PORNOGRAPHY—II Finding Legal Definition Of Obscenity Difficult

Press, Volume CIX, Issue 32296, 14 May 1970, Page 13

PORNOGRAPHY—II Finding Legal Definition Of Obscenity Difficult

(By

LANSING R. SHEPARD

tn the

‘Christian Science Monitor”)

“Obscenity cases? Ha.” said a state attorney recently. “They’r real losers. You just can’t get an obscenity conviction today that will stick. The lower courts look to the Supreme Court for guidelines, but they aren’t getting any. The whole thing’s a mess,” he commented bitterly.

The lament is a familiar one. And despite the emergence of a more conservative United States Supreme Court, the complaint is not likely to diminish. The court as constituted under the liberal leadership of former Chief Justice Earl Warren was long criticised by many as being too “libertarian” in its reluctance to free the censor's pen.

Some think, however, that with the confirmation of , Warren E. Burger as * Chief Justice, and with the pending appointment of a Nixon-selected associate justice to fill the seat vacated by Abe Fortas (Judge H. Blackmun], some form of judicial “hard line” on por- 1 nr'—’”’hy may be at hand. < Such expectations have ‘ also oeen fed by the pro- i bable retirement soon of two' of the court’s most liberal t justices, William O. Douglas < and Hugo L. Black. i Decision Reversed < Confirmation of just such ' a conservative trend is seen ( in the recent stand taken by , the new Chief Justice in the Carlos v. New York case de- j tided early last December. , Tn that case, the high tribunal overturned a New York Court of Appeals decision to uphold the conviction of a Watertown, N.Y., ' man for selling obscene mat- 1 ter in the form of two ' “girlie” magazines. But in a ' dissenting opinion joined by ' Associate Justice John M. Harlan, the Chief Justice opined that the First Amendment granted broad discretion to state officials in suppressing “hard core” obscenity. His view was based on past Parian opinion which held that federal obscenity laws should be more narrowly construed than state laws, and that the court should uphold only those federal laws which suppressed “hard eore” obscenity. The earlier Harlan opinion stated that the First Amendment did not bar states from curtailing obscenity unless the local officials’ definition of obscenity was “wholly out of step with current American standards.” Court’s Role Chief Justice Burger’s agreement with this viewpoint has led many to expect a crackdown on pornography. To other observers, however, such an expectation is unrealistic. They hold that the court’s attitude over the last few years reflects not so much a deliberate liberalising as an attempt to avoid becoming a case-by-case “official United States censor”—a role traditionally suspect Observers point to the ambivalence of court pornography decisions over the last 10 years. Instead of setting down a precise definition of pornography, the court has created a number of vague tests.

Observers note that while judicial condemnation of pornography may be found throughout these decisions, the court has consistently declined to uphold the majority of obscenity convictions which have come its way. In 1957 in Roth v. United States the court set up the first of these tests when it held that material could be considered obscene only if “to the average person applying contemporary community standards, the dominant theme . . . taken as a whole appeals to the prurient interests.”

In the nine years that fol-

lowed Roth, however, the high tribunal did not uphold a single lower-court finding of obscenity, although it reviewed 12 cases. Requirements Tallied Then in 1966, the court turned out a bumper crop, of obscenity requirements: Ginzburg v. United States saw the creation of the “pandering” testmaterials could be found obscene only if the purveyor's sole emphasis was on its sexually provocative aspects. In other words, publications advertised in an obscene way were illegal. Mishkin v. New York, decided that same year, applied the Roth requirement to “sexually deviant groups.” Materials were obscene if they openly appealed to the prurient interest of a particular sexually deviant group rather than to the general public. And Memoirs v. Massachusetts (the “Faimy Hill” case) provided, until just recently, the “latest word” in obscenity tests.

In this case it was decided that an obscenity conviction could stand only when it has “passed” all three of the following requirements:

i 1. The dominant theme of the material taken as a whole appeals to the prurient interest

2. The material is patently offensive in that it affronts contemporary community standards relating to the description of representation of sexual matters. 3. The material is utterly lacking in redeeming social value. Apparent Shift

While this three-pronged definition admittedly still left obscenity interpretation up to the court, it was nonetheless something the lower courts felt they could hang their hats on.

They were entirely unprepared then for Redrup v. New York, decided the very next year (1967). In this case the Supreme Court overturned three state obscenity convictions. It held: “In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. ... In none was there any suggestion of an assault on individual privacy . . . And in none was there evidence of the sort of ‘pandering* which the court found significant in Ginzburg v. United States . . .”

The decision was an apparent shift in emphasis away from judging the obscene material Itself toward stressing the surrounding circumstances. In any event, it set the stage for Ginzberg (no relation to the other Ginzburg) v. United States in 1968. Parental Role This decision stated that what may not be obscene for one group (adults) may be obscene for another (minors).

The court reasoned that parents have a primary responsibility in the rearing of their children and so are “entitled to the support of laws to aid in the discharge of that responsibility.” The court added that states have an independent interest in the development of their youth, so it was not unconstitutional for the rights of minors under 17 to be more restricted than those of adults to judge for themselves what sex materials they may see and read.

This decision did nothing, to simplify the situation. And last autumn the high court further muddied the waters when it overturned a Georgia obscenity conviction by adding still another requisite. In this case—Stanely v. Georgia—the high tribunal overturned a state law making it illegal for an individual to possess pornographic material. Point Of Citation The court ruled that “If the First Amendent 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.” The statement, on its face, would not seem so terribly radical. But in supporting its opinion, the court cited a 1965 Supreme Court decision which appears to turn the whole censorship-obscenity concept upside down. The point of the citation— Lamont v. Postmaster General—was that the right to receive information and ideas, regardless of their social worth, is constitutionally protected. And Congress (or a state, for that matter) has no right to place a burden on that constitutional right. Group Exploitation Could this mean, then, Congress has no right to

restrict the sale of that which is alleged to be obscene? “It’s going to be interesting to see what happens," commented one prosecutor.

i Court watchers see all of this as reflecting a recognition that legislation on a moral issue tends to raise problems of constitutionality. Many observers feel that these later cases constitute perhaps an attempt to avoid a general categorisation of obscenity (with all its inherent dubious constitutional validity) by concentrating, | not so much on the questionable material itself, as on the group to which the alleged obscenity is directed and the context in which it is sold. Group exploitation, invasion of privacy, and the like—these are the areas for which there appear to be more logical grounds for legal control. The chances seem slim that any new court faced with the now incredible complexity of the obscenity issue will do any radical “reversing” of direction. Clarification Soon The view of the Burger court will soon become clear. Cases from Texas, Maryland. California, Massachusetts, and Georgia now are pending before it. Only recently the court also agreed to review two state-supreme court decisions from Massachusetts and Maryland which declared the film “I Am Curious — Yellow” to be obscene.

This could be only the beginning. The Supreme Court may well be faced with continuous litigation stemming from some 200 reported anti-pornography bills which have been referred to the committees or sub-com-mittees of the House Post Office and Civil Service Committee, the Senate Post Office Committee, and both the House and Senate Judiciary Committees. (To be continued)