Sexual Speech

• Author: Ruthann Robson
• Pages: 779-875

Robson The First Amendment

779

Chapter&Ten:&SEXUAL&SPEECH&&

This chapter begins by exploring the categorical exclusion of obscenity

from protected speech and the struggle for a definition of obscenity. It

then considers the problem of privacy and the doctrine of secondary

effects. The issue of child protection regarding obscenity, regulated

media, and the internet is the subject of the third section. The final

section considers attempts to extend obscenity doctrine to other types of

speech.

&

Chapter Outline

I. Defining Obscenity

Rosen!v.!United!States!!!!!

Notes!!!!!

Roth!v.!United!States!!!!!

Jacobellis!v.!Ohio!!!!!

Miller!v.!California!!!!!

Note:!Prurient!Interest!!!!!

II. Privacy and Pornography

Stanley!v.!Georgia!!!!!

Paris!Adult!Theatre!I!v.!Slaton!!!!!

Note!!!!!

III. Secondary Effects

Erie!v.!Pap’s!A.!M.!!!!!

Notes!!!!!

IV. Children, Regulated Media, and the Internet Age

Note:!Ginsberg!v.!New!York!and!New!York!v.!Ferber!!!!!

Note:!Fleeting!Expletives!and!Fleeting!Nudity!on!Broadcast!Television!!!!!

United!States!v.!Williams!!!!!

Note:!Funding!!!!!

V. The Limits of Obscenity and the Categorical Approach?

United!States!v.!Stevens!!!!!

Brown!v.!Entertainment!Merchants!Association!!!!!

Note:!Reconsidering!the!Categorical!Approach!!!!!

Robson The First Amendment

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I.&Defining&Obscenity&&

Rosen$v.$United$States$

161 U.S. 29 (1896)

MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT.

The plaintiff in error was indicted under section 3893 of the Revised Statutes,

providing that 'every obscene, lewd, or lascivious book, pamphlet, picture,

paper, writing, print, or other publication of an indecent character, . . . and

every article or thing intended or adapted for any indecent or immoral use, and

every written or printed card, circular, book, pamphlet, advertisement, or notice

of any kind giving information, directly or indirectly, where or how, or of whom,

or by what means, any of the hereinbefore mentioned matters, articies, or

things may be obtained or made, . . . are hereby declared to be nonmailable

matter, and shall not be conveyed in the mails, nor delivered from any post

office nor by any letter carrier; and any person who shall knowingly deposit, or

cause to be deposited, for mailing or delivery, anything declared by this section

to be non-mailable matter, and any person who shall knowingly take the same,

or cause the same to be taken, from the mails, for the purpose of circulating, or

disposing of, or of aiding in the circulation or disposition of the same, shall be

deemed guilty of a misdemeanor, and shall for each and every offense be fined

not less than one hundred dollars nor more than five thousand dollars, or

imprisoned at hard labor not less than one year nor more than ten years, or

both, at the discretion of the court. . . . [ellipses in original]

The defendant pleaded not guilty, and the trial was entered upon without

objection in any form to the indictment as not sufficiently informing the

defendant of the nature of the charge against him.

A verdict of guilty having been returned, the accused moved for a new trial,

upon the ground, among others, that the indictment was fatally defective in

matters of substance. That motion was denied.

The defendant thereupon moved in arrest of judgment, upon the ground that

the indictment did not charge that he knew at the time what were the contents

of the paper deposited in the mail, and alleged to be lewd, obscene, and

lascivious. This motion was also denied, and the accused was sentenced to

imprisonment at hard labor during a period of 13 months, and to pay a fine of

one dollar.

The paper 'Broadway,' referred to in the indictment, was produced in evidence,

first, by the United States, and afterwards by the accused. The copy read in

evidence by the government was the one which, it was admitted at the trial, the

defendant had caused to be deposited in the mail. The pictures of females

appearing in that copy were, by direction of the defendant, partially covered

with lamp black, that could be easily erased with a piece of bread. The object of

sending them out in that condition was, of course, to excite a curiosity to know

what was thus concealed. The accused read in evidence a copy that he

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characterized as a 'clean' one, and in which the pictures of females, in different

attitudes of indecency, were not obscured by lamp black.

*** The indictment charged that the accused, on the 24th day of April, 1893,

within the Southern district of New York, 'did unlawfully, willfully, and

knowingly deposit and cause to be deposited in the post office of the city of New

York, for mailing and delivery by the post-office establishment of the United

States, a certain obscene, lewd, and lascivious paper, which said paper then

and there, on the first page thereof, was entitled 'Tenderloin Number,

Broadway,' and on the same page were printed the words and figures following,

that is to say: 'Volume II, number 27; trade-mark, 1892; by Lew Rosen; New

York, Saturday, April 15, 1893; ten cents a copy, $4.00 a year in advance;' and

thereupon, on the same page, is the picture of a cab, horse, driver, and the

figure of a female, together (underneath the said picture) with the word

'Tenderloineuse'; and the said paper consists of twelve pages, minute

description of which, with the pictures therein and thereon, would be offensive

to the court, and improper to spread upon the records of the court, because of

their obscene, lewd, and indecent matters; and the said paper, on the said

twenty-fourth day of April, in the year one thousand eight hundred and ninety-

three, was inclosed in a wrapper, and addressed as follows, that is to say: 'Mr.

Geo. Edwards, P. O. box 510, Summit, N. J.,'—against the peace of the United

States and their dignity, and contrary to the statute of the United States in

such case made and provided.'

*** It is also assigned for error that the court left it to the jury to say whether

the paper in question was obscene, when it was for the court, as a matter of law,

to determine that question. If the court had instructed the jury as matter of law

that the paper described in the indictment was obscene, lewd, and lascivious,

no error would have been committed; for the paper itself was in evidence, it was

of the class excluded from the mails, and there was no dispute as to its

contents. It has long been the settled doctrine of this court that the evidence

before the jury, if clear and uncontradicted upon any issue made by the parties,

presented a question of law in respect of which the court could, without

usurping the functions of the jury, instruct them as to the principles applicable

to the case made by such evidence. Even if we should hold that the court ought

to have instructed the jury, as matter of law, that the paper was, within the

meaning of the statute, obscene, lewd, and lascivious, it would not follow that

the judgment should, for that reason, be reversed, because it is clear that no

injury came to the defendant by submitting the question of the character of the

paper to the jury. But it is proper to add that it was competent for the court

below, in its discretion, and even if it had been inclined to regard the paper as

obscene, lewd, and lascivious, to submit to the jury the general question of the

nature of the paper, accompanied by instructions indicating the principles or

rules by which they should be guided in determining what was an obscene,

lewd, or lascivious paper within the contemplation of the statute under which

the indictment was framed. That was what the court did when it charged the

jury that 'the test of obscenity is whether the tendency of the matter is to

deprave and corrupt the morals of those whose minds are open to such

influence, and into whose hands a publication of this sort may fall.' 'Would it,'

the court said, 'suggest or convey lewd thoughts and lascivious thoughts to the

young and inexperienced?' In view of the character of the paper, as an