Stanley v. Georgia: A First Amendment Approach to Obscenity ..., Schemes and Mind Maps of Law

Download Stanley v. Georgia: A First Amendment Approach to Obscenity ... and more Schemes and Mind Maps Law in PDF only on Docsity! STANLEY V. GEORGIA: A FIRST AMENDMENT APPROACH TO OBSCENITY CONTROL In 1957 in Roth v. United States' the Supreme Court declared that ob- scenity as a class of expression was without first amendment protection. While officially upholding the validity of Roth, the Court has quietly narrowed the application of this declaration through a series of modify- ing decisions.2 The most recent of these modifying decisions is Stanley v. Georgia.' Robert Eli Stanley was being investigated by federal and state agents for suspected bookmaking activities. On the basis of this investigation they secured a search warrant and entered his home. No evidence of bookmaking activities was found, but the officers did find three reels of movie film in an upstairs bedroom. The officers borrowed a projector from the same home and viewed the films. Concluding that the films were obscene and determing that Stanley occupied the bedroom in which they were seized, the state officers arrested Stanley. He was convicted for know- ingly possessing obscene material in violation of Georgia law.' That con- viction was affirmed by the Georgia Supreme Court.5 Upon appeal, the United States Supreme Court reversed the conviction on the ground that the first and fourteenth amendments prohibited making mere private pos- session of obscene material a crime.6 The issue of private possession of obscene material was not a new one. It had been given thorough consideration by the Ohio Supreme Court in 1960 in the case of State v. Mapp.7 The majority of court felt that the 1 359 U.S. 476 (1957). 2 Se Redrup v. New York, 386 U.S. 767 (1967); Ginzburg v. United States, 383 U.S. 463 (1966). 8 394 U.S. 557 (1969). 4 GEORGIA CODE ANN. § 26-6301 (Supp. 1969) provides: Any person... who shall knowingly have possession of ... any obscene matter ... shall ... be guilty of a felony .... Prior to Stanley v. Georgia, 394 U.S. 557 (1969), in addition to Georgia, the following states had provided that mere possession of obscene material was illegal: (1) Arkansas (ARK. STAT. ANN. §§ 41-2707 & 41-2729 (Supp. 1967)); (2) Colorado (COLO. REV. STAT. ANN. § 40-9-17(4) (1963)); (3) Florida (FLA. ST. ANN. § 847.011(2) (1960)); (4) Indiana (IND. STAT. ANN. § 10-2803 (Supp. 1969)); (5) Maine (ME. REV. STAT. ANN. tit. 17 § 2901 (1964)); (6) New Mexico (N. M. STAT. ANN. § 14-17-14(1) (1953) (providing that munici- palities may prohibit possession); (7) Texas (TEX. PEN. ART. 527 (Supp. 1968-69) (that portion relating to possession was declared unconstitutional in Stein v. Bachelor, 300 F. Supp. 602 (N.D. Tex. 1969) ); (8) Wisconsin (WIS. STAT. ANN. §§ 944.21(b) & 944.22 (1957)); (9) Wyoming (WYo. STAT. ANN. § 6-103 (Supp. 1969)). 5 Stanley v. State, 229 Ga. 259, 161 S.E. 2d 309 (1968). 6 394 U.S. 557, 568 (1969). 7 170 Ohio St. 427, 166 N.E.2d 387 (1960). Ohio statute which made possession of obscene material illegal was "a clear infringement of the constitutional rights of the individual" and was inconsistent with the "basic liberties of the individual."" This case (Mapp v. Ohio)' was appealed to the United States Supreme Court where the is- sue of private possession was extensively briefed and argued. 10 However, the Court chose to disregard that issue in favor of the illegal search and seizure issue present in the case. Since the issue of illegal search and sei- zure was present in Stanley and had been briefed before the Court," one wonders why the Court did not follow the Mapp precedent in Stanley. Certainly the Court was aware of the far-reaching implications of its ex- tension of protection, albeit in the private context, to obscene material. Since these implications could have been avoided while still accomplishing a reversal of Stanley's conviction, one must conclude that the Court in- tended these implications to emanate from Stanley. Because the alleged obscenity of the films was not contested, the Court assumed that they were obscene. 2 Relying on the declaration in Roth, Georgia contended that since the films were obscene, they were unpro- tected and could be dealt with in any way the states deemed necessary." However, the Court declined to follow Roth because Roth involved public distribution while Stanley involved only private possession.'" Distinguishing Roth on this contextual ground was unsatisfactory be- cause it did not indicate why the rationale for denial of first amend- ment protection used in Roth did not apply in Stanley. In Roth the mate- rial was precluded from first amendment protection because the films were utterly without redeeming social value. 5 The films in Stanley were 8 1d. at 437. Four of the seven Ohio Justices in Ohio v. Mapp felt that the Ohio Statute (OIuo REv. CODE ANN. § 2905.34 (Page 1954) ) was unconstitutional. However, because at that time the Ohio Constitution required that all but one of the justices concur before there could be £ declaration of unconstitutionality, it was not so declared. Shortly thereafter, the Ohio Supreme Court interpreted the Ohio Statute to require proof of "possession and control for the purpose of circulation or exhibition." State v. Jacobellis, 173 Ohio St. 22, 27-28, 179 N.E.2d 772, 781 (1962) reVsd on other grounds, 378 U.S. 184 (1964). O Mapp v. Ohio, 367 U.S. 643 (1961), was the federal counterpart of State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387 (1960). 10 367 U.S. 643, 673 (1961) (dissenting opinion of Justice Harlan). " Brief for Appellant at 16-23, Stanley v. Georgia, 394 U.S. 557 (1969). 12394 U.S. 557 n.2 (1969). 1Ad. at 560. 141d. at 560-63. The Court stated that: None of the statements cited by the Court in Roth for the proposition that "this Court has always assumed that obscenity is not protected by the freedoms of speech and press" were made in the context of a statute punishing mere private possession.... In this context, we do not believe that this case can be decided simply by citing Roth. 15 354 U.S. 476, 484-85 (1957). In Jacobellis v. Ohio, 378 U.S. 184 (1964), the Court re- iterated the Roth rationale as follows: "We would reiterate ... our recognition in Roth that obscenity is excluded from con- stitutional protection only because it is 'utterly without redeeming social impor- tance ...... 1970] NOTES OHIO STATE LAW JOURNAL tected speech at least within the privacy context of Stanley. However, the Court explicitly stated that this modifying effect did not impair Roth or the broad state power to regulate obscenity in the public context. 2 Thus Roth and Stanley must coexist within the same system of obscenity law. For them to function effectively it will become necessary for the Court to determine exactly what public distribution and private possession entail. The importance of the privacy aspect of private possession of obscene material will be a key factor in determining how broadly Stanley applies. The Court has previously indicated that the privacy of one's home has great significance.38 Perhaps, in view of these indications, the Court con- sidered the privacy of Stanley's home to be so sacred that it was willing to extend constitutional protection to material that otherwise would have been unprotected. If this is the case, then a Roth-type prohibition would apply to obscene material prior to its arrival in a private home and after its removal from a private home. This is the narrowest reading of Stanley and would cause the least conflict with Roth.,4 A broader reading of Stanley is justified. The language used in the majority opinion indicates that the right to receive information and ideas regardless of their social value (the reception right) and not the privacy right was the principal foundation of the decision. The Court indicated that the reception right was a fundamental and well established part of the first amendment. 35 The privacy right was simply an additional right that gave added dimension to the reception right. The existance of this fundamental reception right as established in Stanley has implications for other obscenity contexts. Arguably, this right would protect production and some types of public distribution of obscene material. In the ob- scenity context, for a person to fully enjoy his reception right, some form of acquisition of obscene material is necessary. Such acquisition would de- pend upon production of obscene material. As a practical matter, it also would depend upon public distribution of that material. If all production and distribution of obscene material were banned, in the obscenity con- text, the reception right would also be effectively banned. Since Stanley 32 394 U.S. 557, 568 (1969). 3 3 Alderman v. United States, 394 U.S. 165 (1969) (holding that a homeowner has standing to object to an unlawful surveillance of conversations taking place in his home although he was not a conversant); Griswold v. Connecticut, 381 U.S. 476 (1965) (where the right of privacy was first identified as an independent constitutional right). 34 While this would be the narrowest reading as far as obscenity is concerned, it would be a very broad interpretation of the right of privacy. Given this reading Stanley would have a great potential for application in such controversial areas as private consensual adult deviant sexual behavior and private possession of marijuana. See Wallenstein, Marijuana Possession as an Aspect of the Right of Privacy, 5 CRiM. L. BULL. 59 (March, 1969); Evans, The Crimes Against Nature, 16 J. PUB. L 159, 177-78 (1967). These two articles provide excellent dis- cussions of the relationship between the right of privacy and these two types of criminal actions. 36 394 U.S. 557, 565 (1969). [Vol. 31 prohibits banning of the latter, does it not prohibit total banning of the former also? However, in light of the Court's reaffirmation of the broad state power to regulate obscenity in the public context, it would be foolish to suggest that all public distribution is protected by Stanley. If such were the case, Roth would be meaningless. Therefore, the key question is where the line between Stanley protection and Roth prohibition will be drawn. The Supreme Court did not draw this line, but fortunately other federal courts in their interpretations of Stanley have provided us with some clues to its location. The District Court for the Northern District of Texas in Stein v. Batchelo?6 interpreted Stanley to involve broader protection than mere private possession. The Stein court said that in its opinion Stanley suggested that obscene material could be deprived of pro- tection only in the context of "public actions taken or intended to be taken with respect to obscene matter."3 7 This interpretation allowed the District Court to invalidate not only the provision of Texas obscenity law prohibiting the knowing possession of obscene material but also those pro- visions prohibiting the knowing photography of, acting in, posing for and printing of obscene material. This follows from the fact that there was no limitation in the Texas law that such activities be engaged in pub- licly or with intent to publicly distribute the materials involved .3 The D.C. Circuit Court in Williams v. District of Columbia,"0 in order to pre- serve the constitutionality of a disorderly conduct statute punishing the use of obscene language in any public place, read into that statute the require- ment that a member of the public actually have heard the obscene words.4° The D.C. Court spoke of Stanley requiring the presence of this "verbal as- sault." In view of this language the D.C. Court must have read Stanley to require more than just the presence of obscene material in a public context to justify prohibition of that material. Some type of offensive public ac- tion had to be taken in regard to that obscene material. This is an even broader interpretation of Stanley than that given in Stein. Williams re- quired an actual act whereas intent to act would have been sufficient in Stein.41 As more federal courts and state courts interpret Stanley, the line be- 36 300 F. Supp. 602 (N.D. Tex. 1969) (rev. granted, 38 L.W. 3265). 37 Id. at 606. 3 8 TEx. PnEN. CODE ART. 527 (Supp. 1968-69). 30 No. 20, 927 (D.C. Cir., June 20, 1969) (en bane). 4oId. at 11. 41 Only a year before Stanley, the Supreme Court indicated the types of action which were necessary in order to justify the prohibition of obscene material. The Court indicated that the fact of (1) an availability of obscene material to children; or (2) intrusion into the privacy of the public by that obscene material; or (3) the type of pandering found objectionable in Ginz- burg v. United States, 383 U.S. 463 (1966), was necessary before the material in question could be prohibited. Redrup v. New York, 386 U.S. 767, 769 (1967). 1970] NOTES OHIO STATE LAW JOURNAL tween Roth prohibition and Stanley protection will become more dear. However, these two areas of protection will never become exactly defined because the subject of obscenity depends so much upon the particular facts of the situation. For instance, a supposedly private possession case might call for different treatment if the obscene material were readily ac- cessible to children or if the possessor had a past record of selling ob- scene material. Also the number of items of obscene material possessed might change the nature of the case. If the possessor had numerous copies of the same film or magazine, a presumption of possession with intent to distribute might arise.4" These few examples indicate that no hard or fast rules can be drawn in regard to the regulation of obscenity. The only certain thing concerning the future controversy over obscenity con- trol is that there will continue to be a struggle between the libertarian impulses to protect freedom of speech and press and the realistic needs for some obscenity regulation. At least after Stanley, there is hope that these two conflicting forces can be more consistently reconciled. Gene R. Hoellrich 4 2 Currently three states, although not statutorily prohibiting possession of obscene material, provide that possession of a specified amount of obscene material either creates a presumption that such material was intended for sale or is prima facia evidence of intent to distribute. S.D. COMPILED LAWS ANN. § 23-18-26 (1967); Mici. COMPILED LAWS ANN. § 750.343(a) (1969); N.H. REV. STAT. ANN. § 571:15 (1955). [Vol. 31