Roettger 1

Daniel Roettger

Law Review Review

Dr. Roulier

Pledged

The Court's definition of obscenity has evolved over the two hundred twenty five

years of America's existence in response to changing social mores, the emergence of the

electronic media that have supplemented and even supplanted print media, and the balance

between local and national values and attitudes. This paper discusses the evolving

definition of obscenity and its implications.

Part One: A Synopsis of Sources

I employed two law reviews to write this article. Though both pertained nearly

exclusively to obscenity laws throughout, they varied on their opinion of the laws and their

consequences.

The Law of Obscenity – or Absurdity by Robbins and Mason, as one might imagine,

takes an opposing stance to the principles of obscenity laws. In the introduction, their

opinion was clear: “we are nonetheless everlastingly convinced that obscenity laws are

indeed absurd – absurd and dangerous. They ignore the most fundamental principles of

American jurisprudence and they seriously attenuate our First Amendment right to freedom

of speech.” The authors question the intent of obscenity laws on the grounds they present

no “clear and present danger” to society in that, on the whole, persons viewing pornography

or other obscene materials do not immediately commit heinous, sexual crimes. The authors

are quick to establish sex and obscenity are not synonymous, and believe “the portrayal of

sex, e.g., in art, literature, and scientific works, is not itself sufficient reason to deny material

the constitutional protection of freedom of speech and press.” It is their opinion that any

law regarding obscenity must be inherently vague and thus crippling to its integrity. The
example the authors best believe exemplifies this reasoning is Justice Stewart’s infamous

remark regarding the French movie Les Amants (the Lovers): “[I] know it when I see it.” The

authors, further in their review, show the foolishness of obscenity laws in that it is perfectly

legal (Stanley v. GA) to maintain private possession of obscene materials. The

“convinc[ing]” argument of Justices Black and Douglass against obscenity laws is crucial in

the review, as it agrees with the standpoint of the authors, is shown. They argued that

obscenity laws are “inconsistent with the clear and uncompromising mandates of the First

Amendment.” It concludes by stating that “obscenity laws are an ugly form of censorship,

and censorship…. Censorship can never eliminate evil; it can only kill freedom.”

The second review employed, Federalizing or Eliminating Online Obscenity Law as an

Alternative to Contemporary Community Standards by Centre, addresses arising challenges

to the translation of laws made for geographically-based jurisdictions to cyberspace.

Centre’s thesis states: “these challenges may warrant replacing the local community

standards approach with a national obscenity standard, as Justice Sandra Day O’Connor

recommended in Ashcroft v. ACLU. This article explores the hypothetical definitional and

constitutional questions this standard could bring. This article begins with an analysis of the

Miller contemporary community standards approach. The Miller test left the defining of

obscenity to the states by saying: “We do not undertake to tell the states what they must

do, but rather to define the area in which they may chart their own course.” Centre points

out that, by the Ginsberg ruling, the definition of obscenity can be modified for minors. It

was Ginsberg that set the current ban of the sale of obscene materials to minors in effect

today. The review then discusses the origins of contemporary community standards,

referencing Judge Learned Hand’s 1913 use of modern community standards. He

implemented this policy believing “such a contemporary community standards approach

allowed for appropriate local and temporal variation,” and delivered his ruling on the matter

as such:

“Such words as these do not embalm the precise morals of an age or

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place; while they presuppose that some things will always be shocking to the

public taste, the vague subject-matter is left to the gradual development of

general notions about what is decent. A jury is especially the organ with

which to feel the content compromised within such words at any given time,

but to do so they must be free to follow the colloquial connotations which they

have drawn up instinctively from life and common speech.”

The review proceeded to address the scope of the relevant community, questioning what

defined a relevant community, “statewide or even narrower?” After addressing this

question, the paper proceeds to define the prurient interest requirement, and later

applications of contemporary community standards. It shows through example how certain

media have rejected contemporary community standards, such as broadcast media (“The

FCC has rejected the local community standards approach for broadcast media, the state of

Oregon has rejected it entirely, and come courts have rejected it for the Internet.”) It is

worth noting here that “litigation over the Child Online Protection Act (COPA) established

that the community standards alone did not render an obscenity law unconstitutional. Yet

later in the paper, Centre reaches his opinion. Believing the vagueness of obscenity laws is

detrimental to justice, Centre quoted Justice Douglas on the matter, who said:

“Obscenity – which even we can not define with precision – is a hodge-podge.

To send men to jail for violating standards they cannot understand, construe,

any apply is a monstrous thing to do in a Nation dedicated to fair trials and

due process.”

This quote reminded me of the previous review. Centre concludes that “if obscenity

regulation is to continue in new media, the standard involved must be defined.” He believes

that the effects on content providers to hedge their services according to local community

standards is impossibly high and “constitutionally impermissible.” On the whole, a national

standard could stop the least tolerant community from controlling media for the rest of the

nation, and would give the least tolerant community the same influence on the national
standard. “The elimination of obscenity law is most compatible with the First Amendment

autonomy and self-realization principles, traditional liberal principles of non-enforcement of

community morality, and the diverse, protean communities of a networked world.

Part Two: the History of Obscenity’s Definition

The Courts did not explicitly define obscenity until nearly 100 years after the

adoption of the Constitution thanks to the dominant social mores that made legal attention

superfluous.

At that time, it adopted the Hicklin doctrine taken from an English precedent. The Hicklin

Test ruled material obscene if it offended the most susceptible and sensitive members of

society (this included children). The test did not apply to entire works in general. Isolated

passages of undefined lengths could be used against a work. If one passage of a work was

ruled obscene, the work in entirety was ruled as such. Not all members of the United

Supreme Court loved the test, and some loathed this artistically stifling measure. Justice

Frankfurter, in regard to the test, remarked: “Surely this is to burn the house down to roast

the pig.”

With the passage of time, support for the conservative mid-Victorian mores waned;

judicial opinions followed suit. Twenty-five years before the establishment of the Roth test,

Judge Woolsey of the US District Court (of the Southern District of New York) defined

obscenity based on the “dominant effect of the entire book... on an average person.” This

progression was critical, and it formed the beginning of the modern-day definition. The

inclusion of a work as a whole, not just the racy parts, broadened the scope of acceptable

publications.

Samuel Roth, a New York bookseller, brought radical change in tact to define

obscenity. His 1957 trial and appeal, granted certiorari by the Supreme Court, led to the

formation of a new, radically liberalized definition (for the time) of obscenity. Based upon

Woolsey’s ruling twenty-five years before, Roth required that a work could only be ruled
 Roettger 5

obscene if “whether to the average person, applying modern community standards, the

dominant theme of the material taken as a whole appeals to prurient interest.”

Not only did Roth include the entire work to be analyzed, but for the first time the

prudence of the “average person” was called upon. This eliminated overly-sensitive adults

and children from the definitional equation. The application of “modern community

standards” updated American morals, and removed them from those of Victorian England.

This inclusion, however, would lead to problems as technology advanced and developed.

While seen as an uncouth definition by radical religionists, the new test offered Americans

less restrictive methods of expression.

With the passage of time, adaptations and additions to Roth transformed the test. In

1962, Justice Harlan added the phrase “patently offensive” to the rendering. Added to the

case Manual Enterprises, Inc. vs. Day, it required an act or work to be obviously obscene.

This addition only applied to federal rulings. Two years later, in an opinion handed down by

Justice Brennan, the phrase was nationalized to both federal and state statues through the

ruling of Jacobellis v. Ohio. The nationalization of this requirement further opened

expression, and showed a slippery slope feared by conservatives.

The most crucial addition to the Roth test came from the 1966 case Memoirs v.

Massachusetts. Justice Brennan’s opinion greatly altered Roth’s parameters. A work then

could be ruled obscene if:

A) the dominant theme of the material taken as a whole appeals to prurient interest

in sex;

B) the material is patently offensive because it affronts contemporary community

standards relating to the description of representation of sexual manners;

C) the material is utterly without social value.

The second and third criteria transformed legal precedents. The addition of “relating to the
description or representation of sexual manners” loosened the noose on speech, and

allowed subtle speech safe haven in American publications. This still outlawed the

performance or description of sexual acts.

On the same day as Memoirs, the Court handed down the rulings on Ginsburg v. US

and Mishkin v. NY. All three cases pertained to obscenity, and the opinions contained a total

of fourteen separate opinions. This divergence between the justices plagued cases

regarding obscenity, proved the topic’s subjectivity, and illustrated the difficulty of creating

an objective definition. Justice Brennan best portrayed his opinion on a rash of obscenity

cases: “I’m sick and tired of seeing this goddamn shit,” he said.

Stanley v. the State of Georgia (1969) had the capacity and precedent to end the

obscene exception from free speech. On the matter, the Court ruled the First and

Fourteenth Amendments prohibited making private possession of obscene materials a crime.

The Court’s opinion stated the Georgia statute under which Stanley was convicted infringed

upon the freedom expression protected by the First Amendment. Though the ruling did not

fulfill its potential, it did, however, set the stage for the modern obscenity test, The Miller

Test.

Marvin Miller, entrepreneur of a mail-order company dealing with obscene materials,

violated California Penal Code 311.2, a misdemeanor, by knowingly participating in the

distribution of obscene material. He was subsequently charged and consequently convicted.

He appealed his conviction to the Supreme Court, which granted certiorari. The Court

found the sale and distribution of obscene materials via mail was not protected by the First

Amendment in 1973. In the process of this case, the Court decided on the modern standard

of obscenity. The Miller Test mandated that, in order for a work to be declared obscene, it

must be established that:

A) the average person applying contemporary community standards would

find that the work , taken as a whole, appeals to the prurient interest;
 Roettger 7

B) the work depicts or describes in a patently offensive way sexual conduct

specifically designed by the applicable state law;

C) the work, taken as a whole, lacks serious literary, artistic, political, or

scientific value.

This modern test opens the door of acceptability further for speech. If the work in question,

according to the third criteria, has serious literary, artistic, political, or scientific value, it is

tolerated by the Court. Unlike previous tests, Miller allows literature and art, giving the

social “evil-doers” a way to avoid being proscribed. Much to the dismay of social

conservatives, publications specializing in lewd photographs are less venerable to judicial

attack under the new test. Take for instance, Playboy magazine, a publication whose pages

are filled with (to the average conservative) filth. However, the magazine is inclusive of

editorials and political opinions. Therefore, the publication is not lewd in the eyes of the

Court.

The evolution of what constitutes obscenity is doubtlessly liberalizing. In terms of the

allowance of written and published works, America has come far in the field of inclusion.

Under the days of Hicklin, a majority of books, editorials (political or not), and other

publications would be regarded as obscene, but are today permissible and tolerated by

society and the Court.

Part Three: The Necessity of Balanced Free Speech

For the protection of lewd or even political material, the preservation of free speech

in the United States of America is necessary. Extreme truncation of this right would lead to

calamity and uproar. However, no limitations upon speech would result in a similar,

catastrophic outcome.

By using the arguments and principles employed for obscenity, it is clear that the

restriction of speech is no popular task. If the Hicklin Test were reenacted today, national
major publications would be charged with their insidious printings, among other heinous and

unknown restrictions. However, the Court’s modern definition, as did its predecessors,

included language for restriction on speech. This exclusionary language is necessary to

preserve our moral quilt.

Though I myself am self-regarded as liberal and am not easily offended by printed

material, I do not appreciate exposure to lewd material in mediums of which that material is

not commonly seen or heard. In FCC v. Pacifica Foundation, for instance, the mid-afternoon

broadcast of Carlin’s “Filthy Words” is, by all possible definitions repugnant and uncouth. It

is such instances that I think of the esteem of the Romans and their censor (his sole job was

to censor material regressive to the Romans by whatever means necessary). The general

toleration, it seems, for America and its people is quite high for written material; Americans

tolerate especially high levels of debauchery in literature.

It is clear and fresh in every person’s memory the importance of moderation. The

Court’s definition on what constitutes obscene conforms to this principle. If any imbalance

of toleration or censorship were to be endorsed by the Court, social upheaval would be

immense. However, the era and reign of the Hicklin Test experienced several dilemmas to

adapt to: changing social opinion and mores; the advancement of technology; and the

general evolution of American culture.

Two of the stresses placed upon Hicklin, the advancement of technology and the

general evolution of American culture, apply to all eras of jurisprudence. The Hicklin era

faced the immoral strains of the post-World War I jubilation and the subsequent Roaring

Twenties. The Great Depression put the spike in the heart of Hicklin as a principal, as

Americans clamored to find mirth and pleasure from the concurrent woes of the Great

Depression and World War II. Technological advances, including the superhighway (which

gave suburbanites the express lane to the immoral city) increased access to obscene

materials, and after World War II returning American soldiers were, on the whole, obscenely

vigorous as ever. The accumulation of these varying factors ended the Hicklin Test, as it was
 Roettger 9

not apt to define obscenity openly enough to please the changing American mores.

Simply put, social changed threw out a longstanding constitutional test because it

lacked moderation.

Part Four: Problems in the Modern Test

The presently employed Miller Test, as earlier mentioned, requires: the average

person, applying contemporary community standards, to find the work, taken as a whole,

appealing to the prurient interest; the work to depict or describe in a patently offensive way

sexual conduct specifically designed by the applicable state law; and the work, taken as a

whole, to lack serious literary, artistic, political, or scientific value. There are no objective

elements of the test, nor have there been ever. The test relies on the prudence and

consistent morals of the jury to determine obscenity, rather than a stalwart set of criteria.

This creates a fatal flaw in our modern test.

As with the era of Hicklin, American culture is evolving; American technology evolves

as well. A large proportion of American cinema, for example, is gory, promiscuous, and

romanticized. The same can be said for television and internet usage. There is no filter on

American consumption across various media. Surprising to some, these evolutions are

tolerated and embraced with cash and popular support. Since the instigation of Miller in

1973, very few remnants of American culture remain.

Technologically speaking, there are no congruencies on the availability of content

between 1973 and 2008. Television is commonly in color, and the number of active viewers

is exponentially higher. The main change, however, between the eras is the advent of the

Internet. Presently, the Internet provides an unlimited inlet for people to “surf,” and find

sundry facts, such as Supreme Court decisions. Also, however, lewd material is open, and

with the necessity of the Internet and personal computers, readily available.

Just as the Gibson Girl portrayed a racy, young girl in the Hicklin days, the Miller days
are filled with obscene material hosted on the World Wide Web. Internet providers, called

content providers, offer their needed and valuable service to millions of people (including to

students who need to find law reviews) over states, nations, and even globally. With such a

broad scope of peoples served, the phrase of “modern community standard” carries more

weight than ever.

The subjectivity of the modern test is total; as stated before, there are no objective

portions of the test, and there cannot be any objective portions of the test. No two people

have the same opinion on lewd acts or works. This is why the Supreme Court placed the

subjective opinion of the people into the test. If Internet service is to be spread by the same

provider over such a large area and number of people, there will be conflicting opinions on

what is obscene and what is not. To make an example, consider that Batesville, Arkansas,

and Berkeley, California, have the same content provider, a well-known national entity that

provides good service for a reasonable fee. There are people in Berkeley sensitive to lewd

material, without question; there are people in Batesville who have no modesty with their

acceptance of material. However, the general consensus of the people of Batesville on the

matter will be much more conservative than that of Berkeley.

If this is such, and it is, how can content providers respect the opinion of members of

the local community applying their very subjective and opinionated feelings toward

obscenity, when the people they serve differ dramatically on the issue? What financial

burdens would face the providers in order to filter their service along geographic lines?

While no body, legislative or judicial, takes action on this question, there are options.

Part Five: Options for Amending the Test

I discussed the problems exhibited by technological and social change on the modern

test in the previous section; this section proposes ways to amend these problems. There are

no ways to overcome the subjectivity of the issue at hand, that is granted. There are,

however, ways to minimize the corrupting ways of opinion and supplant this error with
 Roettger 11

consistency on the definition of obscenity.

The most logical proposal to correct the ills of a larger number of geographically and

socially unrelated people is to adopt a national standard of obscenity. This standard could

be applied strictly to the Internet and nationalized, or it could be adopted as a finite

standard of defining obscenity trans-media.

The most logical option for this proposal is the nationalization of a standard definition

to be applied exclusively to the Internet. Other media, such as radio and television, are

already monitored for obscenity. This would, in part, make the Internet a national

community, as it functions as presently, under national definitions of obscenity. Local

publications such as newspapers, excluding their website (if it exists), open to the present

Miller Test. The standard would have to attempt to reach the moral average of the nation,

once again exhibiting the large role subjectivity plays in the issue. However, defining the

standard would alienate some communities’ beliefs by being too lenient on obscenity for

some and too open for others. There are few communities that would fall in this

hypothetical standard. This hypothetical national standard would thus break the present

test as it would truly not reflect the modern community’s moral prudence. Both tests could

not simultaneously exist.

A blunter method of soothing this problem is to remove all obscene boundaries on

Internet usage. Since electronic media is nationally and globally employed (it is by law in

every school, for example), the prudence of individuals would be called into effect. A

proposal likely endorsed by a person in congruence with Robinson and Mason, this would

remove all obscenity filters. However, each individual would be able to install their own

privacy filters, or they could simply choose not to access websites they themselves deem

obscene. In order to protect children, it would be of little strain to install Internet firewalls or

filters – these are already in place in every public terminal whose operator deems them

necessary. Examples of such operators include school administrators and librarians.

Whatever fruit bore from this hypothetical must mature into a new constitutional
standard, or none at all. The effects of technological development and growing social

acceptance towards obscenity mandate a new constitutional test, whether it apply the rules

of the present test expressly to the Internet to all forms of media, or it writes a new test

especially for electronic media.

Part Six: Summation

History has proven that with the people’s time and development, constitutional tests

develop as well to follow the people’s opinion. The Court’s move from Hicklin to Roth to the

presently-used Miller Test illustrate this pattern. Miller’s age works against it, as it was not

written with modern forms of communication in mind, which create problems in its modern

application. The liberalizing trend both the Court and the American people follow is not

slowing, and the technological and social movement towards electronic media is the catalyst

for change. These problems in application warrant its emendation or replacement; it is

necessary for either option to account for electronic media. It is necessary to create a

national definition of obscenity to be applied exclusively to the Internet, or to write a new

definition to include the Internet with the impracticalibilities of geographic filtering in mind.