The ordinances are void. Pp. 516 , 518 . [p*497] 4. Provisions of the decree enjoining forcible removal of plaintiffs or exercise of personal restraint over them without warrant, or confinement without lawful arrest and production for prompt judicial hearing, saving lawful search and seizure, or interference with their free access to streets, parks or public places of the city — are not vague and impracticable. P. 517 . 5. The decree properly enjoined interference with the right of plaintiffs, their agents etc., to communicate their views as individuals to others on the streets in an orderly and peaceable manner, reserving the right of defendants to enforce law and order by lawful search and seizure or arrest. P. 517 . 6. Insofar as the decree relates to distribution of literature and holding of meetings, the decree should enjoin enforcement of the void ordinances, and not undertake to enumerate the conditions under which those activities may he carried on. P. 518 . —– Opinions PER ROBERTS, J., with whom BLACK, J., concurred. The CHIEF JUSTICE concurred in part (p. 532 ). 1. The District Court lacked jurisdiction under Jud.Code § 24(1). P. 508 . (a) In suits under § 24(1), a traverse of the allegation as to the amount in controversy, or a motion to dismiss based upon the absence of such amount calls for substantial proof on the part of the plaintiff of facts justifying the conclusion that the suit involves the necessary sum. P. 507 . (b) The record in this suit is bare of any showing of the value of the asserted rights to the complainants individually. P. 508 . (c) Complainants may not aggregate their interests in order to attain the requisite jurisdictional amount. P. 508 . 2. The District Court had jurisdiction under Jud.Code, § 24(14). P. 513 . (a) Freedom to disseminate information concerning the provisions of the National Labor Relations Act, to assemble peaceably for discussion of the Act and of the opportunities and advantages offered by it, is a privilege or immunity of a citizen of the United States secured against state abridgment by § 1 of the Fourteenth Amendment, and R.S. § 1979 and Jud.Code § 24(14) afford redress in a federal court for such abridgment. P. 512 . (b) Natural persons alone are entitled to the privileges and immunities which § 1 of the Fourteenth Amendment secures to [p*498] “citizens of the United States.” Only the individual complainants may maintain this suit. P. 514 .
“First Amendment Supreme Court Cases.” Anarchy TV. Web. 12 Sept. 2010. <http://www.anarchytv.com/speech/hague.htm>.
Hazelwood School Dist. v. Kuhlmeier (1988)
Respondents, former high school students who were staff members of the school’s newspaper, filed suit in Federal District Court against petitioners, the school district and school officials, alleging that respondents’ First Amendment rights were violated by the deletion from a certain issue of the paper of two pages that included an article describing school students’ experiences with pregnancy and another article discussing the impact of divorce on students at the school. The newspaper was written and edited by a journalism class, as part of the school’s curriculum. Pursuant to the school’s practice, the teacher in charge of the paper submitted page proofs to the school’s principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article’s references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father’s conduct, and the principal believed that the student’s parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed. Held: Respondents’ First Amendment rights were not violated. (a) First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. (b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums [p*261] only if school authorities have, by policy or by practice, opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper’s production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher’s control as to almost every aspect of publication. The officials did not evince any intent to open the paper’s pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper’s contents in any reasonable manner. (c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 , distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns. (d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper. 795 F.2d 1368, reversed. Opinions WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O’CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 277 . [p*262]
“First Amendment Supreme Court Cases.” Anarchy TV. Web. 12 Sept. 2010. <http://www.anarchytv.com/speech/hazel.htm>.
Jacobellis v. Ohio (1964)
Appellant, manager of a motion picture theater, was convicted under a state obscenity law of possessing and exhibiting an allegedly obscene film, and the State Supreme Court upheld the conviction. Held: The judgment is reversed. Pp. 184-198 . 173 Ohio St. 22, 179 N.E.2d 777, reversed. Opinions MR. JUSTICE BRENNAN, joined by MR. JUSTICE GOLDBERG, concluded that: 1. Though motion pictures are within the constitutional guarantees of freedom of expression, obscenity is not within those guarantees. P. 187 . 2. This Court cannot avoid making an independent judgment as to whether material condemned as obscene is constitutionally protected. Pp. 187-190 . 3. The test for obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Roth v. United States, 354 U.S. 476 . Pp. 191-195 . (a) A work cannot be proscribed unless it is “utterly without redeeming social importance,” and hence material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection. P. 191 . (b) The constitutional status of allegedly obscene material does not turn on a “weighing” of its social importance against its prurient appeal, for a work may not be proscribed unless it is “utterly” without social importance. P. 191 . (c) Before material can be proscribed as obscene under this test, it must be found to go substantially beyond customary limits of candor in description or representation. Pp. 191-192 . (d) The “contemporary community standards” by which the issue of obscenity is to be determined are not those of the particular [p*185] local community from which the case arises, but those of the Nation as a whole. Pp. 192-195 . 4. The recognized interest in preventing dissemination of material deemed harmful to children does not justify its total suppression. This conviction, based not on the exhibition of the film to children, but on its exhibition to the public at large, must be reviewed under the strict standard applicable in determining the scope of the constitutional protection. P. 195 . 5. The film is not obscene under the applicable standard. P. 196 . MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that a conviction for exhibiting a motion picture violates the First Amendment, which is made obligatory on the States by the Fourteenth Amendment. Pp. 196-197 . MR. JUSTICE STEWART concluded that criminal obscenity laws are constitutionally limited under the First and Fourteenth Amendments to “hard-core pornography.” P. 197 .
Jenkins v. Georgia (1974)
Appellant was convicted, prior to the announcement of Miller v. California, 413 U.S. 15 , and companion cases, of violating Georgia’s obscenity statute for showing the film “Carnal Knowledge” in a motion picture theater. The jury had been instructed on obscenity under that statute, which defines obscene material in terms similar to the definition in Memoirs v. Massachusetts, 383 U.S. 413 , 418 . The Georgia Supreme Court affirmed. Held: 1. Appellant, whose conviction was on appeal at the time of the announcement of Miller, is entitled to any benefit available thereunder. Hamling v. United States, ante, p. 87. P. 155. 2. There is no constitutional requirement that juries be instructed in state obscenity cases to apply the standards of a hypothetical state-wide community — Miller approving, but not mandating, such an instruction — and jurors may properly be instructed to apply “community standards,” without a specification of the “community” by the trial court. P. 157 . 3. The film is not obscene under the constitutional standards announced in Miller, and appellant’s conviction therefore contravened the First and Fourteenth Amendments. Pp. 157-161 . (a) Juries do not have unbridled discretion in determining what is “patently offensive,” since no one will be subject to prosecution for the sale or exposure of obscene materials [that do not] depict or describe patently offensive “hard core” sexual conduct.”,” . . . . Miller, supra, at 27 . Pp. 160-161 . (b) This Court’s own view of the film impels the conclusion that the film’s depiction of sexual conduct is not patently offensive. The camera does not focus on the bodies of actors during scenes of “ultimate sexual acts,” nor are the actors’ genitals exhibited during those scenes. The film shows occasional nudity, but nudity alone does not render material obscene under Miller’s standards. P. 161 . 230 Ga. 726, 199 S.E.2d 183, reversed. Opinions REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. [p*154] DOUGLAS, J., filed a statement concurring in the result, post, p. 162 . BRENNAN, J., filed an opinion concurring in the result, in which STEWART and MARSHALL, JJ., joined, post, p. 162 .
Board of Educ. v. Pico (1982)
Petitioner Board of Education, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,” be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Board and petitioner Board members, alleging that the Board’s actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners’ favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents’ allegations. Held: The judgment is affirmed. 638 F.2d 404, affirmed. Opinions JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, concluded: 1. The First Amendment imposes limitations upon a local school board’s exercise of its discretion to remove books from high school and junior high school libraries. Pp. 863-872 . (a) Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines School Dist., 393 U.S. 503 , 506 , and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library. While students’ First Amendment rights must be construed “in light of the special characteristics of the school environment,” ibid., the special characteristics of the school library make that environment especially appropriate for the recognition of such rights. Pp. 863-869 . (b) While petitioners might rightfully claim absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools, petitioners’ reliance upon that duty is misplaced [p*854] where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway. P. 869 . (c) Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. Whether petitioners’ removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” West Virginia Board of Education v. Barnette, 319 U.S. 624 , 642 . If such an intention was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution. Pp. 869-872 . 2. The evidentiary materials before the District Court must be construed favorably to respondents, given the procedural posture of this case. When so construed, those evidentiary materials raise a genuine issue of material fact as to whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books at issue from their school libraries. Respondents’ allegations, and some of the evidentiary materials before the District Court, also fail to exclude the possibility that petitioners’ removal procedures were highly irregular and ad hoc — the antithesis of those procedures that might tend to allay suspicions regarding petitioners’ motivation. Pp. 872-875 . JUSTICE BLACKMUN concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books when that action is motivated simply by the officials’ disapproval of the ideas involved. Pp. 879-882 . JUSTICE WHITE, while agreeing that there should be a trial to resolve the factual issues, concluded that there is no necessity at this point for discussing the extent to which the First Amendment limits the school board’s discretion to remove books from the school libraries. Pp. 883-884 . BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL and STEVENS, JJ., joined and in all but Part II-A(1) of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 875 . WHITE, J., filed an opinion concurring in the judgment, post, p. 883 . BURGER, C.J., filed a [p*855] dissenting opinion, in which POWELL, REHNQUIST, and O’CONNOR, JJ., joined, post, p. 885 . POWELL, J., filed a dissenting opinion, post, p. 893 . REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL, J., joined, post, p. 904 . O’CONNOR, J., filed a dissenting opinion, post, p. 921 .
Roth v. United States (1957)
1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character,” and Roth’s conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 479-494 . 2. In the Albert case, the constitutionality of § 311 of West’s California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is “obscene or indecent,” and Alberts’ conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 479-494 . 3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 481-485 . (a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483 . (b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 484 . (c) 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. Pp. 484-485 . [p*477] 4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges’ instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U.S. 250. Pp. 485-490 . (a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest — i.e., material having a tendency to excite lustful thoughts. P. 487 . (b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 487-488 . (c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 488-489 . (d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 489-490 . 5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character,” does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 491-492 . 6. When applied according to the proper standard for judging obscenity, § 311 of West’s California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is “obscene or indecent,” does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 491-492 . 7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it [p*478] does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 492-493 . 8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions — even when applied to a mail-order business. Pp. 493-494 . 237 F.2d 796, affirmed. 138 Cal.App.2d Supp. 909, 292 P.2d 90, affirmed.
Stanley v. Georgia (1969)
Under authority of a warrant to search appellant’s home for evidence of his alleged bookmaking activities, officers found some films in his bedroom. The films were projected and deemed to be obscene. Appellant was arrested for their possession. He was thereafter indicted, tried, and convicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of a Georgia law. The Georgia Supreme Court affirmed, holding it not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was “with intent to sell, expose or circulate the same.” Appellant contends that the Georgia obscenity statute is unconstitutional insofar as it punishes mere private possession of obscene matter. Georgia, relying on Roth v. United States, 354 U.S. 476 , argues the statute’s validity on the ground that “obscenity is not within the area of constitutionally protected speech or press.” Id. at 485 . Held: The First Amendment as made applicable to the States by the Fourteenth prohibits making mere private possession of obscene material a crime. Pp. 560-568 . (a) Neither Roth, supra, nor subsequent decisions of the Court were made in the context of a statute punishing mere private possession of obscene material, but involved governmental power to prohibit or regulate certain public actions respecting obscene matter. Pp. 560-564 . (b) The Constitution protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts. Pp. 564-566 . (c) The State may not prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct, Roth, supra, distinguished, or proscribe such possession on the ground that it is a necessary incident to a statutory scheme prohibiting distribution, see Smith v. California, 361 U.S. 147. Pp. 566-568 . 224 Ga. 259, 161 S.E.2d 309, reversed and remanded. [p*558]
June 27, 2011: US Supreme Court Strikes Down Violent Video Game Ban
The U.S. Supreme Court has ruled in favor of the video game industry, saying states cannot ban the sale or rental of violent games to children because doing so would violate free speech rights.
In its 7-2 decision Monday, the justices struck down a 2005 California law covering games sold or rented to those under age 18. The law, which has never taken effect, defines a violent video game as one that depicts “killing, maiming, dismembering or sexually assaulting an image of a human being.”
The Parents Television Council denounced the court’s decision, saying in a statement that retailers can now openly and brazenly sell games with unspeakable violence and adult content even to the youngest of children.
The Entertainment Software Association welcomed the decision. The ESA issued a statement describing the ruling as a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere.
- The Death of Enlightment: SCOTUS Judge Breyer Might Impose the Sharia for Qu’ran Burning (atlasshrugs2000.typepad.com)
- Criminal Convictions by Non-Unanimous Juries (volokh.com)
- “The Fourteenth Amendment and the RTFM Principle” and related posts (balkin.blogspot.com)