• The idea that “[t]here are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any [c]onstitutional problem,”(1) because of the speech's tendency to promote some variety of public harm has always been generally accepted. Even jurists such as Hugo Black and William O. Douglas, self-identified First Amendment literalists, recognize “case where speech is brigaded with action,” and expression and action are “inseparable, and a prosecution can be launched for the overt acts actually caused.”(2) Exactly how these classes are defined, or what they are, however, is far from settled. Classifying obscenity as a form of non-protected speech is particularly problematic because the only harm ever advanced to explain obscenity's prohibition was “the tendency [...] to deprave and corrupt those whose minds are open to such influences,”(3) an explanation rejected in 1933.(4)

    Despite this, obscene speech still receives no protection from the First Amendment. The first modern obscenity case to reach the national level, Roth v. United States,(5) unequivocally declared “that obscenity is not protected by the freedoms of speech and press.”(6) According to Roth, obscenity was any work “without redeeming social importance[, which] to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”(7) These standards were so unclear that, for the next two decades, the members of the Supreme Court and their law clerks gathered to view porn films and make case-by-case decisions on what works were and were not obscene.(8) Roth was eventually replaced with Miller v. California,(9) which emphasized “contemporary community standards” in deciding what was obscene(10) and Roth is most remembered to-day for its vague standards of what constituted obscenity, however, the reasoning behind the conclusion that obscenity ought not enjoy the protections offered by the First Amendment receives little criticism.

    Obscene speech, Justice Brennan wrote for a five-justice majority, was not protected because the historical record indicated that at the time of the First Amendment's drafting no state considered obscenity protected speech,(11) and secondly because of a long record of dicta in prior cases in which the Court has assumed it was not protected.(12) Both of these claims are, in one way or another, seriously flawed.

    The historical record that Brennan cites shows that there was a broad national consensus at the time of the writing of the Constitution that individual states had the power to regulate speech:
    [t]he guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Thus, profanity and obscenity were related offenses.(13)

    However, until the ratification of the Fourteenth Amendment in 1868, there was no provision in the Constitution which required states to respect the rights provided for in the First Amendment. The observation that states, before the First Amendment applied to them, prohibited obscenity is not particularly helpful in determining what the First Amendment does and does not protect. Moreover, by the time the Court ruled on Roth laws prohibiting blasphemy almost certainly would have not passed constitutional muster,(14) and a law prohibiting all profanity would be struck down for being over-broad under Roth's own ruling that material “having even the slightest redeeming social importance” could not be prohibited.(15) To use laws against blasphemy and profanity as evidence that obscenity, like blasphemy and profanity was not meant to be protected by the First Amendment wrongly assumes that blasphemy and profanity are, in fact, not protected by the First Amendment.

    Neither is the implicit comparison to libel particularly persuasive. There is good reason for states to provide a mechanism to punish speech that is patently false and designed to injure the business or reputation of neighbors. It is not an immediate threat to the security of the nation in the manner that, say, publishing the location of every covert CIA operative in a newspaper might be, nor does it create public chaos simply by its utterance the way shouting fire in a crowded theater might, but it is unquestionable that defamation causes harm. What precise and immediately obvious injury seeing sexually explicit material does someone is much less well defined.

    Even weaker is the use of multiple asides and comments in previous opinions. The Court notes that obscenity was assumed to be unprotected (but without justification) in two opinions preceding Roth, Chaplinsky v. New Hampshire,(16) and Beauharnais v. Illinois,(17) and that between the founding of the Republic and 1956 when the Court decided Roth congress had passed no less than twenty laws prohibiting obscenity.(18) However, citing two opinions which declare that it is self-evident that a certain class of speech does not enjoy First Amendment protection, in conjunction with noting that for eleven decades that class of speech had been restricted without intervention of the judiciary is not a case based on particular reasons, but rather only upon a precedent of judicial inaction. If unconstitutional laws persist for enough years they do not become constitutional.

    The Chaplinsky decision did, however, give some hints to a reason that prohibiting obscenity might be tolerable.19 In both Roth and Chaplinsky there is an historical assumption about the motivations of the authors of the First Amendment, specifically that
    [t]he importance of [protecting free speech] consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.(20)

    If knowledge and good governance were the goals of the First Amendment then forms of expression, “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”(21) could reasonably be prohibited. This reading did, to some extent, guide the Roth decision and is why the test for obscenity that Roth articulates requires the work in question to be without any meaningful social importance.

    However the argument that obscenity is so without value that it does not matter if it is prohibited still leaves important questions unanswered. Even when material may be restricted because of its lack of a meaningful contribution to society it must be restricted in a way neutral to content.22 Content-neutrality is vital to an understanding of the First Amendment centred on the free exchange of ideas. For ideas to flow freely there must be some measure to limit the risk “that the government may effectively drive certain ideas or viewpoints from the marketplace.”(23) The ban on content-based restrictions is not absolute, “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists”(24) and content-based restrictions are permissible. For example, it is acceptable to have a restriction on speech with libelous content. Distinctions within that prohibited category however, are not Constitutional.

    This is a significant problem for obscenity because its defining features (patent offensiveness, sexually explicit subject matter, etc. in addition to no redeeming social merit) are not identical to the basis for why it is proscribable (no redeeming social merit). In other words, there is content discrimination afoot within the category of speech without redeeming social merit. There are many things which do nothing to advance science, culture or our understanding of the world; obscenity is only the subset of this speech with an overtly sexual and offensive nature. Material that is merely offensive and of no social value (see, e.g., making fun of overweight folk or the deaf) is not obscenity and is either not prohibited or prohibited under a different law carrying different punishments for its violation. There is a difference in punishment and restriction that must, then, be the direct result of the sexual nature of obscenity, a content-based restriction.
    1. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).

    2. Brandenberg v. Ohio, 395 U. S. 444, 456-457 (1969)(Douglas, J., concurring).

    3. Regina v. Hicklin, 3 L.R-Q.B. 360, 371 (1868).

    4. See United States v. One Book Called “Ulysses”, 5 F. 182 (S.D.N.Y. 1933).

    5. 354 U.S. 476 (1957).

    6. Id. at 481.

    7. Id. at 484-487.

    8. See Bob Woodward & Scott Armstrong, The Brethren 193-200 (Simon & Schuster, 1979).

    9. 413 U.S. 15 (1973).

    10. Id. at 45.

    11. Roth v. United States, supra note 4 at 482-484

    12. Id. at 481

    13. Id. at 482-483.

    14. See, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940)

    15. Roth v. United States, 354 U.S. 476, 484 (1957).

    16. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).

    17. 343 U.S. 250, 266 (1952).

    18. Roth v. United States, supra note 15 at 485.

    19. In fairness to the authors of the Roth opinion, they did spend a page and a half briefly mentioning this same reason.

    20. Letter of the Continental Congress to the Inhabitants of Quebec, 1 J. Continental Cong. 108 (1774).

    21. Chaplinsky v. New Hampshire, supra note 16, at 572.

    22. See, e.g., R. A. V. v. St. Paul, 505 U.S. 377 (1992).

    23. Simon & Schuster, Inc. v. Members of the N. Y. State Crime Victimes Bd., 502 U.S. 105, 116 (1991).

    24. R. A. V. v. St. Paul, supra note 22 at 388.