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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

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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;

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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

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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

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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.