John Marshall Harlan II

“ In most obscenity cases, to be sure, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal. It is only in the unusual instance where, as here, the 'prurient interest' appeal of the material is found limited to a particular class of persons that occasion arises for a truly independent inquiry into the question whether or not the material is patently offensive.
The Court of Appeals was mistaken in considering that Roth made 'prurient interest' appeal the sole test of obscenity. ”

“ Whether 'hard-core' pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency. ”

“ To consider that the 'obscenity' exception in 'the area of constitutionally protected speech or press,' Roth, at 485, 77 S.Ct. at 1309, does not require any determination as to the patent offensiveness vel non of the material itself might well put the American public in jeopardy of being denied access to many worth-while works in literature, science, or art. For one would not have to travel far even among the acknowledged master-pieces in any of these fields to find works whose 'dominant theme' might, not beyond reason, be claimed to appeal to the 'prurient interest' of the reader or observer. ”

“ We are constrained to a negative answer. First, Congress has required scienter in respect of one indicted for mailing material proscribed by the statute. In the constitutional climate in which this statute finds itself, we should hesitate to attribute to Congress a purpose to render a publisher civilly responsible for the innocuous advertisements of the materials of others, in the absence of any showing that he knew that the character of such materials was offensive. ”

“ Since publishers cannot practicably be expected to investigate each of their advertisers, and since the economic consequences of an order barring even a single issue of a periodical from the mails might entail heavy financial sacrifice, a magazine publisher might refrain from accepting advertisements from those whose own materials could conceivably be deemed objectionable by the Post Office Department. ”

“ The claim on this branch of the case rests, then, on the fact that some of the third-party advertisers were found in possession of what undoubtedly may be regarded as 'hard-core' photographs, [15] and that postal officials, although not obtaining the names of the advertisers from the lists in petitioners' magazines, received somewhat less offensive material through the mails from certain studios which were advertising in petitioners' magazines.
A question of law must first be dealt with. ”

“ In conclusion, nothing in this opinion of course remotely implies approval of the type of magazines published by these petitioners, still less of the sordid motives which prompted their publication. All we decide is that on this record these particular magazines are not subject to repression under § 1461. ”

“ There were also pictures of models posed with chains or of one model beating another while a third held his face in his hands as if weeping * * *.'
14 Since Congress has sought to bar from the mails only material that is 'obscene, lewd, lascivious, indecent, filthy or vile' and it is within this statutory framework that we must judge the materials before us, we need not consider whether these magazines could constitutionally be reached under 'a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger.' Cantwell v. ”

“ Although none of the pictures directly exposed the model's genitals, some showed his pubic hair and others suggested what appeared to be a semi-erect penis * * *; others showed male models reclining with their legs (and sometimes their arms as well) spread wide apart * * *. ”