Obscenity has been regulated by the states since the early history of our country. The origins of these laws are primarily religious and designed to maintain some level of public morality. However, it was not until 1957 in Roth v. United States, 354 U.S. 476 (1957), that the U.S. Supreme Court addressed the issue of whether obscenity was protected by the First Amendment and subsequently determined that it was not. The Court in Paris Adult Theatre I affirmed the Roth conclusion that obscenity can be regulated without regard to First Amendment concerns of censorship, although it was the Miller v. California case (Miller v. California, 413 U.S. 15, 1973), decided the same day, that attempted to establish a definition of obscenity to distinguish it from constitutionally protected pornography.
Two adult movie theaters and their owners and managers were subject to civil complaints in Atlanta, Georgia, in 1971 for violating a state law prohibiting the distribution of obscene materials. For purposes of the litigation it was assumed that the obscene films were exhibited to paying adults only and that the public was given ample warning of the nature of the films. However, the Georgia Supreme Court held that the showing of these films should have been enjoined because the First Amendment does not protect hardcore pornography. The U.S. Supreme Court agreed with Georgia that obscene materials are not protected by the First Amendment, but vacated and remanded the case for reconsideration of whether the two films at issue were actually obscene under the constitutional definition adopted by the Court that same day in the Miller decision. Expert testimony is not required to decide whether the films are obscene under this standard because the materials are sufficient evidence by which to make this determination.
The Court made it clear that even though the films were shown only to consenting adults, states retain a legitimate interest in regulating obscene material for reasons other than keeping juveniles and unconsenting adults from being exposed to such material. The states have an interest in preserving ‘‘the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.’’ Thus, states are allowed to use their police power to regulate obscene expression to protect the health, safety, morals, and welfare of the community. Defending public morality is justified as necessary to preserve a decent society and to guard against secondary effects, such as sex crimes and other antisocial behavior, which may result from exposure to obscene material.
Proof of a scientific correlation between the exhibiting of obscene films and antisocial behavior was unnecessary and instead the Court accepted the state legislature’s reasonable conclusion that such a link might exist and it allowed Georgia to act to preserve public morality. The Court found ample evidence to support a legislative conclusion ‘‘that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.’’
There is no fundamental privacy interest of a consenting adult to publicly view obscene material. Even though the Court in Stanley v. Georgia, 394 U.S. 557 (1969), recognized an individual’s right to view obscene material in the privacy of the home, the Paris Adult Theatre I Court refused to extend this privacy right into a place of public accommodation. Preventing the public showing of the obscene films was not deemed to be the state’s attempt to control the thoughts or intellect of a person interested in viewing this material. The state may regulate the constitutionally unprotected display of obscene material despite the fact that the regulation incidentally has an impact on some human thought.
In conclusion, the Court reaffirmed Roth’s holding that obscene material is not protected by the first amendment and that states may regulate obscene material, defined according to the standards established in Miller, even though the material is shown to consenting adults only. The Miller standards continue to be used to determine whether material is protected under the first amendment or is obscene and not protected.
The Paris Adult Theatre I decision supports state regulation of certain conduct to preserve public morality. For example, the Court in Barnes v. Glen Theatre, Inc, 501 U.S. 560 (1991), cited Paris Adult Theatre I as authority for upholding an Indiana public indecency statute, legitimately designed to protect public morality. Although a plurality in Barnes recognized that nude dancing is expressive conduct under the First Amendment, the Court upheld the state statute requiring dancers to wear pasties and G-strings to achieve the state purpose of prohibiting public nudity. Indiana was justified in regulating public nudity based upon the Court’s conclusion in Paris Adult Theatre I that the state has a legitimate interest in regulating public morality. The Court in Bowers v. Hardwick, 478 U.S. 186 (1986), also upheld Georgia’s legislative decision to prohibit homosexual sodomy based on a moral choice and noted that the law is ‘‘constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed.’’
The Paris Adult Theatre I, Miller, and Barnes cases were all five-to-four decisions. With the recognition of the right of privacy in decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), and Roe v. Wade, 93 410 U.S. 113 (1973), and the overruling of Bowers v. Hardwick by Lawrence v. Texas, U.S. 123 S.Ct. 2472, 2003), the viability of the Paris Adult Theatre I pronouncement that states have a legitimate interest in regulating public morality remains valid but is prudently qualified when public morality is sought to be enforced in the home. The Court in Lawrence, quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), recognized a ‘‘realm of personal liberty which the government may not enter’’ and determined that the Texas ban on same-sex sodomy when applied to behavior in private did not further a legitimate state interest sufficient to ‘‘justify its intrusion into the personal and private life of the individual.’’
References and Further Reading
Cases and Statutes Cited