But Do They Have To See It To Know It? the Supreme Court's Obscenity and Pornography Decisions

Date01 December 1991
Published date01 December 1991
DOI10.1177/106591299104400413
Subject MatterArticles
BUT
DO
THEY
HAVE
TO
SEE
IT
TO
KNOW
IT?
THE
SUPREME
COURT’S
OBSCENITY
AND
PORNOGRAPHY
DECISIONS
TIMOTHY
M.
HAGLE
University
of
Iowa
hat
the
area
of
obscenity
and
pornography
is
a
difficult
one
for
the
Supreme
Court
is
well
documented
(e.g.,
Sunderland
1975;
JL
Woodward
and
Armstrong
1979:
192-204,
244-53;
Nowak,
Rotunda,
and
Young
1983:
1008-10;
McGuire
1990).
Justice
Brennan
makes
this
point
quite
clearly:
&dquo;As
a
result
of
our
failure
to
define
standards
with
predictable
application
to
any
given
piece
of
material,
there
is
no
probability
of
regularity
in
obscenity
decisions
by
state
and
lower
federal
courts&dquo;
(Paris
Adult
Theatre
I v.
Slaton,
413
U.S.
49,
92
~1973~,
Brennan,
J.,
dissenting).
Despite
the
Court’s
numerous
attempts
to
define
obscenity
(see
Roth
v.
United
States
[ 1957],
Redrup
v.
New
York
[1964],
and
Miller
v.
California
[1973]),
its
obscenity
and
pornography
decisions
are
made
on
a
case-by-case
basis
(see Jenkins
v.
Georgia
[1974])
and
left
to
the
subjective
preferences
of
the
justices.
Perhaps
Justice
Stewart
put
it
best
when,
after
refusing
to
define
obscenity,
he
declared,
&dquo;But
I
know
it
when
I
see
it&dquo;
Uacobellis v.
Ohio,
378
U.S.
184,
197
[1964]).
The
vagueness
of
the
Court’s
obscenity
guidelines
as
laid
out
in
Miller,
force
us
to
look
elsewhere
for
a
determination
of
the
factors
affecting
the
Court’s
obscenity
decisions.
Received:
September
7,
1990
Revision
Received:
January
1,
1991
1
Accepted
for
Publication:
January
10,
1991
1
NOTE:
Some
of
the
data
for
this
paper
come
from
the
U.S.
Supreme
Court
Judicial
Date
Base,
Harold
J.
Spaeth,
principal
investigator.
The
University
of
Iowa
provided
research
support
via
an
Old
Gold
Summer
Fellowship.
My
thanks
to
Jeffrey
A.
Segal,
Harold J.
Spaeth,
and
John
R.
Wright
for
their
comments
on
an
earlier
draft
of
this
paper,
and
to
my
research
assistant
Michelle
Brophy-
Baermann.
An
earlier
version
of
this
paper
was
delivered
at
the
1989
Annual
Meeting
of
the
American
Political
Science
Association.
1
"The
basic
guidelines
for
the
trier
of
fact
must
be:
(a)
whether
’the
average
person,
applying
contemporary
community
standards’
would
find
that
the
work,
taken
as
a
whole,
appeals
to
the
prurient
interest;
(b)
whether
the
work
depicts
or
describes,
in
a
patently
offensive
way,
sexual
conduct
specifically
defined
by
the
applicable
state
law;
and
(c)
whether
the
work,
taken
as
a
whole,
lacks
serious
literary,
artis-
tic,
political,
or
scientific
value"
(
Miller
v.
California,
413
U.S.
15,
24
[1974],
citations
omitted).
1040
Several
recent
studies
employ
forms
of
fact-pattern
analysis
in
modeling
the
Court’s
decision
making
(e.g.,
Segal
1984,
1985;
Caldeira
and
Wright
1988;
McGuire
1990).
These
studies
examine
the
fact
pat-
tern
or
case
characteristics
as
a
determinant
of
the decision
reached
by
the
Court.
In
broad
terms, these
studies
owe
their
theoretical
under-
pinnings
to
attitude
theory.
As
the
name
suggests,
attitude
theory
views
the
Court’s
attitudes
as
an
explanation
of
its
decisions.
These
attitudes,
however,
do
not
operate
in
a
vacuum.
As
Spaeth
explains,
&dquo;the
activation
of
an
attitude
involves
both
an
object
and
the
situation
in
which
that
object
is
encountered&dquo;
(1979:
120;
emphasis
in
original).
The
objects
to
which
the
Court
directs
its
attitudes
are
the
litigants.
The
situation -
the
subject
matter
of
the
case -
can
be
defined
in
broad
or
narrow
terms.
One
may
define
the
situation
as
an
entire
area
of
the
law
(e.g.,
civil
liberties
issues,
Baum
1988,
1989),
the
deci-
sion
to
grant
certiorari
(Tanenhaus
et
al.
1963;
Caldeira
and
Wright
1988),
or
whether
to
defect
from
a
minimum-winning
coalition
(Bren-
ner,
Hagle,
and
Spaeth
1989).
Defining
the
situation
with
such
broad
strokes,
however,
does
not
allow
one
to
control
for
case
content
(Baum
1988:
906).
In
many
spe-
cific
issue
areas
the
cases
present
strikingly
similar
fact
patterns.
In
examining
the
Court’s
search
and
seizure
decisions,
Segal
(1984,
1985)
found
a
relatively
small
number
of
situational
and
case
characteristic
variables
explain
a
high
proportion
of the
Court’s
decisions.
Despite
Segal’s
success,
the
use
of
broad-based
factors
and
efforts
to
apply
fact-pattern
analysis
to
other
issue
areas,
have
been
slow
in
forthcoming.
Renewed
interest
in
obscenity
and
pornography
by
fed-
eral
and
state
governments
(e.g.,
1986
Attorney
General’s
Commis-
sion
on
Pornography,
the
recent
controversies
surrounding
the
photo-
graphs
of
Robert
Mapplethorpe
and
the
songs
of
the
rap
group
2
Live
Crew),
the
academic
community
(e.g.,
Donnerstein,
Linz,
and
Penrod
1987;
Downs
1989;
McGuire
1990),
and
numerous
antipornography
interest
groups
(e.g.,
Citizens
for
Decency
Through
Law,
Morality
in
Media,
Morality
in
America;
Women
Against
Pornography;
Pornog-
raphy
Resource
Center;
see
Downs
1989:
25-32)
indicates
the
Court’s
decisions
in
this
area
deserve
closer
examination.
The
Court’s
obscenity
and
pornography
decisions
also
present
an
opportunity
to
study
the
Court’s
behavior
in
an
area
where
it
has
claimed
to
have
granted
significant
decision-making
authority
to
the
states.
In
Miller
(1973)
the
Court
announced
the
importance
of
con-
temporary
community
standards
in
obscenity
determinations.
The
next

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