The Supreme Court in Miller v. California (1973) outlined three questions that must be asked and answered to determine if a particular material is obscene: 1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the “prurient interest” (an inordinate interest in sex); 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct; 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Opinions & Commentaries

Overruled

Complainant directs its argument to three propositions: (1) The statute in controversy imposes an unlawful burden on interstate commerce; (2) it violates the freedom of speech and publication guaranteed by § 11, art. 1, of the constitution of the State of Ohio;[1] and (3) it attempts to delegate legislative power to censors and to other boards to determine whether the statute offends in the particulars designated.

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236 U.S. 273 35 S.Ct. 383 59 L.Ed. 573 JAY FOX, Plff. in Err.,v.STATE OF WASHINGTON. No. 134. Submitted January 19, 1915. Decided February 23, 1915. Mr. Gilbert E. Roe for plaintiff in error. [Argument of Counsel from page 274 intentionally omitted] Mr. W. V. Tanner, Attorney General of Washington, and Mr. Fred G. Remann, for defendant in error. Mr. Justice Holmes delivered the opinion of the court: 1 This is an information for editing printed matter tending to encourage and advocate disrespect for law, contrary to a statute of Washington. The statute is as follows: ‘Every person who shall […]

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Appellant is a New York City bookdealer, convicted, on information,[1] of a misdemeanor for having in his possession with intent to sell certain magazines charged to violate subsection 2 of § 1141 of the New York Penal Law. It reads as follows:

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The question in this case is whether the shipment of obscene phonograph records in interstate commerce is prohibited by § 245 of the Criminal Code, which makes illegal the interstate shipment of any "obscene . . . book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character."

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346 U.S. 587 (1954) SUPERIOR FILMS, INC. v. DEPARTMENT OF EDUCATION OF OHIO, DIVISION OF FILM CENSORSHIP, HISSONG, SUPERINTENDENT.   No. 217. Supreme Court of United States.   Argued January 6, 1954. Decided January 18, 1954. APPEAL FROM THE SUPREME COURT OF OHIO.[*]John C. Harlor argued the cause for appellant in No. 217. With him on the brief were F. J. Wright and Michael Gesas. Earl F. Morris was also of counsel. Florence Perlow Shientag argued the cause for appellant in No. 274. With her on the brief was Philip J. O’Brien, Jr. C. William O’Neill, Attorney General of Ohio, […]

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This appeal from a judgment of conviction entered by the Recorder's Court of the City of Detroit, Michigan, *381 challenges the constitutionality of the following provision, § 343, of the Michigan Penal Code:

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This is a proceeding under § 22-a of the New York Code of Criminal Procedure (L. 1941, c. 925), as amended in 1954 (L. 1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a "limited injunctive remedy," under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications.[1]

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The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute[1] violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code[2] invade the freedoms of speech and press as they may be incorporated in *480 the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

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Once again the Court is required to consider the impact of New York's motion picture licensing law upon First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495.

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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 . . . [i]n any place of business where . . . books . . . are sold or kept for sale."[1] The offense was defined by the Municipal Court, and by the Appellate *149 Department of the Superior Court,[2] 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.[3] 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,[4] was rejected, and the case comes here on appeal. 28 U. S. C. § 1257 (2); 358 U. S. 926.

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370 U.S. 478 (1962) MANUAL ENTERPRISES, INC., ET AL. v. DAY, POSTMASTER GENERAL. No. 123. Supreme Court of United States. Argued February 26-27, 1962. Decided June 25, 1962. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. *479 Stanley M. Dietz argued the cause for petitioners. With him on the brief was Edward J. Lynch. J. William Doolittle argued the cause for respondent. With him on the briefs were Solicitor General Cox, Assistant Attorney General Orrick, John G. Laughlin, Jr. and David L. Rose. MR. JUSTICE HARLAN announced the judgment of the Court and an […]

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The Rhode Island Legislature created the "Rhode Island Commission to Encourage Morality in Youth," whose members and Executive Secretary are the appellees herein, and gave the Commission inter alia ". . . the duty . . . to educate the public concerning any book, picture, pamphlet, balled, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined *60 in sections 13, 47, 48 and 49 of chapter 610 of the general laws, as amended, and to investigate and recommend the prosecution of all violations of said sections . . . ."[1] The appellants brought this action in *61 the Superior Court of Rhode Island (1) to declare the law creating the Commission in violation of the First and Fourteenth Amendments, and (2) to declare unconstitutional and enjoin the acts and practices of the appellees thereunder. The Superior Court declined to declare the law creating the Commission unconstitutional on its face but granted the appellants an injunction against the acts and practices of the appellees in performance of their duties. The Supreme Court of Rhode Island affirmed the Superior Court with respect to appellants' first prayer but reversed the grant of injunctive relief. ___ R. I. ___, 176 A. 2d 393 (1961).[2] Appellants brought this appeal and we noted probable jurisdiction, 370 U. S. 933.[3]Appellants are four New York publishers of paperback books which have for sometime been widely distributed in Rhode Island. Max Silverstein & Sons is the exclusive wholesale distributor of appellants' publications throughout most of the State. The Commission's practice has been to notify a distributor on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Silverstein had received at least 35 such notices at the time this suit was brought. Among *62 the paperback books listed by the Commission as "objectionable" were one published by appellant Dell Publishing Co., Inc., and another published by appellant Bantam Books, Inc.[4]The typical notice to Silverstein either solicited or thanked Silverstein, in advance, for his "cooperation" with the Commission, usually reminding Silverstein of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity.[5] Copies of the *63 lists of "objectionable" publications were circulated to local police departments, and Silverstein was so informed in the notices.

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378 U.S. 205 (1964) A QUANTITY OF COPIES OF BOOKS ET AL. v. KANSAS.   No. 449. Supreme Court of United States.   Argued April 1-2, 1964. Decided June 22, 1964. APPEAL FROM THE SUPREME COURT OF KANSAS.*206 Stanley Fleishman argued the cause for appellants. With him on the briefs was Sam Rosenwein. William M. Ferguson, Attorney General of Kansas, argued the cause for appellee. With him on the brief were Rober E. Hoffman, J. Richard Foth and Richard H. Seaton, Assistant Attorneys General of Kansas, and William Clement. The following State Attorneys General joined in the brief for appellee: […]

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378 U.S. 184 (1964) JACOBELLIS v. OHIO.     No. 11. Supreme Court of United States.    Argued March 26, 1963. Restored to the calendar for reargument April 29, 1963. Reargued April 1, 1964. Decided June 22, 1964. APPEAL FROM THE SUPREME COURT OF OHIO.*185 Ephraim London reargued the cause for appellant. With him on the briefs were Bennet Kleinman and Martin Garbus.John T. Corrigan reargued the cause and filed a brief for appellee. Bernard A. Berkman, Jack G. Day and Melvin L. Wulf filed a brief for the American and Ohio Civil Liberties Unions, as amici curiae, urging reversal. […]

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378 U.S. 577 (1964) GROVE PRESS, INC., v. GERSTEIN, STATE ATTORNEY, ET AL. No. 718. Supreme Court of United States. Decided June 22, 1964. ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT. Edward de Grazia and Richard Yale Feder for petitioner. James W. Kynes, Attorney General of Florida, Leonard R. Mellon, Assistant Attorney General, and Glenn C. Mincer for respondents. PER CURIAM. The petition for a writ of certiorari is granted, and the judgment is reversed. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS would reverse for the reasons stated in the opinion […]

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378 U.S. 576 (1964) TRALINS v. GERSTEIN, STATE ATTORNEY.   No. 246. Supreme Court of United States.   Decided June 22, 1964. ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT.Richard Yale Feder and Howard W. Dixon for petitioner. Richard W. Ervin, Attorney General of Florida, Herbert P. Benn and Leonard R. Mellon, Assistant Attorneys General, and Glenn c. Mincer for respondent. PER CURIAM. The petition for a writ of certiorari is granted, and the judgment is reversed. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS would reverse for the reasons stated in the […]

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Overruled

383 U.S. 413 (1966) A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF A WOMAN OF PLEASURE” ET AL. v. ATTORNEY GENERAL OF MASSACHUSETTS. No. 368. Supreme Court of United States. Argued December 7-8, 1965. Decided March 21, 1966. APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. *414 Charles Rembar argued the cause and filed briefs for appellants. William I. Cowin, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Edward W. Brooke, Attorney General, and John E. Sullivan, Assistant Attorney General. Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens […]

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This case, like Ginzburg v. United States, ante, p. 463, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law[1] by hiring others to prepare obscene books, publishing obscene books, and possessing obscene books with intent to sell them.[2] 26 Misc. 2d 152, 207 N. Y. S. 2d 390 *504 (1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes.[3] The Appellate Division, First Department, affirmed those convictions. 17 App. Div. 2d 243, 234 N. Y. S. 2d 342 (1962). The Court of Appeals affirmed without opinion. 15 N. Y. 2d 671, 204 N. E. 2d 209 (1964), remittitur amended, 15 N. Y. 2d 724, 205 N. E. 2d 201 (1965). We noted probable jurisdiction. 380 U. S. 960. We affirm.

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A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania[1] convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.).[2] 224 F. Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might *465 be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F. 2d 12. We granted certiorari, 380 U. S. 961. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U. S. 476,[3] the only serious question is whether those standards were correctly applied.[4]In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question *466 of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. New York, post, p. 502, and as did the courts below, 224 F. Supp., at 134, 338 F. 2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal.[5] The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute.[6]The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife's Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory "Letter from the Editors" announcing its dedication to "keeping sex an art and preventing it from becoming a science." The remainder of the issue consists of digests of two *467 articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, "[w]hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants' own expert, it is entirely without literary merit." 224 F. Supp., at 134. The Handbook purports to be a sexual autobiography detailing with complete candor the author's sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children.

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384 U.S. 264 (1966) REDMOND ET UX. v. UNITED STATES. No. 1056. Supreme Court of United States. Decided May 23, 1966. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. John Jay Hooker, Jr., for petitioners. Solicitor General Marshall for the United States. PER CURIAM. The petition for certiorari is granted. The Court of Appeals for the Sixth Circuit affirmed the conviction of petitioners, husband and wife, under an information charging them with violating the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.), by having mailed undeveloped films of […]

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386 U.S. 767 (1967) REDRUP v. NEW YORK. No. 3. Supreme Court of United States. Argued October 10, 1966. Decided May 8, 1967.[*] CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. Sam Rosenwein argued the cause for petitioner in No. 3. With him on the briefs were Stanley Fleishman and Osmond K. Fraenkel. Mr. Fleishman argued the cause and filed briefs for petitioner in No. 16. Emanuel Redfield argued the cause and filed briefs for appellants in No. 50. H. Richard Uviller argued the cause for respondent in No. 3. With him on […]

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388 U.S. 447 (1967) ADAY ET AL. v. UNITED STATES.   No. 149. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.Stanley Fleishman for petitioners. Solicitor General Marshall for the United States. Melvin L. Wulf, Rolland R. O’Hare and Erwin B. Ellmann for the American Civil Liberties Union et al., and Horace S. Manges for the American Book Publishers Council, Inc., as amici curiae, in support of the petition. Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, […]

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388 U.S. 449 (1967) BOOKS, INC. v. UNITED STATES.   No. 323. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.Stanley Fleishman for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson, Robert S. Erdahl and Marshall Tamor Golding for the United States. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the First Circuit is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE would grant […]

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388 U.S. 440 (1967) KENEY v. NEW YORK.   No. 2. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE COUNTY COURT OF MONROE COUNTY, NEW YORK.Eugene Gressman for petitioner. James H. Biben for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the County Court of Monroe County, New York, is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U. S. 476, 496, and […]

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388 U.S. 441 (1967) FRIEDMAN v. NEW YORK.   No. 7. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT.Ira H. Holley and Eugene Gressman for petitioner. Frank S. Hogan for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Appellate Term of the Supreme Court of New York, First Judicial Department, is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN adheres to the views expressed in […]

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388 U.S. 442 (1967) RATNER ET AL. v. CALIFORNIA.   No. 10. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO.Richard A. Lavine for petitioners. Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and Charles W. Rumph, Deputy Attorneys General, for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Appellate Department of the Superior Court of California, County of San Mateo, is reversed. Redrup v. New York, […]

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388 U.S. 443 (1967) COBERT v. NEW YORK.   No. 21. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.Ephraim London for petitioner. Frank S. Hogan for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Court of Appeals of New York is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE, MR. JUSTICE CLARK, and MR. JUSTICE BRENNAN would affirm. MR. JUSTICE HARLAN adheres to the views expressed in his separate opinions in […]

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388 U.S. 444 (1967) SHEPERD ET AL. v. NEW YORK.   No. 26. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT.Ira H. Holley and Eugene Gressman for petitioners. Frank S. Hogan for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Appellate Term of the Supreme Court of New York, First Judicial Department, is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE and MR. JUSTICE CLARK […]

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388 U.S. 446 (1967) AVANSINO ET AL. v. NEW YORK.   No. 72. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT.Eugene Gressman for petitioners. Frank S. Hogan for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Appellate Term of the Supreme Court of New York, First Judicial Department, is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE and MR. JUSTICE CLARK would affirm. Mishkin v. […]

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388 U.S. 448 (1967) CORINTH PUBLICATIONS, INC. v. WESBERRY ET AL.   No. 227. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA.Stanley Fleishman for petitioner. Arthur K. Bolton, Attorney General of Georgia, and G. Ernest Tidwell, Executive Assistant Attorney General, for respondents. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Georgia is reversed. THE CHIEF JUSTICE would grant the petition and set the case for oral argument. MR. JUSTICE CLARK would grant the petition and […]

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388 U.S. 450 (1967) ROSENBLOOM v. VIRGINIA.   No. 366. Supreme Court of United States.   Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA.Seymour Horwitz and Melvin L. Wulf for petitioner. James B. Wilkinson for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Appeals of Virginia is reversed. Sunshine Book Co. v. Summerfield, 355 U. S. 372. MR. JUSTICE HARLAN adheres to the views expressed in his separate opinions in Roth v. United States, 354 U. S. 476, […]

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388 U.S. 452 (1967) A QUANTITY OF COPIES OF BOOKS ET AL. v. KANSAS. No. 865. Supreme Court of United States. Decided June 12, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. Stanley Fleishman for petitioners. Robert C. Londerholm, Attorney General of Kansas, for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Kansas is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE would grant the petition and set the case for oral argument in light of A Quantity of […]

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388 U.S. 454 (1967) SCHACKMAN ET AL. v. CALIFORNIA.   No. 995. Supreme Court of United States.   Decided June 12, 1967. APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES.Burton Marks for appellants. Roger Arnebergh and Philip E. Grey for appellee. PER CURIAM. The judgments of the Superior Court of California, County of Los Angeles, are reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE, MR. JUSTICE CLARK, and MR. JUSTICE BRENNAN would affirm the judgments of the lower court. Ginzburg v. United States, 383 U. S. 463. MR. JUSTICE HARLAN adheres to the […]

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389 U.S. 50 (1967) CENTRAL MAGAZINE SALES, LTD. v. UNITED STATES.   No. 368. Supreme Court of United States.   Decided October 23, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.Richard Lipsitz for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Jerome M. Feit for the United States. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN concurs in the […]

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389 U.S. 47 (1967) POTOMAC NEWS CO. v. UNITED STATES.   No. 164. Supreme Court of United States.   Decided October 23, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.Stanley M. Dietz for petitioner. Solicitor General Marshall, Assistant Attorney General Vinson and Jerome M. Feit for the United States. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN concurs in the […]

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389 U.S. 48 (1967) CONNER v. CITY OF HAMMOND.   No. 259. Supreme Court of United States.   Decided October 23, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, LOUISIANA, PARISH OF TANGIPAHOA.Leonard B. Levy and Stanley Fleishman for petitioner. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Twenty-first Judicial District Court for the Parish of Tangipahoa, Louisiana, is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN would affirm the judgment of the state court upon the premises stated in his separate opinion […]

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389 U.S. 89 (1967) CHANCE v. CALIFORNIA.   No. 306, Misc. Supreme Court of United States.   Decided November 6, 1967. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO.Marshall W. Krause for petitioner. Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and Michael J. Phelan, Deputy Attorneys General, for respondent. PER CURIAM. The motion to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE HARLAN would affirm for the reasons […]

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389 U.S. 573 (1968) I. M. AMUSEMENT CORP. v. OHIO.   No. 260. Supreme Court of United States.   Decided January 15, 1968. APPEAL FROM THE SUPREME COURT OF OHIO.Allen Brown for appellant. Melvin G. Rueger and Calvin W. Prem for appellee. PER CURIAM. The judgment of the Supreme Court of Ohio is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE concurs on the ground that evidence of contemporary community standards was excluded at trial. MR. JUSTICE HARLAN would affirm for the reasons set forth in his separate opinion in Roth v. United States, 354 U. […]

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389 U.S. 578 (1968) ROBERT-ARTHUR MANAGEMENT CORP. v. TENNESSEE EX REL. CANALE, DISTRICT ATTORNEY GENERAL.   No. 679. Supreme Court of United States.   Decided January 15, 1968. APPEAL FROM THE SUPREME COURT OF TENNESSEE.Longstreet Heiskell for appellant. George F. McCanless, Attorney General of Tennessee, and Thomas E. Fox, Deputy Attorney General, for appellee. PER CURIAM. The judgment of the Supreme Court of Tennessee is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE would affirm. MR. JUSTICE HARLAN would affirm for the reasons set forth in his separate opinion in Roth v. United States, 354 U. […]

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390 U.S. 340 (1968) FELTON ET AL. v. CITY OF PENSACOLA.     No. 934. Supreme Court of United States.    Decided March 11, 1968. ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT.Stanley Fleishman, Sam Rosenwein and Hugh W. Gibert for petitioners.Dave Caton for respondent. PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the District Court of Appeal of Florida, First District, is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE would grant the petition and reverse because of the failure […]

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Appellant, who operated a stationery store and luncheonette, was convicted of selling "girlie" magazines to a 16-year-old boy in violation of § 484-h of the New York Penal Law, which made it unlawful "knowingly to sell . . . to a minor" under 17 "(a) any picture . . . which depicts nudity . . . and which is harmful to minors," and "(b) any . . . magazine . . . which contains [such pictures] and which, taken as a whole, is harmful to minors."

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Appellants are an exhibitor and the distributor of a motion picture named "Viva Maria," which, pursuant to a city ordinance, the Motion Picture Classification Board of the appellee City of Dallas classified as "not suitable for young persons." A county court upheld the Board's determination and enjoined exhibition of the film without acceptance by appellants of the requirements imposed by the restricted classification. The Texas Court of Civil Appeals affirmed,[1] and we noted probable jurisdiction, 387 U. S. 903, to consider the First and Fourteenth Amendment issues raised by appellants with respect to appellee's classification ordinance.

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391 U.S. 53 (1968) INTERSTATE CIRCUIT, INC., ET AL. v. CITY OF DALLAS. No. 42. Supreme Court of United States. Decided May 6, 1968.[*] ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. Grover Hartt, Jr., and Edwin Tobolowsky for petitioners in No. 42. N. Alex Bickley and Ted P. MacMaster for petitioner in No. 44 and for respondent in No. 42. PER CURIAM. The petitions for writs of certiorari are granted. The judgment is vacated and the cases are remanded to the United States Court of Appeals for the Fifth Circuit […]

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391 U.S. 462 (1968) RABECK v. NEW YORK. No. 611. Supreme Court of United States. Decided May 27, 1968. APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, FIRST JUDICIAL DEPARTMENT. Stanley Fleishman, Osmond K. Fraenkel, and Sam Rosenwein for appellant. Isidore Dollinger and Daniel J. Sullivan for appellee. PER CURIAM. Appellant, in seeking reversal of his conviction for selling “girlie” magazines to a minor under 18 years of age in violation of former § 484-i, New York Penal Law,[*] argues among other grounds that the statute is impermissibly vague. We agree. While we rejected a like […]

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392 U.S. 636 (1968) LEE ART THEATRE, INC. v. VIRGINIA. No. 997. Supreme Court of United States. Decided June 17, 1968. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA. Plato Cacheris for petitioner. James B. Wilkinson for respondent. PER CURIAM. The petition for a writ of certiorari is granted. Petitioner, operator of a motion picture theatre in Richmond, Virginia, was convicted in the Hustings Court of Richmond of possessing and exhibiting lewd and obscene motion pictures in violation of Title 18.1-228 of the Code of Virginia. The Supreme Court of Appeals of Virginia refused […]

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392 U.S. 655 (1968) HENRY v. LOUISIANA.   No. 932. Supreme Court of United States.   Decided June 17, 1968. APPEAL FROM THE SUPREME COURT OF LOUISIANA.Thomas Barr III for appellant. Jack P. F. Gremillion, Attorney General of Louisiana, and William P. Schuler, Second Assistant Attorney General, for appellee. PER CURIAM. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is granted and the judgment is reversed. Redrup v. New York, 386 U. S. 767. MR. JUSTICE […]

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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 eight-millimeter 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.[1] Appellant *559 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. § 1257 (2). 393 U. S. 819 (1968).

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396 U.S. 119 (1969) CARLOS v. NEW YORK.     No. 524. Supreme Court of United States.    Decided December 8, 1969. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.Herald Price Fahringer and Eugene Gressman for petitioner.PER CURIAM. The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE and MR. JUSTICE HARLAN are of the opinion that certiorari should be denied. However, the case having been taken for review, they would affirm the judgment of the state court upon […]

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397 U.S. 319 (1970) CAIN ET AL. v. KENTUCKY. No. 347. Supreme Court of United States. Decided March 23, 1970 APPEAL FROM THE COURT OF APPEALS OF KENTUCKY. Edmund C. Grainger, Jr., and James E. Thornberry for appellants. John B. Breckinridge, Attorney General of Kentucky, and John B. Browning, Assistant Attorney General, for appellee. PER CURIAM. The judgment is reversed. Redrup v. New York, 386 U. S. 767. MR. CHIEF JUSTICE BURGER, dissenting. In my view we should not inflexibly deny to each of the States the power to adopt and enforce its own standards as to obscenity and pornographic […]

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Appellants challenge the constitutionality of Title III of the Postal Revenue and Federal Salary Act of 1967, 81 Stat. 645, 39 U. S. C. § 4009 (1964 ed., Supp. IV), under which a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. The appellants are publishers, distributors, owners, and operators of mail order houses, mailing list brokers, and owners and operators of mail service organizations whose business activities are affected by the challenged statute.

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398 U.S. 278 (1970) BLOSS ET AL. v. DYKEMA.   No. 1347. Supreme Court of United States.   Decided June 1, 1970 ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MICHIGAN.PER CURIAM. The petition for a writ of certiorari is granted and the judgment of the Michigan Court of Appeals is reversed. Redrup v. New York, 386 U. S. 767. THE CHIEF JUSTICE and MR. JUSTICE WHITE are of the opinion that certiorari should be denied. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. MR. JUSTICE HARLAN, dissenting. I would affirm […]

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398 U.S. 434 (1970) WALKER v. OHIO. No. 1470. Supreme Court of United States. Decided June 15, 1970 APPEAL FROM THE SUPREME COURT OF OHIO. PER CURIAM. The judgment of the Supreme Court of Ohio is reversed. Redrup v. New York, 386 U. S. 767 (1967). MR. CHIEF JUSTICE BURGER, dissenting. The trial court, endeavoring to apply the standards articulated by this Court, held that the materials in question are obscene within the meaning of the relevant Ohio statute. This conclusion rested on findings that the materials are patently offensive to contemporary community standards relating to the description or representation […]

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399 U.S. 524 (1970) HOYT ET AL. v. MINNESOTA.   No. 1544. Supreme Court of United States.   Decided June 29, 1970. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MINNESOTA.PER CURIAM. The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U. S. 767. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE HARLAN join, dissenting. I am not persuaded that the First and Fourteenth Amendments necessarily prescribe a national and uniform measure—rather than one capable of some flexibility and resting on concepts of reasonableness—of […]

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No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U. S. C. § 4006 (now 39 U. S. C. § 3006, Postal Reorganization Act,[†] 84 Stat. 747), under *412 which the Postmaster General, following administrative hearings, may halt use of the mails and of postal money orders for commerce in allegedly obscene materials. No. 58 (hereafter Book Bin) also draws into question the constitutionality of § 4006, and, in addition, the constitutionality of 39 U. S. C. § 4007 (now 39 U. S. C. § 3007), 84 Stat. 748, under which the Postmaster General may obtain a court order permitting him to detain the defendant's incoming mail pending the outcome of § 4006 proceedings against him.

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401 U.S. 480 (1971) GROVE PRESS, INC., ET AL. v. MARYLAND STATE BOARD OF CENSORS. No. 63. Supreme Court of United States. Argued November 10, 1970 Decided March 8, 1971 APPEAL FROM THE COURT OF APPEALS OF MARYLAND. Edward de Grazia argued the cause for appellants. With him on the brief were Nathan Lewin, Arnold M. Weiner, and Alan M. Dershowitz. Francis B. Burch, Attorney General of Maryland, argued the cause for appellee. With him on the brief was Thomas N. Biddison, Jr., Assistant Attorney General. Briefs of amici curiae urging reversal were filed by Felix J. Bilgrey for the […]

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402 U.S. 363 (1971) UNITED STATES v. THIRTY-SEVEN (37) PHOTOGRAPHS (LUROS, CLAIMANT). No. 133. Supreme Court of United States. Argued January 20, 1971 Decided May 3, 1971 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. *364 Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson and Roger A. Pauley. Stanley Fleishman argued the cause for appellees. With him on the brief was Sam Rosenwein. *365 MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE […]

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Section 1461 of Title 18, U. S. C., prohibits the knowing use of the mails for the delivery of obscene matter.[1] The issue presented by the jurisdictional statement in this case is whether § 1461 is constitutional as applied to the distribution of obscene materials to willing recipients who state that they are adults. The District Court held that it was not.[2] We disagree and reverse the judgment.

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405 U.S. 313 (1972) RABE v. WASHINGTON. No. 71-247. Supreme Court of United States. Argued February 29, 1972. Decided March 20, 1972. CERTIORARI TO THE SUPREME COURT OF WASHINGTON. William L. Dwyer argued the cause and filed briefs for petitioner. Curtis Ludwig argued the cause for respondent. With him on the brief was Herbert H. Davis. Briefs of amici curiae urging reversal were filed by Stanley Fleishman and Sam Rosenwein for the National Association of Theatre Owners, Inc., and by Louis Nizer and James Bouras for the Motion Picture Association of America, Inc. Constantine Regusis filed a brief for Morality […]

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408 U.S. 229 (1972) KOIS v. WISCONSIN. No. 71-5625. Supreme Court of United States. Decided June 26, 1972. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF WISCONSIN. PER CURIAM. Petitioner was convicted in the state trial court of violating a Wisconsin statute prohibiting the dissemination of “lewd, obscene or indecent written matter, picture, sound recording, or film.” Wis. Stat. § 944.21 (1) (a) (1969). He was sentenced to consecutive one-year terms in the Green Bay Reformatory and fined $1,000 on each of two counts. The Supreme Court of Wisconsin upheld his conviction against the contention that he […]

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Overruled (in part)

Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C. § 1983. A three-judge court was convened in accordance with 28 U. S. C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.[1]

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Petitioner Barbara Papish, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper "containing forms of indecent speech" in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover, the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: ". . . With Liberty and Justice for All." Secondly, the issue contained an article entitled "Motherfucker Acquitted," which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as "Up Against the Wall, Motherfucker." Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. V of the General Standards of Student Conduct, which requires students "to observe generally accepted standards of conduct," and specifically prohibits "indecent conduct or speech." Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade.

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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, 383 U. S. 418 (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, 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. Pp. 413 U. S. 23-24. 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 354 U. S. 489, (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. Pp. 413 U. S. 24-25. 3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 413 U. S. 30-34. Vacated and remanded.

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Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the *51 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. § 26-2101.[1] The two films in question, "Magic Mirror" and "It All Comes Out in the End," depict sexual conduct characterized *52 by the Georgia Supreme Court as "hard core pornography" leaving "little to the imagination."Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment.

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We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner's conviction for violation of California statutes regarding obscenity.

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We noted probable jurisdiction to review a summary decision of the United States District Court for the Central District of California holding that § 305(a) of the Tariff Act of 1930, 46 Stat. 688, as amended, 19 U. S. C. § 1305 (a) was "unconstitutional on its face" and dismissing a forfeiture action brought under that statute.[1] The statute provides in pertinent part:

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Appellee Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U. S. C. § 1462[1] in that he did "knowingly transport and carry in interstate commerce from San Francisco . . . to Milwaukee . . . by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials . . . ." The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights.[2] The District Court granted his motion, holding that the statute was unconstitutionally overbroad since it failed to distinguish between "public" and "non-public" transportation of obscene material. The District Court interpreted this Court's decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Redrup v. New York, 386 U. S. 767 (1967); and Stanley v. Georgia, 394 U. S. 557 (1969), to establish *141 the proposition that "non-public transportation" of obscene material was constitutionally protected.[3]

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413 U.S. 496 (1973) ROADEN v. KENTUCKY No. 71-1134. Supreme Court of the United States. Argued November 14, 1972. Decided June 25, 1973. CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY Phillip K. Wicker argued the cause and filed a brief for petitioner. Robert v. Bullock, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief was Ed. W. Hancock, Attorney General.[*] *497 MR. CHIEF JUSTICE BURGER delivered the opinion of of the Court. The question presented in this case is whether the seizure of allegedly obscene material, contemporaneous with and as an incident to […]

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Petitioner was manager of a movie theater where a sexually explicit film was exhibited. After police officers saw part of the film, an assistant district attorney requested a New York Criminal Court judge to view it. Upon seeing the entire performance, the judge signed warrants for seizure of the film and for petitioner's arrest on the ground that the film was obscene. Exhibition of an obscene film violates New York Penal Law § 235.05. No pretrial motion was made for return of the single film copy seized or for its suppression as evidence. There was no showing below that the seizure prevented exhibition of the film by use of another copy, and the record does not indicate whether another copy was available. Petitioner's trial was held 47 days after his arrest and the film seizure, and he was convicted. He argued that seizure of the film without a prior adversary hearing violated the Fourteenth Amendment. He also challenged his conviction on substantive grounds, arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague, and that films shown only to consenting adults in private are constitutionally protected. The New York Court of Appeals affirmed his conviction, holding that an adversary hearing prior to seizure of the film was not required and that an ex parte warrant, issued after a judicial determination of obscenity, was constitutionally sufficient.

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413 U.S. 836 (1973) ALEXANDER ET AL. v. VIRGINIA   No. 71-1315. Supreme Court of the United States.   Argued October 19, 1972. Decided June 25, 1973. CERTIORARI TO THE SUPREME COURT OF VIRGINIAStanley M. Dietz argued the cause and filed a brief for petitioners. James E. Kulp, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were Andrew P. Miller, Attorney General, and Robert E. Shepherd, Jr., Assistant Attorney General.[*] PER CURIAM. The judgment of the Supreme Court of Virginia is vacated and the case is remanded for further proceedings not inconsistent with […]

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Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film "Carnal Knowledge" in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413, 418 (1966):

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On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained, and of conspiracy to commit the above offenses, in violation of 18 U. S. C. §§ 2, 371, and 1461.[1] Prior to trial, petitioners moved to dismiss the indictment on the grounds that it failed to inform them of the charges, and that the grand jury had insufficient evidence before it to return an indictment and was improperly instructed on the law. Petitioners also challenged the petit jury panel and moved to strike the venire on the ground that there had been an unconstitutional exclusion of all persons under 25 years of age. The District Court denied all of these motions.

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The issue in this case is whether First Amendment rights were abridged when respondents denied petitioner the use of a municipal facility in Chattanooga, Tenn., for the showing of the controversial rock musical "Hair." It is established, of course, that the Fourteenth Amendment has made applicable to the States the First Amendment's guarantee of free speech. Douglas v. City of Jeannette, 319 U. S. 157, 162 (1943).

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This case presents a challenge to the facial validity of a Jacksonville, Fla., ordinance that prohibits showing films containing nudity by a drive-in movie theater when its screen is visible from a public street or place.

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Appellant is a town attorney in Nassau County, N. Y., who, along with other local law enforcement officials, was preliminary enjoined by the United States District Court for the Eastern District of New York from enforcing a local ordinance of the town of North Hempstead. Salem Inn, Inc. v. Frank, 364 F. Supp. 478 (1973), aff'd, 501 F. 2d 18 (CA2 1974). In addition to defending the ordinance on the merits, he contends that the complaint should have been dismissed on the authority of Younger v. Harris, 401 U. S. 37 (1971), and its companion cases.

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Petitioner was convicted of selling material which had been judicially declared obscene. At his trial he was not permitted to litigate the obscenity vel non of the publication which was the basis of his prosecution, even though he had not been a party to the earlier civil adjudication in which it was held obscene. We granted certiorari, 422 U. S. 1040 (1975), to consider whether this procedure comported with our decisions delineating the safeguards which must attend attempts by the States to prohibit dissemination of expression asserted to be protected by the First and Fourteenth Amendments against such interference. We reverse.

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[*]Zoning ordinances adopted by the city of Detroit differentiate between motion picture theaters which exhibit sexually explicit "adult" movies and those which do not. The principal question presented by this case is whether that statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.[1]Effective November 2, 1972, Detroit adopted the ordinances challenged in this litigation. Instead of concentrating "adult" theaters in limited zones, these ordinances require that such theaters be dispersed. Specifically, an adult theater may not be located within 1,000 feet of any two other "regulated uses" or within 500 feet of a residential area.[2] The term "regulated uses" includes 10 different kinds of establishments in addition to adult theaters.[3]*53 The classification of a theater as "adult" is expressly predicated on the character of the motion pictures which it exhibits. If the theater is used to present "material distinguished or characterized by an emphasis on matter depicting, describing or relating to `Specified Sexual Activities' or `Specified Anatomical Areas,' "[4] it is an adult establishment.[5]*54 The 1972 ordinances were amendments to an "Anti-Skid Row Ordinance" which had been adopted 10 years earlier. At that time the Detroit Common Council made a finding that some uses of property are especially injurious to a neighborhood when they are concentrated in limited areas.[6] The decision to add adult motion picture theaters and adult book stores to the list of businesses which, apart from a special waiver,[7] could not be located within 1,000 feet of two other "regulated uses," was, in part, a response to the significant growth in the number *55 of such establishments.[8] In the opinion of urban planners and real estate experts who supported the ordinances, the location of several such businesses in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere.

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This case presents the question, not fully answered in Hamling v. United States, 418 U. S. 87 (1974), whether the *189 standards announced in Miller v. California, 413 U. S. 15 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U. S. 942 (1976), to resolve a conflict in the Circuits.[1]

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In Miller v. California, 413 U. S. 15 (1973), this Court rejected a plea for a uniform national standard as to what *293 appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. Id., at 30-34. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U. S. C. § 1461 for a mailing that is wholly intrastate. The case also raises the question whether § 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards.

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Petitioner Splawn was convicted in 1971 of the sale of two reels of obscene film, a misdemeanor violation of California Penal Code § 311.2 (West 1970). After the conviction was affirmed on appeal by the California First District Court of Appeal and the State Supreme Court denied review, this Court granted certiorari, vacated the judgment, and remanded for consideration in light of our decision in Miller v. California, 413 U. S. 15 (1973), which had set forth the standards by *597 which the constitutionality of § 311.2 was to be determined. After the State Supreme Court ruled that the statute satisfied the requirements articulated in Miller, see Bloom v. Municipal Court, 16 Cal. 3d 71, 545 P. 2d 229 (1976), the Court of Appeal again affirmed the conviction and the California Supreme Court denied petitioner's motion for a hearing.

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The principal issue in this case is the validity of the Illinois obscenity statute, considered in light of Miller v. California, 413 U. S. 15 (1973). There we reaffirmed numerous prior decisions declaring that "obscene material is unprotected by the First Amendment," id., at 23; but acknowledging "the inherent dangers of undertaking to regulate any form of expression," ibid., we recognized that official regulation must be limited to "works which depict or describe sexual conduct" and that such conduct "must be specifically defined by the applicable state law, as written or authoritatively construed." Id., at 24. Basic guidelines for the trier of fact, along with more specific suggestions, were then offered:

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We granted certiorari in this case to decide whether the court's instructions in a trial for mailing obscene materials prior to 1973, and therefore tried under the Roth-Memoirs standards, could properly include children and sensitive persons within the definition of the community by whose standards obscenity is to be judged. We are also asked to determine whether the evidence supported a charge that members of deviant sexual groups may be considered in determining whether the materials appealed to prurient interest in sex; whether a charge of pandering was proper in light of the evidence; and whether comparison evidence proffered by petitioner should have been admitted on the issue of contemporary community standards.

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438 U.S. 726 (1978) FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION ET AL.     No. 77-528. Supreme Court of United States.    Argued April 18, 19, 1978. Decided July 3, 1978. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.*728 Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for *729 the United States, a respondent […]

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445 U.S. 308 (1980) VANCE ET AL. v. UNIVERSAL AMUSEMENT CO., INC., ET AL.   No. 78-1588. Supreme Court of United States.   Argued November 28, 1979. Decided March 18, 1980. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.Lonny F. Zwiener, Assistant Attorney General of Texas, argued the cause for appellants. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, and Douglas B. Owen and Gerald C. Carruth, Assistant Attorneys General. Frierson M. Graves, Jr., argued the cause for appellees and filed a brief […]

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In a prosecution charging petitioners with disseminating obscenity in violation of Ohio law, the trial court granted their motions to dismiss the complaints on the ground that they had been subjected to selective and discriminatory prosecution in violation of the Equal Protection Clause of the Fourteenth Amendment. The Ohio Court of Appeals reversed and remanded the case for trial, finding the evidence insufficient to support the allegations of discriminatory prosecution. The Ohio Supreme Court affirmed.

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In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, N. J. The store sold adult books, magazines, and films. Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film. In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel. *63 Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated § 99-15B of Mount Ephraim's zoning ordinance, which described the permitted uses in a commercial zone,[1] in which the store was located, as follows:

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Overruled (in part)

452 U.S. 714 (1981) NEW YORK STATE LIQUOR AUTHORITY v. BELLANCA, DBA THE MAIN EVENT, ET AL. No. 80-813. Supreme Court of United States. Decided June 22, 1981. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. PER CURIAM. The question presented in this case is the power of a State to prohibit topless dancing in an establishment licensed by the State to serve liquor. In 1977, the State of New York amended its Alcoholic Beverage Control Law to prohibit nude dancing in establishments licensed by the State to sell liquor for on-premises consumption. N. […]

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454 U.S. 90 (1981) CALIFORNIA EX REL. COOPER, CITY ATTORNEY OF SANTA ANA, CALIFORNIA v. MITCHELL BROTHERS’ SANTA ANA THEATER ET AL.   No. 81-271. Supreme Court of United States.   Decided November 30, 1981 ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICTPER CURIAM. The petition for certiorari is granted limited to Question 2 presented in the petition, namely, whether a city, in a public nuisance abatement action brought against a motion picture theater, must prove beyond a reasonable doubt that the motion pictures at issue are obscene.[1] The Santa Ana City […]

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At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.

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The question in these cases is whether the Court of Appeals for the Ninth Circuit erred in invalidating in its entirety a Washington statute aimed at preventing and punishing the publication of obscene materials.

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This case involves a constitutional challenge to a zoning ordinance, enacted by appellant city of Renton, Washington, that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Appellees, Playtime Theatres, Inc., and Sea-First Properties, Inc., filed an action in the United States District Court for the Western District of Washington seeking a declaratory judgment that the Renton ordinance violated the First and Fourteenth Amendments and a permanent injunction against its enforcement. The District Court ruled in favor of Renton and denied the permanent injunction, but the Court of Appeals for the Ninth Circuit reversed and remanded for reconsideration. 748 F. 2d 527 (1984). We noted probable jurisdiction, 471 U. S. 1013 (1985), and now reverse the judgment of the Ninth Circuit.[1]*44 In May 1980, the Mayor of Renton, a city of approximately 32,000 people located just south of Seattle, suggested to the Renton City Council that it consider the advisability of enacting zoning legislation dealing with adult entertainment uses. No such uses existed in the city at that time. Upon the Mayor's suggestion, the City Council referred the matter to the city's Planning and Development Committee. The Committee held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney's Office advising as to developments in other cities. The City Council, meanwhile, adopted Resolution No. 2368, which imposed a moratorium on the licensing of "any business. . . which . . . has as its primary purpose the selling, renting or showing of sexually explicit materials." App. 43. The resolution contained a clause explaining that such businesses "would have a severe impact upon surrounding businesses and residences." Id., at 42.

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This case concerns the proper standard for issuance of a warrant authorizing the seizure of materials presumptively protected by the First Amendment. Respondents P. J. Video, Inc., and James Erhardt were charged in the village of Depew, New York, Justice Court with six counts of obscenity in the third degree under § 235.05(1) of the New York Penal Law.[1] Respondents moved to suppress five videocassette movies that had been seized from respondents' store, and that formed the basis for the obscenity charges *870 against respondents, on the ground that the warrant authorizing the seizure was issued without probable cause to believe that the movies were obscene. The Justice Court granted the motion and dismissed the informations under which respondents were charged, and both the County Court of Erie County and the New York Court of Appeals affirmed. 65 N. Y. 2d 566, 483 N. E. 2d 1120 (1985). We granted certiorari to resolve the conflict between the decision of the New York Court of Appeals in the instant case and the decisions in Sequoia Books, Inc. v. McDonald, 725 F. 2d 1091 (CA7 1984), and United States v. Pryba, 163 U. S. App. D. C. 389, 502 F. 2d 391 (1974), cert. denied, 419 U. S. 1127 (1975). 474 U. S. 918 (1985). We now reverse the judgment of the Court of Appeals.

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We granted certiorari to decide whether the First Amendment bars enforcement of a statute authorizing closure of a premises found to be used as a place for prostitution and lewdness because the premises are also used as an adult bookstore.

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We granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly.

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Overruled (in part)

479 U.S. 92 (1986) CITY OF NEWPORT, KENTUCKY, ET AL. v. IACOBUCCI, DBA TALK OF THE TOWN, ET AL. No. 86-139. Supreme Court of United States. Decided November 17, 1986 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PER CURIAM. In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell *93 liquor for consumption on the premises.[1] A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New […]

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In Miller v. California, 413 U. S. 15 (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. The issue in this case is whether, in a prosecution for *499 the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question.

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[††]We have before us two decisions of the Indiana courts, involving the application of that State's Racketeer Influenced and Corrupt Organizations (RICO) and Civil Remedies for Racketeering Activity (CRRA) Acts to cases involving bookstores containing allegedly obscene materials.

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491 U.S. 576 (1989) MASSACHUSETTS v. OAKES No. 87-1651. Supreme Court of United States. Argued January 17, 1989 Decided June 21, 1989 CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS *578 James M. Shannon, Attorney General of Massachusetts, argued the cause for petitioner. With him on the briefs were Phyllis N. Segal and A. John Pappalardo, Deputy Attorneys General, and Madelyn F. Wessel, Judy G. Zeprun, and H. Reed Witherby, Assistant Attorney General. Richard J. Vita argued the cause and filed a brief for respondent.[*] JUSTICE O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE […]

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The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U. S. C. § 223(b) (1982 ed., Supp. V). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.

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493 U.S. 215 (1990) FW/PBS, INC., DBA PARIS ADULT BOOKSTORE II, ET AL. v. CITY OF DALLAS ET AL.     No. 87-2012. Supreme Court of United States.    Argued October 4, 1989 Decided January 9, 1990[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT*219 John H. Weston argued the cause for petitioners in all cases. With him on the briefs for petitioners in No. 87-2051 were G. Randall Garrou, Cathy E. Crosson, and Richard L. Wilson. Arthur M. Schwartz filed briefs for petitioners in No. 87-2012. Frank P. Hernandez filed a brief for petitioners in […]

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In order to combat child pornography, Ohio enacted Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989), which provides in pertinent part:

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An Indiana public indecency statute prohibits, among other things, appearing nude in public. Two adult entertainment establishments and an erotic dancer sued to prevent enforcement of this statute as it applied to nude dancing. The trial court eventually held that nude dancing is not expressive activity protected by the First Amendment and upheld the statute. The Seventh Circuit Court of Appeals reversed, holding that non-obscene nude dancing is entitled to First Amendment protection. When speech and non-speech elements are combined in the same course of conduct (such as burning a draft card), the government can regulate that conduct if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers a substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on the speech element of the conduct is not greater than necessary to further the substantial governmental interest. United States v. O'Brien, 391 U.S. 367 (1968).

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After a full criminal trial, petitioner Ferris J. Alexander, owner of more than a dozen stores and theaters dealing in sexually explicit materials, was convicted on, inter alia, 17 obscenity counts and 3 counts of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on the jury's findings that four magazines and three videotapes sold at several of petitioner's stores were obscene, served as the predicates for his three RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner to forfeit, pursuant to 18 U. S. C. § 1963 (1988 ed. and Supp. III), certain assets that were directly related to his racketeering activity as punishment for his RICO violations. Petitioner argues that this forfeiture violated the First and Eighth Amendments to the Constitution. We reject petitioner's *547 claims under the First Amendment but remand for reconsideration of his Eighth Amendment challenge.

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The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, *66 shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

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The Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 223, prohibits the transmission of indecent and patently offensive materials to minors over the Internet. A number of civil rights and computer groups challenged the constitutionality of these provisions on First Amendment grounds. In essence, these groups argued that the inability of Internet users and providers to verify the age of information recipients effectively prevented them from engaging in indecent speech, which traditionally has received significant First Amendment protection. After a lengthy evidentiary hearing that included many online demonstrations, a special three-judge district court (which was created by the CDA to hear the expected constitutional challenges) agreed with the groups and ruled that the provisions violated the First Amendment. Indecent speech, unlike obscenity, is entitled to constitutional protection because it often has substantial social value and lacks prurient interest. Sable Communications v. FCC, 492 U.S. 115 (1989). This speech therefore cannot be regulated unless the restrictions are justified by a compelling governmental interest and are narrowly tailored to advance that interest. Turner Broadcasting System v. FCC, 114 S. Ct. 2445 (1994). The Court already has held that the government has a compelling interest in protecting minors from indecent speech. Ginsberg v. New York, 390 U.S. 629 (1968). The Court also has held that the government may prohibit dissemination of indecent materials to minors as long it does not at the same time prohibit dissemination to adults. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

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In 1994, the Erie City Council enacted a public indecency ordinance that purports to criminalize public nudity. However, statements by several council members indicate the real intent of the law was to target nude dancing at adult entertainment businesses. PAP's A.M., the owner of an adult business called Kandyland, challenged the law in state court under the First Amendment and the free-speech provision of the Pennsylvania Constitution. After a trial judge granted a permanent injunction against the ordinance, the city appealed. In 1996, the intermediate state appeals court, called the Commonwealth Court of Pennsylvania, reversed, finding the law constitutional based on the U.S. Supreme Court case Barnes v. Glen Theatre, Inc., which upheld a similar Indiana public indecency law. In 1998, the Pennsylvania Supreme Court reversed the Commonwealth Court, finding the law unconstitutional. The state supreme court said that it could find "no clear precedent" from the fragmented Barnes decision. The city contends the state supreme court erred in failing to apply the result of Barnes. Nude dancing is a form of expressive conduct that merits at least some degree of First Amendment protection. Barnes v. Glen Theatre, Inc.,501 U.S. 560 (1991). Laws that are not designed to suppress freedom of expression but to target harmful secondary effects associated with certain expression are to be considered content-neutral for purposes of First Amendment review. Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

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Section 505 of the Telecommunications Act of 1996 requires cable television operators to "fully scramble or otherwise fully block the video and audio portion" of channels that provide primarily "sexually explicit adult programming." The act provides that cable operators can comply with _ 505 by showing the "indecent" or "sexually explicit adult programming" only during so-called safe-harbor hours, 10 p.m. to 6 a.m., when children are not likely to view the programming. In 1996, Playboy Entertainment Group filed suit in the United States District Court for the District of Delaware seeking to prohibit the enforcement of Section 505. After the three-judge panel denied Playboy's motion for a preliminary injunction, the U.S. Supreme Court in 1997 refused to review the denial of the preliminary injunction. On Dec. 28, 1998, the district court ruled that _ 505 violated the First Amendment. The court ruled the law was content-based because it restricted only sexually explicit adult programming. The government appealed to the U.S. Supreme Court. Indecent speech, unlike obscene speech, is entitled to First Amendment protection. Government officials cannot suppress the free-speech rights of adults in order to protect minors from objectionable material unless the law is very narrowly drafted. Content-based laws are presumptively unconstitutional and the government bears the burden of showing that the law advances a compelling state interest in the least restrictive way.

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In 1996, Congress passed the Child Pornography Prevention Act of 1996 (CPPA) to deal with computer technology used to produce images looking like real children. The law included in its definition of child pornography sexually explicit material that (1) depicts persons who "appear to be minors;" and (2) is advertised as conveying the impression that the person depicted is a minor. On January 27, 1997, the Free Speech Coalition, an adult trade association, and others filed a federal lawsuit challenging the constitutionality of the CPPA. The complaint alleged that the "appears to be a minor" and "conveys the impression" clauses of the CPPA violate the First Amendment and are unconstitutionally vague. Later that year, a federal district court issued an order upholding the constitutionality of the CPPA and granting summary judgment to the government. The district judge ruled that the CPPA is a content-neutral law aimed at the harmful secondary effects associated with virtual child pornography. In December 1999, a three-judge panel of the 9th Circuit ruled 2-1 in favor of Free Speech Coalition. The panel majority determined that the two challenged provisions violate the First Amendment, writing: "censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment."

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In 1977, soon after the U.S. Supreme Court's decision in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the city of Los Angeles' planning commission studies the effects of adult businesses on the city. The study concludes that a proliferation of adult businesses leads to an increase in crime and a decrease in surrounding property values. Based on this study, the city council passes a zoning law that prohibits adult businesses from locating within 1,000 feet of another adult business or 500 feet within a church, school, or public park. Then, in 1983, the city passes an ordinance banning so-called multiple use adult businesses, such as businesses that operate as both adult bookstores and adult arcades. Many years later, two adult businesses Alameda Books and Highland Books that operate as both bookstores and arcades sue in federal court, contending that the 1983 law is unconstitutional. In 1998, a federal district court eventually sides with the adult businesses and prevents the city from enforcing the law. In 2000, a three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed the lower court decision. The 9th Circuit reasons that the city did not have sufficient evidence that multiple-use adult businesses caused harmful, secondary effects. The panel writes: "The study did not identify any harmful secondary effects resulting from bookstore/arcade combinations as individual business units." The city appeals to the U.S. Supreme Court, which grants review on March 5, 2001.

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In Reno v. American Civil Liberties Union, 521 U. S. 844, this Court found that the Communications Decency Act of 1996 (CDA)-Congress' first attempt to protect children from exposure to pornographic material on the Internet-ran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently offensive material. That conclusion was based, in part, on the crucial consideration that the CDA's breadth was wholly unprecedented. After the Court's decision in Reno, Congress attempted to address this concern in the Child Online Protection Act (COPA). Unlike the CDA, COPA applies only to material displayed on the World Wide Web, covers only communications made for commercial purposes, and restricts only "material that is harmful to minors," 47 U. S. C. § 231(a)(I). In defining "material that is harmful to minors," COPA draws on the three-part obscenity test set forth in Miller v. California, 413 U. S. 15, see § 231(e)(6), and thus requires jurors to apply "contemporary community standards" in assessing material, see §231(e)(6)(A). Respondents-who post or have members that post sexually oriented material on the Web-filed a facial challenge before COPA went into effect, claiming, inter alia, that the statute violated adults' First Amendment rights because it effectively banned constitutionally protected speech, was not the least restrictive means of accomplishing a compelling governmental purpose, and was substantially overbroad. The District Court issued a preliminary injunction barring the enforcement of COPA because it concluded that the statute was unlikely to survive strict scrutiny. The Third Circuit affirmed but based its decision on a ground not relied upon by the District Court: that COPA's use of "contemporary community standards," § 231(e)(6)(A), to identify material that is harmful to minors rendered the statute substantially overbroad.

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539 U.S. 194 (2003) UNITED STATES et al. v. AMERICAN LIBRARY ASSOCIATION, INC., et al.         No. 02-361. Supreme Court of United States.    Argued March 5, 2003. Decided June 23, 2003. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA*195 *196 *197 REHNQUIST, C. J., announced the judgment of the Court and delivered an opinion, in which O’CONNOR, SCALIA, and THOMAS, JJ., joined. KENNEDY, J., post, p. 214, and BREYER, J., post, p. 215, filed opinions concurring in the judgment. STEVENS, J., filed a dissenting opinion, post, p. 220. SOUTER, J., filed […]

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In this case we examine a city's "adult business" licensing ordinance to determine whether it meets the First Amendment's requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. See FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990); cf. Freedman v. Maryland, 380 U. S. 51 (1965). We conclude that the ordinance before us, considered on its face, is consistent with the First Amendment's demands.

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This case presents a challenge to a statute enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet, the Child Online Protection Act *660 (COPA), 112 Stat. 2681-736, codified at 47 U. S. C. § 231. We must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the First Amendment.

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Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment.

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Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors.

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October 3, 1957

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