The American approach to the law of obscenity

It is a central feature of constitutional thought that Constitutions, of whatever form, necessarily create a distinction between what is advisable and what is constitutional. Governmental actions that are wise as a matter of policy may still be unconstitutional, and policies that are silly or misguided may nevertheless be constitutionally permissible.

Grasping this essential point about the role of constitutional norms is essential for understanding American obscenity law, for a central feature of the existing approach is the United States Supreme Court's repeated insistence that serious doubts about the wisdom of prohibiting the sale or distribution of highly sexually explicit written, printed or photographic materials do not necessarily make such prohibitions unconstitutional. Although many people have argued persuasively that prohibiting the distribution of written, printed or photographic materials just because of their extreme sexual explicitness is inconsistent with the values of a liberal society, the American constitutional approach is characterized by treating truly hard-core pornography as outside the constitutional protection of freedom of speech and the press, and thus open for regulation on even the slightest showing of plausibility. Because this low standard does not incorporate conceptions of liberalism vis-a-vis alternative conceptions of political regulation, the effect of the American approach has been to remove from the courts what is to many people the fundamental question: what, if any, values are served by prohibiting the sale and distribution of materials on account of their extreme sexual explicitness?

As with the law in South Africa, American obscenity law - in force at both the state and federal level since the middle of the nineteenth century, and earlier in some of the states - was premised on the range of concerns about sexual explicitness and decency that some people misleadingly call "moral". I refer to this characterization as "misleading" because many of us think that a quite different range of concerns - about the causes and level of sexual violence against women, for example - have no less claim to the label "moral". If the word "moral" has any use at all, and I think it does, it is hardly inapproriate to think of sexual coercion, sexual exploitation, degradation of women, and sexual violence against women as immoral. Still, there is a different conception of the term - one we think of in contexts such as references to the "Moral Majority" - that suggests a concern specifically with sexual explicitness and with the view that a number of common sexual practices - oral sex, anal sex, and homosexuality, for example - are morally impermissible, and that a number of even more common sexual practices - heterosexual missionary position sexual intercourse, for example - are still morally inappropriate topics for written or printed or photographic depiction, even if the only consumers are "consenting adults".

Premised on such concerns about excesses of publicly available explicit depictions of sexual behavior, American law has traditionally made unlawful the sale or distribution of obscene material, and has traditionally followed English law - specifically Regina v. Hicklin 1 - in defining as obscene any material with the tendency to "deprave and corrupt" the most vulnerable or susceptible of potential consumers. Until comparatively recently, American obscenity law has proceeded without any serious interference from the courts or the Constitution. This in itself is not surprising. Although the First Amendment to the Constitution of the United States 2 was added to the Constitution in 1791, for the ensuing 128 years it was not the subject of serious judicial enforcement. Not until 1919, and even then only slightly 3 , did the United States Supreme Court take the First Amendment as exercising a substantial and judicially enforceable constraint on the permissibility of national and state legislative, executive, and administrative action. Indeed, although First Amendment arguments became commonplace from 1919 onwards, it was not until well into the 1950s that such arguments were accepted routinely, and the First Amendment became a serious restriction on governmental action.

In light of this, it is not surprising that until 1957 criminal prosecutions for dealing in obscene materials were treated as outside the purview of the First Amendment. The mere designation of the proceeding as one for obscenity was sufficient to eliminate judicial scrutiny. As a consequence, state convictions on obscenity grounds for distributing such undoubted works of literature as Theodore Dreiser's An American Tragedy, Radclyffe Hall's The Well of Loneliness, and Erskine Caldwell's God's Little Acre were not even reviewed by the Supreme Court. In 1957, however, the Supreme Court decided Roth v United States 4 , which set American obscenity law and First Amendment doctrine on its current path. In Roth, the Court reaffirmed that obscene materials, being "no essential part of any exposition of ideas," and being "utterly without redeeming social importance" to the search for truth or otherwise, were not to be considered "speech" for First Amendment purposes, and thus lay outside the scope of coverage of the First Amendment. Importantly, however, the Court in Roth also recognized that the corollary of the exclusion of obscene materials from First Amendment coverage was that non-obscene written or printed materials, even ones dealing with sex in an unorthodox, controversial, or hateful way, were entitled to First Amendment protection. Consequently, the definition of obscenity was not to be left to legislative determination or to the common law, but was itself a matter of federal constitutional law. This constitutionalization of obscenity law, more than anything else, has been the enduring legacy of the Roth approach.

Treating obscene materials as "non-speech" for First Amendment purposes has not fared well in the scholarly commentary, 5 but perhaps here it is the scholars and not the Supreme Court who should be faulted. After all, it is simply not plausible that the First Amendment could even cover the full range of linguistic behavior, the full range of behavior that is "speech" in ordinary language. We make contracts, sell goods, fix prices, place bets, commit perjury, and offer securities with words, and no one can seriously maintain that the regulation of such behavior is constrained by the heightened standards of the First Amendment. The importance of this point, one as applicable to the "freedom of speech and expression" language in Section 15 of the Interim constitution of South Africa as it is to the First Amendment to the constitution of the United States, should not be underestimated. The relevance of the principle of freedom of speech, the initial question of whether we have a free speech case at all, is not only not co-extensive with the full range of human behaviour, it cannot be co-extensive with the full range of behaviour that might constitute "speech" (or, even more broadly, "expression") in ordinary language. Were that the case, vast areas of contract, tort, commercial, and company law would suddenly become constitutionalized, and the heightened scrutiny of legislative and executive action would be applied to such a vast universe that its force would be dramatically diluted. 6

Analytically, therefore, the idea that there is something spoken, written, printed, or filmed that lies outside the coverage of the principle of free speech can hardly be controversial, and concluding that obscenity is one of the things that lies outside this coverage is not dramatically at odds with the structure of free speech jurisprudence in the United States or elsewhere. That is not to say that obscene materials ought to be so treated. It is to say that treating them as totally beyond the coverage of the principle of freedom of speech is not, once we think about all of the other verbal, linguistic, and pictorial behaviour that does not trigger free speech inquiry, hardly a surprising approach.

In concluding that some highly sexually explicit materials are so removed from the purpose behind the principles of free speech as to have no more to do with those principles than does the offering of securities to the public, the American approach since 1957 has been attentive to defining the concept of obscenity with sufficient narrowness that materials that do trade in "ideas" do not fall into the excluded category. Indeed, much of the work of the courts has been devoted, firstly, to defining "obscenity", and secondly, to reviewing even at the highest appellate levels individual obscenity convictions to ensure that the mistakes of the pre-Roth era are not repeated. The current definition of obscenity dates from the 1973 Supreme Court case of Miller v California 7 , which holds that material cannot be found to be legally obscene unless it "appeals to the prurient interest" (that is, is designed to produce sexual stimulation), is "patently offensive" to "contemporary community standards," and lacks "serious literary, artistic, political, or scientific value." Moreover, the Court in Miller made clear that only "hard core" material would fall within this category. When, a year after Miller, the Georgia courts determined that the motion picture Carnal Knowledge was obscene, a unanimous Supreme Court in Jenkins v. Georgia 8 , with then-Associate Justice Rehnquist writing the opinion, reversed that finding, saying, in effect, that such a motion picture was not even plausibly close to being legally obscene.

For all of the controversy about the American approach, a controversy heightened by the way in which the "non-speech" approach allows the courts to avoid examining with any care whether the regulation of obscene material serves important governmental purposes, the course of the law after Jenkins has, in fact, been extremely speech-protective in fact. Because Miller establishes such stringent standards for the determination of obscenity - standards heightened even further in practice by the application of the "beyond a reasonable doubt" onus of proof in criminal obscenity cases and the obligation of appellate courts to review the hard-core nature of actual materials involved in obscenity convictions - obscenity prosecutions are rare 9 , and convictions even more so. Although it is, of course, difficult to disentangle the causal contributions of legal doctrine and changing social mores, it is nevertheless the case that in 1995 the most explicit material imaginable, depicting a range of sexual practices inconceivable to most people in the most graphic way possible, is widely available almost everywhere in the United States. Publications such as Playboy and Penthouse, for example, are nowhere even close to being legally obscene, and indeed are nowhere even close to being close to being legally obscene.

Existing First Amendment doctrine has thus produced a law of obscenity that is so narrow that it has virtually eliminated obscenity prosecutions. And it has also precluded various efforts to restrict sexually explicit materials in other ways, for the consistent approach of the Supreme Court has been that - subject only to exceptions for broadcasting 10 and the zoning of "adult" establishments 11 - regulatory action not incorporating the Miller definition of obscenity cannot be sustained consistent with the First Amendment. As a result, several years ago the Court unanimously invalidated a federal statute that would have restricted telephone sex services (so-called "dial-a-porn") because the statute attempted to restrict all "indecent" telephone messages. 12 More famously, the Supreme Court has refused to review those lower courts cases that have struck down on First Amendment grounds various feminist anti-pornography ordinances that would create a civil remedy against "graphic sexually explicit" portrayals of sexual violence against, or sexual degradation of women ₁₃ . In these and other cases, the courts have consistently returned to the corollary of Roth's categorical approach. Although materials found obscene under the Miller definition are held to be totally outside the purview of the First Amendment, and therefore regulable as long as there is even the thinnest of a "rational basis" for regulation, materials dealing with sex that are not legally obscene according to Miller are treated as entitled to the strongest degree of First Amendment protection. This makes the material immune from regulation on account of their content except in the most extreme circumstances, circumstances (the so-called "compelling interest" that surfaces in various other segments of American constitutional law) that in practice are virtually never found to exist.

The effect of the American approach, in the broader sense, mirrors the doctrinal effects I have described. Because the Miller test imposes such a formidable obstacle on obscenity prosecutions - an obstacle reinforced by the relunctance of the courts to waste resources on politically controversial prosecutions - it has helped to create an environment in which the availablity of sexually explicit materials is nearly unlimited. But by drawing such a sharp distinction between the question of coverage by the First Amendment and the wisdom of regulation, and by making virtually impossible any attempt to move the law away from its historical concern with sexual explicitness per se and towards issues such as sexual violence against women, the American approach embodied in the Roth and Miller constitutional doctrines has also helped to perpetuate what for many of us is a socially and politically undesirable way of conceptualizing the issue. In terms of serving the values of freedom of speech and expression, the Roth and Miller cases have been far more speech-protective than many of its American critics realize. That protection has not come without a price, however, and in so far as the Roth and Miller cases protect a quite wide-open market for sexually explicit materials by making it more difficult to reconceptualize the issue away from "decency" and towards sexualized violence against women, it may be one more example of the fact that free speech protection, for all its importance, does not come without a price.

Notes

1. Regina v. Hicklin, LR 3QB 360 (1868).

2. "Congress shall make no law . . . abridging the freedom of speech, or of the press."

3. See Abrams v United States 250 US 616 (1919) and Schenck v United States 249 US 47 (1919), the originator of the "clear and present danger" idea.

4. Roth v United States, 354 US 476 (1957).

5. See, e.g., David A.J. Richards, "Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment," 123 University of Pennsylvania Law Review, vol. 123 (1974) 45ff.

6. Even the determination of the reasonableness of a restriction under section 33(1) is a form of heightened scrutiny, since such a standard does not have to be met with respect to legislation not implicating a constitutionally protected right. See Frederick Schauer "Categories and the First Amendment: A Play in Three Acts," (1981) 34 Vanderbilt Law Review 265 ff.; Frederick Schauer, "Speech and 'Speech' - Obscenity and 'Obscenity': An Exercise in the Interpretation of Constitutional Language," (1979) 67 Georgetown Law Journal 8989 ff.

7. Miller v California 413 US 49 (1973).

8. Jenkins v Georgia 418 US 153 (1974).

9. Except in the case of child pornography, which is treated according to somewhat different legal standards, see New York v Ferber 458 US 747 (1982).

10. See FCC v Pacifica Foundation 438 US 726 (1978).

11. See Young v American Mini Theatres, Inc 427 US 50 (1976); Renton v Playtime Theatres, Inc 475 US 41 (1986).

12. Sable Communications v FCC 492 US 115 (1989).

13. American Booksellers Association 771 F2d 323 (7th Cir. 1985), aff'd without opinion, 475 US 1001 (1986).