User:Drozycki16/sandbox

Prior to Stanley v. Georgia, the most relevant and authoritative ruling on obscenity was Roth v. U.S., where the Court held that a person's Constitutional rights are not violated when they are prevented from advertising and mailing obscene images. However, a necessary part of that case was that the obscenity was sent to the public, and its viewing was not controlled in any way. The Supreme Court was thinking mainly of inadvertent exposure of obscenity to minors when they ruled in Roth.

About a decade later, Stanley's Georgia home was searched under authority of a search warranty and probable cause as determined by a judge. The officers conducting the search were looking for evidence of alleged bookmaking. They instead found pornographic films, which they seized, and arrested Stanley for possession of obscenity, which was illegal under Georgia statute. He unsuccessfully argued that the charge was in violation of his First Amendment rights; Roth apparently excluded obscenity from protection under the Bill of Rights. He was convicted, and appealed the conviction in the Georgia Supreme Court, which upheld the ruling. He appealed again, and the US Supreme Court decided to hear the case.

The Supreme Court unanimously found that the conviction was in violation of his rights. Roth was only meant to make illegal obscenity in public areas. What a person does in the privacy of their own home, without affecting any other person, is no business of the government. The Court rejected some of the other arguments of the prosecutors, such as that it would be too difficult to separate treatment of distribution and possession of pornography, and so the lower courts' decision was overturned.

Justice Stewart agreed with the majority opinion, but wrote his own concurrence to bring attention to another fact of the case. Stanley's constitutional rights were also violated when the police seized the film reels. They were there on authority of a search warrant, which clearly enumerates the things that can be found and seized by the police. At the time the warrant was created, there was no probable cause for obscenity, and so the police had no right to take the reels from his home. When he a motion to deem the evidence inadmissible in court, his motion was denied. For this reason alone, the case ruling needs to be reversed.

Stanley v. Georgia establishes a Constitutional right to pornography. In the majority opinion, there is emphasis placed on the liberal ideal of free and unimpeded acquisition of facts and knowledge, regardless of their apparent social value. Mentally healthy and sane adults should not be kept from indulging in their tastes, even if others may find them distasteful. Unless the pornography is created or presented in a way that can cause harm to others, the government has no right to control the consumption of the obscene material. The Stanley decision coincided with the sexual revolution, and led to a more accepting, liberal view of pornography, and a thriving, legitimate commercial market for obscenity.

Subsequent cases include U.S. v. Thirty-seven Photographs (1971), which banned the importation of pornography, and Osborne v. Ohio (1990), which outlawed the mere possession of child pornography.

Prior history
Prior to the Stanley case, the prevailing precedent was that of Roth v. United States, where obscene material was determined to be unprotected by the First Amendment right to speech. In Roth, the defendant sent lewd advertisements by mail and sold American Aphrodite, a magazine containing erotica and pornography. A California court convicted him under state law, and when Roth appealed the decision, the Supreme Court upheld the conviction. In the majority decision, written by Justice Brenann, a new test was created for determining what can be considered obscene (The Hicklin test was used since a ruling in 1857, which the Court abandoned in Roth.) By 1960, the sexual revolution was in full swing in the US, and newly defined social norms clashed with the established statutory and common law of the country. Since the ruling in Roth in 1957, many cases in state and federal courts were determined using the case as primary justification.

Robert Eli Stanley was a Georgia resident suspected, with probable cause, of bookmaking. A warrant was granted to search his home. The searching officials did not find evidence of bookmaking, but instead discovered three reels of eight-millimeter film. They watched the films using a projector that they found in Stanley’s home, and upon discovering that the films were pornographic, they seized the films as evidence and arrested Robert Stanley for possession of obscene matter, which was illegal by Georgia statute. Stanley was tried and convicted. He appealed the conviction, and the Supreme Court of Georgia affirmed the conviction.

The case
The majority opinion was written by Justice Thurgood Marshall, joined by Chief Justice Warren, Justice Douglas, Justice Harlan, and Justice Fortas. It was a unanimous 9-0 decision.

Although the defendant presented multiple arguments in his defense, the Court was able to reverse Georgia’s decision using just one of them. A distinction was drawn by the Court between public display and private possession of obscenity. Neither Roth nor any other case at the time set a precedent for private possession of obscenity. The Court thus decided to set precedent on this issue in this case. Roth dealt with the mailing and advertising of obscenity. A companion case, Alberts v. California, involved the advertising and sale of obscene materials. All earlier cases were decided with the negative externality of obscenity in mind. They reasoned that members of the public, especially impressionable children, should have a valid expectation to not be inadvertently exposed to obscenity. Public display of obscenity was deemed an “important interest” in Roth. Private possession was not as interesting in the eyes of the Court.

The First Amendment to the US Constitution protects freedom of speech. In Winters v. New York, a notion was established that freedom of speech extended to what an individual possesses and chooses to read. “The Constitution protects the right to receive information and ideas, regardless of their social worth…”. For this reason, the Court dismissed Georgia’s argument that drew a line between communication of ideas and “mere entertainment”. Marshall noted that such a line could not be objectively drawn.

The Court reasoned that the Georgia decision encroached on Stanley’s pursuit of happiness. Stanley should have a right to define his own spiritual nature. An individual’s First Amendment rights must always be protected, unless there is cause to believe that a certain type of expression may cause significant public harm.

The Court dismissed Georgia in claiming that possession of obscenity necessarily led to “deviant sexual behavior” and “crimes of sexual violence”, as there was little empirical evidence supporting the claim. The Court reasoned that primary crime deterrents should be education and punitive measures for violation of the law. Punishment for an act solely as a preventative measure to ensure that another law would not be violated was discouraged. Georgia also claimed that the possession of obscenity was indistinguishable from its distribution. They claimed that it would be impossible to effectively control distribution if possession was permissible. The Court did not agree with the validity of this claim, and further asserted that an individual’s First Amendment rights were more important in this case.

By the First Amendment, as applied to the states by the Fourteenth, private possession of obscenity was decided to be legal. The Court noted that this does not affect or change Roth or other cases that deal with public obscenity.

Stewart concurrence
Justice Stewart wrote a concurrence, which Justice Brennan and Justice White joined.

There was also another issue with the Constitutionality of the case, which was not addressed in the majority decision. The films were seized in violated of the Fourth Amendment as applied to the states by the Fourteenth. The Fourth Amendment prohibits the issuance of general warrants to search a person’s home. A warrant can only be issued by a judge when there is probable cause. The particular items to be found must be enumerated on the warrant. The search warrant issued was for the seizure of materials in Stanley's home relating to bookmaking. There was no mention of obscene films on the warrant, and so the seizure of the films as evidence was unconstitutional.

General searches and seizures were made unconstitutional because of the prevailing policy during colonial rule of issuing writs of assistance of the British Crown to search all of a person’s belongings to find anything that is incriminating.

The films and their content were not in “plain view”. The record showed that the officers had to play the films on a projector to determine that they violated the Georgia obscenity statute. So the films are not admissible as evidence under the plain view doctrine, which requires that the character of the object is “immediately apparent”.

A search warrant cannot be used as a “ticket” to enter private property. Once inside, an officer cannot assume the privileges of a general warrant.

For these reasons, the films are inadmissible as evidence. Stanley made a motion to exercise this Fourth Amendment right during his trial, and the motion was unconstitutionally denied. The Georgia Supreme Court also overlooked this Constitutional violation. The conviction must be reversed.

Right to pornography
Stanley v. Georgia established a Constitutional right to pornography. The majority opinion defended the free and unimpeded acquisition of facts and knowledge, regardless of their apparent social value. The issue is over censorship. In accordance with liberal philosophy, mentally competent adults should be allowed to gratify their private tastes, regardless of the majority societal opinion on the taste. The Court reasoned that unless the pornography is presented in a way that creates a negative externality on others, especially minors (Roth), no individual can be stopped from owning and viewing pornography in private. The decision in Stanley v. Georgia was an important stepping stone for the success of the sexual revolution and helped pave the way for today’s conventional market for pornography and popular support for the matter.

Subsequent cases

 * United States v. Thirty-seven Photographs (1971) – Banned the importation of pornography


 * Paris Adult Theatre I v. Slaton (1973) – Privacy required in Stanley decision is not sufficient a commercial movie theater


 * Osborne v. Ohio (1990) – Outlawed mere possession of child pornography


 * Reno v. ACLU (1997) – Upheld legality of distribution of pornography on the Internet


 * Ashcroft v. ACLU (2002) – Protected use of “community standards” to identify material unsuitable for minors