Supreme Court Pornography Cases

The Supreme Court has addressed pornography more often than almost any other issue of comparable specificity, and small wonder why—the Court has read an implicit obscenity exception to the free speech clause, giving it the unenviable responsibility of interpreting an unstated 18th-century definition of obscenity two centuries later. And the more the Court has attempted to define obscenity, the more complex that definition has become.



The Supreme Court made things slightly easier for itself in three cases, all decided between 1967 and 1973.

Jacobellis v. Ohio (1967)
Forced to determine whether the art film Les Amants was obscene, despite the fact that it was obviously not intended to serve as pornography, the Court acknowledged the difficulty of its job—before ruling in favor of the film on multiple, vague grounds. Justice Potter Stewart memorably captured the Court's challenge:

"It is possible to read the Court's opinion in [past pornography cases] in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's [recent decisions] 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 intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
While Justice Stewart's concurrence was brief and plainspoken, the longer, less plainspoken majority opinion wasn't much more specific. This posed a problem, but it also represented a significant milestone: the Court finally acknowledged the complexity of obscenity as a concept, and the impossibility of capturing it fully.


Stanley v. Georgia (1969)
The Court made its job a little easier still in Stanley, when it effectively legalized the private possession of pornography—making pornography a business-related offense rather than a private moral offense. Justice Thurgood Marshall wrote for the majority:
"These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene.

But we think that mere categorization of these films as "obscene" is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
This still left the Court with the question of what to do with pornographers—but, with the issue of private possession taken off the table, this question became slightly easier to address.

Miller v. California (1973)
Stanley suggested a trajectory in favor of the decriminalization of pornography. What Chief Justice Warren Burger did, instead, was create a three-part test—now called the Miller test—that courts have used ever since to determine whether or not material qualifies as obscene. Justice William O. Douglas, arguably the most articulate free speech advocate in the Court's history, delivered a blistering dissent in favor of decriminalization:
"The difficulty is that we do not deal with constitutional terms, since 'obscenity' is not mentioned in the Constitution or Bill of Rights … for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated 'obscene' publications differently from other types of papers, magazines, and books … What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

"Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime, a publisher would know when he was on dangerous ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal law becomes a trap."
In practice, all but the most harmful and exploitative forms of pornography have generally been decriminalized despite the Court's relative lack of clarity on this issue.