Cornell University Law School Social Science and Law

Obscenity and the First Amendment

Compiled by Iona Sharma and Sicheng Zhou

There is a great deal of uncertainty concerning just what obscenity is, and once defined, whether it is protected by the First Amendment. Social science evidence has been used in the courts to address both questions. Here, we focus mainly on the latter issue.

INTRODUCTION

In 1973, in Miller v. California (413 U.S. 15), the Supreme Court wrote the following for factfinders attempting to determine if a given material were obscene:

"The basic guidelines for the trier of fact must be:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value."

In Kaplan v. California (413 U.S. 115), decided in tandem, it was held that the contemporary community standards of the area in question were the relevant standards, and the prosecution need not establish a "national" standard against which to evaluate material for obscenity.

As a result, much social science evidence has been adduced before courts to determine community standards. People v. Nelson, 88 Ill.App.3d 196 (1980), is an early example of this: an Illinois court considered whether a survey of a random sample of 770 people in Illinois, stratified by areas of population, should be admitted as evidence of the relevant community standards in the state. The court wrote: "survey evidence may be the only way to prove degrees of acceptability of a product or material", recommending the case go to a retrial because of the trial court's refusal to admit the survey evidence. An Indiana case, Saliba v. State, 475 N.E.2d 1181 (1985), set out a two-pronged test to establish admissibility: relevancy (to the general community standards, and the community's acceptance of viewing the particular material in question); and trustworthiness (i.e., properly conducted).

However, this strand of thought takes for granted the idea that states may prosecute for obscenity within the constraint of the First Amendment. Does freedom of speech include the right to disseminate or view obscene material?

The Supreme Court's consistent position has been that "obscenity is not within the area of constitutionally protected speech or press"Roth v. United States, 354 U.S. 476 (1957)). Nevertheless, there has been substantial discussion about empirical evidence justifying this conclusion. 

Setting out the scope of the inquiry:

United States v. Roth, 1956, 237 F.2d 796

Roth had been convicted in a district court of distributing material alleged to be "obscene, lewd, lascivious, filthy and of an indecent character", and had been imprisoned for five years; on appeal, he claimed that the statute he had been convicted under violated the First Amendment.

The judge in this case, Judge Frank, was responsive to social science evidence. (Eight years earlier, in a trademark case, Triangle Publications v. Rohrlich, 167 F.2d 969, he had conducted his own impromptu survey of "adolescent girls and their mothers and sisters" to establish whether there was likelihood of consumer confusion between a magazine and a girdle called "Seventeen" and "Miss Seventeen.") He was of the opinion that Congress could legitimately limit the sale of publications if there was "moderately substantial reliable data" showing that reading or seeing those publications "conduces to seriously harmful sexual conduct on the part of normal adult human beings".

However, in his opinion there was no such data. Judge Frank did not cite a particular study but an overview of contemporary psychological literature that suggested no research evidence either to prove or disprove the assumption that "reading about sexual matters or about violence and brutality leads to anti-social actions." It is notable that violent material and sexual material were not separated out for the purposes of this literature review, which distorts its relevance to the specific issue of whether exposure to obscenity increases delinquency.

Paris Adult Theatre 1 v. Slaton and Stanley v. Georgia: does the question fall within the remit of social science at all?

Despite Judge Frank's call for "thorough-going studies by competent persons which justify the conclusion that normal adults' reading or seeing of the obscene probably induces anti-social conduct", the use of social science evidence to answer this question was not necessarily a given.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49, which concerned the showing of some allegedly obscene films at "adult" movie theatres in Atlanta, Chief Justice Burger straightforwardly rejected the argument that there are no scientific data "which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society". It is not for the Supreme Court, he wrote, to "resolve empirical uncertainties underlying state legislation." Georgia's legislature was permitted to determine that there is a connection between antisocial behaviour and obscene material, and the lack of empirical evidence will not make this determination unconstitutional. This argument seemed to remove the First Amendment inquiry away from the domain of social science evidence.

In Stanley v. Georgia 394 U.S. 557 (1969), the Supreme Court held that a Georgia statute forbidding possession of obscene material was unconstitutional, distinguishing the holding from Roth on the grounds that the individual in question had not sold or disseminated the allegedly obscene films, but merely possessed them. "If the First Amendment means anything," wrote Justice Marshall for the Court, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."

Notably, the state of Georgia did not raise any social science evidence in support of its prosecution. The Court wrote, "there appears to be little empirical basis" for Georgia's assertion that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence", citing the same literature review cited by Judge Frank in United States v. Roth, and another article considering behaviour science investigations in this area, "Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence" (46 Minn.L.Rev. 1009). This second article concludes that that although there is some empirical evidence that sexual cues do lead to sexual behaviour, there is no data on whether it leads to criminal behaviour, and as the state of empirical evidence was not changed from Roth, the court was justified in citing it in response to Georgia's claimed justification for the statute.

Social science evidence as legislative fact: Report of the Commission on Obscenity and Pornography (1970)

The holding in Stanley v. Georgia prompted Congress to set up a President's Commission on Obscenity and Pornography, with the aim of establishing, among other things, the relationship of pornography to crime and other antisocial conduct. Its conclusion, based on the empirical research it had both commissioned and reviewed, was that exposure to erotica materials was not a factor in the causation of sex crime or sex delinquency.

This conclusion was based on several empirical studies. A 1970 study (Kupperstein and Wilson) compared the increasing availability of sexual materials in the United States between 1960 and 1969 with juvenile crime statistics for the same period, finding that although the number of juvenile arrests increased dramatically during the period, the number of arrests for sexual offences decreased by four percent, accounting for changes in population. The study's authors conclude that there is no support for the hypothesis that increased availability of pornographic material leads to an increase in sexual crime among juveniles.

A similar study is cited from Denmark (Ben-Vestiste 1970), comparing statistics on reported sex offences from 1958 to 1969. There was a steady decline over this period, despite the fact the Danish Parliament had voted to remove erotic literature from its obscenity statute in June 1967 and to repeal the statute altogether in 1969.

The Commission's legislative recommendations, therefore, were that federal and state legislation concerning the dissemination of sexual materials to consenting adults should be repealed, with some restrictions on what sexual materials could be provided to children. They based the former recommendation on the lack of conclusive evidence linking sexual materials to criminal behaviour, but argued that the paucity of empirical evidence regarding children in particular indicated caution.

Social science critiques and the dissent

Both of the quasi-experiments mentioned are subject to the methodological criticism that it is not clear that the increased availability of obscene material caused the decrease in sex offences, or that there were not some other variable obscuring a positive correlation between the availability of obscene material and incidence of sex offences. (Note that the Danish study concerned adults as well as juveniles.)

The dissenting voices in the Commission were "vigorous". They argued that the data had been "statistically manipulated" and "shoddy", making a reasonable criticism of the Denmark study mentioned above in noting that Denmark has different cultural contexts from the United States and thus the study may not have external validity. In its place, they cite a study "impressive in its rigorous methodology". Davis and Brauch (1970) looked at populations of city jail inmates, Mexican-American college students, white fraternity men, and Catholic seminarians, asking them to fill out questionnaires about their behaviour, and concluded: "One finds exposure to pornography is the strongest predictor of sexual deviance." Another study cited approvingly by the dissenters, the Propper study of 476 reformatory inmates, yields a relationship between "high exposure to pornography and sexually promiscuous and deviant behaviour at very early ages."

There are substantial critiques to be made of the methodology of these cited studies. It is not clear why the sample consisted of those particular groups, and why there is a bias towards male-dominated groups. Furthermore, both studies' definitions of "sexual deviance" – including homosexual behaviour, and "having sexual intercourse 3 or more times a week" – are problematic, and there is no evidence proffered that such "deviance" has any connection with sexual crimes.

It is also clear that the dissent's arguments are coloured by their moral views. Their argument that it is impossible and totally unnecessary to attempt to prove or disprove a cause-effect relationship between pornography and criminal behaviour. However, their description of "cultural polluters" and "filth merchants" is suggestive of a value judgement, rather than objective evaluation of the social science evidence, underlying this conclusion.

President Nixon, upon receiving the majority opinion of the Commission, described its conclusions as "morally bankrupt" and that "centuries of civilisation and ten minutes of common sense tells us otherwise", stating definitively that obscenity did not receive First Amendment protections. This seems to have been a pitfall in dealing with the issue of obscenity: morality is a stronger basis in determining the answer to the constitutional question than social science evidence.

Post-1980 – a decline in prosecutions and a change in focus

The Attorney General’s Commission on Pornography – the Meese Commission – was established by President Ronald Reagan in 1984. Unlike the earlier body, this was not an open-ended study in response to a specific court ruling, but had a mandate to "determine the nature... and make specific recommendations concerning more effective ways in which the spread of pornography could be contained." In keeping with this direction, the composition of the committee was as strongly
opposed to pornography as the dissent in 1970 had been.

The report defined four types of pornography, ranging from sexually violent material to "mere" nudity, and studied the harms linked to them via three ‘tiers’ of evidence. The first tier of these was the use of social science evidence, in which it reported that negative effects were linked to sexually violent or degrading material, but not for non-violent non-degrading sexual activity or nudity.

It invoked the same Danish study as the earlier report had, but cited a later increase in rape figures in the 1980s to offset its initial conclusions; similarly, research in England, Australia, Singapore and South Africa (Court, 1978-1984) were quoted to suggest a rise in sexual violence following the liberalisation of pornography regulations. A detailed study by Baron and Straus (1985) was quoted to support the contention that the circulation of "sex magazines" correlated directly with rape rates, and even that specific magazines could be determined to have different levels of correlation.

In its conclusions, the committee focused on sexually violent material – where a correlation could be shown – but did admit that even there, "finding a link ... requires assumptions not found exclusively in the experimental evidence ... [but] justified by our common sense." Some members of the commission and a number of outside bodies, including the ACLU, challenged the findings, arguing that the studies did not support a causal link, and that substantial amounts of the evidence and testimony had been cherry-picked to support the desired conclusions. Dr. Judith Becker and Ellen Levine, two members of the commission, made methodological critiques: the research had not been designed to evaluate the relationship between exposure to pornography and the commission of sexual crimes, and the true experiments cited depended on male college student volunteers, thus limiting the external validity of the study. They recommended further research.

Although the Supreme Court's position on First Amendment protection of obscene material, as articulated in Roth, has not changed, there is still little conclusive evidence produced in courtrooms concerning the harm done to justify this lack of protection. A possible reason for this lack of notable further developments is that obscenity prosecutions are in a steady decline, from 74 federal prosecutions in 1990 to 34 in 2000 to 6 in 2009 (source: Bureau of Justice Statistics), and it might also be seen from the research compiled here that a significant problem in courts and legislatures using social science evidence in this area is the value-laden nature of the inquiry, and the danger of accusations of "moral bankruptcy".

Notable cases:
-Miller v. California, 413 U.S. 15
-United States v. Roth, 237 F.2d 796; Roth v. United States 354 U.S. 476
-Stanley v. Georgia 394 U.S. 557
-Paris Adult Theatre 1 v. Slaton 413 U.S. 49

Reports setting out legislative facts:
Report of the Commission on Obscenity and Pornography (1970)
Report of the Attorney General's Commission on Pornography (1986)

For Further Information:

-First Amendment Center (biased in favour of First Amendment protections): http://www.firstamendmentcenter.org/speech/adultent/topic.aspx?topic=pornography

-Nixon's statement on the Commission on Pornography and Obscenity: http://www.presidency.ucsb.edu/ws/index.php?pid=2759

-Tom Lehrer, "Smut", satirising Roth v. United States
http://www.youtube.com/watch?v=LzmtYkPCQgg

Stanley v. Georgia: http://www.law.cornell.edu/supct/search/display.html?terms=stanley%20georgia&url=/supct/html/historics/USSC_CR_0394_0557_ZO.html

Roth v. United States: http://www.law.cornell.edu/supct/search/display.html?terms=united%20states%20roth&url=/supct/html/historics/USSC_CR_0354_0476_ZO.html

Paris Adult Theatre I v. Slaton: http://www.law.cornell.edu/supct/search/display.html?terms=paris%20adult%20theatre&url=/supct/html/historics/USSC_CR_0413_0049_ZO.html

Miller v. California: http://www.law.cornell.edu/supct/search/display.html?terms=miller%20california&url=/supct/html/historics/USSC_CR_0413_0015_ZO.html