Inc. Young v. American Mini Theatres

Justice Stevens wrote for only a plurality of the Court; four of the nine justices voted against him, and Justice Powell wrote out his own reasons for supporting the Detroit zoning ordinances. It is hardly surprising that Young proved to be such a contentious case. In declaring that some degree of restriction of otherwise legal speech did not violate the First Amendment, Stevens was breaking new ground. He gave three reasons for upholding Detroit's zoning restrictions: first, they did not entirely ban sexually explicit material; second, most people found such material highly offensive; and third, this was not the type of speech whose content merited full First Amendment protection:

[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . . Few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice.

Justice Stevens's discriminating approach to the First Amendment has proven to be a genuine departure for the Court, which had previously held that speech was either fully protected or unprotected. The Court has, however, always had difficulty defining what constitutes legally obscene and therefore unprotected expression. Previously, in Miller v. California (1973), the Court defined obscenity as material whose prominent theme is lewd according to community standards, depicts sexual activity in a patently offensive way, and, taken as a whole, "lacks serious literary, artistic, political, or scientific value." In general, this test requires the Court to make an evaluation in each case. Attempts to ban whole categories of sexually explicit speech, such as a push by feminists in the 1980s to ban pornography, have been unsuccessful. But limited restrictions that do not rise to the level of outright prohibition have been tolerated in the area of obscenity and pornography since Young.