Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader, extending also, for example, to sexually explicit entertainment. The Supreme Court has rejected the idea that the First Amendment “applies only to the exposition of ideas,” saying “[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.” 1 Footnote
Winters v. New York, 333 U.S. 507, 510 (1948) . Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) . Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991) . The right to impart and to receive “information and ideas, regardless of their social worth . . . is fundamental to our free society.” 2 Footnote
Stanley v. Georgia, 394 U.S. 557, 564 (1969) . Accordingly, obscene material, referring to certain sexually explicit material,3 Footnote
See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971) (noting that “obscene expression” must be “erotic,” not just crude); accord Mahanoy Area Sch. Dist. v. B.L. , No. 20-255, slip op. at 8 (U.S. June 23, 2021) . may be protected even if it is “arguably devoid of any ideological content.” 4 Footnote
Id. at 566 . See also Winters v. New York, 333 U.S. 507 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) . The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. The Court stated: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89 . Nonetheless, while sexually explicit material may be entitled to constitutional protection, the Court has said the subcategories of obscenity and child p*rnography—the latter discussed in a subsequent essay—can generally be regulated without triggering heightened scrutiny.5 Footnote
Amdt1.7.5.12 Child p*rnography.
Adjudication over the constitutional law of obscenity began in Roth v. United States ,6 Footnote
354 U.S. 476 (1957) . Heard at the same time and decided in the same opinion was Alberts v. California , involving a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957) , considered infra. Earlier the Court had divided 4-4 and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York , 335 U.S. 848 (1948) . in which the Court ruled that obscenity is not “within the area of protected speech and press.” 7 Footnote
Roth v. United States, 354 U.S. 476, 485 (1957) . Justice William Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to protecting children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) . The Court undertook a brief historical survey to demonstrate that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” 8 Footnote
354 U.S. at 483 . All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. This history was deemed to demonstrate that “obscenity, too, was outside the protection intended for speech and press.” 9 Footnote
354 U.S. at 482–83 . The Court said that although “[a]ll ideas having even the slightest redeeming social importance” were entitled to First Amendment protections, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” 10 Footnote
354 U.S. at 484 . See also Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) . Because obscenity was not protected at all, tests such as clear and present danger, which the Court had previously applied to assess the constitutionality of other laws, were irrelevant.11 Footnote
354 U.S. at 486 (quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) ).
The Court clarified, however, that, “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example, in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore 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.” 12 Footnote
354 U.S. at 487, 488 . The Court identified the relevant standard for unprotected obscenity as “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 13 Footnote
354 U.S. at 489 . The Court defined material appealing to prurient interest as “material having a tendency to excite lustful thoughts,” and defined prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.” 14 Footnote
354 U.S. at 487 n.20 . A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . The Court noted that obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Id. Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires.
In the years after Roth , the Court considered many obscenity cases. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,15 Footnote
In Butler v. Michigan, 352 U.S. 380 (1957) , the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968) , although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968) ; Rabeck v. New York, 391 U.S. 462 (1968) . Even those Justices who would proscribe obscenity regulation for adults concurred in protecting children in this context. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Brennan, J., dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. The Court stated: “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978) ; Pinkus v. United States, 436 U.S. 293, 296–98 (1978) . unwilling adult recipients,16 Footnote
The Court emphasized protecting unwilling adults in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970) , which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978) , or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as p*rnography, to protect the sensibilities of some. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975) . But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both “'sensitive’ and ‘insensitive’ persons” in the community, but may not “focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . . ” ). and procedure,17 Footnote
The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has absorbed First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961) ; A Quantity of Books v. Kansas, 378 U.S. 205 (1964) ; Heller v. New York, 413 U.S. 483 (1973) ; Roaden v. Kentucky, 413 U.S. 496 (1973) ; Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ; see also Walter v. United States, 447 U.S. 649 (1980) . Scienter—knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959) , but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974) . See also Vance v. Universal Amusem*nt Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Anthony Kennedy, dissenting in Alexander, objected to the “forfeiture of expressive material that had not been adjudged to be obscene.” Id. at 578 . these cases are best explicated chronologically. In Manual Enterprises v. Day ,18 Footnote
370 U.S. 478 (1962) . the Court upset a Post Office ban upon mailing certain magazines addressed to hom*osexual audiences, but none of the Court’s opinions gained the support of the majority. Nor did a majority opinion emerge in Jacobellis v. Ohio , which reversed a conviction for exhibiting a motion picture.19 Footnote
378 U.S. 184 (1964) . Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964) . Jacobellis is best known for Justice Potter Stewart’s concurrence, contending that criminal prohibitions should be limited to “hard-core p*rnography.” The category “may be indefinable,” he added, but “I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197 . The difficulty with this visceral test is that other members of the Court did not always “see it” the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene). In Ginzburg v. United States ,20 Footnote
383 U.S. 463 (1966) . Pandering remains relevant in p*rnography cases. Splawn v. California, 431 U.S. 595 (1977) ; Pinkus v. United States, 436 U.S. 293, 303–04 (1978) . the Court held that in “close” cases borderline materials could be determined to be obscene if the seller “pandered” them in a way that indicated he was catering to prurient interests. On the same day, the same five-Justice majority affirmed a state conviction under a law prohibiting distributing obscene books by applying the “pandering” test and concluding that courts could hold material to be legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.21 Footnote
Mishkin v. New York, 383 U.S. 502 (1966) . See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977) . On the same day, however, the Court held that Fanny Hill , a novel, which at that point was 277 years old, was not legally obscene.22 Footnote
A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) . The Court’s prevailing opinion restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value.23 Footnote
383 U.S. at 418 . On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977) .
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by issuing per curiam dispositions in nearly three dozen cases in which it reversed convictions or civil determinations of obscenity in all but one. The initial case was Redrup v. New York ,24 Footnote
386 U.S. 767 (1967) . in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,25 Footnote
386 U.S. at 771 . the Court succinctly summarized the varying positions of the seven Justices in the majority and said: “[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .” 26 Footnote
386 U.S. at 770–71 . The majority was thus composed of Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Abe Fortas. Although the Court’s subsequent cases followed the pattern established in Redrup ,27 Footnote
See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Brennan, J., dissenting) (describing Redrup practice and listing thirty-one cases decided on the basis of it). the Court’s changing membership led to speculation about the continuing vitality of Roth and the Court’s Redrup approach.28 Footnote
See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Board of Censors, 401 U.S. 480 (1971) , a state court determination that the motion picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court, Justice William O. Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560– 64, 568 (1969) , had insisted that Roth remained the governing standard.
At the end of the October 1971 Term, the Court requested argument on whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected.29 Footnote
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ; Alexander v. Virginia , 408 U.S. 921 (1972) . By a 5-4 vote during the October 1972 Term, the Court in Paris Adult Theatre I v. Slaton adhered to the Roth principle that the First and Fourteenth Amendments do not protect obscene material even if access is limited to consenting adults.30 Footnote
413 U.S. 49 (1973) . Writing for the Court, Chief Justice Warren Burger observed that the states have wider interests than protecting juveniles and unwilling adults from exposure to p*rnography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. Consequently, Chief Justice Warren reasoned, it does not matter that the states may be acting based on unverifiable assumptions in deciding to suppress the trade in p*rnography because the Constitution does not require, in the context of the trade in ideas, that governmental courses of action be subject to empirical verification any more than it does in other fields. Chief Justice Warren further noted that the Constitution does not embody any concept of laissez-faire, or of privacy, or of “free will,” that curbs governmental efforts to suppress p*rnography.31 Footnote
413 U.S. at 57, 60–62, 63–64, 65–68 . Delivering the principal dissent, Justice William Brennan argued that the Court’s Roth approach allowing the suppression of p*rnography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73 . Justice William Brennan stated: “I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Id. at 113 . Justices Stewart and Marshall joined Justice William Brennan’s opinion; Justice William O. Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70 .
In Miller v. California ,32 Footnote
413 U.S. 15 (1973) . the Court prescribed the currently prevailing standard by which courts identify unprotected p*rnographic materials. Because of the inherent dangers in regulating any form of expression, the Court noted, laws to regulate p*rnography must be carefully limited and their scope confined to materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” 33 Footnote
Miller v. California, 413 U.S. 15, 27 (1973) . The Court may read into federal statutes standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and “immoral” as limited to the types of “hard core” p*rnography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of p*rnography in interstate commerce). The Court’s insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977) . The Court further reasoned that law “must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” 34 Footnote
Miller v. California , 413 U.S. at 24 . The Court disavowed and discarded the standard that a work must be “utterly without redeeming social value” to be suppressed.35 Footnote
Id. at 24–25 . In determining whether material appeals to a prurient interest or is patently offensive, the trier-of-fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the trier-of-fact’s local community standard.36 Footnote
It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) ; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) . Prurient interest and patent offensiveness, the Court indicated, “are essentially questions of fact.” 37 Footnote
413 U.S. at 30–34 . The Court stated: “A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United States, 418 U.S. 87, 104 (1974) . The holding does not compel any particular circ*mscribed area to be used as a “community.” In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106 . The jurors may be instructed to apply “community standards” without any definition being given of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974) . In a federal prosecution for using the mails to transmit p*rnography, the fact that the legislature of the state in which the transaction occurred had abolished p*rnography regulation except for dealings with children does not preclude permitting jurors in a federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature’s decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977) . By contrast, the prong of the Miller test that looked at the material’s “value” is not subject to a community standards test; instead, the appropriate standard is “whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.” 38 Footnote
Pope v. Illinois, 481 U.S. 497, 500–01 (1987) .
The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only “hard core” materials were to be deemed without the protection of the First Amendment, and the Court’s idea of the content of “hard core” p*rnography was revealed in “a few plain examples of what a state” could regulate: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 39 Footnote
Miller v. California, 413 U.S. 15, 25 (1973) . Quoting Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974) , the Court reiterated that it was only “hard-core” material that was unprotected. The Court stated: “While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977) , the Court upheld a state court’s power to construe its statute to reach sadomasoch*stic materials not within the confines of the Miller language. Subsequently, the Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” 40 Footnote
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.” 41 Footnote
Id. The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.42 Footnote
Kaplan v. California, 413 U.S. 115 (1973) .
First Amendment values, the Court stressed in Miller , “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” 43 Footnote
Id. at 25 . While the Court had said juries as triers-of-fact should determine, based on their understanding of community standards, whether material was “patently offensive,” it was less clear how appeals courts could appropriately review these jury determinations. In Jenkins v. Georgia ,44 Footnote
418 U.S. 153 (1974) . the Court, while adhering to the Miller standards, stated that “juries [do not] have unbridled discretion in determining what is ‘patently offensive.’” Miller was intended to make clear that only “hard-core” materials could be suppressed and this concept and the Court’s descriptive itemization of some types of hardcore materials were “intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.” 45 Footnote
Id. at 160–61 . Viewing the motion picture in question convinced the Court that “[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.” 46 Footnote
Id. at 161 . The film at issue was Carnal Knowledge. But, in a companion case, the Court found that a jury determination of obscenity “was supported by the evidence and consistent with” the standards.47 Footnote
Hamling v. United States, 418 U.S. 87 (1974) . In Smith v. United States, 431 U.S. 291, 305–06 (1977) , the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members’ own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller , (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller “was particularly amenable to judicial review.” The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987) , but instead by a “reasonable person” standard. An erroneous instruction on this score, however, may be “harmless error.” Id. at 503 .
While the Court’s decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities,48 Footnote
For other five-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977) ; Smith v. United States, 431 U.S. 291 (1977) ; Splawn v. California, 431 U.S. 595 (1977) ; and Ward v. Illinois, 431 U.S. 767 (1977) . they have since guided the Court. For example, the Court struck down federal regulations aimed at preventing the transmission of indecent materials over the telephone and internet, where those statutes did not adhere to the Miller standard.49 Footnote
See, e.g., Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989) ; Reno v. Aclu, 521 U.S. 844, 874 (1997) ; see also . Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home,50 Footnote
Stanley v. Georgia, 394 U.S. 557 (1969) . unless those materials constitute child p*rnography. In Stanley v. Georgia, the appellant appealed his state conviction for possessing obscene films that police officers discovered in his home pursuant to a search warrant for other items which the police did not find. The Court reversed, holding that mere private possession of obscene materials in the home cannot be a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and “that right takes on an added dimension” in the context of a prosecution for possession of something in one’s own home. The Court stated: “For also fundamental is the right to be free, except in very limited circ*mstances, from unwanted governmental intrusions into one’s privacy.” 51 Footnote
Id. at 564 . Despite the Court’s unqualified assertion in Roth that the First Amendment did not protect obscenity, the Court remained concerned with the government interest in regulating commercial distribution of obscene materials. Though the Stanley Court said its decision did not impair Roth and cases relying on that decision,52 Footnote
Id. at 560–64, 568 . by rejecting each state contention in support of a conviction, the Court appeared to reject much of Roth’s basis. In Stanley, the Court made the following points: (1) there is no government interest in protecting an individual’s mind from the effect of obscenity; (2) the absence of ideological content in films is irrelevant, since the Court would not distinguish transmission of ideas and entertainment; (3) no empirical evidence supported a contention that exposure to obscene materials may incite a person to antisocial conduct and, even if such evidence existed, government may address this by enforcing laws proscribing the offensive conduct; (4) it is not necessary to punish mere possession in order to punish distribution; and (5) private possession was unlikely to contribute to the problems prompting laws barring public dissemination of obscene materials or exposing children and unwilling adults to such materials.53 Footnote
Id. at 565–68 .
The Court has confined Stanley 's holding to its facts and has also dispelled any suggestion that Stanley applies outside the home or recognizes a right to obtain or supply p*rnography.54 Footnote
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973) . Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973) , and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971) , as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) ; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) . For instance, the Court has held Stanley does not apply to possessing child p*rnography in the home because the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves.55 Footnote
Osborne v. Ohio, 495 U.S. 103 (1990) .
Footnotes 1 Winters v. New York, 333 U.S. 507, 510 (1948) . Illustrative of the general observation is the fact that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) . Nude dancing is also. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991) . 
2 Stanley v. Georgia, 394 U.S. 557, 564 (1969) . 3 See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971) (noting that “obscene expression” must be “erotic,” not just crude); accord Mahanoy Area Sch. Dist. v. B.L. , No. 20-255, slip op. at 8 (U.S. June 23, 2021) . 4 Id. at 566 . See also Winters v. New York, 333 U.S. 507 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) . The last case involved the banning of the movie Lady Chatterley’s Lover on the ground that it dealt too sympathetically with adultery. The Court stated: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Id. at 688–89 . 5 Amdt1.7.5.12 Child p*rnography. 6 354 U.S. 476 (1957) . Heard at the same time and decided in the same opinion was Alberts v. California , involving a state obscenity law. The Court’s first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957) , considered infra. Earlier the Court had divided 4-4 and thus affirmed a state court judgment that Edmund Wilson’s Memoirs of Hecate County was obscene. Doubleday & Co. v. New York , 335 U.S. 848 (1948) . 7 Roth v. United States, 354 U.S. 476, 485 (1957) . Justice William Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to protecting children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) . 8 354 U.S. at 483 . 9 354 U.S. at 482–83 . 10 354 U.S. at 484 . See also Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) . 11 354 U.S. at 486 (quoting Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) ). 12 354 U.S. at 487, 488 . 13 354 U.S. at 489 . 14 354 U.S. at 487 n.20 . A statute defining “prurient” as “that which incites lasciviousness or lust” covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . The Court noted that obscenity consists in appeal to “a shameful or morbid” interest in sex, not in appeal to “normal, healthy sexual desires.” Id. Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between “normal, healthy” sexual desires and “shameful” or “morbid” sexual desires. 15 In Butler v. Michigan, 352 U.S. 380 (1957) , the Court unanimously reversed a conviction under a statute that punished general distribution of materials unsuitable for children. Protesting that the statute “reduce[d] the adult population of Michigan to reading only what is fit for children,” the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968) , although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968) ; Rabeck v. New York, 391 U.S. 462 (1968) . Even those Justices who would proscribe obscenity regulation for adults concurred in protecting children in this context. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Brennan, J., dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. The Court stated: “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Foundation, 438 U.S. 726, 749–50 (1978) ; Pinkus v. United States, 436 U.S. 293, 296–98 (1978) . 16 The Court emphasized protecting unwilling adults in Rowan v. Post Office Dep’t, 397 U.S. 728 (1970) , which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978) , or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as p*rnography, to protect the sensibilities of some. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975) . But see Pinkus v. United States, 436 U.S. 293, 300 (1978) (jury in determining community standards must include both “'sensitive’ and ‘insensitive’ persons” in the community, but may not “focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . . ” ). 17 The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Additionally, Fourth Amendment search and seizure law has absorbed First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961) ; A Quantity of Books v. Kansas, 378 U.S. 205 (1964) ; Heller v. New York, 413 U.S. 483 (1973) ; Roaden v. Kentucky, 413 U.S. 496 (1973) ; Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ; see also Walter v. United States, 447 U.S. 649 (1980) . Scienter—knowledge of the nature of the materials—is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959) , but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119–24 (1974) . See also Vance v. Universal Amusem*nt Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes impermissible prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Anthony Kennedy, dissenting in Alexander, objected to the “forfeiture of expressive material that had not been adjudged to be obscene.” Id. at 578 . 18 370 U.S. 478 (1962) . 19 378 U.S. 184 (1964) . Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller’s Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964) . Jacobellis is best known for Justice Potter Stewart’s concurrence, contending that criminal prohibitions should be limited to “hard-core p*rnography.” The category “may be indefinable,” he added, but “I know it when I see it, and the motion picture involved in this case is not that.” Id. at 197 . The difficulty with this visceral test is that other members of the Court did not always “see it” the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene). 20 383 U.S. 463 (1966) . Pandering remains relevant in p*rnography cases. Splawn v. California, 431 U.S. 595 (1977) ; Pinkus v. United States, 436 U.S. 293, 303–04 (1978) . 21 Mishkin v. New York, 383 U.S. 502 (1966) . See id. at 507–10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977) . 22 A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 (1966) . 23 383 U.S. at 418 . On the precedential effect of the Memoirs plurality opinion, see Marks v. United States, 430 U.S. 188, 192–94 (1977) . 24 386 U.S. 767 (1967) . 25 386 U.S. at 771 . 26 386 U.S. at 770–71 . The majority was thus composed of Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Abe Fortas. 27 See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82–83 & n.8 (1973) (Brennan, J., dissenting) (describing Redrup practice and listing thirty-one cases decided on the basis of it). 28 See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Board of Censors, 401 U.S. 480 (1971) , a state court determination that the motion picture “I Am Curious (Yellow)” was obscene was affirmed by an equally divided Court, Justice William O. Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560– 64, 568 (1969) , had insisted that Roth remained the governing standard. 29 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ; Alexander v. Virginia , 408 U.S. 921 (1972) . 30 413 U.S. 49 (1973) . 31 413 U.S. at 57, 60–62, 63–64, 65–68 . Delivering the principal dissent, Justice William Brennan argued that the Court’s Roth approach allowing the suppression of p*rnography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73 . Justice William Brennan stated: “I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Id. at 113 . Justices Stewart and Marshall joined Justice William Brennan’s opinion; Justice William O. Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70 . 32 413 U.S. 15 (1973) . 33 Miller v. California, 413 U.S. 15, 27 (1973) . The Court may read into federal statutes standards it has formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” and “immoral” as limited to the types of “hard core” p*rnography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110–16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of p*rnography in interstate commerce). The Court’s insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977) . 34 Miller v. California , 413 U.S. at 24 . 35 Id. at 24–25 . 36 It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) ; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) . 37 413 U.S. at 30–34 . The Court stated: “A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling v. United States, 418 U.S. 87, 104 (1974) . The holding does not compel any particular circ*mscribed area to be used as a “community.” In federal cases, it will probably be the judicial district from which the jurors are drawn, id. at 105–106 . The jurors may be instructed to apply “community standards” without any definition being given of the “community.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974) . In a federal prosecution for using the mails to transmit p*rnography, the fact that the legislature of the state in which the transaction occurred had abolished p*rnography regulation except for dealings with children does not preclude permitting jurors in a federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature’s decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977) . 38 Pope v. Illinois, 481 U.S. 497, 500–01 (1987) . 39 Miller v. California, 413 U.S. 15, 25 (1973) . Quoting Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974) , the Court reiterated that it was only “hard-core” material that was unprotected. The Court stated: “While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases.” Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977) , the Court upheld a state court’s power to construe its statute to reach sadomasoch*stic materials not within the confines of the Miller language. 40 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) . 41 Id. 42 Kaplan v. California, 413 U.S. 115 (1973) . 43 Id. at 25 . 44 418 U.S. 153 (1974) . 45 Id. at 160–61 . 46 Id. at 161 . The film at issue was Carnal Knowledge. 47 Hamling v. United States, 418 U.S. 87 (1974) . In Smith v. United States, 431 U.S. 291, 305–06 (1977) , the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members’ own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller , (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller “was particularly amenable to judicial review.” The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987) , but instead by a “reasonable person” standard. An erroneous instruction on this score, however, may be “harmless error.” Id. at 503 . 48 For other five-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977) ; Smith v. United States, 431 U.S. 291 (1977) ; Splawn v. California, 431 U.S. 595 (1977) ; and Ward v. Illinois, 431 U.S. 767 (1977) . 49 See, e.g., Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989) ; Reno v. Aclu, 521 U.S. 844, 874 (1997) ; see also . 50 Stanley v. Georgia, 394 U.S. 557 (1969) . 51 Id. at 564 . 52 Id. at 560–64, 568 . 53 Id. at 565–68 . 54 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65–68 (1973) . Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973) , and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971) , as may channels of international movement, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) ; United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973) . 55 Osborne v. Ohio, 495 U.S. 103 (1990) .
