Obscenity

The term obscenity denotes offensiveness to modesty or decency, typically in terms of human communication about sex or sexuality. As a legal concept, the term long resisted clear definition, especially during a 16-year period between 1957 and 1973 when the U.S. Supreme Court encountered the issue repeatedly. No majority of the High Court, before or since, ever deviated from the view that obscenity, like libelous and seditious expression, had blanket constitutional protection for socially injurious content. Yet, the subjective nature of the concept produced multiple failed attempts by the judiciary to delineate its scope and limits.

In 1957, the Court first engaged in extended analysis of the constitutional status of such communication in companion cases styled Samuel Roth v. United States and David Alberts v. State of California. The relevant provisions of the U.S. Constitution that the defendants invoked were the freedoms of speech and press imbedded within the First Amendment. Ratified in December 1791, these expressive liberties have remained at the apex of the Bill of Rights ever since, often inspiring momentous confrontations in this country's courtrooms and legislative chambers. Typical adversaries in obscenity cases are government officials seeking to protect the social interest in public morality challenged by an individual, organization, or commercial entity claiming the legal right to convey a message by verbal, printed, or visual means.

Samuel Roth had been convicted of violating a federal statute that criminalized mailing obscene advertisements, which had been seized by U.S. postal inspectors. David Alberts had been convicted under a state law prohibiting similar conduct. A divided [Page 634]Supreme Court affirmed both convictions. Associate Justice William Brennan observed that the government need not show empirical evidence of harm to society because speech or press that exhibits no redeeming social importance cannot find shelter in the First Amendment. Writing for the majority, Brennan relied on the Model Penal Code of the American Law Institute to point out that obscenity was synonymous with a shameful or morbid interest in nudity, sex, or excretion that goes substantially beyond customary limits of candor in description or representation. Justices William O. Douglas and Hugo Black disagreed. For them, the legality of communication should not pivot on the reaction of the reader or listener. From their perspective, Roth and Alberts were being punished for thoughts provoked in others rather than for overt antisocial conduct.

Over the course of the following decade, as the membership of the Supreme Court underwent only moderate change, arriving at a consensus about the legal standard of obscenity proved elusive. By 1964, for example, Associate Justice Potter Stewart conceded that to him formulating a legal standard that consistently distinguished constitutionally unprotected obscenity from constitutionally protected pornography was an impossible task. Justice Brennan was not so easily deterred. In 1966, a case styled A Book Named “John Cleland's Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts elicited a quite different standard than had Roth and Alberts. Brennan's far more permissive definition stipulated that three elements must coalesce in order for prior criminal convictions to be sustained on appeal. In broad outline, the Memoirs standard required proof beyond reasonable doubt that expression alleged to be obscene was (1) wholly devoid of social value; (2) patently offensive to prevailing social sentiment across the country in its description of sex; and (3) thematically focused on salacious depiction of sexual conduct.

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