State v. Rabe

Hale, J.

(concurring) — I concur except as to that part of the opinion which appears to say that material cannot be judicially held obscene unless utterly without social value (majority opinion, at page 263), as declared in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413, 418 , 16 L. Ed. 2d 1 , 86 S. Ct. 975 (1966). Deciding whether the material has little or substantial social, literary, educational or entertainment value is difficult enough without trying to determine if it is utterly without it. Adcter all, a seed catalog or a film travelogue can be readily converted into pornography while retaining some vestiges of social or other value. Even the filthiest, most depraved and obscene work, recognized instanter to be such by everyone of ordinary understanding, may be claimed to possess some spark of social value and thus cannot be judicially said to be utterly without it.

Although the Supreme Court of the United States, as is seen in the court’s opinion, has the last word on freedom of speech, I think it has no jurisdiction whatever under the constitution — except perhaps for the District of Columbia —to prescribe moral, literary or social standards for the *270 country at large. The judicial duty to protect freedom of speech and press in the nation at large imports no correlative power to preserve obscenity and pornography in the states. “[OJbscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 S. Ct. 1304 (1957). Accordingly, filth, whether “filth for filth’s sake” or “filth for money’s sake” (State v. Jacobellis, 173 Ohio St. 22 , 28, 179 N.E.2d 777 (1962), rev’d sub nom., Jacobellis v. Ohio, 378 U.S. 184 , 12 L. Ed. 2d 793 , 84 S. Ct. 1676 (1964)), is not and should not be granted immunity from community and moral standards and state law except where to deny such immunity amounts to a deprivation of freedom of speech and press. Freedom of speech and press is not a commercial license for obscenity and pornography. Nor is obscenity and pornography protected by the commerce clause. That Congress and the federal courts do not bar the interstate transportation of filthy, obscene and pornographic movie film, does not, I think, prevent the states in their constitutional exercise of the police power from prohibiting the public sale and distribution of such materials. This is so for the same reason that allowing contaminated or 'adulterated foods and drugs and other consumable goods to move in interstate commerce does not override the fundamental power of the states to prohibit their sale and distribution. A different rule, I think, would constitute a direct attack on the ideas of self-government.

Holmes’ aphorism that freedom of speech does not import the right falsely to shout “fire” in crowded theaters applies with equal force to pornography. Freedom of speech and press does not, I think, license the public use of pornography and obscene materials in business, commerce, politics and government.