- Gitlow v. New York, 268 U.S. 652 (1925).
- E.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Organization for a
Better Austin v. Keefe, 402 U.S. 415 (1971).
- Frohwerk v. United States, 249 U.S. 204 (1919).
- Dunlap v. United States, 165 U.S. 486 (1897).
- Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930).
- People v. Dial Press, 182 Misc. 416 (N.Y. Magis. Ct. 1929).
- Attorney General v. Book Named "God's Little Acre," 326 Mass. 281, 93
N.E.2d 819 (1950).
- People v. Seltzer, 122 Misc. 329, 203 N.Y.S. 809 (N.Y. Sup. Ct. 1924).
- 354 U.S. 476 (1957).
- E.g., Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959).
- 413 U.S. 49 (1973).
- 413 U.S. 15 (1973). Among the most significant aspects of Miller was the fact
that it rejected as part of the definition of obscenity the requirement that before
material could be deemed obscene it had to be shown to be "utterly without redeeming
social value." This standard had its roots as part of the test for obscenity in Memoirs
v. Massachusetts, 383 U.S. 413.
- Smith v. California, 361 U.S. 147 (1959). The principle was reaffirmed in Hamling
v. United States, 418 U.S. 87 (1974), which also made clear that the defendant need
not be shown to have known that the materials were legally obscene.
- See, Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496
- 418 U.S. 153 (1974).
- The third facet of the Miller test, that the work lack "serious literary,
artistic, political, or scientific value," is never in any event to be determined by
reference to local standards. Here the frame of reference must in all cases be national. Smith
v. United States, 431 U.S. 291 (1977).
- The Supreme Court in fact uses the term in Miller.
- "I have reached the conclusion ... that under the First and Fourteenth Amendments
criminal laws in this area are constitutionally limited to hard-core pornography. I shall
not today attempt further to define the kinds of material I understand to be embraced
within that shorthand description; and perhaps I could never succeed in intelligently
doing so. But I know it when I see it, and the motion picture involved in this case is not
that." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
- We do not in this Report discuss Stanley v. Georgia, 394 U.S. 557 (1969), in
which the Supreme Court held the mere possession of even legally obscene material
to be constitutionally protected. We do not discuss Stanley because nothing we
recommend is inconsistent with it, and no one has suggested to us that we should urge that
Stanley be overruled.
- See, e.g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev.
1; Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391
(1963); Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First
Amendment, 123 U. Pa. L. Rev. 45 (1974).
- As this report is being written, the Supreme Court has under advisement after oral
argument the case of Bowers v. Hardwick, 760 F.2d 1202 (11th Cir. 1985), Sup. Ct.
Docket No. 85-140, challenging the constitutionality of the Georgia sodomy statute as
applied to the private and consensual acts of two male homosexuals. The arguments rely
primarily on constitutional claims of liberty, privacy, and freedom of association. If the
Supreme Court strikes down the statute as unconstitutional, arguments other than the First
Amendment might be available to challenge certain laws against certain uses of even
legally obscene materials. Without such an action, however, such privacy or liberty
arguments, which the Supreme Court rejected with respect to exhibition of obscene material
to consenting adults in a theater in Paris, would be unlikely to succeed. Doe v.
Commonwealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd without opinion,
425 U.S. 901 (1976).
- 1974 seems the most relevant date because that was the year in which the Supreme
Court, in Jenkins v. Georgia, 418 U.S. 153 (1974), made it clear that
determinations of obscenity were not primarily a matter of local discretion.