Petitioner was convicted under an obscenity statute for
publishing in his underground newspaper pictures of nudes and a sex
poem. The State Supreme Court upheld the conviction as not
violative of the Fourteenth Amendment.
In the context in which they appeared, the
photographs were rationally related to a news article, in
conjunction with which they appeared, and were entitled to
Fourteenth Amendment protection. In view of the poem's content and
placement with other poems inside the newspaper, its dominant theme
cannot be said to appeal to prurient interest. Roth v. United
States, 354 U. S. 476
Certiorari granted; 51 Wis.2d 668, 188 N.W.2d
Petitioner was convicted in the state trial court of violating a
Wisconsin statute prohibiting the dissemination of "lewd, obscene
or indecent written matter, picture, sound recording, or film."
Wis.Stat. § 944.21(1)(a) (1969). He was sentenced to consecutive
one-year terms in the Green Bay Reformatory and fined $1,000 on
each of two counts. The Supreme Court of Wisconsin upheld his
conviction against the contention that he had been deprived of
freedom of the press in violation of the Fourteenth Amendment. 51
Wis.2d 668, 188 N.W.2d
. Petitioner was the publisher of an underground newspaper
called Kaleidoscope. In an issue published in May, 1968, that
newspaper carried a story entitled "The One Hundred Thousand Dollar
Photos" on an interior page. The story itself was an account of the
arrest of one of Kaleidoscope's photographers on a charge of
Page 408 U. S. 230
of obscene material. Two relatively small pictures, showing a
nude man and nude woman embracing in a sitting position,
accompanied the article and were described in the article as
"similar" to those seized from the photographer. The article said
that the photographer, while waiting in the district attorney's
office, had heard that bail might be set at $100,000. The article
went on to say that bail had, in fact, been set originally at $100,
then raised to $250, and that, later, the photographer had been
released on his own recognizance. The article purported to detail
police tactics that were described as an effort to "harass"
Kaleidoscope and its staff. Roth v. United States,
354 U. S. 476
(1957), held that obscenity was not protected under the First or
Fourteenth Amendments. Material may be considered obscene when,
"to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole,
appeals to the prurient interest."
354 U.S. at 354 U. S. 489
In enunciating this test, the Court in Roth
Thornhill v. Alabama, 310 U. S. 88
310 U. S.
"The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly
and truthfully all matters of public concern without previous
restraint or fear of subsequent punishment. The exigencies of the
colonial period and the efforts to secure freedom from oppressive
administration developed a broadened conception of these liberties
as adequate to supply the public need for information and
education with respect to the significant issues of the times.
. . ."
We do not think it can fairly be said, either considering the
article as it appears or the record before the state
Page 408 U. S. 231
court, that the article was a mere vehicle for the publication
of the pictures. A quotation from Voltaire in the flyleaf of a book
will not constitutionally redeem an otherwise obscene publication,
but if these pictures were indeed similar to the one seized -- and
we do not understand the State to contend differently -- they are
relevant to the theme of the article. We find it unnecessary to
consider whether the State could constitutionally prohibit the
dissemination of the pictures by themselves, because, in the
context in which they appeared in the newspaper, they were
rationally related to an article that itself was clearly entitled
to the protection of the Fourteenth Amendment. Thornhill v.
The motion for leave to proceed in forma
and the petition for writ of certiorari are granted.
The conviction on count one must therefore be reversed.
In its August, 1968, issue, Kaleidoscope published a two-page
spread consisting of 11 poems, one of which was entitled "Sex
Poem." The second count of petitioner's conviction was for the
dissemination of the newspaper containing this poem. The poem is an
undisguisedly frank, play-by-play account of the author's
recollection of sexual intercourse. But, as the Roth
"sex and obscenity are not synonymous. . . . The portrayal of
in art, literature and scientific works, is not
itself sufficient reason to deny material the constitutional
protection of freedom of speech and press."
354 U.S. at 354 U. S. 487
A reviewing court must, of necessity, look at the context of the
material, as well as its content.
In this case, considering the poem's content and its placement
amid a selection of poems in the interior of a newspaper, we
believe that it bears some of the earmarks of an attempt at serious
art. While such earmarks are not inevitably a guarantee against a
finding of obscenity, and while, in this case, many would
Page 408 U. S. 232
that the author's reach exceeded his grasp, this element must be
considered in assessing whether or not the "dominant" theme of the
material appeals to. prurient interest. While "contemporary
community standards," Roth v. United States,
354 U.S. at
354 U. S. 489
must leave room for some latitude of judgment, and while there is
an undeniably subjective element in the test as a whole, the
"dominance" of the theme is a question of constitutional fact.
Giving due weight and respect to the conclusions of the trial court
and to the Supreme Court of Wisconsin, we do not believe that it
can be said that the dominant theme of this poem appeals to
prurient interest. The judgment on the second count, therefore,
must also be reversed.
MR. JUSTICE STEWART concurs in the judgment.
MR. JUSTICE DOUGLAS, concurring in the judgment.
I concur in the judgment because neither logic, history, nor the
plain meaning of the English language will support the obscenity
exception this Court has engrafted onto the First Amendment.
This case, moreover, is further testimony to the morass in which
this Court has placed itself in the area of obscenity. Men are sent
to prison under definitions which they cannot understand, and on
which lower courts and members of this Court cannot agree. Here,
the Court is forced to examine the thematic content of the two
newspapers for the publication of which petitioner was prosecuted
in order to hold that they are constitutionally protected. Highly
subjective inquiries such as this do not lend themselves to a
workable or predictable rule of law, nor should they be the basis
of fines or imprisonment.
In this case, the vague umbrella of obscenity laws was used in
an attempt to run a radical newspaper out of
Page 408 U. S. 233
business and to impose a two-year sentence.and a $2,000 fine
upon its publisher. If obscenity laws continue in this uneven and
uncertain enforcement, then the vehicle has been found for the
suppression of any unpopular tract. The guarantee of free
expression will thus be diluted, and, in its stead, public
discourse will only embrace that which has the approval of five
members of this Court.
The prospect is not imaginary now that the Bill of Rights,
applicable to the States by reason of the Fourteenth Amendment, is
coming to be a "watered down" version, meaning not what it says,
but only what a majority of this Court thinks fit and proper.