Rosen v. United States, 161 U.S. 29, 40 L.Ed. 606 - 1896

Background: Rosen was convicted for mailing an obscene, lewd, and lascivious paper in violation of federal law.

Contribution to the law on obscenity:

Scienter. Proper inquiry under the law was not whether the defendant knew or believed that the paper could be properly characterized as obscene, but whether it was of that character and deposited in the mail by one who know or had notice, at the time, of its contents.

Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 - 1957

Background: Convictions under federal law (18 U.S.C. §1461) for unlawfully mailing obscene material, and California law prohibiting the production of obscene material.

Contribution to the law on obscenity:

First Amendment. Obscenity is not protected.

Obscenity test. The Court rejected the English test that obscenity could be determined by the effect of isolated passages on: "particularly susceptible persons," and established the "prurient appeal" test as judged by the average person applying contemporary community standards. The Court also established the "taken as a whole" requirement.

Prurient. Defined as shameful, morbid, or "having a tendency to excite lustful thoughts."

Smith V. California, 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct.215 - 1959

Background: Smith was convicted of violating a Los Angeles obscenity ordinance, which had been construed to impose "strict" criminal liability with no evidence of scienter.

Contribution to the law on obscenity:

Scienter. The complete absence of a scienter requirement is not constitutionally permissible, but the Court indicated that circumstantial evidence that the accused was aware of the book's contents will be sufficient proof of this element of the offense.

Manual Enterprises v. Day, 370 U.S. 478, 8 L.Ed.2d 639, 82 S.Ct. 1432 - 1962

Background: Alleged violation of federal law prohibiting the mailing of obscene material. (18 U.S.C. §1461)

Contribution to the law on obscenity:

Patent Offensiveness Test. Established "patent offensiveness" as part of the obscenity test along with the "prurient offensiveness" as synonymous with "indecency" or affronting "current community standards of decency."

Ginzburg v. United States, 383 U.S. 463, 16 L.Ed.2d 31, 86 S.Ct. 942 - 1966

Background: Conviction for mailing obscene literature in violation of federal law. (18 U.S.C. §1461)

Contribution to the law on obscenity:

Pandering. Evidence of the circumstances of production and distribution of the material is relevant to the test of obscenity, especially "patent offensiveness" and "serious value," and where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.

Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d 56, 86 S.Ct. 958 - 1966

Background: Conviction for violation of New York obscenity statute.

Contribution to the law on obscenity:

Scienter. The element of scienter is satisfied if it is shown that the accused was in "some manner aware of the character of the material" he attempted to distribute.

Prurient Appeal. Court rejects the familiar defense argument that material cannot be determined "prurient interest in sex of a clearly defined deviant sexual group if the material is designed for and primarily disseminated to that group.

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

Background: Defendant was convicted of violating a New York statute which prohibited selling material which is "harmful to minors" to children.

Contribution to the law on obscenity:

Variable Obscenity. The Court affirmed the statute as constitutional, ruled that the "harmful to minors" provision was not vague, and upheld the state's power to adjust the test of legal obscenity according to the audience of the material thereby permitting the material to be judged in terms of the sexual interests of minors and not according to adult community standards.

Lee Art Theater v. Virginia, 392 U.S. 636, 20 L.Ed.2d 1313, 88 S.Ct. 2103 - 1968

Background: Conviction for violation of state obscenity law.

Contribution to the law on obscenity:

Search and Seizure. It is improper for a search warrant to be issued on the conclusory observation of the police office where the magistrate does not inquire into the factual basis for the officer's conclusions and thereby "focus searchingly on the question of obscenity."

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

Background: Conviction for possession of obscene matter.

Contribution to the law on obscenity:

Private Possession. The mere private possession of obscene matter cannot constitutionally be made a crime.

Roaden v. Kentucky, 413 U.S. 496, 37 L.Ed.2d 757, 93 S.Ct. 2796 - 1973

Background: Arrest and seizure of film without a search warrant having been obtained.

Contribution to the law on obscenity:

Search and Seizure. The seizure of a motion picture film on the grounds that it violates the obscenity statute is unreasonable if not seized under the authority of a constitutionally sufficient warrant.

Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419 , 93 S.Ct. 2607 - 1973

Background: Conviction for distribution of obscene matter in violation of California law.

Contribution to the law on obscenity:

First Amendment. Obscene material is not protected by the First Amendment.

Obscenity Test. Court outlines a three-part test for determining obscenity which has been adopted under most state statutes and all federal laws.

Community Standards. The three-part is to be applied in accordance with contemporary local community standards - not national standards. Standards of the state of California were used and approved by the Court.

Paris Adult Theater I v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446, 93 S.Ct. 2628 - 1973

Background: Civil action to enjoin the exhibition of two obscene films. The complaints were dismissed in trail court on the grounds that the films were exhibited to consenting adult only.

Contribution to the law on obscenity:

Civil Actions. Court approved the use of civil common law action to enjoin the exhibition of obscene matter.

Expert Testimony. The materials are sufficient in themselves for determining the question of obscenity.

Consenting Adults. Obscene material does not acquire immunity from state regulation because it is exhibited for consenting adults only. There are numerous state interests supporting obscenity legislation other that the interest of protecting children.

Kaplan v. California, K413 U.S. 115, 37 L.Ed.2d 492, 93 S.Ct. 2680 - 1973

Background: Conviction for violation of state obscenity statute.

Contribution to the law on obscenity:

Written Material. A book can be constitutionally obscene even though it contains no pictures.

United States v. 12 200-Ft. Reels, 413 U.S. 123, 37 L.Ed2d 500, 93S.Ct. 2665 - 1973

Background: Federal action under 19 U.S.C. §1305(a), which prohibits the importation of obscene articles.

Contribution to the law on obscenity:

Right of Privacy. The holding in Stanley v. Georgia is limited to private possession in the home, and does not prevent the control of obscene material in intrastate, interstate, or foreign commerce - there is not right to sell or give the material to others, and the material cannot be imported into this country even if it is for private use only and not for re-distribution.

United States v. Orito, 413 U.S. 139, 37 L.Ed.2d 513, 93 S.Ct. 2674 - 1973

Background: Violation of federal law (18 U.S.C. §1462) prohibiting the transporting of obscene material by means of a common carrier.

Contribution to the law on obscenity:

Right of Privacy. Court further limits the decision in Stanley v. Georgia by holding that the right to possess obscene material in the privacy of the home does not create a correlative right to receive it, transport it, or distribute it.

Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789 - 1973

Background: Conviction for violation of state obscenity law.

Contribution to the law on obscenity:

Search and Seizure. There is no constitutional right to an adversary hearing prior to seizure of allegedly obscene material where the material is seized pursuant to a warrant for preservation as evidence in a criminal prosecution.

Hamling v. United States, 418 U.S. 87, 41 L.Ed.2d 590, 94 S.Ct. 2887 - 1973

Background: Violation of federal law prohibiting the mailing of obscene materials. (18 U.S.C. §1461)

Contribution to the law on obscenity:

Community Standards. The decision in Miller v. California did not require that a "statewide"standard be used in determining community standards - a smaller geographical area could be used and the only constitutional requirement is that the material be judged by a juror not according to his won standards by according to the standards of the "community or vicinage from which he comes."

Scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he know the character and nature of the materials.

Comparable Material. The mere availability of similar materials on the newsstands of the community does not automatically make them admissible as tending to prove the non-obscenity of the materials at issue in the trial.

Jenkins v. Georgia, 418 U.S. 153, 41 L.Ed2d 642, 94 S.Ct. 2750 - 1974

Background: Conviction for violation of state obscenity law based upon showing of motion picture "Carnal Knowledge."

Contribution to the law on obscenity:

Community Standards. It is permissible to instruct jurors to apply "community standards" without specifying what "community."