Jacobellis v. Ohio, 378 U.S. 184 (1964)

obscene material does not ‘‘turn on a ‘weighing’ of its social importance against its prurient appeal’’ unless the material is ‘‘utterly without social importance.’’ Material must be found to go ‘‘substantially beyond customary limits of candor in description or representation of such matters’’ before it is declared obscene. In the absence of such a finding, inquiries into the alleged prurient appeal of the work or expression are unnecessary. Finally, ‘‘contemporary community standards’’ cannot be interpreted as referring to particular local communities but to society at large or the public in general. Brennan, paraphrasing John Marshall, declaims ‘‘It is, after all, a national Constitution that we are expounding.’’ Warren’s dissent, while accepting the Roth test, disagreed with the Court’s decision in three ways. First, he disagrees that a national standard can be proven to be the relevant ‘‘community standard.’’ Second, he concludes that ‘‘hard core pornography’’ offers no greater clarity than ‘‘obscenity’’ and puts forward his own view that it is the ‘‘use to various materials are put’’ that determines whether something is obscene or not; a technical treatise on pornography could well be obscene when sold or displayed to children. Third, he concludes that the Supreme Court should limit its reviews of lower court decisions involving obscenity to whether ‘‘sufficient evidence’’ Any free society must strike a balance between protecting public health and safeguarding civil liberties. In 1894, Massachusetts enacted a law that allowed municipalities to order the Compulsory Vaccination of its residents during disease outbreaks. The Cambridge Board of Health in 1902 ordered its residents to be vaccinated. Henning Jacobson refused to be inoculated and was arrested and prosecuted. The trial jury found him guilty, and the court fined him five dollars. He appealed his conviction to the Supreme Judicial Court of Massachusetts, which sustained his conviction. Jacobson then appealed to the United States Supreme Court.

The Court, in an opinion written by Justice John Marshall Harlan, upheld the conviction and ruled that the Massachusetts statute authorizing local boards of health to make vaccination compulsory was constitutional. The defendant alleged that the law violated his liberty, ‘‘the inherent right of every freeman to care for his own body and health in such way as seems to him best,’’ as guaranteed by the Fourteenth Amendment.

The Fourteenth Amendment prohibits the states from depriving any person of liberty without due process of law. Justice Harlan explained that each citizen enters into a social contract, according to which he promises to obey the laws in exchange for the benefits of living in a society under law. The Massachusetts legislature determined that an unvaccinated person put all fellow citizens at risk of infection. The law can compel a person to be inoculated even when the vaccine poses a risk of harm or even death. The Compulsory Vaccination statute was an exercise by Massachusetts of its ‘‘police power.’’ The police power is the power to make laws for the health, safety, morals, and welfare of the people.

The responsibility of the judiciary, said Harlan, is not to examine the medical evidence on its own but to defer to the legislature’s judgment. Following the Court’s decision, additional states required vaccination of all children prior to enrollment in school. The Supreme Court later upheld the authority of states to subject automobile drivers to breath and blood tests to determine intoxication.

The Court’s rejection of a right to control one’s body and to resist governmental intrusion, however, was successfully challenged in a number of other cases. In Roe v. Wade (1973) and Lawrence v. Texas (2003), the Supreme Court judged that abortion and sodomy did not pose nearly as serious a risk to the common good as unvaccinated persons, and therefore the burden on individual liberty was unjustified.

The terrorist attacks on New York City and Washington, D.C., in September 2001 raised fears of bioterrorism, in which terrorists would introduce viruses or bacteria causing smallpox, anthrax, and other diseases. Within two years, more than thirty states enacted a version of the Model State Emergency Health Powers Act, which permits governors to declare a state of emergency and subject residents to Compulsory Vaccination.

KENNETH M. HOLLAND

References and Further Reading

• Joseph, D. George. ‘‘Uses of Jacobson v. Massachusetts in the Age of Bioterror.’’ Journal of the American Medical Association 290 (2003): 2331.
• Matsumoto, Gary. Vaccine A: The Covert Government Experiment That’s Killing Our Soldiers—And Why GI’s Are Only The First Victims. New York: Basic Books, 2004.
• Silverman, Ross D., No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, Annals of Health Law 12 (2003): 277–294.

Cases and Statutes Cited

• Lawrence v. Texas, 539 U.S. 558 (2003)
• Roe v. Wade, 410 U.S. 113 (1973)

See also Abortion; Due Process; Fourteenth Amendment; Lawrence v. Texas, 539 U.S. 558 (2003); Police Power of the State; Roe v. Wade, 410 U.S. 113 (1973); Sodomy Laws; Terrorism and Civil Liberties