Constraints of the First Amendment - Notes

Porn Studies > Meese Report Table of Contents

  1. Gitlow v. New York, 268 U.S. 652 (1925).
  2. E.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).
  3. Frohwerk v. United States, 249 U.S. 204 (1919).
  4. Dunlap v. United States, 165 U.S. 486 (1897).
  5. Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930).
  6. People v. Dial Press, 182 Misc. 416 (N.Y. Magis. Ct. 1929).
  7. Attorney General v. Book Named "God's Little Acre," 326 Mass. 281, 93 N.E.2d 819 (1950).
  8. People v. Seltzer, 122 Misc. 329, 203 N.Y.S. 809 (N.Y. Sup. Ct. 1924).
  9. 354 U.S. 476 (1957).
  10. E.g., Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959).
  11. 413 U.S. 49 (1973).
  12. 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.
  13. 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.
  14. See, Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973).
  15. 418 U.S. 153 (1974).
  16. 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).
  17. The Supreme Court in fact uses the term in Miller.
  18. "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).
  19. 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.
  20. 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).
  21. 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).
  22. 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.

Porn Studies > Meese Report Table of Contents

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