Obscenity laws embarrass ALEXIS DE TOCQUEVILLE'S claim that there is "hardly a political question in the United States which does not sooner or later turn into a judicial one." It is not merely that the obscenity question became a serious judicial issue rather much later than sooner. It is that the richness of the questions involved have been lost in their translation to the judicial forum.
Obscenity laws implicate great questions of political theory including the characteristics of human nature, the relationship between law and morals, and the appropriate role of the state in a democratic society. But these questions were barely addressed when the Court first seriously considered a constitutional challenge to obscenity laws in the 1957 cases of ROTH V. UNITED STATES and Alberts v. California.
The briefs presented the Court with profoundly different visions of FIRST AMENDMENT law. Roth argued that no speech including obscenity could be prohibited without meeting the CLEAR AND PRESENT DANGER test, that a danger of lustful thoughts was not the type of evil with which a legislature could be legitimately concerned, and that no danger of antisocial conduct had been shown. On the other hand, the government urged the Court to adopt a balancing test that prominently featured a consideration of the value of the speech involved. The government tendered an illustrative hierarchy of nineteen speech categories with political, religious, economic, and scientific speech at the top; entertainment, music, and humor in the middle; and libel, obscenity, profanity, and commercial PORNOGRAPHY at the bottom. The government's position was that the strength of public interest needed to justify speech regulation diminished as one moved down the hierarchy and increased as one moved up.
In response to these opposing contentions, the Court took a middle course. Relying on cases like BEAUHARNAIS V. ILLINOIS (1952), the Court seemed to embrace what HARRY KALVEN, JR. , later called the TWOLEVEL THEORY of the First Amendment. Under this theory, some speech is beneath the protection of the First Amendment; only that speech within the amendment's protection is measured by the clear and present danger test. Thus some speech is at the bottom of a two-level hierarchy, and the Roth Court sought to explain why obscenity deserved basement-level nonprotection.
History, tradition, and consensus were the staple of the Court's argument. Justice WILLIAM J. BRENNAN explained
that all "ideas having even the slightest redeeming social importance" deserve full First Amendment protection. But, he said, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Then he pointed to the consensus of fifty nations, forty-eight states, and twenty obscenity laws passed by the Congress from 1842 to 1956. Finally, relying on an OBITER DICTUM from CHAPLINSKY V. NEW HAMPSHIRE (1942), the Court explained that obscene utterances "are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
From the perspective of liberal, conservative, or feminist values, the Court's reliance on...