Not many legal concepts reduce Supreme Court Justices to uttering, “I know it when I see it.” But that’s exactly what Justice Potter Stewart wrote about obscenity. When the case before the Court required the Justices to come up with standards for determining whether a work is “hard-core pornography,” Justice Stewart threw his hands up in the air: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’]; 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.” (Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring).)
To be fair, Justice Stewart wasn’t the first – or the last – to struggle to define the murky concept of obscenity. Courts throughout the nation have wrestled with this topic for ages.
Modern regulation of obscenity began in England with the Obscene Publications Act of 1857, which banned pornographic and otherwise obscene materials. In the 1868 case of Regina v. Hicklin, English judges used the law to uphold the seizure and destruction of pamphlets criticizing the Roman Catholic Church. The judges wrote that a work was obscene if any isolated excerpt in it was offensive. According to this test, the material’s context was irrelevant. Thus, for example, a book about human biology could have been banned simply because it explained sexual intercourse. Although some American courts adopted the Regina approach, it eventually gave way to a more holistic view.
Between 1942 and 1956, Congress passed some 20 laws concerning obscenity, and almost every state did the same. Finally, in 1957, the Supreme Court announced the test for obscenity, holding that material is obscene if, in view of contemporary community standards, its dominant theme appeals to the average person’s “prurient interest.” Accordingly, courts were to judge content by its tendency, when viewed as a whole, to arouse sexual desire. (Roth v. United States, 354 U.S. 476 (1957).)
What About the First Amendment?
Many readers will wonder how attempts to regulate supposedly obscene speech and other expressions fared when they bumped up against our right to freedom of speech, guaranteed in the United States Constitution. Perhaps surprisingly, free speech gave way—courts determined that the First Amendment did not protect obscenity. They decided that the states could regulate obscene matter because, by definition, it lacks any redeeming social value.
The Roth test proved to be very difficult to apply consistently. Courts reached contrary results when considering identical material. For example, in the 1960s courts in some states deemed Henry Miller’s book Tropic of Cancer obscene, while courts in others held that it was not. The legal status of the book differed depending on the state in which it was published or sold. The Supreme Court finally considered the book in 1964, deciding that it was not obscene.
Justice Stewart penned his notorious description of obscenity in Jacobellis v. Ohio, also decided in 1964. In that case, the manager of an Ohio theater had been convicted for exhibiting the French film “The Lovers.” In a split decision overturning the conviction, the Justices could not agree on whether the film was obscene or which legal standard should be used. In his inimitable way, Justice Stewart opined that obscenity must be limited to “hard-core pornography.” Courts have apparently agreed, as today obscenity is practically, if not technically, restricted to matters involving sexuality.
The Supreme Court eventually moved from the Roth test to a slightly more comprehensive view of obscenity. Under the approach adopted in Miller v. California, before a state bans a form of expression on the grounds that it is obscene, it must establish that the material, when taken as a whole:
Courts still use the Miller test to differentiate between obscene matters and those protected under the Constitution. The states are free to establish more liberal interpretations of obscenity, but they may not apply standards that are any more exacting. Yet, no matter the standard involved, the line between constitutionally protected speech and obscenity is not only thin, but difficult—if not impossible—to pin down. It evolves alongside social perceptions of decency.
Criminal cases aren’t the only legal proceedings involving questions of obscenity; the issue also arises when governments seek to regulate or stop certain behavior, or seize and destroy controversial material. Here are some instances where courts have upheld the states’ use of the power to prohibit obscenity:
Unconstitutional use of the obscenity power includes: