Stanley v. State, 224 Ga. 259, 161 S.E.2d 309 (1968); probable jurisdiction noted, 393U.S. 819(1968).
Holding
The First Amendment, as applied to the States under the Due Process Clause of the Fourteenth Amendment, prohibits making mere private possession of obscene material a crime. Supreme Court of Georgia reversed.
The home of Robert Eli Stanley, a suspected bookmaker, was searched by police with a federal warrant to seize betting paraphernalia. As they found none, they instead seized three reels of pornographic material from a desk drawer in an upstairs bedroom, and later charged Stanley with the possession of obscene materials, a crime under Georgia law. The conviction was upheld by the Supreme Court of Georgia.
In the Supreme Court of the United States, Justice Thurgood Marshall wrote the unanimous opinion that overturned the earlier decision and invalidated all state laws that forbade the private possession of materials judged obscene on the grounds of the First and Fourteenth amendments to the United States Constitution.[2][3] Justices Potter Stewart, William J. Brennan, and Byron White contributed a joint concurring opinion with a separate opinion having to do with the Fourth Amendment search and seizure provision. Justice Hugo Black also concurred expressing the view that all obscenity laws were unconstitutional.
The case also established an implied right to pornography, but not an absolute right, since in Osborne v. Ohio (1990), the Supreme Court upheld a law which criminalized the possession of child pornography.
Legal Background
Prior to the Stanley case, the prevailing precedent was that of Roth v. United States, where obscene material was determined to be unprotected by the First Amendment right to speech. In Roth, the defendant sent lewd advertisements by mail and sold American Aphrodite, a magazine containing erotica and pornography content.[4] A California court convicted him under state law, and when Roth appealed the decision, the Supreme Court upheld the conviction. In the majority decision, written by Justice Brennan, a new test was created for determining what can be considered obscene (the Hicklin test was used since a ruling in 1857, which the Court abandoned in Roth). By 1960, the sexual revolution was in full swing in the United States, and newly defined social norms clashed with the established statutory and common law of the country.[citation needed] Since the ruling in Roth in 1957, many cases in state and federal courts were determined using the case as primary justification.
Facts
Robert Eli Stanley a resident from Atlanta, Georgia was a suspected bookmaker.[5][6] A warrant was granted to search his home. The searching officials did not find evidence of bookmaking, but instead discovered three reels of eight-millimeter film. They watched the films using a projector that they found in Stanley's home, and upon discovering that the films were pornographic, they seized the films as evidence and arrested Robert Stanley for possession of obscene matter, which was illegal by Georgia statute. Stanley was tried and convicted of possession of obscene material. Stanley appealed to the Supreme Court of Georgia, in which the court affirmed the decision of the lower court.[7][8][9]
Ruling
The majority opinion was written by Justice Thurgood Marshall, joined by Chief Justice Warren, Justice Douglas, Justice Harlan, and Justice Fortas. In a unanimous ruling, the court reversed the decision of Supreme Court of Georgia and held that "the mere private possession of the obscene matter cannot be constitutionally be made a crime".[8][10]
Although the defendant presented multiple arguments in his defense, the Court was able to reverse Georgia's decision using just one of them. A distinction was drawn by the Court between public display and private possession of obscenity. Neither Roth nor any other case at the time set a precedent for private possession of obscenity. The Court thus decided to set precedent on this issue in this case. Roth dealt with the mailing and advertising of obscenity. A companion case, Alberts v. California, involved the advertising and sale of obscene materials. All earlier cases were decided with the negative externality of obscenity in mind. They reasoned that members of the public, especially impressionable children, should have a valid expectation to not be inadvertently exposed to obscenity. Public display of obscenity was deemed an "important interest" in Roth. Private possession was not as interesting in the eyes of the Court.
Justice Marshall, wrote in his majority opinion that "If the first amendment means anything...it means that a State has no business telling a man, sitting in his own house, what books he may read, what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."[11]
The First Amendment to the U.S. Constitution protects freedom of speech. In Winters v. New York, a notion was established that freedom of speech extended to what an individual possesses and chooses to read. "The Constitution protects the right to receive information and ideas, regardless of their social worth".[6] For this reason, the Court dismissed Georgia's argument that drew a line between communication of ideas and "mere entertainment". Marshall noted that such a line could not be objectively drawn.
The Court argued that the Georgia decision encroached on Stanley's pursuit of happiness. Stanley should have a right to define his own spiritual nature. An individual's First Amendment rights must always be protected, unless there is cause to believe that a certain type of expression may cause significant public harm.[12]
The Court dismissed Georgia in claiming that possession of obscenity necessarily led to "deviant sexual behavior" and "crimes of sexual violence",[6] as there was little empirical evidence supporting the claim. The Court reasoned that primary crime deterrents should be education and punitive measures for violation of the law. Punishment for an act solely as a preventative measure to ensure that another law would not be violated was discouraged. Georgia also claimed that the possession of obscenity was indistinguishable from its distribution. They claimed that it would be impossible to effectively control distribution if possession was permissible. The Court did not agree with the validity of this claim, and further asserted that an individual's First Amendment rights were more important in this case.
By the First Amendment, as applied to the states by the Fourteenth, private possession of obscenity was decided to be legal. The Court noted that this does not affect or change Roth or other cases that deal with public obscenity.
The Warren Court fashioned the right of privacy that is not explicitly said by the constitution. The court established a comprehensive right of the citizens to be let alone by the government.[13]
"There was also another issue with the Constitutionality of the case, which was not addressed in the majority decision. The films were seized in violation of the Fourth Amendment as applied to the states by the Fourteenth. The Fourth Amendment prohibits the issuance of general warrants to search a person's home. A warrant can only be issued by a judge when there is probable cause. The particular items to be found must be enumerated on the warrant. The search warrant issued was for the seizure of materials in Stanley's home relating to bookmaking. There was no mention of obscene films on the warrant, and so the seizure of the films as evidence was unconstitutional.
General searches and seizures were made unconstitutional because of the prevailing policy during colonial rule of colonial courts issuing writs of assistance directing law enforcement officers to search all of a person's belongings to find anything that is incriminating.
The films and their content were not in "plain view". The record showed that the officers had to play the films on a projector to determine that they violated the Georgia obscenity statute. So the films are not admissible as evidence under the plain view doctrine, which requires that the character of the object is "immediately apparent".[14]
A search warrant cannot be used as a "ticket" to enter private property.[15] Once inside, an officer cannot assume the privileges of a general warrant.
For these reasons, the films are inadmissible as evidence. Stanley made a motion to exercise this Fourth Amendment right during his trial, and the motion was unconstitutionally denied. The Georgia Supreme Court also overlooked this Constitutional violation. The conviction must be reversed."
Impact
Stanley v. Georgia limited the power of the government to police the private possession of obscenity. The majority opinion defended the free and unimpeded acquisition of facts and knowledge, regardless of their apparent social value.[6] The Court reasoned that unless the pornography is presented in a way that creates a negative externality on others, especially minors, no individual can be stopped from owning and viewing pornography in private.[16]
1 2 United States Congress and Senate, Committee on the Judiciary (1971). Reform of the Federal Criminal Laws: Hearings, Ninety-second Congress, First Session. United States: U.S. Government Printing Office. p.1491.
↑ Givens, Cherry L. (October 14, 2014). Information Privacy Fundamentals for Librarians and Information Professionals. Rowman and Littlefield Publishers. p.19. ISBN9781442228825.
↑ Paddock, Lisa (April 22, 2011). Supreme Court For Dummies. Wiley Publishing, Inc. ISBN9781118068656.
↑ Seamon, Richard H.; Siegel, Andrew (May 14, 2013). The Supreme Court Sourcebook. Aspen Publishing. ISBN9781454838685.
↑ Hartman R., Gary; Mersky, Roy M.; Tate, Cindy L. (2004). Landmark Supreme Court Cases:The Most Influential Decisions of the Supreme Court of the United States. Facts On File, Inc. p.433. ISBN9781438110363.
Stanley v. Georgia. US Supreme Court. 7 April 1969.
Horton v. California. US Supreme Court. 4 June 1990.
Stein, Marc (March 2006). "The Supreme Court's Sexual Counter-Revolution". OAH Magazine of History. 20 (2: History of Sexuality): 21–25. doi:10.1093/maghis/20.2.21. JSTOR25162029.
Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test.
Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.
Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers, which the state had deemed obscene.
The Hicklin test is a legal test for obscenity established by the English case R. v Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
United States v. Extreme Associates, 431 F.3d 150, is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across state lines. After several years of legal proceedings, the matter ended on March 11, 2009, with a plea agreement by Rob Zicari and Lizzy Borden.
New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not protect the sale or manufacture of child sexual abuse material and that states could outlaw it.
The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. It has been a common expression since at least the 19th century. A similar phrase appears in Arthur Conan Doyle's The Hound of the Baskervilles, in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged in sexual and excretory activity.
Much of the regulation in the adult film industry has been limited to preventing child pornography. To enforce the age of entry restriction, most adult industry production companies are required to have a Custodian of Records that documents and holds records of the ages of all performers.
An anti-pornography movement in the United States has existed since before the 1969 Supreme Court decision of Stanley v. Georgia, which held that people could view whatever they wished in the privacy of their own homes, by establishing an implied "right to privacy" in U.S. law. This led President Lyndon B. Johnson, with the backing of Congress, to appoint a commission to study pornography. The anti-pornography movement seeks to maintain or restore restrictions and to increase or create restrictions on the production, sale or distribution of pornography.
United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.
United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.
Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.
Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.
Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book's content, and thus violated the freedom of the press guaranteed in the First Amendment. Smith v. California continued the Supreme Court precedent of ruling that questions of freedom of expression were protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. It also established that in order for one to be criminally liable for possession of obscene material, there must be proof of one's knowledge of the material. It described that by requiring booksellers to know the contents of all of the books that they sell, this would lead to the government compelling booksellers to self-censor thereby restricting the public's access to books which the State could not constitutionally suppress directly.
United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech or expression under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and state laws on obscenity differ. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.
Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), was a Supreme Court case that addressed issues of obscenity, free speech, and due process. The case stemmed from the confiscation and destruction of books from a New York City bookstore. The court's determination was that:
A state injunction against distribution of material designated as "obscene" does not violate freedom of speech and press protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Heller v. New York, 413 U.S. 483 (1973), was a United States Supreme Court decision which upheld that states could make laws limiting the distribution of obscene material, provided that these laws were consistent with the Miller test for obscene material established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Heller was initially convicted for showing a sexually explicit film in the movie theater which he owned, under New York Penal Law § 235.0 which stated that and individual “is guilty of obscenity when, knowing its content and character, he 1. Promotes, or possesses with intent to promote, any obscene material; or 2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity."
Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.
Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.
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