Page 51 - AVN July 2013

19th century American censorship of public distribution and
display of material relating to sex in any way limited or affected
expression of serious literary, artistic, political, or scientific
ideas.”
“The very possibility of obscenity prosecutions, inherently an
arbitrary determination given the utterly boundless and opaque
‘definition’ of the offense, has grossly distorted the evolution of
sexual entertainment,” defense attorney and Free Speech
Coalition board member Jeffrey Douglas explained. “Bondage
films for thirty years did not depict orgasms or intercourse.
Sexually explicit scenes could not appear in serious Hollywood
productions, despite the overwhelmingly clear evidence that
‘taken as a whole,’ the film could not be obscene. It could never
be worth the risk that some crazy prosecutor might decide that
prosecuting a Hollywood movie as obscene might guarantee re-
election.”
Though many lower courts had ruled on whether some book
or image was obscene under state obscenity laws, the Supreme
Court’s first look at the subject was in 1957, with Roth v. United
States and its companion case, Alberts v. United States.
In those cases, which were decided together, Samuel Roth was
a dealer, distributor and publisher of sexually oriented books and
magazines, and according to attorney/author Edward de Grazia,
Roth “had a reputation of staying one step ahead of the police,”
with his numerous imprints and his mailing list of about
400,000 customers, “including doctors, lawyers and other
professional people.” He was charged in federal court with mail-
ing “obscene circulars and advertisements” and one obscene
book. David Alberts, on the other hand, was a California-based
mail-order retailer who was convicted of having violated
California’s obscenity code for “lewdly keeping for sale obscene
and indecent books, and with writing, composing and
publishing an obscene advertisement of them.”
Prior to Roth, the most accepted “definition” of obscenity was
drawn from the 1868 British case Regina v. Hicklin, which
banned as obscene any material that tended to “deprave and cor-
rupt those whose minds are open to such immoral influences.”
The Eisenhower-era Supreme Court was troubled by that defini-
tion for several reasons, most notably that it focused on the most
vulnerable in society, and applied restrictions on the content
they could see to the entire adult population of the U.S. But
with Roth, the court laid out its most concise “definition” yet of
the term “obscene,” and its ruling was accepted and elaborated
upon by the Burger court in Miller.
In Roth, the high court held that in order for a work to be
obscene, it had to fit the following criteria: “whether to the aver-
age person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to
prurient interest.” This was a staggering change, since it no
longer dealt with those most likely to be adversely affected by
the material, and added the concepts of “community standards,”
“taken as a whole,” and “prurient interest,” generally described as
“a morbid, degrading or unhealthy interest in sex or excretion.”
The Roth criteria held steady for eight years until expanded
under the Supreme Court’s 1965 decision in A Book Named
“John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney
General of Massachusetts, sometimes referred to as the “Fanny
Hill case” after Cleland’s titular character, but better known in
legal circles as the “Memoirs case.” There, the high court ruled
that a work could not be considered obscene unless it were “utterly without redeeming social value.”
“The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can
be deemed obscene.’ ... This is so even though the book is found to possess the requisite prurient appeal and to
be patently offensive,” wrote Justice Brennan for a plurality of the court. “Each of the three federal constitu-
tional criteria is to be applied independently. … Hence, even on the view of the court below that Memoirs
possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous
interpretation of a federal constitutional standard.”
Following Memoirs, the Supreme Court did its best to avoid dealing with obscenity cases, and in the 31
such cases that came before it on appeal, such as Redrup v. New York, it issued rulings without supporting
opinions. This was because at least one contemporary justice, Felix Frankfurter, disliked having to look at the
material at issue, though another, Thurgood Marshall, “used to bring popcorn and he really used to whoop it
up,” according to attorney and constitutional scholar Reed Lee.
“I’ve read the various accounts,” Lee continued, “and it certainly does seem like he was having a good old
time, maybe at the expense of some of his fellow justices that he thought were a little prudish, but he might
really have either appreciated the genre or at least really believed, deep down in his being, that it was none of
the law’s damned business.”
Even Brennan in his Paris dissent remarked that watching the materials “is hardly a source of edification to
the members of this Court.”
“Most of the problems arose from the Supreme Court’s exhaustion from reviewing movies to determine
whether banning such films was constitutionally protected,” agreed attorney Douglas. “Obviously a foolish
waste of the precious resources of the Supreme Court, yet the Court politically was unwilling to undo the
traditional concept and declare ‘obscenity’ incompatible with the First Amendment. Instead they authorized
hundreds of ‘communities’ to each establish their own essentially unreviewable rules.”
And then there was Miller—and its companions, the most famous of which is Paris Adult Theatre I v. Slaton,
in which Justice Brennan chose to dissent in a manner that would have significantly more useful in Miller.
“Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a
case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of
sexually oriented expression that may be totally suppressed by the Federal and State Governments,” Justice
Brennan wrote after an exhaustive analysis of the high court’s obscenity rulings to date. “Assuming that such a
>>
Miller made it clear that
the First Amendment
protects a lot of what
people call ‘porn,’ but it
did so in a way that
leaves most of us
scratching our heads
about the particulars.
—Quentin Boyer
”
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