Jacobellis v. State of Ohio, No. 11

CourtUnited States Supreme Court
Writing for the CourtBRENNAN
Citation378 U.S. 184,12 L.Ed.2d 793,84 S.Ct. 1676
Decision Date22 June 1964
Docket NumberNo. 11
PartiesNico JACOBELLIS, Appellant, v. STATE OF OHIO. Re

378 U.S. 184
84 S.Ct. 1676
12 L.Ed.2d 793
Nico JACOBELLIS, Appellant,

v.

STATE OF OHIO.

No. 11.
Reargued April 1, 1964.
Decided June 22, 1964.

[Syllabus from pages 184-185 intentionally omitted]

Page 185

Ephraim London, New York City, for appellant.

John T. Corrigan, Cleveland, Ohio, for appellee.

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

Page 186

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, 83 S.Ct. 28, 9 L.Ed.2d 52, and subsequently restored the case to the calendar for reargument, 373 U.S. 901, 83 S.Ct. 1288, 10 L.Ed.2d 197. 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

Page 187

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, 72 S.Ct. 777, 96 L.Ed. 1098. But in Both v. United States and Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 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, 83 S.Ct. 631, 637, 9 L.Ed.2d 584; see Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 1342, 2 L.Ed.2d 1460.2 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

Page 188

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, 77 S.Ct., at 1315—1316 (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., 354 U.S., at 498, 77 S.Ct., at 1316, see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (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, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Norris v. Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074.4 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, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295, 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

Page 190

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 canno 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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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, 77 S.Ct., at 1311—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, 77 S.Ct., at 1310. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.7 Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance. See Zeitlin v. Arnebergh, 59 Cal.2d 901, 920, 31 Cal.Rptr. 800, 813, 383 P.2d 152, 165 (1963). It should also be recognized that the Roth standard requires in the first instance a finding that the material 'goes substantially beyond customary limits of candor in description or representation of such matters.' This was a requirement of the Model Penal Code test that we approved in Roth, 354 U.S., at 487, n. 20, 77 S.Ct., at 1310 and it is explicitly reaffirmed in the

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more recent Proposed Official Draft of the Code.8 In the absence of such a deviation from society's standards of decency, we do not see how any official inquiry into the allegedly prurient appeal of a work of expression can be squared with the guarantees of the First and Fourteenth Amendments. See Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482—488, 82 S.Ct. 1432, 1434—1438 (opinion of Harlan, J.).

It has been suggested that the 'contemporary community standards' aspect of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth. The concept of 'contemporary community standards' was first expressed by Judge Learned Hand in United States v. Kennerley, 209 F. 119, 121 (D.C.S.D.N.Y.1913), where he said:

'Yet, if the time is not yet when men think innocent all that which is honestly germane to a pure subject, however little it may mince its words, still I scarcely think that they would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its memberships. If there be no abstract definition, such as I have suggested, should not the word 'obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? * * * To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the

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necessities of the lowest and least capable seems a fatal policy.

'Nor is it an objection, I think, that such an...

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1004 practice notes
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...Supra, --- U.S. at ---, 93 S.Ct. at 2619, 37 L.Ed.2d 419. We agree with the dissent of former Chief Justice Warren in Jacobellis v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), quoted with approval in Miller v. California, Supra, --- U.S. at ---, 93 S.Ct. at 2619, 37 L.Ed.......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it...." Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., On the other hand, in every society, there are fundamental norms of decency and morality......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
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    ...F. Supp. 49 in 1961 (Entertainment Ventures, 306 F.Supp. at 813), five years prior to Memoirs and two years prior to Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1963), in which Justice Brennan speaking for the Court, first drew explicit attention to the social-valu......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1972
    ...freedoms of the licensee and the public are fully and fairly taken into account in the decision making process. See Jacobellis v. Ohio, 378 U.S. 184, 187-190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Niemot......
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983 cases
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...Supra, --- U.S. at ---, 93 S.Ct. at 2619, 37 L.Ed.2d 419. We agree with the dissent of former Chief Justice Warren in Jacobellis v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), quoted with approval in Miller v. California, Supra, --- U.S. at ---, 93 S.Ct. at 2619, 37 L.Ed.......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it...." Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., On the other hand, in every society, there are fundamental norms of decency and morality......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 20, 1972
    ...F. Supp. 49 in 1961 (Entertainment Ventures, 306 F.Supp. at 813), five years prior to Memoirs and two years prior to Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1963), in which Justice Brennan speaking for the Court, first drew explicit attention to the social-valu......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 25, 1972
    ...freedoms of the licensee and the public are fully and fairly taken into account in the decision making process. See Jacobellis v. Ohio, 378 U.S. 184, 187-190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Niemot......
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    • LexBlog United States
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    ...enough to smack of “transformativeness” and therefore focused instead on evaluating the aesthetic differences. [36] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). [37] Prince. (2003.) Xpectation [Album]. NPG...
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    ...enough to smack of “transformativeness” and therefore focused instead on evaluating the aesthetic differences. [36] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). [37] Prince. (2003.) Xpectation [Album]. NPG...
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    ...in their speeches and other public statements. (105) See, e.g., Lemon v. Kuruman, 403 U.S. 602, 616-17 (1971). (106) Jacobellis v. Ohio, 378 U.S. 184, 184 (107) See Marc O. DeGirolami, The Two Separations, in THE CAMBRIDGE COMPANION TO THE FIRST AMENDMENT AND RELIGIOUS FREEDOM 396 (Michael ......
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    ...Co. v. Roy, 401 U.S. 265, 277 (1971). (95.) See, e.g., Sullivan, 376 U.S. 254; Bose, 466 U.S. 485. (96.) See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (opinion of Brennan, (97.) See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 567 (1995)......
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    ...171 (1968) (Harlan & Stewart, JJ., dissent-ing) ; Pointer v. Texas, 380 U.S. 400, 408 (1965) (Harlan, J., concurring) ; Jacobellis v.Ohio, 378 U.S. 184, 203 (Harlan, J., dissenting).16 One, The Homosexual Magazine, Inc. v. Oelsen, 355 U.S. 371 (1958), reversing 241 F.2d772 (9th Cir. 1957) ;......
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