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People v. Jacobs NEW     Nudist Videos


Jung und Frei
Filed October 23, 2000


No. 00-5124






Pursuant to Rule 12a

On Appeal from the United States District Court
for the District of New Jersey

(D.C. Civ. No. 98-01559)

District Judge: Honorable Joseph A. Greenaway

Argued: Friday, September 22, 2000

and GARTH, Circuit Judges

(Opinion Filed: October 23, 2000)

       Eugene B. Nathanson (Argued)
       305 Broadway, Suite 200
       New York, New York 10007

       Counsel for Appellant

       Robert J. Cleary
       United States Attorney
       Steven D'Alessandro (Argued)
       Special Assistant U.S. Attorney
       Office of the United States Attorney
       970 Broad Street, Room 700
       Newark, New Jersey 07102

       Counsel for Appellee


GARTH, Circuit Judge:

This appeal concerns 264 nudist magazines that were imported to the United States from France and Germany.

The issue on appeal is whether those magazines are obscene and are therefore subject to seizure and forfeiture under 19 U.S.C. S 1305. The District Court found that the magazines were obscene and ordered their forfeiture. We hold otherwise and, therefore, reverse.


On March 25, 1998, at the Customs international Mail Facility in Jersey City, New Jersey, United States Customs

Inspector Robert Maloney ("Inspector Maloney") discovered a shipment of two large boxes addressed to Alessandra's Smile, 625 Broadway 7D, New York, New York, 10012. Inspector Maloney opened the packages and examined their contents. The contents of the boxes included, inter alia, 264 magazines, all entitled either Jeunes et Naturels or Jung und Frei (the "magazines"). The magazines, which are either in French or German, are devoted to nudists' lifestyles. All of the magazines contain numerous photographs of nude persons, including adult males and females as well as nude minors and nude teenagers.

Subsequent to Inspector Maloney's discovery, Special Assistant United States Attorney Steven L. D'Alessandro of the United States Attorney's Office for the District of New Jersey examined the magazines and determined that all magazines were obscene. The magazines were then seized pursuant to 19 U.S.C. S 1305(a), which prohibits importation into the United States from a foreign country of "anyobscene  book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing,[etc.]" and subjects such articles to seizure and forfeiture.

The Government filed a Verified Complaint in the United States District Court for the District of New Jersey on April 7, 1998, alleging that the content of the magazines is obscene and that, therefore, the magazines are subject to seizure and forfeiture under 19 U.S.C. S 1305. Appellant Alessandra's Smile, Inc. ("Alessandra's Smile") filed a Verified Answer with the Clerk of the Court on March 17, 1999 and a claim for the return of its property.

On February 23, 1999, the parties stipulated to all the relevant facts but, without waiving their rights to appeal, left open for ultimate determination whether the seized materials were obscene. They also consented to the District Court entering a judgment without a hearing after the District Court had ruled. The parties agreed that the following books are regularly available for purchase within the jurisdiction of the United States District Court for the District of New Jersey: David Hamilton, The Age of Innocence; David Hamilton, Twenty-Five Years of an Artist; and Radiant Identities, Photographs by Jock Sturges. In addition, it is undisputed that Naturally Nude Recreation Magazine ("Naturally"), published by Naturally Nude Recreation, located in Newfoundland, New Jersey, is distributed within the jurisdiction of the United States District Court for the District of New Jersey.

The District Court entered an Order on December 30, 1999 stating that "the materials subject to the claim of Alessandra are obscene and were imported in violation of 19 U.S.C. S 1305 and shall be forfeited to the Government and destroyed." The District Court issued an Opinion supplementing the Order on February 22, 2000, in which the District Court discussed each prong of the obscenity test announced in Miller v. California, 413 U.S. 15 (1973), and determined that the magazines met all three prongs of the test. Alessandra's Smile filed a timely Notice of Appeal on February 24, 2000.


Under Miller, "[t]he basic guidelines for the trier of fact" to determine whether a work is obscene and, therefore, subject to state regulation, are as follows:

 (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (internal citations omitted). We agree with the Second Circuit that all three prongs of the Miller test must be satisfied for a work to be found obscene. See United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 135 (2d Cir. 1983).

The first question we must answer is, what is our standard of review of the District Court's order?

In Bose Corporation v. Consumers Union of United States, Inc., the Supreme Court stated that "in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'"  466 U.S. 485, 499 (1984). Therefore, though Rule 52(a) of the Federal Rules of Civil Procedure and, indeed, the Supreme Court and our own jurisprudence, see, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 749 (3d Cir. 1990), instruct that a District Court's findings of fact "shall not be set aside unless clearly erroneous," Fed.R.Civ.P. 52(a), "[i]n[obscenity] cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Bose Corp. , 466 U.S. at 505.

In other words, when the fact finder, judge or jury, applies the Miller guidelines and determines that material is obscene, the appellate court must review the record independently to ensure that the determination does not violate the First Amendment. In conducting its independent review of a fact finder's determination of obscenity, an appellate court may not reverse the determination because it might have decided the case differently, as long as the determination of obscenity does not violate the First Amendment. As the Court observed in Miller, "[t]he mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged." 413 U.S. 15, 26 n.9 (1973). Therefore, we are obliged to review independently the record to determine whether the District Court curtailed protected speech in its determination that the magazines were obscene.1

As we have stated, Bose Corp. established that appellate courts must conduct independent review of fact finders' determinations of obscenity to evaluate whether the determinations violate the First Amendment. However, the Court has not made clear precisely how this independent review applies to the three prongs of the Miller  test. In Miller, the Court characterized parts (a) and (b) of the test as "essentially questions of fact." 413 U.S. at 30. However, in Jenkins v. Georgia, the Supreme Court read Miller to hold that part (b) of the Miller formula is nevertheless subject to independent appellate review. The Court noted, "[e]ven though questions of appeal to the'prurient interest' or of patent offensiveness are 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive.'" 418 U.S. 153, 160 (1974). Indeed, in Jenkins, the Court, in its review, overturned the jury's determination that the film "Carnal Knowledge" was obscene. In doing so, it said, "[o]ur own viewing of the film satisfies us that 'Carnal Knowledge' could not be found under the Miller standards to depict sexual conduct in a patently offensive way," i.e., it could not, as a matter of constitutional law, be found to meet part (b) of the Miller test ("the work depicts . . . , in a patently offensive way, sexual conduct . . ."). 418 U.S. at 161.

As to part (c) of the Miller test, the Supreme Court observed in Smith v. United States that a fact finder's determination that a work "lack[s] serious literary, artistic, political, or scientific value" is "particularly amenable to appellate review." 431 U.S. 291, 305 (1977).

Therefore, instructed by the Supreme Court's teachings in Jenkins and Smith, we hold that we have an independent review of parts (b) and (c) of the Miller test. Part (a) of the Miller test ("whether . . . , applying contemporary community standards, . . . the work . . . appeals to the prurient interest"), on the other hand, is a particularly factual inquiry that does not, on its own, implicate the First Amendment.

Accordingly, we will review the District Court's factual findings under part (a) for clear error and exercise plenary review over its legal conclusions, and we will also exercise plenary review over the District Court's determinations with respect to parts (b) and (c) of the Miller test.


As a preliminary matter and to dispose of an issue which, in the context of this appeal, we hold to be irrelevant, we turn first to the District Court's conception that the depiction of minors in the magazines affects the manner in which the Miller test is to be applied. Before applying the Miller test to determine if the seized magazines were obscene, the District Court stated:

In this case, each of the two hundred sixty-four Magazines at issue contains numerous photographs of nude children and juveniles. This fact materially affects the manner in which the Miller test is applied. Indeed, as noted by the Third Circuit in United States v. Knox, 32 F.3d 733 (3d Cir. 1994), the Supreme Court relaxes the Miller obscenity test when pornographic material portrays minors, since the Government's interest in "safeguarding the physical and psychological well-being of a minor is compelling." . . . Although the Government is pursuing forfeiture of these materials on that basis that they are obscene, rather than child pornography, its ultimate purpose is no less compelling.

(Dist. Ct. Op. at 8-9.)

United States v. Knox arose out of a criminal action brought under federal child pornography laws. In that case, we considered whether videotapes which depicted children whose genitals and pubic areas were "always concealed by an abbreviated article of clothing," 32 F.3d at 737, could come within the purview of the federal child pornography laws proscribing a "lascivious exhibition of the genitals and pubic area." See 18 U.S.C. S 2256(2)(E).

In discussing the Miller test for obscenity and its application to the constitutionality of child pornography laws, we stated in Knox that government regulation of obscene materials is limited by the three-part Miller test. Regarding child pornography statutes, however, we noted that "[t]he Supreme Court allows the states and Congress greater leeway to regulate and proscribe pornography that depicts minors as distinguished from adults since the harmful effects suffered by a child are palpably more severe." 32 F.3d at 749; see also New York v. Ferber, 458 U.S. 747, 756 (1982) (holding that "the States are entitled to greater leeway in the regulation of pornographic depictions of children").

The District Court erred in interpreting Knox  to mean that the Miller standard could be relaxed in cases such as the present case, where the magazines were seized under 19 U.S.C. S 1305. That statute provides for seizure of obscene materials, not seizure of child pornography. Significantly, in United States v. 12 200-Ft. Reels of Super 8mm. Film, decided the same year as Miller , the Supreme Court held that the Miller test should be applied in determining the constitutionality of seizure of materials under 19 U.S.C. S 1305. 413 U.S. 123, 129-30 (1973) ("We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, ante, at 23--25. These standards are applicable to federal legislation.").

It is evident, therefore, that the issue of whether seizure of the magazines violated the First Amendment must be analyzed under the Miller test and not under a Knox child pornography standard. It is for the prosecutors, not the courts, to select those laws under which the Government brings actions, see, e.g., In re Richards, 213 F.3d 773, 782 (3d Cir. 2000), and we should not and will not analyze nor decide this case as if it were brought under child pornography laws -- which it was not. The magazines were seized as offending the obscenity statute, not as offending child pornography statutes. Accordingly, we must review the propriety of that seizure only under Miller .


Part (a) of the Miller test asks whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.2 The District Court answered this question in the affirmative.

At the outset, we observe that the District Court apparently believed that the magazines were intended for adults who desired to look at the photographs of nude children for their own "prurient interest." Hence, the District Court based its finding of prurience in part on the fact that warning labels are attached to two of eleven magazines (Exhibits A-K) submitted to the court for review. Those labels state that sale of the magazines is prohibited to minors. The labels, coupled with the small typefaces in the magazines and the magazines' overall layout and design, led the District Court to conclude that the magazines were intended for adults, not minors. The District Court also observed that, because the magazines are in French and German, not English, they are being targeted towards an American audience "focused . . . on . . . the relentless presentation of naked children and the exposition of their genitals." It also held that "the focus of these Magazines is the photographs, and not the text."3 (Dist. Ct. Op. at 10-11.) Even if it were true that the magazines were produced and published for adult consumption, that fact does not dictate that they appeal to the prurient interest.4

Whether the magazines are targeted to minors or adults, to the extent that the photographs are of children, they are primarily focused on children's activities, not on the children's bodies. Children are shown swimming, boating, exercising, playing with beach balls, having picnics, swinging on jungle gyms, building sand castles, riding bicycles, playing guitar, riding horses, and playing such sports as tennis, volleyball, miniature golf, and baseball. The magazines depict nudist children in various geographical locations, such as Canada, Hawaii, Brazil, France, Denmark, Hungary, the Czech Republic, Russia, and Australia. We are of the firm conviction that the District Court clearly erred in finding that these magazines appeal to the prurient interest because they contain photographs of nudist children around the world engaged in activities typical of children.

A comparison of the seized magazines with the magazine Naturally, a nudist publication, reinforces our position. Naturally was among the exhibits ostensibly perused by the District Court but not claimed by the Government nor held by the District Court to be obscene. Admittedly with more text and fewer photographs, Naturally also depicts nudists engaged in various everyday activities and features photographs of people at nudist resorts all over the world. Though Naturally does not have as many photographs of nude minors as the magazines at issue here, it does contain several photographs of nude children and adolescents. Naturally is sold in the District of New Jersey and, in fact, is even published in Newfoundland, New Jersey.

We have stated that "[a] finding of fact is clearly erroneous when, after reviewing the evidence, the court of appeals is 'left with a definite and firm conviction that a mistake has been committed.'" Oberti v. Board of Ed. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir. 1993); see also United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). After having looked at all the exhibits in evidence, we are indeed left with "a definite and firm conviction" that the District Court erred in finding that the magazines were obscene under part (a) of the Miller test. These magazines, as we have observed, no more appeal to the prurient interest than does the publication Naturally. Therefore, even though the "prurient interest" standard of Miller requires deference to the District Court in its fact-finding role, see United States v. Duliga, 204 F.3d 97, 100 (3d Cir. 2000), we hold that the District Court has committed clear error here. 5


We earlier called attention to our adherence to the requirement that all three prongs of the Miller  test must be met before a work may be held to be obscene. See text supra, at p. 4. Having now determined that the District Court erroneously found, under part (a) of the Miller standard, that the magazines appealed to the prurient interest, we could stop at this point and reverse the District Court's December 30, 1999 order in favor of the Government. However, because of the nature of the subject matter on appeal and the fact that our decision has First Amendment implications, as well as the possibility that subsequent publications may be received in the United States and seized by the Government as obscene, we will complete our analysis under Miller. We thus turn to part (b) of the Miller test -- whether the magazines depict, in a patently offensive way, sexual conduct.

The Supreme Court emphasized in Miller that no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct." 413 U.S. at 27. The Court, recognizing the difficulty and the dangers of attempting to regulate any form of expression, gave a few examples of what a state statute could define for regulation under part (b) of the Miller standard:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representation or descriptions or masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25. New Jersey has adopted this language, defining obscene material as material which "[d]epicts or describes in a patently offensive way, ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, or lewd exhibition of the genitals." N.J.S.A. S 2C:34-2(a)(1)(a).

The District Court concluded that the photographs found in the seized magazines depict "a lewd exhibition of genitals," which is "sexual conduct" as defined by the Supreme Court in Miller and by the New Jersey legislature, and that the depiction "is patently offensive to the contemporary community standards of this district." (Dist. Ct. Op. at 12.)

The District Court chose to use the six-factor test announced in United States v. Dost, 636 F. Supp. 828 (S.D.Cal. 1986),6 in determining that the magazines depicted "a lewd exhibition of the genitals." It did so because a 1989 Third Circuit case, United States v. Villard, 885 F.2d 117, 121-22 (3d Cir. 1989), had used the Dost test to interpret the meaning of the phrase "lascivious exhibition of the genitals or pubic area." However, neither Dost nor Villard have direct relevance to the issues that we must decide. Both cases were child pornography cases and, as Villard properly held, the test for child pornography differs dramatically from the Miller test for obscenity. See Villard, 885 F.2d at 120, 122 (noting that "[t]he test for child pornography is separate from the obscenity standard enunciated in Miller" and that "an exhibition of the genitals need not meet the standard for obscenity in order to be considered lascivious [in the child pornography context]"). This being so, we will examine part (b) of the Miller test without reference to the Dost factors.

We will first consider, as did the District Court, whether any of the photographs in the magazines depict a "lewd exhibition of the genitals."7 In deciding this issue, it is helpful to consider the definitions of the terms"exhibition" and lewd," neither of which are defined in Miller or in the New Jersey obscenity statute. Webster's Third New International Dictionary defines "exhibition" as "an act or instance of showing, evincing, or showing off." The dictionary defines the term "lewd" as "sexually unchaste or licentious," "suggestive of or tending to moral looseness," and "inciting to sensual desire or imagination."

Initially, we must point out that many of the photographs in the magazines do not depict genitalia at all. There are many photographs of nude women and girls, and several of these photographs show the subjects' pubic areas, but none of the photographs of females, no matter their age, show their genitalia. Several of the photographs of boys, on the other hand, do show their genitals. However, though one can see boys' genitals in some of the photographs, they are neither being "exhibited" nor "shown off." The fact that their genitals are visible is incidental to their being nude, but it is not the focal point of any of the photographs.

Moreover, in our opinion, even a most conservative, straight-laced, and puritanical viewer of the photographs could not responsibly claim that the photographs are "lewd" or that they give the impression that the subjects are "sexually unchaste or licentious." It is true that the subjects in some of the photographs are posed for the camera, but they are not posed in a way "suggestive of moral looseness." All of the photographs are of smiling, happy, and playful subjects, and none can be deemed lewd by any standard. The magazines just do not depict "lewd exhibition[s] of the genitals."

Nor do we conclude that the magazines "depict or describe patently offensive 'hard core' sexual conduct." Miller, 413 U.S. 15, 27 (1973). As discussed above, the photographs in the magazines show people involved in a variety of outdoor activities, all of which are natural and expected for healthy and active children, teenagers, and adults. The only unusual aspect of the photographs is that almost all of the subjects are nude. However, as the Supreme Court observed in Jenkins, "nudity alone is not enough to make material legally obscene under the Miller standards." 418 U.S. 153, 161 (1974). In these magazines, "nudity alone" is all there is to even suggest that the materials are obscene. As such, the magazines fall far outside the zone of " `hard core' sexual conduct" that may constitutionally be found to be "patently offensive."

Our holding that the magazines do not depict patently offensive sexual conduct is reinforced by a comparison of the photographs in the seized magazines to the photographs by David Hamilton which appear in his volume, Age of Innocence and to the photographs which appear in Radiant Identities, Photographs by Jock Sturges. The Government does not claim that either Age of Innocence or Radiant Identities is obscene. Indeed, the parties stipulated that those volumes are regularly available for purchase at bookstores in New Jersey.

 Hamilton's photographs depict pubescent girls, most of whom either have their breasts exposed or are fully nude. No photographs of male subjects appear in his works. Several aspects of these photographs make them sexually provocative: the majority of the photographs are in soft focus and the girls are often staring into the camera, unsmiling, with a sultry look; many of the photographs reveal girls in the process of taking off lingerie or other articles of clothing; some photographs are of nude or partially nude girls lying on beds; in some of the photographs, the girls are looking at their bodies in mirrors; some girls are lying or standing with their arms over their heads and their backs arched; in some photographs, the girls are touching their own breasts or sexual organs; and a few of the photographs show two nude or partially nude girls kissing.8

By contrast, the tone and situation of the photographs in the instant magazines are entirely non-sexual, and the photographs contain none of the sexually provocative elements that are present in Hamilton's photographs. None of the subjects are on beds or undressing or touching their bodies in a sexual way. The magazines instead consist of brightly colored photographs of nude children, teenagers, or adults playing or smiling and posing for the camera.

Accordingly, the photographs in the magazines can neither be said to be depictions of lewd exhibitions of the genitals or to be patently offensive in any other way. The District Court erred in so holding.

Our conclusion that the magazines are not obscene under part (b) of the Miller test is further bolstered by the inability of the Government to produce for us at oral argument any photograph or illustration in any of the exhibits that would be held under Miller to be obscene. Indeed, under persistent questioning by the panel, the Government called to our attention only one series of illustrations (not photographs), which illustrations would certainly be deemed harmless if they appeared in Good Housekeeping or a similar popularly distributed magazine.


The final prong of the Miller test is whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The District Court found that no evidence in the record supported "a finding that a reasonable person would find serious artistic or other value in the photographs depicted in the materials." (Dist. Ct. Op. at 19- 20.) Alessandra's Smile argues on appeal that the magazines do have value because "[i]n places w[h]ere legislatures or governments may wish to curtail social public nudity on designated beaches, photographs provide the best `case' that the nudism and naturism consist of normal activities engaged in by normal people." (Appellant's Brief, at 51.) We agree.

In expanding upon part (c) of the test in Miller , the Supreme Court explained:

The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

Miller, 413 U.S. 15, 34-35 (1973) (internal citations omitted).

These magazines qualify for First Amendment protection because of their political value. The term "political" which we employ here is broad enough to encompass that which might tend to bring about "political and social changes." Nudists are members of an alternative community, and the magazines champion nudists' alternative lifestyle, which lifestyle the nudist community may feel is in danger of being curtailed by government regulation. It is true that the political value of these magazines is not as immediately evident as the political value of Naturally, which contains articles about the legal status of public nudity around the world and actively advocates for unregulated nudism. This is so particularly since the text of the seized magazines is not before us. See n.3, supra. However, publications dedicated to presenting a visual depiction of an alternative lifestyle, a depiction with a decidedly Utopian flavor, have political value similar to the political value of articles criticizing government regulation of that and other lifestyles.

Just as we have held that the District Court erred in its findings and conclusions respecting parts (a) and (b) of the Miller test, we hold that the District Court also erred in holding that the magazines lacked serious political value.


Having held that the seized magazines are not obscene when tested by the Miller three-pronged standard, we will reverse the District Court's order of December 30, 1999 and direct the District Court to enter judgment for Alessandra's Smile and to take all necessary steps to restore the seized magazines to Alessandra's Smile

A True Copy:


Clerk of the United States Court of Appeals
for the Third Circuit


1. "[O]bscene material is unprotected by the First Amendment." Miller, 413 U.S. at 23 (citing Kois v. Wisconsin, 408 U.S. 229, 230 (1972); United States v. Reidel, 402 U.S. 351, 354 (1971); Roth v. United States, 354 U.S. 476, 485 (1957)).

2. Prurience has been defined by the Supreme Court as "that which appeals to a shameful or morbid interest in sex." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985).

3. Neither party furnished the District Court with translations of the textual material found in the magazines. The District Court centered its attention only on the photographs and illustrations. Because of the development of the District Court record in this fashion, we too limit our analysis to the magazines' photographs and illustrations.

4. Indeed, we do not understand the District Court's emphasis on the warning labels nor the importance that the District Court attributed to the magazines' readership. Neither would appear relevant to the analysis under the tripartite test of Miller v. California.

5. Rule 52(a) of the Federal Rules of Civil Procedure provides, inter alia, that "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses." Fed.R.Civ.P. 52(a) (emphasis added). Here, of course, the District Court was not required to pass on the credibility of witnesses, as no witnesses had been produced by either party. Rather, the record before the District Court consisted only of exhibits drawn from the 264 magazines that had been seized, three volumes of artistic photographs, and several issues of the magazine Naturally. Thus, the record before the District Court consisted of the exact same exhibits as those before us, and nothing more.

6. In United States v. Dost, the District Court for the Southern District of

California stated:

in determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under [18 U.S.C.] S 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the particular case:

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

636 F. Supp. at 832.

7. This is the only category named by the Court in Miller and by the New Jersey legislature in N.J.S.A. S 2C:34-2(a)(1)(a) into which the magazines may fall.

8. The photographs in Radiant Identities also show partially and fully nude children and adolescents, but contain none of the elements that make Hamilton's photographs sexually suggestive. Instead, they are similar to the photographs in the seized magazines and cannot be said to depict patently offensive sexual conduct.

Miller v. California, 413 U.S. 15 (1973) was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes. The decision reiterated that obscenity was not protected by the First Amendment and established the Miller test for determining what constituted obscene material.

The case

The question that the court had to decide was, is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", thereby reaffirming part of Roth.

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:

bulletthe average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
bulletthe work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
bulletthe work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The third condition is also known as the "SLAPS test". The work is considered obscene only if all three conditions, which together constitute the Miller Test, are satisfied.

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."

The Miller decision vacated the judgment of the Appellate Department of the Superior Court of California and remanded the case to that court for further proceedings consistent with the First Amendment standards established by the opinion.



Effects of the Decision

Miller provided states greater freedom in prosecuting alledged purveyors of obscene material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of obscenity prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many obscenity convictions (over 60 appeared on the Court's docket for the 1971-1972 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged "forum shopping" to prosecute national obscenity producers in locales with more restrictive obscenity laws.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child pornography unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition case, the Court, however, held that sexually explicit material that appears to depict minors might be constitutionally protected.


Decided June 29, 2004

Justice Kennedy delivered the opinion of the Court.

This case presents a challenge to a statute enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet, the Child Online Protection Act (COPA). We must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the First Amendment....

Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality. 

This case comes to the Court on certiorari review of an appeal from the decision of the District Court granting a preliminary injunction. The Court of Appeals reviewed the decision of the District Court for abuse of discretion. Under that standard, the Court of Appeals was correct to conclude that the District Court did not abuse its discretion in granting the preliminary injunction. The Government has failed, at this point, to rebut the plaintiffs' contention that there are plausible less restrictive alternatives to the statute. Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial. For those reasons, we affirm the decision of the Court of Appeals upholding the preliminary injunction, and we remand the case so that it may be returned to the District Court for trial on the issues presented.



COPA is the second attempt by Congress to make the Internet safe for minors by criminalizing certain Internet speech. The first attempt was the Communications Decency Act of 1996. The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Reno.

In response to the Court's decision in Reno, Congress passed COPA. COPA imposes criminal penalties of a $50,000 fine and six months in prison for the knowing posting, for "commercial purposes," of World Wide Web content that is "harmful to minors." §231(a)(1). Material that is "harmful to minors" is defined as:

"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-

"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

"(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." §231(e)(6)....

While the statute labels all speech that falls within these definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute by demonstrating that he

"has restricted access by minors to material that is harmful to minors-

"(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

"(B) by accepting a digital certificate that verifies age, or

"(C) by any other reasonable measures that are feasible under available technology." §231(c)(1)....



The District Court, in deciding to grant the preliminary injunction, concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute.


In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress' goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.

In deciding whether to grant a preliminary injunction stage, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits.... 

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs' contention at trial. 

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas....  In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards.  Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web....

Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials. It may block some materials that are not harmful to minors and fail to catch some that are. Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA..... In the absence of a showing as to the relative effectiveness of COPA and the alternatives proposed by respondents, it was not an abuse of discretion for the District Court to grant the preliminary injunction. The Government's burden is not merely to show that a proposed less restrictive alternative has some flaws; its burden is to show that it is less effective. It is not enough for the Government to show that COPA has some effect. Nor do respondents bear a burden to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government has the burden to show they are less so. The Government having failed to carry its burden, it was not an abuse of discretion for the District Court to grant the preliminary injunction....

One argument to the contrary is worth mentioning-the argument that filtering software is not an available alternative because Congress may not require it to be used. That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. It could also take steps to promote their development by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative..... 


There are important practical reasons to let the injunction stand pending a full trial on the merits. First, the potential harms from reversing the injunction outweigh those of leaving it in place by mistake....

* * *

On this record, the Government has not shown that the less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA. The District Court did not abuse its discretion when it entered the preliminary injunction. The judgment of the Court of Appeals is affirmed, and the case is remanded for proceedings consistent with this opinion.


Justice Scalia, dissenting.

I agree with Justice Breyer's conclusion that the Child Online Protection Act (COPA) is constitutional. Both the Court and Justice Breyer err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. "We have recognized that commercial entities which engage in 'the sordid business of pandering' by 'deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed,' engage in constitutionally unprotected behavior." 

There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, "as a regular course of such person's trade or business, with the objective of earning a profit," and "with knowledge of the character of the material," communicates material that depicts certain specified sexual acts and that "is designed to appeal to, or is designed to pander to, the prurient interest." Since this business could, consistent with the First Amendment, be banned entirely, COPA's lesser restrictions raise no constitutional concern.

Justice Breyer, with whom The Chief Justice and Justice O'Connor join, dissenting.

Nonetheless, my examination of (1) the burdens the Act imposes on protected expression, (2) the Act's ability to further a compelling interest, and (3) the proposed "less restrictive alternatives" convinces me that the Court is wrong. I cannot accept its conclusion that Congress could have accomplished its statutory objective-protecting children from commercial pornography on the Internet-in other, less restrictive ways....



Decided April 16, 2002

     Justice Kennedy delivered the opinion of the Court.

     We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. 2251 et seq., abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic images of children who do not exist.

     By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber (1982), which distinguished child pornography from other sexually explicit speech because of the States interest in protecting the children exploited by the production process. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California (1973). Ferber recognized that [t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the States particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.

     While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.

     The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.


     Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual minors. The CPPA retains that prohibition and adds three other prohibited categories of speech, of which the first, 2256(8)(B), and the third, 2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture that is, or appears to be, of a minor engaging in sexually explicit conduct. The prohibition on any visual depiction does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called virtual child pornography, which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a picture that appears to be, of a minor engaging in sexually explicit conduct. The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor appears to be a minor engaging in actual or simulated sexual intercourse.

     These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. [A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children having fun participating in such activity. Furthermore, pedophiles might whet their own sexual appetites with the pornographic images, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children. Under these rationales, harm flows from the content of the images, not from the means of their production. In addition, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography.

     Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.

     Respondents do challenge 2256(8)(D). Like the text of the appears to be provision, the sweep of this provision is quite broad. Section 2256(8)(D) defines child pornography to include any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct. One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography.  The statute is not so limited in its reach, however, as it punishes even those possessors who took no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable.

     Fearing that the CPPA threatened the activities of its members, respondent Free Speech Coalition and others challenged the statute in the United States District Court for the Northern District of California. The Coalition, a California trade association for the adult-entertainment industry, alleged that its members did not use minors in their sexually explicit works, but they believed some of these materials might fall within the CPPAs expanded definition of child pornography. The other respondents are Bold Type, Inc., the publisher of a book advocating the nudist lifestyle; Jim Gingerich, a painter of nudes; and Ron Raffaelli, a photographer specializing in erotic images. Respondents alleged that the appears to be and conveys the impression provisions are overbroad and vague, chilling them from producing works protected by the First Amendment.....


     The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.

     Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.

     As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA.

     As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit activity without regard to the Miller requirements. The materials need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.

     The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea that of teenagers engaging in sexual activitythat is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations.  It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

     Both themes, teenage sexual activity and the sexual abuse of children,  have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 (She hath not seen the change of fourteen years). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

     Contemporary movies pursue similar themes. Last years Academy Awards featured the movie, Traffic, which was nominated for Best Picture. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.

     Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statutes prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the works redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.

     The Government seeks to address this deficiency by arguing that speech prohibited by the CPPA is virtually indistinguishable from child pornography, which may be banned without regard to whether it depicts works of value.  Where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out without regard to any judgment about its content.  The production of the work, not its content, was the target of the statute. The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants. It was simply unrealistic to equate a community's toleration for sexually oriented materials with the permissible scope of legislation aimed at protecting children from sexual exploitation.

     Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were intrinsically related to the sexual abuse of children in two ways. First, as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being.  Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.  Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.

     Later, in Osborne v. Ohio (1990), the Court ruled that these same interests justified a ban on the possession of pornography produced by using children....

     In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not intrinsically related to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse,  the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts....

     The Government says these indirect harms are sufficient because child pornography rarely can be valuable speech. This argument, however, suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The second flaw in the Government's position is that Ferber did not hold that child pornography is by definition without value. On the contrary, the Court recognized some works in this category might have significant value, but relied on virtual images the very images prohibited by the CPPA as an alternative and permissible means of expression: [I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.


     The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber.The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it....

     Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actors unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.

     The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.  First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

     To preserve these freedoms, and to protect speech for its own sake, the Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.... There is here no attempt, incitement, solicitation, or conspiracy. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct....

     Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

     The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. [T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted .  The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process....

     In sum, 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of law-ful speech. For this reason, it is overbroad and unconstitutional.....

Chief Justice Rehnquist, with whom Justice Scalia joins in part, dissenting.

     Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so.... Serious First Amendment concerns would arise were the Government ever to prosecute someone for simple distribution or possession of a film with literary or artistic value, such as Traffic or American Beauty. I write separately, however, because the Child Pornography Prevention Act of 1996 need not be construed to reach such materials....

     We normally do not strike down a statute on First Amendment grounds when a limiting instruction has been or could be placed on the challenged statute.... This case should be treated no differently.

     Other than computer generated images that are virtually indistinguishable from real children engaged in sexually explicitly conduct, the CPPA can be limited so as not to reach any material that was not already unprotected before the CPPA. The CPPAs definition of sexually explicit conduct is quite explicit in this regard. It makes clear that the statute only reaches visual depictions of: "[A]ctual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person."

      The Court suggests that this very graphic definition reaches the depiction of youthful looking adult actors engaged in suggestive sexual activity, presumably because the definition extends to simulated intercourse. Read as a whole, however, I think the definition reaches only the sort of hard core of child pornography that we found without protection in Ferber. So construed, the CPPA bans visual depictions of youthful looking adult actors engaged in actual sexual activity; mere suggestions of sexual activity, such as youthful looking adult actors squirming under a blanket, are more akin to written descriptions than visual depictions, and thus fall outside the purview of the statute....

     In sum, while potentially impermissible applications of the CPPA may exist, I doubt that they would be substantial in relation to the statutes plainly legitimate sweep....

Justice OConnor, with whom The Chief Justice and Justice Scalia join as to Part II, concurring in the judgment in part and dissenting in part.

     ....Drawing a line around, and striking just, the CPPAs ban on youthful-child pornography not only is consistent with Congress understanding of the categories of speech encompassed by 2256(8)(B), but also preserves the CPPAs prohibition of the material that Congress found most dangerous to children.

     In sum, I would strike down the CPPAs ban on material that conveys the impression that it contains actual-child pornography, but uphold the ban on pornographic depictions that appea[r] to be of minors so long as it is not applied to youthful-adult pornography.


458 U.S. 747
July 2, 1982, Decided



JUSTICE WHITE delivered the opinion of the Court.

At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.


In recent years, the exploitative use of children in the production of pornography has become a serious national problem. The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene. New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance:

"A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance."

A "[sexual] performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age." § 263.00(1). "Sexual conduct" is in turn defined in § 263.00(3): "'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals."

A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience." § 263.00(4).

At issue in this case is § 263.15, defining a class D felony:

"A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age."

To "promote" is also defined:

"'Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same."

This case arose when Paul Ferber, the proprietor of a Manhattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating § 263.10 and two counts of violating § 263.15, the two New York laws controlling dissemination of child pornography. After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under § 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court.

The New York Court of Appeals reversed, holding that § 263.15 violated the First Amendment. We granted the State's petition for certiorari,  presenting the single question:

"To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?"


The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in § 263.10, which follows the guidelines enunciated in Miller v. California (1973), constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography.

The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children.

The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological  well-being of a minor" is "compelling." A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the "well-being of its youth" justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.
Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.

Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value."  We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.

Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.

Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.  Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children.

Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech." When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.

There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of "sexual conduct" proscribed must also be suitably limited and described.

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California, 361 U.S. 147 (1959)....

We hold that § 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection....


361 U.S. 147
December 14, 1959, Decided

Judges: Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful "for any person to have in his possession any obscene or indecent writing, [or] book . . . in any place of business where . . . books . . . are sold or kept for sale." The offense was defined by the Municipal Court, and by the Appellate Department of the Superior Court,  which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter -- knowledge by appellant of the contents of the book -- and thus the ordinance was construed as imposing a "strict" or "absolute" criminal liability. The appellant made timely objection below that if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution, was rejected, and the case comes here on appeal.

California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter -- though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations. But the question here is as to the validity of this ordinance's elimination of the scienter requirement -- an elimination which may tend to work a substantial restriction on the freedom of speech and of the press. Our decisions furnish examples of legal devices and doctrines, in most applications consistent with the Constitution, which cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it....

These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press.  The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.  The distributor's ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature.  "Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience." And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

It is argued that unless the scienter requirement is dispensed with, regulation of the distribution of obscene material will be ineffective, as booksellers will falsely disclaim knowledge of their books' contents or falsely deny reason to suspect their obscenity. We might observe that it has been some time now since the law viewed itself as impotent to explore the actual state of a man's mind. Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.

We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.

We have said: "The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests." This ordinance opens that door too far.  It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.


394 U.S. 557
April 7, 1969, Decided

Judges: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall

MR. JUSTICE MARSHALL delivered the opinion of the Court.

An investigation of appellant's alleged bookmaking activities led to the issuance of a search warrant for appellant's home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for "knowingly hav[ing] possession of . . . obscene matter" in violation of Georgia law.  Appellant was tried before a jury and convicted. The Supreme Court of Georgia affirmed.

Appellant raises several challenges to the validity of his conviction. We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.

The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that "it is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.'"  The State and appellant both agree that the question here before us is whether "a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter" is constitutional. In this context, Georgia concedes that the present case appears to be one of "first impression . . . on this exact point," but contends that since "obscenity is not within the area of constitutionally protected speech or press,"  the States are free, subject to the limits of other provisions of the Constitution, to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?

It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute. None of the statements cited by the Court in Roth for the proposition that "this Court has always assumed that obscenity is not protected by the freedoms of speech and press" were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. Indeed, with one exception, we have been unable to discover any case in which the issue in the present case has been fully considered.

In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself, "ceaseless vigilance is the watchword to prevent . . . erosion [of First Amendment rights] by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests." Roth and the cases following it discerned such an "important interest" in the regulation of commercial distribution of obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.

It is now well established that the Constitution protects the right to receive information and ideas. "This freedom [of speech and press] . . . necessarily protects the right to receive . . . ."  This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case -- a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man."

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.

And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.

Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that "among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . . ." Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

418 U.S. 153
June 24, 1974, Decided

Judges: REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a statement concurring in the result. BRENNAN, J., filed an opinion concurring in the result, in which STEWART and MARSHALL, JJ., joined.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film "Carnal Knowledge" in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966): "Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid  interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters."

We conclude here that the film "Carnal Knowledge" is not obscene under the constitutional standards announced in Miller v. California, 413 U.S. 15 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant's conviction be reversed.

Appellant was the manager of the theater in which "Carnal Knowledge" was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation with the offense of distributing obscene material.  After his trial in the Superior Court of Dougherty County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972. Appellant was fined $ 750 and sentenced to 12 months' probation. He appealed to the Supreme Court of Georgia, which by a divided vote affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was "considerably more restrictive" than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of "hard core" pornography. The dissenting Justices, in addition to other disagreements with the court, thought that "Carnal Knowledge" was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed to this Court and we noted probable jurisdiction.

We agree with the Supreme Court of Georgia's implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply "national standards." We also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply "community standards" without specifying what "community." Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of "contemporary community standards" as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.

We now turn to the question of whether appellant's exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal. But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice.

There is little to be found in the record about the film "Carnal Knowledge" other than the film itself. However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many "Ten Best" lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film:

"[It is basically a story] of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer' one of the two, he is selected by Susan for marriage.

"The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of a dozen women a year but has never managed to meet the right one, the one with the full bosom, the good legs,  the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. 'Why don't we shack up?' she suggests. They do and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again."

Appellee contends essentially that under Miller the obscenity vel non of the film "Carnal Knowledge" was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee's contention.

Miller states that the questions of what appeals to the "prurient interest" and what is "patently offensive" under the obscenity test which it formulates are "essentially questions of fact."  "When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' would consider certain materials 'prurient' it would be unrealistic to require that the answer be based on some abstract formulation . . . . To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility." We held in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), decided on the same day, that expert testimony as to obscenity is not necessary when the films at issue are themselves placed in evidence.

But all of this does not lead us to agree with the Supreme Court of Georgia's apparent conclusion that the jury's verdict against appellant virtually precluded all further appellate review of appellant's assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive." Not only did we there say that "the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary," but we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct . . . ."

We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced," that is, the requirement of patent offensiveness. These examples included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a  determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.

Our own viewing of the film satisfies us that "Carnal Knowledge" could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the "patently offensive" element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.

Appellant's showing of the film "Carnal Knowledge" is simply not the "public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain" which we said was punishable in Miller.  We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia.


MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, concurring in the result.
In order to make the review mandated by Miller, the Court was required to screen the film "Carnal Knowledge" and make an independent determination of obscenity vel non. Following that review, the Court holds that "Carnal Knowledge" "could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth  Amendments because it is obscene."

Thus, it is clear that as long as the Miller test remains in effect "one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so."  Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that, "at least in the absence of distribution to juveniles or obstrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents."  It is clear that, tested by that constitutional standard, the Georgia obscenity statutes under which appellant Jenkins was convicted are constitutionally overbroad and therefore facially invalid. I therefore concur in the result in the Court's reversal of Jenkins' conviction.

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