Taylor, Charles E.

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THE NEW STANDARD OF OBSCENITYRoth v. United States, 354 U.S. 476 (1957)The Supreme Court granted writs of certiorari to Roth and Albertswho had been convicted under respective federal and state obscenitystatutes. Appellants contentions were two-fold: one, the statutes con-stituted a per se encroachment of the guarantees of free speech and pressembraced in the First Amendment, and two, the jury instructions hadbeen unconstitutional as the clear and present danger test was not in-cluded. The obscenity of the books, as such, was not a material issue inthe case although samples of the "stag" pictures and "filthy" comic bookshad been submitted by the Justice Department and reviewed by theCourt. The Supreme Court determined initially that obscenity is notwithin the area of constitutionally protected speech and press. In definingobscenity, the Court held that material is obscene only when the workas a whole, judged by contemporary standards, would appeal to anaverage man's prurient interest.The initial reaction to this decision is that it was a victory for thosewho favor broad power3 of censorship. However, a closer analysis re-veals quite the contrary.' Since the power to censor had always beenassumed, the Court's verbalization of this is by itself insignificant.Rather, the real importance of the case arises from the "narrow definitionof obscenity that was authoritatively endorsed by the Court.The classital definition can be found in Regina v. Hicklin2 wherethe material was judged by its tendency to effect particularily susceptiblepersons. This test, as initially interpreted, included an irrebuttable pre-sumption that the author intended the consequences of his act,3 therebyexcluding praiseworthy intentions from the jury. The rule was adoptedin the United States in 1879," and continued to be a potent weapon of"moralists" as late as the 1930's despite criticism from both intellectualsand jurists.' The inherent evils of this unrestricted standard are bestillustrated in the Massachusetts case in which Theodore Dreiser's AnAnwr~can Tragedy was proscribed on the basis of a few isolated passages.8Even though the appellate court conceded that it possessed both "artisticworth" and an "impelling moral lesson", they refused to overrule thetrial court's ruling that only the isolated passages need be submitted tothe jury.71 Lewis, Censorship Limited in "Obscenity" Cases, N.Y. Times, January 19,1958, Sec. E., p. 9, col. 6.2 Regina v. Hicklin, L.R. 3 Q.B. 360, 371 (1868): "Whether its tendency isto deprave and corrupt those whose minds are open to such immoral influencesand into whose hands it may fall." Common law jurisdiction of this offense wasfirst assumed in Rex. v. Curl, 2 Str. 788, 93 Eng. Repr. 849 (K.B. 1727).3 Steel v. Brannan, L.R. 7 C.P. 261, 267 (1872).4 United States v. Bennett, 24 Fed. Cas. No. 14,571 (C.C.S.D. N.Y. 1879);People v. Mueller, 96 N.Y. 408 (1896) ; but see In re Worthington, 30 N.Y. Supp.OHIO STATE LA4W JOURNA4L [Vol. 19Led by the "dominant effect" test enunciated by the Second CircuitCourt of Appeals in the Ulysses case,' this strict application of theHicklin rule was curtailed in the early 1930's. Joyce's Ulysses hadalso been assailed on the 'basis of a few isolated passages, but in dismissingthe contentions of the prosecution the court said that the matter isobscene only when the publication "contains prohibited matter in suchquantity or of such a nature as to flavor the *hole and impart to thewhole any of the qualities mentioned in the statute, so the book as awhole can fairly he described obscene." 9 In subsequent cases, Hicklin'sunrestricted frame of reference, "into whose hands it may fall" wasreplaced by the "average mani" and "community standards of decency"as part of the more liberal judicial attitude. 10The Supreme Court made it quite clear in decisions handed downin 1957 that a'n attempt to invoke the residual portions of the classicalstandard would be incompatible with the First Amendment.1" JusticeFrankfurter, writing for the majority in Butler v. State of Michigan,'held that a statute prohibiting the sale to the general public of a bookhaving a tendency to corrupt youth constituted an arbitrary restrictionof free speech."3 In the Roth decision, the Hicldin rule was explicitlyheld unconstitutional because its "utilization might well encompass ma-terial legitimately treating with sex.... 4 However, before formulatinga standard to replace Hicklin, it was necessary to dispose of the petitioner'sP361 (Sup. Ct. 1894); St. Hubert Guild v. Quinn, 64 Misc. 336, 118 N.Y. Supp. 582(1909), where the lower courts refused to follow the Hicklin rule in proceedingsagainst books of high literary merit.5 See United States v. Kennerly, 209 Fed. 119 (S.D. N.Y. 1913), whereJudge Hand, although personally rejecting the test, felt constrained to follow it.See ST. JOHN STEVAS, OBSCENITY AND THE LAW, Chapt. II (1956); and Lockhartand McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN.L. REv. 295 (1954), for a scholarly presentation of the criticisms of the test.'6 Commonwealth v. Fried, 271 Mass. 318, 171 N.E. 472 (1930).7Id. at 322, 171 N.E. at 474.3 United States v. One Book Entitled "Ulysses", 72 F. 2d 705 (2d Cir. 1930).9 id. at 707.I°E.g., Walker v. Popenoe, 80 U.S. App. D.C. 129, 149 F. 2d 188 (1945);Parmelee v. United States, 72 App. D.C. 203, 113 F. 2d 729 (1940) ; United Statesv. Levine, 83 F. 2d 156 (2d Cir. 1936); United States v. Dennett, 39 F. 2d 188(2d Cir. 1930) ; American Civil Liberties Union v. City of Chicago, 3 Il1. 2d 334,121 N.E. 2d 585 (1954); Commonwealth v. Isenstadt, 381 Mass. 543, 62 N.E. 2d840 (1945); Commonwealth v. Gordon, 66 Pa. Dist. & Co. R. 101, affirmed subnom. Commonwealth v. Feigenbaum, 166 Pa. Super. 120, 70 A. 2d 389 (1949).'1 U.S. CoNsT. amend. I, "Congress shall make no law . . . abridging thefreedom of speech . . ."; in Gitlow v. New York, 268 U.S. 652 (1952), this pro-tection was extended to cover state action through the interpretation of "liberties"in the due process clause of the Fourteenth Amendment.12352 U.S. 380 (1957).131d. at 383, "The incidence of this enactment is to reduce the adult popula-tion of Michigan to reading only what is fit for children."14 Roth v. United States, 354 U.S. 476, 489 (1957).RECENT DEVELOPMENTScontention that all censorship statutes are unconstitutional.' 5A number of prior cases contained dicta in which no protection wasassumed.' 6 The most persuasive of these is Justice Murphy's analysis inChaplinsky v. New Hampshire.'" In that case, it was concluded thatthe "lewd and obscene" fall into those "narrowly limited classes ofspeech the prevention and punishment of which have never been thoughtto raise a constitutional question."It has been well observed that such utterances are no essentialpart of any exposition of ideas, and are of such slight socialvalue as a step to truth that any benefit that may be derivedfrom them is clearly outweighed by the social interest in orderand morality.'"This statement in Roth differs only grammatically from the ultimateconclusions reached by Chafee in his study, Freedom of Speech. How-ever, in Chafee's analysis, an "appeal to prurient interest" or absence of"redeeming social importance" does not establish the necessary basis fordenying protection.' 9 In addition, to be obscene the words must:...inflict a present injury upon the listeners, readers, or thosedefamed, or else render highly probable an immediate breachof the peace. . . . The only sound explanation of the punish-ment of obscenity and profanity is that the words are criminal,not because of the ideas they communicate, but like acts be-cause of their immediate consequences to the five senses." 20Whether this transformation of the words into acts is a necessary partof a rational nexus for balancing public morals against freedom ofexpression was the primary issue before the Court. Since all membersof the Court agreed that freedom of speech is not an absolute freedom,the area of disagreement was necessarily limited to what constitutes theproper test of obscenity.Justice Brennan, writing for the majority, relied extensively onthe Chaplinsky dicta and concluded that a clear and present dangeris not necessary to exclude. Instead, he authoritatively endorsed the15The petitioners contended that the statutes violated the due process re-quirement of "definitness" as well as being repugnant to the First Amendment.This argument will not be reviewed in this note; the Butler case, supra note 12,had already clearly rejected this extension of the Fourteenth Amendment. SeeFoster, The "Comnstock Lode"--Obscenity and the Lawe, 48 J. CRI-a. L., C. & P.S.245, 253 (1957).161Beauharnasis v. Illinois, 343 U.S. 250 (1951); Winters v. New York,333 U.S. 507 (1947); Hannigan v. Esquire, Inc., 327 U.S. 146 (1945); Chaplinskyv. New Hampshire, 315 U.S. 568 (1941); Near v. Minnesota, 283 U.S. 697 (1930);Robertson v. Baldwin, 165 U.S. 275, 281 (1896) ; United States v. Chase, 135 U.S.255, 266 (1889) ; Ex parle Jackson, 96 U.S. 727, 736, 737 (1877).17315 U.S. 568, 572 (1941).IS Supra note 14, at 485.19 CHAFEE, FREEDOM OF SPEECH, 171 (1920). He rejected the interpretation ofconstitutional intent and analogy to libel (two subordinate reasons utilized inthe Roth opinion) as an insufficient basis for exclusion.20 Id. at 149-50.1958]OHIO STATE LAW JOURNALprurient interest test of the Model Penal Code.Whether to the average person, applying contemporary com-munity standards the dominant theme of the material taken asa whole appeals to prurient interest.21Although this is a narrower test than had been developed bycommon law, it is significant that it assumes the premise that provocationof mere thoughts is a sufficient criterion. The vitality of the endorsementis further neutralized by the Court's approval of the lower court in-structions which were framed in terms of the "tendency to corrupt"standards developed by common law. This inconsistency is brought intofocus by a comparison of footnote twenty of the majority: "We perceiveno significant difference between the meaning of obscenity developed incase law and the definition of the Model Penal Code," with the drafters'comment: "We reject the prevailing tests of tendency to arouse . . .because regulation of thought or desire, unconnected with overt behavior,raises the most acute constitutional as well as practical difficulties." 2"In the dissent of Justice Douglas, Justice Black concurring, theposition was taken that before speech is punishable, there must be somerelation to an overt action which can be penalized by the government.Like the standard applied by the trial judges below, that stand-ard [prurient interest] does not require any nexus between theliterature which is prohibited and action which the legislationcan regulate or prohibit.2"Confronted with inadequate empirical evidence of any causal relationbetween obscenity and social harm, together with the historical precedentof irrational and indiscriminate censorship of obscenity, Justice Douglasfelt that "any test that turns on what is offensive to the community'sstandards is too loose, too capricious, too destructive of freedom of ex-pression to be squared with the First Amendment."2 4Chief Justice Warren, who concurred in the majority's result so21 MODEL PENAL CODE, Sec. 207.10(2) (Tent. Draft No. 6 1957).22 Id. at p. 10.23 Supra note 14, 513. This approach, is not dissimiliar from the one takenby Judge Bok in 66 Pa. Dist. & Co. R. 101, affirmed sub nom. Commonwealth v.Feigenbaum, 166 Pa. Super. 120, 70 A.2d 389 (1949): ". . . [O]nly when there is areasonable and demonstrable cause to believe that a crime or misdemeanor hasbeen committed or is about to be committed as a perceptible result of the publica-tion and distribution of the writing in question." The Supreme Court's refusalto approach the constitutional question in Doubleday & Co. v. New York, 355 U.S.848 (1948), where the conviction of the publishing house was affirmed in a four-four no opinion decision is felt by some critics to be the catalyst of Judge Bok'sbold step in analyzing obscenity in this framework. See MILTON R. KoNovrrz,FUNDAMENTAL LIBERTIES OF A FREE PEOPLE, 159-160, 161 (1957); Lockhart andMcClure, Literature, the Law of Obscenity and the Constitution, 38 MINN. L. REV.295 (1954).24 Supra note 14 at 512, See Lockhart and McClure, ibid. at 385-86.[Vol. 19RECENT DEVELOPMENTSfar as the rejection of the clear and present danger test was concerned,posited a third position in which the conduct of the individual is thecrucial element to be judged: "It is not the book that is on trial, it is theperson." 25This approach seems the least tenable in that it fails to recognizethat the only acceptable basis for the exclusion is not the defendant's in-sensitivity, but some adverse impact upon public morals. Chief JusticeWarren's difficulty is that he is treating a civil liberties crime in thesame manner in which ordinary criminal behavior has been traditionallyevaluated. If inquiry into the defendant's mental attitude has anyvitality, it is not as a nexus for the factual determination of obscenity,but as a factor to be weighed in assessing the quantum of criminal re-sponsibility to be imposed.In subsequent cases the Supreme Court has adopted the same policywith convictions under obscenity statutes as it had initially utilized in thedisposition of movie censorship litigation---a case-by-case basis in whichthey personally review the allegedly obscene material.2" In two recentmemorandum opinions the Court reversed lower court convictions by amere citation of Roth.2 7 Likewise, in reviewing a Chicago ban on themovie Game of Love, the Court abandoned its customary approach of"too vague and indefinite" and reversed on the basis of Roth.2" Inessence, the decisions thus far indicate a reluctance on' the part of theCourt to tolerate censorship of any material which might express sociallysignificant ideas: As a practical matter, so long as this policy continues,disposition in the majority of the cases will be the same as it would beunder the clear and present danger test. However, one should not beoblivious of the fact that any test which is premised on thoughts pro-voked, rather than overt acts induced, latently possesses all the seeds ofindiscriminate application that had prevailed under the Hkklin regime.Although the explicit rejection of the Hicklin rule by the Rothdecision is a progressive step forward, the boldest step remains to betaken. It seems elementary that the only acceptable standard is one inwhich the determinative criteria is co-extensive with the basis for denying25 Supra note 14 at 495.2 6 Burstyn v. Wilson, 343 U.S. 495 (1952) ("sacreligious") ; Gelling v. Texas,343 U.S. 960 (Per curiam, 1952) ("prejudicial to the best interests of people ofthe city"); Superior Films Inc. v. Department of Education, 346 U.S. 587 (Percuriam, 1954) ("harmful," "immoral" and "tend to corrupt morals").27One, Inc., v. Olsen, 26 U.S.L. WEEK 3203 (No. 290, Jan. 14, 1958), cert.granted and mail ban on magazine which discussed the problems of homosexualityreversed; Sunshine Book Co. v. Summerfield, 26 U.S.L. WEEK 3203 (No. 587, Jan.15, 1957), cert. granted and postal ban of nudist magazine reversed.28 Times Film Corporation v. City of Chicago, 355 U.S. 55 (Memo Dec.1957) ; see also, Excelsior Pictures Corp. v. Regents, 3 N.Y. 2d 31, _. N.E. 2d --(1957) ; where censorship of "Garden of Eden," a movie depicting life in anudist colony, was reversed on the basis of Roth.19581142 OHIO STATE LAW JOURNAL [Vol. 19the words the guarantees of the First Amendment.29 Until a reasonmore satisfactory than Chaffee's analysis3" is presented, the clear andpresent danger test seems to be the only standard which adequatelyprotects freedom of expression.Charles E. Taylor29 De Jonge v. Oregon, 299 U.S. 353 (1937): "These rights may be abusedby using speech or press or assembly in order to incite to violence and crime.The people through their legislatures may protect themselves from that abuse.But the legislative intervention can find constitutional justification only by dealingwith the abuse. The rights themselves must not be curtailed." Thornhill v.Alabama, 310 U.S. 88 (1940): "Abridgment of the liberty of such discussion canbe justified only where the clear danger of substantive evil arises. . . ." Musser v.Utah, 333 U.S. 95 (1948): "At the very least the line must be drawn betweenadvocacy and incitement."30Supra note 19.

The New Standard of Obscenity

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The New Standard of Obscenity

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