Jonathan Loesberg
Jonathan Loesberg
That's obscenity.
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Tension defined (or not)
- Thread starter Peter Creasey
- Start date
That's obscenity.
Oswaldo Costa
Oswaldo Costa
Yes to both.
kirk wallace
kirk wallace
It is not surprising that the words get confused. Justice Stewart, in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), was referring to what he called "hard-core pornography." His view was that "obscenity" was not protected by the 1st and 14th amendments and that "obscenity" meant only "hard-core pornography."
"MR. JUSTICE STEWART, concurring.
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, [n1] that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. [n2] I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
1. Times Film Corp. v. City of Chicago, 355 U.S. 35, reversing 244 F.2d 432; One, Incorporated, v. Olesen, 355 U.S. 371, reversing 241 F.2d 772; Sunshine Book Co. v. Summerfield, 355 U.S. 372, reversing 101 U.S.App.D.C. 358, 249 F.2d 114; Manual Enterprises v. Day, 370 U.S. 478 (opinion of HARLAN, J).
2. Cf. People v. Richmond County News, 9 N.Y.2d 578, 175 N.E.2d 681, 216 N.Y.S.2d 369."
"MR. JUSTICE STEWART, concurring.
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, [n1] that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. [n2] I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
1. Times Film Corp. v. City of Chicago, 355 U.S. 35, reversing 244 F.2d 432; One, Incorporated, v. Olesen, 355 U.S. 371, reversing 241 F.2d 772; Sunshine Book Co. v. Summerfield, 355 U.S. 372, reversing 101 U.S.App.D.C. 358, 249 F.2d 114; Manual Enterprises v. Day, 370 U.S. 478 (opinion of HARLAN, J).
2. Cf. People v. Richmond County News, 9 N.Y.2d 578, 175 N.E.2d 681, 216 N.Y.S.2d 369."
Jonathan Loesberg
Jonathan Loesberg
originally posted by kirk wallace:
It is not surprising that the words get confused. Justice Stewart, in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), was referring to what he called "hard-core pornography." His view was that "obscenity" was not protected by the 1st and 14th amendments and that "obscenity" meant only "hard-core pornography."
"MR. JUSTICE STEWART, concurring.
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, [n1] that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. [n2] I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
1. Times Film Corp. v. City of Chicago, 355 U.S. 35, reversing 244 F.2d 432; One, Incorporated, v. Olesen, 355 U.S. 371, reversing 241 F.2d 772; Sunshine Book Co. v. Summerfield, 355 U.S. 372, reversing 101 U.S.App.D.C. 358, 249 F.2d 114; Manual Enterprises v. Day, 370 U.S. 478 (opinion of HARLAN, J).
2. Cf. People v. Richmond County News, 9 N.Y.2d 578, 175 N.E.2d 681, 216 N.Y.S.2d 369."
Thank you, Kirk. This genuinely solves a problem I've had. I know the case was about pornograpy and I know the quote is generally cited with regard to obscenity. Stewart to the contrary notwithstanding, though, they are not really the same thing. Numbers of things are obscene that are not pornographic.
Oswaldo Costa
Oswaldo Costa
Don't think anyone is or was suggesting that they are the same, perhaps only that they are connected enough in some situations for one to be misremembered as the other.
kirk wallace
kirk wallace
It might be worth keeping in mind the distinction between common or cultural usage definitions and those that apply for 1st amendment constitutional law.
Jonathan Loesberg
Jonathan Loesberg
originally posted by kirk wallace:
It might be worth keeping in mind the distinction between common or cultural usage definitions and those that apply for 1st amendment constitutional law.
Are you suggesting that for the purposes of constitutional law, obscenity is synonymous with pornography? If so, I can only quote Bumble from Oliver Twist: if the law supposes that, then the law is a ass.
Kirk is right. Under First Amendment jurisprudence, "obscenity" only refers to materials that depict or describe sexual conduct in a patently offensive way.
"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."
Miller v. California (1973)
"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."
Miller v. California (1973)
John Roberts
John Roberts
Isn't that every commercial on television?