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18B obscenity

Where to Look in the Law

Obscenity is prohibited by sections of American law other than those concerning copyright.  However, the Copyright Office could reject copyright registration applications where the work was in violation of other law.  Producers of pornography shunned copyright registration lest they draw attention to the unlawfulness of their productions.

What the Supreme Court Ruled


Mutual Film Corp. vs Industrial Commission of Ohio

236 U.S. 230 (2-23-1915)

Mutual Film Corp. “sought to restrain the enforcement of an act of the general assembly of Ohio, passed April 16, 1913, creating under the authority and superintendence of the Industrial Commission of the state a board of censors of motion picture films.”

“Complainant has on hand at its Detroit exchange at least 2,500 reels of films which it intends to and will exhibit in Ohio, and which it will be impossible to exhibit unless the same shall have been approved by the board of censors.  [T]he statute of the state will require their examination and the payment of a fee therefor.”

“Complainant directs its argument to three propositions: (1) The statute in controversy imposes an unlawful burden on interstate commerce; (2) it violates the freedom of speech and publication guaranteed by 11, article 1, of the Constitution of the state of Ohio; and (3) it attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated.”

Rejecting all three arguments, the Court answered (in regard to the second and third propositions) that although films may be “educational or entertaining, there is no impediment to their value or effect in the Ohio statute.  But they may be used for evil, and against that possibility the statute was enacted.  Their power of amusement, and, it may be, education, [of] the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose.  Indeed, we may go beyond that possibility.  They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to.  Besides, there are some things which should not have pictorial representation in public places and to all audiences.”

“It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.  They are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition.  It was this capability and power, … that induced the state of Ohio… to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.”


Joseph Burstyn, Inc. vs Wilson, Commissioner of Education of New York, et al.

343 U.S. 495 (5-26-1952)
By this judgment, 303 N. Y. 242, 101 N. E. 2d 665, reversed

“The issue here is the constitutionality, under the First and Fourteenth Amendments, of a New York statute which permits the banning of motion picture films on the ground that they are ‘sacrilegious.”

Burstyn, Inc. “owns the exclusive rights to distribute throughout the United States a film produced in Italy entitled The Miracle.”  The motion picture division of the New York education department, acting under a state statute and knowing of complaints about The Miracle which reached the New York State Board of Regents (“‘hundreds of letters, telegrams, post cards, affidavits and other communications’”), considered exercising its right to prohibit Burstyn from showing the film.  “After viewing the film, this committee reported to the Board that in its opinion there was basis for the claim that the picture was ‘sacrilegious.’”  Burstyn was denied exhibition rights February 16, 1951.

“It is urged that motion pictures do not fall within the First Amendment’s aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit.  We cannot agree.  That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.  We fail to see why operation for profit should have any different effect in the case of motion pictures.

“It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression.  Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection.  If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship such as we have here.

“For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.  To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm’n, is out of harmony with the views here set forth, we no longer adhere to it.”

However: “To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas.  Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule.”

The 1952 Supreme Court regarded the New York statute to be “previous restraint[, which] is a form of infringement upon freedom of expression to be especially condemned.”

(An appendix to the Supreme Court’s decisions on this case, contains dozens of definitions of “blasphemy” and “Sacrilege” culled from 1651 to 1875.  Persons interested in a fuller understanding of this subject are advised to read this appendix, available online on sites that offer Supreme Court decisions.  See frame at bottom of this page for more information.)


Superior Films, Inc. vs Department of Education of Ohio, Division of Film Censorship, Hissong, Superintendent

346 U.S. 587 (1-18-1954)
Appealed from the Supreme Court of Ohio

“The argument of Ohio and New York that the government may establish censorship over moving pictures is one I cannot accept.  In 1925 Minnesota passed a law aimed at suppressing before publication any ‘malicious, scandalous and defamatory newspaper.’  The Court, speaking through Chief Justice Hughes, struck down that law as violating the Fourteenth Amendment, which has made the First Amendment applicable to the States.  Near v. Minnesota, 283 U.S. 697… .”

“The same result in the case of motion pictures necessarily follows as a consequence of our holding in Joseph Burstyn, Inc. v. Wilson, that motion pictures are ‘within the free speech and free press guaranty of the First and Fourteenth Amendments.’

“Motion pictures are of course a different medium of expression than the public speech, the radio, the stage, the novel, or the magazine.  But the First Amendment draws no distinction between the various methods of communicating ideas.  On occasion one may be more powerful or effective than another.  The movie, like the public speech, radio, or television, is transitory — here now and gone in an instant.  The novel, the short story, the poem in printed form are permanently at hand to reenact the drama or to retell the story over and again.  Which medium will give the most excitement and have the most enduring effect will vary with the theme and the actors.  It is not for the censor to determine in any case.  The First and the Fourteenth Amendments say that Congress and the States shall make ‘no law’ which abridges freedom of speech or of the press.  In order to sanction a system of censorship I would have to say that ‘no law’ does not mean what it says, that ‘no law’ is qualified to mean ‘some’ laws.  I cannot take that step.

“In this Nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor.”


Roth vs United States

354 U.S. 476 (6-24-1957)

“Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute.”

Apart from the guarantees of free speech in the First Amendment of the Constitution, the Court held: “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.  But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.  This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956… .

“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 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… .  Obscene material is material which deals with sex in a manner appealing to prurient interest.  The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.  Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”

The Court held that a proper standard for determining obscenity is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

The Court recognized that it had been objected that “these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.”  Nonetheless, “we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.”  Conviction affirmed.


Memoirs vs Attorney General of Massachusetts

383 U.S. 413 (3-21-1966)

“This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor.”  Publisher “G. P. Putnam’s Sons intervened in the proceedings in behalf of the book, but it did not claim the right provided by that section to have the issue of obscenity tried by a jury.”

Reversing the finding of obscenity by the Massachusetts Supreme Judicial Court, the Supreme Court found: “A book cannot be proscribed unless it is found to be utterly without redeeming social value.  This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive… .  Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.”

Noting that “the courts were asked to judge the obscenity of Memoirs in the abstract”, the Supreme Court added: “Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance.”  (EDITOR’S NOTE: Such a verdict presumably would apply to only the edition being marketed that way.)


Marvin Miller vs California, 413 U.S. 15 (6-21-1973)
Appeal from the Appellate Department, Superior Court of California, County of Orange


Paris Adult Theatre I, et al vs Lewis R. Slaton, as District Attorney, Atlanta Judicial Circuit, et al., 413 U.S. 49 (6-21-1973)
Certiorari to the Supreme Court of Georgia


Kaplan vs California, 413 U.S. 115 (6-21-1973)
Certiorari to the Appellate Department, Superior Court of California, County of Los Angeles


United States vs 12 200-ft. Reels of Film, et al. (Paladini, claimant), 413 U.S. 123 (6-21-1973)
Appeal from the United States District Court for the Central District of California


United States vs Orito, 413 U.S. 139 (6-21-1973)
Appeal from the United States District Court for the Eastern District of Wisconsin

These five cases dealing with obscenity were decided by the Supreme Court on the same day of June 21, 1973.  The cases vary in their details.  In Miller, Miller was convicted of violating a California statute when he mailed unsolicited “brochures [which] advertise four books entitled ‘Intercourse,’ ‘Man-Woman,’ ‘Sex Orgies Illustrated,’ and ‘An Illustrated History of Pornography,’ and a film entitled Marital Intercourse.  While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.”  In Paris Adult Theater, “two Atlanta, Georgia, movie theaters and their owners and managers, … [o]n December 28, 1970, were [cited for] exhibiting to the public for paid admission two allegedly obscene films,… Magic Mirror and It All Comes Out in the End, [which] depict sexual conduct characterized by the Georgia Supreme Court as ‘hard core pornography’ leaving ‘little to the imagination.’”  In Kaplan, the operator of “Peek-A-Boo Bookstore, one of the approximately 250 ‘adult’ bookstores in the city of Los Angeles, California[, o]n May 14, 1969, [sold to] an undercover police officer… the book Suite 69 [which] has a plain cover and contains no pictures.  It is made up entirely of repetitive descriptions of physical, sexual conduct, ‘clinically’ explicit and offensive to the point of being nauseous; there is only the most tenuous ‘plot.’  Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described.  Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.”  200-ft. reels of film came about because “[o]n April 2, 1970, the claimant Paladini sought to carry movie films, color slides, photographs, and other printed and graphic material into the United States from Mexico.  The materials were seized as being obscene by customs officers at a port of entry, Los Angeles Airport, and made the subject of a forfeiture action”.  In Orito, “Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U.S.C. 1462 in that he did ‘knowingly transport and carry in interstate commerce from San Francisco… to Milwaukee… by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials… .’  The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films.”  (Ellipses and brackets within last inner quote are in Supreme Court decision.)

While remaining committed to the tenet that obscenity would continue to be unlawful, the Supreme Court did loosen the law’s reins on what would be regarded as obscene.  The Court contended that laws should “be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value… .

“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, … quoting Roth v. United States, (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.  We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts; that concept has never commanded the adherence of more than three Justices at one time.”  (This particular standard appears in the Court’s majority opinion, on which five justices joined.)  “A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”

Discussing why “community standards” would be applied in reaching verdicts, the Court wrote: “We conclude that neither the State’s alleged failure to offer evidence of ‘national standards,’ nor the trial court’s charge that the jury consider state community standards, were constitutional errors.  Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact… .

“It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.  People in different states vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.  As the Court made clear in Mishkin v. New York [1966], the primary concern with requiring a jury to apply the standard of ‘the average person, applying contemporary community standards’ is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.”  (preceding quotes are from Miller)

(EDITOR’S NOTE: Readers of this summary might be wondering what are the boundaries of a “community” as discussed in the opinion.  In editing the Court’s opinion for this web site, I have not removed any passages intimating the Court’s answer.  None is to be found in any of the opinions.  Although the Court decision mentions “conduct found tolerable in Las Vegas, or New York City”, there is no indication how the law would apply should there be differences of moral standards among Greenwich Village, the Upper West Side of Manhattan Island, and Astoria.  All are in New York City, yet is that city one community or can neighborhoods be regarded separately as communities?  And what of the solitary individual who doesn’t harm anyone yet lives within a densely-populated area yet within a small room with so little contact that he might be regarded as a community among himself?)

(Justice Douglas, writing in his dissenting opinion on Miller [on which he was not joined by the three other justices who dissented from the majority opinion], was troubled by the “community standard” approach: “Obscenity—which even we cannot define with precision—is a hodge-podge.  To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process… .  To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society.  The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people.  Its prime function was to keep debate open to ‘offensive’ as well as to ‘staid’ people.”  He admits, “the [pornographic] materials before us may be garbage.  But so is much of what is said in political campaigns, in the daily press, on TV or over the radio.”)

The majority on the Court held “that there are legitimate state interests at stake in stemming the tide of commercialized obscenity…  These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself… .

“Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist.  In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect ‘the social interest in order and morality.’”  (from Paris Adult Theater)

Commenting on whether “the right to possess obscene material in the privacy of the home creates a right to acquire it or import it from another country”, the Court wrote: “The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth or fifth ‘logical’ extension occurs.  Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.  This kind of gestative propensity calls for the ‘line drawing’ familiar in the judicial, as in the legislative process: ‘thus far but not beyond.’”  (from 200-ft. reels of film)

All verdicts were “vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion.”  (quote from Miller, worded similarly in the others)  In Kaplan, the Supreme Court noted that the state court had concluded, “‘Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of candor within the State of California.’  It held that the book was not protected by the First Amendment.  We agree.”

The decision in Paris Adult Theater reports that “[o]n the door itself is a sign saying: ‘Adult Theater — You must be 21 and able to prove it.  If viewing the nude body offends you, Please Do Not Enter.’”  Nonetheless, the Court rejected the idea “that conduct which directly involves ‘consenting adults’ only has, for that sole reason, a special claim to constitutional protection.  Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take.  Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State’s broad power to regulate commerce and protect the public environment.  The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.  The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety”.

Marvin Miller vs California, 418 U.S. 915 (7-25-1974)


Paris Adult Theatre I, et al vs Lewis R. Slaton, as District Attorney, Atlanta Judicial Circuit, et al., 418 U.S. 939 (7-25-1974)

The Georgia Supreme Court which convicted in Paris Adult Theater and the Orange County, California Superior Court which convicted in Miller, both reaffirmed their earlier verdicts on remand.  Although Justice Brennan of the Supreme Court (joined in his dissent by two other justices) wrote that the operators of Paris Adult Theater “have thus not been provided the independent judicial review to which the Court held them entitled… . [and also] it does not appear from the petition that the obscenity of the disputed materials was adjudged by applying local community standards”, none of the justices insisted that the cases be reversed.  The Supreme Court refused to certify the new verdicts, yet it did not again vacate and remand.

What the Lower Courts Ruled


Simonton vs Gordon et al.

D.C.N.Y. (2-17-1925) ¤ 12 F.2d 116

Ira Vera Simonton, author of a novel entitled Hell’s Playground, had sued over a play by Leon Gordon entitled White Cargo, citing similar incidents.  (See summary under similarity.)  Although the case was decided on the merits of that complaint, the judge rendered opinions on whether both works might have been regarded as too obscene to be entitled to copyright protection.  (The opinions on obscenity were not legally binding, as the charges before the court did not include them.)  The judge’s opinion :

“The plots of the book and the play, as above detailed, are anything but edifying… . One of the defenses raised to the complainant’s bill is that the story of the plaintiff is lewd and lascivious, and is not entitled to copyright protection.  This defense will be treated hereafter.”

“Any one who may take the trouble to read what I have attempted to set forth will, I am sure, be impressed by the fact that neither the book nor the play is elevating.  Both are unnecessarily coarse and highly sensual.  They nevertheless purport to deal with actual conditions as they are known to exist in tropical countries, and, if such conditions be dealt with in a manner that is not calculated to arouse lust in those who read the book or see the play, it is doubtful if a charge of immorality may successfully be maintained.  If the copyright of ‘Hell’s Playground’ is invalid upon the grounds of immorality, it augurs ill for many present-day novels and magazines, to say nothing of numerous dramas which now meet with public approval.  [citation and quote omitted]

“Whatever may be the view of a prudist with respect to ‘Hell’s Playground,’ I think that the book, when judged by the standards of current literature, should not be held to be unentitled to copyright.”




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