> Hmm, I dunno, I think that obscenity was thought to be
> harmful. In Beauharnais v. Illlinois, 343 US 250
> 91956), the Court said that any bernefit that might be
> derived from obscene spoeech was "clearly outweighed
> by the social interest in order and morality."
That quote actually derives from Chaplinsky v. New Hampshire (315 U.S. 568, 1942 - the "fighting words" case) and I think it's worth reading it in context:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
Although obscenity is lumped in here with the other (harm-causing) types of speech, later decisions seem to play down this comparison. Roth's citation of this decision removes "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (although it does leave the final clause intact).
> Given that the test in Roth v.
> United States, 354 US 476 (1957), still the core case,
> far as I know (a Brennan case, btw)
Updated by Miller v. California, 413 U.S. 15 (1973), a Burger case in which Brennan dissented.
> defines obscenity
> as speech that, amomng other things, is "appealing to
> prurient interest" (merely), id. at 487, or having a
> "tendency to excite lustful thoughts," id. at 487
> n.20, it seems that the Court thinks that the caustion
> of (merely) lustful thoughts that are otherwise
> lacking in social value, i.e., stuff that is merely
> designed to make you hard or wet, depending on your
> equipment, is a harm.
No, by the time they get here they've already accepted that "obscenity" is unprotected. It then just leaves them to define what obscenity is. Miller redefined it as: "(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 [known as the SLAPS test]." All three have to apply. So you could have patently offensive, prurient material which still wouldn't be obscene if it had SLAPS value. It's only without this value that the material can be judged obscene.
> > When was the last time the Supremes held a work to
> > be obscene, anyway? Out of curiosity.
>
> A zillion years ago.
Yeah. I've always thought that the obscenity exception was really just a CYA ruling. A majority of justices have wanted to keep the option of banning material, just in case ...
> If you want some funny stories about the obscenity
> cases, read Woodward & Bernstein's The Brethern. My
> fave is about Justice Harlan's law clerks. Harlan was
> very mypoic, but felt obliged to watch what used to be
> called "blue" movies to determine if they were
> obscene. He could not really see the screen. so his
> law clerk had to sit beside him and describe the
> action to the Justice. Can you imagine? How I spent my
> year clerking on the Supreme Court . . . .
One of my professors told us that most of the justices had their clerks watch the movies, but William O. Douglas watched them all himself. His implication was that there was something more to it than a sense of obligation ;)