378 U.S. 184 (1964), 11, Jacobellis v. Ohio

Docket Nº:No. 11
Citation:378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793
Party Name:Jacobellis v. Ohio
Case Date:June 22, 1964
Court:United States Supreme Court

Page 184

378 U.S. 184 (1964)

84 S.Ct. 1676, 12 L.Ed.2d 793




No. 11

United States Supreme Court

June 22, 1964

Argued March 26, 1963

Restored to the calendar for reargument April 29, 1963

Reargued April 1, 1964



Appellant, manager of a motion picture theater, was convicted under a state obscenity law of possessing and exhibiting an allegedly obscene film, and the State Supreme Court upheld the conviction.

Held: The judgment is reversed. Pp. 184-198.

173 Ohio St. 22,179 N.E.2d 777, reversed.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE GOLDBERG, concluded that:

1. Though motion pictures are within the constitutional guarantees of freedom of expression, obscenity is not within those guarantees. P. 187.

2. This Court cannot avoid making an independent judgment as to whether material condemned as obscene is constitutionally protected. Pp. 187-190.

3. The test for obscenity is

whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

Roth v. United States, 354 U.S. 476. Pp. 191-195.

(a) A work cannot be proscribed unless it is "utterly without redeeming social importance," and, hence, material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection. P. 191.

(b) The constitutional status of allegedly obscene material does not turn on a "weighing" of its social importance against its prurient appeal, for a work may not be proscribed unless it is "utterly" without social importance. P. 191.

(c) Before material can be proscribed as obscene under this test, it must be found to go substantially beyond customary limits of candor in description or representation. Pp. 191-192.

(d) The "contemporary community standards" by which the issue of obscenity is to be determined are not those of the particular

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local community from which the case arises, but those of the Nation as a whole. Pp. 192-195.

4. The recognized interest in preventing dissemination of material deemed harmful to children does not justify its total suppression. This conviction, based not on the exhibition of the film to children, but on its exhibition to the public at large, must be reviewed under the strict standard applicable in determining the scope of the constitutional protection. P. 195.

5. The film is not obscene under the applicable standard. P. 196.

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that a conviction for exhibiting a motion picture violates the First Amendment, which is made obligatory on the States by the Fourteenth Amendment. Pp. 196-197.

MR. JUSTICE STEWART concluded that criminal obscenity laws are constitutionally limited under the First and Fourteenth Amendments to "hard-core pornography." P. 197.

MR. JUSTICE GOLDBERG concluded that there is no justification here for making an exception to the "freedom of expression" rule, for, by any arguable standard, this film is not obscene. Pp. 197-198.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE GOLDBERG joins.

Appellant, Nico Jacobellis, manager of a motion picture theater in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene film in

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violation of Ohio Revised Code (1963 Supp.), § 2905.34.1 He was fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid. His conviction, by a court of three judges upon waiver of trial by jury, was affirmed by an intermediate appellate court, 115 Ohio App. 226, 175 N.E.2d 123, and by the Supreme Court of Ohio, 173 Ohio St. 22, 179 N.E.2d 777. We noted probable jurisdiction of the appeal, 371 U.S. 808, and subsequently restored the case to the calendar for reargument, 373 U.S. 901. The dispositive question is whether the state courts properly found that the motion picture involved, a French film called "Les Amants" ("The Lovers"), was obscene, and

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hence not entitled to the protection for free expression that is guaranteed by the First and Fourteenth Amendments. We conclude that the film is not obscene, and that the judgment must accordingly be reversed.

Motion pictures are within the ambit of the constitutional guarantees of freedom of speech and of the press. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495. But, in Roth v. United States and Alberts v. California, 354 U.S. 476, we held that obscenity is not subject to those guarantees. Application of an obscenity law to suppress a motion picture thus requires ascertainment of the "dim and uncertain line" that often separates obscenity from constitutionally protected expression. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66; see Speiser v. Randall, 357 U.S. 513, 525.2 It has been suggested that this is a task in which our Court need not involve itself. We are told that the determination whether a particular motion picture, book, or other work of expression is obscene can be treated as a purely factual judgment on which a jury's verdict is all but conclusive, or that, in any event, the decision can be left essentially to state and lower federal courts, with this Court exercising only a limited review such as that needed to determine whether the ruling below is supported by "sufficient evidence." The suggestion is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial

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supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. Since it is only "obscenity" that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law. See Roth v. United States, supra, 354 U.S. at 497-498 (separate opinion). Such an issue, we think, must ultimately be decided by this Court. Our duty admits of no "substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case." Id., at 498; see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (opinion of Harlan, J.).3

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In other areas involving constitutional rights under the Due Process Clause, the Court has consistently recognized its duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case. E.g., Watts v. Indiana, 338 U.S. 49, 51; Norris v. Alabama, 294 U.S. 587, 590.4 And this has been particularly true where rights have been asserted under the First Amendment guarantees of free expression. Thus in Pennekamp v. Florida, 328 U.S. 331, 335, the Court stated:

The Constitution has imposed upon this Court final authority to determine the meaning and application of whose words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.5

We cannot understand why the Court's duty should be any different in the present case, where Jacobellis has

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been subjected to a criminal conviction for disseminating a work of expression, and is challenging that conviction as a deprivation of rights guaranteed by the First and Fourteenth Amendments. Nor can we understand why the Court's performance of its constitutional and judicial function in this sort of case should be denigrated by such epithets as "censor" or "super-censor." In judging alleged obscenity, the Court is no more "censoring" expression than it has in other cases "censored" criticism of judges and public officials, advocacy of governmental overthrow, or speech alleged to constitute a breach of the peace. Use of an opprobrious label can neither obscure nor impugn the Court's performance of its obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments, and, in doing so, to delineate the scope of constitutionally protected speech. Hence, we reaffirm the principle that, in "obscenity" cases, as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.6

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[84 S.Ct. 1680] The question of the proper standard for making this determination has been the subject of much discussion and controversy since our decision in Roth seven years ago. Recognizing that the test for obscenity enunciated there --

whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest,

354 U.S. at 489 -- is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is "utterly without redeeming social importance," and that

[t]he portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

Id., 354 U.S. at 484, 487. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, or that has literary or scientific or artistic value or any other form of social importance, may...

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