|Paris Adult Theatre I v. Slaton
[ Burger ]
[ Douglas ]
[ Brennan ]
Paris Adult Theatre I v. Slaton
CERTIORARI TO THE SUPREME COURT OF GEORGIA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
This case requires the Court to confront once again the vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment, as applied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U.S. 476 (1957), and culminating in the Court's decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the [p74] time has come to make a significant departure from that approach.
In this civil action in the Superior Court of Fulton County, the State of Georgia sought to enjoin the showing of two motion pictures, It All Comes Out In The End, and Magic Mirror, at the Paris Adult Theatres (I and II) in Atlanta, Georgia. The State alleged that the films were obscene under the standards set forth in Georgia Code Ann. § 26-2101. [n1] The trial court denied injunctive relief, holding that, even though the films could be considered obscene, their commercial presentation could not constitutionally be barred in the absence of proof that they were shown to minors or unconsenting adults. Reversing, the Supreme Court of Georgia found the films obscene, and held that the care taken to avoid exposure to minors and unconsenting adults was without constitutional significance.
The Paris Adult Theatres are two commercial cinemas, linked by a common box office and lobby, on Peachtree Street in Atlanta, Georgia. On December 28, 1970, investigators employed by the Criminal Court of Fulton County entered the theaters as paying customers and viewed each of the films which are the subject of this action. Thereafter, two separate complaints, one for [p75] each of the two films, were filed in the Superior Court seeking a declaration that the films were obscene and an injunction against their continued presentation to the public. The complaints alleged that the films were
a flagrant violation of Georgia Code Section 26-2101 in that the sole and dominant theme[s] of the said motion picture film[s] considered as a whole and applying contemporary community standards [appeal] to the prurient interest in sex, nudity and excretion, and that the said motion picture film[s are] utterly and absolutely without any redeeming social value whatsoever, and [transgress] beyond the customary limits of candor in describing and discussing sexual matters.
App. 20, 39.
Although the language of the complaints roughly tracked the language of § 26-2101, which imposes criminal penalties on persons who knowingly distribute obscene materials, [n2] this proceeding was not brought pursuant to that statute. Instead, the State initiated a nonstatutory civil proceeding to determine the obscenity of the films and to enjoin their exhibition. While the parties waived jury trial and stipulated that the decision of the trial court would be final on the issue of obscenity, the State has not indicated whether it intends to bring a criminal action under the statute in the event that it succeeds in proving the films obscene.
Upon the filing of the complaints, the trial court scheduled a hearing for January 13, 1971, and entered an order temporarily restraining the defendants from concealing, destroying, altering, or removing the films [p76] from the jurisdiction, but not from exhibiting the films to the public pendente lite. In addition to viewing the films at the hearing, the trial court heard the testimony of witnesses and admitted into evidence photographs that were stipulated to depict accurately the facade of the theater. The witnesses testified that the exterior of the theater was adorned with prominent signs reading "Adults Only," "You Must Be 21 and Able to Prove It," and "If the Nude Body Offends You, Do Not Enter." Nothing on the outside of the theater described the films with specificity. Nor were pictures displayed on the outside of the theater to draw the attention of passersby to the contents of the films. The admission charge to the theaters was $3. The trial court heard no evidence that minors had ever entered the theater, but also heard no evidence that petitioners had enforced a systematic policy of screening out minors (apart from the posting of the notices referred to above).
On the basis of the evidence submitted, the trial court concluded that the films could fairly be considered obscene, "[a]ssuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately," but held, nonetheless, that
the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible. [n3] [p77] Since the issue did not arise in a statutory proceeding, the trial court was not required to pass upon the constitutionality of any state statute, on its face or as applied, in denying the injunction sought by the State.
The Supreme Court of Georgia unanimously reversed, reasoning that the lower court's reliance on Stanley v. Georgia, 394 U.S. 557 (1969), was misplaced in view of our subsequent decision in United States v. Reidel, 402 U.S. 351 (1971):
In [Reidel], the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution be limited to willing recipients who state that they are adults, and, further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material. . . . Those who choose to pass through the front door of the defendant's theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there. That case clearly establishes once and for all that the sale and delivery of obscene material to willing adults is not [p78] protected under the first amendment.
228 Ga. 343, 346, 185 S.E.2d 768, 769-770 (1971). The decision of the Georgia Supreme Court rested squarely on its conclusion that the State could constitutionally suppress these films even if they were displayed only to persons over the age of 21 who were aware of the nature of their contents and who had consented to viewing them. For the reasons set forth in this opinion, I am convinced of the invalidity of that conclusion of law, and I would therefore vacate the judgment of the Georgia Supreme Court. I have no occasion to consider the extent of state power to regulate the distribution of sexually oriented materials to juveniles or to unconsenting adults. Nor am I required, for the purposes of this review, to consider whether or not these petitioners had, in fact, taken precautions to avoid exposure of films to minors or unconsenting adults.
In Roth v. United States, 354 U.S. 476 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that "sex and obscenity are not synonymous," id. at 487, and that matter which is sexually oriented but not obscene is fully protected by the Constitution. For we recognized that
[s]ex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.
Ibid. [n4] Roth rested, in [p79] other words, on what has been termed a two-level approach to the question of obscenity. [n5] While much criticized, [n6] that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called "obscenity" is still a long and painful step from agreement on a workable definition of the term.
Recognizing that "the freedoms of expression . . . are vulnerable to gravely damaging yet barely visible encroachments," Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963), we have demanded that "sensitive tools" be used to carry out the "separation of legitimate from illegitimate speech." Speiser v. Randall, 357 U.S. 513, 525 (1958). The essence of our problem in the obscenity area is that we have been unable to provide "sensitive tools" to separate obscenity from other sexually oriented but constitutionally protected speech, [p80] so that efforts to suppress the former do not spill over into the suppression of the latter. The attempt, as the late Mr. Justice Harlan observed, has only "produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-705 (1968) (separate opinion).
To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking
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 489. But agreement on that test -- achieved in the abstract and without reference to the particular material before the Court, see id. at 481 n. 8 -- was, to say the least, short-lived. By 1967, the following views had emerged: Mr. Justice Black and MR. JUSTICE DOUGLAS consistently maintained that government is wholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See, e.g., Ginzburg v. United States, 383 U.S. 463, 476, 482 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (concurring opinion); Roth v. United States, supra, at 508 (dissenting opinion). Mr. Justice Harlan, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of "hard core" pornography, while the States were afforded more latitude to
[ban] 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.
Jacobellis v. Ohio, supra, at 204 (dissenting opinion). See also, e.g., Ginzburg v. United States, supra, at 493 (dissenting opinion); A Quantity of Books v. Kansas, 378 U.S. 205, 215 (1964) (dissenting opinion joined by Clark, J.); Roth, supra, at 496 [p81] (separate opinion). MR. JUSTICE STEWART regarded "hard core" pornography as the limit of both federal and state power. See, e.g., Ginzburg v. United States, supra, at 497 (dissenting opinion); Jacobellis v. Ohio, supra, at 197 (concurring opinion).
The view that, until today, enjoyed the most, but not majority, support was an interpretation of Roth (and not, as the Court suggests, a veering "sharply away from the Roth concept" and the articulation of "a new test of obscenity," Miller v. California, ante at 21) adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the author of this opinion in Memoirs v. Massachusetts, 383 U.S. 413 (1966). We expressed the view that Federal or State Governments could control the distribution of material where
three elements . . . coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
Id. at 418. Even this formulation, however, concealed differences of opinion. Compare Jacobellis v. Ohio, supra, at 192-195 (BRENNAN, J., joined by Goldberg, J.) (community standards national), with id. at 200-201 (Warren, C.J., joined by Clark, J., dissenting) (community standards local). [n7] Moreover, it did not provide a definition covering all situations. See Mishkin v. New York, 383 U.S. 502 (1966) [p82] (prurient appeal defined in terms of a deviant sexual group); Ginzburg v. United States, supra, ("pandering" probative evidence of obscenity in close cases). See also Ginsberg v. New York, 390 U.S. 629 (1968) (obscenity for juveniles). Nor, finally, did it ever command a majority of the Court. Aside from the other views described above, Mr. Justice Clark believed that "social importance" could only "be considered together with evidence that the material in question appeals to prurient interest and is patently offensive." Memoirs v. Massachusetts, supra, at 445 (dissenting opinion). Similarly, MR. JUSTICE WHITE regarded "a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor," id. at 460-461 (dissenting opinion), and regarded
"social importance" . . . not [as] an independent test of obscenity, but [as] relevant only to determining the predominant prurient interest of the material. . . .
Id. at 462.
In the face of this divergence of opinion the Court began the practice in Redrup v. New York, 386 U.S. 767 (1967), of per curiam reversals of convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, deemed not to be obscene. [n8] This approach capped the attempt in [p83] Roth to separate all forms of sexually oriented expression into two categories -- the one subject to full governmental suppression and the other beyond the reach of governmental regulation to the same extent as any other protected form of speech or press. Today a majority of the Court offers a slightly altered formulation of the basic Roth test, while leaving entirely unchanged the underlying approach.
Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari, we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.
Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as "prurient interest," "patent offensiveness," "serious literary value," and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we "know it when [we] see it," Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.
We have more than once previously acknowledged that "constitutionally protected expression . . . is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. at 66. See also, e.g., Mishkin v. New York, supra, at 511. Added to the "perhaps inherent residual vagueness" of each of the current multitude of standards, Ginzburg v. United States, supra, at 475 n.19, is the further complication that the obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. See ibid. Redrup itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and "pandering" may also bear upon the determination of [p85] obscenity. See Redrup v. New York, supra, at 769. As Mr. Chief Justice Warren stated in a related vein, obscenity is a function of the circumstances of its dissemination:
It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character.
Roth, 354 U.S. at 495 (concurring opinion). See also, e.g., Jacobellis v. Ohio, supra, at 201 (dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 44546 (1957) (dissenting opinion). I need hardly point out that the factors which must be taken into account are judgmental and can only be applied on "a case-by-case, sight-by-sight" basis. Mishkin v. New York, supra, at 516 (Black, J., dissenting). These considerations suggest that no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment. [n9] [p86]
The vagueness of the standards in the obscenity area produces a number of separate problems, and any improvement must rest on an understanding that the problems are to some extent distinct. First, a vague statute fails to provide adequate notice to persons who are engaged in the type of conduct that the statute could be thought to proscribe. The Due Process Clause of the Fourteenth Amendment requires that all criminal laws provide fair notice of "what the State commands or forbids." Lanzetta v. New Jersey, 30 U.S. 451, 453 (1939); Connally v. General Construction Co., 269 U.S. 385 (1926). In the service of this general principle, we have repeatedly held that the definition of obscenity must provide adequate notice of exactly what [p87] is prohibited from dissemination. See, e.g., Rabe v. Washington, 405 U.S. 313 (1972); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968); Winters v. New York, 333 U.S. 507 (1948). While various tests have been upheld under the Due Process Clause, see Ginsberg v. New York, 390 U.S. at 643; Mishkin v. New York, 383 U.S. at 506-507; Roth v. United States, 354 U.S. at 491-492, I have grave doubts that any of those test could be sustained today. For I know of no satisfactory answer to the assertion by Mr. Justice Black, "after the fourteen separate opinions handed down" in the trilogy of cases decided in 1966, that
no person, not even the most learned judge, much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of "obscenity." . . .
Ginzburg v. United States, 383 U.S. at 480-481 (dissenting opinion). See also the statement of Mr. Justice Harlan in Interstate Circuit, Inc. v. Dallas, supra, at 707 (separate opinion). As Mr. Chief Justice Warren pointed out,
[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.
United States v. Harriss, 347 U.S. 612, 617 (1954). In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute. The resulting level of uncertainty is utterly intolerable, not alone because it makes [p88] "[b]ookselling . . . a hazardous profession," Ginsberg v. New York, supra, at 674 (Fortas, J., dissenting), but as well because it invites arbitrary and erratic enforcement of the law. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Gregory v. City of Chicago, 394 U.S. 111, 120 (1969) (Black, J., concurring); Niemotko v. Maryland, 340 U.S. 268 (1951); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); Thornhill v. Alabama, 310 U.S. 88 (1940).
In addition to problems that arise when any criminal statute fails to afford fair notice of what it forbids, a vague statute in the areas of speech and press creates a second level of difficulty. We have indicated that
stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. [n10]
Smith v. California, 361 U.S. 147, 151 (1959). That proposition draws its strength from our recognition that
[t]he fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society, and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar. . . .
To implement this general principle, and recognizing the inherent vagueness of any definition of obscenity, we have held that the definition of obscenity must be drawn as narrowly as possible, so as to minimize the interference with protected expression. Thus, in Roth, we rejected the test of Regina v. Hicklin,  L.R. 3 Q.B. 360, that "[judged] obscenity by the effect of isolated passages upon the most susceptible persons." 354 U.S. at 489. That test, we held in Roth, "might well encompass material legitimately treating with sex. . . ." Ibid. Cf. Mishkin v. New York, supra, at 509. And we have supplemented the Roth standard with additional tests in an effort to hold in check the corrosive effect of vagueness on the guarantees of the First Amendment. [n12] We have held, for example, that "a State is not free to adopt whatever procedures it pleases [p90] for dealing with obscenity. . . ." Marcus v. Search Warrant, 367 U.S. 717, 731 (1961).
Rather, the First Amendment requires that procedures be incorporated that "ensure against the curtailment of constitutionally protected expression. . . ."
Blount v. Rizzi, 400 U.S. 410, 416 (1971), quoting from Bantam Books, Inc., v. Sullivan, 372 U.S. at 66. See generally Rizzi, supra, at 417; United States v. Thirty-seven Photographs, 402 U.S. 363, 367-375 (1971); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968); Freedman v. Maryland, 380 U.S. 51, 58-60 (1965); A Quantity of Books v. Kansas, 378 U.S. 205 (1964) (plurality opinion).
Similarly, we have held that a State cannot impose criminal sanctions for the possession of obscene material absent proof that the possessor had knowledge of the contents of the material. Smith v. California, supra. "Proof of scienter" is necessary
to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.
Mishkin v. New York, supra, at 511; Ginsberg v. New York, supra, at 644-645. In short,
[t]he objectionable quality of vagueness and overbreadth . . . [is] the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U.S. 717, 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, [361 U.S.], at 151-154; Speiser v. Randall, 357 U.S. 513, 526. Because First Amendment freedoms need breathing space to survive, government [p91] may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 311.
NAACP v. Button, 371 U.S. 415, 432 433 (1963).
The problems of fair notice and chilling protected speech are very grave standing alone. But it does not detract from their importance to recognize that a vague statute in this area creates a third, although admittedly more subtle, set of problems. These problems concern the institutional stress that inevitably results where the line separating protected from unprotected speech is excessively vague. In Roth, we conceded that "there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls. . . ." 354 U.S. at 491-492. Our subsequent experience demonstrates that almost every case is "marginal." And since the "margin" marks the point of separation between protected and unprotected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty.
The suppression of a particular writing or other tangible form of expression is . . . an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards.
Roth, supra, at 497 (separate opinion of Harlan, J.).
Examining the rationale, both explicit and implicit, of our vagueness decisions, one commentator has viewed these decisions as an attempt by the Court to establish an "insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms." Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75 (1960). The buffer zone enables the Court to fend off legislative attempts [p92]
to pass to the courts -- and ultimately to the Supreme Court -- the awesome task of making case by case at once the criminal and the constitutional law.
Id. at 81. Thus,
[b]ecause of the Court's limited power to reexamine fact on a cold record, what appears to be going on in the administration of the law must be forced, by restrictive procedures, to reflect what is really going on; and because of the impossibility, through sheer volume of cases, of the Court's effectively policing law administration case by case, those procedures must be framed to assure, as well as procedures can assure, a certain overall probability of regularity.
Id. at 89 (emphasis in original).
As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court.
But the sheer number of the cases does not define the full extent of the institutional problem. For, quite apart from the number of cases involved and the need to make a fresh constitutional determination in each case, we are tied to the "absurd business of perusing and viewing the miserable stuff that pours into the Court. . . ." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 707 (separate opinion of Harlan, J.). While the material may have varying degrees of social importance, [p93] it is hardly a source of edification to the members of this Court who are compelled to view it before passing on its obscenity. Cf. Mishkin v. New York, 383 U.S. at 516-517 (Black, J., dissenting).
Moreover, we have managed the burden of deciding scores of obscenity cases by relying on per curiam reversals or denials of certiorari -- a practice which conceals the rationale of decision and gives at least the appearance of arbitrary action by this Court. See Bloss v. Dykema, 398 U.S. 278 (1970) (Harlan, J., dissenting). More important, no less than the procedural schemes struck down in such cases as Blount v. Rizzi, supra, and Freedman v. Maryland, supra, the practice effectively censors protected expression by leaving lower court determinations of obscenity intact even though the status of the allegedly obscene material is entirely unsettled until final review here. In addition, the uncertainty of the standards creates a continuing source of tension between state and federal courts, since the need for an independent determination by this Court seems to render superfluous even the most conscientious analysis by state tribunals. And our inability to justify our decisions with a persuasive rationale -- or indeed, any rationale at all -- necessarily creates the impression that we are merely second-guessing state court judges.
The severe problems arising from the lack of fair notice, from the chill on protected expression, and from the stress imposed on the state and federal judicial machinery persuade me that a significant change in direction is urgently required. I turn, therefore, to the alternatives that are now open.
1. The approach requiring the smallest deviation from our present course would be to draw a new line between protected and unprotected speech, still permitting [p94] the States to suppress all material on the unprotected side of the line. In my view, clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power and against the guarantees of the First Amendment. We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is outside the protection of the First Amendment, and therefore open to suppression by the States. That formula would, no doubt, offer much fairer notice of the reach of any state statute drawn at the boundary of the State's constitutional power. And it would also, in all likelihood, give rise to a substantial probability of regularity in most judicial determinations under the standard. But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific, and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard. Yet, short of that extreme, it is hard to see how any choice of words could reduce the vagueness problem to tolerable proportions, so long as we remain committed to the view that some class of materials is subject to outright suppression by the State.
2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene, and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity:
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards," would find that the [p95] 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.
Miller v. California, ante at 24. In apparent illustration of "sexual conduct," as that term is used in the test's second element, the Court identifies "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id. at 25.
The differences between this formulation and the three-pronged Memoirs test are, for the most part, academic. [n13] The first element of the Court's test is virtually identical to the Memoirs requirement that "the dominant theme of the material taken as a whole [must appeal] to a prurient interest in sex." 383 U.S. at 418. Whereas the second prong of the Memoirs test demanded that the material be [p96] "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," ibid., the test adopted today requires that the material describe, "in a patently offensive way, sexual conduct specifically defined by the applicable state law." Miller v. California, ante at 24. The third component of the Memoirs test is that the material must be "utterly without redeeming social value." 383 U.S. at 418. The Court's rephrasing requires that the work, taken as a whole, must be proved to lack "serious literary, artistic, political, or scientific value." Miller, ante at 24.
The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of direction. But the Court does not describe its understanding of those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that have arisen. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underpinnings of the entire scheme. And today's restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation.
Although the Court's restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the "social value" component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today [p97] permits suppression if the government can prove that the materials lack "serious literary, artistic, political or scientific value." But the definition of "obscenity" as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. In Roth, we held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social value. See Roth v. United States, 354 U.S. at 484-485; [n14] Jacobellis v. Ohio, 378 U.S. at 191; Zeitlin v. Arnebergh, 59 Cal.2d 901, 920, 383 P.2d 152, 165; cf. New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Garrison v. Louisiana, 379 U.S. 64, 75 (1964); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1. The Court's approach necessarily assumes that some works will be deemed obscene -- even though they clearly have some social value -- because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently "serious" to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U.S. 518 [p98] (1972); Cohen v. California, 403 U.S. 15, 25-26 (1971); Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949).
Although the Court concedes that "Roth presumed ‘obscenity' to be ‘utterly without redeeming social importance,'" it argues that Memoirs produced
a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. [n15]
One should hardly need to point out that under the third component of the Court's test the prosecution is still required to "prove a negative" -- i.e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks "serious" value than to prove that it lacks any value at all remains, of course, to be seen.
In any case, even if the Court's approach left undamaged the conceptual framework of Roth, and even if it clearly barred the suppression of works with at least some social value, I would nevertheless be compelled to reject it. For it is beyond dispute that the approach can have no ameliorative impact on the cluster of problems that grow out of the vagueness of our current standards. Indeed, even the Court makes no argument that the reformulation will provide fairer notice to booksellers, theater owners, and the reading and viewing public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on protected expression. Nor, finally, does the Court suggest that the approach will mitigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity. [p99]
Of course, the Court's restated Roth test does limit the definition of obscenity to depictions of physical conduct and explicit sexual acts. And that limitation may seem, at first glance, a welcome and clarifying addition to the Roth-Memoirs formula. But just as the agreement in Roth on an abstract definition of obscenity gave little hint of the extreme difficulty that was to follow in attempting to apply that definition to specific material, the mere formulation of a "physical conduct" test is no assurance that it can be applied with any greater facility. The Court does not indicate how it would apply its test to the materials involved in Miller v. California, supra, and we can only speculate as to its application. But even a confirmed optimist could find little realistic comfort in the adoption of such a test. Indeed, the valiant attempt of one lower federal court to draw the constitutional line at depictions of explicit sexual conduct seems to belie any suggestion that this approach marks the road to clarity. [n16] The Court surely demonstrates little sensitivity to our own institutional problems, much less the other vagueness-related difficulties, in establishing a system that requires us to consider whether a description of human genitals is sufficiently "lewd" to deprive it of constitutional protection; whether a sexual act is "ultimate"; whether the conduct depicted in materials before us fits within one of the categories of conduct whose depiction the State and Federal Governments have attempted to suppress; and a host of equally pointless inquiries. In addition, adoption of such a test does not, presumably, obviate the need for consideration of the [p100] nuances of presentation of sexually oriented material, yet it hardly clarifies the application of those opaque but important factors.
If the application of the "physical conduct" test to pictorial material is fraught with difficulty, its application to textual material carries the potential for extraordinary abuse. Surely we have passed the point where the mere written description of sexual conduct is deprived of First Amendment protection. Yet the test offers no guidance to us, or anyone else, in determining which written descriptions of sexual conduct are protected, and which are not.
Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are protected by the First Amendment. The Court concedes that, even under its restated formulation, the First Amendment interests at stake require "appellate courts to conduct an independent review of constitutional claims when necessary," Miller v. California, ante at 25, citing Mr. Justice Harlan's opinion in Roth, where he stated,
I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based.
354 U.S. at 498. Thus, the Court's new formulation will not relieve us of "the awesome task of making case by case at once the criminal and the constitutional law." [n17] And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final [p101] decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms.
3. I have also considered the possibility of reducing our own role, and the role of appellate courts generally, in determining whether particular matter is obscene. Thus, we might conclude that juries are best suited to determine obscenity vel non, and that jury verdicts in this area should not be set aside except in cases of extreme departure from prevailing standards. Or, more generally, we might adopt the position that, where a lower federal or state court has conscientiously applied the constitutional standard, its finding of obscenity will be no more vulnerable to reversal by this Court than any finding of fact. Cf. Interstate Circuit, Inc. v. Dallas, 390 U.S. at 706-707 (separate opinion of Harlan, J.). While the point was not clearly resolved prior to our decision in Redrup v. New York, 386 U.S. 767 (1967), [n18] it is implicit in that decision that the First Amendment requires [p102] an independent review by appellate courts of the constitutional fact of obscenity. [n19] That result is required by principles applicable to the obscenity issue no less than to any other area involving free expression, see, e.g., New York Times Co. v. Sullivan, 376 U.S. at 284-285, or other constitutional right. [n20] In any event, even if the Constitution would permit us to refrain from judging for ourselves the alleged obscenity of particular materials, that approach would solve at best only a small part of our problem. For while it would mitigate the institutional stress produced by the Roth approach, it would neither offer nor produce any cure for the other vices of vagueness. Far from providing a clearer guide to permissible primary conduct, the approach would inevitably lead to even greater uncertainty and the consequent due process problems of fair notice. And the approach would expose much protected, sexually oriented expression to the vagaries of jury determinations. Cf. Herndon v. Lowry, 301 U.S. 242, 263 (1937). Plainly, the institutional gain would be more than offset by the unprecedented infringement of First Amendment rights.
4. Finally, I have considered the view, urged so forcefully since 1957 by our Brothers Black and DOUGLAS, that the First Amendment bars the suppression of any sexually oriented expression. That position would effect a sharp reduction, although perhaps not a total elimination, of the uncertainty that surrounds our current [p103] approach. Nevertheless, I am convinced that it would achieve that desirable goal only by stripping the States of power to an extent that cannot be justified by the commands of the Constitution, at least so long as there is available an alternative approach that strikes a better balance between the guarantee of free expression and the States' legitimate interests.
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. Assuming that such a class of expression does in fact, exist, [n21] I am forced to conclude that the concept of "obscenity" cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For, in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort. [n22] [p104]
Obscenity laws have a long history in this country. Most of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the
Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship.
Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711-1712, c. 1, p. 218. In 1815, the first reported obscenity conviction was obtained under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S. & R. 91. A conviction in Massachusetts under its common law and colonial statute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336 (1821). In 1821, Vermont passed the first state law proscribing the publication or sale of "lewd or obscene" material, Laws of Vermont, 1824, c. 413II, No. 1, § 23, and federal legislation barring the importation of similar matter appeared in 1842. See Tariff Act of 1842, § 28, 5 Stat. 566. Although the number of early obscenity laws was small and their enforcement exceedingly lax, the situation significantly changed after about 1870, when Federal and State Governments, mainly as a result of the efforts [p105] of Anthony Comstock, took an active interest in the suppression of obscenity. By the end of the 19th century, at least 30 States had some type of General prohibition on the dissemination of obscene materials, and by the time of our decision in Roth, no State was without some provision on the subject. The Federal Government meanwhile had enacted no fewer than 20 obscenity laws between 1842 and 1956. See Roth v. United States, 354 U.S. at 482-483, 485; Report of the Commission on Obscenity and Pornography 300-301 (1970).
This history caused us to conclude in Roth
that the unconditional phrasing of the First Amendment [that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . ."] was not intended to protect every utterance.
354 U.S. at 483. It also caused us to hold, as numerous prior decisions of this Court had assumed, see id. at 481, that obscenity could be denied the protection of the First Amendment, and hence suppressed because it is a form of expression "utterly without redeeming social importance," id. at 484, as "mirrored in the universal judgment that [it] should be restrained. . . ." Id. at 485.
Because we assumed -- incorrectly, as experience has proved -- that obscenity could be separated from other sexually oriented expression without significant costs either to the First Amendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing unprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the vagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake. Significantly, in Redrup v. New York, 386 U.S. 767 (1967), where we set aside findings [p106] of obscenity with regard to three sets of material, we pointed out that
[i]n none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158; cf. Butler v. Michigan, 352 U.S. 380. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 622; Public Utilities Comm'n v. Pollak, 343 U.S. 451. And in none was there evidence of the sort of "pandering" which the Court found significant in Ginzburg v. United States, 383 U.S. 463.
The opinions in Redrup and Stanley reflected our emerging view that the state interests in protecting children and in protecting unconsenting adults may stand on a different footing from the other asserted state interests. It may well be, as one commentator has argued, that
exposure to [erotic material] is for some persons an intense emotional experience. A communication of this nature, imposed upon a person contrary to his wishes, [p107] has all the characteristics of a physical assault. . . . [And it] constitutes an invasion of his privacy. . . . [n24]
But cf. Cohen v. California, 403 U.S. at 21-22. Similarly, if children are "not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees," Ginsberg v. New York, 390 U.S. at 649-650 (STEWART, J., concurring), then the State may have a substantial interest in precluding the flow of obscene materials even to consenting juveniles. [n25] But cf. id. at 673-674 (Fortas, J., dissenting).
But, whatever the strength of the state interests in protecting juveniles and unconsenting adults from exposure to sexually oriented materials, those interests cannot be asserted in defense of the holding of the Georgia Supreme Court in this case. That court assumed for the purposes of its decision that the films in issue were exhibited only to persons over the age of 21 who viewed them willingly and with prior knowledge of the nature of their contents. And on that assumption, the state court held that the films could still be suppressed. The justification for the suppression must be found, therefore, in some independent interest in regulating the reading and viewing habits of consenting adults.
At the outset, it should be noted that virtually all of the interests that might be asserted in defense of suppression, laying aside the special interests associated with distribution to juveniles and unconsenting adults, were also posited in Stanley v. Georgia, supra, where we held that the State could not make the "mere private possession of obscene material a crime." Id. at 568. That decision presages the conclusions I reach here today.
In Stanley, we pointed out that "[t]here appears to be [p108] little empirical basis for" the assertion that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence." Id. at 566 and n. 9. [n26] In any event, we added that
if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that "[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law. . . ." Whitney v. California, 274 U.S. 357, 378 (1927) (Brandeis, J., concurring).
Id. at 566-567.
Moreover, in Stanley, we rejected as "wholly inconsistent with the philosophy of the First Amendment," id. at 566, the notion that there is a legitimate state concern in the "control [of] the moral content of a person's thoughts," id. at 565, and we held that a State "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Id. at 566. That is not to say, of course, that a State must remain utterly indifferent to -- and take no action bearing on -- the morality of the community. The traditional description [p109] of state police power does embrace the regulation of morals as well as the health, safety, and general welfare of the citizenry. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). And much legislation -- compulsory public education laws, civil rights laws, even the abolition of capital punishment -- is grounded, at least in part, on a concern with the morality of the community. But the State's interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill-defined. And, since the attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment.
In Roe v. Wade, 410 U.S. 113 (1973), we held constitutionally invalid a state abortion law, even though we were aware of
the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
Id. at 116. Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. [n27] The existence of these assumptions cannot [p110] validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the constitutionally protected privacy interests of a pregnant woman.
If, as the Court today assumes, "a state legislature may . . . act on the . . . assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior," ante at 413 U.S. 63"]63, then it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort to maintain or create a particular moral tone, may prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823 (CA2 1956) (Frank, J., concurring). However laudable its goal -- and that is obviously a question on which reasonable minds may differ -- the State cannot proceed by means that violate the Constitution. The precise point was established a half century ago in 63, then it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort to maintain or create a particular moral tone, may prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823 (CA2 1956) (Frank, J., concurring). However laudable its goal -- and that is obviously a question on which reasonable minds may differ -- the State cannot proceed by means that violate the Constitution. The precise point was established a half century ago in Meyer v. Nebraska, 262 U.S. 390 (1923).
That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution -- a desirable end cannot be promoted by prohibited means. [p111]
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.
In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.
Id. at 401-402.
Recognizing these principles, we have held that so-called thematic obscenity -- obscenity which might persuade the viewer or reader to engage in "obscene" conduct -- is not outside the protection of the First Amendment:
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 [p112] 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.
Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 688-689 (1959). Even a legitimate, sharply focused state concern for the morality of the community cannot, in other words, justify an assault on the protections of the First Amendment. Cf. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Loving v. Virginia, 388 U.S. 1 (1967). Where the state interest in regulation of morality is vague and ill-defined, interference with the guarantees of the First Amendment is even more difficult to justify. [n28]
In short, while I cannot say that the interests of the State apart from the question of juveniles and unconsenting adults -- are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results [p113] from state efforts to bar the distribution even of unprotected material to consenting adults. NAACP v. Alabama, 377 U.S. 288, 307 (1964); Cantwell v. Connecticut, 310 U.S. at 304. 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. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material.
Two Terms ago we noted that
there is developing sentiment that adults should have complete freedom to produce, deal in, possess and consume whatever communicative materials may appeal to them and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential.
United States v. Reidel, 402 U.S. at 357. Nevertheless, we concluded that "the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances." Ibid. But the law of obscenity has been fashioned by this Court -- and necessarily so under our duty to enforce the Constitution. [p114] It is surely the duty of this Court, as expounder of the Constitution, to provide a remedy for the present unsatisfactory state of affairs. I do not pretend to have found a complete and infallible answer to what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 704 (separate opinion). See also Memoirs v. Massachusetts, 383 U.S. at 456 (dissenting opinion). Difficult questions must still be faced, notably in the areas of distribution to juveniles and offensive exposure to unconsenting adults. Whatever the extent of state power to regulate in those areas, [n29] it should be clear that the view I espouse today would introduce a large measure of clarity to this troubled area, would reduce the institutional pressure on this Court and the rest of the State and Federal Judiciary, and would guarantee fuller freedom of expression while leaving room for the protection of legitimate governmental interests. Since the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment and remand the case to that court for further proceedings not inconsistent with this opinion.
1. Ga.Code Ann. § 22101 provides in pertinent part that
(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.
2. Ga.Code § 22101(a):
A person commits the offense of distributing obscene materials [as described in subsection (b), n. 1, supra] when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do. . . .
3. The precise holding of the trial court is not free from ambiguity. After pointing out that the films could be considered obscene, and that they still could not be suppressed in the absence of exposure to juveniles or unconsenting adults, the trial court concluded that
[i]t is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene.
It is not clear whether the trial court found that the films were not obscene in the sense that they were protected expression under the standards of Roth v. United States, 354 U.S. 476 (1957), and Redrup v. New York, 386 U.S. 767 (1967), or whether it used the expression "not obscene" as a term of art to indicate that the films could not be suppressed even though they were not protected under the Roth-Redrup standards. In any case, the Georgia Supreme Court viewed the trial court's opinion as holding that the films could not be suppressed, even if they were unprotected expression, provided that they were not exhibited to juveniles or unconsenting adults.
As to all such problems, this Court said in Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940):
"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (Emphasis added.)
Roth, 354 U.S. at 487-488. See also, e.g., Thomas v. Collins, 323 U.S. 516, 531 (1945) ("the rights of free speech and a free press are not confined to any field of human interest").
5. See, e.g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1, 10-11; cf. Beauharnais v. Illinois, 343 U.S. 250 (1952).
6. See, e.g., T. Emerson, The System of Freedom of Expression 487 (1970); Kalven, supra, n. 5; Comment, More Ado About Dirty Books, 75 Yale L.J. 1364 (1966).
7. On the question of community standards see also Hoyt v. Minnesota, 399 U.S. 524 (1970) (BLACKMUN, J., joined by BURGER, C.J., and Harlan, J., dissenting) (flexibility for state standards); Cain v. Kentucky, 397 U.S. 319 (1970) (BURGER, C.J., dissenting) (same); Manual Enterprises v. Day, 370 U.S. 478, 488 (1962) (Harlan, J., joined by STEWART, J.) (national standards in context of federal prosecution).
8. No fewer than 31 cases have been disposed of in this fashion. Aside from the three cases reversed in Redrup, they are: Keney v. New York, 388 U.S. 440 (1967); Friedman v. New York, 388 U.S. 441 (1967); Ratner v. California, 388 U.S. 442 (1967); Cobert v. New York, 388 U.S. 443 (1967); Sheperd v. New York, 388 U.S. 444 (1967); Avansino v. New York, 388 U.S. 446 (1967); Aday v. New York, 388 U.S. 447 (1967); Books, Inc. v. United States, 388 U.S. 449 (1967); A Quantity of Books v. Kansas, 388 U.S. 452 (1967); Mazes v. Ohio, 388 U.S. 453 (1967); Schackman v. California, 388 U.S. 454 (1967); Potomac News Co. v. United States, 389 U.S. 47 (1967); Conner v. City of Hammond, 389 U.S. 48 (1967); Central Magazine Sales, Ltd. v. United States, 389 U.S. 50 (1967); Chance v. California, 389 U.S. 89 (1967); I. M. Amusement Corp. v. Ohio, 389 U.S. 573 (1968); Robert Arthur Management Corp. v. Tennessee, 389 U.S. 578 (1968); Felton v. City of Pensacola, 390 U.S. 340 (1968); Henry v. Louisiana, 392 U.S. 655 (1968); Cain v. Kentucky, supra; Bloss v. Dykema, 398 U.S. 278 (1970); Walker v. Ohio, 398 U.S. 434 (1970); Hoyt v. Minnesota, supra; Childs v. Oregon, 401 U.S. 1006 (1971); Bloss v. Michigan, 402 U.S. 938 (1971); Burgin v. South Carolina, 404 U.S. 809 (1971); Hartstein v. Missouri, 404 U.S. 988 (1971); Wiener v. California, 404 U.S. 988 (1971).
9. Although I did not join the opinion of the Court in Stanley v. Georgia, 394 U.S. 557 (1969), I am now inclined to agree that "the Constitution protects the right to receive information and ideas," and that "[t]his right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society." Id. at 564. See Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Winters v. New York, 333 U.S. 507, 510 (1948); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965) (concurring opinion). This right is closely tied, as Stanley recognized, to "the right to be free, except in very limited circumstances, from unwarranted governmental intrusions into one's privacy." 394 U.S. at 564. See Griswold v. Connecticut, 381 U.S. 479 (1965); Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). It is similarly related to
the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child
(italics omitted), Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), and the right to exercise "autonomous control over the development and expression of one's intellect, interests, tastes, and personality." (Italics omitted.) Doe v. Bolton, 410 U.S. 179, 211 (1973) (DOUGLAS, J., concurring). It seems to me that the recognition of these intertwining rights calls in question the validity of the two-level approach recognized in Roth. After all, if a person has the right to receive information without regard to its social worth -- that is, without regard to its obscenity -- then it would seem to follow that a State could not constitutionally punish one who undertakes to provide this information to a willing adult recipient. See Eisenstadt v. Baird, supra, at 443-446. In any event, I need not rely on this line of analysis or explore all of its possible ramifications, for there is available a narrower basis on which to rest this decision. Whether or not a class of "obscene" and thus entirely unprotected speech does exist, I am forced to conclude that the class is incapable of definition with sufficient clarity to withstand attack on vagueness grounds. Accordingly, it is on principles of the "void for vagueness" doctrine that this opinion exclusively relies.
10. In this regard, the problems of vagueness and overbreadth are, plainly, closely intertwined. See NAACP v. Button, 371 U.S. 415, 432-433 (1963); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Cf. infra at 93-94.
11. See also Speiser v. Randall, 357 U.S. 513 (1958); cf. Barenblatt v. United States, 360 U.S. 109, 137-138 (1959) (Black, J., dissenting):
This Court . . . has emphasized that the "vice of vagueness" is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved. . . . For a statute broad enough to support infringement of speech, writings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what the law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult, at best, to make a man guess -- at the penalty of imprisonment -- whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the state's interest' is too vague to give him guidance.
12. Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 885-886 and n. 158 (1970) ("Thus, in the area of obscenity the overbreadth doctrine operates interstitially, when no line of privilege is apposite or yet to be found, to control the impact of schemes designed to curb distribution of unprotected material").
13. While the Court's modification of the Memoirs test is small, it should still prove sufficient to invalidate virtually every state law relating to the suppression of obscenity. For, under the Court's restatement, a statute must specifically enumerate certain forms of sexual conduct, the depiction of which is to be prohibited. It seems highly doubtful to me that state courts will be able to construe state statutes so as to incorporate a carefully itemized list of various forms of sexual conduct, and thus to bring them into conformity with the Court's requirements. Cf. Blount v. Rizzi, 400 U.S. 410, 419 (1971). The statutes of at least one State should, however, escape the wholesale invalidation. Oregon has recently revised its statute to prohibit only the distribution of obscene materials to juveniles or unconsenting adults. The enactment of this principle is, of course, a choice constitutionally open to every State, even under the Court's decision. See Oregon Laws 1971, c. 743, Art. 29, §§ 255-262.
All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.
Roth v. United States, supra, at 484.
15. Miller v. California, ante at 22.
16. Huffman v. United States, 152 U.S. App. D.C. 238, 470 F.2d 386 (1971). The test apparently requires an effort to distinguish between "singles" and "duals," between "erect penises" and "semi-erect penises," and between "ongoing sexual activity" and "imminent sexual activity."
17. Note, The "Void for Vagueness" Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 81 (1960).
18. Compare Ginsberg v. New York, 390 U.S. 629, 672 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U.S. 184, 187-190 (1964) (BRENNAN, J., joined by Goldberg, J.); Manual Enterprises v. Day, 370 U.S. at 488 (Harlan, J., joined by STEWART, J.); and Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 696-697 (1959) (Frankfurter, J., concurring); id. at 708 (Harlan, J., joined by Frankfurter, J., and Whittaker, J., concurring), with Jacobellis v. Ohio, supra, at 202-203 (Warren, C.J., joined by Clark, J., dissenting); Roth v. United States, 354 U.S. at 492 n. 30; and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448 (1957) (BRENNAN, J., dissenting). See also Walker v. Ohio, 398 U.S. 434 (1970) (BURGER, C.J., dissenting).
19. Mr. Justice Harlan, it bears noting, considered this requirement critical for review of not only federal but state convictions, despite his view that the States were accorded more latitude than the Federal Government in defining obscenity. See, e.g., Roth supra, at 502-503 (separate opinion).
20. See generally Culombe v. Connecticut, 367 U.S. 568, 603-606 (1961) (opinion of Frankfurter, J.); cf. Crowell v. Benson, 285 U.S. 22, 565 (1932); Ng Fung Ho v. White, 259 U.S. 276, 284-285 (1922).
21. See n. 9, supra.
22. Cf. United States v. O'Brien, 391 U.S. 367, 376-377 (1968):
This Court has held that, when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
(Footnotes omitted.) See also Speiser v. Randall, 357 U.S. 513 (1958).
23. See also Rabe v. Washington, 405 U.S. 313, 317 (1972) (concurring opinion); United States v. Reidel, 402 U.S. 351, 360-362 (1971) (separate opinion); Ginsberg v. New York, 390 U.S. 629 (1968); id. at 674-675 (dissenting opinion); Redmond v. United States, 384 U.S. 264, 265 (1966); Ginzburg v. United States, 383 U.S. 463 (1966); id. at 498 n. 1 (dissenting opinion); Memoirs v. Massachusetts, 383 U.S. 413, 421 n. 8 (1966); Jacobellis v. Ohio, 378 U.S. at 195 (1964) (opinion of BRENNAN, J., joined by Goldberg, J.); id. at 201 (dissenting opinion). See also Report of the Commission on Obscenity and Pornography 300-301 (1970) (focus of early obscenity laws on protection of youth).
24. T. Emerson, The System of Freedom of Expression 496 (1970).
25. See ibid.
26. Indeed, since Stanley was decided, the President's Commission on Obscenity and Pornography has concluded:
In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency.
Report of the Commission on Obscenity and Pornography 27 (1970) (footnote omitted). To the contrary, the Commission found that,
[o]n the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage.
Id. at 53.
27. See Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 395 (1963).
[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
29. The Court erroneously states, Miller v. California, ante at 27, that the author of this opinion "indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults . . . and to juveniles. . . ." I defer expression of my views as to the scope of state power in these areas until cases squarely presenting these questions are before the Court. See n. 9, supra; Miller v. California, supra, (dissenting opinion).