Like libel and fighting words, obscenity is a content-based category of expression that is not protected by the First Amendment. That is to say, authorities may punish obscene material without infringing upon First Amendment rights. The difficulty, however, is defining obscenity, a problem that has plagued the Court. How does one distinguish between sexual expression that might be protected and obscene material that is unprotected? Attempting to answer this question, Justice Potter Stewart once curtly explained, “I know it when I see it.” Until the mid-twentieth century, the Court adopted the Hicklin test, a Victorian common-law standard that judged obscenity in terms of “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences.” Under this standard, sexual expression could be restricted based on the reactions of those most susceptible to sexual suggestion, whether the pervert or the prude. Furthermore, under the Hicklin test, a work could be deemed obscene if only an isolated portion of it, rather than the work as a whole, affected this susceptible person. In, Roth v. United States (1957), the Supreme Court rejected the Hicklin test and replaced it with a new standard for judging obscenity. The Roth test defined obscene material as that which “deals with sex in a manner appealing to the prurient interest” and is “utterly without redeeming social importance.” Under Roth, ideas having even the slightest redeeming social importance are protected. The Roth test and a subsequent iteration of it in Memoirs v. Massachusetts (1966) were superseded by Miller v. California, decided 5–4, and the companion case Paris Adult Theatre I v. Slaton (1973), which remain the controlling precedents for obscenity. Notably, in a nod to federalism and a change from Roth, the new obscenity standard of Miller was a state and local standard, not a national one. The Court also replaced the “utterly without redeeming social value” of the Memoirs test with the SLAPS test (serious, literary, artistic, political, scientific value). Nine years after Miller, in New York v. Ferber (1982), the Court banned child pornography as a category excluded from First Amendment protection.
Source: 413 U.S. 15, https://www.law.cornell.edu/supremecourt/text/413/15.
- CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is one of a group of “obscenity-pornography” cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called “the intractable obscenity problem.”
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.
The brochures advertise four books entitled Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography, and a film entitled Marital Intercourse. While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.
This case involves the application of a state’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the states have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. It is in this context that we are called on to define the standards which must be used to identify obscene material that a state may regulate without infringing on the First Amendment as applicable to the states through the Fourteenth Amendment. . . .
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense 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.
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts; that concept has never commanded the adherence of more than three justices at one time. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the states through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.
We emphasize that it is not our function to propose regulatory schemes for the states. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion:
(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.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. . . .
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such