Private Possession of Obscenity in the Home

In Stanley v. Georgia, 394 U.S. 557 (1969), the U.S. Supreme Court struck down a Georgia statute that made it a crime ‘‘knowingly’’ to possess obscene material. The decision had its roots in common law, as well as in earlier Supreme Court decisions.

A decade earlier, in Roth v. United States, 354 U.S. 476 (1957), the Court had held that while all ‘‘ideas having even the slightest redeeming social importance’’ are protected by the First Amendment, those protections do not extend to obscenity. The Roth Court explained that ‘‘implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.’’ This statement reflects the history of obscenity at common law: In the seventeenth century, British law created four new crimes that were designed to control the content of speech: obscenity, blasphemy, seditious libel, and criminal libel. The American colonists brought these crime labels with them to the new world; in the decades after the Revolution, which brought a new system of government and the adoption of the Bill of Rights, most of them fell into disrepute and disuse. Obscenity, though, survived and became the focus of a number of state and federal statutes adopted in the nineteenth century. Surprisingly, it was not until the middle of the twentieth century, in Roth, that the Court was required to decide whether the First Amendment barred prosecutions under these statutes; the Court held that it did not because the content of obscenity does not warrant such protection.

In 1968, Robert Stanley was convicted of possessing obscene material in violation of Georgia law and appealed to the Supreme Court, claiming his conviction violated the First Amendment. The Court noted that while obscenity is not protected by the First Amendment, none of its prior decisions addressed ‘‘private’’ conduct; they all involved the propriety of regulating public actions such as distributing obscenity. Roth was not controlling because it dealt with regulating the commercial distribution of obscenity, not private possession. After noting that the Constitution protects the right to receive information and ideas, the Court explained that ‘‘in the context of this case—a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home—that right takes on an added dimension. For also fundamental is the right to be free ... from unwanted governmental intrusions into one’s privacy.’’ It also explained that if ‘‘the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.’’

The Supreme Court rejected Georgia’s argument that it should be able to protect individual minds from obscenity and held that the First Amendment prohibits ‘‘making mere private possession of obscene material a crime.’’ The Court has applied this holding in subsequent cases, including Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

SUSAN W. BRENNER

References and Further Reading

  • Easton, Susan M. The Problem of Pornography: Regulation and the Right to Free Speech. New York: Routledge, 1994.
  • Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois Press, 1996.

Cases and Statutes Cited

  • Roth v. United States, 354 U.S. 476 (1957)
  • Stanley v. Georgia, 394 U.S. 557 (1969)

See also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Bill of Rights: Stucture; Child Pornography; Content-Based Regulation of Speech; Content- Neutral Regulation of Speech; Defamation and Free Speech; Freedom of Speech and Press under the Constitution: Early History (1791–1917); Freedom of Speech: Modern Period (1917–Present); Freedom of the Press: Modern Period (1917–Present); Freedom Speech and Press: Nineteenth Century; Obscenity; Obscenity in History; Philosophy and Theory of Freedom of Expression; Roth v. United States, 354 U.S. 476 (1957); Seditious Libel; Self-Fulfillment Theory of Free Speech; State Courts

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