Appellant
Nico Jacobellis
Appellee
State of Ohio
Appellant's Claim
That under the First and Fourteenth Amendments, he should not have been punished for showing The Lovers, a film deemed obscene under Ohio State law.
Chief Lawyer for Appellant
John T. Corrigan
Chief Lawyer for Appellee
Ephraim London
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr. (writing for the Court), William O. Douglas, Arthur Goldberg, Potter Stewart, Byron R. White
Justices Dissenting
Tom C. Clark, John Marshall Harlan II, Earl Warren
Place
Washington, D.C.
Date of Decision
22 June 1964
Decision
The film was not obscene and Jacobellis' conviction should be overturned.
Significance
This was a landmark case that helped define the legal standards for determining obscenity.
In 1964, movie theater manager Nico Jacobellis was convicted of exhibiting anobscene movie, Louis Malle's Les Amants, "The Lovers." The advertising for the film made it sound quite daring:
Yet to most critics and filmgoers, the film was nothing more than a sensitivelove story, directed by the renowned French director Louis Malle and starring the internationally famous actress Jeanne Moreau. In the words of the Supreme Court decision:
Although the film was shown in some 100 U.S. cities, including Columbus and Toledo, Ohio, Jacobellis was prosecuted for showing it in Cleveland Heights, amiddle-class suburb of Cleveland.
Defining Obscenity
In a 6-3 decision, the Supreme Court decided that Jacobellis had been wronglyconvicted. By no stretch of the imagination could The Lovers be called obscene. Yet Jacobellis displayed the wide diversity of opinion about what constitutes obscenity and who should judge.
Justice Brennan announced the judgment of the Court and was joined in his opinion by Justice Goldberg. Brennan reiterated that obscenity is not covered bythe First Amendment's protection of free speech. Therefore, it was legal topass laws against obscenity and to prosecute people for distributing it. Theproblem came in determining just what counted as obscene material.
Some people, wrote Brennan, wanted obscenity to be treated "as a purely factual judgment" that could be decided by a jury or at least by state and the lower federal courts. In this view, the Supreme Court's role in obscenity caseswould be limited only to judging whether sufficient evidence supported the lower court's ruling--in other words, asking only whether the lower court proceeded in a constitutional manner, without regard to its actual judgment.
"The suggestion is appealing," continued Brennan, "since it would lift from our shoulders a difficult, recurring, and unpleasant task"--having continuallyto review materials and decide whether they were obscene. Unfortunately, Brennan wrote, the Court had to be involved in specific decisions. Otherwise, itwas far too likely that work deserving of First Amendment protections wouldbe ruled obscene and lose its constitutional safeguard.
Brennan referred to a 1957 decision, Roth v. United States, as the most recent working definition of obscenity available:
Brennan went on to write that the Roth standard required material to be considered obscene only if it went "substantially beyond customary limits of candor in description or representation of such matters."
Finally, Brennan examined the Roth decision's idea that obscenity be judged by "contemporary community standards." He stressed that "community" inthis context meant "society at large . . . the public, or people in general."Otherwise, wrote Brennan, a work might be considered obscene in one community while being permitted in another. This would make it virtually impossible for publishers and film distributors to know how to distribute work nationally. The probable effect would be to "restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly."
Other Opinions: "I Know It When I See It"
Justices Warren and Clark dissented. They believed that community standards of the local area in which the work was being prosecuted should be invoked. And Justice Harlan, another dissenter, believed that while federal laws had todefine obscenity very narrowly, states had somewhat more latitude in making these judgments.
However, the dissenters were not the only ones to express individual opinionsin this controversial case. Those who agreed with the majority decision alsowrote their own opinions about it. Justice Black, for example, joined by Justice Douglas, wrote a "First Amendment absolutist" opinion. The justices feltthat any conviction of anyone for exhibiting a movie "abridges freedom of the press as safeguarded by the First Amendment." Since the Fourteenth Amendment meant that state laws, too, had to follow the First Amendment, no laws against obscenity were possible under the Constitution.
Justice Goldberg wrote a separate opinion, stressing that the love scene in the movie was "so fragmentary and fleeting that only a censor's alert would make an audience conscious that something `questionable' is being portrayed." Perhaps, wrote Goldberg sarcastically, the exhibitors of the movie could be prosecuted--but only if the "exaggerated character of the advertising rather than the obscenity of the film is to be the constitutional criterion."
But the most famous opinion in the Jacobellis case came from Justice Stewart, who said that the only unprotected material in his opinion was "hard-core pornography." Stewart expressed his concern that such material was impossible to define. "But I know it when I see it," he wrote, coining a phrase that was to become widely quoted in both admiring and disparaging terms.
Consequences of Jacobellis
Justice Stewart's notion of knowing obscenity when he saw it has been quotedin more than 150 court decisions. Eventually, Stewart's frustration with thegeneral inability to define obscenity led him to join Justice Brennan in thebelief that obscene material should not be suppressed, because of the difficulty of suppressing only it and not permissible material as well. By 1973, Justices Stewart, Brennan, and Marshall were all arguing that the state should regulate only the distribution of obscene material to children and unconsenting adults, leaving consenting adults to enjoy obscene material if they chose.
Related Cases
Banned Films
Banned Films: Movies, Censors and the First Amendment, lists 122 filmswhich, for "political, religious, moral, [or] sexual reasons," were the focus of censorship cases between 1908 and 1981. In The Encyclopedia of Censorship, published eight years later, only five more films were listed, suggesting that the bulk of these legal actions took place earlier in the historyof film rather than later.
The first case noted by the authors involved the films Night Riders and The James Boys in Missouri, both banned in Chicago in 1908. Though both films depicted "the American historical experience," according to their promoters, the authorities found in them evidence of immorality.
A sampling of some other banned films include: The Birth of a Nation (1915), whose racist themes would "invite race hatred and race riots"; Tomorrow's Children (1937), a film that depicts sterilization and corrupt public officials; Victory in the West (1941), a German newsreel celebrating Nazi victories in France and the Low Countries; Curley (1949), a Little Rascals-style Hal Roach film banned in Memphis because it showedwhite children and black children in school together; and The Man with theGolden Arm (1956), which portrayed drug addiction.
Sources
Grazia, Edward de and Roger K. Newman. Banned Films: Movies, Censors and the First Amendment. New York: R. R. Bowker, 1982.
Nico Jacobellis
Appellee
State of Ohio
Appellant's Claim
That under the First and Fourteenth Amendments, he should not have been punished for showing The Lovers, a film deemed obscene under Ohio State law.
Chief Lawyer for Appellant
John T. Corrigan
Chief Lawyer for Appellee
Ephraim London
Justices for the Court
Hugo Lafayette Black, William J. Brennan, Jr. (writing for the Court), William O. Douglas, Arthur Goldberg, Potter Stewart, Byron R. White
Justices Dissenting
Tom C. Clark, John Marshall Harlan II, Earl Warren
Place
Washington, D.C.
Date of Decision
22 June 1964
Decision
The film was not obscene and Jacobellis' conviction should be overturned.
Significance
This was a landmark case that helped define the legal standards for determining obscenity.
In 1964, movie theater manager Nico Jacobellis was convicted of exhibiting anobscene movie, Louis Malle's Les Amants, "The Lovers." The advertising for the film made it sound quite daring:
"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 onfilm." "Contains one of the longest and most sensuous love scenes to be seenin this country."
Yet to most critics and filmgoers, the film was nothing more than a sensitivelove story, directed by the renowned French director Louis Malle and starring the internationally famous actress Jeanne Moreau. In the words of the Supreme Court decision:
"The Lovers" involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologistwith whom she has suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State's objections are based almost entirely upon that scene. The film was favorably reviewed in a number of nationalpublications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced.
Although the film was shown in some 100 U.S. cities, including Columbus and Toledo, Ohio, Jacobellis was prosecuted for showing it in Cleveland Heights, amiddle-class suburb of Cleveland.
Defining Obscenity
In a 6-3 decision, the Supreme Court decided that Jacobellis had been wronglyconvicted. By no stretch of the imagination could The Lovers be called obscene. Yet Jacobellis displayed the wide diversity of opinion about what constitutes obscenity and who should judge.
Justice Brennan announced the judgment of the Court and was joined in his opinion by Justice Goldberg. Brennan reiterated that obscenity is not covered bythe First Amendment's protection of free speech. Therefore, it was legal topass laws against obscenity and to prosecute people for distributing it. Theproblem came in determining just what counted as obscene material.
Some people, wrote Brennan, wanted obscenity to be treated "as a purely factual judgment" that could be decided by a jury or at least by state and the lower federal courts. In this view, the Supreme Court's role in obscenity caseswould be limited only to judging whether sufficient evidence supported the lower court's ruling--in other words, asking only whether the lower court proceeded in a constitutional manner, without regard to its actual judgment.
"The suggestion is appealing," continued Brennan, "since it would lift from our shoulders a difficult, recurring, and unpleasant task"--having continuallyto review materials and decide whether they were obscene. Unfortunately, Brennan wrote, the Court had to be involved in specific decisions. Otherwise, itwas far too likely that work deserving of First Amendment protections wouldbe ruled obscene and lose its constitutional safeguard.
Brennan referred to a 1957 decision, Roth v. United States, as the most recent working definition of obscenity available:
. . . obscenity is excluded from constitutional protection only because it is "utterly without redeeming social importance," and . . . "the portrayal of sex, e.g., inart, literature and scientific works, is not itself sufficient reason to denymaterial the constitutional protection of freedom of speech and press."The Court would not, moreover, "weigh" the social importance of a work against its obscene qualities. If a work had any "social importance" whatsoever, it deserved constitutional protection.
Brennan went on to write that the Roth standard required material to be considered obscene only if it went "substantially beyond customary limits of candor in description or representation of such matters."
Finally, Brennan examined the Roth decision's idea that obscenity be judged by "contemporary community standards." He stressed that "community" inthis context meant "society at large . . . the public, or people in general."Otherwise, wrote Brennan, a work might be considered obscene in one community while being permitted in another. This would make it virtually impossible for publishers and film distributors to know how to distribute work nationally. The probable effect would be to "restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly."
Other Opinions: "I Know It When I See It"
Justices Warren and Clark dissented. They believed that community standards of the local area in which the work was being prosecuted should be invoked. And Justice Harlan, another dissenter, believed that while federal laws had todefine obscenity very narrowly, states had somewhat more latitude in making these judgments.
However, the dissenters were not the only ones to express individual opinionsin this controversial case. Those who agreed with the majority decision alsowrote their own opinions about it. Justice Black, for example, joined by Justice Douglas, wrote a "First Amendment absolutist" opinion. The justices feltthat any conviction of anyone for exhibiting a movie "abridges freedom of the press as safeguarded by the First Amendment." Since the Fourteenth Amendment meant that state laws, too, had to follow the First Amendment, no laws against obscenity were possible under the Constitution.
Justice Goldberg wrote a separate opinion, stressing that the love scene in the movie was "so fragmentary and fleeting that only a censor's alert would make an audience conscious that something `questionable' is being portrayed." Perhaps, wrote Goldberg sarcastically, the exhibitors of the movie could be prosecuted--but only if the "exaggerated character of the advertising rather than the obscenity of the film is to be the constitutional criterion."
But the most famous opinion in the Jacobellis case came from Justice Stewart, who said that the only unprotected material in his opinion was "hard-core pornography." Stewart expressed his concern that such material was impossible to define. "But I know it when I see it," he wrote, coining a phrase that was to become widely quoted in both admiring and disparaging terms.
Consequences of Jacobellis
Justice Stewart's notion of knowing obscenity when he saw it has been quotedin more than 150 court decisions. Eventually, Stewart's frustration with thegeneral inability to define obscenity led him to join Justice Brennan in thebelief that obscene material should not be suppressed, because of the difficulty of suppressing only it and not permissible material as well. By 1973, Justices Stewart, Brennan, and Marshall were all arguing that the state should regulate only the distribution of obscene material to children and unconsenting adults, leaving consenting adults to enjoy obscene material if they chose.
Related Cases
- Roth v. United States, 354 U.S. 476 (1957).
- Kingsley Pictures Corp. v. Regents of the University of the State of New York, 360 U.S. 684 (1959).
- Manual Enterprises, Inc., v. Day, 370 U.S. 478 (1962).
- Bantam Books Inc. v. Sullivan, 372 U.S. 58 (1963).
- Miller v. California, 413 U.S. 15 (1973).
- Jenkins v. Georgia, 418 U.S. 153 (1974).
Banned Films
Banned Films: Movies, Censors and the First Amendment, lists 122 filmswhich, for "political, religious, moral, [or] sexual reasons," were the focus of censorship cases between 1908 and 1981. In The Encyclopedia of Censorship, published eight years later, only five more films were listed, suggesting that the bulk of these legal actions took place earlier in the historyof film rather than later.
The first case noted by the authors involved the films Night Riders and The James Boys in Missouri, both banned in Chicago in 1908. Though both films depicted "the American historical experience," according to their promoters, the authorities found in them evidence of immorality.
A sampling of some other banned films include: The Birth of a Nation (1915), whose racist themes would "invite race hatred and race riots"; Tomorrow's Children (1937), a film that depicts sterilization and corrupt public officials; Victory in the West (1941), a German newsreel celebrating Nazi victories in France and the Low Countries; Curley (1949), a Little Rascals-style Hal Roach film banned in Memphis because it showedwhite children and black children in school together; and The Man with theGolden Arm (1956), which portrayed drug addiction.
Sources
Grazia, Edward de and Roger K. Newman. Banned Films: Movies, Censors and the First Amendment. New York: R. R. Bowker, 1982.
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