Obscenity

History of Obscenity Law

The history of obscenity law in the United States begins as early as 1815, when a Pennsylvania court declared it an offense to exhibit for profit a picture of a nude couple. By the 1860s, reformer Anthony Comstock had successfully campaigned for the passage of obscenity laws in nearly every state. Prior to 1973, the Supreme Court set the national standard for obscenity law, deciding whether particular content was “obscene” on a case-by-case basis. After 1973, the Supreme Court began incorporating state obscenity standards into its federal analyses.

Contemporary legal definitions of obscenity have their roots in three Supreme Court cases that were decided in 1957. In Butler vs. State of Michigan, the court reversed the “Hicklin Test,” a directive from the 1860s that had defined obscene material as anything that might offend children or the “weak-spirited” in a community. In Roth vs. United States and Alberts vs. California, the Court ruled that obscenity was to be determined by “the average person,” and that the material in question must be considered in its entirety, rather than excerpted. In Justice William Brennan's words, for obscenity not to have First Amendment protection, it had to be “utterly without redeeming social importance.”

Unfortunately, the 1957 laws raised as many questions as they answered. For example, who was an “average person”? How was “utterly without redeeming social importance” to be established? And what was the dividing line between communities' attempts to prosecute obscenity and the nationwide guarantee under the Constitution of free speech for all? From [Page 353]1967 to 1973, the Supreme Court attempted to answer these questions during “movie days,” screening films previously ruled as obscene in lower courts. Ultimately, it turned out that each of the justices had his own personal standard for what constituted obscenity, the most infamous being Justice Potter Stewart's claim, “I know it when I see it.”

Miller and its Aftermath

By 1973, the Supreme Court seemed prepared to codify its film-watching experience into legal guidelines for obscenity. The Court's view, articulated in Miller vs. California, remains the standard used to this day. In Miller, the Court synthesized and refined its 1957 decisions, ruling that obscenity must be determined by a “reasonable person” using the “standards of the community.” It provided a check on community standards by stating that any jury decision in an obscenity case must be subject to an independent constitutional review. Finally, the Court provided important defenses against obscenity, ruling that if a work was found to have serious “literary, artistic, scientific, political or other social value,” it was protected under the Constitution as free speech.

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