Although the Court had for a number of years held that “obscene” materials are not within the area of constitutionally protected speech or press, it had never managed to come up with a workable definition of obscenity.
Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity. He said:
“I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Jacobellis v. Ohio 378 U.S. at 197.
If it makes me blush, you can ban it! That’s the best Justice Stewart could come up with. Is this test just a wee bit vague?
Did the Court do any better in Miller v. California?
Miller comes up with a three-part test for non-protected obscenity (which, says the Court, is "categorically...unprotected by the First Amendment."):
1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.
What does “prurient interest” mean?
The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex. It does not include a normal interest in sex.
What does that mean?
In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.
The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication. The publisher’s clear intent was to appeal to the prurient interest of potential readers.
Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?
Take a look at the beginning of Roman Numeral III – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”
Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi). Really a question addressed to the common sense of the jury. An average jury pool in New York may have a different sense than an average jury in Mississippi.
O.K. Part two of the Miller test.
Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”
What does that mean? Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors.
“[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”
So what happens in Jenkins v. Georgia when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?
The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.”
Why not?
It’s not “hard core”?
What is “hard core”?
Justice Stewart knew it when he saw it and so, apparently, does the Court.
Five thumbs up for Carnal Knowledge – it’s a “must see”! I mean come on! A young Jack Nicholson and Artie Garfunkel (without Paul Simon)! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.” Nowak at 1137.
Third part of the test:
A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 1280) “Taken as a whole.”
The
third part of the test is not judged by local community standards. Rather, it supposedly is to be decided on an
objective basis (i.e. whether a reasonable person would find serious
literary, artistic, political, or scientific value in the material, taken as a
whole). So, artistic photography--even if hard core-- such as that of Robert Mapplethorpe, is protected because of its serious artistic value.
This is why Professor Stone ends his article with this observation:
Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.
