roth argued april decided june roth case constitutionality makes punishable mailing material obscene lewd lascivious filthy publication indecent character roth conviction thereunder mailing obscene book obscene circulars advertising sustained pp alberts case constitutionality west california penal code inter alia makes misdemeanor keep sale advertise material obscene indecent alberts conviction thereunder lewdly keeping sale obscene indecent books writing composing publishing obscene advertisement sustained pp obscenity within area constitutionally protected freedom speech press either first amendment federal government due process clause fourteenth amendment pp light history apparent unconditional phrasing first amendment intended protect every utterance pp protection given speech press fashioned assure unfettered interchange ideas bringing political social changes desired people ideas even slightest redeeming social importance unorthodox ideas controversial ideas even ideas hateful prevailing climate opinion full protection guaranties unless excludable encroach upon limited area important interests implicit history first amendment rejection obscenity utterly without redeeming social importance pp sex obscenity synonymous obscene material material deals sex manner appealing prurient interest material tendency excite lustful thoughts vital standards judging obscenity safeguard protection freedom speech press material treat sex manner appealing prurient interest pp standard judging obscenity adequate withstand charge constitutional infirmity whether average person applying contemporary community standards dominant theme material taken whole appeals prurient interest pp cases trial courts sufficiently followed proper standard used proper definition obscenity pp applied according proper standard judging obscenity west california penal code inter alia makes misdemeanor keep sale advertise material obscene indecent violate freedom speech press guaranteed fourteenth amendment encroachment violate constitutional requirements due process failing provide reasonably ascertainable standards guilt federal obscenity statute punishing use mails obscene material proper exercise postal power delegated congress art cl unconstitutionally encroach upon powers reserved ninth tenth amendments pp california obscenity statute involved repugnant art cl since impose burden upon interfere federal postal functions even applied business pp affirmed cal app supp affirmed together alberts california appeal superior california los angeles county appellate department argued decided dates david von albrecht john rogge argued cause petitioner brief david siegel peter belsito murray gordon stanley fleishman argued cause appellant brief sam rosenwein william murrish roger fisher argued cause brief solicitor general rankin assistant attorney general olney fred whichello clarence linn assistant attorney general california argued cause appellee brief edmund brown attorney general william mckesson lewis watnick briefs amici curiae urging reversal filed morris ernst harriett pilpel nancy wechsler ernst irwin karp osmond fraenkel authors league america abe fortas william mcgovern abe krash maurice rosenfield greenleaf publishing et horace manges american book publishers council emanuel redfield american civil liberties union wirin filed brief american civil liberties union southern california branch amicus curiae support appellant justice brennan delivered opinion constitutionality criminal obscenity statute question cases roth primary constitutional question whether federal obscenity statute violates provision first amendment congress shall make law abridging freedom speech press alberts primary constitutional question whether obscenity provisions california penal code invade freedoms speech press may incorporated liberty protected state action due process clause fourteenth amendment constitutional questions whether statutes violate due process vague support conviction crime whether power punish speech press offensive decency morality alone federal obscenity statute violates ninth tenth amendments raised roth whether congress enacting federal obscenity statute power delegated art cl establish post offices post roads regulation subject matter raised alberts roth conducted business new york publication sale books photographs magazines used circulars advertising matter solicit sales convicted jury district southern district new york upon counts indictment charging mailing obscene circulars advertising obscene book violation federal obscenity statute conviction affirmed appeals second circuit granted certiorari alberts conducted business los angeles convicted judge municipal beverly hills judicial district waived jury trial misdemeanor complaint charged lewdly keeping sale obscene indecent books writing composing publishing obscene advertisement violation california penal code conviction affirmed appellate department superior state california county los angeles noted probable jurisdiction dispositive question whether obscenity utterance within area protected speech press although first time question squarely presented either first amendment fourteenth amendment expressions found numerous opinions indicate always assumed obscenity protected freedoms speech press ex parte jackson chase robertson baldwin public clearing house coyne hoke near minnesota chaplinsky new hampshire hannegan esquire winters new york beauharnais illinois guaranties freedom expression effect ratified constitution gave absolute protection every utterance thirteen provided prosecution libel made either blasphemy profanity statutory crimes early massachusetts made criminal publish filthy obscene profane song pamphlet libel mock sermon imitation mimicking religious services acts laws province mass bay cv mass bay colony charters laws thus profanity obscenity related offenses light history apparent unconditional phrasing first amendment intended protect every utterance phrasing prevent concluding libelous utterances within area constitutionally protected speech beauharnais illinois time adoption first amendment obscenity law fully developed libel law sufficiently contemporaneous evidence show obscenity outside protection intended speech press protection given speech press fashioned assure unfettered interchange ideas bringing political social changes desired people objective made explicit early letter continental congress inhabitants quebec last right shall mention regards freedom press importance consists besides advancement truth science morality arts general diffusion liberal sentiments administration government ready communication thoughts subjects consequential promotion union among whereby oppressive officers shamed intimidated honourable modes conducting affairs journals continental congress certain narrowly limited classes speech prevention punishment never thought raise constitutional problem include lewd obscene well observed utterances essential part exposition ideas slight social value step truth benefit may derived clearly outweighed social interest order morality emphasis added strenuously urged obscenity statutes offend constitutional guaranties punish incitation impure sexual thoughts shown related overt antisocial conduct may incited persons stimulated thoughts roth trial judge instructed jury words obscene lewd lascivious used law signify form immorality relation sexual impurity tendency excite lustful thoughts emphasis added alberts trial judge applied test laid people wepplo cal app supp namely whether material substantial tendency deprave corrupt readers inciting lascivious thoughts arousing lustful desires emphasis added insisted constitutional guaranties violated convictions may without proof either obscene material perceptibly create clear present danger antisocial conduct probably induce recipients conduct light holding obscenity protected speech complete answer argument holding beauharnais illinois supra libelous utterances within area constitutionally protected speech unnecessary either us state courts consider issues behind phrase clear present danger certainly one contend obscene speech example may punished upon showing circumstances libel seen class freedom speech press guaranteed constitution embraces least liberty discuss publicly truthfully matters public concern without previous restraint fear subsequent punishment exigencies colonial period efforts secure freedom oppressive administration developed broadened conception liberties adequate supply public need information education respect significant issues times freedom discussion fulfill historic function nation must embrace issues information needed appropriate enable members society cope exigencies period emphasis added early leading standard obscenity allowed material judged merely effect isolated excerpt upon particularly susceptible persons regina hicklin american courts adopted standard later decisions rejected substituted test whether average person applying contemporary community standards dominant theme material taken whole appeals prurient interest hicklin test judging obscenity effect isolated passages upon susceptible persons might well encompass material legitimately treating sex must rejected unconstitutionally restrictive freedoms speech press hand substituted standard provides safeguards adequate withstand charge constitutional infirmity trial courts sufficiently followed proper standard courts used proper definition obscenity addition alberts case ruling motion dismiss trial judge indicated trier facts judging item whole affect normal person roth trial judge instructed jury follows test whether arouse sexual desires sexual impure thoughts comprising particular segment community young immature highly prudish leave another segment scientific highly educated sophisticated indifferent unmoved test case effect book picture publication considered whole upon particular class upon likely reach words determine impact upon average person community books pictures circulars must judged whole entire context consider detached separate portions reaching conclusion judge circulars pictures publications put evidence standards community may ask offend common conscience community standards case ladies gentlemen jury alone exclusive judges common conscience community determining conscience consider community whole young old educated uneducated religious irreligious men women children many decisions recognized terms obscenity statutes precise however consistently held lack precision offensive requirements due process constitution require impossible standards required language conveys sufficiently definite warning proscribed conduct measured common understanding practices petrillo words applied according proper standard judging obscenity already discussed give adequate warning conduct proscribed mark boundaries sufficiently distinct judges juries fairly administer law may marginal cases difficult determine side line particular fact situation falls sufficient reason hold language ambiguous define criminal offense see also harriss boyce motor lines ragen wurzbach hygrade provision sherman fox washington nash summary hold statutes applied according proper standard judging obscenity offend constitutional safeguards convictions based upon protected material fail give men acting adequate notice prohibited roth argument federal obscenity statute unconstitutionally encroaches upon powers reserved ninth tenth amendments people punish speech press offensive decency morality hinged upon contention obscenity expression excepted sweep provision first amendment congress shall make law abridging freedom speech press emphasis added argument falls light holding obscenity expression protected first amendment therefore hold federal obscenity statute punishing use mails obscene material proper exercise postal power delegated congress art cl public workers mitchell said powers granted constitution federal government subtracted totality sovereignty originally people therefore objection made exercise federal power infringes upon rights reserved ninth tenth amendments inquiry must directed toward granted power action union taken granted power found necessarily objection invasion rights reserved ninth tenth amendments must fail judgments affirmed footnotes california penal code provides pertinent part every person wilfully lewdly either writes composes stereotypes prints publishes sells distributes keeps sale exhibits obscene indecent writing paper book designs copies draws engraves paints otherwise prepares obscene indecent picture print molds cuts casts otherwise makes obscene indecent figure writes composes publishes notice advertisement writing paper book picture print figure guilty misdemeanor west cal penal code roth reliance placed due process clause fifth amendment alberts reliance placed upon due process clause fourteenth amendment petitioner application bail granted justice harlan capacity circuit justice second circuit sup cal app supp highest state appellate available appellant cal art vi see edwards california issue presented either case concerning obscenity material involved see also following cases convictions obscenity statutes reviewed grimm rosen swearingen andrews price dunlop bartell limehouse del art ga art lxi md declaration rights mass declaration rights art xvi art xxii declaration rights art xv pa declaration rights art xii art xliii vt declaration rights art xiv bill rights act secure freedom press pub stat laws del art ga penal code eighth viii digest laws prince act ii md public general laws poe commonwealth kneeland mass act punishment certain crimes capital laws act respecting libels rev laws people croswell johns act laws pa art ix code laws proceedings first general assembly code laws art act laws tolman commonwealth morris brock hol act punishment divers capital felonies acts laws act drunkenness blasphemy laws del act regulate taverns digest laws prince act digest laws md herty general laws liberties mass bay xviii mass bay colony charters laws act rev stat mass act rev stat mass act punishment certain crimes capital laws act punishment profane cursing swearing laws act suppressing vice immorality viii ix rev laws act suppressing immorality iv laws jones varick people ruggles johns act effectual suppression vice immorality iii laws martin rev act prevent grievous sins cursing swearing ii statutes large act prevention vice immorality ii laws act reform penal laws laws act effectual suppressing blasphemy prophaneness laws grimke act punishment certain capital high crimes misdemeanors laws tolman act punishment certain inferior crimes misdemeanors laws tolman act effectual suppression vice acts general assembly act concerning crimes punishments stat laws knowles state day rev stat rev stat mass commonwealth holmes mass rev stat rev stat act suppressing vice immorality xii rev laws commonwealth sharpless harriss bread alexandria teamsters union hanke kovacs cooper prince massachusetts labor board virginia elec power cox new hampshire schenck agreement suppression circulation obscene publications stat treaties force dept state october hearings subcommittee investigate juvenile delinquency senate committee judiciary pursuant res sess may although new mexico general obscenity statute statute giving municipalities power prohibit sale exhibiting obscene immoral publications prints pictures illustrations stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat stat schenck approach typified opinion judge bok written prior opinion dennis commonwealth gordon aff sub nom commonwealth feigenbaum super dennis approach typified concurring opinion judge frank roth case see also lockhart mcclure literature law obscenity constitution rev material tendency excite lustful thoughts webster new international dictionary unabridged defines prurient pertinent part follows itching longing uneasy desire longing persons itching morbid lascivious longings desire curiosity propensity lewd pruriency defined pertinent part follows quality prurient lascivious desire thought see also mutual film industrial said motion pictures take attraction general interest eager wholesome may subjects prurient interest may excited appealed emphasis added perceive significant difference meaning obscenity developed case law definition model penal code tent draft viz thing obscene considered whole predominant appeal prurient interest shameful morbid interest nudity sex excretion goes substantially beyond customary limits candor description representation matters see comment discussion page et seq see dennett madison report virginia resolutions elliot debates see note supra see instructions given jury justice stable regina martin secker warburg eng kennerley macfadden bennett fed cas clarke commonwealth buckley mass walker popenoe app parmelee app levine dennett khan feist supp aff one book called ulysses supp aff american civil liberties union chicago commonwealth isenstadt mass missouri becker mo adams theatre keenan bantam books melko super commonwealth gordon aff sub nom commonwealth feigenbaum super cf roth goldman concurrence alberts contention trial judge read materials entirety us fairly comprised within questions presented sup rules early said federal obscenity statute every one uses mails carrying papers publications must take notice enlightened age meant decency purity chastity social life must deemed obscene lewd lascivious rosen roth goldman parmelee app copies international journal supp one unbound volume supp argued juries may reach different conclusions material statutes must held insufficiently precise satisfy due process requirements common experience different juries may reach different results criminal statute one consequences accept jury system cf dunlop reason reject case argument greater latitude state action word liberty fourteenth amendment allowed congress language first amendment public clearing house coyne said constitutional principles underlying administration post office department discussed opinion ex parte jackson held power vested congress establish post offices post roads embraced regulation entire postal system country congress might designate might carried mails excluded may refuse include mails printed matter merchandise may seem objectionable upon ground public policy thirty years transmission obscene matter prohibited made crime punishable fine imprisonment person deposit matter mails constitutionality law believe never attacked chief justice warren concurring result agree result reached cases operating field expression broad language used may eventually applied arts sciences freedom communication generally limit decision facts us validity statutes question applied appellant alberts charged wailfully unlawfully lewdly disseminating obscene matter obscenity construed california courts mean substantial tendency corrupt arousing lustful desires people wepplo cal app supp petitioner roth indicted unlawfully wailfully knowingly mailing obscene material calculated corrupt debauch minds morals sent accorded protections criminal trial among things contend statutes convicted violate constitutional guarantees freedom speech press communication social problem presented obscenity attested expression legislatures well congress recognize existence problem however require sustain measures adopted meet problem history application laws designed suppress obscene demonstrates convincingly power government invoked great art literature scientific treatises works exciting social controversy mistakes past prove strong countervailing interest considered freedoms guaranteed first fourteenth amendments line dividing salacious pornographic literature science straight unwavering present laws depend largely upon effect materials may upon receive manifest object may different impact varying according part community reached cases book trial person conduct defendant central issue obscenity book picture nature materials course relevant attribute defendant conduct materials thus placed context draw color character wholly different result might reached different setting personal element cases seen strongly requirement scienter california law prohibited activity must done wailfully lewdly federal statute limits crime acts done knowingly charge jury district judge stated matter must calculated corrupt debauch defendants cases engaged business purveying textual graphic matter openly advertised appeal erotic interest customers plainly engaged commercial exploitation morbid shameful craving materials prurient effect believe state federal governments constitutionally punish conduct cases present us need decide agree decision rejection contentions raised defendants justice harlan concurring result dissenting regret able join opinion find lurking beneath disarming generalizations number problems leave serious misgivings future effect today decisions also view call different results two cases basic difficulties opinion threefold first opinion paints broad brush fear may result loosening tight reins state federal courts hold upon enforcement obscenity statutes second fails discriminate different factors opinion involved constitutional adjudication state federal obscenity cases third relevant distinctions two obscenity statutes involved definition obscenity ignored final analysis problem presented cases far terms state federal governments power punish individuals disseminating books considered undesirable nature supposed deleterious effect upon human conduct proceeding premise issue presented either case concerning obscenity material involved finds dispositive question whether obscenity utterance within area protected speech press holds obscenity protected utterly without redeeming social importance sweeping formula appears beg question us seems assume obscenity peculiar genus speech press distinct recognizable classifiable poison ivy among plants basis constitutional question us simply becomes says whether obscenity abstraction protected first fourteenth amendments question whether particular book may suppressed becomes mere matter classification fact entrusted insulated independent constitutional judgment surely problem solved generalized fashion every communication individuality value suppression particular writing tangible form expression therefore individual matter nature things every suppression raises individual constitutional problem reviewing must determine whether attacked expression suppressable within constitutional standards since standards readily lend generalized definitions constitutional problem last analysis becomes one particularized judgments appellate courts must make think reviewing courts escape responsibility saying trier facts jury judge labeled questioned matter obscene obscenity suppressed question whether particular work character involves really issue fact question constitutional judgment sensitive delicate kind many juries might find joyce ulysses bocaccio decameron obscene yet conviction defendant selling either book raise gravest constitutional problems verdict convince without books utterly without redeeming social importance short understand resolve constitutional problems without making independent judgment upon character material upon convictions based much afraid broad manner decided cases tend obscure peculiar responsibilities resting state federal courts field encourage rely easy labeling jury verdicts substitute facing tough individual problems constitutional judgment involved every obscenity case second reason dissatisfaction opinion broad strides proceeded led brush aside perfunctory ease vital constitutional considerations opinion differentiate two cases seem matter one case balance power state field restrictions fourteenth amendment power federal government limitations first amendment deal subject particularly later thirdly bothered fact two cases involve different statutes california book must tendency deprave corrupt readers federal statute must tend stir sexual impulses lead sexually impure thoughts two statutes seem present problems yet compounds confusion superimposes two statutory definitions third drawn american law institute model penal code tentative draft thing obscene considered whole predominant appeal prurient interest bland assurance definition ones deal flies face authors express rejection deprave corrupt sexual thoughts tests obscenity tentative draft defined terms material appeals predominantly prurient interest sexual matters goes beyond customary freedom expression matters reject prevailing test tendency arouse lustful thoughts desires unrealistically broad society plainly tolerates great deal erotic interest literature advertising art regulation thought desire unconnected overt misbehavior raises acute constitutional well practical difficulties likewise reject common definition obscene tends corrupt debase means anything different tendency arouse lustful thought desire suggests change character actual misbehavior follows contact obscenity evidence consequences lacking hand appeal prurient interest refers qualities material capacity attract individuals eager forbidden look pass consideration two cases us ii concur judgment alberts california question case whether defendant deprived liberty without due process law convicted selling certain materials found judge obscene tendency deprave corrupt readers exciting lascivious thoughts arousing lustful desire judging constitutionality conviction remember function reviewing state judgments fourteenth amendment narrow one decide whether policy state wise whether based assumptions scientifically substantiated inquire whether state action subverts fundamental liberties implicit due process clause sustained rational exercise power see jackson dissenting beauharnais illinois power make printed words criminal course confined fourteenth amendment insofar power inconsistent concepts ordered liberty palko connecticut purpose california statute clearly state legislature made judgment printed words deprave corrupt reader words incite antisocial immoral action assumption seems distribution certain types literature induce criminal immoral sexual conduct well known course validity assumption matter dispute among critics sociologists psychiatrists penologists large school thought particularly scientific community denies causal connection reading pornography immorality crime delinquency others disagree clearly function decide question function belongs state legislature nothing constitution requires california accept truth advanced sophisticated psychiatric opinion seems clear irrational present state knowledge consider pornography induce type sexual conduct state may deem obnoxious moral fabric society fact division opinion subject counsels us respect choice made state furthermore even assuming pornography deemed ever cause immediate sense criminal sexual conduct interests within proper cognizance may protected prohibition placed materials state reasonably draw inference long period time indiscriminate dissemination materials essential character degrade sex eroding effect moral standards state legitimate interest protecting privacy home invasion unsolicited obscenity stands realization deal area knowledge small data insufficient experts divided since domain sexual morality matter state concern slow interfere state legislation calculated protect morality seems nothing broad flexible command due process clause forbids california prosecute one sells books whose dominant tendency might deprave corrupt reader agree course books must judged whole relation normal adult reader said however dispose case still remains us decide whether state determination material suppressed consistent fourteenth amendment course presents federal question state ultimate responsibility final analysis concur judgment upon independent perusal material involved light considerations discussed say suppression interfere communication ideas proper sense term offend due process clause therefore agree appellant conviction must affirmed iii dissent roth faced question whether federal obscenity statute construed applied case violates first amendment constitution question quite different order one dealing state legislation fourteenth amendment think follows state federal powers area state may suppress particular utterance automatically permissible federal government agree justice jackson historical evidence bear claim fourteenth amendment incorporates first literal sense see beauharnais illinois supra laying aside consequences might flow conclusion cf justice holmes gitlow new york prefer rest views case broader less abstract grounds constitution differentiates areas human conduct subject regulation subject powers federal government substantive powers two governments many instances distinct every case called upon balance interest free expression interests seems important keep forefront question whether interests state federal since constitutional scheme two necessarily equivalent balancing process must needs often produce different results whether particular limitation speech press upheld subserves paramount governmental interest must large extent think depend whether government constitution direct substantive interest power act particular area involved federal government example power restrict seditious speech directed government certainly substantive authority protect revolution cf pennsylvania nelson dealing obscenity faced converse situation interests obscenity statutes purportedly protect primarily entrusted care federal government congress substantive power sexual morality powers federal government field incidental powers postal power nature possessed bear direct responsibility protection local moral fabric justice jackson said beauharnais supra criminal libel equally true obscenity inappropriateness single standard restricting state nation indicated disparity functions duties relation freedoms criminality defamation predicated upon power either protect private right enjoy integrity reputation public right tranquillity neither objects federal cognizance except necessary accomplishment delegated power federal government puts liberty press one scale limited duty personal reputation local tranquillity weigh state action affecting speech press weighed reconciled conflicting social interests quite different situation presented however federal government imposes ban danger perhaps great people one state legislature decide lady chatterley lover goes far beyond acceptable standards candor deemed offensive state next door still free make choice least one uniform standard dangers free thought expression truly great federal government imposes blanket ban nation book prerogative differ ideas morality destroyed ability experiment stunted fact people one state read works lawrence seems wise desirable least acceptable person allowed seems intolerable violative letter spirit first amendment judge case view think attenuated federal interest field view real danger deadening uniformity result federal censorship view fact constitutionality conviction must weighed first fourteenth amendment viewed think conviction upheld petitioner convicted statute judge charge makes criminal sell books tend stir sexual impulses lead sexually impure thoughts agree book tends stir sexual impulses lead sexually impure thoughts necessarily utterly without redeeming social importance charge fail measure standards understand approve far see much great literature world lead conviction view statute moreover event think limited federal interest area extend mere thoughts federal government business whether postal commerce power bar sale books might lead kind thoughts answer say obscenity protected speech point statute construed defines obscenity widely encompasses matters might well protected speech think federal statute constitutionally construed reach government termed pornography think statute fairly read directed persons engaged business catering prurient minded even though wares fall short pornography statute raise constitutional questions different order since opinion material involved said pornography reverse case instructions dismiss indictment alberts california state definition obscenity course binding us definition used derives people wepplo cal app supp question whether material substantive tendency deprave corrupt readers exciting lascivious thoughts arousing lustful desire roth grant certiorari limited question constitutionality statute encompass correctness definition obscenity adopted trial judge matter statutory construction must therefore assume trial judge correctly defined term deal constitutionality statute construed applied case two definitions seem synonymous federal definition enough jury finds book whole leads certain thoughts california inference must drawn thoughts substantive tendency deprave corrupt thoughts induced material affect character action see american law institute model penal code tentative draft comments ibid see dissenting opinion justice brennan kingsley books brown ante general principle free speech seems must taken included fourteenth amendment view scope given word liberty used although perhaps may accepted somewhat larger latitude interpretation allowed congress sweeping language governs govern laws hoary dogma ex parte jackson public clearing house coyne use mails privilege government may impose conditions chooses long since evaporated see brandeis dissenting milwaukee social democratic publishing burleson holmes dissenting leach carlile cates haderline reversing door donaldson app hart relations state federal law rev give examples edmund wilson memoirs hecate country found obscene new york see doubleday new york bookseller indicted selling book acquitted california god little acre held obscene massachusetts obscene new york pennsylvania correctness judge charge us question necessarily subsumed broader question involving constitutionality statute applied case see american law institute model penal code tentative draft comments independent goal penal legislation repression sexual thoughts desires hard support thoughts desires manifested overt antisocial behavior generally regarded exclusive concern individual spiritual advisors justice douglas justice black concurs dissenting sustain convictions make legality publication turn purity thought book tract instills mind reader think approve standard faithful command first amendment terms restraint congress fourteenth restraint roth case trial judge charged jury statutory words obscene lewd lascivious describe form immorality relation sexual impurity tendency excite lustful thoughts stated term filthy statute pertains sort treatment sexual matters vulgar indecent way tends arouse feeling disgust revulsion went say material must calculated corrupt debauch minds morals average person community particular class judge circulars pictures publications put evidence standards community may ask offend common conscience community standards trial judge sitting without jury heard alberts case appellate sustained judgment conviction took california definition obscenity people wepplo cal app supp case held book obscene substantial tendency deprave corrupt readers inciting lascivious thoughts arousing lustful desire standards punishment inflicted thoughts provoked overt acts antisocial conduct test squared decisions first amendment even dennis case conceded speech punishable must relation action penalized government dennis cf chafee blessings liberty issue avoided saying obscenity protected first amendment question remains constitutional test obscenity tests convictions obtained require arousing sexual thoughts yet arousing sexual thoughts desires happens every day normal life dozens ways nearly years ago questionnaire sent college normal school women graduates asked things stimulating sexually replies said music said pictures said dancing said drama said books said man alpert judicial censorship obscene literature harv rev test obscenity endorses today gives censor free range vast domain allow state step punish mere speech publication judge jury thinks undesirable impact thoughts shown part unlawful action drastically curtail first amendment recently stated two outstanding authorities obscenity danger influencing change current moral standards community shocking offending readers stimulating sex thoughts desires apart objective conduct never justify losses society result interference literary freedom lockhart mcclure literature law obscenity constitution rev certain impurity sexual thoughts impelled action less dangerous ground punishing distributors sex literature means clear obscene literature defined significant factor influencing substantial deviations community standards number reasons real substantial doubts soundness hypothesis scientific studies juvenile delinquency demonstrate get trouble greatest concern advocates censorship far less inclined read become delinquent delinquents generally adventurous type little use reading entertainment thus even assuming reading sometimes adverse effect upon moral conduct effect likely substantial susceptible seldom read sheldon eleanor glueck among country leading authorities treatment causes juvenile delinquency recently published results ten year study causes exhaustively studied approximately factors influences might lead explain juvenile delinquency gluecks gave consideration type reading material read delinquents course consistent finding delinquents read little know much problem delinquency among youth group advocates censorship concerned conclude delinquents read little effect upon conduct worth investigating exhaustive study causes good reason serious doubt concerning basic hypothesis obscenity censorship defended many influences society stimulate sexual desire much frequent influence much potent effect influence reading likely relatively insignificant composite forces lead individual conduct deviating community sex standards kinsey studies show minor degree literature serves potent sexual stimulant studies demonstrating sex knowledge seldom results reading indicates sic relative unimportance literature sex thoughts compared factors society lockhart mcclure op cit supra pp noted trial judge roth case charged jury alternative federal obscenity statute outlaws literature dealing sex offends common conscience community standard view inimical still freedom expression standard offends common conscience community conflicts judgment command first amendment congress shall make law abridging freedom speech press certainly standard acceptable one religion economics politics philosophy involved become constitutional standard literature treating sex concerned test turns offensive community standards loose capricious destructive freedom expression squared first amendment test juries censor suppress punish like provided matter relates sexual impurity tendency excite lustful thoughts community censorship one worst forms creates regime battle literati philistines philistines certain win experience field teaches anything censorship obscenity almost always irrational indiscriminate lockhart mcclure op cit supra test adopted accentuates trend assume nothing constitution forbids congress using power mails proscribe conduct grounds good morals one suggest first amendment permits nudity public places adultery phases sexual misconduct understand times even sympathize programs civic groups church groups protect defend existing moral standards community understand motives anthony comstocks impose victorian standards community speech alone involved think government consistently first amendment become sponsor movements think government consistently first amendment throw weight behind one school another government concerned antisocial conduct utterances thus first amendment guarantee freedom speech press mean anything field must allow protests even moral code standard day sets community words literature suppressed merely offends moral code censor legality publication country never allowed turn either purity thought instills mind reader degree offends community conscience either test role censor exalted society values literary freedom sacrificed today suggests third standard defines obscene material deals sex manner appealing prurient interest like standards applied trial judges standard require nexus literature prohibited action legislature regulate prohibit first amendment standard valid courts adopted think problem resolved statement obscenity expression protected first amendment exception beauharnais illinois none cases resolved problems free speech free press placing form expression beyond pale absolute prohibition first amendment unlike law libel wrongfully relied beauharnais special historical evidence literature dealing sex intended treated special manner drafted first amendment fact first reported decision country involving obscene literature lockhart mcclure op cit supra reject implication problems freedom speech press resolved weighing values free expression judgment particular form expression redeeming social importance first amendment prohibition terms absolute designed preclude courts well legislatures weighing values speech silence first amendment puts free speech preferred position freedom expression suppressed extent closely brigaded illegal action inseparable part giboney empire storage labor board virginia power people afford relax standard test suppresses cheap tract today suppress literary gem tomorrow need incite lascivious thought arouse lustful desire list books judges juries place category endless give broad sweep first amendment full support confidence ability people reject noxious literature capacity sort true false theology economics politics field definition obscenity adopts seems substance adopted drafted model penal code tentative draft obscenity defined terms material appeals predominantly prurient interest sexual matters goes beyond customary freedom expression matters reject prevailing tests tendency arouse lustful thoughts desires unrealistically broad society plainly tolerates great deal erotic interest literature advertising art regulation thought desire unconnected overt misbehavior raises acute constitutional well practical difficulties