Obscenity law

“ By acts of Parliament in England, by acts of Congress in the United States, and legislative enactments in the various States of the Union, those Common Law principles have since been emphasized by statutory provisions against obscene, lewd and indecent matters.
Test of Obscenity The next subject of importance as a help to a clear understanding of the method of enforcing the law, is the legal definition or test of obscenity.
The question of obscenity is always a question of fact for the Jury. ”

“ Judges can and should take judicial notice that, at many gatherings of lawyers at Bar Association or of alumni of our leading law schools, tales are told fully as 'obscene' as many of those distributed by men * * * convicted for violation of the obscenity statute. ”

“ The first element considered necessary for determining obscenity is that the dominant theme of the material taken as a whole must appeal to the prurient interest in sex. It seems quite apparent to me that human beings, serving either as judges or jurors, could not be expected to give any sort of decision on this element which would even remotely promise any kind of uniformity in the enforcement of this law. ”

“ As stated above, 'The law is concerned with effect, not merely with but one means of producing it.' It must be firmly borne in mind that to give obscenity, as defined, the stature of the only constitutional limitation is to extend an invitation to corrupt the public morals by methods of presentation which craft will insure do not fall squarely within the definition of that term. ”

“ On the other hand, it is sometimes so vague, as for example in the case of the American law against obscenity, that it makes the magistrate virtually a censor. But in the main a citizen can ascertain what he may do and what he may not do; and, though no one knows better than a magistrate that a single ill-conducted family may demoralize a whole street, no magistrate can imprison or otherwise restrain its members on the ground that their immorality may corrupt their neighbors. ”

“ United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed. 521 (1966) , where this Court granted the Solicitor General's motion to vacate and remand with instructions to dismiss an information charging a violation of a federal obscenity statute in a case where a husband and wife mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing. But see Ackerman v. United States, 293 F.2d 449 (C.A 9th Cir. 1961) .
8 'Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. ”

“ So here again the guilt or innocence of a defendant charged with obscenity must depend in the final analysis upon the personal judgment and attitudes of particular individuals and the place where the trial is held. And one must remember that the Federal Government has the power to try a man for mailing obscene matter in a court 3,000 miles from his home. ”

“ The uncertainties pertaining to the scope of scienter requisite for an obscenity prosecution and the speculative proof that the issue is likely to entail, are considerations that reinforce the right of one charged with obscenity-a right implicit in the very nature of the legal concept of obscenity-to enlighten the judgment of the tribunal, be it the jury or as in this case the judge, regarding the prevailing literary and moral community standards and to do so through qualified experts. ”

“ Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing 'obscene' literature cannot, as I view it, be made a crime under our constitutional standards.
'Whatever 'obscenity' is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different definitions of obscenity as there are men ”

“ They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the 'consumer.' Obscenity, at bottom, is not crime. ”

“ Like my Brother WHITE, post, p. 378 U. S. 495, I think the rule announced today is most ill-conceived, and that it seriously and unjustifiably fetters perfectly legitimate methods of criminal law enforcement. ”

“ For every statute in print there are a hundred that have no tangible existence, based on our sense of decency, of duty and of honor, which are equally controlling and which it has never been found necessary to reduce to writing, since their infraction usually brings its own penalty or infringes the more delicate domain of private conscience where the crude processes of the criminal law cannot follow. ”

“ It is only in poverty that exposures and collisions occur which violate decency and involve obscenity. Therefore the standards and codes of all classes have risen, and the care about dressing, bathing, and private functions, for the sexes and for children, has been intensified. Out of this has come the notion of what is obscene, as the extreme of indecency and impropriety. What we call obscene was, in ancient times, either a matter of superstition or a free field for jest. The conventionalization in favor of what is amusing must always be recognized. ”

“ The law which ordains confiscations, sets a price on the head of the subject, with the guilty punishes the innocent, and by reducing them to indigence and despair, tempts them to become criminal. Can there be a more melancholy spectacle, than a whole family, overwhelmed with infamy and misery, from the crime of their chief? ”

“ As we said just last term, 'The abhorrence of society to the use of involuntary confessions * * * also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; ”

“ The question whether scienter is a constitutionally required element in a criminal obscenity statute is intimately related to the constitutional scope of the power to bar material as obscene, for the impact of such a requirement on effective prosecution may be one thing where the scope of the power to proscribe is broad and quite another where the scope is narrow. ”

“ For example, because "the presumption of innocence [is] that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law,' " In re Winship, 397 U.S. 358, 363, 90 S.Ct. ”

“ The persons themselves, rather than allow the objection, would forgive the satyr; and if one could be tempted to afford it a serious answer, were not all assassinates, popular insurrections, the insolence of the rabble without doors, and of domestics within, most wrongfully chastised, if the Meanness of offenders indemnified them from punishment? On the contrary, Obscurity renders them more dangerous, as less thought of Law can pronounce judgment only on open facts; Morality alone can pass censure on intentions of mischief ”

“ If the Court means only that the officer should not merely say that he has seen a movie and considers it obscene, but should offer something in the way of a box score of what transpires therein, I consider it absurd to think that a magistrate, armed with the luminous guidance this Court has afforded, will be thus able to make a better judgment of probable obscenity. ”

“ The writers on penal laws have adopted a contrary principle, viz. that the credibility of a witness is greater, as the crime is more atrocious. Behold their inhuman maxim, dictated by the most cruel imbecility. In atrocissimis, leviores conjecturae sufficiunt, & licet judici jura transgredi. Let us translate this sentence, that mankind may see one of the many unreasonable principles to which they are ignorantly subject. In the most atrocious crimes the slightest conjectures are sufficient, and the judge is allowed to exceed the limits of the law. ”

“ The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law. ”

“ As the Court's many decisions in this area demonstrate, it is extremely difficult for judges or any other citizens to agree on what is 'obscene.' Since the distinctions between protected speech and 'obscenity' are so elusive and obscure, almost every 'obscenity' case involves difficult constitutional issues. ”

“ When the growth of social conditions led to new temptations or the appearance of a new criminal class, and particular varieties of crime became conspicuous, the only remedy was to declare that some offence should be 'felony without benefit of clergy,' and therefore punishable by death. By unsystematic and spasmodic legislation the criminal law became so savage as to shock every man of common humanity. ”

“ The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime, or violate the rights of an antecedent lawful private contract, or the right of private property. ”

“ The words 'obscene,' 'lewd,' and 'lascivious,' as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. ”

“ If they are caught in their own toils, and are themselves the sufferers, it is a legitimate consequence of their violation of the rules of law and morality. Those who violate these laws must suffer the penalty. ”

“ Here belong the secret courts of criminal justice in the middle ages and the feudal law, which bear weighty evidence to the impotence or the partiality of the criminal courts of the time and to the weakness of the state power; in the present, dueling, which is a palpable proof that the penalties which the state inflicts on attacks on one’s honor are not sufficient to satisfy the delicate feeling of honor of certain classes of society. ”

“ Thus we see the Legislature have taken the utmost Care not only to punish, but even to prevent this Vice of Drunkenness, which the Preamble of one of the foregoing Statutes calls a loathsome and odious Sin, and the Root and Foundation of many other enormous Sins, as Murder, &c. Nor doth the Wisdom of our Law stop here. Our cautious Ancestors have endeavoured to remove the Temptation, and, in a great measure, to take away from the People their very Power of offending this way. ”

“ We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. [11] 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. ”

“ The legislators, (or rather lawyers, whose opinions, when alive, were interested and venal, but which after their death become of decisive authority, and are sovereign arbiters of the lives and fortunes of men) , terrified by the condemnation of some innocent person, have burdened the law with pompous and useless formalities, the scrupulous observance of which will place anarchical impunity on the throne of justice ”

“ A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably, such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. ”

“ By the settled rules of criminal pleadings, and by the previous decisions of this court, the words 'willfully misapplies,' having no settled technical meaning (such as the word 'embezzle' has in the statutes, or the words 'steal, take, and carry away' have at common law) , do not, of themselves, fully and clearly set forth every element necessary to constitute the offense intended to be punished ”

“ A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i.e., that reasonable men may differ whether the material is obscene. ”

“ I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms. ”