William J. Brennan

“ We hold that obscenity is not within the area of constitutionally protected speech or press.
It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish [p486] incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:
The words "obscene, lewd and lascivious" as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts. ”

“ You may ask yourselves does it offend the common conscience of the community by present-day standards. * * * In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and, in determining that conscience, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious — men, women and children. ”

“ All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. ”

“ Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the [p490] trier of facts, he was judging each item as a whole as it would affect the normal person, [27] and, in Roth, the trial judge instructed the jury as follows:
. . . ”

“ It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ”

“ The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs. 1 Journals of the Continental Congress 108 (1774) . ”

“ For more than thirty years, not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. ”

“ United States v. Petrillo, 332 U.S. 1, 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed, and mark
. . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on [p492] which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . . Id. at 7. See also United States v. ”

“ The guaranties of freedom of expression [10] in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, [11] and all of those States made either blasphemy or profanity, or both, statutory crimes. ”

“ This Court, as early as 1896, said of the federal obscenity statute:
. . . Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious. Rosen v. United States, 161 U.S. 29, 42.
↑ . E.g., Roth v. Goldman, 172 F.2d 788, 789; Parmelee v. United States, 72 App.D.C. 203, 204, 113 F.2d 729, 730; United States v. 4200 Copies International Journal, 134 F.Supp. 490, 493; United States v. ”