Obscenity Cases

The U.S. Supreme Court has consistently held that obscenity is not protected by the provisions for freedom of speech and press within the First Amendment, but it has had difficulty in establishing how to identify obscenity. The Court thus has relied chiefly on three “guidelines” articulated in Miller v. California (1973): whether the material appeals to the prurient (morbid or shameful) interest in sex, whether the material depicts sexual materials in a patently offensive way, and whether the material has any serious literary, artistic, political, or scientific value. While many view obscenity as a First Amendment issue, it often triggers Fourth Amendment concerns, primarily because government officials must follow particular procedures before seizing allegedly obscene materials. Numerous Court decisions have subjected searches and seizures of obscene materials to Fourth Amendment requirements.

The decision in Mapp v. Ohio (1961), in which the U.S. Supreme Court first applied the exclusionary rule (excluding from trial illegally obtained evidence) to the states, grew out of a prosecution for the possession of allegedly obscene materials that were discovered in the course of a warrantless search for a bombing suspect. That same year, in Marcus v. Search Warrant, the Court found that the massive seizure of materials deemed to be obscene without a prior hearing constituted a violation of due process. Lo-Ji Sales v. New York (1979) also involved an open-ended warrant, which had led to the seizure of 397 magazines and 431 films alleged to violate obscenity laws, which the Court analogized to the general warrants that the Fourth Amendment was intended to prevent. In Maryland v. Macon (1985), the Court ruled that police did not violate the Fourth Amendment when an undercover agent bought two magazines with a marked bill prior to confiscating magazines from the store. In New York v. P. J. Video, Inc. (1986), the Court decided that while “the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures,” these concerns did not therefore require a “higher standard of probable cause.” In Fort Wayne Books v. Indiana (1989), the Court invalidated the provision of an Indiana law that allowed pretrial seizure of materials alleged to be obscene as an impermissible form of prior restraint.