Jacobellis v. Ohio/Dissent Warren
THE CHIEF JUSTICE, with whom MR. JUSTICE CLARK joins, dissenting.
In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments. Although the Federal Government and virtually every State has had laws proscribing obscenity since the Union was formed, and although this Court has recently decided that obscenity is not within the protection of the First Amendment,  neither courts nor legislatures have been able to evolve a truly satisfactory definition of obscenity. In other areas of the law, terms like "negligence," although in common use for centuries, have been difficult to define except in the most general manner. Yet the courts have been able to function in such areas with a reasonable degree of efficiency. The obscenity problem, however, is aggravated by the fact that it involves the area of public expression, an area in which a broad range of freedom is vital to our society and is constitutionally protected.
Recently, this Court put its hand to the task of defining the term "obscenity" in Roth v. United States, 354 U.S. 476. The definition enunciated in that case has generated much legal speculation, as well as further judicial interpretation by state and federal courts. It has also been relied upon by legislatures. Yet obscenity cases continue to come to this Court, and it becomes increasingly apparent that we must settle as well as we can the question of what constitutes "obscenity" and the question [p200] of what standards are permissible in enforcing proscriptions against obscene matter. This Court hears cases such as the instant one not merely to rule upon the alleged obscenity of a specific film or book, but to establish principles for the guidance of lower courts and legislatures. Yet most of our decisions since Roth have been given without opinion, and have thus failed to furnish such guidance. Nor does the Court in the instant case -- which has now been twice argued before us -- shed any greater light on the problem. Therefore, I consider it appropriate to state my views at this time.
For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No government -- be it federal, state, or local -- should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this, as in other, areas of the law, and we have attempted in the Roth case to provide such a rule.
It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to "community standards," it meant community standards -- not a national standard, as is sometimes argued. I believe that there is no provable "national standard," and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a "community" approach may well result in material's being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are, in fact, diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting [p201] rights of the diverse communities within our society and of individuals.
We are told that only "hard core pornography" should be denied the protection of the First Amendment. But who can define "hard core pornography" with any greater clarity than "obscenity"? And even if we were to retreat to that position, we would soon be faced with the need to define that term just as we now are faced with the need to define "obscenity." Meanwhile, those who profit from the commercial exploitation of obscenity would continue to ply their trade unmolested.
In my opinion, the use to which various materials are put -- not just the words and pictures themselves -- must be considered in determining whether or not the materials are obscene. A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time, "obscene" in the extreme when sold or displayed to children. 
Finally, material which is, in fact, obscene under the Roth test may be proscribed in a number of ways -- for instance, by confiscation of the material or by prosecution of those who disseminate it -- provided always that the proscription, whatever it may be, is imposed in accordance with constitutional standards. If the proceeding involved is criminal, there must be a right to a jury trial, a right to counsel, and all the other safeguards necessary to assure due process of law. If the proceeding is civil in nature, the constitutional requirements applicable in such a case must also be observed. There has been [p202] some tendency in dealing with this area of the law for enforcement agencies to do only that which is easy to do -- for instance, to seize and destroy books with only a minimum of protection. As a result, courts are often presented with procedurally bad cases and, in dealing with them, appear to be acquiescing in the dissemination of obscenity. But if cases were well prepared and were conducted with the appropriate concern for constitutional safeguards, courts would not hesitate to enforce the laws against obscenity. Thus, enforcement agencies must realize that there is no royal road to enforcement; hard and conscientious work is required.
In light of the foregoing, I would reiterate my acceptance of the rule of the Roth case: material is obscene and not constitutionally protected against regulation and proscription if,
- to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.
354 U.S. at 489. I would commit the enforcement of this rule to the appropriate state and federal courts, and I would accept their judgments made pursuant to the Roth rule, limiting myself to a consideration only of whether there is sufficient evidence in the record upon which a finding of obscenity could be made. If there is no evidence in the record upon which such a finding could be made, obviously the material involved cannot be held obscene. Cf. Thompson v. City of Louisville, 362 U.S. 199. But since a mere modicum of evidence may satisfy a "no evidence" standard, I am unwilling to give the important constitutional right of free expression such limited protection. However, protection of society's right to maintain its moral fiber and the effective administration of justice require that this Court not establish itself as an ultimate censor, in each case reading the entire record, viewing the accused material, and making an independent de novo judgment on the question of obscenity. Therefore, [p203] once a finding of obscenity has been made below under a proper application of the Roth test, I would apply a "sufficient evidence" standard of review -- requiring something more than merely any evidence but something less than "substantial evidence on the record [including the allegedly obscene material] as a whole." Cf. Universal Camera Corp. v. Labor Board, 340 U.S. 474. This is the only reasonable way I can see to obviate the necessity of this Court's sitting as the Super Censor of all the obscenity purveyed throughout the Nation.
While, in this case, I do not subscribe to some of the State's extravagant contentions, neither can I say that the courts below acted with intemperance or without sufficient evidence in finding the moving picture obscene within the meaning of the Roth test. Therefore, I would affirm the judgment.
^ . In the instant case, for example, the advertisements published to induce the public to view the motion picture provide some evidence of the film's dominant theme: "When all conventions explode . . . in the most daring love story ever filmed," "As close to authentic amour as is possible on the screen." "The frankest love scenes yet seen on film." "Contains one of the longest and most sensuous love scenes to be seen in this country."