APPEAL FROM THE SUPREME COURT OF OHIO
No. 11 Argued: March 26, 1963 --- Decided: June 22, 1964
MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE GOLDBERG joins.
Appellant, Nico Jacobellis, manager of a motion picture theater in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene film in [p186] violation of Ohio Revised Code (1963 Supp.), § 2905.34. [n1] He was fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid. His conviction, by a court of three judges upon waiver of trial by jury, was affirmed by an intermediate appellate court, 115 Ohio App. 226, 175 N.E.2d 123, and by the Supreme Court of Ohio, 173 Ohio St. 22, 179 N.E.2d 777. We noted probable jurisdiction of the appeal, 371 U.S. 808, and subsequently restored the case to the calendar for reargument, 373 U.S. 901. The dispositive question is whether the state courts properly found that the motion picture involved, a French film called "Les Amants" ("The Lovers"), was obscene, and [p187] hence not entitled to the protection for free expression that is guaranteed by the First and Fourteenth Amendments. We conclude that the film is not obscene, and that the judgment must accordingly be reversed.
Motion pictures are within the ambit of the constitutional guarantees of freedom of speech and of the press. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495. But in Roth v. United States and Alberts v. California, 354 U.S. 476, we held that obscenity is not subject to those guarantees. Application of an obscenity law to suppress a motion picture thus requires ascertainment of the "dim and uncertain line" that often separates obscenity from constitutionally protected expression. Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 66; see Speiser v. Randall, 357 U.S. 513, 525. [n2] It has been suggested that this is a task in which our Court need not involve itself. We are told that the determination whether a particular motion picture, book, or other work of expression is obscene can be treated as a purely factual judgment on which a jury's verdict is all but conclusive, or that, in any event, the decision can be left essentially to state and lower federal courts, with this Court exercising only a limited review such as that needed to determine whether the ruling below is supported by "sufficient evidence." The suggestion is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial [p188] supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. Since it is only "obscenity" that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law. See Roth v. United States, supra, 354 U.S. at 497-498 (separate opinion). Such an issue, we think, must ultimately be decided by this Court. Our duty admits of no "substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case." Id. at 498; see Manual Enterprises, Inc., v. Day, 370 U.S. 478, 488 (opinion of HARLAN, J.). [n3] [p189]
In other areas involving constitutional rights under the Due Process Clause, the Court has consistently recognized its duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case. E.g., Watts v. Indiana, 338 U.S. 49, 51; Norris v. Alabama, 294 U.S. 587, 590. [n4] And this has been particularly true where rights have been asserted under the First Amendment guarantees of free expression. Thus, in Pennekamp v. Florida, 328 U.S. 331, 335, the Court stated:
The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. [n5]
We cannot understand why the Court's duty should be any different in the present case, where Jacobellis has [p190] been subjected to a criminal conviction for disseminating a work of expression and is challenging that conviction as a deprivation of rights guaranteed by the First and Fourteenth Amendments. Nor can we understand why the Court's performance of its constitutional and judicial function in this sort of case should be denigrated by such epithets as "censor" or "super-censor." In judging alleged obscenity, the Court is no more "censoring" expression than it has in other cases "censored" criticism of judges and public officials, advocacy of governmental overthrow, or speech alleged to constitute a breach of the peace. Use of an opprobrious label can neither obscure nor impugn the Court's performance of its obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments, and, in doing so, to delineate the scope of constitutionally protected speech. Hence, we reaffirm the principle that, in "obscenity" cases, as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected. [n6] [p191]
The question of the proper standard for making this determination has been the subject of much discussion and controversy since our decision in Roth seven years ago. Recognizing that the test for obscenity enunciated there --
whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,
354 U.S. at 489 -- is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is "utterly without redeeming social importance," and that
the portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.
Id. at 484, 487. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. [n7] Nor may the constitutional status of the material be made to turn on a "weighing" of its social importance against its prurient appeal, for a work cannot be proscribed unless it is "utterly" without social importance. See Zeitlin v. Arnebergh, 59 Cal.2d 901, 920, 383 P.2d 152, 165, 31 Cal.Rptr. 800, 813 (1963). It should also be recognized that the Roth standard requires, in the first instance, a finding that the material "goes substantially beyond customary limits of candor in description or representation of such matters." This was a requirement of the Model Penal Code test that we approved in Roth, 354 U.S. at 487, n. 20, and it is explicitly reaffirmed in the more recent [p192] Proposed Official Draft of the Code. [n8] In the absence of such a deviation from society's standards of decency, we do not see how any official inquiry into the allegedly prurient appeal of a work of expression can be squared with the guarantees of the First and Fourteenth Amendments. See Manual Enterprises, Inc., v. Day, 370 U.S. 478, 482-488 (opinion of HARLAN, J.).
It has been suggested that the "contemporary community standards" aspect of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth. The concept of "contemporary community standards" was first expressed by Judge Learned Hand in United States v. Kennerley, 209 F. 119, 121 (D.C.S.D.N.Y.1913), where he said:
Yet, if the time is not yet when men think innocent all that which is honestly germane to a pure subject, however little it may mince its words, still I scarcely think that they would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its members. If there be no abstract definition, such as I have suggested, should not the word "obscene" be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the [p193] necessities of the lowest and least capable seems a fatal policy.
Nor is it an objection, I think, that such an interpretation gives to the words of the statute a varying meaning from time to time. Such words as these do not embalm the precise morals of an age or place; while they presuppose that some things will always be shocking to the public taste, the vague subject matter is left to the gradual development of general notions about what is decent. . . .
(Italics added.) It seems clear that, in this passage, Judge Hand was referring not to state and local "communities," but rather to "the community" in the sense of "society at large; . . . the public, or people in general." [n9] Thus, he recognized that, under his standard, the concept of obscenity would have "a varying meaning from time to time" -- not from county to county, or town to town.
We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution. MR. JUSTICE HARLAN pointed out in Manual Enterprises, Inc., v. Day, supra, 370 U.S. at 488, that a standard based on a particular local community would have
the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U.S. 380.
It is true that Manual Enterprises dealt with the federal statute banning obscenity from the mails. But the mails are not the only means by which works of expression cross local community lines in this country. It can hardly be assumed that all the patrons of a particular library, bookstand, or motion picture theater are residents of the [p194] smallest local "community" that can be drawn around that establishment. Furthermore, to sustain the suppression of a particular book or film in one locality would deter its dissemination in other localities where it might be held not obscene, since sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places. It would be a hardy person who would sell a book or exhibit a film anywhere in the land after this Court had sustained the judgment of one "community" holding it to be outside the constitutional protection. The result would thus be "to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly." Smith v. California, 361 U.S. 147, 154.
It is true that local communities throughout the land are, in fact, diverse, and that, in cases such as this one, the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation [p195] would vary with state lines," Pennekamp v. Florida, supra, 328 U.S. at 335; we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. [n10] It is, after all, a national Constitution we are expounding.
We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination. [n11] Since the present conviction is based upon exhibition of the film to the public at large, and not upon its exhibition to children, the judgment must be reviewed under the strict standard applicable in determining the scope of the expression that is protected by the Constitution.
We have applied that standard to the motion picture in question. "The Lovers" involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologist with whom she has [p196] suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State's objections are based almost entirely upon that scene. The film was favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced. It was shown in approximately 100 of the larger cities in the United States, including Columbus and Toledo, Ohio. We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.
MR. JUSTICE WHITE concurs in the judgment.
Selling, exhibiting, and possessing obscene literature or drugs, for criminal purposes.
No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, motion picture film, or book, pamphlet, paper, magazine not wholly obscene but containing lewd or lascivious articles, advertisements, photographs, or drawing, representation, figure, image, cast, instrument, or article of an indecent or immoral nature, or a drug, medicine, article, or thing intended for the prevention of conception or for causing an abortion, or advertise any of them for sale, or write, print, or cause to be written or printed a card, book, pamphlet, advertisement, or notice giving information when, where, how, of whom, or by what means any of such articles or things can be purchased or obtained, or manufacture, draw, print, or make such articles or things, or sell, give away, or show to a minor, a book, pamphlet, magazine, newspaper, story paper, or other paper devoted to the publication, or principally made up, of criminal news, police reports, or accounts of criminal deeds, or pictures and stories of immoral deeds, lust, or crime, or exhibit upon a street or highway or in a place which may be within the view of a minor, any of such books, papers, magazines, or pictures.
Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.
2. It is too late in the day to argue that the location of the line is different, and the task of ascertaining it easier, when a state, rather than a federal, obscenity law is involved. The view that the constitutional guarantees of free expression do not apply as fully to the States as they do to the Federal Government was rejected in Roth-Alberts, supra, where the Court's single opinion applied the same standards to both a state and a federal conviction. Cf. Ker v. California, 374 U.S. 23, 33; Malloy v. Hogan, ante, pp. 1, 10-11.
3. See Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 708 (separate opinion):
It is sometimes said that this Court should shun considering the particularities of individual cases in this difficult field lest the Court become a final "board of censorship." But I cannot understand why it should be thought that the process of constitutional judgment in this realm somehow stands apart from that involved in other fields, particularly those presenting questions of due process. . . .
See also Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 116 (1960):
This obligation -- to reach an independent judgment in applying constitutional standards and criteria to constitutional issues that may be cast by lower courts "in the form of determinations of fact" -- appears fully applicable to findings of obscenity by juries, trial courts, and administrative agencies. The Supreme Court is subject to that obligation, as is every court before which the constitutional issue is raised.
And see id. at 119:
It may be true . . . that judges "possess no special expertise" qualifying them "to supervise the private morals of the Nation" or to decide "what movies are good or bad for local communities." But they do have a far keener understanding of the importance of free expression than do most government administrators or jurors, and they have had considerable experience in making value judgments of the type required by the constitutional standards for obscenity. If freedom is to be preserved, neither government censorship experts nor juries can be left to make the final effective decisions restraining free expression. Their decisions must be subject to effective, independent review, and we know of no group better qualified for that review than the appellate judges of this country under the guidance of the Supreme Court.
4. See also Fiske v. Kansas, 274 U.S. 380, 385-386; Haynes v. Washington, 373 U.S. 503, 515-516; Chambers v. Florida, 309 U.S. 227, 229; Hooven & Allison v. Evatt, 324 U.S. 652, 659; Lisenba v. California, 314 U.S. 219, 237-238; Ashcraft v. Tennessee, 322 U.S. 143, 147-148; Napue v. Illinois, 360 U.S. 264, 271.
5. See also Niemotko v. Maryland, 340 U.S. 268, 271; Craig v. Harney, 331 U.S. 367, 373-374; Bridges v. California, 314 U.S. 252, 271; Edwards v. South Carolina, 372 U.S. 229, 235; New York Times Co. v. Sullivan, 376 U.S. 254, 285.
6. This is precisely what the Court did in Times Film Corp. v. City of Chicago, 355 U.S. 35; One, Inc., v. Olesen, 355 U.S. 371, and Sunshine Book Co. v. Summerfield, 355 U.S. 372. The obligation has been recognized by state courts as well. See, e.g., State v. Hudson County News Co., 41 N.J. 247, 256-257, 196 A.2d 225, 230 (1963); Zeitlin v. Arnebergh, 59 Cal.2d 901, 909-911, 383 P.2d 152, 157-158, 31 Cal.Rptr. 800, 805-806 (1963); People v. Richmond County News, Inc., 9 N.Y.2d 578, 580-581, 175 N.E.2d 681, 681-682, 216 N.Y.S.2d 369, 370 (1961). See also American Law Institute, Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4(4).
Nor do we think our duty of constitutional adjudication in this area can properly be relaxed by reliance on a "sufficient evidence" standard of review. Even in judicial review of administrative agency determinations, questions of "constitutional fact" have been held to require de novo review. Ng Fung Ho v. White, 259 U.S. 276, 284-285; Crowell v. Benson, 285 U.S. 22, 54-65.
7. See, e g., Attorney General v. Book Named "Tropic of Cancer," 345 Mass. 11, 184 N.E.2d 328 (Mass.1962); Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.2d 152, 31 Cal.Rptr. 800 (1963).
8. American Law Institute, Model Penal Code, Proposed Official Draft (May 4, 1962), § 251.4(1):
Material is obscene if, considered as a whole, its predominant appeal is to prurient interest . . . and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters.
9. Webster's New International Dictionary (2d ed.1949), at 542.
10. See State v. Hudson County News Co., 41 N.J. 247, 266, 196 A.2d 225, 235 (1963). Lockhart and McClure, note 3, supra, 45 Minn.L.Rev. at 108; American Law Institute, Model Penal Code, Tentative Draft No. 6 (May 6, 1957), at 45; Proposed Official Draft (May 4, 1962), § 251.4(4)(d).
11. See State v. Settle, 90 R.I. 195, 156 A.2d 921 (1959).