Rabe v. Washington, 405 U.S. 313 (1972)

Rabe was convicted under Washington’s antiobscenity law for showing Carmen Baby, a motion picture and adaptation of the opera, Carmen, which included sexually frank scenes, at his outdoor drive-in theatre where the film could be seen by passing motorists and by teenagers watching from outside the fence surrounding the theatre. The state’s Supreme Court affirmed Rabe’s conviction. The U.S. Supreme Court in a per curiam opinion authored by Justice Douglas reversed the lower court; Chief Justice Burger wrote a concurring opinion.

The Court’s per curiam noted that the Washington Supreme Court did not hold the movie to be obscene under either the Roth (Roth v. United States [1957]) or Memoirs (A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Attorney General of Massachusetts [1966]) standards. The state court, ‘‘uncertain’’ as to whether the movie was offensive according to these standards and unsure of its artistic or literary value, concluded that if Roth were applied the movie would pass the definitional standard of obscenity ‘‘if the viewing audience consisted only of consenting adults.’’ Still, despite this conclusion, the Washington court upheld Rabe’s conviction because of the ‘‘context of its exhibition’’ rendered the movie obscene (italics in original).

The flaw in the court’s finding lay in the absence of any mention of ‘‘context’’ in the state’s antiobscenity law. Thus, if the constitutional ‘‘vice’’ of vagueness were to be avoided, the statute had to give ‘‘fair notice’’ that certain conduct was proscribed. ‘‘The statute, so construed,’’ Douglas wrote, ‘‘is impermissibly vague ... because of its failure give [Rabe] fair notice that criminal liability is dependent upon the place where the film is shown.’’ The Supreme Court, for this reason, felt no need to address the constitutional questions put to the Court by the parties.

Burger takes the opportunity in his concurrence, after agreeing with the majority’s ruling, to highlight his view that Carmen Baby and other public displays of sexually explicit material ‘‘are not significantly different from any noxious public nuisance.’’ Narrowly drawn statutes aimed at protecting the public, especially adults unwilling to view the material and juveniles, ‘‘involve no significant countervailing First Amendment considerations.’’

ROY B. FLEMMING

References and Further Reading

• Alexander, Donald. The Politics of Pornography. Chicago: University of Chicago Press, 1989.
• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale, IL: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Law, and Documents. Santa Barbara, CA: ABC-Clio, 2002.

Cases and Statutes Cited

• A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Attorney General of Massachusetts, 383 U.S. 413 (1966)
• Roth v. United States, 354 U.S. 476 (1957)