Case Library

Compiled and redacted by
Allen B.Gelbard, Esq.

TABLE OF CASES

OBSCENITY

Roth v. United States, (1957) 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 148 ............................ 1

Kingsley International Pictures Corp. v. New York, (1959) 360 U. S. 684, 79 S. Ct. 1362, 3 L. Ed. 2d 1512 ........................................... 5

Smith v. California, (1959) 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 ............................. 7

Stanley v. Georgia, (1969) 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 ............................. 9

Miller v. California, (1972) 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 ........................... 11

Paris Adult Theatre I v. Slaton, (1972) 413 U. S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 .......................................... 15

Pope v. Illinois, (1987) 481 U. S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439 ........................... 21

People v. Freeman, (1988) 46 Cal. 3d 419, 758 P. 2d 1128, 250 Cal. Rptr. 598 ............ 23

CHILDREN

Ginsberg v, New York, (1968) 390 U. S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 ............. 26

New York v. Ferber, (1982) 458 U. S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 ............. 29

Osborne v. Ohio, (1989) 495 U. S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98 ........................... 33

Free Speech Coalition v. Reno, (1999) 198 F. 3rd 1083 ........................................................ 35

NONOBSCENITY

Erznoznik v. Jacksonville, (1975) 422 U. S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 ............. 39

Sable Communications Inc. v. FCC, (1989) 492 U. S. 115, 109 S. Ct. 2829, 106 L. Ed. 2d 93 ........................................... 42

CONTENT NEUTRALITY / TIME PLACE AND MANNER

United States v. O'Brien, (1968) 391 U. S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 ............... 45

Clark v. Community for Creative NonViolence, (1984) 468 U. S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 .......................................... 46

Ward v. Rock against Racism, (1989) 491 U. S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 .......................................... 48

R. A. V. v. City of St. Paul, (1992) 505 U. S. 377, 112 S. Ct. 2538 120 L. Ed. 2d 305 ............. 51

Forsyth County v. The Nationalist Movement, (1992) 505 U. S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 ......................................... 54

Crawford v. Lungren, (9th Cir. 1996) 96 F. 3d 380 ........................................................ 52

Colacurcio V. City of Kent, (9 th Cir. 1998) 163 F. 3d 545 ................................................... 61

City of Erie v. Pap's A. M., (2000) S. Ct........................................................ 66

Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Georgia (11th Cir. 2001) 242 F. 3d 976 ..................................................... 73

ZONING REGULATIONS

Young v. American Mini Theatres, Inc., (1976) 427 U. S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 ......................................... 76

Renton v. Playtime Theatres, Inc., (1985) 475 U. S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 ......................................... 79

Keego Harbor Co. v. City of Keego Harbor, (6th Cir. 1981) 657 F. 2d 94 ........................... 84

C. R. of Rialto, Inc. v. City of Rialto, (C. D. Cal 1997) 964 F. Supp. 1401 ........................... 86

Baby Tam & Co., Inc. V. City of Las Vegas (9th Cir. 1998) 154 F. 3d 1097 ............................. 88

Voyeur Dorm v. City of Tampa, FL (11th Cir. 2001) 265 F. 3d 1232 ................................... 90

ALCOHOL

City of Newport v. Jacobucci, (1986) 479 U. S. 92, 107 S. Ct. 383, 93 L. Ed. 2d 334 ................... 83

44 Liquormart, Inc. v. Rhode Island, (1995) 517 U. S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711 .......................................... 94

77 S. Ct. 1304
L. Ed. 2d 1498, 1 Media L. Rep. 1375
354 U. S. 476
Table of Cases

Prosecution under California obscenity statute. Defendant was convicted in the Municipal Court of Beverly Hills Judicial District and he appealed. The Superior Court of the State of California, Los Angeles County, Appellate Department, 138 Cal. App. 2d Supp. 909, 292 P. 2d 90, affirmed, and the defendant appealed to the United States Supreme Court. Prosecution under federal obscenity statutes for mailing obscene matter. The United States District Court for the Southern District of New York entered judgment of conviction and the defendant appealed. The United States Court of Appeals for the Second Circuit, 237 F. 2d 796, affirmed, and the Supreme Court granted certiorari. The Supreme Court, Mr. Justice Brennan, held that federal obscenity statute punishing the mailing of material that is obscene, lewd, lascivious, or filthy, or other publications of an indecent character, and California obscenity statute making punishable, inter alia, the keeping for sale or advertising of material that is obscene or indecent, do not offend constitutional safeguards against convictions based upon protected material nor do they violate constitutional requirements of due process by failing to give adequate notice of what is prohibited.

Affirmed. Mr. Justice Harlan dissented in part; Mr. Justice Douglas and Mr. Justice Black dissented.

Mr. Justice BRENNAN delivered the opinion of the Court.

...
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 26count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. [FN4] We granted certiorari. [FN5]

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The dispositive question is whether obscenity is utterance within the area of protected speech and press. [FN8] Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press....

...
In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. People of State of Illinois, 343 U. S. 250, 266, 72 S. Ct. 725, 735, 96 L. Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [FN13]

FN13. Act Concerning Crimes and Punishments, s 69 (1821), Stat. Laws of Conn. 109 (1824); Knowles v. State, 1808, 3 Day, Conn., 103; Rev. Stat. of 1835, c. 130, s 10, Rev. Stat. of Mass. 740 (1836); Commonwealth v. Holmes, 1821, 17 Mass. 335; Rev. Stat. of 1842, c. 113, s 2, Rev. Stat. of N. H. 221 (1843); Act for Suppressing Vice and Immorality, s XII (1798), N. J. Rev. Laws 329, 331 (1800); Commonwealth v. Sharpless, 1815, 2 Serg. & R., Pa., 91. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec: '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).

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. [FN14] 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, [FN15] in the obscenity laws of all of the 48 States, [FN16] and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. [FN17] This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031:

'* * * There are certain welldefined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. 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 * * *. ' (Emphasis added.) 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. 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. '( Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178 P. 2d 853, 855, namely, whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing

lustful desires. ' (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of antisocial conduct, [FN18] or will probably induce its recipients to such conduct. [FN19] But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. People of State of Illinois, supra, 343 U. S. at page 266, 72 S. Ct. at page 735:

...
'Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger. ' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class. '

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. [FN20] The portrayal of sex, e. g., in art, literature and scientific works, [FN21] 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. As to all such problems, this Court said in Thornhill v. State of Alabama, 310 U. S. 88, 101 102, 60 S. Ct. 736, 744, 84 L. Ed. 1093:

FN20. I. e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows: '* * * Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *. ' Pruriency is defined, in pertinent part, as follows: '* * * Quality of being prurient; lascivious desire or thought. * * *' See also Mutual Film Corp. v. Industrial Comm., 236 U. S. 230, 242, 35 S. Ct. 387, 390, 59 L. Ed. 552, where this Court said as to motion pictures: '* * * 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 * * *. ' (Emphasis added.) We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A. L. I., Model Penal Code, s 207.10( 2) (Tent. Draft No. 6, 1957), viz.: '* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or exerction, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *'See comment, id., at 10, and the discussion at page 29 et seq.

...
'The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. * * * Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. ' (Emphasis added.)

The fundamental freedom of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. [FN22] Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. [FN23] It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, (1868) L. R. 3 Q. B. 360. [FN24] Some American courts adopted this standard [FN25] but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. [FN26] The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legiti

mately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.

...
'* * * The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the socalled worldlywise and sophisticated indifferent and unmoved. * * * 'The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by presentday standards of the community. You may ask yourselves does it offend the common conscience of the community by presentday 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. '

It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. People of State of New York, 333 U. S. 507, 68 S. Ct. 665, 92 L. Ed. 840. The federal obscenity statute makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character. '[ FN28] The California statute makes punishable, inter alia, the keeping for sale or advertising material that is 'obscene or indecent. ' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.

FN28. 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 englightened 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, 16 S. Ct. 434, 438, 480, 40 L. Ed. 606.

Many decisions have recognized that these terms of obscenity statutes are not precise. [FN29] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * (T) he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficienty definite warning as to the proscribed conduct when measured by common understanding and practices * * *. 'United States v. Petrillo, 332 U. S. 1, 7 8, 67 S. Ct. 1538, 1542, 91 L. Ed. 1877. 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 which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *. '

...
The judgments are affirmed. Affirmed. Mr. Justice HARLAN, concurring in the result in No. 61, and dissenting in No. 582.

...
I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as 'obscene, 'for, if 'obscenity'is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce's 'Ulysses'or Bocaccio's 'Decameron'was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are 'utterly without redeeming social importance. ' In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based. I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.

...
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States.

...
The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, 'The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom. 'Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn. L. Rev. 295, 387.

If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards.

...
The standard of what offends 'the common conscience of the community'conflicts, in my judgment, with the command of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press. ' Certainly that standard would not be an acceptable one if religion, economics, polities or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned?

Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to 'sexual impurity'or has a tendency 'to excite lustful thoughts. ' This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines and certain to win. If experience in this field teaches anything, it is that 'censorship of obscenity has almost always been both irrational and indiscriminate. ' Lockhart & McClure, op. cit. supra, at 371. The test adopted here accentuates that trend.

I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.

I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and depend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.

The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society's values in literary freedom are sacrificed.

79 S. Ct. 1362
3 L. Ed. 2d 1512
360 U. S. 684
Table of Cases

Proceeding to review a determination of the Regents of the University of the State of New York refusing to issue a license to a distributor of motion picture films for general exhibition of a certain film. The New York Supreme Court, Appellate Division, Third Judicial Department, 4 A. D. 2d 348, 165 N. Y. S. 2d 681, annulled the determination, and the Board of Regents appealed. The New York Court of Appeals, 4 N. Y. 2d 349, 175 N. Y. S. 2d 39, 151 N. E. 2d 197, reversed, and the distributor appealed to the United States Supreme Court. The Supreme Court, Mr. Justice Stewart, held that under New York statute requiring denial of license to exhibit motion pictures which are immoral in that they portray acts of sexual immorality as desirable, acceptable or proper pattern of behavior, denial of license to distributor for a certain film, which presented adultery as being right and desirable for certain people under certain circumstances, violated distributor's constitutional rights.

Reversed. Mr. Justice STEWART delivered the opinion of the Court.

...
The New York statute makes it unlawful 'to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel (with certain exceptions not relevant here), unless there is at the time in full force and effect a valid license or permit therefor of the education department * * * . [FN1] The law provides that a license shall issue 'unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime * * *. ' [FN2] A recent statutory amendment provides that, 'the term 'immoral' and the phrase 'of such a character that its exhibition would tend to corrupt morals'shall denote a motion picture film or part thereof, the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior. '[ FN3]

As the distributor of a motion picture entitled 'Lady Chatterley's Lover, ' the appellant Kingsley submitted that film to the Motion Picture Division of the New York Education Department for a license. Finding three isolated scenes in the film " i m m o r a l ' within the intent of our Law, ' a n d Division refused to issue a license until the scenes in question were deleted. The distributor petitioned the Regents of the University of the State of New York for a review of that ruling. [FN4] The Regents upheld the denial of a license, but on the broader ground that 'the whole theme of this motion picture is immoral under said law, for that theme is the presentation of adultery as a desirable, acceptable and proper pattern of behavior. '

...
What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea that adultery under certain circumstances may be proper behavior. Yet the First Amendment's basic guarantee is of freedom to advocate ideas. The State, quite simply, has thus struck at the very heart of constitutionally protected liberty.

It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.

Advocacy of conduct proscribed by law is not, as Mr. Justice Brandeis long ago pointed out, 'a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. ' Whitney v. People of State of California, 274 U. S. 357, at page 376, 47 S. Ct. 641, at page 648, 71 L. Ed. 1095 (concurring opinion). 'Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech * * *. ' Id., 274 U. S. at page 378, 47 S. Ct. at page 649. [FN11]

FN11. Thomas Jefferson wrote more than a hundred and fifty years ago, 'But we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors. And especially when the law stands ready to punish the first criminal act produced by the false reasoning. These are safer correctives than the conscience of a j u d g e . ' Letter of Thomas Jefferson to Elijah Boardman, July 3, 1801, Jefferson Papers, Library

of Congress, Vol. 115, folio 19761. Reversed.

Mr. Justice FRANKFURTER, concurring in the result.

As one whose taste in art and literature hardly qualifies him for the avantgarde, I am more than surprised, after viewing the picture, that the New York authorities should have banned 'Lady Chatterley's Lover. ' To assume that this motion picture would have offended Victorian moral sensibilities is to rely only on the stuffiest of Victorian conventions. Whatever one's personal preferences may be about such matters, the refusal to license the exhibition of this picture, on the basis of the 1954 amendment to the New York State Education Law, can only mean that that enactment forbids the public showing of any film that deals with adultery except by way of sermonizing condemnation or depicts any physical manifestation of an illicit amorous relation. Since the denial of a license by the Board of Regents was confirmed by the highest court of the State, I have no choice but to agree with this Court's judgment in holding that the State exceeded the bounds of free expression protected by the 'liberty' of the Fourteenth Amendment. But I also believe that the Court's opinion takes ground that exceeds the appropriate limits for decision. By way of reinforcing my brother HARLAN'S objections to the scope of the Court's opinion, I add the following.

Mr. Justice DOUGLAS with whom Mr. Justice BLACK joins, concurring.

While I join in the opinion of the Court, I adhere to the views I expressed in Superior Films Inc. v. Department of Education, 346 U. S. 587, 588 589, 74 S. Ct. 286, 98 L. Ed. 329, that censorship of movies is unconstitutional, since it is a form of 'previous restraint' that is as much at war with the First Amendment, made applicable to the States through the Fourteenth, as the censorship struck down in Near v. State of Minnesota ex rel. Olson, 283 U. S. 697, 51 S. Ct. 625, 75 L. Ed. 1357. If a particular movie violates a valid law, the exhibitor can be prosecuted in the usual way. I can find in the First Amendment no room for any censor whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.

80 S. Ct. 215
4 L. Ed. 2d 205
361 U. S. 147
Table of Cases

See 361 U. S. 950, 80 S. Ct. 399. Defendant was convicted in the Municipal Court of Los Angeles for violating ordinance dealing with obscene materials, and he appealed. The Appellate Department of the Superior Court of California, Los Angeles County, 161 Cal. App. 2d Supp. 860, 327 P. 2d 636, affirmed, and a further appeal was taken. The Supreme Court, Mr. Justice Brennan, held that Los Angeles ordinance, dispensing with element of scienter knowledge by bookseller of contents of book and imposing strict criminal liability on bookseller possessing obscene material, had such a tendency to inhibit constitutionally protected expression that it could not stand.

Reversed. Mr. Justice Harlan dissented in part. Mr. Justice BRENNAN delivered the opinion of the Court.

Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful 'for any person to have in his possession any obscene or indecent writing, (or) book * * * in any place of business where * * * books * * * are sold or kept for sale. '[ FN1] The offense was defined by the Municipal Court, and by the Appellate Department of the Superior Court, [FN2] which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter knowledge by appellant of the contents of the book and thus the ordinance was construed as imposing a 'strict' or 'absolute' criminal liability. [FN3] The appellant made timely objection below that if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution, [FN4] was rejected, and the case comes here on appeal. 28 U. S. C. ** 217 s 1257( 2), 28 U. S. C. A. s 1257( 2); 358 U. S. 926, 79 S. Ct. 317, 3 L. Ed. 2d 299.

...
Almost 30 years ago, Chief Justice Hughes declared for this Court: 'It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property * * *. ' Near v. State of Minnesota ex rel. Olson, 283 U. S. 697, 707, 51 S. Ct. 625, 628, 75 L. Ed. 1357. It is too familiar for citation that such has been the doctrine of this Court, in respect of these freedoms, ever since. And it also requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms. It is of course no matter that the dissemination takes place under commercial auspices. See Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098; Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.

California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. 'the existence of a mens rea is the rule of, rather than the exception to, the principles of AngloAmerican criminal jurisprudence. ' Dennis v. United States, 341 U. S. 494, 500, 71 S. Ct. 857, 862, 95 L. Ed. 1137. [FN5] Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter though even where no freedomofexpression question is involved, there is precedent in this Court that this power is not without limitations. See Lambert v. People of State of California, 355 U. S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228.

...
These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. [FN7] The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strictliability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. Cf. United States v. Balint, 258 U. S. 250, 252 253, 254, 42 S. Ct. 301, 302, 303, 66 L. Ed. 604. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, [FN8] he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. ' [FN9] The King v. Ewart, 25 N. Z. L. R. 709, 729 (C. A.). And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's selfcensorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

...
It is argued that unless the scienter requirement is dispensed with, regulation of the distribution of obscene material will be ineffective, as booksellers will falsely disclaim knowledge of their books'contents or falsely deny reason to suspect their obscenity. We might observe that it has been some time now since the law viewed itself as impotent to explore the actual state of a man's mind. See Pound, The Role of the Will in Law, 68 Harv. L. Rev. 1. Cf. American Communications Ass'n, C. I. O., v. Douds, 339 U. S. 382, 411, 70 S. Ct. 674, 690, 94 L. Ed. 925. Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.

We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to selfcensorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.

We have said: 'The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. ' Roth v. United States, supra, 354 U. S. at page 488, 77 S. Ct. at page 1311. [FN10] This ordinance opens that door too far. The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. City of Madison, Wisconsin, 340 U. S. 349, 71 S. Ct. 295, 95 L. Ed. 329. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.

Reversed. Mr. Justice BLACK, concurring.

...
Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.

Mr. Justice DOUGLAS, concurring. I need not repeat here all I said in my dissent in Roth v. United States, 354 U. S. 476, 508, 77 S. Ct. 1304, 1321, 1 L. Ed. 2d 1498, to underline my conviction that neither the author nor the distributor of this book can be punished under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the First Amendment, as the judicial and legislative developments in this country show. Our leading authorities on the subject have summarized the matter as follows: 'In the United States before the Civil War there were few reported decisions involving obscene literature. This of course is no indication that such literature was not in circulation at that time; the persistence of pornography is entirely too strong to warrant such an inference. Nor is it an indication that the people of the time were totally indifferent to the proprieties of the literature they read. In 1851 Nathaniel Hawthorne's The Scarlet Letter was bitterly attacked as an immoral book that degraded literature and encouraged social licentiousness. The lack of cases merely means that the problem of obscene literature was not thought to be of sufficient importance to justify arousing the forces of the state to censorship. ' Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295, 324 325.

Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only grounds for suppressing this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punished only on a showing not attempted here. My view was stated in the Roth case, 354 U. S., at page 514, 77 S. Ct., at page 1324: 'Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498, 69 S. Ct. 684, 688, 93 L. Ed. 834; National Labor Relations Board v. Virginia Electric & Power Co., 314 U. S. 469, 477 478, 62 S. Ct. 344, 348, 86 L. Ed. 348. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless. '...

89 S. Ct. 1243
22 L. Ed. 2d 542
394 U. S. 557
Table of Cases

Defendant was convicted in the Superior Court, Fulton County, Georgia, of possessing obscene matter and he appealed. The Supreme Court of Georgia, 224 Ga. 259, 161 S. E. 2d 309, affirmed. On appeal, the Supreme Court, Mr. Justice Marshall, held that First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

Reversed and remanded with directions. Mr. Justice MARSHALL delivered the opinion of the Court.

An investigation of appellant's alleged bookmaking activities led to the issuance of a search warrant for appellant's home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eightmillimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for 'knowingly hav( ing) possession of * * * obscene matter' in violation of Georgia law. [FN1] Appellant was tried before a jury and convicted. The Supreme Court of Georgia affirmed. Stanley v. State, 224 Ga. 259, 161 S. E. 2d 309 (1968). We noted probable jurisdiction of an appeal brought under 28 U. S. C. s 1257( 2), 393 U. S. 819, 89 S. Ct. 124, 21 L. Ed. 2d 90 (1968).

...
Appellant raises several challenges to the validity of his conviction. [FN2] We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.

...
In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself, '( c) easeless vigilance is the watchword to prevent * * * erosion (of First Amendment rights) by Congress or by the States. The door barring federal the state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. ' 354 U. S., at 488, 77 S. Ct., at 1311. Roth and the cases following it discerned such an 'important interest' in the regulation of commercial distribution of obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.

It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom (of speech and press) * * * necessarily protects the right to receive * * *. '

Martin v. City of Struthers, 319 U. S. 141, 143, 63 S. Ct. 862, 863, 87 L. Ed. 1313 (1943); see Griswold v. Connecticut, 381 U. S. 479, 482, 85 S. Ct. 1678, 1680, 14 L. Ed. 2d 510 (1965); Lamont v. Postmaster General, 381 U. S. 301, 307 308, 85 S. Ct. 1493, 1496 1497, 14 L. Ed. 2d 398 (1965) (Brennan, J., concurring); cf. Pierce v. Society of the Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U. S. 507, 510, 68 S. Ct. 665, 667, 92 L. Ed. 840 (1948), is fundamental to our free society. Moreover, in the context of this case a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy. 'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized man. ' Olmstead v. United States, 277 U. S. 438, 478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting). See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 462, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958).

These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as 'obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.

And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual's mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. [FN8] To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 688 689, 79 S. Ct. 1362, 1365, 3 L. Ed. 2d 1512 (1959), '( t) his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. * * * And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing. ' Cf. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098 (1952). Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. See Winters v. New York, supra, 333 U. S., at 510, 68 S. Ct., at 667. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.

...
Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. [FN9] But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '( a) mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law * * *. ' Whitney v. California, 274 U. S. 357, 378, 47 S. Ct. 641, 649, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring). See Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 938 (1963). Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.

FN9. See, e. g., Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of AntiObscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962); see also M. Jahoda, The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F. 2d 796, 814 816 (C. A. 2d Cir. 1956).

...
Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. See Smith v. California, 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959).

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. [FN11] 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.

93 S. Ct. 2607
37 L. Ed. 2d 419,
1 Media L. Rep. 1441
413 U. S. 15
Table of Cases

See 414 U. S. 881, 94 S. Ct. 26. Defendant was convicted of mailing unsolicited sexually explicit material in violation of a California statute and the Appellate Department, Superior Court of California, County of Orange, affirmed and defendant appealed. The Supreme Court, Mr. Chief Justice Burger, held that a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value. The Court also rejected the test of 'utterly without redeeming social value' as a constitutional standard.

Vacated and remanded. Mr. Justice Douglas filed a dissenting opinion. Mr. Justice Brennan filed a dissenting opinion in which Mr. Justice Stewart and Mr. Justice Marshall joined.

Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337, 26 S. Ct. 282, 287, 50 L. Ed. 499.

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 418, 86 S. Ct. 975, 977, 16 L. Ed. 2d 1 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious

literary, artistic, political, or scientific value. P. 2614.

2. 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, Roth supra, at 489, 77 S. Ct. at 1311, (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. P. 2615.

Mr. Chief Justice BURGER delivered the opinion of the Court. This is one of a group of 'obscenitypornography' cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called 'the intractable obscenity problem. ' Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704, 88 S. Ct. 1298, 1313, 20 L. Ed. 2d 225 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called 'adult' material. After a jury trial, he was convicted of violating California Penal Code s 311.2( a), a misdemeanor, by knowingly distributing obscene matter, [FN1] and the A p p e l l a t e Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

...
This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [FN2] when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.

...
While Roth presumed 'obscenity' to be 'utterly without redeeming social importance, ' Memoirs required that to prove obscenity it must be affirmatively established that the material is 'utterly without redeeming social value. ' Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was 'utterly without redeeming social value' a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the 'utterly without redeeming social value'test had any meaning at all. See Memoirs v. Massachusetts, id., at 459, 86 S. Ct., at 998 (Harlan, J., dissenting). See also id., at 461, 86 S. Ct., at 999 (White, J., dissenting); United States v. Groner, 479 F. 2d 577, 579 581 (CA, 5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e. g., Redrup v. New York, 386 U. S., at 770 771, 87 S. Ct., at 1415 1416. We have seen 'a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. ' Interstate Circuit, Inc. v. Dallas, 390 U. S., at 704 705, 88 S. Ct., at 1314 (Harlan, J., concurring and dissenting) (footnote omitted). [FN3] This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

...
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, Kois v. Wisconsin, supra, 408 U. S., at 230, 92 S. Ct., at 2246, quoting Roth v. United States, supra, 354 U. S., at 489, 77 S. Ct., at 1311; (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 constituional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U. S., at 419, 86 S. Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time. [FN7] See supra, at 2613. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellante courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U. S., at 232, 92 S. Ct., at 2247; Memoirs v. Massachuetts, supra, 383 U. S., at 459 460, 86 S. Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U. S., at 204, 84 S. Ct., at 1686 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284 285, 84 S. Ct. 710, 728, 11 L. Ed. 2d 686 (1964); Roth v. United States, supra, 354 U. S., at 497 498, 77 S. Ct., at 1315 1316 (Harlan, J., concurring and dissenting).

FN7. 'Aquotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . .' Kois v. Wisconsin, 408 U. S., 229, 231, 92 S. Ct. 2245, 2246, 33 L. Ed. 2d 312 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 461, 86 S. Ct. 975, 999, 16 L. Ed. 2d 1 (1966) (White, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of 'social importance. ' See id., at 462, 86 S. Ct., at 999 (White, J., dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lews exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. [FN8] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U. S., at 230 232, 92 S. Ct., at 2246 2247; Roth v. United States, supra, 354 U. S., at 487, 77 S. Ct., at 1310; Thornhill v. Alabama, 310 U. S. 88, 101 102, 60 S. Ct. 736, 743 744, 84 L. Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. [FN9]

FN8. Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be 'sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. ' See California v. LaRue, 409 U. S. 109, 117 118, 93 S. Ct. 390, 396 397, 34 L. Ed. 2d 342 (1972).

...
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, 354 U. S., at 491 492, 77 S. Ct., at 1312 1313. Cf. Ginsberg v. New York, 390 U. S., at 643, 88 S. Ct., at 1282. [FN10] If the inability to define regulated materials with ultimate, godlike precision altogether removes the power of the States or the Congress to regulate, then 'hard core' pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas'position, see United States v. Thirtyseven Photographs, 402 U. S. 363, 379 380, 91 S. Ct. 1400, 1409 1410, 28 L. Ed. 2d 822 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, 383 U. S. at 476, 491 492, 86 S. Ct., at 950, 974 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, 378 U. S., at 196, 84 S. Ct., at 1682 (Black, J., joined by Douglas, J., concurring); Roth, supra, 354 U. S., at 508 514, 77 S. Ct., at 1321 1324 (Douglas, J., dissenting). In this belief, however, Mr. Justice DOUGLAS now stands alone.

...
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive. ' These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' w o u l d consider certain materials 'prurient, ' it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national 'community standard'would be an exercise in futility.

...
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, 383 U. S., at 508 509, 86 S. Ct., at 963, 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. See Roth v. United States, supra, 354 U. S., at 489, 77 S. Ct., at 1311. Cf. the now discredited test in Regina v. Hicklin, (1868) L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference to ' c o n t e m p o r a r y standards of the State of California' serves this protective purpose and is constitutionally adequate. [FN14]

...
Vacated and remanded.

Mr. Justice DOUGLAS, dissenting. Today we levae open the way for California [FN1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law.

...
Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime whether the old standards or the new ones are used the criminal law becomes a trap. Abrand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law.

My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said: 'The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment. ' Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 707, 88 S. Ct. 1298, 1315, 20 L. Ed. 2d 225.

...
If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishers, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does [FN6] and my views on the issue have been stated over and over again. [FN7] But at least a criminal prosecution brought at that juncture would not violate the timehonored voidforvagueness test. [FN8] ... The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute, ' to induce 'a condition of unrest, 'to 'create dissatisfaction with conditions as they are, ' and even to stir 'people' to anger. '

Terminiello v. Chicago, 337 U. S. 1, 4, 69 S. Ct. 894, 896, 93 L. Ed. 1131. The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. 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. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment. [FN9] As is intimated by the Court's opinion, the 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. By reason of the First Amendment and solely because of it speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive'to some.

93 S. Ct. 2628 37 L. Ed. 2d 446,
1 Media L. Rep. 1454
413 U. S. 49
Table of Cases

See 414 U. S. 881, 94 S. Ct. 27. Suit was brought to enjoin showing of allegedly obscene motion picture films in theater. T h e Supreme Court of Georgia, 228 Ga. 343, 185 S. E. 2d 768, reversed the trial court's denial of injunction. Exhibitors brought certiorari. T h e Supreme Court, Mr. Chief Justice Burger, held that nothing in the Constitution precluded the State of Georgia from regulation of allegedly obscene materials exhibited at 'adult' theater, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, met the First Amendment standards; the Georgia obscenity laws should be reevaluated in the light of the First Amendment standards enumerated by United States Supreme Court decision.

Vacated and remanded. Mr. Justice Douglas dissented and filed an opinion. Mr. Justice Brennan dissented and filed opinion in which Mr. Justice Stewart and Mr. Justice Marshall joined.

On remand, reversed, 231 Ga. 312, 201 S. E. 2d 456.

Syllabus Respondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jurywaived trial, the trial court (which did not require 'expert' affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was 'constitutionally permissible. ' T h e G e o rgia Supreme Court reversed, holding that the films constituted 'hard core' pornography not within the protection of the First Amendment. Held:

1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419; Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. P. 2633.

2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U. S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966; Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649; and Kingsley Books, Inc. v. Brown, 354 U. S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469. Pp. 2633 2634.

3. It was not error to fail to require expert affirmative evidence of the film's obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. Pp. 2634 2635.

4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in

places of public accommodation, including 'adult' theaters. Pp. 2635 2642.

(a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 2635 2638.

(b) Though States are free to adopt a laissezfaire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 2639.

(c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542; Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, distinguished. Nor can the privacy of the home be equated with a 'zone' of 'privacy'that follows a consumer of obscene materials wherever he goes. United States v. Orito, 413 U. S. 139, 93 S. Ct. 2674, 37 L. Ed. 2d 513; United States v. 12 200Foot Reels of Super 8mm., 413 U. S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500. Pp. 2639 2640.

(d) Preventing the unlimited display of obscene material is not thought control. Pp. 2640 2641.

(e) Not all conduct directly involving 'consenting adults'only has a claim to constitutional protection. Pp. 2640 2642.

5. The Georgia obscenity laws involved herein should now be reevaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419. P. 2642.

Mr. Chief Justice BURGER delivered the opinion of the Court.

Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the style of 'adult' theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. s 26 2101. [FN1] The two films in question, 'Magic Mirror' and 'It All Comes Out in the End, 'depict sexual conduct characterized by the Georgia Supreme Court as 'hard core pornography'leaving 'little to the imagination. '

...
The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted as as they did scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed respondents'complaints. He assumed 'that obscenity is established, 'but stated: 'It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible. '

On appeal, the Georgia Supreme Court unanimously reversed. 228 Ga. 343, 185 S. E. 2d 768. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U. S. 351, 91 S. Ct. 1410, 28 L. Ed. 2d 813 (1971), the Georgia court stated that 'the sale and delivery of obscene material to willing adults is not protected under the first amendment. 'The Georgia court also held Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), to be inapposite since it did not deal with 'the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films. ' 228 Ga. 343, 345, 185 S. E. 2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating: 'The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined since their exhibition is not protected by the first amendment. ' Id., at 347, 185 S. E. 2d, at 770.

It should be clear from the outset that we do not undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, 413 U. S. 15, at 23 25, 93 S. Ct. 2607, at 2614 2615, 37 L. Ed. 2d 419; Kois v. Wisconsin, 408 U. S. 229, 230, 92 S. Ct. 2245, 2246, 33 L. Ed. 2d 312 (1972); United States v. Reidel, supra, 402 U. S., at 354, 91 S. Ct., at 1411; 354 U. S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498 (1957).

...
We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, supra, 413 U. S., at 18 20, 93 S. Ct., at 2612 2613; Stanley v. Georgia, 394 U. S., at 567, 89 S. Ct., at 1249; Redrup v. New York, 386 U. S. 767, 769, 87 S. Ct. 1414, 1415, 18 L. Ed. 2d 515 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a longrecognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. ThirtySeven Photographs, supra, 402 U. S., at 376 377, 91 S. Ct., at 1408 1409 (opinion of White, J.); United States v. Reidel, 402 U. S., at 354 356, 91 S. Ct., at 1411 1413. Cf. United States v. ThirtySeven Photographs, supra, 402 U. S., at 378, 91 S. Ct., at 1409 (Stewart, J., concurring). 'In an unbroken series of cases extending over a long stretch of this Court's history it has been accepted as a postulate that 'the primay requirements of decency may be enforced against obscene publications. ' (Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716, 51 S. Ct. 625, 631, 15 L. Ed. 1357 (1931)). 'Kingsley Books, Inc. v. Brown, supra, 354 U. S., at 440, 77 S. Ct., at 1327.

[8] In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. [FN7] Rights and interests 'other than those of the advocates are involved. 'Breard v. Alexandria, 341 U. S. 622, 642, 71 S. Ct. 920, 932, 95 L. Ed. 1233 (1951). 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. The HillLink Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. [FN8] Quite apart from sex crimes, however, there remains one problem of l a rge proportions aptly described by Professor Bickel:

...
FN8. The Report of the Commission on Obscenity and Pornography 390 412 (1970). For a discussion of earlier studies indicating 'a division of thought (among behavioral scientists) on the correlation between obscenity and socially deleterious behavior', Memoirs v. Massachusetts, supra, 383 U. S., at 451, 86 S. Ct., at 993, and references to expert opinions that obscene material may induce crime and antisocial conduct, see id., at 451 453, 86 S. Ct., at 993 995 (Clark, J., dissenting). As Mr. Justice Clark emphasized: 'While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. G e o rge W. Henry of Cornell University has expressed the opinion that obscenity, with its exag gerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community. 'Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justify these controls by reference to evidence that antisocial behavior may result in part from reading obscenity. ' Id., at 452 453, 86 S. Ct., at 994 995 (footnotes omitted).

...
As Mr. Chief Justice Warren stated, there is a 'right of the Nation and of the States to maintain a decent society . . ., ' Jacobellis v. Ohio, 378 U. S. 184, 199, 84 S. Ct. 1676, 1684, 12 L. Ed. 2d 793 (1964) (dissenting opinion).

...
But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, and kind of state regulation is 'impermissible. ' We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. [FN11] Mr. Justice Brennan, speaking for the Court in Ginsberg v. New York, 390 U. S. 629, 642 643, 88 S. Ct. 1274, 1282, 20 L. Ed. 2d 195 (1968), said: 'We do not demand of legislatures 'scientifically certain criteria of legislation. ' Noble State Bank v. Haskell, 219 U. S. 104, 110 (31 S. Ct. 186, 187) 55 L. Ed. 112. '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. ' Roth v. United States, 354 U. S., at 485, 77 S. Ct., at 1309, quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942) (emphasis added in Roth). [FN12]

...
It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners' customers. Even assuming that petitioners have vicarious standing to assert potential customers'rights, it is unavailing to compare a theater, open to the public for a fee, with the private home of Stanley v. Georgia, 394 U. S., at 568, 89 S. Ct., at 1249, and the marital bedroom of Griswold v. Connecticut, supra, 381 U. S., at 485 486, 85 S. Ct., at 1682 1683. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motionpicture house are 'private'for the purpose of civil rights litigation and civil rights statutes....

If obscene material unprotected by the First Amendment in itself carried with it a 'penumbra' of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the 'privacy of the home, 'which was hardly more than a reaffirmation that 'a man's home is his castle. 'Cf. Stanley v. Georgia, supra, 394 U. S., at 564, 89 S. Ct., at 1247. [FN13] Moreover, we have declined to equate the privacy of the home relied on in Stanley with a 'zone' of 'privacy' that follows a distributor or a consumer of obscene materials whatever he goes. See United States v. Orito, 413 U. S. 139, at 141 143, 93 S. Ct. 2674, at 2676 2678, 37 L. Ed. 2d 513; United States v. Twelve 200Foot Reels of Super 8mm. Film, 413 U. S. 123, at 126 129, 93 S. Ct. 2665, at 2667 2669, 37 L. Ed. 2d 500; United States v. ThirtySeven Photographs, 402 U. S., at 376 377, 91 S. Ct., at 1408 1409 (opinion of White, J.); United States v. Reidel, supra, 402 U. S., at 355, 91 S. Ct., at 1412. The idea of a 'privacy'right and a place of public accommodation are, in this context, mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a 'live'theater stage, any more than a 'live'performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.

...
It is also argued that the State has no legitimate interest in 'control (of) the moral content of a person's thoughts, 'Stanley v. Georgia, supra, 394 U. S., at 565, 89 S. Ct., at 1248 and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, supra, 413 U. S., at 24, 34, 93 S. Ct., at 2615, 2620, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U. S. 229, 92 S. Ct. 2245, 33 L. Ed. 2d 312 (1972); Roth v. United States, supra, 354 U. S., at 485 487, 77 S. Ct., at 1309 1310; Thornhill v. Alabama, 310 U. S. 88, 101 102, 60 S. Ct. 736, 743 744, 84 L. Ed. 1093 (1940); Finnis, 'Reason and Passion': The Constitutional Dialectic of Free Speech and Obscenity, 116 U. Pa. L. Rev. 222, 229 230, 241 243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other 'areas or zones' of constitutionally protected privacy, the mere fact that, as a consequence, some human 'utterances'or 'thoughts'may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, 354 U. S., at 483, 485 487, 77 S. Ct., at 1308, 1309 1310; Beauharnais v. Illinois, 343 U. S., at 256 257, 72 S. Ct., at 730 731. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution. Cf. United States v. Reidel, supra, 402 U. S., at 359 360, 91 S. Ct., at 1414 (Harlan, J., concurring).

Finally, petitioners argue 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, [FN14] is a step we are unable to take. [FN15] 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, or to jeopardize in Mr. Chief Justice Warren's words, the States' 'right . . . to maintain a decent society. ' Jacobellis v. Ohio, 378 U. S., at 199, 84 S. Ct., at 1684 (dissenting opinion).

...
[27][ 28] To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, 413 U. S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. ThirtySeven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, supra, 413 U. S., at 141 143, 93 S. Ct., at 2676 2678; United States v. Twelve 200 Foot Reels of Super 8 mm. Film, 413 U. S., at 126 129, 93 S. Ct., at 2668 2669. In this case we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, incloding socalled 'adult'theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, supra, 413 U. S., at 23 25, 93 S. Ct., at 2614 2616. The judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200Foot Reels of Super 8 mm. Film, 413 U. S., at 130 n. 7, 93 S. Ct., at 2670, n. 7.

Vacated and remanded. Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

This case requires the Court to confront once again the vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment, as applied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and culminating in the Court's decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach.

...
Roth rested, in other words, on what has been termed a twolevel approach to the question of obscenity. [FN5] While much criticized, [FN6] that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called 'obscenity' is still a long and painful step from agreement on a workable definition of the term.

...
Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari we have deliberately and eff e c t i v e l y obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.

...
Our experience since Roth requires us not only to abandon the effort to pick out obscene material on a casebycase basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, [FN21] I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort. [FN22]

...
Because we assumed incorrectly, as experience has proved that obscenity could be separated from other sexually oriented expression without significant costs either to the First Amendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing unprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the vagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake. Significantly, in Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515 (1967), where we set aside findings of obscenity with regard to three sets of material, we pointed out that '( i) n none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U. S. 158 (64 S. Ct. 438) 88 L. Ed. 645; cf. Butler v. Michigan, 352 U. S. 380 (77 S. Ct. 524) 1 L. Ed. 2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U. S. 622 (71 S. Ct. 920) 95 L. Ed. 1233; Public Utilities Comm'n v. Pollak, 343 U. S. 451 (72 S. Ct. 813) 96 L. Ed. 1068. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U. S. 463 (86 S. Ct. 942) 16 L. Ed. 2d 31. ' 386 U. S., at 769, 87 S. Ct., at 1415. See Rowan v. U. S. Post Office Dept., 397 U. S. 728, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970); Stanley v. Georgia, 394 U. S., at 567, 89 S. Ct., at 1249. [FN23]

...
In short, while I cannot say that the interests of the State apart from the question of juveniles and unconsenting adults are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. NAACP v. Alabama, 377 U. S. 288, 307, 84 S. Ct. 1302, 1313, 12 L. Ed. 2d 325 (1964); Cantwell v. Connecticut, 310 U. S., at 304, 60 S. Ct., at 903. I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material.

'Obscenity' at most is the expression of offensive ideas. There are regimes in the world where ideas 'offensive' to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion.

I am sure I would find offensive most of the books and movies charged with being obscene. But in a life that has not been short, I have yet to be trapped into seeing or reading something that would offend me. I never read or see the materials coming to the Court under charges of 'obscenity, ' because I have thought the First Amendment made it unconstitutional for me to act as a censor. I see ads in bookstores and neon lights over theaters that resemble bait for those who seek vicarious exhilaration. As a parent or a priest or as a teacher I would have no compunction in edging my children or wards away from the books and movies that did no more than excite man's base instincts. But I never supposed that government was permitted to sit in judgment on one's tastes or beliefs save as they involved action within the reach of the police power of government.

107 S. Ct. 1918 95 L. Ed. 2d 439,
55 USLW 4595,
14 Media L. Rep. 1001
481 U. S. 497
Table of Cases

Defendant was convicted in the 17th Circuit Court, Winnebago County, Robert French, J., of three counts of obscenity, and he appealed. T h e Appellate Court, Hopf, J., 138 Ill. App. 3d 726, 93 Ill. Dec. 249, 486 N. E. 2d 350, affirmed in part, reversed in part, and remanded. The Illinois Supreme Court denied review, and defendant petitioned for certiorari to the United States Supreme Court. In unrelated case, second defendant was convicted of sale of allegedly obscene magazine by the 17th Circuit Court, Winnebago County, and he appealed. The Appellate Court, 138 Ill. App. 3d 595, 93 Ill. Dec. 244, 486 N. E. 2d 345, affirmed. The Illinois Supreme Court denied review, and second defendant petitioned for certiorari. Granting petitions and consolidating cases, the Supreme Court, Justice White, held that: (1) proper inquiry, in deciding whether allegedly obscene materials had any "literary, artistic, political or scientific value," was not whether ordinary member of any given community would find serious literary, artistic, political or scientific value in material, but whether reasonable person would find such value, taking material as whole, and (2) harmless error inquiry was appropriate, to determine whether defendants were entitled to new trial.

Vacated and remanded. Justice Scalia, concurred and filed opinion. Justice Blackmun concurred in part and dissented in part and filed opinion. Justice Brennan dissented and filed opinion. Justice Stevens dissented and filed opinion, in which Justice Marshall joined, and in which Justice Blackmun and Justice Brennan joined in part.

Opinion on remand, 162 Ill. App. 3d 299, 113 Ill. Dec. 547, 515 N. E. 2d 356.

Justice WHITE delivered the opinion of the Court.

In Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Court set out a tripartite test for judging whether material is obscene. The third prong of the Miller test requires the trier of fact to determine "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24, 93 S. Ct., at 2614. The issue in this case is whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question.

...
In Miller itself, the Court was careful to point out that "[ t] he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent." 413 U. S., at 34, 93 S. Ct., at 2620. Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. [FN3] The instruction at issue in this case was therefore unconstitutional.

...
It is so ordered.

Justice SCALIA, concurring.

...
I join the Court's opinion with regard to an "objective" or "reasonable person" test of "serious literary, artistic, political, or scientific value," Miller v. California, 413 U. S. 15, 24, 93 S. Ct. 2607, 2614, 37 L. Ed. 2d 419 (1973), because I think that the most faithful assessment of what Miller intended, and because we have not been asked to reconsider Miller in the present case. I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled "reasonable man" is of little help in the inquiry, and would have to be replaced with, perhaps, the "man of tolerably good taste" a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decisionmaking is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide "What is Beauty" is a novelty even by today's standards.

The approach proposed by Part II of Justice STEVENS'dissent does not eliminate this difficulty, but arguably aggravates it. It is a refined enough judgment to estimate whether a reasonable person would find literary or artistic value in a particular publication; it carries refinement to the point of meaninglessness to ask whether he could do so. Taste being, as I have said, unpredictable, the answer to the question must always be "yes" so that there is little practical difference between that proposal and Part III of Justice STEVENS'dissent, which asserts more forthrightly that "government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors, or obtrusive display to unconsenting adults." Post, at 1927 (footnote omitted).

All of today's opinions, I suggest, display the need for reexamination of Miller.

...

Justice BRENNAN, dissenting. Justice STEVENS persuasively demonstrates the unconstitutionality of criminalizing the possession or sale of "obscene" materials to consenting adults. I write separately only to reiterate my view that any regulation of such material with respect to consenting adults suffers from the defect that "the concept of 'obscenity'cannot be defined with suffi cient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms." Paris Adult Theatre I v. Slaton, 413 U. S. 49, 103, 93 S. Ct. 2628, 2657, 37 L. Ed. 2d 446 (1973) (BRENNAN, J., dissenting). I therefore join all but footnote 11 of Justice STEVENS' dissent. Justice STEVENS, with whom Justice MARSHALLjoins, with whom Justice BRENNAN joins except as to footnote 11, and with whom Justice BLACKMUN joins as to Part I, dissenting. The Court correctly holds that the juries that convicted petitioners were given erroneous instructions on one of the three essential elements of an obscenity conviction. Nevertheless, I disagree with its disposition of the case for three separate reasons: (1) the error in the instructions was not harmless; (2) the Court's attempt to clarify the constitutional definition of obscenity is not faithful to the First Amendment; and (3) I do not believe Illinois may criminalize the sale of magazines to consenting adults who enjoy the constitutional right to read and possess them.

...
In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value. Over 40 years ago, the Court recognized that "Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another.... From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values." Hannegan v. Esquire, Inc., 327 U. S. 146, 157158 [66 S. Ct. 456, 461, 90 L. Ed. 586] (1946). The purpose of the third element of the Miller test is to ensure that the obscenity laws not be allowed to " 'level' the available reading matter to the majority or lowest common denominator of the population.... It is obvious that neither Ulysses nor Lady Chatterley's Lover would have literary appeal to the majority of the population." F. Schauer, The Law of Obscenity 144 (1976). Ajuror asked to create "a reasonable person" in order to apply the standard that the Court announces today might well believe that the majority of the population who find no value in such a book are more reasonable than the minority who do find value. [FN5] First Amendment protection surely must not be contingent on this type of subjective determination.

...
As was the case in Smith, "I do not know whether the ugly pictures in this record have any beneficial value." 431 U. S., at 319, 97 S. Ct., at 1773 (STEVENS, J., dissenting). I do know though: "The fact that there is a large demand for comparable materials indicates that they do provide amusement or information, or at least satisfy the curiosity of interested persons. Moreover, there are serious wellintentioned people who are persuaded that they serve a worthwhile purpose. Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct. Moreover, the baneful effects of these materials are disturbingly reminiscent of arguments formerly made about what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from that which is ugly or worthless." Id., at 320321, 97 S. Ct., at 17731774 (footnotes omitted).

I respectfully dissent.

758 P. 2d 1128,
250 Cal. Rptr. 598,
57 USLW 2162,
15 Media L. Rep. 2072
(Cite as: 46 Cal. 3d 419)
Table of Cases

A filmmaker was convicted on five counts of pandering (Pen. Code, s 266i). He hired and paid numerous adult actors (including five actresses) to perform lawful sexual acts in a motion picture he produced and directed at a private residence. No violation of the obscenity laws (Pen. Code, s 311 et seq.) was charged. (Superior Court of Los Angeles County, No. A 805936, James A. Albracht, Judge.) The Court of Appeal, Second Dist., Div. Four, No. B015697, affirmed. The Supreme Court reversed the judgment of the Court of Appeal, holding the pandering statute (Pen. Code, s 266i) was not intended to and did not apply to the conduct involved in the payment of wages to actresses performing lawful sexual acts in the making of a motion picture that was not determined to be obscene. The court also held the prosecution of a filmmaker under s 266i for pandering for hiring actors to perform in the production of a motion picture not adjudged obscene impinged unconstitutionally on U. S. Const., 1st Amend., val ues. (Opinion by Kaufman, J., with Mosk, Broussard, Panelli, JJ., and Kline (J. Anthony), J., [FN*] concurring. Lucas, C. J., and Eagleson, J., concurred in the judgment.)

KAUFMAN, J. Defendant Harold Freeman hired and paid actors to perform in a nonobscene commercial film which portrayed sexually explicit acts. On that account he was charged with and convicted of five counts of pandering procurement of persons 'for the purpose of prostitution' under Penal Code section 266i. He appealed contending his conduct did not constitute the crime of pandering. The Court of Appeal affirmed the judgment of conviction. This court granted review because of First Amendment concerns and the statewide significance of the issues. Because of the language of the statutes involved and because construction of the pandering statute to make it applicable to the hiring and payment of actors to perform in a nonobscene motion picture would unlawfully impinge upon protected First Amendment rights, we are compelled to conclude the pandering statute was not intended to and does not apply to the conduct here involved and that defendant's convictions of pandering must be reversed. I. Facts Defendant Freeman is the president of Hollywood Video Production Company (Hollywood Video), which is in the business of producing and marketing 'adult' films. In September 1983 defendant produced and directed a film called 'Caught from Behind, Part II. ' Defendant hired actors and actresses to perform in the film. As part of their roles, the performers engaged in various sexually explicit acts, including sexual intercourse, oral copulation and sodomy. All the filming was done in the private residence of Nancy Conger, and was not open to the public. Conger was paid for the use of her home in the making of the film. She also asked if she could act in the film. Defendant agreed Conger could be in the film. With the exception of Nancy Conger, all the actors and actresses in the film were cast through the World Modeling Agency operated by Jim South. Defendant paid each actor for his or her performance in the film, and paid an additional fee to South for each performer from World Modeling Agency who had been cast for a role in the film. Defendant was charged with five counts of pandering (Pen. Code, s 266i) based on the hiring of five actresses who performed sex acts in the film. Defendant was not charged with any violation of the obscenity laws (Pen. Code, s 311 et seq.) in connection with production or distribution of the film and there was no determination the film was obscene.

After a jury trial, defendant was found guilty on all five counts. Defendant was placed on five years probation and ordered as conditions of probation to serve 90 days in the county jail and pay restitution of $10,000 under Penal Code section 1203.04 and a $100 restitution fine under Government Code section 13967, subdivision (a).

II. Discussion The issues and contentions in this case and their resolution are pervaded by a central fact. The film was not determined to be obscene and for purposes of this review must be deemed to be not obscene. Thus the prosecution of defendant under the pandering statute must be viewed as a somewhat transparent attempt at an 'end run' around the First Amendment and the state obscenity laws. Landmark decisions of this court and the United States Supreme Court compel us to reject such an effort.

A. The Statutory Language The pandering statute under which defendant was convicted provides in pertinent part: 'Any person who: (a) procures another person for the purpose of prostitution ... is guilty of pandering, a felony .... '

' P r o s t i t u t i o n ' is not defined in section 266i. Rather, the definition of 'prostitution'derives from section 647, subdivision (b): ''[ P] rostitution' includes any lewd act between persons for money or other consideration. '( Italics added.) (1a) The People argue that the actors and actresses in the film engaged in acts of prostitution i. e., sexual acts for money because they performed the acts before the movie cameras 'for the money they received. ' Thus, the People argue, defendant was guilty of procuring the actors 'for the purpose of prostitution. ' The People's syllogism is flawed in significant regards. First, the definition of 'prostitution' (and ultimately, therefore, the definition of 'pandering') depends on the definition of a 'lewd act. 'In Pryor v. Municipal Court (1979) 25 Cal. 3d 238 [158 Cal. Rptr. 330, 599 P. 2d 636] this court construed the term 'lewd conduct'for purposes of prosecution under section 647, subdivision (a), proscribing lewd or dissolute conduct in a public place, a provision related to the prohibition against prostitution contained in section 647, subdivision (b). In Pryor we held that a 'lewd act' requires 'touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense .... '( Italics added. Id., at p. 256.) The definition of a 'lewd act' for purposes of section 647, subdivision (b) evolved from Pryor and was applied to 'prostitution' in People v. Hill (1980) 103 Cal. App. 3d 525, at pages 534535 [163 Cal. Rptr. 99] as follows: '[ F] or a 'lewd' or 'dissolute' act to constitute 'prostitution, '