The use of pornogrpahy is extremley common in the 21st century, “35% of all internet downloads are porn related.” It is at the reach of everybody who owns computers or mobile devices, and they are able to watch it whenever they please. While the use of pornography today is accepted, this was not always the case. Not long ago, in 1969, there was a Supreme Court case on the constitutional right to possess “obscene material” in one’s own home, this case was Stanley v. Georgia.
In order to best understand Stanley v. Georgia, one must consider the case through a historical lens of the cases prior; all which set the scene for Stanley v. Georgia. While previous cases intended to define “obscenity”, and “pornography” , as well as the intended use of such materials, Stanley set to solidify his rights to read and view what he pleases whether it be obscene material or not. Stanley proved his point by his use of the First and Fourth Amendments and undermining other previously set standards around obscenity.
The outcome of Stanley v. Georgia gave people the right to view pornography in their own homes and kept the government from being able to police private possession of obscenity. Contrary to belief, obscenity and pornography are not interchangeable. Pornography is not a legal term like obscenity. Pornography is characterized as erotic or lewd material with artistic merit and obscenity by definition lacks said merit. “All obscenity is pornographic, but not all pornography is obscene.” Because pornography has artistic merit, it qualifies under the protection of the First Amendment.
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The only pornography that does not fall under the protection of the First Amendment is child pornography and obscenity. The most basic guideline we have today to define obscenity is, “Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
Now, most people wonder where the line is drawn between obscene pornography and non-obscene pornography and who defines that line. There really is no way to draw a clear line between obscene and non-obscene pornography. The straightforward answer as Justice Potter Stewart said is, “I know it when I see it.” Not being able to clearly define obscene pornography makes obscenity based trial more complex. Part of the First Amendment states, the citizens of the United States have a right to free speech and free press.
However, the phrasing of the First Amendment does not cover every instance professing free speech and press. Obscenity in the past was deemed unprotected by the First Amendment due to Roth. It was generally professed by the government that situations falling under the category of free speech and press were supposed to be considered of social importance. Being of “social importance” is quite lenient as it can describe religious beliefs or even negative hateful opinions in the eyes of the law. All those ideas have some social importance yet obscenity still seems to be one of the greatest challenges to the concept of “social importance.”
Stanley v. Georgia brought up new outlooks on possession of obscenity and lead a positive shift in perspective surrounding pornography. The whole conversation and debate surrounding private possession of obscenity began with the Stanley case. During a 1969 investigation of Robert Eli Stanley, authorities secured a warrant to search his home for alleged bookmaking activities. The warrant relied on probable cause that Stanley had been participating in illegal gambling and wagering. When authorities gained entry to his house, they searched and found little to no proof of bookmaking.
While authorities searched the upstairs bedroom, a Federal agent and a state officer discovered three reels of film which they immediately played on a screen with a projector in a nearby room. These films contained “pornographic material” which they deemed “obscene” and confiscated it. Further investigation of his house confirmed the films indeed belonged to Stanley. Authorities placed Stanley under arrest for “knowingly having possession…of obscene matter.” A state judge tried and convicted Stanley, giving him a year in a state penitentiary.
Stanley later appealed to the Supreme Court with two major defenses: he did not deny the films were obscene, but he insisted nonetheless his right to read or view what he pleased in his own home: given by the First Amendment. Stanley’s attorney also argued the search warrant did not list obscene material, therefore was seized illegally, breaking the Fourth Amendment. First Amendment rights were violated, Stanley claimed Georgia’s “Obscenity Law,” regarding the private custody of obscene content infringe upon his right of free speech and press, thus being unconstitutional.
To deeply elaborate on the Stanley v. Georgia case, Roth v. US verdict must also be taken into consideration. Roth v. US had great impact on Georgia’s defense in the Stanley v. Georgia trial. Roth involved the advertisement of obscene material and defining obscenity. In 1957, Samuel Roth was a publisher in New York, who often sent out mail and ads. He thought he could “drum up” business by using “obscene material” in his ads, namely “literary erotica” and “nude photography”. The federal district court of New York charged him with mailing “obscene advertisements” and publishing an “obscene book,” both in violation of obscenity laws.
In response, Roth pleaded freedom of expression under the First Amendment. In order to fairly try Roth, the court had to clearly define obscenity, which further proved it was not secured under the First Amendment. This set a new judicial norm for obscenity, a blanketed federal definition. However, it included no limitations on the private possession of obscenity in one’s home. Roth’s affect on Stanley was that The issue regarding the criminalization of private obscene material has been seen before in the case Mapps v. Ohio. In 1961, without a warrant, authorities broke into Dollree Mapp’s home in search for evidence in connection to a recent bombing. They found a gun, gambling slips, and an “obscene” novel.
Mapps was arrested for possession of obscene material and her case was taken to the supreme court. Mapps defence changed from a violation of First Amendment rights to a violation of Fourth Amendment rights. Her attorney pushed more on the illegal search and seizure side, which was inevitably the reason she walked free. Mapps is the only case of this time that even came situationally close to Stanley, but never before had a case dealt with the private possession of obscene matter in the way Stanley v. Georgia did. Similar to Mapps, Stanley’s attorney attempted to disregard the obscene material from evidence because they believed it to be an illegal search and seizure.
In the early stages of Stanley’s case, before it had reached the Supreme Court, his attorney filed a motion to remove the obscene films from evidence because they had been seized in violation of the initial warrant. The warrant, issued for the recovery of bookmaking activity, did not mention anything about pornography and obscene material. Georgia had deemed the films were “lawfully taken,” denying the motion and putting the films back into evidence. No matter how persuasive Stanley’s attorney argued for a blatant disregard of the Fourth Amendment, Georgia would not budge.
According to Stanley’s defense, authorities were lawfully searching within their issued warrant for bookmaking, but overstepped their warrant capabilities by seizing other unrelated items. In other words, authorities had no right to take films once no bookmaking activity had been found. Historians, such as those at Cornell, would agree that Stanley vs. Georgia was an official catalyst to break into the deep and complex regulations regarding obscenity, beyond what had been previously defined by Roth vs. US or Mapps vs. Ohio.
In Stanley’s case, the Fourth Amendment alone was not enough to persuade Supreme Court justices; Stanley’s attorney needed to break down the laws surrounding “private possession of obscenity,” which up until this point, had not been defined. Stanley’s rights stated he was able to “receive information and ideas” and be free of government intervention in the privacy of his home. When Stanley combined his First and Fourth Amendment rights—the right to receive knowledge and his right to receive said knowledge in the privacy of his own home—it became a stronger argument than Georgia could defend against. Georgia was just looking to protect its citizens from all forms of harm.
Georgia believed they had the right to not only protect their citizens physically from harm, but also the right to protect the mind of their citizens from the effects of obscenity. Yet this notion boils down to nothing more than Georgia intending to “control the moral content of a person’s thoughts” — a clear incongruence with what the First Amendment stands for. Yet at the time, Georgia did not see obscene material as merely “erotic thoughts and actions,” for obscene materials existed in a physical form. Further, Georgia positted that even the viewing of obscene material could lead to deviant sexual acts and a rise in sex crimes. This idea, while taken into consideration by the court, was later dismissed on the grounds that censorship had no apparent correlation to a decrease in sex crimes. The court agreed instead that education and punishment of deviant sexual crimes was a better alternative to censorship, in the hopes of reducing sex crimes.
Finally, Georgia attempted to plead that is was the states right to prohibit obscene material to prevent the distribution of said material. Yet throughout Stanley, no evidence surfaced proving Stanley had any intention to circulate the material. This case revolved around whether “a statute imposing criminal sanctions upon the mere knowing possession of obscene matter” is constitutional, even without intent to circulate. Though all of Georgia’s defenses, the question was brought up time and time again: “Can obscenity statutes really be ‘justified’ by the states interest, be it private or not?” To emphasize again, Stanley did not object to the films being obscene. If we rely exclusively on the Roth verdict–that “obscenity” did not fall under the First Amendment laws—Stanley’s possessions of “obscene materials” would be grounds for conviction alone. Yet, it was more complicated than just a debate of what falls under the protection of the First Amendment.
Stanley’s case brought up a new question of interest: “What jurisdiction does the state government have in controlling a person’s personal private thoughts?” The trial became less about the freedoms and liberties of man, and more about the limitations of state jurisdiction on an individual’s private choices. Prior to Stanley, many cases on obscenity had dealt with the power struggle between the State and Federal Government to regulate distribution of obscene material, and what qualified as obscene material itself, without much discussion on personal possession of obscene material.
The result of Stanley v. Georgia focused on individual rights, and lessened the government’s power to police possession of obscenity in one’s own home. While in the preliminary case, Georgia’s use of the Roth verdict was crucial, in the Supreme Court case, the judges decided not to take into account the full outcome of Roth; due to the fact that the case dealt with the public distribution of obscene material not private. The basis for Stanley’s defense was his fundamental right of freedom depicted in the First Amendment. To prosecute a man of owning obscene material in the privacy of his own home and defy him of his rights to gain information and ideas despite their social importance is unconstitutional.
All Stanley pleaded for was his right to read and view what he pleases. Stanley’s attorney argued, no matter what previous trials had said, none had dealt with a situation completely like this one. The government cannot constitutionally attempt to control a person’s private thoughts through legislative action. The leading Supreme Court Justice Marshall stated during the final verdict, “The state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving the government the power to control men’s minds.” In the end, Georgia’s approach of clinging to the verdict in the Roth v US case was insufficient and Stanley’s conviction was unanimously overruled. The court ruled the Georgia statute was unfair and virtually impossible for any person to follow.
For instance to have knowledge that a piece of material is obscene or could possibly be obscene, would require someone to analyze said material to deem it obscene. According to the Georgia Statute, that very analyzing of that material under your possession in and of itself is a crime. The court decided that unless pornography is shown in a lewd or offensive way to others, especially minors, no person can legally be prevented from watching pornography in the privacy of their own home. The result of Stanley is somewhat complex. Stanley’s case does not mean all public and private obscenity is protected. Now, saying “obscenity is not within the set of constitutionally protected speech or press” is technically untrue.
It really comes back to where the protection given in Stanley’s case meets the Roth prohibition of obscene material. Stanley’s verdict made private possession of obscene material legal yet Roth concluded all obscene material does not fall under the protection of the First amendment. It is nearly impossible for the Supreme Court to draw the line between the two, but thankfully, other court cases have paved somewhat of a rough boundary. For instance, in Texas in June of 1969, Stein v. Batchelor used Stanley’s verdict to apply to more than just the mere protection of private material.
The Stein case interpreted that, the only obscene material that is without protection is “public actions taken or intended to be taken with respect to ‘obscene matter.” This interpretation led to the nullification of the Texas obscenity law surrounding private possession of obscene matter, obscene photography, and posing in obscene ways on prints. Another case that used its own interpretation of Stanley v. Georgia in 2006 was Williams v. District of Columbia. This case surrounded the use of obscene language in public. There needs to be more than just the “presence of obscene material” in a public place to advocate for the prohibition of obscene material. A public offensive action must be taken because of the obscene material to be punished.
While these are few examples of court cases attempts to define where the Stanley jurisdiction ends and the Roth begins, the line between the two will never be directly defined. The details of each specific case will have to be argued and placed on the spectrum between Roth and Stanley. Justice Marshall ended the case by ruling the “right to receive information and to personal privacy were fundamental to society.” Without Stanley v. Georgia, the rights of having possession of obscene material would be a crime.
The case was pivotal in deciding where private ownership of obscene material fell under the rights protected by the First Amendment and also helped future cases set standards on obscenity. The Stanley v. Georgia case had an effect on the laws surrounding obscenity and pornography. While today the boundaries of obscenity are still being debated, the right for a person to knowingly possess obscene material in the privacy of their home is a direct result of this case.
