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Articles on, Alessandra's Smile, Inc.,
Frei Magazine court battle.
U.K. Naturist Laws
Jung und Frei
Filed October 23, 2000
UNITED STATES COURT OF
FOR THE THIRD CIRCUIT
UNITED STATES OF
VARIOUS ARTICLES OF MERCHANDISE,
SCHEDULE NO. 287
ALESSANDRA'S SMILE, INC.,
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
BEFORE: SLOVITER, SCIRICA
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
OPINION OF THE COURT
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
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
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
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
(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
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,
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.
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
(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
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.)
In expanding upon part (c) of the test in Miller , the Supreme Court
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
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
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
6. In United States v. Dost, the District Court for the Southern District
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
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
First Amendment purposes. The decision reiterated that
was not protected by the First Amendment and established the
test for determining what constituted obscene material.
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:
|the 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;
|the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by applicable state law; and |
|the work, taken as a whole, lacks serious
The third condition is also known as the "SLAPS test". The
work is considered obscene only if all three conditions, which together
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
SUPREME COURT OF THE UNITED STATES
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
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.
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
"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."
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
"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
"(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
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.
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.
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....
ASHCROFT, ATTORNEY GENERAL,
FREE SPEECH COALITION etal.
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
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
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
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
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
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
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
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
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
....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.
NEW YORK v. FERBER
SUPREME COURT OF THE UNITED STATES
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
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." §
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
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
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
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
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
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
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
SMITH v. CALIFORNIA
SUPREME COURT OF THE UNITED STATES
361 U.S. 147
December 14, 1959, Decided
Judges: Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan,
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.
STANLEY v. GEORGIA
SUPREME COURT OF THE UNITED STATES
394 U.S. 557
April 7, 1969, Decided
Judges: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas,
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.
JENKINS v. GEORGIA
SUPREME COURT OF THE UNITED STATES
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
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
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
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.
- Topfree and Equal Protection
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