To Ban or Not to Ban : The Supreme Court and Obscenity

Since 1957, the United States Supreme Court has exhibited a marked shift in its attitude toward freedom of expression. This shift may be directly attributed to changes in the Court's membership following the appointment of four Justices by Richard M. Nixon from 1969 to 1971. In 1957, the Supreme Court, under the leadership of Chief Justice Earl Warren, decided that the freedom of expression guaranteed by the First and Fourteenth Amendments to the Constitution did not extend to certain materials which dealt explicitly with sex. In this landmark case, Roth v. United States (1957), the Court defined this Material commonly called obscene or pornographic. In reviewing sixteen obscenity cases in the following twelve years, the Warren Court continued to grapple with the issue of what was obscene, and how it should be defined. At the same time the Court increased constitutional protection afforded freedom of expression as long as sexually-explicit material was not exposed to juveniles or unwilling adults. In the final case decided by the Warren Court, Stanley v. Georgia (1969), the Court extended constitutional protection to pornographic material found within an individual's home. After the election of President Nixon, in 1968, four new Justices, including Chief Justice Warren Burger, were appointed to the Court over a three-year period, 1969-1971. While the Supreme Court did not immediately alter the liberal Warren Court approach to obscenity cases, the new Justices indicated that they preferred more restrictive measures to control sexually-explicit expression. On June 21, 1973, Chief Justice Burger announced the Court's new position on obscenity in decisions in five cases, but particularly in a key case, Miller v. California (1973). This ruling held that the states had a legitimate interest in controlling the dissemination and exhibition of obscene material. The Court rejected portions of the Warren Court's adjudication on obscenity and modified other portions. It ruled that the community standards which were to be used to determine obscenity were those of the local community, not of the nation as held by the Warren Court. Then, in contrast to the Warren Court which usually overruled state statutes infringing on the freedom of expression, the Burger Court began upholding state statutes which were written according to the guidelines stated in the Miller case. Thus, the Burger Court reversed the trend toward the constitutional protection of sexual expression which had been begun by the Warren Court.