explaining that basic guidelines for trier of fact in determining whether a work which depicts or describes sexual conduct is obscene is whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
How later courts described this case
- explaining that basic guidelines for trier of fact in determining whether a work which depicts or describes sexual conduct is obscene is whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- holding that a statute regulating obscene speech must be limited to works that depict or describe sexual conduct “which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value”
- explaining that “[t]he adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community” to determine whether material is obscene and therefore not subject to constitutional protection
- holding that gov- ernments may regulate speech as obscene if it (a) under commu- nity standards, appeals to the prurient interest, (b) taken as a whole, is a patently offensive depiction or description of sexual conduct, and (c) lacks serious literary, artistic, political, or scien- tific value
Written by the judges who cited it.
The opinion
Me. Justice Brennan,
with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting.
In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or .the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. * “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting *48 from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); id., at 619-620 (White, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, 371 U. S. 415, 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a “readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution,” Dombrowski v. Pfister, supra, at 491 , I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616 .
Cal. Penal Code § 311.2 (a) provides that “Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.”