Sexual Material

• Pages: 135-152
• Author: Daniel A. Farber

135

Chapter 7

SEXUAL MATERIAL

One of the traditional exceptions to First Amendment protection

was a category called obscenity. The first half of this chapter

discusses the his tory o f obscen ity law as well as current obscenity

doctrine. Although obscenity law in its mo dern form is primarily

aimed against hardco re pornography, it seems to be notably

ineffective in suppressing such material. As a few minutes of

exploration on the Internet will confirm, pornography of all kinds is

readily available despite obscenity laws. The second half of the

chapter considers two other possible methods of controlling sex-

related speech: (a) the use of zoning laws to limit the permissible

locations for businesses selling pornography, an approach which has

been accepted by the courts; and (b) civil right s remedies against

materials considered to pose a threat to women, an approach which

has been rejected by the federal courts.

I. The Development of Obscenity Law

Chaplinsky v. New Hampshire (the fighting words case

discussed in the previous chapter) listed obscenity as one of the forms

of speech outside the protection of the First Amendment. Obscenity

prosecutions have a long history in the United States, with the first

reported judicial opinion dating back to the early Nineteenth

Century. Serious efforts to suppress obscenity began in the Civil War

era. They resulted in the enactment of bans nationwide on literature

tending to “deprave and corrupt” the reader. Because this test was

geared to protect the most innocent readers, it resulted in banning

notable literary works on the theory that some passages were

corrupting. In 1948, the Court divided equally on whether the

memoirs of a noted literary critic were legally obscene.

1

Beginning in

the late 1950s, the Court began a prolonged engagement with the

problem of how to define unprotected obscenity. We will devote some

specific attention to its first formulation, the Roth-Memoirs test, even

though that test was later modifie d, because most of the conceptual

difficulties in the current Miller test were implicit in this earlier

formulation.

A. The Roth-Memoirs Test

Roth v. United States

2

involved two companion cases, one under

a federal law banning the mailing o f obscene material and the other

1

Doubleday & Co. v. New York, 335 U.S. 848 (1948).

2

354 U.S. 476 (1957).

136

THE CATEGORICAL APPROACH

Pt. II

under a California obscenity law. According to the Court, no question

was presented about whether the particular material was obscene.

The only question was whether obscenity in general is “utterance

within the area of protected speech and press.” Justice Brennan’s

opinion for the Court conclude d that obscenity was not protected

speech.

Justice Brennan began his analysis by noting that when the

First Amendment w as adopted, state laws generally regulated or

banned several forms of speech, including libel and in various states

either blasphemy or profanity. Justice Brennan described the First

Amendment as being “fashioned to assure unfettered interchange of

ideas for the bringing about of political and social changes desired by

the people.” Thus, he said, “[a]ll ideas having even the slightest

redeeming social importance—unorthodox ideas, controversial ideas,

even ideas hateful to the prevailing climate of opinion” are protected

by the First Amendment. But “implicit in the history of the First

Amendment is the rejection of obscenity as utterly without

redeeming social importance.” The defendants argued that the

obscenity statutes failed the “clear and present dang er” test. But

Brennan argued that this test only applied to otherwise protected

speech, so obscenity (as a kind of “non-speech”) was not covered.

Besides offering this rationale for obscenity law, Justice

Brennan attempted to clarify the meaning of obscenity. Sex and

obscenity, he said, are not equivalent: “[o]bscene material is material

which deals with sex in a manner appealing to prurient interest.” He

then offered some dictionary definitions of “prurient”—as “[i]tching;

longing; uneasy with desire or longing ”—and referred to the

definition of “prurient int erest” und er the Model Penal Code as “a

shameful or morbid interest in nudi ty, sex, or excretion.” Becau se of

the First Amendment interest in discussions of sexual matters,

however, Brennan considered it vital to clarify the standards for

determining obscenity. The traditional method determined obscenity

by the effect of isolated passages on the most susceptible persons.

Thus, a work could be held obscene based on a few snippets taken out

of context. Brennan rejected this approach. He quoted with approval

the instructions given by the trial judge in Roth:

The test in each case is the effect of the book, picture or

publication considered as a w hole, not upon any particular

class, but upon all those whom it is likely to reach. In other

words, you determine its impact upon the average person

in the community. The books, pictures and circulars must

be judged as a whole, in their entire context, and you are

not to consider detached or separate portion s in reaching a

conclusion. . . . You may ask yourselves does it offend the