Jacobellis v. Ohio

Appellant, manager of a motion picture theater, was convicted under a state obscenity law of possessing and exhibiting an allegedly obscene film, and the State Supreme Court upheld the conviction.

Held: The judgment is reversed. Pp. 184-198.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE GOLDBERG, concluded that:

1. Though motion pictures are within the constitutional guarantees of freedom of expression, obscenity is not within those guarantees. P. 187.

2. This Court cannot avoid making an independent judgment as to whether material condemned as obscene is constitutionally protected. Pp. 187-190.

3. The test for obscenity is


 * whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

Roth v. United States, 354 U.S. 476. Pp. 191-195.

(a) A work cannot be proscribed unless it is "utterly without redeeming social importance," and hence material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection. P. 191.

(b) The constitutional status of allegedly obscene material does not turn on a "weighing" of its social importance against its prurient appeal, for a work may not be proscribed unless it is "utterly" without social importance. P. 191.

(c) Before material can be proscribed as obscene under this test, it must be found to go substantially beyond customary limits of candor in description or representation. Pp. 191-192.

(d) The "contemporary community standards" by which the issue of obscenity is to be determined are not those of the particular [p185] local community from which the case arises, but those of the Nation as a whole. Pp. 192-195.

4. The recognized interest in preventing dissemination of material deemed harmful to children does not justify its total suppression. This conviction, based not on the exhibition of the film to children, but on its exhibition to the public at large, must be reviewed under the strict standard applicable in determining the scope of the constitutional protection. P. 195.

5. The film is not obscene under the applicable standard. P. 196.

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that a conviction for exhibiting a motion picture violates the First Amendment, which is made obligatory on the States by the Fourteenth Amendment. Pp. 196-197.

MR. JUSTICE STEWART concluded that criminal obscenity laws are constitutionally limited under the First and Fourteenth Amendments to "hard-core pornography." P. 197.

MR. JUSTICE GOLDBERG concluded that there is no justification here for making an exception to the "freedom of expression rule," for, by any arguable standard, this film is not obscene. Pp. 197-198.