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.
378 U. S.
184-198.
173 Ohio St. 22,179 N.E.2d 777, reversed.
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.
378 U. S.
187.
2. This Court cannot avoid making an independent judgment as to
whether material condemned as obscene is constitutionally
protected. Pp.
378 U. S.
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.
378 U. S.
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.
378 U. S.
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.
378 U. S.
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.
378 U. S.
191-192.
(d) The "contemporary community standards" by which the issue of
obscenity is to be determined are not those of the particular
Page 378 U. S. 185
local community from which the case arises, but those of the
Nation as a whole. Pp.
378 U. S.
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.
378 U. S.
195.
5. The film is not obscene under the applicable standard. P.
378 U. S.
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.
378 U. S.
196-197.
MR. JUSTICE STEWART concluded that criminal obscenity laws are
constitutionally limited under the First and Fourteenth Amendments
to "hard-core pornography." P.
378 U. S.
197.
MR. JUSTICE GOLDBERG concluded that there is no justification
here for making an exception to the "freedom of expression" rule,
for, by any arguable standard, this film is not obscene. Pp.
378 U. S.
197-198.
MR. JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion in which MR. JUSTICE GOLDBERG joins.
Appellant, Nico Jacobellis, manager of a motion picture theater
in Cleveland Heights, Ohio, was convicted on two counts of
possessing and exhibiting an obscene film in
Page 378 U. S. 186
violation of Ohio Revised Code (1963 Supp.), § 2905.34.
[
Footnote 1] He was fined $500
on the first count and $2,000 on the second, and was sentenced to
the workhouse if the fines were not paid. His conviction, by a
court of three judges upon waiver of trial by jury, was affirmed by
an intermediate appellate court, 115 Ohio App. 226, 175 N.E.2d 123,
and by the Supreme Court of Ohio, 173 Ohio St. 22, 179 N.E.2d 777.
We noted probable jurisdiction of the appeal, 371 U.S. 808, and
subsequently restored the case to the calendar for reargument, 373
U.S. 901. The dispositive question is whether the state courts
properly found that the motion picture involved, a French film
called "Les Amants" ("The Lovers"), was obscene, and
Page 378 U. S. 187
hence not entitled to the protection for free expression that is
guaranteed by the First and Fourteenth Amendments. We conclude that
the film is not obscene, and that the judgment must accordingly be
reversed.
Motion pictures are within the ambit of the constitutional
guarantees of freedom of speech and of the press.
Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495.
But, in
Roth v. United States and
Alberts v.
California, 354 U. S. 476, we
held that obscenity is not subject to those guarantees. Application
of an obscenity law to suppress a motion picture thus requires
ascertainment of the "dim and uncertain line" that often separates
obscenity from constitutionally protected expression.
Bantam
Books, Inc. v. Sullivan, 372 U. S. 58,
372 U. S. 66;
see Speiser v. Randall, 357 U. S. 513,
357 U. S. 525.
[
Footnote 2] It has been
suggested that this is a task in which our Court need not involve
itself. We are told that the determination whether a particular
motion picture, book, or other work of expression is obscene can be
treated as a purely factual judgment on which a jury's verdict is
all but conclusive, or that, in any event, the decision can be left
essentially to state and lower federal courts, with this Court
exercising only a limited review such as that needed to determine
whether the ruling below is supported by "sufficient evidence." The
suggestion is appealing, since it would lift from our shoulders a
difficult, recurring, and unpleasant task. But we cannot accept it.
Such an abnegation of judicial
Page 378 U. S. 188
supervision in this field would be inconsistent with our duty to
uphold the constitutional guarantees. Since it is only "obscenity"
that is excluded from the constitutional protection, the question
whether a particular work is obscene necessarily implicates an
issue of constitutional law.
See Roth v. United States,
supra, 354 U.S. at
354 U. S.
497-498 (separate opinion). Such an issue, we think,
must ultimately be decided by this Court. Our duty admits of no
"substitute for facing up to the tough individual problems of
constitutional judgment involved in every obscenity case."
Id., at
354 U. S. 498;
see Manual Enterprises, Inc. v. Day, 370 U.
S. 478,
370 U. S. 488
(opinion of Harlan, J.). [
Footnote
3]
Page 378 U. S. 189
In other areas involving constitutional rights under the Due
Process Clause, the Court has consistently recognized its duty to
apply the applicable rules of law upon the basis of an independent
review of the facts of each case.
E.g., Watts v. Indiana,
338 U. S. 49,
338 U. S. 51;
Norris v. Alabama, 294 U. S. 587,
294 U. S. 590.
[
Footnote 4] And this has been
particularly true where rights have been asserted under the First
Amendment guarantees of free expression. Thus in
Pennekamp v.
Florida, 328 U. S. 331,
328 U. S. 335,
the Court stated:
"The Constitution has imposed upon this Court final authority to
determine the meaning and application of whose words of that
instrument which require interpretation to resolve judicial issues.
With that responsibility, we are compelled to examine for ourselves
the statements in issue and the circumstances under which they were
made to see whether or not they . . . are of a character which the
principles of the First Amendment, as adopted by the Due Process
Clause of the Fourteenth Amendment, protect. [
Footnote 5]"
We cannot understand why the Court's duty should be any
different in the present case, where Jacobellis has
Page 378 U. S. 190
been subjected to a criminal conviction for disseminating a work
of expression, and is challenging that conviction as a deprivation
of rights guaranteed by the First and Fourteenth Amendments. Nor
can we understand why the Court's performance of its constitutional
and judicial function in this sort of case should be denigrated by
such epithets as "censor" or "super-censor." In judging alleged
obscenity, the Court is no more "censoring" expression than it has
in other cases "censored" criticism of judges and public officials,
advocacy of governmental overthrow, or speech alleged to constitute
a breach of the peace. Use of an opprobrious label can neither
obscure nor impugn the Court's performance of its obligation to
test challenged judgments against the guarantees of the First and
Fourteenth Amendments, and, in doing so, to delineate the scope of
constitutionally protected speech. Hence, we reaffirm the principle
that, in "obscenity" cases, as in all others involving rights
derived from the First Amendment guarantees of free expression,
this Court cannot avoid making an independent constitutional
judgment on the facts of the case as to whether the material
involved is constitutionally protected. [
Footnote 6]
Page 378 U. S. 191
The question of the proper standard for making this
determination has been the subject of much discussion and
controversy since our decision in
Roth seven years ago.
Recognizing that the test for obscenity enunciated there --
"whether, to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole,
appeals to prurient interest,"
354 U.S. at
354 U. S. 489
-- is not perfect, we think any substitute would raise equally
difficult problems, and we therefore adhere to that standard. We
would reiterate, however, our recognition in
Roth that
obscenity is excluded from the constitutional protection only
because it is "utterly without redeeming social importance," and
that
"[t]he portrayal of sex,
e.g., in art, literature and
scientific works, is not itself sufficient reason to deny material
the constitutional protection of freedom of speech and press."
Id., 354 U.S. at
354 U. S. 484,
354 U. S. 487.
It follows that material dealing with sex in a manner that
advocates ideas,
Kingsley Int'l Pictures Corp. v. Regents,
360 U. S. 684, or
that has literary or scientific or artistic value or any other form
of social importance, may not be branded as obscenity and denied
the constitutional protection. [
Footnote 7] Nor may the constitutional status of the
material be made to turn on a "weighing" of its social importance
against its prurient appeal, for a work cannot be proscribed unless
it is "utterly" without social importance.
See Zeitlin v.
Arnebergh, 59 Cal. 2d
901, 920, 31 Cal. Rptr. 800, 813, 383 P.2d 152, 165 (1963). It
should also be recognized that the
Roth standard requires,
in the first instance, a finding that the material "goes
substantially beyond customary limits of candor in description or
representation of such matters." This was a requirement of the
Model Penal Code test that we approved in
Roth, 354 U.S.
at
354 U. S. 487,
n. 20, and it is explicitly reaffirmed in the
Page 378 U. S. 192
more recent Proposed Official Draft of the Code. [
Footnote 8] In the absence of such a
deviation from society's standards of decency, we do not see how
any official inquiry into the allegedly prurient appeal of a work
of expression can be squared with the guarantees of the First and
Fourteenth Amendments.
See Manual Enterprises, Inc. v.
Day, 370 U. S. 478,
370 U. S.
482-488 (opinion of Harlan, J.).
It has been suggested that the "contemporary community
standards" aspect of the
Roth test implies a determination
of the constitutional question of obscenity in each case by the
standards of the particular local community from which the case
arises. This is an incorrect reading of
Roth. The concept
of "contemporary community standards" was first expressed by Judge
Learned Hand in
United States v. Kennerley, 209 F. 119,
121 (D.C.S.D.N.Y.1913), where he said:
"Yet, if the time is not yet when men think innocent all that
which is honestly germane to a pure subject, however little it may
mince its words, still I scarcely think that they would forbid all
which might corrupt the most corruptible, or that society is
prepared to accept for its own limitations those which may perhaps
be necessary to the weakest of its memberships. If there be no
abstract definition, such as I have suggested, should not the word
'obscene' be allowed to indicate the present critical point in the
compromise between candor and shame at which
the community may
have arrived here and now? . . . To put thought in leash to
the
average conscience of the time is perhaps tolerable,
but to fetter it by the
Page 378 U. S. 193
necessities of the lowest and least capable seems a fatal
policy."
"Nor is it an objection, I think, that such an interpretation
gives to the words of the statute a varying meaning from time to
time. Such words as these do not embalm the precise morals of an
age or place; while they presuppose that some things will always be
shocking to the public taste, the vague subject matter is left to
the gradual development of general notions about what is decent. .
. ."
(Italics added.) It seems clear that in this passage Judge Hand
was referring not to state and local "communities," but rather to
"the community" in the sense of "society at large; . . . the
public, or people in general." [
Footnote 9] Thus, he recognized that, under his standard,
the concept of obscenity would have "a varying meaning from time to
time" -- not from county to county, or town to town.
We do not see how any "local" definition of the "community"
could properly be employed in delineating the area of expression
that is protected by the Federal Constitution. MR. JUSTICE HARLAN
pointed out in
Manual Enterprises, Inc. v. Day, supra, 370
U.S. at
370 U. S. 488,
that a standard based on a particular local community would
have
"the intolerable consequence of denying some sections of the
country access to material, there deemed acceptable, which in
others might be considered offensive to prevailing community
standards of decency.
Cf. Butler v. Michigan, 352 U. S.
380."
It is true that
Manual Enterprises dealt with the
federal statute banning obscenity from the mails. But the mails are
not the only means by which works of expression cross local
community lines in this country. It can hardly be assumed that all
the patrons of a particular library, bookstand, or motion picture
theater are residents of the
Page 378 U. S. 194
smallest local "community" that can be drawn around that
establishment. Furthermore, to sustain the suppression of a
particular book or film in one locality would deter its
dissemination in other localities where it might be held not
obscene, since sellers and exhibitors would be reluctant to risk
criminal conviction in testing the variation between the two
places. It would be a hardy person who would sell a book or exhibit
a film anywhere in the land after this Court had sustained the
judgment of one "community" holding it to be outside the
constitutional protection. The result would thus be "to restrict
the public's access to forms of the printed word which the State
could not constitutionally suppress directly."
Smith v.
California, 361 U. S. 147,
361 U. S.
154.
It is true that local communities throughout the land are, in
fact, diverse, and that, in cases such as this one, the Court is
confronted with the task of reconciling the rights of such
communities with the rights of individuals. Communities vary,
however, in many respects other than their toleration of alleged
obscenity, and such variances have never been considered to require
or justify a varying standard for application of the Federal
Constitution. The Court has regularly been compelled, in reviewing
criminal convictions challenged under the Due Process Clause of the
Fourteenth Amendment, to reconcile the conflicting rights of the
local community which brought the prosecution and of the individual
defendant. Such a task is admittedly difficult and delicate, but it
is inherent in the Court's duty of determining whether a particular
conviction worked a deprivation of rights guaranteed by the Federal
Constitution. The Court has not shrunk from discharging that duty
in other areas, and we see no reason why it should do so here. The
Court has explicitly refused to tolerate a result whereby "the
constitutional limits of free expression in the Nation
Page 378 U. S. 195
would vary with state lines,"
Pennekamp v. Florida,
supra, 328 U.S. at
328 U. S. 335,
we see even less justification for allowing such limits to vary
with town or county lines. We thus reaffirm the position taken in
Roth to the effect that the constitutional status of an
allegedly obscene work must be determined on the basis of a
national standard. [
Footnote
10] It is, after all, a national Constitution we are
expounding.
We recognize the legitimate and indeed exigent interest of
States and localities throughout the Nation in preventing the
dissemination of material deemed harmful to children. But that
interest does not justify a total suppression of such material, the
effect of which would be to "reduce the adult population . . . to
reading only what is fit for children."
Butler v.
Michigan, 352 U. S. 380,
352 U. S. 383.
State and local authorities might well consider whether their
objectives in this area would be better served by laws aimed
specifically at preventing distribution of objectionable material
to children, rather than at totally prohibiting its dissemination.
[
Footnote 11] Since the
present conviction is based upon exhibition of the film to the
public at large, and not upon its exhibition to children, the
judgment must be reviewed under the strict standard applicable in
determining the scope of the expression that is protected by the
Constitution.
We have applied that standard to the motion picture in question.
"The Lovers" involves a woman bored with her life and marriage who
abandons her husband and family for a young archaeologist with whom
she has
Page 378 U. S. 196
suddenly fallen in love. There is an explicit love scene in the
last reel of the film, and the State's objections are based almost
entirely upon that scene. The film was favorably reviewed in a
number of national publications, although disparaged in others, and
was rated by at least two critics of national stature among the
best films of the year in which it was produced. It was shown in
approximately 100 of the larger cities in the United States,
including Columbus and Toledo, Ohio. We have viewed the film, in
the light of the record made in the trial court, and we conclude
that it is not obscene within the standards enunciated in
Roth
v. United States and
Alberts v. California, which we
reaffirm here.
Reversed.
MR. JUSTICE WHITE concurs in the judgment.
[
Footnote 1]
"
Selling, exhibiting, and possessing obscene literature or
drugs for criminal purposes."
"No person shall knowingly sell, lend, give away, exhibit, or
offer to sell, lend, give away, or exhibit, or publish or offer to
publish or have in his possession or under his control an obscene,
lewd, or lascivious book, magazine, pamphlet, paper, writing,
advertisement, circular, print, picture, photograph, motion picture
film, or book, pamphlet, paper, magazine not wholly obscene but
containing lewd or lascivious articles, advertisements,
photographs, or drawing, representation, figure, image, cast,
instrument, or article of an indecent or immoral nature, or a drug,
medicine, article, or thing intended for the prevention of
conception or for causing an abortion, or advertise any of them for
sale, or write, print, or cause to be written or printed a card,
book, pamphlet, advertisement, or notice giving information when,
where, how, of whom, or by what means any of such articles or
things can be purchased or obtained, or manufacture, draw, print,
or make such articles or things, or sell, give away, or show to a
minor, a book, pamphlet, magazine, newspaper, story paper, or other
paper devoted to the publication, or principally made up, of
criminal news, police reports, or accounts of criminal deeds, or
pictures and stories of immoral deeds, lust, or crime, or exhibit
upon a street or highway or in a place which may be within the view
of a minor, any of such books, papers, magazines, or pictures."
"Whoever violates this section shall be fined not less than two
hundred nor more than two thousand dollars or imprisoned not less
than one nor more than seven years, or both."
[
Footnote 2]
It is too late in the day to argue that the location of the line
is different, and the task of ascertaining it easier, when a state,
rather than a federal, obscenity law is involved. The view that the
constitutional guarantees of free expression do not apply as fully
to the States as they do to the Federal Government was rejected in
Roth-Alberts, supra, where the Court's single opinion
applied the same standards to both a state and a federal
conviction.
Cf. Ker v. California, 374 U. S.
23,
374 U. S. 33;
Malloy v. Hogan, 378 U. S. 1,
378 U. S.
10-11.
[
Footnote 3]
See Kingsley Int'l Pictures Corp. v. Regents,
360 U. S. 684,
360 U. S. 708
(separate opinion):
"It is sometimes said that this Court should shun considering
the particularities of individual cases in this difficult field,
lest the Court become a final 'board of censorship.' But I cannot
understand why it should be thought that the process of
constitutional judgment in this realm somehow stands apart from
that involved in other fields, particularly those presenting
questions of due process. . . ."
See also Lockhart and McClure, Censorship of Obscenity:
The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 116
(1960):
"This obligation -- to reach an independent judgment in applying
constitutional standards and criteria to constitutional issues that
may be cast by lower courts 'in the form of determinations of fact'
-- appears fully applicable to findings of obscenity by juries,
trial courts, and administrative agencies. The Supreme Court is
subject to that obligation, as is every court before which the
constitutional issue is raised."
And see id. at 119:
"It may be true . . . that judges 'possess no special expertise'
qualifying them 'to supervise the private morals of the Nation' or
to decide 'what movies are good or bad for local communities.' But
they do have a far keener understanding of the importance of free
expression than do most government administrators or jurors, and
they have had considerable experience in making value judgments of
the type required by the constitutional standards for obscenity. If
freedom is to be preserved, neither government censorship experts
nor juries can be left to make the final effective decisions
restraining free expression. Their decisions must be subject to
effective, independent review, and we know of no group better
qualified for that review than the appellate judges of this country
under the guidance of the Supreme Court."
[
Footnote 4]
See also Fiske v. Kansas, 274 U.
S. 380,
274 U. S.
385-386;
Haynes v. Washington, 373 U.
S. 503,
373 U. S.
515-516;
Chambers v. Florida, 309 U.
S. 227,
309 U. S. 229;
Hooven & Allison Co. v. Evatt, 324 U.
S. 652,
324 U. S. 659;
Lisenba v. California, 314 U. S. 219,
314 U. S.
237-238;
Ashcraft v. Tennessee, 322 U.
S. 143,
322 U. S.
147-148;
Napue v. Illinois, 360 U.
S. 264,
360 U. S.
271.
[
Footnote 5]
See also Niemotko v. Maryland, 340 U.
S. 268,
340 U. S. 271;
Craig v. Harney, 331 U. S. 367,
331 U. S.
373-374;
Bridges v. California, 314 U.
S. 252,
314 U. S. 271;
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S. 235;
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S.
285.
[
Footnote 6]
This is precisely what the Court did in
Times Film Corp. v.
City of Chicago, 355 U. S. 35;
One, Inc. v. Olesen, 355 U. S. 371; and
Sunshine Book Co. v. Summerfield, 355 U.
S. 372. The obligation has been recognized by state
courts as well.
See, e.g., State v. Hudson County News
Co., 41 N.J. 247, 256-257,
196 A.2d
225, 230 (1963);
Zeitlin v. Arnebergh, 59 Cal. 2d
901, 909-911, 31 Cal. Rptr. 800, 805-806, 383 P.2d 152, 157-158
(1963);
People v. Richmond County News, Inc., 9 N.Y.2d
578, 580-581, 216 N.Y.S.2d 369, 370, 175 N.E.2d 681, 681-682
(1961).
See also American Law Institute, Model Penal Code,
Proposed Official Draft (May 4, 1962), § 251.4(4).
Nor do we think our duty of constitutional adjudication in this
area can properly be relaxed by reliance on a "sufficient evidence"
standard of review. Even in judicial review of administrative
agency determinations, questions of "constitutional fact" have been
held to require
de novo review.
Ng Fung Ho v.
White, 259 U. S. 276,
259 U. S.
284-285;
Crowell v. Benson, 285 U. S.
22,
285 U. S.
54-65.
[
Footnote 7]
See, e.g., Attorney General v. Book Named "Tropic of
Cancer," 345 Mass. 11,
184
N.E.2d 328 (Mass.1962);
Zeitlin v.
Arnebergh, 59 Cal. 2d
901, 31 Cal. Rptr. 800, 383 P.2d 152 (1963).
[
Footnote 8]
American Law Institute, Model Penal Code, Proposed Official
Draft (May 4, 1962), § 251.4(1):
"Material is obscene if, considered as a whole, its predominant
appeal is to prurient interest . . . , and if,
in
addition, it goes substantially beyond customary limits of
candor in describing or representing such matters."
(Italics added.)
[
Footnote 9]
Webster's New International Dictionary (2d ed. 1949) at 542.
[
Footnote 10]
See State v. Hudson County News Co., 41 N.J. 247, 266,
196 A.2d
225, 235 (1963). Lockhart and McClure,
note 3 supra, 45 Minn.L.Rev. at 108-112;
American Law Institute, Model Penal Code, Tentative Draft No. 6
(May 6, 1957) at 45; Proposed Official Draft (May 4, 1962), §
251.4(4)(d).
[
Footnote 11]
See State v. Settle, 90 R.I. 195,
156
A.2d 921 (1959).
Opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS
joins.
I concur in the reversal of this judgment. My belief, as stated
in
Kingsley International Pictures Corp. v. Regents,
360 U. S. 684,
360 U. S. 690,
is that,
"If despite the Constitution . . . , this Nation is to embark on
the dangerous road of censorship, . . . this Court is about the
most inappropriate Supreme Board of Censors that could be
found."
My reason for reversing is that I think the conviction of
appellant or anyone else for exhibiting a motion picture abridges
freedom of the press as safeguarded by the First Amendment, which
is made obligatory on the States by the Fourteenth.
See my
concurring opinions in
Quantity of Copies of Books v. Kansas,
post, p.
378 U. S. 213;
Smith v. California, 361 U. S. 147,
361 U. S. 155;
Kingsley International Pictures Corp. v. Regents, supra.
See also the dissenting opinion of MR. JUSTICE DOUGLAS
Page 378 U. S. 197
in
Roth v. United States, 354 U.
S. 476,
354 U. S. 508,
and his concurring opinion in
Superior Films, Inc. v.
Department of Education, 346 U. S. 587,
346 U. S. 588,
in both of which I joined.
MR. JUSTICE STEWART, concurring.
It is possible to read the Court's opinion in
Roth v. United
States and
Alberts v. California, 354 U.
S. 476, in a variety of ways. In saying this, I imply no
criticism of the Court, which, in those cases, was faced with the
task of trying to define what may be indefinable. I have reached
the conclusion, which I think is confirmed at least by negative
implication in the Court's decisions since
Roth and
Alberts, [
Footnote 2/1]
that, under the First and Fourteenth Amendments, criminal laws in
this area are constitutionally limited to hard core pornography.
[
Footnote 2/2] 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.
[
Footnote 2/1]
Times Film Corp. v. City of Chicago, 355 U. S.
35,
reversing 244 F.2d 432;
One,
Incorporated v. Olesen, 355 U. S. 371,
reversing 241 F.2d 772;
Sunshine Book Co. v.
Summerfield, 355 U. S. 372,
reversing 101 U.S.App.D.C. 358, 249 F.2d 114;
Manual
Enterprises v. Day, 370 U. S. 478
(opinion of HARLAN, J.).
[
Footnote 2/2]
Cf. People v. Richmond County News, 9 N.Y.2d 578, 175
N.E.2d 681, 216 N.Y.S.2d 369.
MR. JUSTICE GOLDBERG, concurring.
The question presented is whether the First and Fourteenth
Amendments permit the imposition of criminal punishment for
exhibiting the motion picture entitled "The Lovers." I have viewed
the film, and I wish merely to add to my Brother BRENNAN's
description that the love scene deemed objectionable is so
fragmentary and fleeting that only a censor's alert would make an
audience
Page 378 U. S. 198
conscious that something "questionable" is being portrayed.
Except for this rapid sequence, the film concerns itself with the
history of an ill-matched and unhappy marriage -- a familiar
subject in old and new novels and in current television soap
operas.
Although I fully agree with what my Brother BRENNAN has written,
I am also of the view that adherence to the principles stated in
Joseph Burstyn, Inc. v. Wilson, 343 U.
S. 495, requires reversal. In
Burstyn, MR.
JUSTICE CLARK, delivering the unanimous judgment of the Court,
said:
"[E]xpression by means of motion pictures is included within the
free speech and free press guaranty of the First and Fourteenth
Amendments. . . ."
"To hold that liberty of expression by means of motion pictures
is guaranteed by the First and Fourteenth Amendments, however, is
not the end of our problem. It does not follow that the
Constitution requires absolute freedom to exhibit every motion
picture of every kind at all times an all places. . . . Nor does it
follow that motion pictures are necessarily subject to the precise
rules governing any other particular method of expression. Each
method tends to present its own peculiar problems. But the basic
principles of freedom of speech and the press, like the First
Amendment's command, do not vary. Those principles, as they have
frequently been enunciated by this Court, make freedom of
expression the rule."
Id. at
343 U. S.
502-503. As in
Burstyn, "[t]here is no
justification in this case for making an exception to that rule,"
id. at
343 U. S. 503,
for, by any arguable standard, the exhibitors of this motion
picture may not be criminally prosecuted unless the exaggerated
character of the advertising, rather than the obscenity of the
film, is to be the constitutional criterion.
Page 378 U. S. 199
THE CHIEF JUSTICE, with whom MR. JUSTICE CLARK joins,
dissenting.
In this and other cases in this area of the law which are coming
to us in ever-increasing numbers, we are faced with the resolution
of rights basic both to individuals and to society as a whole.
Specifically, we are called upon to reconcile the right of the
Nation and of the States to maintain a decent society and, on the
other hand, the right of individuals to express themselves freely
in accordance with the guarantees of the First and Fourteenth
Amendments. Although the Federal Government and virtually every
State has had laws proscribing obscenity since the Union was
formed, and although this Court has recently decided that obscenity
is not within the protection of the First Amendment, [
Footnote 3/1] neither courts nor
legislatures have been able to evolve a truly satisfactory
definition of obscenity. In other areas of the law, terms like
"negligence," although in common use for centuries, have been
difficult to define except in the most general manner. Yet the
courts have been able to function in such areas with a reasonable
degree of efficiency. The obscenity problem, however, is aggravated
by the fact that it involves the area of public expression, an area
in which a broad range of freedom is vital to our society and is
constitutionally protected.
Recently this Court put its hand to the task of defining the
term "obscenity" in
Roth v. United States, 354 U.
S. 476. The definition enunciated in that case has
generated much legal speculation, as well as further judicial
interpretation by state and federal courts. It has also been relied
upon by legislatures. Yet obscenity cases continue to come to this
Court, and it becomes increasingly apparent that we must settle as
well as we can the question of what constitutes "obscenity" and the
question
Page 378 U. S. 200
of what standards are permissible in enforcing proscriptions
against obscene matter. This Court hears cases such as the instant
one not merely to rule upon the alleged obscenity of a specific
film or book, but to establish principles for the guidance of lower
courts and legislatures. Yet most of our decisions since
Roth have been given without opinion, and have thus failed
to furnish such guidance. Nor does the Court in the instant case --
which has now been twice argued before us -- shed any greater light
on the problem. Therefore, I consider it appropriate to state my
views at this time.
For all the sound and fury that the
Roth test has
generated, it has not been proved unsound, and I believe that we
should try to live with it -- at least until a more satisfactory
definition is evolved. No government -- be it federal, state, or
local -- should be forced to choose between repressing all
material, including that within the realm of decency, and allowing
unrestrained license to publish any material, no matter how vile.
There must be a rule of reason in this as in other areas of the
law, and we have attempted in the
Roth case to provide
such a rule.
It is my belief that, when the Court said in
Roth that
obscenity is to be defined by reference to "community standards,"
it meant community standards -- not a national standard, as is
sometimes argued. I believe that there is no provable "national
standard," and perhaps there should be none. At all events, this
Court has not been able to enunciate one, and it would be
unreasonable to expect local courts to divine one. It is said that
such a "community" approach may well result in material's being
proscribed as obscene in one community but not in another, and, in
all probability, that is true. But communities throughout the
Nation are in fact diverse, and it must be remembered that, in
cases such as this one, the Court is confronted with the task of
reconciling conflicting
Page 378 U. S. 201
rights of the diverse communities within our society and of
individuals.
We are told that only "hard core pornography" should be denied
the protection of the First Amendment. But who can define "hard
core pornography" with any greater clarity than "obscenity"? And
even if we were to retreat to that position, we would soon be faced
with the need to define that term, just as we now are faced with
the need to define "obscenity." Meanwhile, whose who profit from
the commercial exploitation of obscenity would continue to ply
their trade unmolested.
In my opinion, the use to which various materials are put -- not
just the words and pictures themselves -- must be considered in
determining whether or not the materials are obscene. A technical
or legal treatise on pornography may well be inoffensive under most
circumstances, but, at the same time, "obscene" in the extreme when
sold or displayed to children. [
Footnote 3/2]
Finally, material which is in fact obscene under the
Roth test may be proscribed in a number of ways -- for
instance, by confiscation of the material or by prosecution of
those who disseminate it -- provided always that the proscription,
whatever it may be, is imposed in accordance with constitutional
standards. If the proceeding involved is criminal, there must be a
right to a jury trial, a right to counsel, and all the other
safeguards necessary to assure due process of law. If the
proceeding is civil in nature, the constitutional requirements
applicable in such a case must also be observed. There has been
Page 378 U. S. 202
some tendency, in dealing with this area of the law, for
enforcement agencies to do only that which is easy to do -- for
instance, to seize and destroy books with only a minimum of
protection. As a result, courts are often presented with
procedurally bad cases and, in dealing with them, appear to be
acquiescing in the dissemination of obscenity. But if cases were
well prepared and were conducted with the appropriate concern for
constitutional safeguards, courts would not hesitate to enforce the
laws against obscenity. Thus, enforcement agencies must realize
that there is no royal road to enforcement; hard and conscientious
work is required.
In light of the foregoing, I would reiterate my acceptance of
the rule of the
Roth case: material is obscene and not
constitutionally protected against regulation and proscription
if,
"to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest."
354 U.S. at
354 U. S. 489.
I would commit the enforcement of this rule to the appropriate
state and federal courts, and I would accept their judgments made
pursuant to the
Roth rule, limiting myself to a
consideration only of whether there is sufficient evidence in the
record upon which a finding of obscenity could be made. If there is
no evidence in he record upon which such a finding could be made,
obviously the material involved cannot be held obscene.
Cf.
Thompson v. City of Louisville, 362 U.
S. 199. But since a mere modicum of evidence may satisfy
a "no evidence" standard, I am unwilling to give the important
constitutional right of free expression such limited protection.
However, protection of society's right to maintain its moral fiber
and the effective administration of justice require that this Court
not establish itself as an ultimate censor, in each case reading
the entire record, viewing the accused material, and making an
independent
de novo judgment on the question of obscenity.
Therefore,
Page 378 U. S. 203
once a finding of obscenity has been made below under a proper
application of the
Roth test, I would apply a "sufficient
evidence" standard of review -- requiring something more than
merely any evidence, but something less than "substantial evidence
on the record (including the allegedly obscene material) as a
whole."
Cf. Universal Camera Corp. v. Labor Board,
340 U. S. 474.
This is the only reasonable way I can see to obviate the necessity
of this Court's sitting as the Super Censor of all the obscenity
purveyed throughout the Nation.
While, in this case, I do not subscribe to some of the State's
extravagant contentions, neither can I say that the courts below
acted with intemperance or without sufficient evidence in finding
the moving picture obscene within the meaning of the
Roth
test. Therefore, I would affirm the judgment.
[
Footnote 3/1]
Roth v. United States, 354 U.
S. 476.
[
Footnote 3/2]
In the instant case, for example, the advertisements published
to induce the public to view the motion picture provide some
evidence of the film's dominant theme: "When all conventions
explode . . . in the most daring love story ever filmed!" "As close
to authentic amour as is possible on the screen." "The frankest
love scenes yet seen on film." "Contains one of the longest and
most sensuous love scenes to be seen in this county."
MR. JUSTICE HARLAN, dissenting.
While agreeing with my Brother BRENNAN's opinion that the
responsibilities of the Court in this area are no different from
those which attend the adjudication of kindred constitutional
questions, I have heretofore expressed the view that the States are
constitutionally permitted greater latitude in determining what is
bannable on the score of obscenity than is so with the Federal
Government.
See my opinion in
Roth v. United
States, 354 U. S. 476,
354 U. S. 496;
cf. my opinion in
Manual Enterprises, Inc. v.
Day, 370 U. S. 478.
While, as correctly said in MR. JUSTICE BRENNAN's opinion, the
Court has not accepted that view, I nonetheless feel free to adhere
to it in this still developing aspect of constitutional law.
The more I see of these obscenity cases, the more convinced I
become that in permitting the States wide but not federally
unrestricted scope in this field, while holding the Federal
Government with a tight rein, lies the best promise for achieving a
sensible accommodation between
Page 378 U. S. 204
the public interest sought to be served by obscenity laws
(
cf. my dissenting opinion in
Bantam Books, Inc. v.
Sullivan, 372 U. S. 58,
372 U. S. 76-77)
and protection of genuine rights of free expression.
I experience no greater ease than do other members of the Court
in attempting to verbalize generally the respective constitutional
tests, for, in truth, the matter, in the last analysis, depends on
how particular challenged material happens to strike the minds of
jurors or judges, and ultimately those of a majority of the members
of this Court. The application of any general constitutional tests
must thus necessarily be pricked out on a case-by-case basis, but,
as a point of departure, I would apply to the Federal Government
the
Roth standards as amplified in my opinion in
Manual Enterprises, supra. As to the States, I would make
the federal test one of rationality. I would not prohibit them from
banning any material which, taken as a whole, has been reasonably
found in state judicial proceedings to treat with sex in a
fundamentally offensive manner under rationally established
criteria for judging such material.
On this basis, having viewed the motion picture in question, I
think the State acted within permissible limits in condemning the
film, and would affirm the judgment of the Ohio Supreme Court.