The First Amendment protects freedom of speech, yet the Supreme Court has stated in cases such as in Miller v. California and Roth v. United States that obscenity and obscene materials are not speech and therefore may be banned and made illegal. However, may the government make the mere possession of obscenity in the privacy of one’s own home illegal? In Stanley v. Georgia, the Court said no.
In general, the First Amendment guarantees that neither Congress nor state and local governments via the Fourteenth Amendment may infringe or place limits on free speech. Yet what free speech is exactly is not always clear. Over time, the Court has sought to clarify what types of speech the Constitution protects, with political utterances and statements given the most protection, and other types of communication, such as commercial advertising, given less. Yet the Supreme Court has also declared that some types of communication are not protected by the First Amendment, including blackmail, extortion, and, most importantly, obscene materials. Although there is some disagreement regarding exactly what constitutes obscenity, cases such as Miller v. California and Roth v. United States have both outlined ways to determine what is obscene and declared that such material is not protected under the First Amendment.
At the same time that the Constitution has exempted obscenity from First Amendment protection, the Court has also stated that the right to privacy is a fundamental right. In cases such as Griswold v. Connecticut and Mapp v. Ohio, the Court has declared, as Justice Louis Brandeis once stated in Olmstead v. United States, that we have a ‘‘right to be left alone.’’ How can this constitutional right to be left alone be reconciled with the criminalization of obscenity?
In Stanley v. Georgia, Robert Stanley’s house was subject to a valid search, with a warrant having been issued to look for evidence of illegal bookmaking. During the search, police discovered three reels of films that they believed to be obscene. He was charged with violation of a state law making it illegal to possess obscene materials. Stanley challenged the law, claiming that its application to the private possession of obscene materials violated his First Amendment rights. The Supreme Court agreed.
Writing for the majority in a nine-to-zero decision, Justice Thurgood Marshall first noted that past decisions made it clear that obscenity was not protected under the First Amendment. Yet citing cases such as Griswold v. Connecticut, which had upheld the right of married couples to receive information about birth control, he also stated that individuals have a constitutional right to receive information and ideas, regardless of their social worth or value. In addition, the Court also declared that the Constitution protects a right to privacy in own’s home. Together then, the right to receive information and the right to privacy outweighed any interest the state of Georgia had in making the private possession in one’s home of obscenity illegal.
The Court rejected arguments by the state that obscenity corrupts individuals, asserting that this claim is nothing more than arguing that the government has the right to control the moral content of what people think. For Marshall, the First Amendment unambiguously protects the right of individuals to think what they want, regardless of its value. Finally, the Court also rejected claims that the state could prosecute the private possession of obscenity on the claim that it leads to sexual violence or crimes. Marshall pointed out that there was no proof for this claim and that if it does lead to sex crimes, then criminal punishment was the solution.
Stanley v. Georgia was an important decision rejecting censorship and affirming the right to privacy in the home. However, the decision was limited in future application. In Bowers v. Hardwick, the Court upheld a Georgia law that criminalized sodomy among consenting adults of the same sex that takes place in the home, although that decision was overruled in Lawrence v. Texas. However, in Osborne v. Ohio, the Court ruled that the mere private possession of child pornography in the home was not protected under Stanley.
References and Further Reading
Cases and Statutes Cited
See also Freedom of Speech: Modern Period (1917– Present); Griswold v. Connecticut, 381 U.S. 479 (1965); Miller v. California, 413 U.S. 15 (1973); Obscenity; Olmstead v. United States, 277 U.S. 438 (1928); Osbourne v. Ohio, 495 U.S. 103 (1990); Right of Privacy